SCOLASTICA PAULO v REPUBLIC 1984 TLR 187 (HC)

SCOLASTICA PAULO v REPUBLIC 1984 TLR 187 (HC)

Court High Court of Tanzania - Arusha

Judge Mushi J

April 29, 1986

H CRIMINAL APPEAL 40 OF 1984

Flynote

Criminal Law - Malicious damage to property -Uprooting of poles - No proof of

damage - Whether the offence committed.

Criminal Practice and Procedure - Sentencing - Concurrent sentences - Two

sentences of fine or I imprisonment in default thereof imposed - The alternative

terms of fine ordered to run concurrently - Whether proper.

1984 TLR p188

MUSHI J

-Headnote

The appellant was charged with two offences. One of them being malicious damage

to property in A that she had uprooted poles planted by another person. No

evidence to show damage to the poles was adduced. Following conviction on both

counts the magistrate sentenced appellant to pay fines or imprisonment for six

months on each count. The alternative sentences were to run concurrently. B

Held: (i) To constitute malicious damage to property there must be evidence of

damage or destruction of the property;

(ii) Where a person is convicted on more than one count and the court is

minded to impose a C sentence of fine or imprisonment in default, then the

alternative sentences of imprisonment cannot be ordered to run concurrently, Penal

Code, (Cap.20) sections 36 and 29(iii)(a).

Case Information

Appeal allowed D

No case referred to.

A. Maghwai for the Republic.

Flynote

Mushi, J.: Scolastica Paulo, the appellant, in this case, was charged with two counts.

In the first E count she was charged with the offence of using abusive language c/s

89 (1) of the Penal Code. And in the second count, she was charged with malicious

damage to property c/s 326 (1) of the F Penal Code. She was convicted on both

counts and sentenced to a fine of shs.1000/= or six months' imprisonment in default

on the first count and shs. 2000/= or six months' imprisonment on the second count.

It was further ordered and I quote:- G

"In the event of failure to pay the alternative sentences of imprisonment to run

concurrently".

Scolastica is appealing against both convictions and sentences imposed on her. H

Before I deal with the appeal, I wish to correct one error which was committed in

sentencing the appellant. As I have quoted above, the trial court ordered that in

default of payment of fines the alternative sentence was to run concurrently. This is

not allowed by law. The proviso to section 36 of the Penal Code reads and I quote: I

1984 TLR p189

MUSHI J

A Provided that it shall not be lawful for a court to direct that a sentence of

imprisonment in default of payment of a fine shall be executed concurrently with a

former sentence under section 29 (iii) (a) or with any part such sentence.

B What this section means, and it has always been the practice in the courts, is that

where a person is convicted on more than one count and the court is minded to

impose a sentence of fine and in default of the payment of the fine an alternative term

of imprisonment is imposed, then such term of C imprisonment in default of the fine

cannot be ordered to run concurrently. The order of the trial court that the sentence

of imprisonment in default of fine should run concurrently is accordingly quashed.

Turning now to the appeal itself, as far as the first count is concerned, I am satisfied

that the appeal D was lodged without any sufficient ground of complainant. The

evidence was overhelming and those who testified were, as the learned trial

magistrate found truthful and believable. There is no question at all that the

appellant uttered the abusive language which was, to say the least, very vulgar. The

substance of the abuse was, more likely than not calculated to cause a breach of the

E peace. The sentence imposed can not be said to be excessive. The appeal on this

count is dismissed in its entirety.

As regards the second count, the evidence is not cogent enough to support the

conviction. The evidence on record merely states that the appellant uprooted poles

worth shs.4,000/=. There is no F information as to what type of poles these were and

in what manner they were uprooted and for what purposes they were erected.

Furthermore and most important there is no evidence as regards in what manner the

said poles were damaged. The mere fact that the appellant may have uprooted G

some poles does not necessarily amount to malicious damage to those poles. Section

326(1) of Penal Code under which the appellant was charged creates an offence only

when some one:

... wilfully and unlawfully destroys or damages any property...

H Unless it is shown that by uprooting a pole that pole was destroyed or damaged,

the act will amount to a criminal offence under the section. For these reasons, the

appeal in the second count is allowed. The conviction is quashed and sentence is set

aside. The fine which was paid is to be refunded to the appellant.

I Appeal allowed.

1984 TLR p190

A