Daud Mwakasege vs Republic ((DC) Criminal Appeal No. 23 of 1998) [1998] TZHC 2277 (9 September 1998)

/7L7 ;-i • IN THE HIGH COURT OF TANZANIA I AT MBEYA (DC) CRIMINAL APPEAL NO0 23 OF 1998 (From Original Cr. Case No. 73/97 of the District ofMbey) .. • BAUD MWLKASEGE.0000.......0......0.....iPPELLANT 0 VEWS r1,t Dt'- TrnT TC DTQ 1XT'TThTr' .LJ .UL3LJJ.J.U.L'J*UØOO s..0.e0000.o 0000O•oo0oOOS_b2JJL\J .L1_k J. J U D G E M E N T MWIPOPJ, The appellant isne Daudi s/o Mwakasege of Mhwcla Village Mbarali District. He was convicted by the Resident. Magistrate Court of Mheya with the offence of causing grevous harm to one Mandaa s/o Jileka by cutting him with a pañga on the left thumb and sntenced to 2 yars iruprisonment. PW1 the complalnant Mandawa s/o Jileka was also advised by the ti'ial magistrate the learned M.S. Lwabutiti (Fsq.) () to file anOther civil suit for compensation for the bodily injuries suffered. Before the merits of the appeal are dealt with there is an issue of jurisdiction of the trial magistrate to be dealt with. The particulars of offence stated that the offence was committed at Mhwela Village within ti-ic District of Mharali — Mbeya Region.. The filing of this case was opened up in the Resident Nagistrat Court of Mbeya and the case is registered as Resident Magistrates court Criminal Case No.. : 73/1997. Ecien the copy Of the Judgement is cited the same. But the trial magistrate is the learned Mr. Lwabutiti (111) who is not a Resident Magistrate, but a mere District Court hb had no jurisdiction to hear the case as a Resident Magistrate. A case opened up in the Resident Magistrates Court ciil or criminal can only he. heard by a Resident Magistate and no othere Although the offence of . griecous harm is triable by the District Court and the learned Mr. Lwabutiti (U4) has powers to try an offence of grievous.harm /s 225 of th PenaL Code only a Resident Magistrate could hear it because it was filed in that court. Likewise, if this offence had been committed for trial in the HiCh Court as permitted by the law under S19(1)(iii) of the A thn both all the District Magistrates and the Resident Magistrates would have been excluded, automatically fi'oth'. hearing the case except fdr a judge of this court 9 • . The grave error of the leafed Mr. Lwabutiti (fl'4) of hearing this case when • he had no jurisdiction ' 'c:- not being a Busident IIagistrate is quite incurable andnulified the entire proceedings.

• There is yet need to took into the merits of the appeal itself for the &ppllant has already beeit unlawfully in prison for 6 months sin ' e ' ! ~ ,Vtt for
• no fault of his Any order of retrial against this particular appellant can only be.. made if there was merit in the prosecutions. case. -..

p PWI Madama s/a Jileka alleged that'he lived in Ruhenga Village but went to grase his 200 cattle at Mhwela Village while in Company of his co-villager Malione S/a Jileka who had 700 -cattle who too went to graze his in Mhwela Village. While the cattle of PWI were drinking water he was surrounded by a group of people out ôf'wh&'i theappçUant whom he knew before came to attack , him with a bushknife which blows he punched with his stiák except for the one blow which cut hi& thumb. He raised an alarm and PW2 Mahome came to his aid. He gave the reason for attackas' being. tut he groip of people did not want his cattle to drink the water from the river in Mhwela Village. This story is quit iñOtedi'bie for several reasons 1 If the reason for the attack, was his cattle which drank the water from a river in Mhwela Village why did that group attack PW2 Mahome s/a Jileka who had more catt:le..inbering 700 rather his "smaller herdof only, 200 cattle PW2 had just takenhis cattle to drink water in the same river just a few minutes earlier on in the same sequance. Snce, complainant was living in Luhanga Village why did they come with 900 cattle to yllage of Mhwela Village 7 I take judicial notice that Mhwela Village within the Ilongo/Ruiwà Primary Court jurisdiction is-very popilated area with intensive irrigation farming of pnd'iy 'alid other crops in the greater part of the year where 900 cattle cannot graze easily without treading upon some people's farms. Mhwela Village is not an area for large cattle cattle grazing. Moreover, despite being surrounded by a group of people the same PWI talks of nothing else done by the group except what was done by the àppèllast. If the group had surrounded him to attack him it is unlikely that they would have stood by doing nothing while.the appellant above'as attaeking the victim. Since the appellant was known to PWI and the report was made to inyala Police on the same afternoon on 17/8/97 why wasn't any action taken against the appellant

been until 21/8/97. PW3 doesnot testifr to have / told who' the culprit was and that he was taken by the complainant himself up to the appellant f Or arresting him. It i clear the complainant was all out to pick up on any bdy'he knew to bear the cross for his real attackers. P142 whom the trial cout: relied upon for corroborative evidence i not a truthful witness either for PWI and PW2 seen to be brothers both sons of JiI:eka who had e common interest' to serve. The fact that the appellant used to go to.'buy milk to the conplainant is a positive connection which would not have made the appellant troat the complainant as an enemy for attaskirg for merelyhis-sattle's use of river water. At no time was it mentioned that the attackers dropped my bnshknife in the area of dispute and from the story of PW1 the appellant did.not drop down the bushknife he used to attack him. The bushknife broght in court as exhibit was just pick up from anywhere, evn from.'the -complainants own home to jtify the complainant for PW3 testified to have been given the bushknife on 2 1/8/97,, by the complainät It should have been givei to the police on .17/8/98 when the report was first made to the police. The defence of alibi of set up by the appellant and as supported by the 'defence -2.-

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