BUJUKANO LUSHESHA RULING 1

IN THE HIGH COURT OF TANZANIA SUB-REGISTRY OF GEITA

AT GEITA MISC. CRIMINAL APPLICATION NO. 13259 OF 2024 (Originating from the Judgment and Decree of the High Court of Tanzania (Geita Sub­ Registry) at Geita by Hon. Mwakapeje, J in PC. Criminal Appeal No. 2532 of2024) BUJUKANO LUSHESHA................................ APPLICANT

VERSUS HAKISIMB1LA KULWA................................ RESPONDENT

RULING Date of last Order: 11/07/2024 Date of Ruling: 05/08/2024 K. D. MHINA, J. This application has been brought by way of Chamber Summons made under Section 6 (7) (b) of the Appellate Jurisdiction Act, Cap 141 [R: E 2019] ("the AJA") and Rule 44 (1) of the Court of Appeal Rules 2019 C'the Rules"). The Applicant, inter alia, is seeking the following orders: - i. This Court be pleased to certify that there are points of law worth being determined by the Court of Appeal against the judgment of this Court in PC Criminal Appeal No. 2532 of2024 dated 18 April2024. ii. Any other relief the Court may deem fit to grant. The grounds for the application were expounded in the affidavit, which Mr. Emmanuel Beatus, counsel for the applicant, swore in support of the application. The points of law which the applicant requests this Court to certify are; Z That the three courts below erred in law for holding that the sanctity of records is superior to fair hearing, taking into consideration the omission to record an interpreter. ii. That the Primary Court of Bukombe District at Ushirombo erred in law for arraigning the expert witness whose qualifications fell short of the law of precedents. iii. That the second appellate court erred in law for failure to determine the applicant's three grounds (grounds 1, 2 and 4), which raised pure points of law as such, they ought to be determined on appeal

even if they were not actually well decided by the District Court. The application proceeded ex parte against the respondent after the efforts to trace her proved futile. The last attempt was by way of substituted service by publication in Zanzibar Leo Newspaper dated 1 July 2024. By way of background, the matter which triggered this application traces back to 2023, a year ago. It commenced at Ushirombo Primary Court in Bukombe District in Criminal Case No. 39 of 2023, where the respondent was charged for the offences of theft c/s 258 and 265 of the Penal Code, Cap 16 RE 2022 and Being in Possession of goods suspected to have been stolen c/s 311 of the Penal Code, Cap 16 RE 2022 as well. At the trial, the applicant accused the respondent of stealing his two heads of cattle with marks "CC" valued at TZS. 2,000,000/=, which he alleged were found in the possession of the respondent. In its decision dated 4 June 2023, the Primary Court acquitted the respondent for the reason that the applicant had failed to prove the case beyond reasonable doubt. Undaunted, the applicant appealed to the District Court of Bukombe vide Criminal Appeal No. 05 of 2023, which was dismissed on 12 December 2023 for want of merits. Again, dissatisfied, the applicant appealed to this Court vide PC Criminal Appeal No. 2532 of 2024. On 18 April 2024, this Court dismissed the appeal for want of

merits. Relentless, the applicant again approached this Court with the application at hand, seeking the indulgence of this Court to certify that there are points of law worth being considered by the Court of Appeal. At the hearing, Mr. Beatus Emmanuel, a learned advocate, represented the applicant. On the first point regarding the fair trial, Mr. Emmanuel submitted that the primary court omitted to record the interpreter during the trial. That failure is a fatal irregularity, as per the case of Joseph Maweta vs. Lekiteti Karasi 1992 (TLR) 70. Also, the omission contradicts Article 13 (6) (a) of the Constitution, which insists on a fair hearing. Regarding the second point, he argued that at the trial the expert witness was incompetent. That issue was raised in the 1st and 2nd appeals but was not determined. To support his argument, he cited the cases of Mwasegile Sarmul vs. Makanika Katatula, 1980, TLR 152, and Mwananchi Engineering and Construction Co. Ltd vs. Republic, 1985, TLR 243. On the third and last point, he raised the issue that there was an omission to determine the grounds of appeal. Amplifying his submission, Mr. Emmanuel argued that the first and second appellate courts failed to determine three grounds of appeal while the grounds raised pure points of law. He argued that was contrary to Rule 4 (1) (b) of the judicature and application of laws (Criminal Appeals and

