19950829 TZCA Mbeya

') IN TE£ HIGH COURT OF T.•t-TZ,Jiffo -H'l' ...... MBEYA HIGH COURT CRD-;Ut.L .:U:·PE,cL NO ... 81 OJ!' 19:; - 0 FROM THE DLS'l'RI:::·11 COUl!T OF LB£Y.·1 Ci:·:Il-';IlL.a . C,IBE NO. 1 OF 1994 DPP • • • • It, C O I) 0 • • VERSUS . -,,'' ~ --- JUDGEEfil•lT ... MWIPOP0 1 J • Tpe appellant is thE; Director of h.blic Prosr:cuto:r-s as represented by the leqlJ:'ned Mr. )1ulokozi 8ta.te /1.ttorney on bihalf of the Republic and the The Respondent Mrs~ P..,,tur.1n. Zc..k,').ri::c }11:;~·,mbusi :.s the accused who ~as charged with-tried on· and acquittcc~ by.¥1'e i-'ibcy,?. D:i.3t;ict . . Cc1ur-t from two offences of assault occas.i.bning bodiJ.:y \~;:u'm ,..._,/~ 241 of·r. Jo and of ::nlicious damage to to who "'ere PW1 Honicc.1. w/o hbwa.~1'')(> :FlrJ2 p;,_ul s/o I✓ibe;sr0 the ten cell leader,, PW3 Joyce d/o Mvel-·:,. o. neighbou:r girl to both ·c.r1"' com1:ilo.ine::::.t PW1 and the respondent Y.n.mici:pali'ty and P1:J5 D i+31+1 PC. fa.J.ly th,:.: i:c.vesti 0 ::i..tion 1:iolice offiear. For . . }?r• .. ~,::'·1..:· .. . . . ,. . .. ~ ; the defence: two witnem::0s tes:ti::·i.:d :J·.-,-; F11tut!,3. w/o Mw.:::.,:c.u.si the accused and DW2 Siwewe w/o Kibode n neic;Lbour frit:nd of t~.:.:, ,::,ccu.sec~/respondent. The ma.in . . grounds of appeal 0,1~0 svicl8ntal on cTedib1:i.i ty of wi tncsses for the prosecution and the defence. The lecdned r,fr. Viu::..okozi cw.~gued that the testimonies of PW1 ,_ an-:~ PW3 should b;v:; beer. b8l~ ·ved n.nd acted upon rather than tj.1at c,f D\:11 2nd J}:'2. ·J;):ie res:;ionc,u1t on frcj ~,:her >and urged this court t0 uphold the cor:cact trial c51Ji~ts verdict 0::1 tr12 incrcc,ibili ty of the PW5 and on his innocence. The t::cial Magistr,::.tJ th-J 10:rrnec: t'}r. 1'11.-:.uc. C.:) ba.2::d his on tho first count of 8.S,sctul t on PW2 the ten cell loElc1c".:;;.~ a.rn: <'.o witness to tho fight who said he onl;y se_w the two chs1)uterits trustlin_; ea(,:. othGr on the ground and f i "' ... 2 .. that FW1 testimony that she was·attacked first by the respondent stood alone without corroboraticn. Similarly; on the 2nd cou~t of malicious ciarno.:i;;~ t,) property the learned trial magistrate Mr~ Musa (U-'i) hdc~ that sinc.e PW3 1 s. tes·cimony stood alone without corroboration it could not founc: a corr:ict::6.ne '.I.1he trial desire to have corroboration when the testimony v1::;i.s alren. dy of bo.sGd on a single witness misplied his own judgement's cited autl1ority of l~~io\)a s/o Kandose V • R, (1~67) HCD 122_ in which plaintiff judgement held·tha.+.; where the prosecution depends on a single witness his testimony m1..st be absolutely reliable to fac~. I • • • a. conviction on it, If the trial court thougbt both counii··:d~pended on a single prosecution witness PW1 on 1st count and PW3 on 2nd count th~n what was required of him was .not so much to look for corrq.borative evidence • ,." w' '• ( ~ any more but to determine wnether the single witnfsse; were absolitely reliable in their test:i.mony. On the first count wl_w s.ttacked the fll'st blow on the other was of paramount legal c011seq:u,enc.e on an offence of assault .v-:here provocation is no defence for assaulting _tl:e _provocator in rt5! 