20030702 TZHC Mwanza

LtfL_f;f-c/lAS1ld- '/)'- f; fJJ- trfrvv'- I IN THE HIGH COURT OF TANZflJHA AT M\.JANZA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPBAL NO 1L~3 OF 1999 (Original Crimin,31 Case No 290 of 1999 of the District Court of Mwanza District at Mwanzae Before: A. K~ Milambo, Ti;sqo DM) THE DPP O O do O O O O O G O O O O O O o O O • 0 O 0 • 0 0 0 0 O O O O C Cl APPELLANT

O O O O O O (Original Prosecutor) \T8R.SUS 1. MARTHA W/o CH/I.NGA ) ~ ) • • • --• • • • • o • • • • _. • • • • • • e • R~SPONDENTS 2. EXPEDI'I'OR S/O Ci-IANGA . _ (or.i_ginal Accused)

JUDGMENT Ivl..ASANCHE, J. The Director of public Prosecution is appealing against two things in this matter.. He is appea.1ing against the acquittal of Expediter s/o Changa, and he is also appealing against the sentence meted out to Martha w/o Chanea. She got a conditional discharge under s 38( '1) of the Penal Code.. She was told not to commit an offence of a 11 similnr 11 nature for a period of two years. These two persons are a couple - man and wife. On 1/3/99, at 7: 30 pm, she fought with the complainant Anna d/o Berna::·:-1 PW1.. · The source of the fight is, to my mind very flimsy. It -is said the .. complainant was in the habit of wooing the husband of ·.'. _. ·. P\'11, the said Expediter (second accused at the tria1). So, the complainant bit the breasts of Anna. Then, a scuffJ.e ensued. The second accused, the husband, was not there when these two women started to fight. 'rhe complainant went to report to a Cell leader and she was advised ~o go to the hospital. She was given a PF3. The doctor, 'after treatment, wrote, on the PF3: • f ... 2 Human bite wounds.

2. Swollen neck. H Frecture of first toe left foot Size of injuries: Upper right breast and lower right :1 thoriax. 1st t02; left leg;; So, the couple were arrested and charged. The 1st accused, at the trial, Martha w/o Chane;a, informed the Court that th~ complainant had once "played sex 11 with her husband, the second accused at the trial. She had met them in the kitchen, doing sexual intercourse. She said, she got so annoyed that she decided to go back to her pare-ntso But, she later came back. I get the impression that this appeal is just another example of such appeals we get from the DPP, where, actually, they are the product of some pressure from complainants. These were petty offences ari.sing out of domestic quarrels in homes, between women. The trial Court, saw these witnesses, and came to the conclusion that the first accused be given conditional discharge, and the second accused be acquitted. That was the discretion of the trial Court that it exercised. Times without number, the appellate Courts have sa.id tha.t they (appella :tc, Courts) will never interfere wj_th trial.Courts' e..ssessment of sentence: unless it is shown, on record, that the sentence was arrived at pervesely. In the case of :Rashid s/o Kaniki v R .fi99"J.l '.l.'.L.R. 258, the Court of Appeal for Tanzania has said (Lubuva J.A.) that: can •~ •. • before a Court of appeal ,/1 interfere with Trial

Courts Sentence, the appeal court must be satisfier! the.t either the sentence imposed was manifestly excessive, or that the trial Court ignored an important matter or circumstance which ought J to have been considered while passing the sentence, or that the sentence (' imposed was wrong in principle" ( 0 ee cmother case -- Wilson FanUel v R {i99iJ TLR 267) The Zambian Court of Appeal, in the case of Jutronich Schutts a,"'ld Lukin v The People (1965) z.. R. 9, has said (Blagden CJ): 11 In dealing with an appeal against sentence, the appellate Court should, I think, ask itself thr~e,;: quest ions: (1) Is the sentence wrong in principle? (2) Is it manifestly excessive so that it induces a sense of shock?. (3) Are there any exceptional circumetances which would render it an injustice if the sentence were not reduced?." (That passage was quoted with a::_)proval by Silungwe CJ in Alubisho v The Peopl_: (1976) z. R9 11 at p 12). In yet another Zambian case, the c,9se of Mtmsaka v. The People (1,77) Z9R. 442, the Supreme Court of Zambia said: 11 the increase of a sentence by an appellate Court is akin to the decrease of sentence(! It went on to say: 11 <Just as an appellate Gou.rt will not decrease a sentence unless it comes with a sense of shock or there has been some error of principle, it will not increase a sentence unless it regards it as totally inadequate in the circumstances of the pa.rticular case, or once again, there has been some error· of princinle : · ,0 ... 4 I, therefore, see no justification for interfering with the . sentence meted out by the trial Court. And, indeed, also see no justification for interfering with the acquittal. of the husband. This appeal by the D.P.P. is dismissed in its entirety. -----, . '\. ( ,:. --11! /----✓ ' / ~ V /,,,- J .• E . ~

JUDGE Mwanza. 2nd July 2003, Appellant: (DPP Mr Bulash S .A.). Respondents (both) presento