Lumelinda vs Mteje (PC Criminal Appeal 42 of 1996) [1998] TZHC 11 (31 August 1998)

,./ <,., \ " IN THE HIGH COURT OF TANZANIA br __ J)AR__ ~_L __ p1ttJl\Atl (PC) en utr NAI. APPEAL NO. 42 OF 1996. (From the dacision of the District Court of KINONOONI at KTNONDONI ill Cl'iminilJ Appeal No. 17 of 1996) PRISCA LUMRLINDA .................•...•..••.... APPET.IJAN'r VERSUS ATJr, I HTRJE ...•..•....•.....•••....•....•••.••. RESPONDENT Ttlis is a second appeal by one Prisca Lumeiinda challenging Lhe acquitt;)1 of Ally Hteje by Kinondoni. Primaty Court., which acquittal was upheld by the fUnon(]on.i District Court. On the day fixed for heaJ':ingof t.he appeal, though served, Respondent failed to appear and t.he Appellant proceed to pro!;lecut.e her appeal. Refore the PtilllrJty COllrt.,Ally Mteje wag charged wjt.h unjug abusive language c\s 89 of tIle Penal Code allegedly because (as per an unhappily worded partiCUlars of the charge) "kwa nia ya makusudi ulimtukana PRISCA r.UMERINDA kuwa r.\nachukua nguo zenye (shahawa) nakuzlweka ndani ulifanya hivyo huku ukijua ni kosa kisheria". Filctn undisputed. iHe t.!irlt the Appellant. and Renpondent. ate neighhours separat.ed by a wall constructed by the former. For c1t'il Ll1ilge lllltpOn8n the Appellant I s wall has an opening leading to Respondent I s premises. 'l'lte said opening was purposely devised to capture rain water flowing from neighbouring areas. As it tr;:lllr;pinc1 however, instead of capturing rain water only, (lirt.y water including used condoms, Blood stained cotton wool, empty food cans and food left-overs started flowing as well through the

2 said opening into Respondent's premises. Attempt.s by Respondent to SfHl1 off the oprHlLtly P10Vf.Hl ahortive as it was correspondl.ngly being reo-opened by the Appe llant. AR ngarrJR the ROllne of the present app~al, it was contended by the Appellant, that on one of such occassions, on 30\12\95, the Respondent hurled abuaes t.o her to the following effect, "1< 1::;.1101 eha mama yako !lil waza:d. wako wate. Balaya Inkuhwa ma tambara yako ya shahawa unalet.a kwangu". The Respondent admitted the incident as regards the flowing of the dirty, sealing and re-opening as already det.ailed above but d isptJ Led hav.i ng ut tered the a lle9fH.lwarda. PW2-4, suppar led t.he Appellant's story. The Primary Court found that though there was some misunden;l.anding between Appellant and Respondent due t.o the opening ill the wall through which dirty water flowed the latter never abused the fonner. The Dis tr let Court conf irrnJng the Primary Court's verdict found that even if the words alleged were uttered there iR no evidence to show that they were directed to the Appellant. Among her grounds of Appeal, the Appelant complained that the learned Resident Magistrate erred in holding that if at all ahusive language was used it was not established that it was directed to her, and that no evaluation of evidence was made. Having carefully gone through the grounds of complaint and weighing the same carefully against the proceedings and judgment of the primary court. and thaI: of the District Court: I have but to dismiss this appeal on the following grounds.