1~aliation 'iand where once attacked a defence of self-clefen9e with reasouAtllo force is ~)ermissible under .s.18 ··~ A (1) (a) of the Penal Cocb which provides th,1.t 1 I quot,3:- 11Subject "t? the.provisicas of this _coclo every person has a right - · '· (a) to defend himself or a.c~y other person against any unlawful act of assault or violeric·o to the body.:l Bere 1 between lfonica w/o Mbwambo and Fatuma w/o i·iwambusi who initiated the first actual unlawful act of assault or violence i;Jainst the body of the other ? The trial court seE,ms to have found tb.at there was no such 1st attacker for the two were .sudcl.cnly seen tying dow11 in struggle (PW2). The accused hqrself as DW1 testifioe. that I quote:- 11 However, before I comicloted my st?,tement,. Monica Mbwa.1~bo FW1 fell or. me and did tr::a:,• my cloth which I did wear/ He wore then in a quarrel and the ten cell leador seporate the fight be~ 11('"6l1}f:!lped by his .;J.:1 ..,,r children who were outside., o. c. ,. 11 · ~ ') .I 3 The other eye witness present accordin0 to DW1 was DW2 who testified in lilce owrds, I quoter- ·• Monica (PW1) at that juncture formed and when stopped lJy the ten cell leader fell to th-a accusE::d and started beating to each otha.r. M6~ica (P\'/1) did bite the accused at the check and did tear the cloth worn by accused. it Both. DW1 and DW2 seem to suggest th-:i.t the cor:1plainant was the person who attacked the accused first by falling upon the accus'cd. I can 1 t visualize of attack which starts with the aggressor falline; upon 'the victim, and it , envisages the victim to have been in a sitting or. lying position with the aggressor in a standing position. If there was such a fall them most likely it must have been caused by a foul tackle ui)on the fec,t of PW1. Otherwise, it ·• could have been a leap attack by PW1 herself upon the unsuspecting DW1 l '· But 1 why should PW1 leap upon the respondent 1 She had taken all the trouble to have grievances sorted out by ta.lit and conciliation~· ·she had· sought for PW4 1 s help (the Ward Executive officer) who referred her to the husband of the accused first that is Mr. Mwambusi to whom she indeed went to seek conciliation who on his part requasted to PW2 the ten cell leader. She also (PW1) report0d to the ten cell leader P\~2 for the same purpose. Her wish to be brought up for & dialogue \,ith the res:;:JOndent had now matenalized as per hez: wish, why sho-..1ld. she attack tbe accused ·t ~ui te unlikely because by talking her problems and srievances sr.e has Hith the accused to other people she was already verting off her anger c.md sto::.:-'.'l off her chest with such outlets any violent cutbu.rst upon tbc accu.s0d could be 'tlery unlikely in .geJWral corrunon sense a."1.d human n:,ture. Wherea..s all the other eye witnesses i:1cl-:.~c"·.ing ".:hEi respondent herself as DW1 ,. PW? and DW2 testified that the r0s:·onc.c:1t .-:-_ft0r respcnc,ing to all the complained allegacior,.s of PW1 e.dcled ur her ,:.·.