Hamisi Hamza vs Hassani Akonay & Another (PC Criminal Appeal No. 6 of 1999) [2000] TZHC 492 (10 November 2000)

IN THE HIGH COURT OF TANZANIA AT A.HUSHA rpc'\ CRIMINAL APPEAL NOo 6 OF 19.99 ~ -/ _ .. _ """'"·-·----,..-,· "#"-=r·-- ..... --- _.....,. .. ,. ... ..,. .. ,.-,,.. ... - ... ---.. ,...,..,. ,...,, D1S..l:g_l91..Q_QE.'.J~~Bjbl3A..!LQ:tlf!i_IJ _ _μ j1.PP.,:, NO_iJ_.g_9fl§_ .(Qz=hJE.inaj. BMA'.fIPri1ayL2.Q_l2.t_t. Crimin~LCase j'~o o hg,96/..98 ) HAMISI HAMZA 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o a o 0 0 0 APPELLANT

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BASSANI AKONAY ALLY YAHAYA 0 O O 0 0 O 0 0 0 0 0 O D O 0 0 0 0 <> a o RESPONDENTS J U D G M E N T ·•- .... .,,. __ ....,.,.,.R_.-----:- ........ •• ......... ·, • ----MSOFFE J .. - --~~'L~ In the Primary Court at Babati the respondents 1,rere ·. convicted of two·· counts of Criminal trespass and destroying propert.;y c/ss 299(a) and 326(1) respectively 9 of the Penal Code? Cap 16a Each. was then sentenced to pay a fine of 1 Shs o l ?000/=. or tvw months imprisonment in default ih eacl1 counto An Order for compensation of Shsall5 9 000/= to the complainant (appellant herein) was also made against them .. · Aggrieved 9 both appealed to the .District Court at Babatio The District Court did not determine-the appeal on.merito Instead'l it detected some procedural irregularity in the conduct of the case and hence declared the trial a.."ld deci- sion a nullity 7 quashed the conviction and set aside both o o o o/2 l ,

2 the sentences and.the order for compensationo The appellant . is disatisfied and oence this appealo. In its decir 0 iior. -;t,0 D,istrict Court was: of the view that thero 1 ,J::;_3 c,.n irr•2gulari ty in the sense that the assessors were not consulted in determining·the guilt· or ,, otherv1iE:e of the -r0,spondents ~ the sentences and the order for compensationo According to the learned Principal Dist- rict Magistrate this 1·ms an irregula:ri ty that was against the clear and unambiguous provisions of l:io 7C?l of .TJ!.-':'Las.=h..": strates I Courts Act, 1931.:. requirinz; tha.t. any matters before ~~= = --==--~~----- , . ·-=-- ,. the Primary Court be determined by the votes of the majority .. I have gone t\ITough the record of the trial J?rimary Court O I ·. J..11 ac; .. _ -; +.h the lf~arned Principal District Magistrate in this sense:•= The judgment dated 28/8/98 was written y the Priru2cry Court Magistrate but was not_signed by the two lady assessorso Instead the Mar;istrate wrote the judgmerit\1r!t1:i'.°c;h he alone signedo Indeed even the nAdhabu;; (Sentence) and the Order.fo::c compensation were not signed by the assessors., r cl.ppreciate that the Order that both the fine and the. amount of moneys-ordered as compensation was signed by both assessors. but: this ,,ms r:1.eaningless civen the / 7: C,0000 ... -'

. .'. 3 fact that the assessors had not? after all, signed the judgment and the sentence a In the .circumstances~ it could not, therefore" be 3o_f e\y 2:::::e. and concluded that the ,2.LL) __ ~(2)~~ and ±,ll) thereto 7 were fully complied with., The learned Primary Court Magistrate is advised to read GN g/.1?§. in order to appreciate the importance of the point being made hereino Likewise, I will agree with the learned .Principal Di.strict Magistrate that there was rn need for ordering a trial cle novo in viev1 of the fact that the respondents had serveC:. a substantiqJ. neriod. oi their prison sentencesc ::J'or the above reasons 9 there T.•!i::..l be nothing to fault the appellate District Court., The appeal is dismissedo ' . · .. . .. .. . ...... . :-:.:;: ,· . .. Jo H .. MS022E JUDGE 10/li/2000 Delivered this 10th day of November, 2000 in the 1')rese:i:1ce of the appellanto Jo Ho MSOFFJE JUDGE 10/11/2000