20141124 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISJRY AT MWt~NZA HIGH COURT (PC) CRIMINAL APPEAL NO.• '17 OF 2014 . (Arising from the District Court of Muisoma:in Criminal Appeal No. 2/2014 and Ornginal Criminal Case No. 559/2013 of Musoma Urban Primary Court). RUTH MUG ETA. ■■ • ■■ ,. ■ ■-■,.Ii -■■■ a ■■■•■■■ a c 1: 11111tD~ ■ 111 ■■■ a ■■■ a••• ■■■■ w .. ■ • ■ e ■ 11APPE.LLANT VERSUS LUCIA KITUMBO ■■ ■ ■ ■ ■ ■.■ ■■■■■■■ a ■ ■ ■ 111111,; ■ ■ ■ ■ ■ ■ ila • ■ ■■ ■ ■ ■ 11 ■ ■■ 11 ■ RESPONDENT 11 1 ia 11 JUDGMENT BUKUKU, J.: Ruth Mugeta, the appellant herein .was before the Musoma Urban Primary Court at Musoma charged with allegedly, insuit!ngiy and obscenely telling the complainant respondent as follows:- "··\~·~ _ i>J·<·::,::(··-:: .... :J;,r.~::·i\_!-.·§-' •s'/\~~,~--~.:1: :·--1;·.t~ "Mibaraza ya pale i!nejaa · una.fiki na michawi,. inaacha kujaa'lli mambo mengine inaJ<{Jc/il(.k(jf1:LJ.Sll_ .mshitakiwa kujengewa nyumba . . ::···. ~. \•·.i~;:.•-;~ff~~~t{.'.~~J)\ . . . ..._, . ;, : ·• .,,· ~ ; .. ·.· .,. ·,.' , .. ~ •, . . . .. 1 '. ,. Na watot~ Wi1 mke 'in~venza mit~to yake imeshindwa kumjengea ' ..' .nywnba/ · umeweka· niisukule, urneichana ·kama vitambara na · kulalia kita;,darii lnchawf'vla1Vyakat6. (F. · ~ ·. . . .: . ' '::\. .. ,. .. ' . ·.; '• These vvords landed the appei!ant°'in· court where she was charged with the offe~-~~ oiab~'.sive: ·1~'~g~~~e'.;cor,tr~~ tose~tion. 89(1) (a) of the 1 Fenai Code, . . Cap 16. R. E., 2002. · . The .Musoma Urban Prima!y Court found the appellant not guilty after a full trial and set the·appeilant free._ Aggrieved by the said judgment, the respondent appealed to the @1strict Court of Musoma in Criminal Appeal No. 2 of 2014. On 15th April, 2014., ~he Di.strict Court (Maganga - SDM) set aside the trial court's decision of acquittal and substituted thereof a conviction of the appellant and sentenced her to serve a jail term of three years and three months. Aggrieved by the conviction and sentence, the appellant is now in this court claiming her innocence. , In brief, the facts has it 'that, on the fateful day, 19th June, 2013, whil~ the respondent was on her was sending food· to her sick daughter, she .met her neighbors and greeted them. Sudde_n·ly, the appellant who was 2 on her way to her job, appeared and immediately started to utter the abusive. words to the_ respondent. The appellant denied to have uttered ..... . the said words. She contended that, . ,. it was the : .respondent . . ... who invaded into her house, accompanied by her three children, and proceeded to utter the abusive words. At the trial court, the-appellant called two witnesses, Malima Mkonie · (DW2) and Mugetha Ka·mese (DW3). Both PW2 and PW3 who witnessed the fracas, told the tria·I court how the respondent we~t into the appellant's house in the company of her children and started uttering the abusive words. On her part, the respondent called one witness, Atl1umani Juma Nyabange (PW2), who told the court that, on 21 st June, 2013, at 4.30 pm, while on his way from Saa nane, he found the appellant uttering abusive words to the respondent.' PW1 urged the appellant to stop uttering the said words. In this petition of appeal, the appellant· has fronted four grounds of appeal namely:- 3 . . . . . . -.;, (i) That the appellate wcourt erre_d and misdirecte.d itself in law and in . ,... . ~ ~ . fact in arriving to the decisi.on it made.· (ii) That the appefla.te court erred in· law and i!'1 fact for not considering . . the evidence on record. - ·- (iii) That the Primary Court had _.decided the case to its merits where it found the appellant innocent of the charges and acquitted her. (iv)· That the appellate court erred both irf law arid in fact admitting that ' . . appellant ·is a·habitual offender, -the allegation which is not true. The appeal was argued orally. Both parties had the opportunity to be heard. The appellant herein was convicted and· sentenced on 15th April, 2014, and was granted bail ~n .27th August, i014. Section 89 of the Penal ·Code states: '1(1) Any pe.fson who- (a) Uses·obscene/ abu5iVe or ?nsu!ting language to any other person 1 •, ' · in such a manner as is likely to cause a breach of the peace/ or ' . (b) _N/A ·is guilty of an offence and liable to imprisonment for six months. •,f : •• : • 4 . , In my understanding of ~~e. shprge aqd_ eviden~_e, t~e ?Jlegedly . :- ·, - . :" ,_" " . ~. . obscene insults inflicted upon the cornplaiQant ~meant, that th~. respondent . . . ,. ~· . ~ . '~ ,.' .. "' . : ' was. a hypocrite, and a witch who _keeps . zornbl~s (misukule). . inside her' ~ ' · house. I shall