CRIMINAL APPEAL JEREMIAH

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA CRIMINAL APPEAL 000023794 OF 2024 REFERENCE NO. 202408212000023794 (Arising from the CriminalAppeal No. 000012880 of2024 ofTarime District Court, Originating from Tarime Urban Primary Court in Criminal Case Number 173 of2024) JEREMIAH CHACHA ANTHONY...................................................... APPELLANT VERSUS SHUKRAN1 BWA1YE................................................................... RESPONDENT JUDGMENT 19m & 28th November, 2024 M, L, KOMBA, J.: This is the decision against an appeal by the above-named appellant who was dissatisfied by the decision of the Tarime District Court (the 1st appellate court) in Criminal Appeal No. 000012880 of 2024. Briefly, appellant and respondent are businessmen doing business at Tarime bus stand. It was alleged that on 23/01/2024 at 10:00 am at Tarime bus stand respondent assaulted appellant contrary to section 240 and malicious destroy the property contrary to section 326(1) both of the Page 1 of 10 Penal Code Cap 16 R.E 2022. Respondent denied the offence hence matter went to full trial. Upon hearing testimony of each side, the trial court was satisfied that appellant managed to prove the case to the required standard and convicted respondent, ordered him to pay appellant TZS 200,000/= as compensation for assault, to pay TZS 1,170,000/= which was the value of the property destroyed and sentenced him to conditional discharge, and that the respondent should not commit any offence for the period of six months. Dissatisfied by the decision of the trial court, respondent appealed to Tarime District where decision of the trial court was overturned and respondent was set free. This time appellant was dissatisfied and fronted this court with five (5) grounds of appeal that; 1. That, the Honourable Magistrate of the first Appellate Court erred both in law and facts by acquitting the Respondent on the offence of malicious damage/injuries to property while, in/before the trial Court, the said offence was proved by the Appellant beyond reasonable doubts. 2. That, the Honourable Magistrate of the first Appellate Court erred both in law and facts in failing to hold that there was no any inconsistencies between the evidence of the Appellant and that Page 2 of 10 of his other witnesses, and if at all there was any of such inconsistencies, the Honourable Magistrate of the first Appellate Court erred both in law and facts in failing to hold that such inconsistencies were so minor and did not affect the Respondent's case/evidence which proved both counts (offences) of assault and malicious damage (injury) to property beyond reasonable doubts. 3. That, the Honourable Magistrate of the first Appellate Court erred both in law and facts by acquitting the Respondent on the offence of assault while, in/before the trial Court, the said offence was proved by the Appellant beyond reasonable doubts. 4. That, the first Appellate Court erred both in law and facts by expunging exhibit Pl from the record on the reason that the said exhibit was not read out before the trial Court after being cleared for admission. 5. That, the first Appellate Court erred both in law and facts by holding that, after expunging exhibit Pl from the record, there was no any other remaining evidence from the Appellant which proved the offence ofassault against the Respondent. Since the filing of this case respondent was at large, When this court was satisfied that summons was dully served in alternative way, I ordered the case to proceed in exparte against the respondent. From assurance of the hearing, appellant prayed the appeal be disposed by way of written submission and the prayer was granted. Page 3 of 10 Appellant combined the 1st and 2nd ground and faulted the first appellate court by acquitting respondent on the alleged existing contradictions on the material used on to repair the destructed table. He was of the position that appellate Magistrate was supposed to analyse whether contradiction was major or minor before came to his findings. He went on submitting that, had the honorable magistrate of the 1st appellate court analysed what he considered to be an inconsistency in the evidence of SM5 and the appellant, he would have legally reached to a conclusion that such inconsistency was a minor gap which did not affect the credibility of SM5 and the appellant. While appellant testified that respondent broke the glass phone storage closet, SM5 referred it as table although he clarified that table was broken on the fateful date. On proving that the contradiction is minor, appellant submitted that the testimony of appellant was collaborated by SM4 who tendered a broken phone storage closet and a photograph which collectively were admitted as exhibit P2. He boosts his submission by Kaiza Gaudin vs Republic (Criminal Appeal No. 170 of 2022) 2024 TZCA 387 that the contradiction was minor and the second count was proved to the required