3 First., the complrJint lodged before the primary court., the part iell"] n~ of whi dl 1 It.:lve rl!t'eadyquoted above, is fit vEJrifJuce wi t.hwhrlf flip. l\p!wllMlt EJml her witnesses allege to hnvo beell ut.tored by Hospondolll'. Oood netlso would f~,il tosoe, 1.£ the wonl,; alleged by Appellants to have been uttered by Respondent were indeed uttered, why are they not substantially fotlllintl piut of the complaint lodged before the court! Looking at the particulars of the complaint and the words alleged to have been uttered, all quoted jttwhole ahove, one is left with an insurmountable doubt as to '/hethorthe al.legAd words were utt.ered at all fOJ: t.he frnlllP}' of the c:harue eoulc1 not }P1VO left out UIA othorwirH~ v i v icl.l y 0 f f o IHli Ilg wonlR unless not disc losed by Appe llan L From the sorrounding circumstances of this case, I am convinced that the Respondent did utter some words but the exact words uttered hi1Ve not. been <:.lea/ly establishe(l. Secondly, the charge is deplorably defective. Apart from simply mentioning S. 89 instead of S. 89(1)(a) the particulars should Itave revealed the exact words complained of. That apart, the part.iculars also o/lmlitted showing an essfHltlal ingredif)lll: of the offence, that t.hose wonts were uttered ''In such manner likely to cause broach of t.ho peace", which is an incurable j rregulari ty (GULl TSl\l1NR V R (1967) HeD 440). I ant awat:e of s. 37 (2) of the Hagistrater;' Court Act (Act 2 of 1984) that substantial justice ltaR to I)(~ dOlle without t1l1c]ue regard to technicaliU,eR, but, surely, a complairlt which does make it clear to an accused person as to wha t he \she is actua 1.1 y charged with occassions f a.Ullre of justice as it does not enable him (her to put forward the !'eqll i rOIl c1 P. f AtlCfl ) • Thirdly, the offence of abusive language c\s 89(1){a) Antall::;that the words uttered IIIlIst not only be abusive but also must be lIttered in such manner that is likely to bA provocative leadlllg :i uto breach of Ule peace. Though the evldence shows that. the Appellant and Respondent are neighbours it was clearly proved

/ f 4 that there is a wall sep;uat. iug then" There iR no evidence showing where the Appellant was when the Respondent: WllR allegedly ut ter 1ng the words. t II the premises, evetl assuming t.he wordfl afl per the charge "kuwa anachukua (Appellant) .,nguo zenye shahawa na lmziwekrt ndani" were uttered I am convinced that the content.s of the said words and the circumst.ances in which they were uttered fall short of "in such manner as is likely to cause abreach of the peace" as prescribed under S. 89(1)(a) Penal Code. Fot· I he re(lflollR diFlctlfH1ed (lbove T uphold tllA ncqtJUlrtl vp.rclicl.r. nrrivec1 (II. by hOUI court below. The appeal is accordingly dismissed. (L. B. Kalegeya) JUDGE 20\11\97 Delivered in U1A vreflenCA of t.he Appellant and Resvondent today the 24th November, 1997. At Oar es Salaam 2 trJLJi.QVA1UiERl_1.,..2.-.1 (L. B. Kalegeya) .JJl12_G. I (',,'l(~ '''lf ,"j 14 • hIlt 'C<J t8tred .( ,h' (J';Ai",d '-It"".I""i!"''f/PrtfUi"e. '-.(1, .. .,.... rl'~~~ ·,,·.·· ... ·H VillI /I f t."iJfl#I 1111" , ,Jull o! J ,.",-,,1 t'' t.l .),,1__ I .!::'~~Y..(.(L~ )_.: ~s:~~.:==J

TN 'T'HF: HUlH r.OtlR'T' OF' 'T'AN7.ANT A (DRill nilricl RAgiRtry) A'T'_Dl\R F:R Ar·A"t-1 PC: r.TVTT. APPF,AT. NO.9] OF' 19(n (OriainrJtina from Kinnnooni nitrid COllrt r.ivil 'ADO;'rJl No.-9\97 rJnd Oriainal MiH1ZAA Primary Court r;:il rrJA N~. 17.7(5) - HAMTR A'T'HtJMANT APPF:T,T.AN'T' VF.RRHS JUMANNR MAKAMBT 1S'T' RF.SPONDRN'T' KONDO MAT.RMBRLR 2ND RF.SPONDF.N'T' TOO KTWAMRA Rn RF.SPONnRN'T' '1'hi Ri ~ a r lIli n 9 i 11 r AR P P. C 1. n f an a p p 1 i C FlI j 0 tl f nt· 1 Aa v P. to apPArJl to thp. COllrt of AppAal rJnd alo for a cArtificatA that thArA i~ a point of law invnlvpd in UtA intAtHlAO rtppArJl fit to hA dAtAnllinAcl hy l-hA rotHI of AppArtl. 'T'hp ApPAlI;:ml i~ hping rpprppnlAd by Mr. WrthokArrt: lArJt"tlAd roul1sAl. Hrtmii Ath1JJniHli: AppAlltlnl: RUAd thA thrAA RARpondAnt~: ,TUmtlnnA Makrtmhi: Kondo Mrt J AlllhA 1 A rttlfl TcJ<1i K i wrtrnhrt for pORSASR ion of rt h011SA rtl1pgA(lly lAft hAhirHl hy his dACArtRAd hrothAr: ,Jumrt Athumani. HA 1 as I". in IhA primrtry cnllrt rJnd his rtppArtl t.O IhA nist.rir.t r011rt WAS disll1isSAf1. rnrHltlc1ing IhAI thA MrttlZASA Prilllrtry Court rtno thA KinonrJoni nistrirt rOllrl hi'lVA not rlonp jU::::tiCA to him hA knockAo rtt thA doors of t-h;:::; court hilt hi rtpPA.=.ll W;=JS RllmmArily rf~jActpd (Kilpo, ,r.) for hFlving no mArih:; At rtll. lJpon s(rtJt"iny of '.IA primAry court t'p.(onl T h;Wf nob'!rl that IhArA i rlAfpr.t. AppArpnt. t.hArAon thAt sArio1Jsly iiffpcts thp lOWAt COllrts' procAAdings. 'T'hA MagistrRte is shown to hiiVA invitAd And rAr.orrlRd fhR indivirll1rJl opinions of thA assAssors: and 1hAt""ArtftAr procp.A(lpd t.o r.nmpORf'I i'l jlJ(lgp.mptlt wh i ch WiHi not ~ j grlf(l hy t.hA

