20150812 TZHC Dodoma

) IN THE HIGH COURT OF TANZANIA AT DODOMA DC CRIMINAL APPEAL NO 6 OF 2015 (From the District Court of Man yoni at Man yoni Criminal Case No. 712013) LUHENDE NDEGULE ...................................................APPELLANT VERSUS THE REPUBLIC ............................................................RESPONDENT 12/8/20 15 A. MOHAMED, J JUDGMENT The appellant Luhende Ndengule was convicted of the offence Threatening with Violence c/s 158 (1) of the Penal Code [Cap 16 RE 2002] and was sentenced to a 2 year jail term by the District Court Manyoni. Dissatisfied with that decision he has appealed to this court on the following two grounds of appeal:- That the trial magistrate erred in law and in fact for failing to evaluate the evidence tendered in court. That the trial magistrate erred in law and in fact in convicting the appellant without apparent reasons. The background of this case is that it is alleged on 12/12/2012 at Makutopora village within Manyoni District at around 8 pm, the appellant and his co accused, one Machomane Jiponda Ngasa, jointly and together with intent to intimidate or annoy the complainant, George Aron, (PW1) threatened to kill him. At the hearing of the appeal, the appellant was unrepresented while the respondent was represented by Ms. Taji., learned State Attorney. In amplifying his grounds of appeal, the appellant, contended that the alleged incident took place on 25/12/2012 but oddly he was arrested on 12/1/2013 and wondered what had transpired in the period between the two dates. He went on to question why had the complainant fail to report the matter to the village leaders. He clarified that the complainant's motive for these false allegations were to force him to leave the village as his cattle were vying for the same pasture with those of the complainant. And that was the reason why his co accused was acquitted in the lower court as he had agreed to leave the village. In reply, Ms. Taji, submitted that at8 pm on 25/1 2/201 2, PWlwas at Jeremiah Morris's bar having a beer. Thereafter the appellant arrived accompanied by the 2nd accused person and upon entering they greeted PW1 and the appellant went to the washroom. When he returned he asked PW1 whether his cattle were still dying. PW1 asked the appellant whether he was a veterinary Officer. In return, the appellant told PW1 that all his cattle wol)ld die soon and he would be forced to close his cattle kraal. Further, he told PW1 that he would kill him and if he fails to do so he would hire killers from Shinyanga to do the job. Ms. Taji further submitted that PW2, one Meshack Mangaye was present and he heard there words. Thereafter PW2 escorted PW1 to his home and on the way they found two bicycles blocking the path. PW1 testified that both bicycle were lying down whereas PW2 testified that both bicycles were standing upright blocking the path. Thereafter the appellant and the 2nd accused who was acquitted in the lower court emerged from the bush. The appellant told PW1 that he was lucky today as he was accompanied by somebody; otherwise it would have been his last day. Ms. Taji, submitted that from the above two witnesses' evidence, it is evident the appellant intimidated the complainant. However, she added, doubt is raised by the inconsistency between PW1 's and PW2's testimonies. Whereas PW1 testified both bicycles were lying down, PW2 testified both bicycles were standing upright. She went on to submit that the law provides that for a person to be charged with the offence of threating to kill under 89 (2) (a) of the Penal Code, there must be an actus reus that shows he intended to do so which is lacking in the present case. She argued that the appellant merely uttered words against the complainant. In support 3 of this stance, she cited the case of R.V Mustapha Sandiri, [1990] TLR 120 where the Court held that:- "A threat alone cannot be conclusive evidence that the person who uttered the threat has committed the offence. There must be something tangible other than the occurrence of the threating act to indicate that the accused did carry out the threat" Ms. Taji argued that it is clear the appellant just uttered the words but he did not carry out any act showing he intended to kill the complainant. For these reasons, she conceded to the appellant's grounds of appeal and she concluded by praying this court to quash the decision of the Manyoni District Court. Having heard the respective contentions of the parties, and having given my consideration, I find those of the appellant merit my acceptance as they are largely supported by the respondent. The brUcial question that I considered is whether the ingredients of the offence were properly proved by the trial court. In essence the offence the appellant was charged with had two limbs; one that the person charged uttered words that annoyed or intimidated the complainant and secondly that the accused person did an act showing he intended to carry out the said threat. In the instant case, there is proof that the appellant uttered words that threatened the complainant but there is no proof that he did carry out any act that 4 I, 4 showed he intended to carry out the threat. Thus the two ingredients did not be fulfilled to constitute the offence he was charged with. As such the offence the appellant was charged with cannot stand. There are other issues raised by the learned respondent's counsel that I need not need belabor as the aforesaid deficiency suffices to dispose of the appeal. After having said all and done, I allow the appeal, quash the conviction, sentence and orders of the lower court. The appellant is to be freed forthwith unless held for lawful cause. It is so ordered. A. MOHAMED JUDGE 12/08/2015 The right of appeal to the Court of Appeal of Tanzania explained. m A. MOHAMED JUDGE II 12/08/2015 5