The Director of Public Corporations vs Tatu Ased and Others (Criminal Appeal No. 126 of 1997) [1999] TZHC 48 (29 November 1999)

• .. ''i' 0 • 0 3 WIPOPO, J. : : IN -THE HIGH COURT UF TANZ1'.NIA AT MBEY/1 CRINAL ilPPEi",L NO. 126 O'F 1997 (From Oririn:'l.l Criminal Cnse No. 127 of 1995 of Kyeln. District Court at Kyela) TrE~ DIRTOR OF PUBLIC PROSECTJTIONS • .. • • • • APPELL;\NT 1 o TA TU ;.SED 2.~ " JUMA SAID }-. MGENI s;,ID ) ) ) ·versus JUD(IEMENT RESPONDENTS- .. The campl.:dnn.nt MP;iLAJUNGWA .S/0 KY!1MBA who testified as PW.1 while unloicling b_ricks '":1. ,1sht by his tractor on et plot he believedto be his. was attacked by th/ fmnily of the respondents.. He was hit with n brick and got' injured., He and his f:::unily consistirn:,; of the driver of the tr:J.ctor Brnison s/o Kynrnba who testified as PW.2 .'.l!ld PW.3 one Raja.bu ·s/o Ahmed the sum of PW.1 were completely overpowered by the respcndents and had to leo,ve the scene of o.ttack after they had unloaded their bricks. The respondents who were :::i.t the scene were the 1st respondent Tatu d/o Ased who testified ns D"!.1 who is the m-,ther of the other 2 respondents who has now died, so the o.npeol o.go.inst her has now .:1b::>,ted. with her de'lth and _c:m I t be deliberated on o.ppe'.tl c3.gc::.inst her ')JJY more The other responc1en'ts who-. were there o.re Juma s/o Snicl who testified as DW. 2 arid Mgeni d/o Said who testified as Dwo3• Both the rem;-::tinqer respo~,1nts ::ire the children cf the deceased 1st respondent 'J:'3.tu d/o. !1sed. . . .· : .· ,.. . '. The DoP .P·o was di,ssatisfied with the :i.cquittnl of the tw9 1st :1nd 3rd respondents ::,ml with the sentence of 6 months passed on the 2nd respondent as well as his acquittnl in the 2nd. count. The D.P.P. hns .... '. ,. been represented by the learned Mr. N:J.ngelo. (S/A~) whereo.s the respondents hnve been represented by the le2.rned Mr. Mkumbe advocate. The first ground of o.ppeal is ·that the convicted 2nd respondent Juma s/o Said was sentenced rightly to hwe his sentence susb.ined by this c 0 .1urt. He wo.s convicted of assault causing .3.ctual bodily h'.U'm contrciry to secti-1n 241 of the Peno.l Code ond sentenced to 6 months in jail. His c'nviction was quite sound fnr he is the ,,me who actunlly threw the brick which hit PWol in the heo.d o.nd caused him to suffer do.ngernus h::rrm of a swelling in the heai:.. and in the c.rm. The mrucimum pernalty for this .;ffence is 5 ye::-.r,s. The penalty of only 6 m.-,nths imprisonment I et:?,ree is on the lenient side for the 2nd respondent

• 2· - Juma s/o S:J.id was toe d.:m?er:-:,usly dn.rinG and reckless to have assault0d the ccm-'.1l.:1in.::mt with a brick ,)n the heid thr:::>wn from a far. A brick so thrown aimed at the hencl was a dnnr;errJUS missile which could he.ve killed PW.l or caused fractured of his hones •. But, the 2nd respondent h::i.s already served his sentence of 6 months imprisonment. It is not fair to him to be imprisoned ngctin •.. I ther0fore enhcmce his sentence to a fine of Shso5,000/= (five thousand) or 6 mon_ts imprisonment, thereby .. . ~ making a totetl of 6 months imprisonment ·plus D. fine of 5,000/= or 6 months imprisonment in det,iul t of which he shall serve a totc1.l 'O.f 1 yeor in .... prison. He has alre::i.dy serv,3d the 6 months imprisr'mment. _ So, if he p:J.ys the additional fine of 5,000/= he ,:;hall not serve any' additional .. , imprisoni11ent -ferro of 6 months nt all. The appeal ag::linst the acqui ttnl of the 3rd resprmdent Mgeni d./o Said on the first c,.rnnt of J,ssr.1ult C:1using Actuo.l Rel.I'm ho.s also been challenged by the learned Mr. Nangel:1. Tho learned Mr. Mkumbe h'.'