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Judgment

IN THE HIGH COURT OF TANZANIA AT MWANZA .APPELLATE JURISDICTION //jc

HIGH COURT CRIMINAL APPEAL NO. 292 OF 1977 ORIGINAL CRIMINAL CASE NO •. 4°7 OF ·1977. . . . . -. . . . . SAMWEL NYAMBEHOo 0. · J ~ O • O O o O O ~ 0 0 0 0 O o O o O O O O 0 0 °o O O o e o o O • -.;-j.'·o O ·o O.;, 0 .. APPELLANT (Original· Accused) versus ' . .THE REPUBLIC a o O O O O O O O O o·. O O O O O O O O O O O o O. O o O o O O 6 0°0 0 0 0 o·o'o O O O O O O .R:£;:~~PONDENT · (Origih~~j ,.Prosecutor) '"'.HARGE: GRI-EVOUS HARM c/s 225( 1) of the Penal Codeo :· f'lFALII,,A, Jo .-OoO- JUDGMENT The appellant _was charged with causing grievous harm contrary to .section 22S of the Penal Code, he was convicted as charged and sentenced to.one and a·half years imprisonment subject to confirmation., The prosecution witnesses gave ·conflicting evidence. The·complainant PAULO KISAKA (PoWo1) told the t,rial Court that he was assaulted by the a·1pellant as he. tried to prveht hi111 fi'om taking ·away mutton to Whish he was nqt entitled 0 He said.that on 30/9/76 the villagers ~~f Robanda vil- lage slaughtered 20 she~~p wM.ch they had contributeci ;in order t_o raise funds for· a water project in their ·village., Then. as the carcase_s were being prepared, the appellant.arrived arid;helped,himself to about four :ilos of mutton and left without paying for themo The complain.ant tried to stop ,him but the appellant resisted in·· the course ·of which he a·ssaul ted . the complainant with .. a stick and fists o The blows i.:,,hich 1 anded on the eye ·damaged the cornea, in fact according to tl:le available evidence the eye was perforatedo Thereupon the appellant ran away with the meat. This version of th_e .~~ncident wal:l supported by the evid_ence of one_ other witness namely BRARUWC:~~/o SIPEMBA .P.o_.W.,2. Thus according '.to the 0 com1:,lainant and this witness· the· appellant assaulted the complainant as_ .he was being prevented .from .t,aking meat. unlawfullyo . . . ,· .. •. -. . . ··The:• appellant 'gave his version of ev6nts. According to him the fracas between him and the complainant s_tarted when the latter tried to take away from him meat which had been lawfully g:i,ven to him as p_aymlnt i;n kind for assisting in the skinning of ~he sheep ~~hich had been' slaughter~~d. He said that he resisted this attempt nd the complainant gave chase. In the course of the chase the··-complainant f·ell down and sustained. the injuries a In the circumstances, he said he was surprised when a Ward IT\l:!Sscng'=r_called and arrested him in connection with . this off.enc_e··o This version;: a-6 le.ast the motive aspect of. it was given iupport. by, two· of the prosecutio_n_-witnesseso .SI CHE GA MATALA (Po W o 3) told .. th·e . trial_ Court that the appellan·{ was one of the people who had been _skinni.g the slaug0_tered sheep and that these people were given portions of meat for their- °labouro However when the appellant left for his home with his meat, the complainant stopped him and .tried to prevent him taking the meato As a r(;SUl t a scuffle e_nsuod, a·ftcr a while 0 .. /2

