Daud Mwakasege vs Republic (DC Criminal Appeal No. 23 of 1998) [1998] TZHC 2309 (9 September 1998)

MWIPOPO, l.! fhGH 1- 1N 'l'HE HIGH COURI' OF TANZJ'JUA · AT MBEYA (DC) CRIMINAL APFEAL NO. 23 OF 1998 (From Original Cr. Cese No. 73/97 of the District of Mbeya) DJ.UD MWIJ{ASEGE. o •••• ; •• .; e. Q. a •••. o.,,. •.,., o,. o .APPELLJ,.NT THE REPUBLIC ...... 0 •• ~ ..... ;. • ................. RESPONDENT J-UDGEM.ENT ,. The appdlant is. one Dn.ucli s/o Mwal-casege of Mhwcla Villc.ge Mbarali District. He was convicted by the Resident Magistrate Court of Mbeya with the offence of causing grevous h.:i.rm to one Mandawa s/o Jileka by cutting him with a panga on the left thumb rui.d sentenced t::i 2 ye:1rs imprisonment. PW1 the complain.:mt Mnndawa s/o Jileka was also advised by the trial magistrate the learned M.s .• Lwabutii (Esq.) (Di'-1) 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 the Dist,.:ict of Mbar:i.li - Mbeya Region. The filing of this case was opened up in the Resident Magistrate Court ,o.f Mbeya and'. the case is registered as Resident Magistrats court Criminal Ce No.· 73/1997. Even the copy of the LTudgement is cited the same. But the trial magistrate is the learned Jvlr. Lwabtiti (IM) who is not a Resident M_agistrate, but a m_ere District ,Court who had no jurisdiction to. hear the case as a Resident Magistrate.· · A case opened up ·in the Resident Magistrates Court civil or criminal can ,only he heard hy a Resident Magistrate and no other.. Although the offence of grie.-ous harm is triable by the Di.strict Court .:md the learned Mr. Lwabutiti (IM) has powers to try an off_ence of grievou..s harm c/s 225 of the 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 High Court as permitted by the law under S191(1)(iii) of the CPA then both all the District Magistrates and the Resident Magistrates would have been· excluded cas.e except for a judge of this court11 a~tomatically .·from hearing the The grave error of the leo.rned Mr.- Lwabutiti (IM) of hearing this case when ~ ~ · he had no jurisdiction . .J1 :':c:· not being a R,s:hlent Magistrate is quite incurable and nulified the entire proceedings. There is yet need to took into the merits of the appeal itself for the ' appellant ·has already beel'\ unlawfully in prison for 6 months since 1,/3/,t for no fault of hiso Any order of retrial against this particular appellant pan only be made if there was merit in the prosecutions cMe. r

