DIRECTOR OF PUBLIC PROSECUTIONS v ABDUL ISMAIL 1993 TLR 193 (CA)

DIRECTOR OF PUBLIC PROSECUTIONS v ABDUL ISMAIL 1993 TLR 193 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 73 OF 1993 B

12 August, 1993

(From the revision of the High Court of Tanzania at Mbeya, Mchome, J.) C

Flynote

Criminal Law - Threatening violence - Whether threatening violence includes threat

to kill - s 89(2)(a) of the Penal Code.

Criminal Practice and Procedure - Criminal Revision - Whether Judge can make a

revision after consultations D with the relatives of a convict who had an advocate.

Criminal Practice and Procedure - Criminal Revision - Notification to the DPP -

Whether the High Court should hear the parties on revision - S 374 of the Criminal

Procedure Act, 1985. E

-Headnote

The respondent was convicted by the District Court, of threatening violence and

sentenced to four months imprisonment. Immediately thereafter, his advocate gave

notice of appeal and applied for a copy of proceedings and judgment. The same day,

relatives of the respondent complained to the Judge about the case. The Judge sat in

revision on the following day, which was a Saturday, and F quashed the conviction

and set aside the sentence. The Director of Public Prosecutions appealed.

Held: (i) Section 89(2)(a) of the Penal Code includes the ingredient of a threat to

kill;

(ii) Where a party has an advocate, a Judge should entertain complaints

through Counsel and not through the party's relatives; G

(iii) In terms of s 374 of the Criminal Procedure Act, the judge is not

obliged to hear the parties on revision, but the practice in the High Court has been to

notify the Director of Public Prosecutions; the need to adhere as far as possible to that

practice is emphasized.

Case Information

Appeal allowed. H

No case referred to.

Mrs. Makuru, for the appellant.

[zJDz]Judgment

Kisanga, J.A., read the following considered judgment of the court: I

1993 TLR p194

KISANGA JA

A This is an appeal by the Director of Public Prosecution (DPP) against a revision

order of the High Court (Mchome J).

The respondent was convicted by the District Court of threatening violence contrary

to s 89(2)(a) of the Penal Code and sentenced to 4 months' imprisonment.

Immediately after his conviction and B sentence, Mr Kayange, his advocate, gave

notice of appeal and applied for copy of proceedings and judgment, and in response

thereto the Court ordered:

C `Proceedings and judgment to be typed and supplied to Mr Kayange, Counsel

for accused immediately.'

Sitting in revision on the following day which was a Saturday, the learned Judge

quashed the conviction and set aside the sentence.

The learned Judge set out the background to, and the justification for the action he

took. He said that on Friday the respondent was being threatened that he would be

imprisoned without an option for a fine. Whereupon the Judge advised him to wait

for the judgment which was due for delivery that D same Friday, and should the

threat materialize then he would appeal or apply for revisions. In the afternoon of

that same Friday the respondent's relatives complained to the Judge that the

respondent E had in fact been sentenced to four months' imprisonment without an

option of a fine. As there would be no Judge at the station for more than a week

starting on Sunday, the Judge said he had to call up the file for inspection that

Saturday. His inspection revealed gross miscarriage of justice, a situation F which he

described as follows:

`The whole exercise in this case shows a travesty of justice and I find that the

accused will suffer unnecessarily if this case waits for the normal appeal processes.'

G According to the learned Judge the miscarriage of justice found consisted of the

charge being grossly defective resulting in the evidence not disclosing the offence

charged. It also consisted of imposing a prison sentence without a fine option on the

respondent, an old man aged about sixty H years and a first offender on the pretext

that he was wealthy.

The DPP filed four grounds of appeal which were argued before us by Mrs Makuru,

learned Senior State Attorney. The respondent appeared and resisted the appeal in

person. The first ground of appeal in effect criticises the learned Judge for acting on

non-existent provision or the law when he I quashed the conviction entered by

1993 TLR p195

KISANGA JA

the District Court. This criticism is wholly justified. The offence of threatening

violence, as it currently A stands, is created under s 89(2)(a) of the Penal Code a was

amended by Act 14 of 1980. That section provides:

`Any person who:

with intent to intimidate or annoy any person, threatens to injure, assault,

shoot at or kill any person or to burn, B destroy or damage any property . . .'