2 - the appellant ran pursued by the complainanto The complainant later returned having failed to catch the appellanto When the complainant returned, he did not know that· he h.?lc;I been. hurt-Lbut on the following day he saw him going to hospitai":for-treatmento. The same version was given by SAMAI s/o KISIRI (PaWa4) o .Both. these witnesses __ Wf at the sceneo Faced with these two versions, the trial Court had. two basic questions to answer a The first question is whether the complainant was :ass·a.ilted and injured as allegeda The second whether if so the assault was unlawful. If both these questions ar_~ answered in the affirmative, the ·appellant fs conviction is a forgone result';,
R-· • • 0• .:."::-• . J , .•• l I , .. . ., . ..,, ... · _ ....... . • ... .__,.,, •- .. , .•.• - ......... ,..,._" · ':-: 0 : The appellant denied assaulting the complainant as allcg.:?d saying that he sus.1:ained th.e', 'injuries 'when ·he fell down as he chased himo .. Two. prosecu.;. tion witnesses stated that they did not see the appellant assault the com- plainant before he took to his heels, in fact according to them they did not even kn.ow that the complainant had be.en- injuredo But on the evidence regard- : :i,,ng. :j:he '. nature of the injury suffered, I do not think this is correct. Unless -~~he domplain~~nt had fallen on°his eye on·an object, I cannot see how a fall could have perforated an eyeo In the circumstances I am satisfied that the complainant was assaulted b, the appellant and that in the course of this assault, he suffered the injuries compil3.inea of•:, The n<fxt qu_o_;..._ tion is whether this assault was unlawful as required by the relevant sec- tion of the Penal Codea Section 225 'prohibits the infliction of grievous harm unlawfully, this means that if the assault which results in grievous harm is itself lawful, the accused.-.is .ent.itled to be acquithd, and this unfortunately is the aspect of the case which was not considered by the trial Magistrateo According to the complainant arid Pov·.'o2 the appell,~~nt· ' assaulted him when he tried to stop him from taking meat to which he was not enti'pedo: ' If this is so.~~ th~ action of the complainc11yt· il"1 apprehending the appeilant was lawful becau·ie' ·a:s· a private-. p~~rson he ... i-s~~:authorised to apprehend anybody committing ·a felonyo In this'' case the'-. appellant was. committing the felony of stealingo In these circumstances, the subsequent . .. assault on the complainarit by the appellant would be unlawful. But· accord- .. ~ -ing to the appellant and bi.re prosecution witnesses, the co'inplainant had.· ''tried to seit~ the meat. from him and prevent 'him from taking· 1t to his'· home, the meat which 'had. been' given to him by the t:Jiairm&,1 'as a.· reward for having assisted in skinning the·village sheepo If this is ·so·then•it . seems to me the actions ~~f-'the complainant· against the appellant were unl_awful in that he was without 'cause :tr'ying to interfere with the appel:.. lant' s. proprieto~~y-1riterests ih the m"eato -T6 :make the snbsequent assault' him unlawful, the complainant 1 'S-:.i3,C tior'rs'T 'tntis't; have been lawful• As · Biron J~ remarked i'n a· case concerning the a·ssault on a polite officer at page 109, JUMA Vo ,RtPUBLIC 1964 E~Ao 107 :' 11 Ur.,.less his '(ioeio\· police offic::-er) conduct was lawful, such det:ritfon and· sea,rch would con- · stitute wrongful ccihfineinent and an assault, which the appellant would be ehtitled tifresist even to the extent of using violenceo 11 . :. . .. : . In the p_resent c·ase it' was of· course a question bf° fact whether the com- p_lainant· was assau:l tecf ln the circu:mstance\s· ·narrated by him, making the a·sso.ul t on him unlawful,. or·'in the· circumstances narrat;ed by the appel- lant and supported by two pb:::lsecutidn witnesses, making:. the assault law- ful, and the· trial Ma'gistrat'e who saw the witnesses was in a better posi- tion to determine _this o _But with respett he went abut his task wron<;tly .. Having decided ,as .:r :have ·aone that the complainant was ·a:c:tually. assaulted, by the appella·nt_,. · he "proceeded to assuine that this a.ssau1 t wns':unlawfui'. without consider·ing the appellant's proprietary interests over· thti meato -~I do· not know on what basis the Magistrate called the two i).t'osecution wi'tnes'ses liars when what they sc1id did not in fact c:bnf1ic.t'i with his find- ing ti·wt- the app.ellant assaulted the complainant. ' All -·they sb.id:: wcis · tha't · they· did no,t see the appellant assaulting the complainanto 'Tliis i's hot· the o o/3 •
3 same thing as saying the appellant did not assault the complainanto The Magistrate completely ignored the other aspect of their evidence namely the appellant's claim of right to the meato I am not sure whe~ ther the Magistrate would have reached the same conclusion if he had addressed his mind to this aspect of the caseo For my part I am satis- fied on the evidence that the appellant was lawfully entitled to the meat which the complainant tried to dispossess himo For doing whut he did the complainant conducted himself unlawful)y which conduct the appellant was entitled to resist with all the power at his disposal. In fact Section 18 of the Penal Code allows him to do soo For these reasons the appellant's assault on the complainant was not unlawful consequently he cannot be said to have unlawfully caused grievous harm to the com- plainanto Accordingly this appeal succeedso The conviction is quashed and the sentence set asideo The appellant should be released from prison forthwith unless he is otherwise lawfully detainedo Delivered in Court at Mwanza this 30TH day of DECEMBER, 19770 MWANZAo 30TH DECEMBER, 1977.

