19990315 TZHC Mtwara

IN THE HIGH COURT OF T.A.i'JiiANIA AT MTHARA APPELLATE JURISDICTION CRIMINAL APPEAL NO. 51 OF 1997 ORIGINAL CRIHINAL CASE NO. 4o OF 19S'f OF THE DISTRICT COURT OF LIWALE AT LIWALE BEFORE: A.A. RUTECHURA, ESQ .. , D. !V'.AGISTRATE SAIDI LIKOGOYA ••••••••••• APPELLAJ."\i'T versus: THE RZPUBLIC ••••••••••••• RESPONDE!ilT JUDGMENT KA.JI, J. namely:- ---- The appellant SAIDI LIKOGOYA was jointly 11harged with two counts, ----- 1st Count: Wilfully obstructing a Police Offio3r in the due execution of his duty e/s 243(b) of the Penal Code Cap 16. 2nd Count: Using abusive language c/s 89( 1) (a) of the Penal c6de Cap 16. He aenied both countsi At the end of tlie trial he was o::mvicted bn the 1st count and was acquitted on the 2nd count~ He was Sentenced to 12 mohths imprisonment on the 1st Count.. He' was aggrieved. Hence this appeal. It is in the record that around August, 1997 there was an eutbreak . of cholera in some areas of Liwale District including Nangando Village. D-a.e to that outbreal{, preparation and drinking of pombe (local brew) · was prohibited. On 2.8 .. 97 while PW1 FRAJ.W-: MILANZI and ~ PW2 MOHAMED KILUBUNIKE -..,,_.._ --=w:-- both militiamen were on duty rounding up those who were preparing or drinking pombe at Nangando village, they came across a house of a woman called Sophia Ngambe where they found some people drinking a local liquor called Chibuku. They arrested them. But suddenly the appellant whn was also present-drinking, pr8hibited them to arrest the pombe O1:mer and anybody around and threatened to stab · them with a knife. He abused them saying 11Kumamayo zenu. Mmetumwa mshike wachafuzi wa maji tuo 11 During that obstruction, the pombe owner and the drunkards who were there grabbed the pombe and the hrowing utensils and ran away with them and disappearedo The appellant was arrested and charged as abovea •oe/2o•• 2 In his defence he gave a total denia1. • • I . The trial Court was satisfied with the prosecution evidence. It ~~nvicted him and sentenceq_him as aboveo He was aggrieved. Hence this appeal. In his grounds of appeal he still maintained ·his--tot-al __~enial. -....... _ .. --. The learned State Attorney Mr. Mtinangi who represented the Republic at the hearing of this appeal remarked th~t there was ample evidence to show that the appellant really obstructed P\v1 and PW2 in the due execution of their duty. However he said that since PW1 and PW2 were militiamen and not Police Officers the proper provision of the law should have beens. 243(a) of the Penal Code Cap 16. He called upon this Court to use its revisionary powers to substitute the relevant provision of the law. Indeed the appellant 1 s denial had no merits at all and was properly rejected by the trial Court. There was ample evidence by PW1 and PW2 that he obstructed them while they were in due execution of their duties. The only question is whether PW1 and PW2 who were militiamen were npolice officers. 11 The learned State Attorney said they were not, but he could not cite any authority ,-,hether a provision of the law or a case law. It is very probable that the learned State Attorney jwnped on the definition provision in the Penal Code Cap 16 and found that wo:cd missing. He was disappointed. He decided to rest. But I think the Crimi.nal Procedure Act, 1985 which governs the conduct of criminal cases in Subordinate Courts and in this Court could be of some help on·thiso s. 2 df the Crimin.al Procedure Act, 1985 defines the words : iWPolice Officer.i as follows:- 0Police Officer includes any meinber of the Police Force and, includes any member of the People's Militia when exercising police functions in accorddance with the law for the time being in force.ii Of course this definition applies where that word is mentioned in the Criminal Procedure Act, 1985. But I think, that definition is the most reasonable one on the facts of the case at hand and in the absence of the definition of that word in the Penal Code. I am not a.ware whether the Police Force Ordinance defines the word Police Officer to include People's Militiamen. But even if it does not do so I am satisfied that when a militiaman is performing the duties of a policem?..n in accordance with the law, he is deemed to be a police officer. 3 For that"re~on ~. . ·-- the appellant was properly convicted c/s 243(b) of the Penal Code Cap 16e The sentence of 12 months imprisoruneirf •is not. excessive in view of what the appellant did. His complaint agains_t sentence has· therefore no merits. It is upon the above reasons that I dismiss this appeal in its entirety. f ./i ' ✓ • •._ .... ; s. N. YJwI JUDGE Court: Judgment has been del,iver~d :i.n the presence of Mr. Mti.nan.gi learned State Attorney for the Republic and in the absence of the appellant who does not wish to be present this 15th day of March, 1999. ; So N. KA.JI JUDGE 1503.99.