Court name
Court of Appeal of Tanzania

Director of Public Prosecutions vs Abdul Ismail () [1993] TZCA 17 (12 August 1993);

Law report citations
1993 TLR 193 (TZCA)
Media neutral citation
[1993] TZCA 17

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

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

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

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.

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.

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