The Republic vs Hamisi Ngaranjagu (Criminal Revision No. 1 of 1989) [1990] TZHC 154 (24 September 1990)

• ____ __.... (! "'!!',.. .. .;: AT DAR BS SAL.AAl\11 ra:j CRIMINAL REVISION NJ 1 OF 19G9 ORIGINAL CRIMINAL CASE NO 673/19~~ Or' THE DISTRICT CGUHT OF KIVUKvNI DISTRICT ,T ILJiLli. BEFORE KilROKOL.li: RESI:)ENT Mh.GISTRATE THE REPUBLIC ••• ·, ~ ••••••.•••• " •••••• ; • , • ~ •••••••••• PROSECUTOR versus RA.tvIISI NGilR.l!:iJ iGU • ••••• , ••• , , o ••••••••• , • , ••.•• ~ •• ACCUSED RULING ?@EMA -PRM(EXT.J) The Direotr of Public Prosecutions, on 23/11/1900 wrote to the Regist:.ar of the High Court Coraplaining of two things,- ( 1) That t_1ere was no equi -:ocal plea of quilt entered by the accused (respc .. 1dent) as no facts adduced to the Court so that the accusd cold be asked to plead on them. Also tat the trial Resident Magis1rate did not convict the accused person but proceeded to senter.ice him. (2) That 1 he sentence imposed was manifestl'· in adequate in view of the natrE of the alleged injury inflicted 0n the. ancused (respondent)~ The s(ntence irJposed wa.-1 shs 50-J/-·finr or 4 raonths imprisonmE!rt~ in default. He was also ordered to pay ,hs .. 1,0~,;:j/- compensation to the victim. :

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• .. , .. . . o: .i l 1 .. : ... . . " The Lower Court record was therefore called f,::,:~ revision, henee the present revisional pr:,eeedings. The accused, herein after to be referred ·t ·; _as the rspondent, was charged with causing grievous bodily harm to v03 lVIaimuna d/o AthUL1a.ni c/s 225 . . of the Penal Code o Maimuna was allegedly inju:;.:c l on her left aru on whieh .she sustained muttiple injuriesc The res,ondent first appeared before the· hen Principal Resident Magistrat of Kivukoni·on 20/5/00 where he pl3Qded not guilty to the charge. The case was then adjourned to 3/6/0G for heexinge However, according to the proceedings ,.)f the lower court record, the ca.se was brought up befor~ the Learned Resident Magistrate Mr Karokola. The ~earned Public Prosecutor, Superintendent Mgandila 1 sub1.1i tted as followr: .. aand I quote:• . · · "lli Your Honour the accused · .. s facing serious heal th problemso He would like to change the plea so that he would be set free and go far treatment. On the part of the Republic. there is no objectiono 11 •. • /2-

!C:tiagc ;reul ovc:r c..n:! cxl.o.ir.-.iJ. ~~ tho :::.cct..;:;ed. wr.o er~~ ' . . , It's true. Plea of guilty entered•" Af'ter that the P-P- saids 11 Facts as per charge sheet." The Magistrate the.n recorded as follows:- 11Mitigation I am a young boy who earns a very low income. I am preparing to et oarried in the near future. I did not intend to harm her it was only an accident, I pray for liniency, & -· No previous conviction. Sentence, The accused is a young boy and the first offender. Having gone throuBh the charge sheet and mitigation thereof I find that he deserves liniency I th0refore sentence him to pay a fine of shs. 5,J/- and shs 1,JJ'J/- as oompensatiOll to the injured party, 'or 4 raonths ir.1prisonment in default. Right of appdal explained. Sgde ••--- ----------" Clea:rly, as stated by Mr. Komba, the plea was not u.nequiv0oal at all. First, reading Irom the qu<>-.tations above, the facts were not adduced by the earned iroseutor as required by the Law. The prooecutor siuply stateds 11 ------ ... (icts as per charge sheet 11 e What does the charge sheet contain? I will reproduce it here for the sake of these procedings:- 110ffence Sec_tion and Law: Grievous harm c/ u 225 of the Penal Code, Oap 16 Vol. of the Laws6 Pll.RTICULi.RS OF THE OFFENCE - That Hamisi s, ',; Ngaranyagu charged on the 12lh day of MaYt 1980 at about 12.-)'J hours at B.1gu::runi Mnyamani within Ilala District Dar es Salaam Region did asaul one Maimuma d/o llthumani ·causing grievous harm to the S3.:.d person to wit, she sustained multiple body injuries on her luft side of her hand." The quoted passage containing the particulars o:: the offence does not show he underlined cause that precipitated the· "illatmosphere" which resulted in the injury of the cocplainant. Gection 225 cf the Penal Code reads1 Any person who unlawfully does grievous harm tc another is guilty of a felony, and is liable to imprisonfilent for sever. years." The word 11 unlawful act ,)r ocission° has been <le.fined as culpable negligence to discharge a duty tending to the preservation of life on health, whether the act or omission is not accompanied by an intention to cause death or bodily harm" - see section 195 of the Penal Code-. It was terefore proper and safe on the part of the Prosecution if they adduced facts to enable the Court to Explain to the accused the ingredients of the.charge; that the accused had a duty to take care) that there was a :failure to discharge that duty; that the assault causing grievous haru to the victim was due to the acoused;s and finally that his negligence went beyond a mere matter of compensation and showed such disreeard for the life and safety for others as ••• /3- I

