yusuph mfikwa vs republic 2022 tzhc 12852 6 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF IRINGA AT IRINGA (PC)CRIMINAL APPEAL NO.01 OF 2022 YUSUPH MFIKWA APPELLANT VERSUS AJUAYE JOSEPH MKONGWA..... RESPONDENT ((Being an appeal from the Judgment of District Court of Njombe at Njombe) (Hon. I. R. MIowe, RM) dated the 15'^'^day of March, 2022 in Criminal Appea! No. 13 of 2021 JUDGMENT Date of Judgment: 06/09/2022 S-M. KALUNDE,J.: Before the Njombe Urban Primary Court (hereinafter "the trial court") appellant was charged with the offence of threatening contrary to section 89 of the Penal Code [CAP. 16 R.E. 2019]. In that case the complaint was AJUAYE JOSEPH MKONGWA, the respondent herein. It was alleged that on 10.10.2021 at around 20:00 Mrs. at Hagafilo street at Mjimwema Ward within the District and Region of Njombe the appellant did threaten the respondent by pointing a knife to him saying that he will kill him. The appellant pleaded not guilty. After full trial the trial court was convinced that the case against the appellant had not been proved beyond reasonable doubt Disgruntled by the decision of the trial court the respondent lodged Criminal Appeal No. 13 of 2021 at the District Court of Njombe sitting at Njombe (hereinafter "the district court"). Having heard the appeal, the district court made a finding that the case against the appellant was proved beyond reasonable doubt. The court went on to allow the appeal thereby quashing and setting aside the decision of the trial court. The court found the appellant guilty of the offence as charged and sentenced the appellant to pay a fine to the tune of TZS. 500,000.00 failure of which he was to serve a custodial sentence of one year. The appellant was aggrieved by the findings of the district court he filled the present appeal seeking to overturn the decision of the district court. The petition of appeal filed before this Court contained five grounds of appeal all of which may be summarized into a single ground of appeal that the charge against the appellant was not proved beyond reasonable doubt. Relying on the above complaint, the appellant prayed that conviction and sentence meted against the appellant be quashed and set aside; that the decision of the trial court acquitting the appellant be upheld and any other relief as the Court may deem fit and just to award. On 06.09.2022, when the matter came for hearing the appellant enjoyed the legal representation of Ms. Tunsume Angumbwike, learned advocate whilst the respondent was being represented by learned counsel Mr. Shaba Mtunge. At the outset Mr. Mtunge was hastened to inform that the respondent was withdrawing their submissions filed in opposition of the appeal. He submitted that having carefully considered the impugned judgment and the proceedings of the two lower courts below, the respondents were supporting the appeal. On her part, Ms. Angumbwike did not object to the prayer supporting the appeal. She went to adopt her petition of appeal as forming part of her submissions and invited the court to grant the appeal on the basis of the grounds and submissions made. The counsel prayed that the appellants' conviction and sentence meted against the appellant be quashed and set aside. On my part I have examined the records and noted that the appellant was charged with threatening contrary to section 89 of the Penal Code. I have carefully reflected upon the contents of section 89 which essentially establishes three distinct offences, that is Abusive language, brawling and Threatening violence. The section reads: "89.-(1)Any person who- (a) uses obscene, abusive or insulting language to any other person in such a manner as is likely to cause a breach of the peace; or (b)brawls or, in any other manner, creates a disturbance in such a manner as is iikeiy to cause a breach ofthe peace, is guiity ofan offence and iiabie to imprisonment for one year. (2)Any person who- (a) with intent to intimidate or annoy any person, threatens to injure, assault, shoot at or kiii any person or to burn, destroy or damage any property; or (b) with intent to alarm any person discharges a firearm or commits any other breach of the peace, is guiity of an offence and is iiabie to imprisonment for one year and if the offence is committed at night the offender is iiabie to imprisonment for two years'' I have also gone through the charge "HATI YA KOSA" as the laid against the appellant before the trial court. I hasten to say the charge itself did not specify the specific offence which was preferred against the appellant. In addition to that, the statement of offence put forward before the trial court did not disclose the essential elements of the offence for which the accused was charged. It is trite that one of the principles of fair trial in our criminal justice system is that an accused person must know the nature of the case facing him, so that he can properly prepare his defence. This would best be achieved if the charge discloses the essential elements of the offence. See Isdor Patrice v. The Republic, Criminal Appeal No. 224 of 2007; Mnazi Philmon v. Republic, Criminal Appeal No. 401 of 2015; and Robert S/0 Madololyo & Another vs Republic, Consolidated Criminal Appeals 46 of 2019, 428 of 2019 (all Unreported). In the case of Isdor Patrice v. The Republic (supra) the Court of Appeal sitting at Arusha (Rutakangwa, J.A.) stated: "It is a mandatory statutory requirement that every charge in a subordinate court shall contain not oniy a statement ofthe specific offence with which the accused is charged but such particulars as may be necessary for giving reasonable information as to the nature of the offence charged: See section 132 ofthe Act. It is now trite law that the particulars of the charge shaii disclose the essential dements or ingredients of the offence. This requirement hinges on the basic ruies of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence charged with the necessary mens rea. Accordingly, the particulars, in order to give the accused a fair trial in enabling him to prepare his defence, must allege the essential facts of the offence and any intent specifically required by law. We take it as settled iaw also that where the definition of the offence charged specifies factual circumstances without which the offence cannot be committed, they must be included in the particulars ofthe offence. [Emphasis supplied] The Court went on to make a finding that, in the absence of such disclosure the nature of the case facing the appellant was not adequately disclosed to him. It cannot be therefore vouched with certainty that the charge against the appellant was proved beyond reasonable doubt. The charge was, therefore, defective. The Court allowed the appeal. On my part, like their justice in the Court of Appeal, having satisfied myself that the nature of the case facing the appellant was not adequately disclosed to him I have no other alternative than declaring that the charge against the appellant was defective. The trial before the trial court was a nullity and the resultant appeal at the district court were thus a nullity. Having stated thus, I allow the appeal. The proceedings before the trial court and district court are declared a nullity and the resulting conviction quashed and sentence set aside. It is so ordered. DATED at IRINGA this 06*** day of SEPTEMBER, 2022. .KALUNDE JUDGE