Director of Public Prosecutions vs Tatu Ased and 2 Others (Criminal Appeal No 126 of 1997) [1999] TZHC 421 (29 November 1999)

t ! \ \ (_ ni'_ THE HIGH COTJRT c:rt TANZ1\NIA AT MBEYE ·: CRIMINAL 0 APPK1L NO o 126 0~ 1997 (F:rom Oriin3..l ·c'fiminal Case No. 127 of 199:5 of Kyel:1 Dit 0 trict Court ctt Kyela) THE DIR1'.XJTOR OF PtJ'BLIC PRQ.SF.CTJTIONS a ••O O o O APP ELL,1 NT 1 o TJ}TU ;\SED ) Versus 2 .. -. JUMA .SAID. 3-.,. MGENI s/,ID ) O O 0 • O o O O, ~ ·• o .0 ~ • a O O O O O -, ·e, 0 ~ -• 0 ·') ' RF.sPONDENTS JUDGEMENT !jWIPOPO, J. : Th<. _ c0mplC1.in:mt MP,\LAJU:NGWi" .S/O KY!MBA - who testified as PW. 1 while unlo'J.dint; bricke ' :c·1. ,lght by his tractor on n plot he believedto be his was nttacked by the family of the n)s;rondents. He was hit with a brick arid [;ot injured. He ,:i.nd his f:unily consistj.m:;; of the driver of the tr:1ctr Br'.lison s/o Ky.:unb::t who testified as PW.2 :md PW.3 one :Raja.bu s/o Ahmed the sum of PW.1 were completely overpowered by the respcndents and had to· ie.'.l.ve the scene of r.1ttack after they hr1~ urilonded their bricks. The resp::mdents wh::) were [.1.t the scene were '/;he 1st resp0nctent Tatu d/o Ased ·1 . . . whc 1 testif i'::1 as DI•! .1 who _ is the. m,_,ther of the other 2 respondents who . ·, has n0,,., died, so tbe o.ppe.:J. nr;Ll.inst her hn.s now .:tb::teri vii th her de:i.th and c::tn I t be deli berated on o.ppe::.l c1go.inst her 2.JJ.Y more • • J • The other responclents who were there are Jumn. s/o So..icl who testified as DW. 2 and Mgeni d/o Said who testified as Dw.3. R)th the remainder respondents :xre the children of the deceased 1st respondent T:ttu d/o flsed. The DoP.P. was dissatisfied with the acquittnl of the two 1st and 3rd respondents :mrl with the sentence of 6 months passed on · the 2nd responc1ent as well as his a.cquittcl in the 2nd count. The D.P.P. has been represented by the learned Mro N:1.rw;ela ($/J.) whereo.s the respondents have been represented by the lec.rned Mr. Mkumbe advocate. The first ground of appeal is thnt the convicted 2nd respondent Juma s/o .Said was sentenced rir;htly to hwe his sentence susta.ined by this C'Jtirt. He w::.1.1:. convicted of assault cnusing .Stctual bodily h':II'm contr.::rry to secti m 241 of the Penal Code and sentenced to 6 mi:,:nths in jail. His c'~nviction was quite soun·i fnr he is the -,me who actually threw the brick which hit PW.l in the heo.d cmd caused him to suffer dangerqus h:Jrm of a swelling in the heac nnd in the 2Imo The mDXimum pernalty for this :)ffence is 5 ye?rs. The penalty of only 6 m,-:nths imprisonment I agree is on the lenient side for the 2nd respondent •oooooo/2

2 - Juma s/o S.'J.id was too ±m.er,usly dnrinr:; and reol-J.eee to have assaulted the ccm)lain::mt with a brick 011 the he:J.d thrown from a far. A brick so thrown aimed at the head was a dnnger-:·us missile which could have killed P'>v.l or cnused fractured ,"Jf his hones. But, the 2nd respondent h:ts already served his sentence of' 6 mo'nths imprisonment. It is not fo.ir to him to be impriscincd tlgo.in.; I therefore enhonce his sentence to a fine of ,Shs.5,_000/= (five tpousnnd) _or 6 months imprisonment, thereby mrldng .:1 tot.::tl of 6 moI]-th.s imprisanment plus a fine of 5,000/= or 6 months imprisonment in defo.ult cf which he. shall serve a totD.l of 1 yee:r in prison. . He has_ alrc.J.dy s_erv,3d the 6 m0nths imprisonment. So, if he P:':t;'tJ3 the additional fine of 5,000/= ha .shall not serve any additional •·- The appeal 3. 