Daud s/o Mwakasege vs Republic (DC Criminal Appeal No. 23 of 1998) [1998] TZHC 2324 (9 September 1998)

fh vlr/ ~ ~ -~ IN 1 .i:HE HIGH COURr Of TANZ1'.NIA J.T MBEYA (DC) CRIMINAL APFEA'L NO. 23 OF 1998· . (From Original Cr. Case No. 73/97 of: the·Dis'trict · ·of Mbeya) . DAUD M-JJJ(ASEGE. o • •••••• ;; e • o ••• ••. •·• •••••• o .APPELLANT VER.::s . . THE ·REPUBLIC •••••• ·• ~ ••••••• ., •• ., •••••••• o ., • RESF'ONDENT JUD.GEM.ENT MJJIPOPO, J- •. The· app0llcmt is one Dn.udi s/o· Mwal<.asege of Mhwcla Villc..ge lbarali District~. 1 · He was convicted b_y the Resident Magistrate Court of Mbeya with the. offence of causing grevous ho.rm to one Mandawa s/o J·j_lk0, by cuting him with a panga on the left thumb and sentenced to 2 years· imprisonment. PW1 the complinant Mandawa s/o Jileka ·was also advised by the trial magistrate the learned M •. s. L.'abutiti {Esq.) (IlJJ) to file another civil suit for compensation_ for the 'lfodp.y injuries suffered. Before the merits. o.f the appeal are dealt with :there is an issue of jurisdiction of the trial magistrate to be dealt with. The particulars of offnce stated that '.the offence was committed at Mhwela Village within the Dist:r-ict of Mbarali - Mbeya ·Region. The filing of this case was opened up i..D the 'Resident Magistrate ·Court of Mbeya and the case is registered as Resident Magistrates court Criminal Case No.· T:;/1997. Even the copy of the J1:1dgeinent is .cited the same.. But the trial magfstrat~ is the learned Mr. Lwabμtiti (IM) who fa not a Rei:,.ident "Magistrate, but a mere District Court who had no jurisdiction to har the case as a Resident Magistrate.. A c·D.Be opened. up in the Resident Magistrates Court civil or criminal can only he heard hy a Resident 'Magistrate nnd no other. Although the offence· of , ,. . grie·.-ous- arm ·is, triable by the District Court .:md the learned Mr. Lwabutiti (Il'1) has poi,iers to try. an offence of grievou.s harm c/s. 225 of the Penal Code on;Y a • Re_$•ident :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 s.191(1)(iii) of the CPA.then both all the District Magistrates an~ the Resident Magistrates would have bE?en. excluded case except.for a judge ot this courtQ automatically from earing the The grave error of the learned Mr. Lwabutiti (Il'1) of hearing this case when he had rio jurisdiction ,!, :c· not being a R\Jsident Magistrate is quite incurabl -and nulified the entire :procee'dings. There is yet need to took into the merits of the appeal itself for,.the s.ppallruit ~ alre_ady been unlawfully· in pris·on for 6 montb:s 'iw::e 1?/3/t for no fault of hi.s. Any order ~f retriai against this particular appellant can only be made if there was merit in the prosecutions cMe.

