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Samson Msiba v. R. Crim. App. 135-D-70; 23/4/70; Mustafa, J.



Samson Msiba v. R. Crim. App. 135-D-70; 23/4/70; Mustafa, J.

Appellant was convicted of threatening violence contrary to section 89(2) (a), common assault contrary to section 240, and using abusive language in a manner likely to cause a breach of the peace contrary to section 89(1) (a), of the Penal Code. He was sentenced on the threat to violence count to nine months’ imprisonment, on the assault count to a fine of Shs. 50/- or one month’s imprisonment, and on the abusive language count to a fine of Shs. 50/- or one month’s imprisonment. Appellant at the material time was the officer in charge of Sumbawanga Police Station and an Assistant Superintendent of Police. He was alleged at about 8 p.m. at a bar at Sumbawanga to have pointed a pistol at an administrative officer from Dar es Salaam, threatening to shoot him. Appellant was also alleged to have kicked the complainant with his foot and to have obscenely abused him.

            Held: (1) “The first count reads:- “Statement of offence section and law:- Threatening to violence, contrary to section 89 (2) (a) of the Penal Code Cap 16 of the Laws. Particulars of offence:- That Samson E. Musiba charged on 28th August 1968 at about 20.00 hours at Muungano Bar, Mazwi Minor Settlement, in Sumbawanga District, Mbeya Region, Tanzania Republic, with intent to intimidate or annoy one John s/o Malombola, did threaten to shoot the said John s/o Malombola by pointing a pistol at him”.

The evidence adduced, which was accepted by the trial magistrate, would support the particulars of offence as alleged …. However, section 89(2)(a) with which appellant was charged on this count in the Penal Code reads as follows:- “Any person who with intent to intimidate or annoy any person threatens to burn, break or injure any premises …..” it is clear therefore that the particulars of offence do not comply with what is stated in the Penal Code. learned State Attorney has argued that this error is curable under section 346 of the Criminal Procedure Code because there could have been an error in the quoting of the section, and that in fact it was an offence contrary to section 89(2) (b), which reads:- “Any person who with intent to alarm any person discharges a fire-arm or commits any other breach of the peace ….” Learned State Attorney states that the fact that appellant had pointed an instrument which looked like a pistol at complainant caused fear in the mind of complainant and also in the minds of the other witnesses who were nearby, and could therefore be an act which would be covered by the words “or commits any other breach of the peace.” The appellant in this count was charged:- “with intent to intimidate or annoy one John s/o Malombola did threaten to shoot the said John s/o Malombola by pointing a pistol at him.” “There was no averment or evidence that he discharged a firearm or committed any “breach of the peace.” I would agree with learned State Attorney if the particulars of the offence had accurately set out what appellant was alleged to have done. The wrong quoting of a section is curable, but here appellant was charged with something which is completely different from the provisions of the section in the Penal Code. In my view this is not curable under section 346 of the Criminal Procedure Code, and I think the appellant’s appeal on this count should be allowed.” (2) “As regards the third count of using abusive language, it was conceded by learned State Attorney that the conviction cannot stand. The maximum sentence for such an offence is six months’ imprisonment and the provisions of section 214 of the Criminal Procedure Code lay down that no offence the maximum punishment for which does not exceed imprisonment for six months and/or a fine of one thousand shillings shall be triable by a subordinate court unless the charge relating to it is laid within twelve months of the time when the matter of such charge or complaint arose. This offence was alleged to have taken place on the 28th of August 1968 and the complaint was not made until the 1st of November 1969, after a period of more than twelve months. The appellant’s appeal on this count should also succeed.” (3) “As regards the second count of common assault, there is sufficient credible evidence to show that appellant kicked the complainant with his foot while in a bar at the time he was alleged to have been pointing an instrument like a pistol at complainant ….. However, learned advocate for the appellant has argued strongly that appellant was severely prejudiced by not being granted an adjournment for him to brief counsel. Appellant was summoned to appear in court at Sumbawanga by summons dispatched from Sumbawanga on the 3rd of November 1969. At that time appellant had left Sumbawanga and was posted at Kilimanjaro. There is no evidence as to when the summons was served on appellant. The case did not commence on the 6th of January 1970 as originally arranged but was first mentioned before the court on 13th January, when appellant was absent. However, by the 14th of January he was present and when charged with the three counts pleaded not guilty to all three of them. Appellant then said he wanted an adjournment. …. The magistrate held that since the summons was dispatched at Sumbawanga on the 3rd of November 1969 the appellant must have been served with it some tie in 1969, and as he had a copy of the charge.

He must have known all the particulars, and had plenty of time if he had wanted to engage an advocate. He also said witnesses had come form Dar es Salaam at great expense and that since appellant was from Kilimanjaro region an adjournment would also occasion the appellant further expense, and he therefore refused the application for ran adjournment an proceeded with the case, intimating at the same time that the court would look after the interests of the appellant; and the case then proceeded. At the end of the prosecution case appellant again made an application for an adjournment in order to employ the services of an advocate. The trial magistrate again ruled, for the reasons he said he had given earlier, that the case had now reached its end and he saw no reason why it should be adjourned at that stage for appellant to employ an advocate …. Learned counsel for the appellant states that appellant had been deprived of his right to be represented by counsel. He said the reasons given by the trial magistrate for refusing an adjournment were insufficient and unreasonable. He referred me to two case, Jafferali Abdulla Haji v. King, 1 T.L.R. 299 at page 300, and Magema and another v. Republic, (1967) E.A. 676. He says the criterion is whether a refusal by the trial magistrate was unreasonable and caused the appellant injustice or prejudice. He says Sumbawanga is a very remote area and no resident counsel lived there at the material time. He said even if the trial magistrate was right to have refused an adjournment at the beginning of the trial he was certainly wrong to have refused an adjournment after the close of the prosecution case because the reasons he gave for the first refusal would no longer have applied. The trial magistrate did consider the reasons advanced by the appellant for an adjournment, but he was of the view the appellant had plenty of time to have made up his mind whether he wanted to engage counsel before he appeared. It is not an unreasonable assumption on the part of the trial magistrate. Appellant was officer in charge of the police station at Sumbawanga and a senior police officer and would have known the court procedure. The magistrate took into consideration the expenses and inconvenience of witnesses being called to Sumbawang from Dar es Salaam, a factor which he could reasonably take into consideration, and then he exercised his discretion in refusing the adjournment. I my self would perhaps have come to a different conclusion and granted the adjournment in the circumstances existing at that time. However, as regards the second count of common assault, there were no questions of law or complicated facts involved. It was a straight-forward allegation of assault …. There is very clear evidence which has not been seriously challenged that appellant did kick the complainant, and whether there was an advocate or not would not have made any difference so far as this particular count is concerned. Bearing in mind that appellant is a senior police officer and not a person who is unaware of court procedure and uneducated or illiterate, I think although the trial magistrate refused an adjournment when he perhaps should have allowed it, no prejudice or miscarriage of justice has been occasioned by his refusal in this instance, at any rate as far as this count is concerned”. (4) “In the result the appellant’s appeal against his conviction on the first count of threatening violence and on the third count of using abusive language is allowed, the convictions on these two counts are quashed and the sentences thereon set aside. The appellant’s appeal against conviction on the second count of common assault is hereby dismissed”.

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