Jisena Nyalali

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY ATTABORA CRIMINAL APPEAL NO. 379 OF 2024 (Originating from the District Court of Igunga in Criminal Appeal No. 04 of2023Arising from the Decision ofIgunga Urban Primary Court in Criminal Case No. 116 of2023) JISENA NYALALI............................................ ... APPELLANT VERSUS KUHEKA NKWABI....... ....... .................... . 1st RESPONDENT HAMIS NKWABI................................... .................. .................. . 2nd RESPONDENT JUDGMENT Date of Last Order: 08/07/2024 Date of Delivery: 05/08/2024 KADILU, J. Before Igunga Urban Primary Court, the appellant filed a criminal case against the respondents accusing them of common assault contrary to Section 240 of the Penal Code and malicious destruction to property contrary to Section 326 (1) Of the Penal Code [Cap. 16 R.E. 2022]. He alleged: that on 01/08/2023 at 22:00 hours in Makomero Village within Igunga Ward and District in Rabora Region, the respondents assaulted him by using sticks and fists causing him severe bodily pain. The appellant asserts further that after the assault, the respondents destroyed his 400 bricks made of mud all valuing TZS. 8'0,000/=. At the conclusion of the trial, the court found the respondents not guilty of both counts hence, acquitted them. The decision annoyed the appellant. He unsuccessfully appealed to the District Court of Igunga, thus, the instant appeal. The following are his grounds for the grievance: i 1. That, the appellate court erred in law and fact for abstaining to discuss the 1st ground ofappeal While it was dear that the trial court pronounced the judgment against the adduced evidence. 2. That, the appellate court erred in law and fact for confirming the trial court's decision while the appellant managed to prove the case beyond reasonable doubt. 3. That, the appellate court erred in law and fact for confirming the trial court's decision while admitting the procedural irregularities conducted by the trial court. Still, it failed to act on the said irregularities according to the law. 4. That, as the 1stappellate court, it erred in law and fact for failure to evaluate, scrutinize, and analyze evidence ofboth parties basing its decision on the respondents'submission as a result, pronounced a wrong verdict. On the strength of the above grounds, the appellant implored this court to allow the appeal by quashing and setting aside the judgment and orders of the lower courts, finding the respondents guilty as charged, and ordering them to compensate the appellant for the destroyed properties. The respondents filed a joint reply to the petition of appeal discrediting all the grounds of appeal. They urged this court to dismiss the appeal with costs. When the appeal was called on for hearing, the appellant appeared in person without legal representation. On the other hand, the respondents were represented by Mr. Mwigamba Sosthenes, the learned Counsel. Submitting on the 1st ground of appeal, the appellant argued that the District Court did not resolve the 1st ground of appeal relating to the assessment of the evidence presented before it. According to him, PF3 showed how he was wounded and his bricks were destroyed but the primary court did not visit the crime scene to see the destroyed bricks. Concerning ,2 the second ground, the appellant contended that he proved his case beyond reasonable doubt but the trial court did not consider his evidence. Regarding the 3rd ground, the appellant complained that the District Court erred in upholding the decision of the primary court while it found that the proceedings in the primary court were tainted with irregularities. For, example, it faulted the primary court in the finding that the Medical Doctor who presented a PF3 was not cross-examined. About the last ground, he submitted that the respondents did not produce tangible evidence to disprove the appellants allegations. They called their children as witnesses who could not testify against their parents. The appellant elaborated that he objected to the competency of the respondents' witnesses, but the trial court did not care about it. After Mr. Mwigamba was given the floor, he prayed to argue the appeal generally as all the grounds were faulting the evidence adduced in the trial court. Mr. Mwigamba argued that the appellant had the burden of proving: the allegations against the respondents in the trial court but he failed to discharge this duty. He cited Sections 3 and 110 of the Evidence Act [Cap. 6 R.E. 2Q22J, to support his stance that the appellant was required to prove the case beyond reasonable doubt but he ended up calling one witness and himself. According to Mr. Mwigamba, they both gave contradictory evidence. He gave an example where the appellant told the trial court that he was beaten by three (3) persons using sticks, and his bricks were destroyed. He also said that he raised an alarm but on cross-examination, he stated that no alarm was raised. He did not also mention the 3rd person 3 who participated in beating him. The 2nd witness on his part stated that the appellant was beaten by two persons. Their testimony about the time of the incident also differed. The learned Advocate cited the case of Toyidoto Kosima v. R., Criminal Appeal No. 525 of 2021 Court of Appeal at Kigoma in which it was held that credibility of the witness is the domain of the trial court. It can be determined by the 2nd appellate court when examining evidence on record. In this circumstance, Mr. Mwigamba opined that the appellant's evidence and that of his witness were contradictory. He did not tell the trial court why nobody got out of their houses if truly the appellant raised an alarm. Even the Hamlet leader who joined him in