Revisions in proceedings originating from primary court) Rules G.N 390 of 2021 read together with Rule 14 of the same law and the case of Joseph Lomayani and Others vs. Melkizedeck Michael, 1991 TLR 192, where the court discussed the omission of not determining the grounds of appeal. Having considered the chamber summons, its supporting affidavit, and the oral submission made by the learned counsel for the applicant, the issue that has to be resolved is; "Whether or not there is the existence of points of law worth to be certified by this Court for the consideration of the Court of Appeal." In discharging the above duty, it is essential to outline some of the important issues as far as the application is concerned. First, to appeal is a constitutional right. See Millicent Mrema vs. Zantelf Civil Appeal No. 289 of 2020 (Tanzlii), where the Court of Appeal held that; "As our starting point, we entirely agree with the appellant that the right of appeal is a Constitutional right as enshrined under the cited Article 13 (6) (a) of the Constitution". However, the right of appeal to the Court of Appeal by a person aggrieved by a decision of the High Court in the exercise of its various jurisdictions and how to appeal is provided by the Appellate Jurisdiction Act, Cap 141 R: E 2019. What triggered this application are the proceedings originating from the Primary Court; therefore, the

proceedings fall under Head (c) of Part III of the Magistrates' Courts Act, Cap. 11 R.E.2019 (the MCA). The said provisions of the MCA deal with the appellate and revisional jurisdiction of the High Court in matters originating from primary courts. From above, it is common ground that since this appeal has its origin in a decision given by the primary court and it is a criminal case, thus under section 6(7) (b) of the Appellate Jurisdiction Act (CAP 141 R.E. 2002), this Court must certify a point of law for the consideration of the Court of Appeal. In doing so, I will be guided by the following; One, the point of law raised must be of a legal nature and public importance. See Magige Nyamoyo Kisinja vs. Merania Mapambo Machiwa, Civil Appeal No. 87 of 2018 (Tanzlii), where it was held that; "We must emphasise that the point to be certified by the High Court must be that of a legal nature and significant to warrant the decision of the Court. It is not enough for a party in a third appeal, tike in the instant appeal, to simply think the tower court is wrong in its decision to have his case heard by the Court of Appeal. Matters of law which the Court is called upon to determine must transcend the interest of the immediate parties in the appeal. Indeed, in some cases, matters of law placed before the Court for determination are of public importance, especially when an interpretation

of the law is involved". Second, this Court has to seriously scrutinise if the points raised are worthy of being considered by the Court of Appeal. See Dorina N, Mkumbwa vs, Edwin David Hamis, Civil Appeal No.53 of 2017 (Tanzlii), where it was held that: "Therefore, when High Court receives applications to certify point of law, we expect Rulings showing serious evaluation of the question whether what is proposed as a point of law, is worth to be certified to the Court ofAppeal. This Court does not expect the certifying High Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes as a point of law to be perfunctorily forwarded to the Court as a point of law. From the above position of Jaw, I will start with the 3rd point advanced by the applicant in pursuit of certification by this court. The point raised is that the second appellate court erred in law for failure to determine the applicant's three grounds (grounds 1, 2 and 4), which raised pure points of law; as such, they ought to be determined on appeal even if they were not actually well decided by the District Court. Having gone through the electronic record in the electronic case management system (e CMS) and the impugned decision, I find that the grounds raised as grounds no. 1, 2 and 4 were as follows; 1. The first appellate court erred In law and fact by relying on the Interpreter’s testimony which deviated from what PW1 stated on Earth in Sukuma prose.