.l.s nrgued that .. th co!!)plD.im.nt was tho first to nttack the deceased mC'ther which f-.-,rcad the 3rd resvondent to defon, 1 her mother and their pl,)t which was being i_nvad0d. by the trespass d the complo.immt. He · further arged. the.t the rd resron1erit thr,ouw no store to ,the complninant. '. . .. " ' . The_ leprned Mr Nani.ieL:c - State Attorney contended that since the rosp,,:1ncJents acted in common with common intention they shoul<l have been jointly convcted. re;irclleos of what different kind of assault e2:ch party committed in terms of So23 ')f the Penal Coc:.e which provides that when there is a common intention to do an unlawful purpose in conjuncti0n with ,,u;. anot_her nny in the prcsecuti::m of the .such PUI'l)Ose an offence· is co.nmi tted of such a n.J.ture th&t its cominiss{on was a prob.'lble consequent of the prosecution uf such common intenti,:m or purpose then enc:p Qnc ?f them will b deemed. tci h.'.l.ve committed the offencec The common,purpuse or intention of the 3 respnndents was to protect the plot which they believe<.~ '.trJ.s theirs. I c1.r;ree with the le.::irne'l Mro Mkumbe that it 11.as o. .. lawful purpose to protect the plot they t 1 1ought' w-'.ls theirs. But, _the evidence of PW n went further' thD.h th'.lt since it wo:s testified th:-tt thE; .late mdher cf the resportckmt utterc,1 the following word.s:- amekuja" ':1eo ko.shech, njooni (Todny there is trouble, jcin me, he has cc,mo:· to which,the 2nd responrlent respondended by threatening that:- :,Nitau::i. mtu leG'; (Tod:1y, I will kill someone) • •• 0 • • /3

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• 3 - With this prior '··eligerent incitement and att:.1ck that followed. by physically trying trJ stop the unloadinG: of the bricks on .the. plot the respondents exce6ided their right to protect whn.t they thought was their property mid unlawfullyembarked upon commonly assau}-ting Pd.1, PU.2 and PW.3. A common assnul t need• not · be commi ttecl by physical battery but it CD .. n suffice to attack with ahusive w-1rds as well as.threats of violence ' actually portrayed hy overt motion of the body movement. The trinl ma;;istrate the learned Mr. Lilibe (lli) fo1,1.nd it as a fact tha.t tho respondents did abuse the complainant. They also :physically confronted the com-plaincints :J.ngrily b.nd threo.teningly., Their commonly: unlawful purpose wc1s 'fo as·sauit · the cGnii'11.:tindnt which tunounted to only a common ass.stult hich 'is c1.n ,Jffence :under S.240 of the Pennl Coc1eo. Tbe 2nd resronclent I s impromptu and sudden twist c,f throwing a stJne at the head ')f the c·ompi.:::tinant was not contemplated by the Gtber two respondents, I hold in sus'tairiace of the finding of the lower. court. ·The 3rd respbndent therefore w2..s properly acquitted from the offence of assmμ.t causin:-; actual bodily -harm c0ntr:iry ··to section 241 of the Penal Code. But, the