Judgment

IN THE HIGH COURT OF TANZANIA AT MWANZA .APPELLATE JURISDICTION //jc

2 - the appellant ran pursued by the complainanto The complainant later returned having failed to catch the appellanto When the complainant returned, he did not know that· he h.?lc;I been. hurt-Lbut on the following day he saw him going to hospitai":for-treatmento. The same version was given by SAMAI s/o KISIRI (PaWa4) o .Both. these witnesses __ Wf at the sceneo Faced with these two versions, the trial Court had. two basic questions to answer a The first question is whether the complainant was :ass·a.ilted and injured as allegeda The second whether if so the assault was unlawful. If both these questions ar_~ answered in the affirmative, the ·appellant fs conviction is a forgone result';,
R-· • • 0• .:."::-• . J , .•• l I , .. . ., . ..,, ... · _ ....... . • ... .__,.,, •- .. , .•.• - ......... ,..,._" · ':-: 0 : The appellant denied assaulting the complainant as allcg.:?d saying that he sus.1:ained th.e', 'injuries 'when ·he fell down as he chased himo .. Two. prosecu.;. tion witnesses stated that they did not see the appellant assault the com- plainant before he took to his heels, in fact according to them they did not even kn.ow that the complainant had be.en- injuredo But on the evidence regard- : :i,,ng. :j:he '. nature of the injury suffered, I do not think this is correct. Unless -~~he domplain~~nt had fallen on°his eye on·an object, I cannot see how a fall could have perforated an eyeo In the circumstances I am satisfied that the complainant was assaulted b, the appellant and that in the course of this assault, he suffered the injuries compil3.inea of•:, The n<fxt qu_o_;..._ tion is whether this assault was unlawful as required by the relevant sec- tion of the Penal Codea Section 225 'prohibits the infliction of grievous harm unlawfully, this means that if the assault which results in grievous harm is itself lawful, the accused.-.is .ent.itled to be acquithd, and this unfortunately is the aspect of the case which was not considered by the trial Magistrateo According to the complainant arid Pov·.'o2 the appell,~~nt· ' assaulted him when he tried to stop him from taking meat to which he was not enti'pedo: ' If this is so.~~ th~ action of the complainc11yt· il"1 apprehending the appeilant was lawful becau·ie' ·a:s· a private-. p~~rson he ... i-s~~:authorised to apprehend anybody committing ·a felonyo In this'' case the'-. appellant was. committing the felony of stealingo In these circumstances, the subsequent . .. assault on the complainarit by the appellant would be unlawful. But· accord- .. ~ -ing to the appellant and bi.re prosecution witnesses, the co'inplainant had.· ''tried to seit~ the meat. from him and prevent 'him from taking· 1t to his'· home, the meat which 'had. been' given to him by the t:Jiairm&,1 'as a.· reward for having assisted in skinning the·village sheepo If this is ·so·then•it . seems to me the actions ~~f-'the complainant· against the appellant were unl_awful in that he was without 'cause :tr'ying to interfere with the appel:.. lant' s. proprieto~~y-1riterests ih the m"eato -T6 :make the snbsequent assault' him unlawful, the complainant 1 'S-:.i3,C tior'rs'T 'tntis't; have been lawful• As · Biron J~ remarked i'n a· case concerning the a·ssault on a polite officer at page 109, JUMA Vo ,RtPUBLIC 1964 E~Ao 107 :' 11 Ur.,.less his '(ioeio\· police offic::-er) conduct was lawful, such det:ritfon and· sea,rch would con- · stitute wrongful ccihfineinent and an assault, which the appellant would be ehtitled tifresist even to the extent of using violenceo 11 . :. . .. : . In the p_resent c·ase it' was of· course a question bf° fact whether the com- p_lainant· was assau:l tecf ln the circu:mstance\s· ·narrated by him, making the a·sso.ul t on him unlawful,. or·'in the· circumstances narrat;ed by the appel- lant and supported by two pb:::lsecutidn witnesses, making:. the assault law- ful, and the· trial Ma'gistrat'e who saw the witnesses was in a better posi- tion to determine _this o _But with respett he went abut his task wron<;tly .. Having decided ,as .:r :have ·aone that the complainant was ·a:c:tually. assaulted, by the appella·nt_,. · he "proceeded to assuine that this a.ssau1 t wns':unlawfui'. without consider·ing the appellant's proprietary interests over· thti meato -~I do· not know on what basis the Magistrate called the two i).t'osecution wi'tnes'ses liars when what they sc1id did not in fact c:bnf1ic.t'i with his find- ing ti·wt- the app.ellant assaulted the complainant. ' All -·they sb.id:: wcis · tha't · they· did no,t see the appellant assaulting the complainanto 'Tliis i's hot· the o o/3 •
3 same thing as saying the appellant did not assault the complainanto The Magistrate completely ignored the other aspect of their evidence namely the appellant's claim of right to the meato I am not sure whe~ ther the Magistrate would have reached the same conclusion if he had addressed his mind to this aspect of the caseo For my part I am satis- fied on the evidence that the appellant was lawfully entitled to the meat which the complainant tried to dispossess himo For doing whut he did the complainant conducted himself unlawful)y which conduct the appellant was entitled to resist with all the power at his disposal. In fact Section 18 of the Penal Code allows him to do soo For these reasons the appellant's assault on the complainant was not unlawful consequently he cannot be said to have unlawfully caused grievous harm to the com- plainanto Accordingly this appeal succeedso The conviction is quashed and the sentence set asideo The appellant should be released from prison forthwith unless he is otherwise lawfully detainedo Delivered in Court at Mwanza this 30TH day of DECEMBER, 19770 MWANZAo 30TH DECEMBER, 1977.

Samwel Nyambeho vs Republic (High Court Criminal Appeal No. 292 of 1977) [1977] TZHC 292 (30 December 1977)

Judgment

IN THE HIGH COURT OF TANZANIA AT MWANZA .APPELLATE JURISDICTION //jc

Discussion

Samwel Nyambeho vs Republic (High Court Criminal Appeal No. 292 of 1977) [1977] TZHC 292 (30 December 1977)

Judgment

IN THE HIGH COURT OF TANZANIA AT MWANZA .APPELLATE JURISDICTION //jc

Discussion