Court name
Court of Appeal of Tanzania

Deus Mwesiga vs Republic () [1995] TZCA 13 (23 June 1995);

Law report citations
1995 TLR 192 (TZCA)
Media neutral citation
[1995] TZCA 13

Kisanga JA, delivered the following considered judgment of the court:
Asha Sadiki (PW1) and Deus Mwesiga, the appellant in this appeal, were hospital workers and at the time of the incident they both were I

in a hospital theatre assisting the doctor who was operating on a patient. A dispute A arose between the two leading to a flight in the course of which PW1 sustained injuries including a fractured jaw. The appellant was charged in the district court with the offence of doing grievous harm contrary to s 225 of the Penal Code. He was acquitted but on appeal to the High Court that decision was reversed. He was Bconvicted as charged and sentenced to six months' imprisonment. It is from that decision that this appeal is preferred.
Before us the appellant is represented by Mr Ndibalema, learned advocate while Mr Mbise, senior State attorney appeared for the respondent, Republic. C
Mr Ndibalema filed and argued only two grounds of appeal, namely that the appellant's defence of self-defence was wrongly rejected and that the appellant was punished twice for the same offence. On the first ground, counsel maintained that the appellant in his evidence had stated that during the fight PW1 pulled his D private parts. Learned counsel therefore contended that the appellant was in such circumstances entitled to assault PW1 the way he did in his endeavour to secure release from her grip.
The learned first appellate judge specifically considered that defence, and at E length, but rejected it as being an afterthought. We could not fault him because as he rightly argued, that allegation is not supported by any of the witnesses, numbering four altogether who were present at the theatre and witnessed the fight. What is more, the appellant never complained to these present at the theatre or to anyone whom he met immediately thereafter such as PW2 that PW1 pulled his F private parts. Again the appellant never suggested to PW1 in cross-examination that she pulled his private parts during the fight, and that adds to the view that the appellant's allegation has no truth in it. G
There was evidence that during the fight the appellant's trousers dropped down to the knees and Mr Ndibalema strenuously contended that the trousers were pulled down by PW1 during the fight and further urged us to find that PW1 must have pulled the appellant's private parts in the process. With due respect, however, we H cannot agree. If there was any act of pulling the appellant's private parts, such act would have been seen by the four witnesses who were present, and in particular by PW4 and PW8 who noticed the appellant's trousers dropped to the knees. Indeed the fact of the appellant's trousers dropping down was explained by PW8 on the ground that it was loose. That is to say the trousers was not secure enough I

A on the appellant's waist and therefore it could be expected to slip or drop during the fight.
The learned judge was therefore perfectly justified to reject the appellant's defence of self-defence and we can find no ground to interfere.
B On the second ground Mr Ndibalema submitted that his client was severely reprimanded by his employer for what he did, and so to convict him of doing grievous harm amounts to punishing him twice for the same offence. For this view he referred us to s 21 of the Penal Code which provides:
C    '21. A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law for the same offence.'
D With due respect to the learned counsel, this submission is clearly misconceived. The severe reprimand alleged to have been issued to the appellant is no punishment prescribed either under the Penal Code or under any other law for the offence of doing grievous harm. It may very well be a disciplinary sanction which the appellant's employer was empowered by regulations or standing orders to impose on the appellant. That, however, did not constitute punishment for the E offence of doing grievous harm created under the Penal Code. This ground, therefore, is equally without merit.
In the event, we find the appeal to be without substance and accordingly we dismiss it in its entirety. F

A