trial court should h2"Ve Gone · to find the 3rd resp::mdnt committed the rninor r. 1 ffence 'of common assault c/s~ 240 of th_e Penq.l .Code. I hereby substitute the con,ricticn of common assault c/so 240 of the . Penal C<=icle a_c;ainst the 3rd respondent. Mgeni cl/o Said and .finrl her guilty ofit accordingly. There is· a furtht'!r ::i.ppt3;.1,l .an the 2nd count of Malicious .Damo.ge to · ! pror)erty of the block o.nd bu.rnt bricks ngainst thG ncquittal of both· 2nd and 3rd. respondents on this court o The lecrrned Mr o Mkum½e has opposed this 2d count vs :0-1jpeol on re:J.sms thn.t this· .criminal clpr1;. was quite miscbnceived for the basic questi• .. m of who was the tru~ .o_wne~ of the 'plot was not sol vd o.ml h::1.s nc1t been dealt with in any· trial action r'{rst. · I agree th:::i.t so lon:? as the b,n sides claim ownershiP, of". the plot' th8y sh::mld ho.ve first settled it in a civil suit. But, that. do'esri 1 t entitle any p3rty' to rlestroy m.:1.liciously the pr:;-perty c,f another brought into the plot under the honest belief th::i.t it is his pr->perty .• The tric.l courts visit to the scene A crime confirmed thnt he found 7 bricks of block type·(out of 2000 pieces claimed) at the·scene and 36. burnt bricks (out of 300 pieces claimed) at the scone of crime. The trial court in his juc1 0 ement found it as .:J. fact that, I quote., from the relevnnt i)ortion of the ju'd,;;;0m0nt: - · •It is not in dispute that on 26/8/95 at around 5 .• oo hours, the complainant c,ne Ky2JI11x:i. tobk his trp.ctor which had s,;me bricks ,mcl. snnd and wenf to offl~c:,cl them in ·,:::t certain plot at Mbugnni area, the first accused :.md her fo.mily :::;t::ip1::ied the complc1.inmt from ·'cfflo!:1.d.ing the bricks on ,,

; . ·.:··. 4 - . "grqmds tho.t Ky:::\ll1h8. h,:1.Cl no plot tl}erea It is also not in dispute that followinh. tho o..cts c'>f the ls~ s-::;cused anj her family ·stoppin,; the'complninant from offloading the ' bricks, there occurred some confr~mt:i.tion · · between the compl.'3.inont and the ,.:2ccused persons '. The question ;Jf' the bricks h(J.Ving been offloaded th<i,r,e w:1s solved by the tri::J. court by findinti; th2t thoy were ':l.ctually offloaded tμere. Evan the ·threats elf the 2nd respondent th2t he wo·:.1 d kill someone "' th· .. · · ult h · tt l th complainant h · tt · anu e ul tL,mate assa e cornm1 ec upon . e. :. '. . · ; ty; 1 1ng him with a stone -J.J.S c. result' of the picture to st.ip in ffloadirt,-;:: of ( .. the bricks. H!1d tho compla.inont cc,ole'cJ clown ::md bo..cked awcy from. offloading the bricks certainly no· asso.ul t 'W:Juld have continued most. likely for · the ·responrlents would have succeeded in their mission of .stop11ing the t,,fflo3.dinr; of : the bricks in the plot in· dispute. After the offloadirn 5 the trii:il c:-:•urt held th:.tt-,there was no pr.,of: that' the rcspodents. destr•·Jycd from .bricks ,r tc:,ok :'f.W,YJ these bricks. If the restJondent's hc:d been seen t,2..'<ing o.w:Jy the brcks they , . I certainly wnvld not h::tve 'been mnerge,1 with a minor .:iffence of malicious damage to pro'!:erty. They w::iuld h2ve been cho.r1;ed with the more serious offence of Theft C/so 265 of the Pen::,.l Code. It is heard they were, not seen tnkin,,; a w:-ry the bricks in the undom::.1.0:ed form or clem::-cged form tho.t they were chi:trr:;ed with malicicJ.Uis dama'!;e to property. This wns a nec:::Gsary ·nnc1.