-n: ir.ore grave grievances against PW1 that PW1 h::i.d alle._:eC: tl:-i<:\t the rcsi)ondcmt had killed ber own child who had previously died tr.rough witchcr:.:Zt anc~ tL::-.: s?le ato her own child's body and tbat P\111 had con:plaine;d to ~,er :msl,ari-.: ( 1:1}:o is ;Polygamous afterall) i:t:J.staad of com1?lainir.,:; to herself ( bcre:::y t:::-i.:;.:_:o:cing' d:mge1~ously jea.i.ous feelings). The r~sp:::nJent hc:.d to.ke:: ~o -"'~-r-ting 0ff steps as did hGr adversary thereby buildi.n.5 ur- Leavy ro...'1 cour wpicb needed '·· mere peck to burst into a rage as indaed. it c".i~l. ' The respondent, I believe c..s ·::cs·:.i:Zi;_,~: '::y PJ1, attacked first at the comple..irn,mt in l:lo!' , ·"°·:;:, ,-.:o:;..n~-;_s, := .:._uc,t0 :- • f - 4 li,SurprisinGlY, she stated that I ·.-1ill see her on that clay. Hence stood up ;-:me~ stated assa- ulting me •. Accuseu pushed me first and did bite me near the ear, at ·che left m::;rno.::cian 512.nds, the middle finier of my right hn.nd ·cill be nail was out, and the two k..."lCGS of my lo,:;s.= 1 . The accused further, after they wGre sei:-Grate:~. p~cetended to be picking . up a handkerchief and picked up a stool instead an.::l struck it upon PW1 who fortunately punched it off. It appears there was yet anothGr attack uron PW1 by the accused assisted by her children inside the PW1 where PW1 was assaulted further antl her clothes torn. This piece of PW2 1 s testimony was not dealt with at all by the trial -court in its assessment of the first count. The respondent dry denied ever going to PW1 house and tb PW1 's kiosk as ,sur:ported by DW2 both of whom testified that after leaving PW2is house they went to the police and to the police. DW1 is the witness who is friend ..,f tbe respondent was picked up by the respondent herself from her home to accompany although sb,~ was not vivited by PW2 to attenu the _qieetinc. She i,s a partial and blind pa-cisan to whatever the respondent had ta,ld h6r to do just es she stood and followed up the respondent at her mere blind. The testimony 0f PW1 fell within the strons test of absolute reliability of a single witness as to found a convictim on the first count. On tl-'1e 2nd count of malicious damngG to rroperty PW3 though singularly testified could not be rdstaken on the j_cJ.enti ty of the respondent as the person who destroyed t:18 kiosk of PW1 and its propertiGs the respondent had motive ti" clo so for tL:.-:r were no doubt busincsc mails with their shop/kiosk facins each otl1er Rcroc:s a mer2 road. Even th,n, quarrels their different on their different pricinG tllf items for sale were business which the respondent vented --:,ff in a uncalled for ramj_)D.,_;e of destruction. It was day time. PW1 was lockecl up insicla her hou.se from uutsLk ',y the repondent so that she could nC'lt intervene in her malicious dama3e to t:~;e kiusk and the properties. The list prepared by the police &id not cover th~ destruction of the kiosk itself which r.o doubt v1as ripped of with stones etc. 'i'he daylight testimony of PW3 stood unchallenged anC: needed i10 Mrroboration :tor she had no interest of her ovm to serve. DW1 in a way cJ.efended in de:fence !'n a total denial 'lf having gone to the house and kiosk (If PW1 which c0.n 1 i.: be true. Those preperties were indeed destroy2d at day time. It needed t··1e rancour of someone like the accused only a~;ainst :::-:11 to inflict ,such ,savage (;astruction upon such innocent inanimate prop€rties. '.:"::ne :c~es})onc.lent die im:eecl d0stroy the kirsk and the . I properties storc:d thorcin., '1 . , , This <;tl:>peal must win. . The decision of acqui-t;tal :-,f .tl:le accused in both the 1st count. ·c/s 2.41 of PoC. and in -c'~ie 2::-i..: cour.t ~/s 326 ( 1) of the P.C. is quashed. I substitute thereof a conv:.ctio:c c.::: a:;~..1ult causing bodily injury c/s 241 of F.C. and another convictirm of r,,a1icb1;s d~m--.:.6 e to property c/s . 