anjela moses vs abel stephano and 2 others 2023 tzhc 21858 3 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA PC CRIMINAL APPEAL CASE NO. 8 OF 2022 (Arising from the Criminal Appeal No. 10 of 2022 before Hon. K.V. Mwakitalu - RM, Originating from Criminal Case No. 35/2022 at Ujiji Prirnary Court Before Hon. V. Nombo - RM) ANJELA M O SES , APPELLA NT V ER S U S A BE L STE P H A N O 15T RESPONDENT ZAKARIA PBADIA 2No RESPONDENT AMENYA KASOMA :·~ JRD RESPONDENT JUDGMENT 23/9/2023 & 3/10/2023 Mlacha,J. This is a second appeal. It originates from Criminal Case No. 35 of 2022 of the Primary Court of Kigoma district at Ujiji. The appellant, Anjela Mosses was the complainant. The respondents, Abel Stephano, Zakaria Obadia and Amenya Kasoma were the accused persons. They were charged of abusive language and brawling c/s 89 (1) (b) of the Penal Code Cap 16 R.E 2019. It was alleged that they invaded the house of the complainant on 6/2/2022 and knocked the doors and windows unlawfully 1 th e reb y ca using a d istu rb an ce to he r. T he tria l co u rt fo u n d the m no t gu ilty an d acquitt ed th e m . F u rt h e r ap p e a l to the d istrict co u rt in C rimina l A pp e al N o . 10 of 2020 could no t be su ccessfu l he n ce th e a p p e a l to th is co u rt. B e fo re co n sid e rin g the g ro un d s o f ap pe a l and su b missio ns, a b it o f the ba ckg ro un d m a y be use ful. PW 1 A nje la M o sse s (35) to ld th e tria l co u rt tha t the re sp o n d e n ts ca m e to he r o n 6/2/20 22 at 9 :0 0 P M a rm e d w ith m a ch e te s, 2 d a b s an d a cha in . T he y kno cked the d o o r an d w indo w s say ing tha t w a s he r last d ay . T he y w e re 6 in nu m be r, T he y ca lle d the p olice w h o ca m e w ith a car. The p o lice cam e a n d fo rce d the m se lve s in to the ho u se . The y se a rch e d b u t no th in g w a s fo u n d . The y g ot o u t a n d p ut the accuse d un d e r a rre st beca u se the y had com e th e re to m u rd er so m e o n e . N eig hb o u rs ca m e . T hey m ove d to th e po lice station . O n be in g cro ss exa m ined , sh e sa id tha t th e fi rst a ppe lla n t had a cha in and the th ird accu se d ha d a m a ch ete . O th e rs had ch airs. S h e in siste d tha t she sa w th e m . PW 1'S son , Stephano Abas corroborated the evidence of PWL He is son of the first appellant. He told the court that the first appellant is his father but came like a robber (jambazl) that day. It was the defence of Abel Stephano ( 43) that on 6/2/2022 he arrived to his homestead around 01:40Hrs, he knocked th ws but no response. He called his friends Hamenya who came with his 2 colle ag u e a nd kn o cked un su cce ssfully . T he y de cide d to ca ll the p o lice w h o bro ke th e doo r. E n te rin g the ho u se , they fou nd the a p pe llan t w h o sa id that A b e l is he r h usba nd an d sh e do esn 't w an t him to a p p ro a ch w h e re she live s. T he police sea rche d the ho u se and no th in g w as fo u n d . T he y too k th e m to the po lice statio n . Z aka lia O b a dia , te stifi e d tha t o n tha t d a y the y w e re ph o n e d to g o to the 1st respondent's house and came. They advise him to call the police. The police came and arrested them. Hamenya Kasingo, testified that they were phoned by the 1st respondent, he went to his homestead, the door was closed, it was rejected to open. They advised him to call the police, he did. When the police came they entered inside the house and found nothing. They were arrested for disturbing police. Richard Ndeqe, testified that as a bodaboda man, he received a call from Zakaria asking him to send him to the house of the 1st respondent. He complied. On arrival, he saw them making a call. Soon the police arrived. They were taken to police station accused of disturbing the police: The matter was taken to court. ,, The appellant raised five grounds of appeal. It is convenient to consider those grounds together because in their totality they mean to challenge of the district court that it did not evaluate the evidence on record properly. 