6 ::tinst th0 c:tcquittal of the 3rd•espr;ndent Mgeni d/c SD.id on the first count :)f j,ss.:mlt C:::.using Actunl Harm has also been challenged by the learned Mr. Nangel<1. Th0 learned Mr. Mkumbe has o.rrued that the complo.in::mt was thG first to attack the deceased mother which .fnrce:i _ the 3rd respondent to def an,) her mother d their p1ot which was be.ing. invaded _by the trespas of the c•::implainant •· _. He further arged the.t the 3rd respondent thrcuw no store to the comrlrdnant. . . . . The learned Mr. Nangel.'.1 - State /ltorD<Y cont,mded tho.t since the .. respondents acted in common_ with common intention ·they should. have been jointly c.::mvicted re::?;'J.I'dless cf what different kind of assault each party committed in terms of S .23 ')f the Penal Coc:.e which pr:::ivides that when . there is a common intonticm to do Clil unlawful purpose in conjunctirm with;, t~~ another ony in the posecuticm c,f the .such pu..rpose an offence is committed of such a n-3.ture thc1t .its commission was· a prob.'lble consequent of. the prosecution _ of such _cor;imon intenticm or purpose then each one of, them will he cleemerl tci have committed the i:,ffence. The common purpcse or intention of the 3 respondents was to protect the plot. which they believed w'ls theirs. I ,")gree with •the le::irnd Mr. Mkumbe. that it i,.as a .. lawful purpose to protect· the plot they thou,r;ht W".',S. theirso ~ut, the evidenc? '.°;f PW.l went further tho.n th3.t since it was ., testified th:-tt the lnte rncther of the responr:1_ont uttered the following word.s:- amekujaH ,:Leo kusheshe, .njconi (Todny there is trouble, _ jcin me, he has como : to which th_e 2nd respon1ent respondencled by threntening that:- :;Ni tau,;t mtu le,:-: 1 : (Tod'J.y, I will kill someone). eeoeo/3 .. , ·.; ..

• 3 - With this prior '·eligerent incitement and nttack that followed by physically trying to stop the unloadin0: of the bricks on the plot the respondents exceected their right to protect whnt they thcu: 5 ht was their property ;:ind unl?twfully embarked upon commonly assaultin~ PW.1, P':J.2 and PW.3. A commoni asso.ult need not be c·::->mmitted by. physical battery but it cm suffice to attn.ck with o.husive w-1rds :1s well. as thrents of violence nctually portrayed hy overt m0tinn of the body mov,:,mcnto The trioJ. ma[;istrate the learned Mr. Lilibe (IM) found it as D. fact. that the 'respondents did abuse .the compl.:i.inant. They also physic:::i.lly ,confrnnterl the c·ompla.inont.s ::mr5rily o.nd threo.teningly o· Their commonly unlawful purpose w3.s to assault the ccm1,L,in:mt which amounted to ony fl common d.ss3.ult which is c::.n <:)ffence -under S.24O of the.Fencl Code. The .2nd responclent 1 s impromptu and sudden twist nf throwing a sbne at the head r,f the complainant was net contemplated by the; other two respondents, I h.,ld in sustcdnace of the fin cling of the lower court. The 3rd respondent therefore W.:?Ls properly o.cquitted.fr0m the offence-of assault causin::s actual bodily horm crmtrciry to sectbn. 241 of the Penal Code. But, the trial court should hs.ve t~one to find the 3rd resp'Jndent