326\1) of P.C. as cri~_rged in tl·.e two countt-; respecti\·ely against Fatuma w/,• Mwa.mbusi. did not continue \-iith the investi....;:•tion of this case which was taken ' over by Insp. Deus· Keto. He used to come to complain to me often that my ~ ·.' ' children went: to beat him. While I was in hosj.,it·J.1 he; ..1.lso ca'!le to disturb me about this Cf.l.See · Bince I had EP my life vJ'-\s thro'.l.ten01i I delivered a baby while I was under the tention of this cases~-Due to high BP the child died soon ·after delivery. ·l'hc investigation officer :'.estroyed. my 1300d defence and he withdrew the joint charge· of Astry which ~as oreneC in court against both of us. Then he opened a charge against me alone .. . Monica_ Mbwambo was selling only minor things like .ic>da and cooking o~l-• My husband went to PW1 to seek conciliation by refunding her the destroyed . . .. : . items. But Monica (P\-J1) failed to show the ~'.estroyed properties •. So, the allegation of destroyed properties was e~~a~e~~t~~ in order to e~vict herself from me. I have lost much business becaus::. this ":':\Be ':1a;3 c9st me much _money._ I also engaged a.I1 advocate whom I pr-,.icl f.omo fe -s., · ~u·:): of ~y Jime was spend in this cape insteac of doin~ businoss~ I have 2 cLilc:r~::-, of my l'.'.te ::=;ister one is and nnothor is 20 yrs. ' I have 4 chil,:t.~en of ;;1y O':m. I a~~ 34 ye:u-s •c..d. To q_9~t,E., I ha.vc mcEt:1s of pay:;,.nG fi21e. : : : i:~.:orn;;J my ·:tdvocate that the properties destrc:rcd Here_ exa_c_:cU'.:'..ted., Or. t ·; ·:i.rt · of :nbney lost the ten cell leader piclced it ui;, ar...} gave it bc..ck to hsr ~ 2.6 thd.~e· w:i.s no need to list it as one of the c1.cstroyc<.;_ or losJ ite:,1f.3o Iv,'·'"'-~ ~-!'efor·if asked to refund the destroyed propertioi;; to 1__:ay back V1eir vo.1-:ic r,1.-1 Fe:.:' th~:n the actual .goods, , . The accused is 3. first offondc:.'s!'le is 3-+ ~rears old ancl a married woman I with 4 children of l:€r mm and 2 other 6hiJ_:lr0n of ber late sister. She has suffered alot as a result nf thi,3 case ch;__, to havine b0~n pre:,;nant at the time of the incid0nt an~ this case c~us~d her BF to Taise to dar..,;erous levels • . 1Ul these ue mi tii;c.ting facto:rs whicb I ta:.ce -into account in sentencing . •. her. On b.c othe::: h.:!:"l,, thE: corr.~)lai..2.nt s·c..ff(,rc' some i_:;:iyical injuries in the finger where he:::- mail 1·1a.s turn c:::·f :ts '.v,;L. M --~.i te ir: cl-J.G arGa of the ' mammary gr;::.,n,.c; 'lnd sv:ol:l.e.~ lrnees. .Sne · -=--·~so s1~ff0:..~ed some destroyed propertieq. - .Lil r f. .... 