therefore allow myself to surmis~ that it is for: this reason . '· - . . that the respon9ed decided _to sue th~ appellant herein. In determining this appeal, I will combine tl1e first, second and the third grounds. In arriving at its decision, the tri~I primary court had the - ,. opportunity of hearing·the testimonies of both parties, and their witnesses . . . Based upon the available evidence, the trial court found that the • respondent herein (then the plaintiff) had fa-Hed to prove her case beyond reasonable doubt. Undoubtedly, having gone· through the evidence of both part1es- at the trial court, I find the e·vidence·•:of :the·;:a-ppellant is ·much heavier than ' that of the respondent. Unfortunately the: finit appellate courf·magistrate . . . failed to observe this. Basically, the.· learned magistrate misdirected himself when he said that the appellant's denial· that no such at;:>usive languages 5 . ·_ ... :..i.·: -· '• f • . . . were~ uttered were not suppqn:ecf by her witnesses. In fact, _DW2 Mali ma '. I•• l • - • , • ' Mkome and DW3 Mugetha . •. Makese . : . who witnessed the ... : - . -· . ·: ..· . . ·. . \ fracas both told the , .. ' ' court how the respondent wen't ...to . .the appellant's . : house .. with her. three , children,· two girls ·and a boy and ordered the app~llant to treat her boy vyho allegedly ha'd been beaten by the appella_nt's son. Actually, going by'the record, there is. a .contradiction as to when the incident happened. While the respondent told the court that she was abused on 20 th June, 2013, her witness said it happened on 21 st June, 2013. The appellant and her -wita~sses told the court that the incident happened· on 19th · June, 2013. Secondly, having carefully gone through the judgment ·of the first appellate . court, I fully agree . with the appellant that, -· the learned_ magistrate ·did not consider the evidence on record, especially that of the appellant. At most, he c~nsidered the evidence of the respondent and her witness. It is not disputed that, while PW2 was just a passer by,-who found the .parties exc~anging words, DW2 and DW3 were at the scene and heard what had .transpired. For that matter, their testimonies ought to have been given -more weight. . 6 It is for these reasons that I find the first, second and third grounds • • • • • • + .- ~. - 4 • •• • ' • ~ ·? • • •• • • ' . ., ,.,. ' ' .. .• • . of appeal have no merit~ . . ' As far as the fourth' ground of appeal is concerne_d, I think this need . . . ' not detain me. It is· a·. fact that, ~in assesslng the sentence, the learned ' ~'" • ~ .. . • i . . , magistrate took into account the allegation that the appellant was a habitual offender, and had been greatly influenced by this to the extent of imposing an illegal sentence. Much that I agree that conduct of a person .might influence in imposing a sentence, that alone is not enough. There are other factors which has to be taken into consideration when tmposing a sentence. Since the allegation was not proved by the court, I find that it . . . was not proper for the learned magistrate to sentence the appellant based on mere allegation. Before penning off, I have found it apposite to bring up the lssue of sentence suo motu. One thing which is. obvlous here .is. tiiat,_. even if the , ' ' appellant was on the wrong side of the law, the sentence imposed by the first appellate court was manifestly ~xcessive to a~ount to a _miscarriage of justice. There is abundant guidance on when an appellate court could . . ~ : ' ' ; :: ' interfere with a sentence passed by a lower court: One, if the sentence is • • 1' ' . • ,.- manifestly inadequate or excessive so as to amount, to a miscarriage of 7 justice: . .(See: R.V. . Mohamedaii . . . Jamal [~948]-15 ' . . EACA 130 and two, . . if the trial court acted on a. wrong principle or overlooked. some material ' - I • · factor~ (See: James Yoram V. Republic [1957] 18_ EACA 147. In the last analysis, I am of the considered view that, the evidence ! . . adduced in support of. the charge was not at all strong,. and the appellant's defence, proper!y considered, raises serious doubts as to her guilt. In the clrcUtflStances, tam .satisfied that there is merit in this appeal which ought ",• to succeed. In the result, I allow the appeal~ quash the conviction and set aside the sentence with an order for tl1e immediate release of the appellant unless she is· otherwise lawfully held in· custody. Having quashed. the conviction, the excessive sentence dies a natural death. Order accordingly. JUDGE Delivered at Mwanza This 24th November, 2014. 8 ., .. o:,.- ' . \ .