ZALINA MAULIDI SHABANI VERSUS ZAUDA SWALEHE MSAMI

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA PC CRIMINAL APPEAL NO 10023 OF 2024 (Originating from Chamwino Urban Primary Court in Criminal Case No. 92 of 2023, and arising from the District Court of Dodoma at Dodoma in Criminal Appeal No 5 of 2023) BETWEEN ZALINA MAULID SHABANI……………………………………………....…..APPELLANT VERSUS ZAUDA SWALEHE MSAMI……………………………….…………………RESPONDENT JUDGMENT Date of the last Order: 04/09/ 2024 Date of the Judgment: 03/ 10/ 2024 LONGOPA, J.: This is an appeal arising from the decision of the Chamwino Urban Primary Court where the respondent herein stood charged for offence of threatening to kill by words contrary to section 89(2) (a) of the Penal Code, Cap 16 R.E. 2022. The respondent was found guilty and sentenced to one- year conditional discharge and a fine of TZS 500,000/=. The respondent challenged the conviction and sentence. The District Court for Dodoma 1|Page upheld the appeal by quashing the judgment and set aside the sentence for the same being violative of the law. The appellant was not satisfied with decision of the District Court for Dodoma to set aside both the conviction and sentence of the respondent thus on 23rd May 2023 preferred this appeal where she prayed for nullification of proceedings and set- aside of Judgment of District Court at Dodoma hence allow the appeal. The appellant appealed against whole decision of the appeal on the following grounds namely: 1. That, the First Appellate Court erred in law and facts to quash the conviction for the Appellant on ground that the trial court did not give sufficient reasons for its decision while knowing that the trial Court give the reasons for the decision. 2. That, the First Appellate Court erred in law and fact by deciding in favour of the Respondent without considering the fact that the Appellant adduced reliable and strong evidence against the Respondent. 2|Page 3. That, the whole proceedings marred by procedural irregularities which led to un-wanted judgment and order of the court which also not proper. On 4th September 2024, the parties agreed that this appeal be disposed by way of written submission. The parties complied with scheduling orders of the submission. I commend the learned advocates for the parties for their industrious submissions. The appellant argued that the respondent was convicted under section 89(2) (a) of the Penal Code, for threatening to kill the appellant and at pages 4-5 of the trial court proceedings and at page 2 of the Judgement the respondent states the words that’ ’Nitakukomesha nakupa siku saba nitakuua.’’ It is argued that these words were sufficient to establish the offence as per rule 10(1) of The Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulation stated that…all evidence must be direct that is to say if refer to a matter which could be seen it must be the evidence of a witness who say he saw it’’. 3|Page It was reiterated that court gave sufficient reasons for its decisions as through SM2 as a witness it was revealed that the respondent stated those words and the reason for the decision is through the threatening of the words adduced by the respondent as proved that on page 2 of the judgement and that of pages 4 -5 of the trial court proceedings. So, the reasons were sufficient to convict the respondent on the offence committed. Regarding the evidence, it was argued that it is clear that the appellant adduced the strong evidence and his witness in which SM1 who is appellant at page 4 of the trial proceedings the Respondent on 11/02/2023 and 12/02/2023 the Respondent followed her two times and threatening to kill her by words that ’’Nitakukomesha nakupa siku saba nitakuua’ and through SM2 who is key witness who was present on those days on 11th and 12th February,2023 in which the Respondent committed the said offence of threatening to kill the Appellant as per rule 5(1) of The Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulation in which it state that in criminal cases the court must be satisfied beyond reasonable doubt that the accused committed the offence. On that the 4|Page Appellant proved the case beyond reasonable doubt which lead the conviction of the Respondent. It was argued further that the principle in the case of Ali Ahmed Salehe Amgara versus R (1959) EA 654, the Court stated that the prosecution has primary duty of proving that the accused has committed the actus reus elements of the offence charged with the means rea required for that an offence to be proved beyond reasonable doubts. It was reiterated that the appellant herein managed to prove that the offence was committed by the respondent by acts of respondent on 11/02/2023 and 12/02/2023 the Respondent followed her two times to threatening the Appellant something which was proved not even the Appellant herself but also the SM2. It was reiterated that the appellant proved the case beyond reasonable doubt and conviction, made against the respondent by trial court was right and the judgement pronounced by first appellate court was irrational judgement. Thus, it was the appellant’s prayer for nullification of 5|Page proceedings and set-aside judgment of the Dodoma District Court at Dodoma and uphold the decision of trial court hence allow this appeal. On the other hand, the respondent vehemently opposed this appeal. The respondent argued that the offence of threatening to kill by words was not proved beyond reasonable doubt as per the legal requirement under Rule 5(1) of the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations GN No. 22 of 1964 that provides that “in criminal cases, the court must be satisfied beyond reasonable doubt that the accused committed the offence.” It was reiterated that allegations that the respondent uttered words that “Nitakukomesha nakupa siku saba nitakuua.” The appellant was supposed to prove them beyond reasonable doubts in order to prove the case but she failed. The respondent cited the principle in the case of Jonas Nkize versus Republic [1992] TLR 213 as illustrative that the court held that the court must satisfy itself that evidence produced proves the facts beyond reasonable doubt to make a person guilty criminal offence. 