The information before the District Court charged the respondent with threatening to

kill Mr Mbise, State Attorney and the Trial Magistrate in his judgment correctly

reproduced the law as set out above C when he was considering whether or not the

charge had been proved.

In quashing the conviction, however, the learned Judge, for reasons which are not at

all apparent D relied on the version of s 89(2)(a) of the Penal Code which was

amended in 1980 and which then did contain as an ingredient the threat to kill. We

say the Judge did so for reasons which are not apparent because the amendment

which was effected over twelve years ago is now contained in the copies of the Penal

Code which are currently in use and which the learned Judge should be using. Not

only that. The current version of the law was set out in the very judgment which the

learned E Judge was revising, but he did not refer to that version to say why the

Magistrate was wrong in applying it and why he (the judge) was justified to apply the

one he did. Be that as it may, the net result is, and we so find, that the learned Judge

quashed the respondent's conviction on a patently F wrong ground that s 89(2)(a) of

the Penal Code under which the respondent was charged did not include the

ingredient of a threat to kill.

In the second ground the DPP complains that the learned Judge erred in holding that

the particulars G of the offence did not disclose the offence charged. This is already

covered by what has been said above. For, had the learned Judge referred to, and

applied the current version of s 89(2)(a) of the Penal Code which has as an ingredient

the threat to kill, he would have found that the particulars did disclose the offence

when they charged the respondent with the threat to kill the State Attorney. H

Ground three criticises the learned Judge for making a finding that Mr Mbise had

abdicated his duties as a State Attorney when he advised a certain Mr Mohamed

Hussein, a private individual, to look for I an advocate to assist him. This ground

would appear to be

1993 TLR p196

KISANGA JA

A relevant to consideration of the soundness or otherwise of the respondent's

conviction. But bearing in mind the course which we propose to take in the matter,

we find it appropriate to say nothing about it.

The fourth ground says that:

B `The learned High Court Judge erred when he proceeded to write revisional

order after consultations with the relatives of a convict, the respondent, after office

hours, when there was a notice of appeal by the Advocate for the respondent.'

C This complaint is not without substance. Since the respondent was represented by

Council, the learned Judge should have entertained the complaint through the

respondent's Counsel and not through the respondent's relatives, unless of course, it

can be said that the learned Judge did not D know that the respondent was

represented at the trial.

On receiving the case file from the Trial Court the learned Judge no doubt became

aware that the respondent had Counsel who had in fact acted very promptly, after the

conviction was entered, by giving notice of appeal and applying for copy of the

record. Nonetheless, the learned Judge brushed E aside the role of Counsel and

proceeded the way he did, and on a Saturday which is a non-working day, as if to say

that he felt he could champion the respondent's rights better than the retained

Counsel. We think that such display of overzealousness may lead to undesirable

consequences. Certainly it does not make for smooth administration of justice. At its

worst it might provide the basis F for unfounded allegations, and we think it should

not be encouraged.

And finally, the learned Judge did not give notice to the DPP if he wished to be heard

on the proposed G revision. Admittedly, in terms of s 374 of the Criminal Procedure

Act the judge, in a matter like this one, is not obliged to hear the parties on revision;

it is left to his own discretion. But the practice in the High Court has been to notify

the DPP if he wishes to be heard on the proposed revision. Yet in this case no

explanation was given, and none is apparent, for departing from that practice. This

practice H serves a number of practical purposes. To mention only one example. It

affords the Court the assistance of Counsel. In the instant case, for instance, if the

learned Judge had availed himself of the assistance of Counsel, we feel certain that the

blunder or error which was committed would easily have been avoided. We would

accordingly emphasize the need to adhere as far as possible to I that practice.

1993 TLR p197

In conclusion, we are satisfied that the learned Judge in dealing with this revision

failed to apply the A relevant provisions of the law under which the respondent was

charged, with the result that he wrongly quashed the respondent's conviction. We are

equally satisfied that in so failing to apply the relevant provisions of the law, he

cannot be said to have dealt with the merits or demerits of the respondent's

conviction. Consequently we set aside the High Court order in revision and restore

the B judgment of the District Court, with a direction that any party who was

aggrieved by that judgment is at liberty to take the necessary steps as he deems fit.

1993 TLR p197

D