John Mapunda vs Republic ((PC) Criminal Appeal No. 7 of 1993) [2000] TZHC 630 (10 October 2000)

"T ..... ' '· "" ··---~~ ) / . .~ # :"' • .. ,. ' -{ .. '• ~.: ~ . : • • , - (PC) CRL'1INAL .tU>PEAL NO. 7 OF 1993 ♦ ORIGINJI.L CRIMIHJ.J, .APPEAL C.iiSE N0.27/1993 ; OF D/COURT MBING,i ORIGIN.AL NBINGA '"NJINI PR/COURT CRIMINJ:.L GASE NO. 28 OF 1993 BEFORE: EoJ. MK.ASD\10NGWf.. - ESQ. D/AGISTHATE JOHN i"'il'i.PUNDii. ··•·9··••0••··· ;U'J?ELLANT Versus: THE REPUBLIC ••••••o•••••••• RESPONDENT When this appeal was called for admission, B.A. Samatta, Principal Judge, as he then was, made the following adl11ission note:- aThe appeal is admitted to hearing, to consider, among other things, the following points:- l. The appellant was convicted by the primary court of obtaining sacks of maize by false pretences, • 2. 3 • but the learned district ·'niagistrate! s judgement taJks of theft of a radio. ""!' .. The alleged. false pretence was not stat:d -:in the

• t. 'I particulars of offen6e. ., Did ,the omission preju- dice the appellant? « Was th~ examination of PW.las to the witness's competence properly conducted J ., The.record shows that the appeal has had a ohequered hist.or,-. When the appeal was called for hearing on· 27th J1.pril, 1995 1 my brother Mkwawa, J. 1 heard Mi-. Waryuba, t~en learned State Attorney, submitting'-----._ hat. tl:].e records the.t he I1ad were in respect of s. _304 of the Penal.Code 'bu the judgment that was filed relatect·to an entirely different offence.
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• • ~ implied tho o,cistenec of several cases involving the same man as the convicted criminal. Bo it was directed that the District _Registrar do sort out the _mess. This had not been done when the case was called for hearing · on 11th November, 1996 and on 25th Iovember, 1996. It seems, however, that the matter has now been sorted ou·. Even with the re-arrangement of the records, the appeal is not without problems .. Mr. Manyand.a 1 learned ~tate ~ttorney has addreS$Od the Court on two serious irregularities •. Firstly,, he contends that the first appellate court convicted the appellant and sentenced him in respect of an offence with which he was not charged. In this tonnection, it is learned State Attorney',s submission that in the Mbinga Primary Court original Criminal Case No. 32/93 the appellant was charged with cheating contrary to section _304 of the Penal Code for which he was convicted and sentenced to serve 12 months in jail. Having been a,sgrieved by this decision he preferred his appeal to tAe District Court of Mbinga.

• . The Mbinga District Court in its appellat~ jurisdiction convicted the appellant sentenced him of an entirely different crime 1 that house brea-· king c/s 294 (1) end stealing c/s 265 of the :Penal Code. So it is ¥II'. yanda's submission that since there was no typ:L11g error in this irregula- rity, the District Court misdirected itself \·then it created a new charge not e.ppealed against and convicted and sentenced the a.ppellt and that this irreguJ.arity, no doubt, prejudiced the Appellant, Obviously since the proceedings in the Primary Court do not show that the appellant was charged with. house breaking c/s 294 (1) and stealing c/s 265 both of the Penal Code, then the District Court's conviction and sentence are untenable. Secondly,and as the records of the Mbinga Primary Court Original Criminal Case No. 32 of 1993,shows no constU-tation was made by the trial -magistrate with his assessors after the closure o·f the prosecution and defence cases as required by virtue of Hule 3 of '11he M<1gistrate•s Courts (;Primary Courts)· . ' (Judgment of Court) Rules, 1987. 3