raising the alarm was not followed by his people. The appellant did not as well call the said Hamlet leader as one of his witnesses or tender the letter he wrote for the appellant. The medical Doctor who attended the appellant and filled in a PF3 did not attend the trial court and testify. The Advocate argued that in all these doubts, the case cannot be said to have been proved beyond reasonable doubt as stated in the case of R. k Mugisha Katulebe & 5 Others, Criminal Session Case No. 126 of 2016, High Court of Tanzania at Bukoba, Mr. Mwigamba added that in Jonas Nkize v. R., [1992] TLR 213, it was held that the onus of proving the charge beyond reasonable doubt lies on the prosecution. This is the cardinal principle. The respondents had no duty to prove the case, so even if they did not call any witnesses, it could not be the basis for them to be convicted. He contended that if the appellant 4 alleged that the bricks were hot seen by the trial court, it was his duty to take the bricks to the court as exhibits, which he did not do. By way of rejoinder, the appellant insisted that he proved the case as required. If the respondents deny that they beat him but they went to the scene, they should have stated who had beaten the appellant. The alarm that he raised was not heard because he was far from the village. He was: given a PF3 and admitted to the hospital for treatment. The trial court promised to visit the crime scene but it did not. In that situation, he could not take the brick as exhibits. He insisted that there were no contradictions in the evidence presented before the trial court. I have examined the records; grounds of appeal, and submissions by both parties. The issue for determination is whether the appeal has merits. Starting with the first ground of appeal, the appellant complains that the District Court erred in law and fact for abstaining to discuss the 1st ground of appeal while it was clear that the trial court pronounced the judgment against the adduced evidence. Hearing of the appeal in the District Court: proceeded by written submissions. On the first ground, the appellant submitted: that he tendered a PF3 in the trial court but It was not considered for the reason that it did not show parts of the appellant's body that were beaten. The appellant told the trial court that he was beaten seriously all over his body. He reported the incident to the police where he was given a PF3 and went to the hospital. He did not, however, summon a Clinical Officer who attended him and who could explain in detail what was contained in the PF3. Indeed, the appellant tendered a PF3 as exhibit Ml. It shows that on 5 02/08/2023, he went to the hospital complaining about pain in the lower extremities that is, the hip, thigh, knee, leg, ankle, and foot. The medical investigation did not reveal the cause of pain and the extent of harm caused to the appellant. The report does not also indicate if the appellant received any medical treatment after the examination. It only shows that the Medical Officer recommended that the appellant continue with therapy at home and return to the hospital after 7 days for a checkup. Based on these findings, the trial Magistrate concluded that the appellant failed to prove that the respondents assaulted the appellant. I am conscious that injury is not among the ingredients of common assault, but for the respondents to be guilty, the appellant had to establish that the respondents threatened to use force or used unlawful force against him. The offence of common assault is provided for under Section 240 of the Penal Code [Cap. 16 R.E. 2022] which stipulates as follows: "Any person who unlawfully assaults another is guilty of an offence and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, is liable to imprisonment for one year." In Abubakary & Another k Uganda [1973] 1 EA 230, the term 'assault' was defined as a threat by one man to inflict unlawful force (whether light or heavy) upon another; it constitutes a crime at common law when the threatener, by some physical act, has intentionally caused the other to believe that such force is about to be inflicted upon him. Thus, the appellant was bound to prove that the respondents intentionally used physical acts to harm him or to make him believe that harm was about to be inflicted on him. Although the appellant tendered PF3 as exhibit Ml, with due respect, exhibit 6 Ml has no direct connection with the commission of the offences the respondents were charged with since it could not go to the extent of linking the respondents with the harm inflicted on the appellant. The appellant was not also supposed to complain that the: PF3 was disregarded by the trial court because the purpose of expert evidence is not to prove the guilt of the accused. In Godi Kasenegala v. R., Criminal Appeal No. 10 of 2008, Court of Appeal at Iringa, it was held that courts are not bound by evidence of medical experts because such witnesses are most often not the actual witnesses to the incident and their evidence mainly constitutes opinions. In proving common assault, PF3 was not the only evidence but other evidence on the record could as well. A conviction on common assault would be sustained even without PF3 if other witnesses were summoned to testify that the respondents committed the charged offences. Unfortunately, apart from the appellant, only PW2 testified as a prosecution witness. He did not also establish that he saw the respondents assaulting the appellant. Generally, the appellant had to prove beyond reasonable doubt that the respondents unlawfully inflicted harm on him and that they did so intentionally. In my view, the appellant failed to discharge this legal duty. There was no piece of evidence to show that the respondents