• 2 - "" PW1 Madnma s/o Jileka alleged that he lived in Ruhanga Village but wfmt to graee his 200 cattle at Mhwela VilU:,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 ;attl~, of 'pih 'were· drinking water he was surrounded by a group of people out of whom the appelJant whcm he knew before came to attack him with a bush.lrnife whtch .blows, he punch,ecl with his stick except for the one " . ; .. . . , .... blow which cut his thumb. He raised an - di.larm and PW2 Mahome cc.me to his aido He gave the reason for attack as being that the group of people did not want his .. . - cattle to drink the water from the river in Mhwela Village,. This story is quite incredible for several reasons., If the reason for the attack was his_ cnttle which drank the water from a river in Mhwe1a:·-vn1i:i.g:e why did that group attack PW2 Mahome s/o Jileka who had more cattle numbering 700 rather his ilsmallerd_herd of only 200 cattle? PW2 had just taken his cattle to drink wo;te,;r in the. sam~ river just a few minutes earlier on in the scune sequance .. Since;· complainant was living in Luhanga Village why slid they come with 900 cattle to village of Hhwela Village 'i' I take judicial notice that Mhwela Village within the Ilongo/Ruiwa Primary Court jurisdiction is very populated area with intensive irrigation farming of p2C.Jy and other crops in the greater part of the year where 900 .cattle cannot ra,e easily- without treading upon some people's farms. Ivfhwela Village is not ai., area for large ;attle cattle grazing •. Moreov,er, despite being surrounded by a group of peor::l..e the same PW1 tc.lks of -nothing else done by th group except what wao done by the appe1lanto · If the group had s_urrounded him to att'ack him it is unlikely that they 'would have gtoci by doing nothing while the appellant above was attacking the victimo Since the appellant was kno\•m to PW1 and the report was made to Inyala Police :-· . on the azne afternoon on 17/8/97 why wasn't any action. taken against the appellaDt been · until 21/8/97. PW3 doesnot testify to have / told who the culprit waci and that he was taken by the complainant himself up to the appellant for arresting him. It is clear thE: complainant WM all out to pick up C:n any body he knew ·to• bear the cross for his real attackerso PW2 whom the trial court relied upon for corroborative evidence is not a truthful witness eithe £;,or PW1 an, PW2 seen. to be brothers both sons of Jileka who had a common int~rest to servee ThG fact ~- that the appellant td to go to buy milk to the complainant is a positive connection which would not have made the app.E:llant tritiii the complainant ~- an enemy for atta•king for merely his •attle's use of' river water., .At no time was it mentioned that the attackers dropped my brusnknife· in .the area of dispute and from the ,, .. ·, ,... story of PW1 the appellant did not drop down the bushknife he used to atta<"k him., The bushknife· broght in c-ourt as exhibit Wa.S',ju.st pick., up from anywhere, even from the complainants own home to justify the cotl)plainant for l-W3 'testified .to h ,I{ ; f . have been given the bushknife on 21/8/97-,by ./t;he complainant, It should have been given to the police on 17/8/98 when the report was first made t6 the police. The defence of alibi of set up by the appellant and as supported by the defence

.... 3 - witnesses MFhilimon Joel (DW2) and Sharnbobero (D':13) were brushed aside by the trial court without justification.. The defence witnesses W(3re undcpendod 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 Dvl3 Shambc, Vero is a Nyiha by tribe,. For the prosecution it was the opposite with both only witnesses c9ming from the same family. The alibi was brushed aside by the tried court on reason then the distence was not ho1rm as between thE: place of funeral where the appellant was attending and the place of the attacko If the place f funeral was so close to the pla.ce of attack as to from the same transaction then how come the complainants took 900 heard of cattle to such an inhabited evene If the place of att3:ck was far from the funeral in the bush fit for a huge herd 6f cattle of 900 in number to graze how could the 2,ppell.:mt manage_d to be both at the funeral and· the pla1e of attaek at the snme time '1 ·The trial court should have found that the two toie f the two sides were irreconcilable a...>id that the appellant wee e.:t. innocent prson who was pi,ked up just because he wae unk:aown peasant from Mhwela Village frm which Village the complainante belived their attackers came f:pom·.. It is likely that the omplaints were attacked. by fa.rm ownero whom they;didri't know: after their fanM had been . . . trodden up by _the complainants huge her of cattle. No doubt the omplainant Mahom& :,,/o Tileka was attacked and injured in Mhwala Village and he got grie- voly injured in hiR :cut off thumb. But, reason for the attack can I t be water ·and the attackers ca.vi.' t have been the appellant and the appellimt alone out· of the group of peopl who an1bushed him. The appell2.,nt is innocent. He is acquitted from the conviction c/s 225 of Penal Code and he is reeed from prison and set free henceforth for good. The proceedings and judgement and sentence E.L.K., MWI?Oi?O JUDGE 9/9/1998 is a true and correct copy of the original I ._ . .., ........ , ;--i· ms·.rm C'l. 1 REGISTRAH MBt.'YA