Yona s/o Mwapasi vs Republic (PC High Court Criminal Appeal No. 5/99) [2000] TZHC 445 (12 May 2000)

11'! '1 1 HE HI::X:{ COUET OF 'l'ANZANIA Nr HBEYA (PC) HIGH COURT CRH1rnAL Af?1AL NO" 5/99 (From Criminal Appeal fo., 16 of 1999 of Rungwe District Cou:ct at 'l'ukuyu Before: FoN. Matogolo - .uistr-ict Magistrate) YGNA L,/0 i';ihFASI AF?ELLJ;JT Versus 'fiffi REPUBLIC RESf-Ol'!DENT J1JOOMENI' This ;-ii;;,a second appeal. 'ri1e Urban primary court of Tukuyu acquitted the :·!·"' respondent, Anyimikile Mwailubi, of ·using abusive language, contrary to section -· I' 89(1)(a) of the Penal Code. The a1;pellant 1 Yona l'1wap,".si, felt aggrieved, and preferred his first a.ppeal to the district court of Rungwe which was dismissed 0 Hence this second appeal. The respondent was the chai:crtan of Bunyakasege h.s.mleto He was among the many villagers attending the funeral of tne '.];Tandson of the appellant o Visitors had travelled from afar. Alter t::·.e funeraJ -chc. respondent as village leader was called upon to say somcthingo He 1 )ega: by thanking the people who had attended the funeralc Two witnesses callee. by the appellant, .Simon Mwakalasya (PW2) and Anyandwile Kalosi (PW3) said thaL the respondent then told the gathering how the appellant was uncooperative with the vi]J_agers when it came to attending funerals. 'l'his annoyed the a::=:)ella.nt who wan-ted to fight hi1;1. A commotion ensued and the gathering disper,sed even before eating food. The version of the appellant 1 hov1ever, ,1as that after the res.pen.dent had tha..r1-.ked the people f,.,r attending the funeral he went on t,:J say in re.,ierence to the appellant: rzee l1uyu Yona Mwapa.si mpumbavu .s2.21.a, hana. akili hat a kidr">go tena \vazee wangu wa.ik1 ,:...·, zamam. lenyevJe bado linagalag,la linac' 1elewa hap2. duniani wazee wangu walibrisha duniani :~abisa. 'I'ulifikiri tunaweza kuulizia hata. ;n&1eno k,1a mzee huyu hana akili hata kidogoa ooooouoo /2

2 l'he respondent denied to have usec~ arw Obscene or abusive or insulting lgu.age to the o.ppella:nto 'i'he two witnesses called by the appellant to support his stry (PW2 and PW3) testified t11at the respondent did not use any such language to the a.ppellanL Tbey ,saicl they clicl not he2.r the respondent abusing the appellant in a;:1y mc11mero 1 1 heTe was no evidence OJ'.' indication in the evidence for them to turn against the 2.:1peJ.lant o T:1e a~pellar:t himself could n@it suggest any reasons for his witnesses to lie against him. Both courts below, therefore, could not be faalted in their decision that the charge against the respondent ~as not demonstrated beyond reasona9le doubt. For the benefit of the appellant, it takes evidence which is admissible in a court of law t .. convict a person of cri:i18" 'I'he extent of pror-f is beyond reasonable doubt, and, in the circuJnstances 1 the testimon;y of the witnesses called by himself fatally detracted. from his [tllegation that the respondent abused himo I thus find this second appeal devoid of merit a.:."ld hereby dismiss ito .• AT MBEYA, .-.. .. ....--...- ..•. ~ ..... .,.....,.

• :..•, ·>•.· )fMay 2000. For Appellant~ For Eespondent: JUDGsB, Present. Present.