6|Page It was argued that there were contradictions regarding the evidence as the appellant’s first witness stated that respondent on 12/02/ 2023 went to appellant’s room once while the second witness stated that he had gone there twice on that fateful day. Also, one of the witnesses stated that words were uttered by respondent while going out of the room while the other one stated the same were uttered while the respondent was inside the appellant’s room. The respondent cited the principles in Hassan Juma Kanenyera and others versus Republic [1992] TLR 100 and Christian S/O Kale and Rwekaza s/o Benard versus Republic [1992] TLR 302 are that the doubts in criminal cases must interpreted in favour of the accused person. It was stated further that it is a settled principle of law that a conviction must be based on well founded legal and factual analysis and the reasons must be clearly articulated. The principle in the case of Republic versus Salum Mohamed [1978] TLR 31 where the Court emphasized that reasoning is one of the 7|Page crucial aspects of judgment and that failure to provide such reasons undermine the fairness of the trial and can result in overturned conviction on appeal. It was humbly submitted that on strengths of the respondent’s case this appeal deserves to be dismissed for want of merits. Having considered the written submissions of the parties to the case, it is pertinent for this Court to establish whether the appeal has merits or otherwise. The relevant provision of the Penal Code, Cap 16 R.E. 2022 that establishes the offence is section 89(2) (a) that proscribes any person from threatening to injure, assault, shoot at or kill any person or to burn, destroy or damage any property shall be liable of the offence. It provides that: 89(2) Any person who- (a) with intent to intimidate or annoy any person, threatens to injure, assault, shoot at or kill any person or to burn, destroy or damage any property, is guilty of an offence and is liable to imprisonment for one year and if the offence is committed at night the offender is liable to 8|Page imprisonment for two years. The ingredients of the offence are mainly two. First, the actus reus is threatening to injure, assault, shoot at or kill a person. The second, is the mens rea intent to intimate or annoy any person. These were the most significant elements to be established. Two aspects are important to dispose the matter. The first one is on burden and standard of proof of the case against the respondent. The second aspect relates to the failure to consider the defence evidence in the judgment. In respect of proof, it is always the duty of the prosecution to prove the case against the accused person and the standard is that of proof beyond reasonable doubt. It was on record that evidence of the parties was summed up in the decision of the Urban Primary Court of Chamwino. SM 1/PW 1 stated that the respondent stated that “Nitakukomesha maana nakuonaona…nakupa siku saba nitakuua” as the words allegedly stated to have been stated by the respondent. On the other hand, SM 2/PW 2 stated that “kuna mambo 9|Page unayoyafanya mengine naambiwa mengine siyaoni, Nitakukomesha…and the second time respondent stated that: “nakupa siku saba nitakuua.” The evidence of PW 1 and PW 2 differ on two main aspects: First, it was the evidence of PW 1(SM 1) that the respondent went to appellant’s room once on that fateful date. This contradicts with the evidence of PW 2(SM2) that indicated that the respondent went there twice and spoke different words each time. Second aspect relates words alleged to have been stated by the respondent. They are not the same in terms of meaning and contents. They connote two different meaning. They are contradictory in nature. In the case of Bathromeo Vicent vs Director of Public Prosecutions (Criminal Appeal No. 521 of 2019) [2024] TZCA 186 (18 March 2024) (TANZLII) at page 11, the Court of Appeal noted that: We have considered the obvious contradictions in the evidence on the date when it is alleged the appellant committed the offence, and find the same to be fatal because they raise serious doubts on the prosecution 10 | P a g e evidence as stated earlier. In fine, we thus agree with the learned State Attorney that, essentially the contradictions and inconsistencies in the prosecution evidence lead to a conclusion that although the prosecution managed to show that there was penetration, it failed to prove that it is the appellant who committed the charged offence against the victim. The weaknesses of the prosecution’s case in terms of contradictions entail that the case was not proved beyond reasonable doubts. In the case of Matibya N g'habi vs Republic (Criminal Appeal No. 651 of 2021) [2024] TZCA 34 (14 February 2024) (TANZLII), at page 8, the Court stated that: At the outset, it is instructive to state that, this being a criminal case, the burden lies on the prosecution to establish the guilt of appellant beyond reasonable doubt. In Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable 11 | P a g e doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. For instance, in the case of Magendo Paul & Another v. Republic [1993] T.L.R. 219 the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. " I am not convinced that in the circumstances of the weak prosecution evidence stated above one can lucidly and with certainty state the there was proof of the ingredients of the offence. In fact, the appellant had not indicated that she was annoyed or intimidated. That element of mens rea was conspicuously missing in the evidence and analysis of the trial court. At this juncture, the aspect of the appellant’s evidence being strong and reliable has no merits at all. Such evidence on record was contradictory and did not establish the ingredients of the offence thus the 2nd ground of appeal has no merits. 