DEUS MWESIGA v REPUBLIC 1995 TLR 192 (CA)

 

DEUS MWESIGA v REPUBLIC 1995 TLR 192 (CA)

Court Court of Appeal - Mbeya

Judge Kisanga JJA, Mfalila JJA and Lubuva JJA

Criminal Appeal 31 of 1994 D

June 23, 1995

(From the conviction of the High Court of Tanzania at Mbeya, Mkude, J)

Flynote

E Criminal Practice and Procedure - Sentencing - Severe reprimand by employer

and conviction by Court for the same wrong - Whether punished twice for the same

offence.

-Headnote

F The appellant was severely reprimanded by his employer for fighting a fellow

employee. The Court on its part convicted the appellant of doing grievious harm. The

Court of Appeal considered whether the appellant was punished twice for the same

offence.

Held: Severe reprimand did not constitute punishment for the offence of doing

grievious harm created under the Penal Code. G

Case Infomation

Appeal dismissed.

No case referred to.

H Ndibalema for the appellant.

Mbise for the respondent.

[zJDz]Judgment

Kisanga JA, delivered the following considered judgment of the court:

Asha Sadiki (PW1) and Deus Mwesiga, the appellant in this appeal, were hospital

workers and at the time of the incident they both were I

1995 TLR p193

KISANGA JA

in a hospital theatre assisting the doctor who was operating on a patient. A dispute A

arose between the two leading to a flight in the course of which PW1 sustained

injuries including a fractured jaw. The appellant was charged in the district court

with the offence of doing grievous harm contrary to s 225 of the Penal Code. He was

acquitted but on appeal to the High Court that decision was reversed. He was B

convicted as charged and sentenced to six months' imprisonment. It is from that

decision that this appeal is preferred.

Before us the appellant is represented by Mr Ndibalema, learned advocate while Mr

Mbise, senior State attorney appeared for the respondent, Republic. C

Mr Ndibalema filed and argued only two grounds of appeal, namely that the

appellant's defence of self-defence was wrongly rejected and that the appellant was

punished twice for the same offence. On the first ground, counsel maintained that the

appellant in his evidence had stated that during the fight PW1 pulled his D private

parts. Learned counsel therefore contended that the appellant was in such

circumstances entitled to assault PW1 the way he did in his endeavour to secure

release from her grip.

The learned first appellate judge specifically considered that defence, and at E

length, but rejected it as being an afterthought. We could not fault him because as he

rightly argued, that allegation is not supported by any of the witnesses, numbering

four altogether who were present at the theatre and witnessed the fight. What is

more, the appellant never complained to these present at the theatre or to anyone

whom he met immediately thereafter such as PW2 that PW1 pulled his F private

parts. Again the appellant never suggested to PW1 in cross-examination that she

pulled his private parts during the fight, and that adds to the view that the appellant's

allegation has no truth in it. G

There was evidence that during the fight the appellant's trousers dropped down to the

knees and Mr Ndibalema strenuously contended that the trousers were pulled down

by PW1 during the fight and further urged us to find that PW1 must have pulled the

appellant's private parts in the process. With due respect, however, we H cannot

agree. If there was any act of pulling the appellant's private parts, such act would have

been seen by the four witnesses who were present, and in particular by PW4 and

PW8 who noticed the appellant's trousers dropped to the knees. Indeed the fact of the

appellant's trousers dropping down was explained by PW8 on the ground that it was

loose. That is to say the trousers was not secure enough I

1995 TLR p194

KISANGA JA

A on the appellant's waist and therefore it could be expected to slip or drop during

the fight.

The learned judge was therefore perfectly justified to reject the appellant's defence of

self-defence and we can find no ground to interfere.

B On the second ground Mr Ndibalema submitted that his client was severely

reprimanded by his employer for what he did, and so to convict him of doing grievous

harm amounts to punishing him twice for the same offence. For this view he referred

us to s 21 of the Penal Code which provides:

C '21. A person shall not be punished twice, either under the provisions of this

Code or under the provisions of any other law for the same offence.'

D With due respect to the learned counsel, this submission is clearly misconceived.

The severe reprimand alleged to have been issued to the appellant is no punishment

prescribed either under the Penal Code or under any other law for the offence of

doing grievous harm. It may very well be a disciplinary sanction which the

appellant's employer was empowered by regulations or standing orders to impose on

the appellant. That, however, did not constitute punishment for the E offence of

doing grievous harm created under the Penal Code. This ground, therefore, is equally

without merit.

In the event, we find the appeal to be without substance and accordingly we dismiss

it in its entirety. F

1995 TLR p195

A