• 111 ~ io.JJ: o that Rule the magistrate must consult with his asaesso.rs. with a view to reaching a unanimous decision. ~ccording to learned counsel• the omission will be fatal to the proceedings, citing the case of Masweda ,denga V ill (1992) TLR 140. It is by reason of the above grounds that the Republic has declined to support the convictions. So the issue, really, is double pronged, that is, whether the proceedings of the tritl court are invalid and whether the_.. appellate District Court erred as alleged. Now the record of appeal originates from the Mbinga. Urban Primary Court Criminal Case No. 28 of 1993 where one John Mapunda stood trial on the two cognate offencesof house breaking c/s 294 (1) and stealing c/s 265 of the Penal Code. The particulars of offence for the second count stated that upon breaking into the complainant's house the accused stole therefrom a radio, two pairs of khanga and one piece of Ki tenge. It seems that the apparent confusion as observed in the admission note was brought about through mixing p the original relord of the trial court with another record of that cci>urt involving one John Elias Mapund& which was instituted by one Stephania d/o Ndimbo in Criminal Case No. 32 of 1993. The complainant in the former case, to which this appeal relates, . is one Catherina d/o Komba. In the latter case the accused was charged, and was convicted of cheating contrary to section 304 of the Penal Code. It is alleged in the particulars of offence that the accused did, on 29th September, 1992, at about 6000 p.m. at Masasi Village in Mbinga District, by false pretences obtain fourteen bags of maize from the comp inant. According to the admission note the appeal relates to the latter crimjnaJ ce. The petition of appeal before the District Court supports this view. Of ~ourse the confusion was compounded by the fact that the copy of judgment from the latter case was used for appeal purposes while the record of proceedings and the _original file relate to the latter case. This takes care of the first point in the admission note in the s0ncc that although tbe present record shows that the basis of the appeal is the Mbinca Urban Court Cr. Case No. 28 of 1993, the real matter is Cr. Case No. 32 of 1993. 4

" • The second point relates to whether as framed the charge was not ,defe-0tive. The law under which this offence is charged that is section 304 of the Penal Code provides thus:- 17 i'irly person who by mearis of ru.1y fraudulent tricli; or device obtains from ro1y other person anything c.::i.pablc of being stolen or induces any other person to deliver to any person any- thing capable of being stolen or to pay or .deliver to f)l1Y person any money or goods or any greater sum of money or greater quantity of goads than he would have paid or delivered but for such trick or <le:vicc, is guilt;y •••• a .il.s by law provided, in order to susta:iJ.1 a charge under the above provisions .~ t. mu'.3.t bc __ pleaded in _th~ particulars of offnce ._that 1 :Y: PE:ron ~ _?ttair:ed froin ancth:r anything capable of being stolen or that he has,; •c induced __ any other person to deliyisr to rJJ.1Y other person a greater sum or , 4 .. a greater quanity · of goods than he would have .otherwise done, • 1 ••• by means of a.'Yly fraudulent trick or device.·••"

• ' , . There is nohip.g in the particulars of offence which shows that the accused obtained the various i tel!ls b?. <¥1Y fraudulent trick pr device. Indeed, no particular devj.ce OI'. trick is mentioned there. i~ chare o this kind embarrasses the acused for it is defective in a material. particular. I would allow the appeal on.this account. ... '-'... ' ~ ... .... .. Now, Mr Manyanda,. learned State l.ttorney, argues· that the proceedings of the trial court are a nullity ·because the trial court did not consult with the assessors. Well, the o'riginaJ. record shows that the assessors pai-ticipated fully,and concluded tp.eir pru:ticipation by appending their signatures -to the JUcignJ.ent-·and below-.the· sentenc-0. · ,- This is evidence .of consultation~. The. irre~larity has not 1 · therefore, been made out. ' \
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• 5 Upon the foregoing rc_asonss \·:hich arc different from those of the learned State Attorney, the ap1J.eal is allo,red •. Conviction is quashed. Sentence and order for comp0nsation are set aside. 10/lQ/2000 For Jppellant: lbsent (at his own option) Mr. Manyanda, State Jttorney: For H0public. I certify that this is a true copy of t~~ or .. ·. ' +>·(·-· .. S ,.A·•. Liia, DISTRICT REGISTRA.R9.