Safari Bura

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI (PC) CRIMINAL APPEAL NO. 2421 OF 2024 (Arising Criminal Appeal No 35 of2023 of the District Court Babati and Originating from Babati Primary Court in Criminal Case No 42 of2023) SAFARI BURA.......................................................................... APPELLANT VERSUS AMINA MOHAMED........................................................ AYUBU MAULID.............................................................. p RESPONDENTS ALLY MAULID.............................................................. JUDGMENT ldh March and lCfh May, 2024 MIRINDO, J.: The appellant, Safari Bura, brought a charge of an assault causing actual bodily harm contrary to section 241 of the Penal Code [Cap 16 RE 2022] against Amina Mohamed, his sister in-law; and her two sons, Ayubu Maulid and Ally Maulid, the respondents. In a trial before Babati Primary Court, the respondents denied the charge. The appellant testified that on 18/12/2022, he had a dowry ceremony for his unnamed daughter in which unknown relatives attended. After the ceremony he 1 escorted towards Bonga in Babati District two persons who came to give dowry. On the way towards Bonga he received a phone call from his son who informed him that Ayubu Mohamed and Ally Mohamed, the second and third respondents, were following them from behind. When he was nearing Bonga, he saw the two respondents carrying stones, sticks and a panga. He asked the persons he was escorting to assist him. A little while he saw the first respondent. As he tried to run away, the second respondent asked him why are you running away, today we have found you. When they were chasing each other, they hit him with a block. The first and second respondents hit him with a stick. He fell down and he was jointly attacked by all the three respondents. He lost his consciousness and was taken to a police station where he was given Police Form No 3. He went to Bonga Health Centre in Babati where X-Ray was performed on his head and hand. His second witness testified that he overheard the second and third respondents talking to each other that on that day "they will show him." He followed them from behind and then met them returning back from assaulting his father. The first respondent hid herself on the bush while holding a wooden club. He then called a tri-cycle, commonly referred to as "Bajaj", took his father to a police station where he was given Police Form No 3 and then they headed to Bonga Health Centre. 2 The third prosecution witness was Gaudency Mfikwa, who came from Singida and participated in the dowry ceremony. He confirmed the story of the victim being beaten and that the respondents stopped beating the appellant after other people appeared to the scene. In their defence, all the respondents raised the defence of alibi. The first respondent stated that on the material day she was at home, the second respondent was on the farm, and the third respondent was looking after the cattle. The trial primary court was satisfied that the case was proved beyond reasonable doubt, convicted the respondents, and sentenced them. All of them were sentenced to different terms of conditional discharge and were ordered to pay the victim different amounts of compensation. On a first appeal to Babati District Court, the District Court was satisfied that the prosecution evidence consisted of doubtful conflicting testimony. It quashed the conviction and sentence, and remarked that Primary Courts are not authorised to order compensation for victims of crime. The appeal was allowed. Safari Bura was aggrieved by the decision of the District Court and lodged a second appeal to this Court. On his four grounds of appeal, he complains that the first appellate court misapprehended the evidence adduced before the trial 3 court and misapplied the provisions relating to orders of compensation in Primary Courts. Both parties appeared in person at the hearing of the appeal. Other than emphasizing that there was sufficient evidence to support the conviction, the appellant had nothing to add to his grounds of appeal. The respondents supported the decision of the District Court. The fate of this appeal rests on the plausibility of the prosecution case. First, both the appellant and the respondents are agreed that there was a simmering land dispute between the appellant and his brother Maulid Bura who is the husband of the first respondent and the father of the second and third respondents. This partly explains why none of the appellant's siblings testified on his behalf and there is no information about their involvement in the dowry ceremony. The only appellant's sibling, who testified was Magere Bura; and it was for the respondents. Secondly, there is uncertainty about persons who attacked the appellant. Despite his account that he was attacked by the respondents, his third witness who was with him on the way to Bonga stated that the appellant was confronted by six or seven people but only two of them attacked him. This account is inconsistent with the appellant's account which points out only the respondents. 4 The appellant stated in cross-examination that when the attackers arrived, they ordered the persons in company with the respondent to go away. The second appellant's witness stated that he was nearby when the appellant was attacked. However, there is inconsistency about what happened after the appellant was attacked. The appellant's second witness stated that he was the one who took him to the police station and the health centre. But the third prosecution witness stated in cross-examination that he dragged the appellant to the police station; he was alone and residents pointed to him the police station. The third prosecution witness repeatedly stated there were four persons before the appellant was attacked but gave no account of what happened to them or their response to the attack of the appellant. This third witness also testified that he shouted for help and people from nearby houses responded to the alarm. If this is so, it begs the question why he dragged the appellant to the Bonga Police Station without the support of the persons who responded to the alarm. Given that there is evidence that the appellant was assaulted, the conflicting testimony suggests that the appellant was attacked by different persons. That this is so, is clear from the testimony of the fifth respondent's witness, the appellant's sister. The witness testified seeing the appellant in the Health Centre and the appellant confided that he did not know the persons who 5 attacked him because he was drunk. The only reason for accusing the respondents is because of the family dispute. In the light of the above analysis, I am satisfied that the charge of assault causing actual bodily harm was not proved beyond reasonable doubt. Before concluding, I would like to deal with powers of Primary Courts in making orders of compensation because this point was dealt with by the District Court. In holding that Primary Courts have no jurisdiction to order compensation in criminal trials, the District Court made reference to the provisions of paragraph 2 of the Third Schedule to the Magistrates' Courts Act [Cap 11 RE 2019]. While the provisions of Paragraph 2 make no refence to orders of compensation, Paragraph 5 of that Schedule stipulates orders that may be made by the Primary Court in the exercise of its criminal jurisdiction. Under Paragraph 5(1) (b), compensation is one of such orders: A court may, where the justice of the case so requires, and shall, in any case where any law for the time being in force so requires, make orders- (b) for the payment of compensation not exceeding one hundred thousand shillings or costs or for compensation of more than one hundred thousand shillings where it convicts a person of an offence specified in the Schedules to the Minimum Sentences Act which it has jurisdiction to hear; 6 Unfortunately, the District Court overlooked these provisions and arrived at a wrong conclusion. Barring this variation on the finding regarding the power of primary courts to order compensation, the decision of the District Court is affirmed and the appeal is dismissed. It is further directed that if the different amounts of compensation ordered by the Primary Court had been paid by the respondents, they should be refunded to them. It is so ordered. DATED at BABATI this 8th day of May, 2024. F.M. MIRINDO JUDGE Court: Judgment delivered this 10th day of May, 2024 in the presence of the appellant in person and in the presence of the first and second respondents in person. B/C: William Makori present. Right of appeal explained F.M. MIRINDO JUDGE 10/5/2024 7