alphonce siongo vs mussa marwa daudi 2023 tzhc 20714 5 september 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM PC CRIMINAL APPEAL NO.7 OF 2023 (Originating from Criminal Appeal No. 04 of 2021 Ilala District Court) ALPHONCE SIONGO APPELLANT VERSUS MUSSA MARWA DAUDI RESPONDENT JUDGMENT 23/08/2023 to 05/09/2023 E.B. LUVANDA,J This is a second appeal. The Appellant (claimant at the trial court) lodged a complaint or charge under the provision of section 89 of the Penai Code, Cap 16 R. E. 2019, for the offence of threatening violence (to kill by words). The trial court dismissed a charge for reasons that it was not proved beyond reasonable doubt on account that a charge is for threatening violence (to kill by word) while the testimony of the Appellant (who testified as PWl) and his witness suggest he was threatened to be killed by stabbing him with a knife. The Appellant unsuccessful appealed to the first appellate court, the district court dismissed his appeal for reasons'that through the entire testimony of the Appellant did not see anywhere wordings uttered with intent to kill. The first Appellate court ruled that a mere fact that the Appellant was threatened to be stabbed by a knife does not amount to kill. In the memorandum of this appeal the Appellant raised three grounds of appeal; One,the trial (sic, first appellate) court grossly erred In law and fact when delivered the judgment outside the court proceedings; Two, the trial (sic, first appellate) court erred In law and fact by falling to consider the evidence provided by the Appellant; Three, the trial (sic,first appellate) court erred In law and fact by falling to consider circumstances for changing the trial magistrate In the primary court without adducing any reason for doing so. The appeal was argued by way of written submissions. The Appellant consolidated grounds number one and two and argued that the trial magistrate has delivered judgment outside the court proceedings and the evidence which was tendered by the Appellant was not considered at all. He submitted that this Is clear that the trial magistrate has failed to consider his evidence in the court proceedings. Ground number three, the Appellant submitted that In the proceedings the trial magistrate changed without any notification to the parties, argued It suggest something fishy and jeopardized his right. In response, the Respondent submitted that the successor Magistrate Hon. Tarimo took the case whiie at a mention stage. He submitted that rights of the Appeliant cannot be jeopardized oniy for reason of change of magistrate and case transfer. He submitted that the Appeilant had an opportunity to ask the court on the reasons for transfer of a case but faiied to do the same, argued he had no reason to chalienge it in appeai. For ground number two, the Respondent submitted that the traii court acquitted the Respondent not because it ignored the Appeliant's evidence but because the Appeiiant's evidence faiied to prove the case beyond the reasonabie doubt. He submitted that the triai magistrate evaluated the evidence of both sides and considered the provisions of the law as well as case law and finally arrived to conclusion. He submitted that the Appellant was supposed to clarity which grounds or matters were not in the record. On my part, I will start with ground number three, the records of the triai court reveal that at first the matter was presided over by Honourable Kivambe, Magistrate, thereafter the matter was transferred and re assigned to Hon. Tarimo RM on 09/08/2021. After taking over, Hon. Tarimo invited the accused (Respondent herein) to take plea afresh, and in subsequent sessions it is when hearing commenced. In other words there is no piece of evidence which was recorded by the predecessor magistrate. The predecessor magistrate ended on taking plea which was redone before the successor magistrate. In the circumstance, I have failed to comprehend a complaint by the Appellant who was a claimant thereat as to how his rights were jeopardized as alleged. This is because all witnesses both for the complainant (Appellant herein) and accused (Respondent herein) was heard and recorded to its finality by Hon. Tarimo, who delivered a judgment. As such I uphold a verdict of the first appellate court that there is no prejudice whatsoever which was occasioned to the Appellant either party for change of magistrate. Therefore this ground is unmerited, it is dismissed. Ground one and two, according to the records of the trial court in particular a charge sheet reveal that the Respondent was charged for threatening violence (threatening to kill by words) contrary to section 89 of Cap 16 (supra). The particulars of offence read that the Respondent had unlawful threatened to kill the Appellant by a knife. According to the evidence which was presented by the Appellant was to the effect that the Respondent uttered words to the effects that he will stab the Appellant with a knife, this is incident occured at Relini Area. This fact was supported by Kennedy Charles Ladislaus(PW2) who disengaged the parties on the fight, that he heard the Respondent saying he will stabb the Appellant by a knife. Both PWl and PW2 stated that the Respondent was not in possession of a knife. On defence the Respondent aiieged to had visited at the office of the Appeliant on 26"^ February, which was supported by Sayuni Magnus Kiwaie (DW2). When the Respondent was asked by the triai court, he said that the office of the Appeilant is near Reiini Area. According to the provision of the penai iaw under which the Respondent was charged specificaiiy section 89(2)(a). Cap 16 (supra) provide, I quote ''(2)Anyperson (a) with intent to intimidate orannoyanyperson, threatens to injure, assaut, shoot at or kiii any person or to burn, destroy or damage any property; or (b ) is iiabie to imprisonment for one year and if the offence is committed at night the offender is iiabie to imprisonmentfor two years. Therefore a findings of the triai court that in the charge sheet the offence is threatening to kili by words, while the Appeilant explained that he was threatened to be killed by a knife by the Respondent or that if the Respondent had no knife at the time of offering intimidation, as to what harm the Appellant suffered, or findings by the first appellate court that to be stabbed by a knife does not mean to kill or else that the evidence presented by the complainant was a threat to be stabded by a knife and not to be threaten to be killed by a knife, as per the charge, was unnecessary interpolation. In fact it was a misapprehension of facts and law. The statement of offence is in tandem with the particular of offence. To say it ail, the evidence presented support the charge. This is because the above quoted penal provision capture any intent to intimidate by threatening to injure, as sault or kill any person. The first appellate court said to be stabbed by a knife does not mean to kill. Certainly true, but stiii the same could fall under threat to injure. The trial court ruled if the Respondent had no knife, the Appellant suffered which harm, but forget an intent to intimidate is stiii there in the penal provision and it could fail under assault. As I have said earlier at the preface, that this is a second appeal, I understand there is no room for re hearing and re evaluating evidence and indeed over concurrent findings of fact by the two courts below. However in view of the perceptible misapprehension of facts and law, I have chipped in under the auspices of the case of Feliz s/o Kicheie & Another vs. Republic, Criminal Appeal No. 159/2005, the apex Court had this to say, I quote, "This Court however, interfere with such findingsifit is evidend that the two courts beiow misapprehended the evidence or omitted to consider avaiiabie evidence or have draw wrong conclusions from the facts, or ifthere have been mis directions or non directions on the evidence" I therefore invoke the provision of section 29(a)of the Magistrate's courts Act, Cap 11 R. E. 2019, reverse the findings of the two Courts below and proceed to substitute an acquitted to conviction. Appeal allowed. E.B LUVANDA p^GE 05/09/2023 Judgment delivered in the pre^ce of the Appellant and Respondent. X"-. .B. l.UVANDA E.B. JWOGE •\ /\ 05/09/2023 COURT The Respondents invited to address on mitigating factors. Respondent; I pray for leniency because I did not commit such an offence. The Respondent is my step father, he promised to teach me a lesson, now I am seeing it. That is all. Sentence Pursuant to the provision of section 29(c) Cap 11 (supra), I sentence the Respondent to a conditional discharge for a period of twelve months. E.B.I LUVA A ^ 'v. Tge Qf/09/2023