• to amount to a crioe against the State and was deserving punishment - vide R~ vs. DANIL BIS..u.MULI s/ o KITE, ( 1943) L· El&ii 42, In the present case the court was not shown the extent of the injuries through the productin of a medical report comonly referred to _as the PF3. This report would also have assisted the trial Court to consider and deide the kind of punish1;1net to be imposedo The Law also de,riands that the victim should be adequately compensated for the injuries sustained on'him through the unlawful act of the accused. It was said in MtTU s/o GICHUMU vs.R(1951) 10 EaCA 105 that "No man is to be convicted on a plea which is arabigons. If there·is any ambiguity it is to be taken as plea of not guiltt." In the present case, when the accused was called upon to explain why savere punishment should not be iposed against him, he said, intar alia: 11 ------------I did not intend to harm her it was only an accident------o" From this stateent it means that the accused plealed that he was not unlawfully negliegent when the inflicted the injuries to the complainant. That the act was by accident. 0 In this regard tlte court ought to have entered 11 a plea of not guilty" and . . proceeded to ).Bar evidence froq both sides to determine whether or n·oi; the respondent was not culpably negligent. The accused's itigation that the injury on the 5omplainant was by accident automatizally destroyed what would have been uneqiivocal plea of guilty by the respondent had the fact been- properly add~~ed and explained to the respondent,. Again, it was very wrong on the part of tbe Learned trial Magistrate to proceed to hear the aocuse·d I s nutigation convicting the .accused persono I theefore concede to the DPP 1 s prayer that ttis case should be retried so that he proper procedure is adhered to anc. to ensure that "justice should nt only be done but should very I clearly be sec:n to be done. 11 There is also the question of the sentencJ Mr. Komba rightly said that the offence co2mitted under section 225 of the Jenal Code is a felony and the punishment provided by the same section is 7 ~~ars imprisonoent. It does not provide a less sentence than~ custodial 1.nishwent. Furthmore than •. aforesaid• tie legislature, in 1905 enacted a :tiw in the Criminal Procedure Aot, 1905 barcing the courts frou granting ba:. to accused persons when ·it appears t~ the courts that the act or any .).: the facts consti t-μting the offence with which a person is ch~rged "consisjs of a serious assault or threat of violence to another person---------. '(see section 140 (5)(e) of.the Cr.P.A.; 1905).- The particulars of the charg,:· •J.lleged that the complainant (victim) sustained "multiple bodily injuri.es · and therefore, in my ·tipenion, it is an offence that constitutes serious asi1ult within the meaning of section 148 (5) (e) of the aforesaid cto Froc the cornfil of the record dated 20/5/00, the then Learned Principal Residen ~agistrate at Kivukoni, Mr. Magessa, remanded the accused and refused to grant bail under section 140(5) ( e) of. the Cr.P .A. 1905 ~ Then Miraculously the case was put ·before Mr.Karokol·a., RM, on 30/5/1900, instead of 3/6/os inste.ad of 3/6/00 for hearing as ordered by the PRMc Whether it was properly placed by the Resident Magistrate by way of cause list that is not an issue before we to consider. The irial court ••• / 4..:.

ompletely ignbred tne regorous provisions of sectiJn 140 (5)(e) ., • o:f the Cr ?.4, 1985, let alone section on 225 that provides a maxi4'.uu custodial sentence of 7 years imprisonwenio As if the Leaned trial Resident Magistrate was ignorant of these provisions he went a head to impose a ·sentence of a fine for shs.,5·JJ/- or 4 months imf:tisonr::ient to the accused This was the, ground or essence of the coraplainant by the D.PP •. Going by the observations I h&ve .i,JUt on record above I aLl satisfied that there was r::ieit to call for the record of the Law Court and-open rerisional proceedings in order to satisfy itself. a.s to the correctness; legality and propriety of any decision or order and as to the regularity of.any proceedings therein. Therefore in exerasing my powers for revision extenq.ed to r.ae as a principal Resident Magis·trate with Extended Jurisdiction i~ the High Court ( see section 45 -(1) and (2) of the MC.A, 1904) I her·eby quash the proceedings of the Lower Court and order rehearing of the case so that a p:.-oper plea could be taken as well as impoi3ing the oorrect sentence if the respondent (acc-..rned) is found gui.1 t;y and. properly o:mvicted; The record of the Lower Court to be returned forthwith so that the District Court E"hould comply with this order. The :;).?.i' to be served with a ·"'OPY of this ruling. 24th September, 1990 DAR ES SALAAM. PRM·-· (EX . ·URS) I CERTIFY THAT IT IS, A TRUE COPY FROM ":.'2'.~ ORIGINAL& DAf .~ S Si..LMuvI