Weston s/o Kafuko vs Asangalwisye s/o Kafuko and 4 Others (PC High Court Criminal Appeal No 5 of 1998) [1998] TZHC 2345 (11 December 1998)

MOSHI J • .... . , ... -------• IN 'rHE HIGH COURT OF TAi"i/ZANik PCo. EIGH. COURT CRrnmAL APP:B;;i.L NO. 5 OF 1998 '"' (J';'iom Iiungwe District Court Criminal ,\ppeal ifoo 4 of 1998 District Magistrate) :;/ ;'I , . rt/ , T·"" . ... T o: : · ,JESTON i:J C 1.il.Fth~ .. o G o o o o o o o o o o o o o o o Versus K1'J•'UKO) ) f.J)Jl 1 i,SON MTAKAGJ\LI.

MON IIG1 KIBIBIJb ,\NYOSISYE KiJi'UKO ) ) JUDGMEN'l. 1 ·-.• .. .:.. .. ,~ iJ?PBLLANT RJESFONDBNT.S This is a second appealo The criminal proceedings giving rise to this appeal were consequent upon a.dispute among.,clanmembers. over a piece of lando ~ : '1ieston Ka.fuko, the a,1')peiiimt, registered a co.mplaint against his brother t .. nyosisye Kafuk; ( fi;st resp'ondent); before the village C .C .M. Chairman; . Hezron l'-'11a:irrio.li) (Pvi3)·, that the' fifth' respondent had trespassed onto his land. •. 'I'he chairman (P\13 )'' sur,.,n;onec:f the' fifth' respond erit iiih.o, ;.iccording to the appell,a,."lt, . ''i_ : .. : told PW3 that t:be ppllant v,1as hcit 'etiti.tled to the ·land as h. .,;as a bastard. . (mwana wa ha.ram). 'l'b.e: chairman (P'J3,) then sumnioned clan members, among them the re.sp;n:dent, in an attempt at reconciliation.. The fifth respondent, accrd.irig to the appelli:.,nt, repeated the words be had. told the chairman (PW3), i.· and the rest of the·riponderits agreed with the_fifth respondent. The appellant felt insul tecl and prer'erred ,a charge of Using abusive language, .contrary to '· sectin 89(1) (a) of the Penal Cod.e, against the respondents be.fore the primary cotkt of Masolrn.o · In that case; one Living 1(afuko (PW2) supported the allegation of the appellant, but the chai:..·ma.11 (PW3) told the trial court that those words were 1·. . • not the \Wrds said by the fifth respo~1e1.ent before him. The words said., according to PW3, were that the clan did not recogniz3 tn.e appellant as the owner of the land in dispute but one Kalulalu Kafuko. qne of the respondents, continued PW3, was their father who s£-1.id that he had not dished out that land oeOGOCIOODe /2 •.

2 to the appellant. .·Jhen. the appellant closed his side of the case, the trial court unanimously found ·that the respor,dents ha.d no cc,se to answer and acquitted them under section 31 ( 1) of the 1-'rirnary Courts Criminal Procedure Code, Third Schedule to the Magistrates I Courts ,ct 1984. 'l'be reason given by tbe tiial. court for its decision was that it had not been estab;I..is.hed that any abusive words were used. by the respondents ag3.inst the appellant. The appellant felt aggrieved. and preferred his first appeal to tbe district court of Rungwe \1bich was d.isrnissedo Fence this second a.ppeal to this court in which the parties entered appearances before me and said they abided by the contents in t.he memorandum of appeal and in the ,1ritten reply to it. I am satisfied. t::ia.t this second appeal is d.esti tute of merit. I agree courts with both belm~ that no case bad been made out against the respondents sufficiently to require tbem to defend themselves. On the evidence, in particular that of the chairman (P\ri3), it was clear t:6at the words complained of had not been used by the respondents. The chairman (PW3) was an rely. independe:nt witness upon whose word the trial·court was entitled. to i.n essential 1.ngredient of the offence charged had not, therefore, been establishedo I am·satisfied. in the circumstances that the primary court was perfectly entitled to dismiss the charge and acquit the ::.·espondents under section 31 ( 1) of the Primary Courts Crirainal Proced1.1re Code which rea.ds: ;;·31 .. ,( 1) ,\t any stage of the proceedings, t:he court may, if satisfied that the a.ccused person has no case to answer, dismiss the charge o.nd acquit the accusede' In the event, this second appeal fails, and it sta.i7.ds · dismissed. 11 Decernber/"1;9,98:;--.. /.".,I") \J ,.. • f,' . (:. . For J;.pfe1i;nt: ,. £resent. ; I~ ~ - I • • .- - 1) ~~ :, For J'ies'oondents: All present., ·1; ,•· I CElTIFY THJ.T 'l'IlIS IS ,~ THUE COPY OF I BoP. MOSHI JUDGE. r•·•:;a•-·••r.. OI-UGDL,Lo DISTRICT :REGISTR.R.