had beaten the appellant as alleged and the element of intention was completely not proved. The appellant told the trial court that the respondents are his cousin brothers and they did not quarrel before the incident. For these reasons, I am unable to agree with the appellant that the trial court pronounced the 7 judgment against the adduced evidence hence, I dismiss the 1st ground of appeal for being devoid of merit. The appellant's other complaint on the 3rd ground of appeal is that the appellate court erred in law and fact for confirming the trial court's decision while admitting the procedural irregularities conducted by the trial court. Oh page 2 of the appellate court's judgment, it is shown that the irregularities raised by the court were about how the PF3 was admitted and they were all the appellant's fault who tendered it. In that regard, there is no way the said anomalies could operate in his favour. On this point, the appellate court was required to determine the appeal based on matters brought before it by the parties. In Scan-Tan Tours Ltd k The Registered Trustees of the Catholic Diocese of Mbulu, Civil Appeal No. 78 of 2012, it was held that: "... generally, a judge is duty bound to decide a case on the issues on record and that if there are other questions to be considered, they should be placed on record and the parties be given an opportunity to address the court on those questions. "■ Thus, it was improper for the appellate court to raise concerns suo motoard resolve them without affording the parties opportunities to address the court on them. Though for a different reason, the 3rd ground: of appeal is meritorious and I allow it. On the 2nd and 4th grounds of appeal, the appellant asserts that he managed to prove the case against the respondents beyond reasonable doubt but the trial court failed to evaluate the evidence properly. These grounds shall not detain me as I have already ruled that the appellant failed 8 to prove that the respondents assaulted him. The appellant laments that the trial court did not consider his evidence hence, it reached a wrong conclusion, I am aware that the trial court is duty-bound to analyze evidence from both sides. In doing so, it does not mean that every time the court rejects a piece of evidence, then it has not been considered, A party with more credible and heavier evidence wins the case. In the case at hand, I find nothing to fault the trial court's analysis of the evidence as both the prosecution and defence evidence was well considered and featured in the judgment. The appellant contends further that the respondents did not produce any tangible evidence to disprove his allegations. In my view, this line of argument is trying to shift the burden of proof to the respondents who had no such burden in law. That is contrary to the dictates of Section 110 of the Evidence Act which requires that he who alleges has a burden to prove his allegations. In Tabora Municipal Council & 2 Others v. Kasea Kisanji & 39 Others, Civil Appeal No. 112 of 2023, Court of Appeal at Tabora, it was held that it was not upon the 2nd appellant to prove a negative for, a negative is incapable of proof. The appellant alleged that the respondents called their children as witnesses who could not testify against their parents. He elaborated that he objected to the competency of the respondents' witnesses, but the trial court did not care about it. I wish to state that as a general rule under Section 127 (1) of the Evidence Act, every person is competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, 9 extreme old age, disease of body or mind, or any other similar cause. From this provision, the appellant's argument lacks the: legal base. Concerning malicious damage to property, it is provided under Section 326 (1) of the Penal Code which provides: Ti/jy person who willfully and unlawfully destroys or damages any property is guilty of an offence, and except as otherwise provided in this section, is liable to imprisonment for seven years. " In the instant appeal, the question is whether the respondents destroyed the appellant's bricks willfully and unlawfully. Whether or not the respondents damaged the appellant's bricks, the appellant kept on lamenting that the respondents destroyed his 400 mud bricks worth TZS. 80,000/=. However, throughout the testimony, he did not specify where the said bricks were and how the respondents destroyed them. In the case of Scolastica Paul v. R., [1984] TLR 187, it was stated that to constitute the offence of malicious damage to property, there must be evidence of damage or destruction of the property and the ownership of the property. Apart from the appellant's failure to prove that the respondents destroyed his bricks, he was also unable to prove to the trial court that he was the owner of 400 bricks allegedly destroyed by the respondents. Moreover, the appellant's testimony to the effect that he did not quarrel with the respondents negates the ingredient of malice on the part of the respondents. The number of the alleged bricks was as well uncertain and it is unknown how the appellant reached the value of TZS. 80,000/= for 400 mud bricks. In the circumstances and for the stated reasons, this court finds io that the appellant failed to prove the case against the respondents beyond reasonable doubt. I, thus, dismiss the appeal in its entirety for lack of merits. I uphold the decisions of both courts below. The right of appeal is fully explained to any party aggrieved by this decision. It is so decided. KADILU; MJ. JUDGE 05/08/2024 The judgment delivered in chamber on the 5th day of August, 2024 in the presence of the appellant and Mr. Mwigamba Sosthenes, Advocate for the respondents. <T r KADILU, MJ. JUDGE 05/08/2024 ii