Mdeha v. R; Crim. App. 520-D-70; 28/8/70; Biron, J.

Mdeha v. R; Crim. App. 520-D-70; 28/8/70; Biron, J.

The appellant was convicted on two counts of criminal trespass and using abusive language c/ss 299 sub. Sect. (1) b and 89(1) (a) of the Penal Code respectively, and was sentenced to a fine of Shs. 150/- or 3 months imprisonment in default on the first count and a fine of Shs. 150/- or 6 months imprisonment on the second count. The undisputed facts of the case were as follows: The appellant had a civil suit in a Primary Court and obtained judgment for Shs. 184/60. The complainant is a Primary Court Magistrate but not the one who gave judgment in favour of the appellant. The appellant filed execution proceedings and the salary of the judgment-debtor was attached and a first installment of Shs. 64/- was received by the complainant. When the appellant went to collect the money, the complainant informed him that he had deducted Shs. 22/- from the Shs. 64/- received by him and had given it to one Ramadhani who apparently had been awarded judgment against the appellant in some civil suit. The appellant it seems lost his temper and demanded his full money but the complainant told him that he had every right to make the deduction and that he was acting within his magisterial powers and ordered the appellant to leave his chambers. Appellant had been given Shs. 42/- but also demanded the Shs. 22/- and it was apparent from the evidence that he called the complainant a thief. The complainant had the appellant arrested and kept in custody.

            Held: (1) “The magistrate’s chambers wherein the offence was purportedly committed are not within the ambit of the section. It is sufficient to quote from the head-note to the case of Kombo v. R. Criminal Appeal No. 337 of 1967, reported in the 1967 High Court Digest [1967] H.C.D. 225 wherein the leaned Chief Justice stated; “The criminal trespass convictions cannot stand since the statute clearly applies to private property and not to public offices.” (2) “Even if the section could beheld to apply to the magistrate’s chambers, there is till a question of indent, that is in order to constitute the offence, there must be an intent and I quote “to intimidate and insult or annoy … or with intent to commit any offence. The appellant’s intention was to recover the money lawfully due to him and I may add unlawfully withheld from him by the complainant, who had absolutely no right at all to deduct the Shs. 22/- from the money received by the court for the appellant.” (3) On the second count “It is an indispensable ingredient of the offence, that the abusive language uttered by an accused, in this case the appellant, was likely to cause a breach of the peace. [Citing r. v. Jihn, Crim. Rev. No. 29/1969 reported in 1967 High Court Digest, [1967] H.C.D. 61 “Held: The statute is aimed at preventing incitements to physical violence. Mere annoyance or displeasure among the list is not sufficient.”] Although the magistrate appears to have somewhat inflated views of his position and powers it is hardly likely or even conceivable, that he would have resorted to physical violence and created a breach of the peace, in his own chambers.” (4) On the second count “The term of imprisonment for six months imposed in default of the payment of the fine, is ultra vires, as the maximum term of imprisonment which can be imposed in default of the payment of a fine not exceeding Shs. 400/- is four months – vide section 29 of the Penal Code.” (5) Appeal allowed.