12 | P a g e Failure to consider defence is another aspect which made the decision of the Chamwino Urban Primary Court had deficits. The evidence of the respondent was to the effect that appellant did state that “wewe tutakukomesha wala sio kwenu hapa”. It was the evidence of the respondent that on next day the appellant poured water on the clothing of the respondent. Indeed, it was the appellant who was attacking the respondent by words regularly. This evidence ought to have raised the trial court’s eyebrow on the veracity of the appellant’s evidence. Such piece of evidence if well considered would have impaired the evidence of the appellant. Thus, the applicability of the principle in the case of Stephen John Rutakikirwa vs Republic (Criminal Appeal 78 of 2008) [2011] TZCA 154 (15 November 2011) (TANZLII), at pages 6-7, where the Court of Appeal stated that: Of course, it is the duty of a trial court to consider both the prosecution and the defence case before reaching a conclusion (See HUSSEIN IDD AND ANOTHER v R (1986) TLR 166. In so doing, it is not enough to say that 13 | P a g e the defence of the accused has not in any way shaken the evidence of the prosecution. It also deserves an analysis. (See NDEGE MARANGWE v R Criminal Appeal No 156/1964 EACA (unreported) Evidence should always be looked at as a whole, and it is wrong to first accept the prosecution case, and then turn to see if the defence casts any doubt on the prosecution case. (See MALANDO BADI AND 3 OTHERS v R Criminal Appeal to 64 of 1993 (unreported). The consequences from any of the above misdirections are fatal to a conviction. Also, in the case of Leonard Mwanashoka vs Republic (Criminal Appeal 226 of 2014) [2015] TZCA 294 (24 February 2015), the Court of Appeal noted that: We have read carefully the judgment of the trial court and we are satisfied that the appellant's complaint was and still is well taken. The appellant's defence was not considered at all by the trial court in the evaluation of the evidence which we take to be the most crucial stage in judgment 14 | P a g e writing. Failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriages of justice. It is unfortunate that the first appellate judge fell into the same error and did not re-evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case too. It is universally established jurisprudence that failure to consider the defence is fatal and usually vitiates the conviction. In the instant appeal in this court reveals that the trial court had not included analysis even a single line of the defence evidence. Indeed, the trial Court failed miserably to analyse the defence evidence. This was the analysis of the first appellate court as reflected on pages 4 to 5 of the Judgment where it was lucidly demonstrated effect of failure to analyse and consider the defence evidence. This was the proper analysis of the first appellate court on the failure of trial court to consider evidence of defence. 15 | P a g e Given the circumstances that nothing was stated in respect of failure of the trial court to state reasons for not analysing the defence evidence, it cannot be said that such decision with conspicuous absence of analysis of defence evidence contained reasons for decision. As such, the first ground of appeal is dismissed for being devoid as it is true that there were no sufficient reasons for the decision. I have seriously perused the record of the first appellate court and the judgment thereto to ascertain existence of procedural irregularities but found none. The proceedings spanning from 20th February 2023 to 27th April 2023 reveals that the appeal was determined upon fully affording the parties the right to be heard as envisaged under Article 13(6) (a) of the Constitution of the United Republic of Tanzania, Cap 2. R.E. 2002. There is nothing irregular in nature on the part of first appellate court. It re-evaluated the evidence on record to reach to its independent decision. The principle with regard to role of the first appellate court in determination of an appeal was lucidly stated in Emmanuel Aloyce Daffa 16 | P a g e vs Republic (Criminal Appeal No. 131 of 2021) [2021] TZCA 232 (7 June 2021) (TANZLII), at pages 10-11, the Court of Appeal reiterated that: First and foremost, we find it necessary to state at this juncture that we are sitting as a first appellate court. It is long settled that the first appellate court as it were, has the power and duty to reconsider and re- evaluate the evidence on record and come to its own conclusions except on credibility of witnesses which is in the exclusive domain of the trial court which had the benefit of seeing witnesses testify before it. Indeed, that is what the District Court of Dodoma did in Criminal Appeal No. 5 of 2023. The Court having heard both parties to the case, it re-evaluated the whole of the evidence in the trial court and came up to its own independent conclusion that the case was not proved to the required standard. This was a proper approach by the first trial court in addressing an appeal before it. There was nothing wrong in law by the approach taken by 17 | P a g e the first appellate Court thus the question of irregularity is far fetched and has no merits at all. I shall proceed to overrule the third ground of appeal for being destitute of merits. Having analysed all the grounds of appeal and found that the same are destitute of merits, the appeal suffers irreparably for being devoid of any iota of truth. The decision of the District Court of Dodoma in Criminal Appeal No 5 of 2023 was a correct exposition of the law thus it is upheld. That said and done, the appeal therefore stands dismissed for want of merits. It is devoid of any iota of merits. It is so ordered. DATED at DODOMA this 2nd day of October 2024. E.E. LONGOPA JUDGE 2/10/2024. 18 | P a g e