3 As e a rly said th e a p p ella n ts w e re c ha rge d o f a b u s iv e la n g u a g e c o n tra ry to se ctio n 8 9 ( 1 )( b ) o f th e p e n a l c o de c a p 1 6 R E 2 0 1 9 n o w R E . 2 022 . T h e s e ctio n is rep rod u ce d h e re u nd e r; ''89. -(1) Any person who- (a). . (b) brawls 00 in any other msnner. creates a disturbance in such a manner as is likely to cause a breach of the p_eace/ is _gu11ty of an offence and liable to imprisonment for one year. " · While composing this judgment, I was attracted bythe following versions of testimony of which my findings will base. The appellant testified that:- "Washitakiwa walipigia simu polisi wakaja na defender. Polisi walikuta napiga kelele sikufungua mlango askari alibomoa mlc?ngo wakaingic: ndani kupekua lakini hawakukuta kitu wanachokitafuta. Askari walitoka nje wakaambia washitakiwa wapo chini ya ulinzi kwa sababu wamekuja kwenye meuet:" Even her only witness (her son), like her mother she said that; "waligonga madiri5ha na milango wakampigia askari. Askari alipiga mlango na kvingia ndani wa!iingia naen! askari 3 walipekua ndani hawakukuta kitu. Baada ya hapo waliwashika watuhumiwa na kupelekwa central" 4 T h e e v id e n c e of th e re s p onde n ts re v ea le d th a t th ey trie d to o p e n the d o o r w ith o u t s u c c e s s . T h ey p h o n e d the s tre e t c h airma n u n s u cc e ss fu l, later I +-ha\/ decided r:lll ti'"\ police whl'"\ r:lmt:l tt"'I tht:l c:rPnP I \..~ I \.11'-Y \,,,I\..,\.. '- \..oUII \..V VII'- vY1 ''--' '-''-A' 1 •- '"''-' ._, •- ---• •-• T hP , , ,_ n nlirP ,...-••-- searched the house and found nothing in connection with the crime. From the above testimonies, one can see that there is something hidden behind the scene which was not disclosed. But it is obvious that there was a big fracas and a real threat to life on the part of the appellant for reasons which were not disclosed. Otherwise, there was no reason as to why the house could be invade by such a big number of people who also included the police. The words of appellant and the respondents that the police searched a house and got nothing in connection with any crime, raise doubts as to why one could call the police to search his own house. The 1st respondent said: ''. .. askari waliingii (sic) lakini hawajaona chochote ndipo walisema tuliwasumbua wakatupeleka kituoni." It was also said that:- ''askari alibomoa mlango wakaingia 2 (sic) ndani kupekua /akini hawakukuta k1tuwanachokitafuta . . . . askari a/iwaeleza kilichotokea wakisema wamekagua wamekosa ,.~ 5 B u t w h y c a ll the p o lic e to s ea r c h on e s h o u s e . T h is re v ea ls th a t th e r e w a s a h id d e n a ge n d a . T h e p a r tie s a p p e a r to ha v e b e e n in a bed s epa r a tio n fo r a lo n g time a nd th e fi rs t re s p o n de n t h a d c om e e it h e r to fo r c e c o n ju g a l rig h ts or a r r e s t s ome o ne c om m itt in g a d u lte ry in the h o u s e fo r w e a r e to ld th a t h e h a d an o th e r w ife a n d u s ed to c o m e h o m e ra r e ly . It is n o t p o s s ib le fo r a p e rs o n to c a ll th e p o lic e to s e a r c h h is h o m e s te ad o n a lle ga t io n o f th e c ommiss io n o f a c r im e th e r ein . S o in e ffe c t th e re wa s g ood e v id e n c e o f c om m iss io n o f th e o ffe n c e o f a b u s iv e lan g u a g e c o n tr a r y to s e c tio n 8 9 ( 1 ) ( b) o f the P e n a l c o d e c ap 1 6 R E 2 0 1 9 n o w R E . 2 0 22 a s c ha r g ed . T h e th r e a t w a s a ls o b ig in v o lv in g the u s e o f w ea po n s . In v ie w o f th is fi n d in g , the d ec is io n s o f th e tw o c o u rt a r e v a c a ted a n d s e t a s id e . H a v in g a s s e s s ed the s itua tio n c a r e fu ll y , th e re s p o n de n ts a r e ~ sentenced to fine of Tshs. 50,000/= each §}i three month imprisonment on default. 6