• committed the minor ,-.ffencc· of common asGault c/s., 240. of the Penal Code. I hereby substitute the conviction of common Msault c/so 240 of the Penal Code ac;o.inst the 3rd respond.ent Mgeni d/o Said and finrl her guilty _ of it accordinglyo There is a further appe:J.1 0n the 2nd count cf Malicious. Damse to proprty of the block nnd burnt bricks nga.inst ;thG acquittal of both. 2nd and 3rd respondents .'.)n this co:urt. The ••le3rned Mr. Mkuml:le has opposed this 2nd count I s appeo.l on re:1s~)ns tho.t this criminal. ch:rrge was quite misconceived for the basic questi\m of who w::i.s the true owner of the· plot was not solved nncl h:1.s not been cleoJ. t with in any trial action first. I agree th::1t · so lon:; as the tw:.) sides claim_ qvmershiP. of the plot thGy sh~uld have first settled it in a civil suit. But, tha.t doesn't entitle any p'il'ty to r.lestroy m3.lic iously the pr ,1:erty c,f another br,:-ught into th0 plot under the honest belief th':lt it is his pr,,perty. The tri2-l courts visit to the scene of crime confirmed that he found 7 _ bricks of block type (out of 2000 pieces claimed) at the scene and 36 burnt bricks ( out of 300 pieces cl:1imed) o.t the scene of crime. Th8 tri.s.l court in his juc1eoment found it. as a. fact thnt, I quote from the relevnnt portion of the ju:l,:;oment: - ;It is not in dispute that on 26/8/95 nt around 5.00 hours, the cumplninant c-.ne Ky2Jnba took his tractor which hn.d ,some ·;,-1ri.cks ond sond and went to off102,d them in a certain p·lot at Mbugnni area., the first accuserJ. :,J1d her fnmily r:=ibpped the complain,mt from •cffload.in-3 the bricks on

,: 4 - "gr,uncls tho.t KycurthD. h:;i.d no plot there. It is also not in dispute that following stoppinr:; the:complD.inant from offloading the. bricks, thero ::iccurre.d some confr::into.tion betweon the coinpl.;1.:;i.nant nnd the si.ccusecl per.sons•. The questfon of the bricks kwing been offloaded there was solved by tho tri:il · cr'furt by findin;~ trn.t they were -:i.ctually offloaded there 1 the 2nd· respondent th:~.t he wc-,Jd kill someone Even the threats of and the ul ti.,m9-te . . til.t h . . . . tt :1 th compl'linant h. tt .· assa e comm1 e.r . upon · e · ·. ·: : ; by 1 1ng him with a stone· wds ct result of. the :p.icture· t.o st,')P Jn, cffloaclin,; of r - 'I. the bricks.· .' •• .,L: Had' :the c6inplain:-jnt c()oi0c.t clown :tnc1 backed awc1y .fr0m offloading the bricks ··certainly no assnult ,would ho.ve c:ontinued most l.ikely for the. respon,:lents wouli:-J. h:we succeeclecl in· their mission of stopping. the• 0ffloiding of the bri'cks iri the plot in dis1)Ute. After the offtciadints tho tri.-:,..1·. cnurt helcl that there was nrJ • prho:f thnt · the resp•;')nd{{nts:rlestr,,yod .fr0m bricks ,,,r took 3.w::ry :these.