IN THE COURT OF APPEAL
OF TANZANIA

AT MBEYA

(CORAM:
MROSO,
J. A., NSEKELA, J. A. AND MSOFFE, J. A.)

CRIMINAL
APPEAL NO. 26 OF 2004

BETWEEN

AMANI
NWANGUNULE……..………………..………
APPELLANT

AND

THE
REPUBLIC………………..……………………
RESPONDENT

(Appeal from the
Decision of the High Court of

Tanzania at Mbeya)

(Mackanja,
J.)

dated
the 27^th
day of October, 2003

in

DC Criminal Appeal No. 121 of 2003

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J U D G M E N T O F T H E C O U R T

========================

NSEKELA,
J. A.:

In the District Court of Chunya District, the
appellant Amani Mwangunule was charged with and convicted of the
offence of using abusive language c/s 89 (1) (a) of the Penal Code.
He was sentenced to two years imprisonment. Aggrieved by both
conviction and sentence, the appellant lodged an appeal to the High
Court where it was summarily rejected, hence this appeal to this
Court. Mr. Mwakolo, learned advocate for the appellant, filed a
memorandum of appeal which contained four grounds of appeal including
the undermentioned –

“1. That the learned High Court Judge erred in points of law
when he summarily rejected the appeal by the appellant which was a
breach of the principles of natural justice which denied the
appellant an opportunity to be heard.

4. That the learned High Court Judge erred in law when he summarily
rejected the appeal without taking into consideration the sentence of
2 years imprisonment for the offence of abusive language contrary to
Section 89 (1) (a) of the Penal Code was excessive.”

In arguing the appeal, Mr. Mwakolo abandoned two
grounds of appeal and pursued the above – mentioned. The
learned advocate submitted that the appellate judge (Mackanja, J.) in
invoking Section 364 (1) of the Criminal Procedure Act, 1985, denied
the appellant of the right to be heard. Unfortunately, he did not
elaborate on the applicability of the principle of the right to be
heard in the context of Section 364 (1) of the Criminal Procedure
Act. In addition , Mr. Mwakolo submitted that one of the grounds of
appeal to the High Court was a complaint against the sentence which
was meted out to the appellant. He contended that the appellate
judge appeared to have overlooked that the maximum sentence
prescribed under Section 89 (1) (a) of the Penal Code was six months
imprisonment.

On his part, Mr. Boniface, learned State
Attorney, was of the view that there was no breach of the principles
of natural justice in that the appellant was not denied of his right
to be heard. However, he submitted that the appellate judge wrongly
invoked Section 364 (1) (c). According to him, the District Court
had imposed upon the appellant an unlawful sentence of two years
imprisonment. It was therefore wrong for the appellate judge to
summarily reject the appeal. On another front, Mr. Boniface added
that the appellant had not committed any offence under Section 89 (1)
(a) of the Penal Code since there was no breach of the peace
established.

The key witness for the prosecution was PW1,
Pendo Shomari, the wife of PW2, Msafiri Alani Shomari. The appellant
was their neighbour, and apparently a good neighbour until the
21.2.2003 when the appellant while outside his office and within the
hearing range of PW1 who was passing nearby, uttered the following
words –

“Ninyi,
njoo mkamwone Miss Valentine, wagombanao, Malaya anapita”.

She was offended by these words and informed her
husband, PW2 immediately and then reported the matter to the police.
Pausing here for a moment, PW1 did not give evidence to the effect
that there were other people who heard the appellant’s
outbursts and their reaction to them. The evidence of PW2 did not
add anything of substance save that PW1 narrated to PW2 what the
appellant had said. It was on the strength of this evidence that the
appellant was convicted of the offence of using abusive language.
The essence of the offence is that the words uttered by the appellant
were likely to cause a breach of the peace. As correctly submitted
by Mr. Boniface, learned State Attorney, the evidence of PW1 did not
by any stretch of imagination establish the offence with which the
appellant was convicted. Mackanja, J. in his Order stated thus –

“I
am satisfied, upon perusing the record of the proceedings, that the
conviction is sound and the sentence fair. The appeal, therefore,
raises no sufficient ground of complaint. It is summarily rejected.”