/ Hnder rule :1.. Ihere is no recording of indivillu"ll opinion of a 8 Se Sso r S e Y. e ep t. t hrt" the Mrt9 i Rt r i1 t,e i R t e q II ire d t. 0 (' 0 nR11 1t wit. h the ARRARsnrR .. i'lnd if there 1S i'l llnrtnimouR der:1R1on rtR WAR the CARe hA te, he WOlJ 1d proceed t.n C'OllllH)RP. A j u<1qlllAn t wh j ch WOIl] 11 bA RignAd hy both himself And U,e i'lSSfHHHHR. LAgli11y there is no judgement. of t.he C01lrt' j fit i R not, R i gnerl by n J 1 the aRseRsorR and Mi1g1R t r Fl te where t hen"i S i1 conr:enSllR on f i ncli ngR, OJ': l1li'lgislrAle ;HHl nne nSSfHsor (thesp being t.he Illajot'ity) in CilRA one disspnls (who:;p. Ilissent.ing vipws also would he lPf~nrde(l). The (onseqllenc'ps of t.h i s dehct. is to Illake thp prncRed ing:=; i'lnd j"dgplTlent of hoth c'o"rh:; he1ow;'1 nullity (there iR i'llong list of rl1lthorities on Ihis ie. (pr.) r.ivi1 App.7.S\Q7. Pili M1lngi VR Nina ,TuRtina Mbi'lgrl.: (pr.) e:ivil App.n\91 ThrAhim Si'Jifl vs SAlu1l1 Riiirli nf-IIII (He:) Regist'ry -lInrepntlfHl). They Are RO de(lanH1. T i'llll sure that this defect eRcAped ini':lr]vpr·tt=lnt1y the aU,entinn of t,he r1drniUing j1lflge when pAssing rl summAry r'ejeet ion order. HAd she seen this she would ohviously hAve Admitted the t=lppeaJ . Tn the premises 1erlve is granted rlnd the point of law involved iR the vl01rlt.ion of RulA :1 asirlllicated. Howf:wer, t.he i'thove i'tp;nt, T would rldviRe thi'tt. inRleiicl of i'lppet=ll itlg 1'0 t,he Cnllr::t of Apperll, And, rlf' thA 11efp.cl, harl not c:orne In 11'11" i'lllenl.ion of the jUdgp. whpll she Illdrle I.hp. {Hdp,r .. in ot{ler to R""ve t.ime and Axpf'ldil.e m;ll·terR, the Appl iCrlnt cntlld prAfer an t=lppljr'i'ltiOI1 by WAy of t"Avlew, for" the High Court. t'.O review if'!::; decision hACi'lURe of thiR new revelation. T hrlve AO concluded

/./ / / / // j ber.nusP most. likely the Court of APPPAI will dp.clarp thp pror.eedingR a n1lll ity .. sending hark the p;:nties to the primary COllrt and thAt· wOlll(l he ROmp. months to ("orne,_ i't f.incling which would hAve been mnde earlier hy this COllrt. nA 1 i VA r A'] on v< (T.. R. Ki'tlegeyrJ) ,T1InGF. }1.~.l~~ .-] -