· bricks. If tho res1fond.ents · had been seen taking o.w:;,y the brcks they crtninly woulci'not have been .9.111crr.fed with .n minor ;;iff ence of malicious dam::i.ge to pronerty. They w:iulcl have been chor:;ed with the more serious offence: of Theft C/s.:-265 of the Penal Codeo It is he3rd they were not seen taking a w:..y the. bricks in the ·undwn.2gecl fcrm or dem.2cged form that they were ch::rrr.;.ed with malic:Cous dama13:e to pr?perty. This WD.s a nec:::-.::;s,:i.ry nnd: irrestist:.:thle f ollo-,.i up. event (,1f the resp:::mclents after they· failed to st:;p, the unlo.?.u1ing' .c,f the bricks they are the ones who ' ' went ahead destroying th,~m ·so' as. tc- ohli tero.te their presence at that , . . plot •. · The destroyed brfoks left there would h:we exhibited their m.J.lice· to pr01_1erty as exhibited by the assault to the complo.in:mts persono So, they must•hFJ.ve removed them from there to dest,roy evidence. Nob0dy in th-::t vicinity .::ind the entire. world would h.:J.ve bee_n interested to take awv the destr'JYGd bricks oxcept the r,es:,0ndents. The com,:::-lain.::tnt w·.:mld not hove hired ·.:.,r driven ::-.. trnctor there to offload the remainder 7 pieces c,f block bricks cmd 36 turn_t };)ricks!~ All the some the 2360 briclfo in tot:::il seem· to hnve been over ,"stimr:,ted for no tractor has. the ( copo.city to co.rry 2000 block .. bricks .md 360 burnt .bricks in one trip. Unfortunately the size nf th0 b:dcks h:.'l..s not been given. If it is the . small size bricks of 4'" .. X 6; X 8" " bricks ,'..1 tractc,r co.n c9rry up to 2000 bricks maximurμ. If it is the big block bricirn of 5.1 X 10' X 18; it can co:rry 500 hricks. qt m3.Ximu'Tlo find since it is alleged. he :i.lso cnrried sand then the tottl bricks if bir; would have h'.:lrdly been 0ver 200 lilld .I •• 0 0 ./5.

5 - small size they would not have exceede(: 600 pieces of most likely. I therefore find that the two respondents the 2nd respondent Juma s/o Saidi c1.nd the 3rd respondent Mgeni d/o Saidi did indeed .Jestrcy the missinrs bricks from the plot in dispute which were offloaded. there by the complaino.nt o I therefore find them guilty of the offence of malicious d-3Jllage of property :md. ccnvict them accordinr;ly under S0326 acquittal on this C<)unt is therefore of the Penru. Code as cht\rged, then L' .': '; quashed and substituted by conviction. SENTENCE EoLoKo MWIP0P0 JUOOE 5/11/98 The 2nd Respondent Juma s/o Said was 3.lready sentc-nced to the imr,r isonment term of 6 m-·:,nths in the 1st count which was sustained by this court to sn adrl.iti:mal fine of 5,000/= (five th,uswd) or 6 months imprison in def :rnl t. He has ::u.re::1.dy served the imprisonment term but he has to serve the additional sentence of p0yin 0 the fine cf .Shso5,000/= or to serve jail for 6 mc,nths. The 3rd nccused Mgeni d/o Sair:l was acquitted in the first count. But this c urt h::i.s convicterl fer assault causing actual bodily hurm not for common .::i.ssaul t c/s. 241 :-if the Penal Co'.:le. I sentence her to " fine of Shs.5,000/= or 6 r.JCmths mo impris::-nmEmt in default. a;n the 2nd count both :-f them were :convicted hut this court found them with m0J:icious d:JJ!l::,~e to prq;erty c/s. 326 of the Pennl Code., I sentence e::1ch '.)TIO of them to riay ~1 fine of 5,000/= or 6 months imprisonment. A warrant of arrest is herel,y perm;mently issuerl o.go.inst them both until they m-e arrested fc)r serving this sentence. Bef:·,re serving thoy cnn :::rpply t,J set .:,.side this sentence so that they :u-e heard a cha 1 Jce to mitignte the sentence in 1 year with mitig.qtion ~iven by their advocate. EoL oKo MWIPOP0' JUD3E 29/11/99 I CERTITY that this is -'.l true copy of the original judgment.

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