Saita Mbona vs Afanikisye Mwandambo (Criminal Appeal No. 15 of 1997) [1998] TZHC 2294 (24 July 1998)

IN IHE HIGH COURT OF TANZANIA 4t1c K) ATMBEYA CRIMINAL APPEAL NO. 15 OF 1997 (From the decision of the District Court of Rungwe at Tukuyu in Criminal Appeal No.24 of 1997 Before: F.N. Matogolo - District Magistrate) SAITAMBONA O .. O , 00 .,.., O . 00O .. APPELLANT Versus AFANIKISYE MWANDAMBO ,. .... RESPONDENT JUDG'ENT MOSHI, J. This is a second appeal. The respondent, Afanikisye Mwaridambo, and his wife, Luti d/o Salemba, were jointly arraigned before the Urban primary court of Rungwe at Tukuyu as the first and second accuseds respectively, on two counts. The appellant, Saita d/o Mbona, was the complainant. The counts were: First count: House breaking, contrary to section 294(1) of the Penal Code. Second count: Stealing, contrary to section 26 of the Penal Code, Immediately aftó recording the evidence of the appellant, the primary court ruled that -the respondents had no case to answer and acquitted them under section 31(1) of the Primary Courts Criminal Procedure Code, Third Schedule to the Magistratest Courts Act 1984. The acquittal aggrieved the appellant who preferred her first appeal against it to the district court of Rungwe at Tukuyu. The district court diâmissed the appeal, and the appellant, still feeling aggrieved, preferred this second appeal to this Court. The parties entered appearances before me and told the court that they abide by the grounds in the memorandum of appeal and the written reply to it. - The following material facts came out from the evidence of the appellant. During the night of 10.12.97 at about 10.00 pm the appellant was in the house -: built by her elder b±'other nursing her terminally ill mother who was in a coma. The second accused arrived there and told her that the respndent wanted to see her.

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• 2 - She told her she was nursing her sick inothero But the second accused insisted that she must answer the call. She accbmanied the'second accused to their house whereupon the respondent told her that she suspected her of having stolen his beans and groundnuts. She denied the allegation. She' returned home and slept. ' In the morning of the following day, she went to fetch water for bathing her sick mother. Upon her return she found--the second accused inside the house searching while the responden .t kept watch outside the house. She asked them the reason for the search. They replied they were searching for their stolen, -. beans and groundnuts. She had her sh6.30,000/= kept in a barrel inside the house. She found the money missing. She went to their cell leader, leaving- her mother under the care of her son', -and reported 'the incident. The cell leader went there and questioned the respondént 'who failed to estabiish how the appellant had stolen their beans and groundnuts. Her mother died later that dAye After the mourning period of three days the appellant took up.'the matter of the theft of. her money with the area chairman, the village chairman, and ultimately the police. The only reason given by the trial court for holding that the respondents had no case to answer was that the appellant was not the right cmplainant 'but-- her elder -brother who owned the house. With respect, this as a misconception.' in law. It is not the law that only owners of prOperty are entitled to lay information in relation to, and accusing of, an offence. The appellant had - - special interes.t in the house. She was in' occupation of it.' Her complaint -, --- - was that the house was broken into and her money stolen. She was, therefore, clearly a competent complainant in 'terms of section 1(1) of the Primay Courts- Criminal Procedure Code. - - - -

• The district cOurt, "I--am unhappy-to say, fell into--eyen graver error. That curt'imported inothe'evidence of the 'appellant, who was the only witness who h.d testified; extranêdu. matters which.did not fc-ature there, hence the wrong conclusion reached. The learned district magisti-ate said, at- the first his page of typed judgment: .........../ 3

I. .. .-, -3- In the first intance it as the appellant who was suspected for house-breaking and stealing beans and groundnuts from the respondents 0 At the time the breaking and theft detected, the appellant fled leaving behind her sick mother who was in coma and shortly died ... thereafter in the absence of the appellant0 There was no reason why she fled leaving her sick ' mother alone. She therefore framed up this case against the respondents trying to cover the shameful act she did of leaving her mother serious sick and died in her absence, With respect, it did not feature anywhere in the testimony of the appellant that she fled leaving her sick mother alone, and that her mother died in her absence. What featured in the testimony of the appellant was that she went to report the incident to their cell leader leaving her sick mother under the care of her son and that her mother died after she had returned in her presence at about midday that same day. The respondents had not testified, The question for determination was whether or not the respondents had a case to answer. Both courts below were, therefore, bound to rule on that question only on the basis of the evidence on record, that is, on the evidence of. the appellant. Under section 31(1) of the Primary Courts Criminal Procedure Code the court may at any stage of the proceedings dismiss the charge and acquit the accused if satisfied that the accused person has no case to answer. But in point of principle, the approach must be to give the complainant sufficient time to build up his or her case. In this case the appellant had not told the trial court that she had closed her case. There was her son who had been, called before village authorities who, given the chance, could have testified for her. Of course, it is not easy to define what is meant by a ftprima facie case." Hewever, a court would be justified in dismissing the charge and acquitting the accused on the basis that he has no case to answer only if it appears that some essential ingredient of the case has not been proved, or if the evidence before the sourt is manifestly so unreliable that no reasonable tribunal could convict. The court .,....0..e./ 4

-1 2 Lf V is not called upon at that stage.. to reach: a decision as to conviction or acquittal until the whole evidence is before it. . ..• . In this case, none of theforegoing two requirements obtained in.the. appellant's case. On the basis of the evidence of the ppellant,proerly1' considered and evaluated, it could. not be said of it that some essential V inedient of the case had not been proved or that the evidence was manifestly so unreliable that no reasonable tribunal couldcoi1,ict.V Iam, -in consequence, satisfied that both respondents had a case to answer and that both counts below erred to have ruled otherwise. ................. I accordingly allow the appeal, quash .the decisions of both courts

• V below, and hereby order a retrial before another primary court magistrate of competent jurisdiction and another set of assessors. V V -V / c
• c - B.P. MOSHI
• V AT.MBETh . V 24 -July 1998.
• For Appellant: Presentin person. -
• For Respondent: Present in person. --- : - •- -
• V