6 The whole incident was -..infortun:~t,, for i~ .. wa.::· possi:::ilc to reselve it without resoltin:; to violence. ~2bc tCG. cell lG<lC~C' p.;2 ,;as quite·unwise lO . have convened a meet inc of only the qu::-crrelJ.1::.1-6 l-L 1res Monica (PW1 and Fatuma'. DW'll without thBir i:::usbGnJs who were aroun..:.:. :..e 3.: .,o .:111:)wed DW2 Siweve to 0 participate in the rn.:::ctint; without her hust:.'cr , wl: waG ::..r0unc in the neighbouring •· house for o.e assisted. in t~ing the ;,:;.c~usod. to 110-_ -its.l soon whereas on his part he sat in the meetinc; with his mva wife,. Ee sbou:1..:'. have found it appropriate to c,s.11 all the husbands of foe :,;.• pc,: ic.i:_-.,,i_ts (PW1 1 DW1 & DW2) in the reconcilA.ti"n• mectingo Eo 2.c~-=-in W''J.f' not 0 ;ooc;. intervener when the quarrel empted for be• went out leavir]f; the two Lc __ igc.r-cmt wo1i1an inside the house· for he testified that wh0n rn11 struck PW1• with e_ stool he was outside a. house already. So, the silly and novice atti hLle of the ten cell leader il) ,approaching this prrblem preapated the fi,:::;h.t ultimate asault and I . . ..- destru9tion ·of pr11pcrty.· · 1i.ffer the quarrel at .. his .b,ouse he let the acdused· to .go and attack PW1 irt her own .house. It was c. rampa.ge rage of th~ accused ' that doI!)inated thc1.t evenin:; instead nf t.'0.e ten coll loa<iGr dominati,ng th.e disputants. · Al thou:::;h assault occ0sioning ::-,ctue.l harm is punisho.ble by 5 ,y_ea:rs imprisonment without ,;1,n opotion of fine I sc.:nt ::nee the accused to a. fine ,,:f shs.? ,ooo/= er 12 montbs ir.1prisonrne.n.t in clc:Zault of fine on the :first count. On ~J,.0 ,second count t\;,=dn ,tho I'Unisl'::im2nt i;:;, '7 years imprisonment without l'lption of fi::10., But c:ue to i}1c rGitic;3..ti:\.; for your explained above 1; rno::/chs imprisonment in default. PW1 lv[onica hbwambo s:iffere:d somo inj-,Lrfos I or:·1c:r the n.ccused ·to pay comr,es':ltion of sr:od,000/== to honic2. l'(oi-rt'.,,bo :~or tl·,e l0st :r.iail and bites in the accused too suffered a bite i:..i tbc cL..::e1': 2, 1: th8 ha:-,,.::s of the complainant. PW1 whici: left ::i. peroanent faint sc2r ( selm i')Y court ic: count when the 1'.l.ccuscd a.skod the accu,sod to show it bcfon, s:.:::;.·::;c,nce.) This suffering has been talrnn into 2.ccount in r::i.wardins thG coini:cns:::tion of s:bs.3000/= instGad of a high0r comj;;cnso_tion .•f shs._5000 if the a.cc,:s0e1 hadn I t suffered any injuries on her own. I· a.lso accG~'Jt th0 ,1.ccv_s,xi. mitigation that the complatn3.nts lost mor.oy, w% reccvoreJ a.:r: . r- .1.U'n8d to r..er by the ten cell ·. leader because in her evidonco in court PW'i ::3:1i:l was cross excunined by Mr. Karing:;i, tlv.. t ber sl1s.900/= W'.ls recovJL:' m:_, givon back to her by PW2. S•, out of -::he destroyed. properties ':he :2~ -·~c:·: •f c::-1.sh shs.3000/= is not ' a gcminc on,::,, it is struck "ff t.13 list of :kstroyod 1,roperties of PW1 ,. otherwise, I furt:wr order th.,t the c•.ccuscd sh~:;,ll refund the monetary value of the items i:;.1 exh,.P2 vihi,::1-: s::i.::,.41 ,500 - 3000/= = 38,500/= compensation to • 7 ... and then other com1Jensation o·f sts.3000/=- ordE,rcd .:)ove tho properties of the accused shall be n.ttached in distress. ii.nd the o.c ~usod l::.1s no property in distress sho shall suffer imprisonmont for 3 montt· • JUD1::E ~9/8 195 Right of app.eal explained. E.L.K. MWIPOPO JUDG~ 29/8/95 I certify that this is a true and correct oc,:y of the original ' Judgement. ,I