· irr-estisth.hle follow up. event of the respondents after they' failed to· st:Jp thi unlo.:::,r1.in;I c,f the bricks tbey pre the '.ones wpo went ahe!J.d destroying th;m so D.s. to ohli tero.tG tlmir presence at thaJ p:lot •. · The destroyed bricks left there would h_ve exhibited their m-·uic'e to· property c:.s exhibited by the assault to the complc.in0nts p·er:ic.n. ·so, they must hn.ve rerw)Ved them from there to destz:-oy evidence. Nobody in th,.t vicin{ty ond the entire world would h:we been interested to ·take aw'Tj the destrJycd l')rick,s r.ui;'.Cept the res,ondonts.. Tho complainwit· w,:::uJ.d not have hirect -:.:.r driven ':-1. tractor .there to offl,:iad the remainder 7 pieces 0f block·brfoks o.nd 36 tur;nt tricks! . All the sruno the 2360 bri'cks' in tot.::l s0em to h2.ve. hc::en over estimated for no trncto;r. bas. the co.po.city to carry 2000 block. bricks o.nc1 360 burnt bricks in one trip• Unfortunately the size. of tho b:ciclrn h:1.s not been given. If it is the ,· small size bricks of 4,: x 6 • x sr, bricks ,'.1 tractor c,:m corry up tG · 2000 bricks max:imum. If it is tl;J.e big block bricks of 5· 1 x 10' x 18; it can' corry 500 hricks. at maxirnu,"Tlo ilnd since it is alleged he ::i..lso cnrriecl sand then the totnl bricks if big would h:we horcily been r;ver 200 !.1Ild

5 small size they would not have exceeded 600 pieces of most likely. I therefore find that the two respondents the 2nd respondent Juma s/o Saidi and the 3rd respondent Mgeni d/o Saidi did indeed destrcy tho missinri; bricks from the plot in dispute which were cJffloaded there by the complainant. I therefore find tbem ruilty of the offonce of malicious d'l!Il'lge of property n.nd convict them accorr3.inly under So326 acqui ttc:il on this C<)unt is therefore of the Penal Cede as ch'.U'r;ecl, then · _: :· · quashed and substituted by conviction. ( Sgdo) SENTENCE EoLoKo MWIP0P0 JUDGE 5/11/98 The 2nd. Ros1)ondent Junm s/o Said was already sentenced to tho imprisonment term of 6 m::,nths in the 1st count which was sustained by this court to m rvkl.itional fine of 5,000/= (five th:-;us-3.Ild) or 6 months imprison in default. He has Jlreo.dy served the imprisonment term but ho hrrn to serve the nddi tional sentence of pnyin 5 the fine of Shs.5,000/= or to serve j8.il for 6 m,,nths. The 3rd accused Mgeni d/o Saicl was acquitted in the first count. But this curt h:1s convicteu fer assault cnusing actual bodily harm not for common assault c/s,. 241 :if the Penal Co:le. I sentence her to " fine of Shs.5,000/= or 6 r.-i,:mths mo impris:mment in default. a;n the 2nd. count both ··f them were :convicted hut this court found them with m?.J:icious d:J.Il1:1.e to proi1erty c/s. 326 of the Pennl Coc 1 ee I sentence eD.ch one of them to pay e1. fine of 5 1 000/= or 6 months imprisonment. A warr;mt of arr-:;st is here1,y perm,mently issued. -:i.rso.inst them both until they sre arrested for serving this sentence Bef,:,re servin:3 they ccu1 ri:pply t•J set n.sicle this sentence so that they n-e heo.rd a chnhce to mitigate the sentence in 1 yea:r with mitigation given hy their advocate. JUOOE 29/11/99 is a .. true copy of the origin:11. judgment.