2. The first appellate court erred in law and, in fact, by upholding the decision that denied the Appellant’s naturaljustice during the selection of an interpreter. tax* ............. ..

4. That the first appellate court erred in law and, in fact, by summoning an Incompetent expert witness contrary to the standards of law, ending up abusing the court process. On this, this Court, in the 2nd appeal, discussed and determined the above grounds from pages 13-16 of the impugned decision. This Court held that the grounds were raised for the first time during the 2nd appeal. Further, it was held that the 1st and 4th grounds were issues of facts while the 2nd ground raised a point of law. After that, this Court did not consider the 1st and 4th grounds of appeal for the above reasons that they were raised for the first time in the 2nd appeal, and they did not raise points of law. This Court proceeded to discuss and determine the 2nd ground of appeal, but in the end, it dismissed it on merits. From the above discussion, it is quite clear that contrary to what was raised by the applicant, the 1st, 2nd and 4th grounds of appeal at the 2nd appeal were determined; the impugned judgment indicates that the grounds were discussed and resolved to its finality. In addition, upon scrutiny of the 1st and 4th grounds at the 2nd appeal, it was clear the grounds were not points of law. Those were the issues of facts. For clarity, points of law, one, are argued on the assumption that all the facts pleaded by the other side are correct; two, no ascertainment of facts is allowed and or

it cannot be raised if court discretion is allowed. See Shose Sinare vs. Stanbic Bank and others, Civil Appeal No. 89 of 2020 CAT and Mukisa Biscuit Manufacturing Limited vs Eastern Distributors Limited [1969] E. A 696. Therefore, the grounds raised did not qualify because the call for evidence and facts was needed. From above, the 3rd point in the application is devoid of merits. Coming to the 1st and 2nd points raised in this application, in my opinion, these should not detain me long. Starting with the 2nd point that; 2. That the Primary Court of Bukombe District at Ushirombo erred in law for arraigning the expert witness whose qualifications fell short of the law of precedents. Having gone through the 2nd appellate court proceedings and impugned judgment, I have the following; The point was already raised as the 4th ground of appeal in the 2nd appeal, and it was not considered for the reason that it was raised for the first time and it was not a point of law. Therefore, what the applicant is raising in this application is an illegal smuggling of the rejected ground by trying to twist the words. In addition, since the issue was not determined on merits, that means the applicant is raising a new issue and asking this Court to certify it for the consideration of the court of appeal. From the above, it is quite clear that the 2nd point raised is not worthy of consideration by

the Court of Appeal. Thus, it is devoid of merits. Reverting to the 1st point raised by the applicant, that; 1. The three courts below erred in law for holding that the sanctity of records is superior to a fair hearing, taking into consideration the omission to record an interpreter. I must confess that I find this point to be very strange. In the impugned judgment, this Court clearly indicated that the trial court record did not reveal whether the applicant was aided by an interpreter. Therefore, upon scrutiny of the above point, I ask myself, if the trial court record does not indicate the issue of an interpreter, then what will be the basis to determine that point? This is crucial because it is trite that courts determine issues based on what is in the records and not otherwise. The discussion above made me find this point very strange, as I already alluded to before. It was raised not based on the court records. Both the 1st and 2nd appellate courts clearly established that the records were silent on the issue of interpreter. Thus, the applicant is trying to raise an issue by smuggling his own facts, which were not in the records. From above, I find the point raised falls short of qualifying as a point of law and even a point of fact, because nothing on the record indicates that the issue raised had ever been raised and determined by the trial court. Therefore, this point

also must fail as it has no merits. In the final analysis, the points raised by the applicant for this court to certify are not worth being investigated, given judicial consideration and determined by the Court of Appeal. It seems the applicant was not satisfied with the court's decisions, but in law, non-satisfaction with the decision is not a ground for appeal. Consequently, the application is dismissed for want of merits. Since the application proceeded ex-parte, I order no costs. It is so ordered. K. EK MHINA

JUDGE 05/08/2024 COURT:- The right to appeal is explaii K. I 05/08/2024