• 2 - PW1 Madnma s/o Jileka alleged that he ·lived in Ruh2nga Village but 'r'ent to graze his 200 cattle at Mhwela Vill&ge while in Company of his co-villager Mahone s/o Jileka who had 700 cattle who too went; :to graze his in Mhwela Village. · While the cattle of 1?W1 were drink inf/ water he was surrounded by a group of people out of whom the app9lJ_ant wl}cm he knew before co.me to attack him with a bush.1-mife wlii~"h blows ··he ;unchecl with his stick except for the one blow which cut his thumb. He raised an al:xrm and PW2 Mahome cnme to his aido He gave th€/ reason for .. attack as being' tha,t' the· grop of people die'. not want his cattle to drink the water from the river in Mhwela Village., This story is quite incredible for several re3.Sonsa If the reason for the attack was his cattle which drank the wo.ter from a river in Mhw1:::la' Village wh;y did that group attack PW2 Mahome s/o Jileka who had more cattle numbering 700 rather· hfa 11 smallcr' 1 herd of only 200. cattle 1 PW2 had just taken· his cattle to drink water in the same river just a few minutes earlier on in the snme sequance. Since, complainant .was livine in Luhanga Village why did they come with 900 cattle to villag of Mhwela Village ? I take judicial notice that Mhwela Village. within the Ilongo/Ruiwa Primary Court jurisdiction is very populated area with intensive irrigation farming of p2.tly and othe1' crops in the greQter part of the year where 900 cattle cannot graze easily without treading upon some people's farms. Mhwela Villag0 is not &"1 area for large cattle cattle grazingo Moreover, despite being surrounded by a group of peofe the same'PW1 tcl.ks of nothing else done by the group except what was done by the appellant. If the:group had surrounded him to attack him it is unlikely that they would have stoc:d. by', doing nothing while the appellant above was attacking the victim,. Since the appellant was knovm to PW1 2nd the report was made to Inyala Police on the same afternoon on 17/8/97 why wasn't any action taken againt the appellant been until 21/8/97. PW3 doesnot testify to have / told· who the· culprit was ru,id that he wa.s tal-;:en by the complainant himself up to the appellant for ar-resting him.· It is clear ,the complainant was all out to pick up on any body he knew to bear the cross f-:)r his real attackers. PW2 whom the trial court relied upon for corroborative evidence is not a truthful witness, either for PW1 and PW2 seen ~ ' . to be brothers both sons of Jileka who had a common interest to servee The fact A that the appellant used to go to buy milk to the complainant is a positive connection which would not have made the appellant trfti'.lt the complainant as an enemy for . ntta,kng for merely his •attle I s use of river water., h.t no time \·IaS it mentioned that the cittackers dropped my brushknif e in the areo. of dispute aYJ.d from the story of PW1 the appellant did not drop down the bushknife':hE! used to nttak him,. ' ' The J:i.;p.sh..lcnife broght in <"ourt as exhibit was just pick up from anywhere, even ' ' •' ·"• from the· complainants own home to justify the complainant. for FW3 testified ·to· have ~~n tf.Evert the bushknife on 21/8/97 by the complainant, It should have been giv:en to the polic;e 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

.. 3 witnesses NFhilimon Joel (DW2) and Shc:unbob::;ro (D 1 :J3) were brushed aside by the trial court without justification.. The defence witnesses we;re undependcd witnesses of different tribes who were not related. to the appellant~ Whereas the appellant is a Nyakyusa DW2 Philimon Joel is Safwa by tribe and DW3 Sh.srnbo Vero is a Nyiha by tribe,. For the prosecution it was the opposite with both only witnesses coming from .the same family~ The alibi w2.s brushed aside by the trieJ. court on reason then the distence was not hovm as between the place.of funeral where the appellant was attending and the place of the attack.;. If the place of funeral was so close to the plo.ce of attack as to from the same transaction then how ;, come the complainants took 900 hel.lrd of,cattle to such an inhabited evena If the place of attack was far from the funeral in the bush fit for a huge. herd of cattle of 900 in number to graze how could the 2.ppell.:mt managed to be both at the funeral and the plaile of attak at the sc1me time 1 The trial ·• l. court should have found that the two to:He,•{ f the. two sides were irreconcilable and that the· appelle.nt WM ei. innocent person who was pi,ked up just because he wae un.ldl·own pee.sant from Mhwela Village from which Village t_he complainante believed their attackers came fiom... It is likely that the eoplitip.ts were attacked by farm ownem whom they didn't know after their far had been trodden up by the complainnnts huge herd of cattle. No doubt the t.omplainant Mahoma i'!,/o Tileka was attacked and injured in :Mhwela Village and he got grie- vouely injured in hiR cut off thumb. But; reason for the attack can v t b<:? water and the attackers ca..•t have been the appellant and the appellbnt alone out of the group of people who ambushed h:im. The appelle.nt is innocent. He is acquitted from the conviction c/s 225 of Penal Code o.nd he is released from prison and set free henceforth for gooda The proceedings and judgement and sentence E.L.K., ·· MWIPOFO JUDGE 9/9/1998 is a true and correct copy of the original ! "', (._ ~ .... ··' ---·-/ DIS 'rIIT CT . REG IS TRAH MBEYA