Daud Mwakasege vs Republic (DC Criminal Appeal No. 23 of 1998) [1998] TZHC 2307 (9 September 1998)

Y-1 cor- j IN THE HIGH COURP OF TANZANIA AT MBEYA (Dc) CRIMINAL APPEAL NO.0 23 OF 1998 (Frem Original Cr. CaseNo, 73/97 of the.District of Mbeya) DAUD MWLKAEGE. o*O 0 a e a Go • 0 a 0. oo .I4.PPELLfNT VE RI rTU DLTTtTTf LL1. .LtLLtLJJJJ..j_''a.0,o,... 0ê0000 RESPO ND E NT LJ J U D G E M E N T The appllnt is one Daudi s/o Mwakasege of Mhwela Village Mbarali District.. He was cohvited by. the Resident Magistrate Court Of Mheya with the offence of causing gre v ous harm to one Mandawa s/o Jileka by cutting him with a psnga on the left thumb and sentenced to 2 years imprisonment. PW1 the complainant Mandawa s/o Jileka was also advised by the trial magistrate the learned M.S, Lwabutiti (Esq.) (4) to file another civil suit for compensation for the bodily ±njurie suffered, .. . Before the merits of the appeal are dealt with there is an issue of jurisdiction of the trial magistrate to he dealt with. The particulars of offence stated that the offence was committed at Mhwela Village ithin the Dist-ict of Mbarali — Mbeya Region, T h e filing of this case was opened up in the Resident, Magistrate Cburt of Mbeya andthC case is registered as Resident Magistrates court Criminal Ca se No. 73/1997. Eventhe copy of the Judgement is cited the sane. But the trial maiâtate is the learned Mr. Lwabutiti (ni) who is not a Resident Mgistrate, but a nere.District Court who had no jurisdiction.to hear the case as a Resident Magistrate. i case opened up in the Resident Magistrates Court civil or criminal can only he heard by a Resident liagistrate and no other. Although the offence of brierous harm is triable by the District Court and the learned Mr, Lwabutitj. <fli) has poes to try an offence of grievous harm c/s 225 of the Penal Code only a Resident Magistrate could hear it because it was files in that court. Likewise, if this: offence had been committed fo' trial in theHih Court as permitted by the law under S,19(i)(iii) of the CPA then both all Realdent Magistrates would have been excluded case ecept for a judge of this court. The grave error of the learned Mr. Lwabutiti he had no jurisdiction 'c:' not being a Reside and- nulifidd the entire proceedings. the District Magistrates and. the automatically from hearing the (111) of hearing this cas,e when t Mgistrate is quite incii±able There is yet need.to took into the merits of the appeal itself for the I~p p has a'Lready beei unlawfully in prison for 6 months since 93/ for no fault of his. Any order of retrial against this particular appellant Span only he made if there was merit in the proecutions caze.

-2-. k PW1 Madama s/o Jileka alleged that he lived in Ruhanga Village but went to grase his 200 cattle at Mhwela Village while in Company of his co-villager Mahone s/o Jileka who had 700 cattle who too went to graze his in Mhwela Village 0 While the cattle of PWI were drinking water he was surrounded by a group of people out of whom the appel] ant whcm he khew ,before came to attack him with a busbknife which blows he punched with his stick except for the one blow which cut his thumb. He raised an alarm and PW2. Mahome came to his aid. He gave the reason for attack a8 being that the group of people did not want his cattle to drink the water from 'iierinMhwela.Viflage. This story is quite incredible for several reasons 0 If the reason for the attack was his cattle which ch'ank: the. water from a river in Mhwela Village why did that group attack PW2 Mahome s/o Jileka who had. more dattle iinmbering 700 rather his "smaller herd of only , 200 cattle ' PW2 had just takenhis cattle to drink water in the same river just a f rinutes earlier on in the same sequance. Since, complainant was living in Luhanga Village why did they come with 900 cattle to village of Mhwela Village 7 I take judicial notice that Mhwelà Village within the Ilongo/Puiwa Primary Court jurisdiction is very populated area with intensive irrigation farmin.g of paddy and other crops in the greater prtof the year where 900 cattle cannot graze easily without treading upon some people's faiis. Mhwela Village is not an area for large cattle cattle grazing 0 Moreover, despite being surrounded by a group of people the same PW1 talks 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 victim0 Since the;:ppellant was known to PWI and the report was made to InyalaPolice on the same afternoon on 17/8/97 why wasn't any action taken against theappellant been until 21/8/97. PW3 doesnot testify to have / told who the culprit was and that he was taken by the complainant himself up to the appellant for ariesting him. It is clear the complainant was all, out to pick up. on any body he knew to bear the cross for his real attackers. P112 whom the trial court relied upon for corroborative evidence is not a truthful witness either for ?W1 andPW2 seen to be brothers both sons of Jileka who had a common interest to srve. The fact that the. appellant used to go to buy milk to the complainant is a poitie connection which would not have made the appellant trt the complainant as an enemy for atta.ing for merely his •attle's use of river tater, At no time was it m±ioned that the attackers dropped mr bnishknife in the area of dispute and from the story of PW1 the appellant did not drop ddwn the bushknifc he used to attack' him, The bushknife broght . in rourt as exhibit was just pick up. from anywhere, ëvCn from the: complainants own home to justify the complai,ant for FW3 testified to have been given the bushknife on 21/8/97 by the complainant, It should have been gven to the police on 17/8/98 when the report was firs made to the police. Ti% de4enc.e of alibi of set up by the appellant and as supported by the defnce 11

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