It is an indispensable ingredient of the offence
that the abusive language uttered by the appellant was likely to
cause a breach of the peace. There was no evidence to that effect.
We are not told that there were listeners who heard the abusive
language and hence likely to cause a breach of the peace. PW2 did
not hear those words. They were narrated to him by his wife, PW1.
It is obvious that there was no offence committed by the appellant.
As stated before, the appellant was sentenced to two years
imprisonment. This was clearly an unlawful sentence. With all due
respect to the appellate judge, this, to us, does not indicate that
he had read Section 89 (1) (a) of the Penal Code, let alone the
proceedings so as to reach the conclusion “that the conviction
is sound and the sentence fair”. On the very inadequate
evidence of PW1 and PW2, the appellant did not commit the offence he
was convicted of, and yet for this non – existent offence, an
innocent citizen was given a prison term of two years, which was in
itself, unlawful.

Having reached this conclusion, what are the
options that are open to us? The learned State Attorney was of the
view that we should remit the appeal to the High Court for
determination on its merits. On the face of it, it is an attractive
idea, but on the facts of this case, there has been a miscarriage of
justice. An innocent man has been unlawfully imprisoned! On the
other hand, Mr. Mwakolo rather faintly, suggested that we should
invoke our revisional jurisdiction, although earlier, he had
submitted that the case be remitted to the High Court.

Only recently, this
Court had occasion to consider the applicability of Section 364 (1)
(c) of the Criminal Procedure Act, 1985 in the case of Idd Kondo
v. R., Criminal Appeal No. 46 of 1998 (unreported).
After making a survey of decided cases from India on an
identical provision and decisions of the defunct Court of Appeal for
Eastern Africa including Karioki s/o Gachohi v. R. (1950) 17 EACA
141; Lighton s/o Mundekesye v. R. (1951) EACA 309 and Mulakh Raj
Mahan v. R. (1954) 21 EACA 383, the Court distilled the following
principles which have to be taken into account when considering
summary rejection under Section 364 (1) of the Criminal Procedure
Act, 1985 –

1. Summary dismissal is an exception to the
   general principles of Criminal Law and Criminal Jurisprudence and,
   therefore, the powers have to be exercised sparingly and with great
   circumspection.

2. The Section does not require reasons to be
   given when dismissing an appeal summarily. However, it is highly
   desirable to do so.

3. It is imperative that before invoking the
   powers of summary dismissal a Judge or a Magistrate should read
   thoroughly the record of appeal and the memorandum of appeal and
   should indicate that he/she has done so in the order summarily
   dismissing the appeal.

4. An appeal may only be summarily dismissed if
   the grounds are that the conviction is against the weight of
   evidence or that the sentence is excessive.

5. Where important or complicated questions of
   fact and/or law are involved or where the sentence is severe the
   court should not summarily dismiss an appeal but should hear it.

6. Where there is a ground of appeal which does
   not challenge the weight of evidence or allege that the sentence is
   excessive, the court should not summarily dismiss the appeal but
   should hear it even if that ground appears to have little merit.

We entertain no doubts
in our minds that in this particular appeal, there was a travesty of
justice. If the appellate judge had carefully read the record of the
proceedings as he claims to have done, and also had read Section 89
(1) (a) of the Penal Code, he would have realized that there was a
miscarriage of justice and that the appeal ought to have been
allowed. As we have hopefully amply explained above, the appellant
ought not to have been convicted in the first place.

In the event, in the
exercise of our revisional jurisdiction under Section 4 (2) of the
Appellate Jurisdiction Act, 1979, we allow the appeal, quash the
conviction, set aside the sentence and order his immediate release
unless otherwise lawfully detained for some other case.

DATED at MBEYA this day of
, 2004.

JUSTICE
OF APPEAL

JUSTICE
OF APPEAL

JUSTICE
OF APPEAL