standard. Page 4 of 10 He then combined the 3rd, 4th and 5th ground about exhibit Pl which was not read out upon its admission and acquittal was based on the ground that there was no remaining evidence after he expunged Exhibit Pl. On this ground appellant submitted that Regulations 11 (1) & (2) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, G.Ns. Nos. 22 of 1964 and 66 of 1972, which regulates tendering and admissibility of documentary evidence in primary courts did not oblige the trial magistrate to read out in court an exhibit after its admission and the case referred by the first appellate Magistrate, Issa Hassan Uki vs Republic, Criminal Appeal No. 129 of 2017 is distinguishable as it was an appeal which originated from the Resident Magistrates' Court of Lindi which is governed by the Evidence Act, [Cap. 6 R.E. 2022] which is not the case in the present appeal because it originated from primary court which is governed by Regulations 11 (1) & (2) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, (Supra). Appellant went on submitting in addition, and without prejudice if it could be found that exhibit Pl was correctly expunged, he maintained that the remaining evidence was enough to prove that the appellant was assaulted Page 5 of 10 as testified by appellant, SM4 and SM6; all of them proved the 1st count. To him, even in absence exhibit Pl, the offence of common assault as charged was proved by oral evidence of appellant, SM4 and SM6 and relied on the precedent of Masanyiwa Masolwa vs Republic (Criminal Appeal No. 280 of 2028) 2022 TZCA 456 and Robert Lameck vs Mwigulu Sonda (PC Criminal Appeal No. 2 of 2022) 2022 TZHC 14961 (29 April 2022). He prayed the appeal to be found meritorious and be allowed. In this appeal my duty is to determine whether the appeal is meritorious. I am aware that this is the second appeal and the practice is that, the Court should, in a very exceptional circumstances interfere the finding of the lower courts when it is clearly shown that there was misapprehension of the evidence, miscarriage of justice or violation of some principles of law or procedure by the courts below. See Joseph Safari Massay vs Republic, Criminal Appeal No. 125 of 2012, Felix s/o Kichele & Another vs Republic, Criminal Appeal No. 159 of 2005 and Julius Josephat vs Republic, Criminal Appeal No. 03 of 2007. The two courts below had different findings. Page 6 of 10 I shall analyse the grounds of appeal as fronted by the appellant and I shall combine the 1st and 2nd grounds on destruction of the property and the rest will be analysed together. The first set of grounds which is the first and second ground the appellant is faulting the first appellate court on its decision basing on inconsistence of evidence during trial. I read the judgment and found the first appellate court doubted if the property which was said to be destructed was made of a glass. In the said judgment, SM5 is noted to repair the destructed table and mentioned material used. In the list of material used there is no glass and that was doubted. Apart from the submission by the appellant, exhibit P2 was collectively admitted and it was a broken table and a picture, which I find the submission to have substance, I read the charge sheet and found the offence charged was destruction of property worth TZS 1,700,000/ and the duty of prosecution is to prove offence as per charge sheet. Respondent was charged of destruction of phone storage closet worth TZS 1,700,000/ and exhibit P2 and SM5 testify on the cost of repair. There is no doubt that the phone storage closet was broken and it was inspected by trial court during admission. Page 7 of 10 What material used to make the said closet or table is another issue though minor. Appellant testified that when he was assaulted the closet was destroyed and glass was broken. SM5 testified that he was the one who repaired the closet and mentioned costs he incurred in the said repair. The charge was destruction and the fact that SM5 repaired the closet that means it was destroyed. However, when SM5 started to testify, he informed the trial court that he was the one who repaired Pastory's table which the glass was fragmented on the fateful date, "mimi ndiye nHiyetengeneza meza ya Pastory Hiyopasuka kioo siku ya tukid'. It is clear that the table/closet was made of glass however, the charge was on destruction and so I find the material used is irrelevant in proving destruction but costs and appellant and other witnesses testified that phone storage closet was destructed. On the second set of combined grounds 3rd, 4th and 5th, just as submitted by the appellant, when exhibit is expunged, it does not mean the case flop. In Masanyiwa Masolwa vs Republic (supra) it was held; "It is indeed the position of this court that where a document is expunged, it does not follow automatically that the evidence of the Page 8 of 10 witness who tendered it must as well collapse or diminish in evidential weight. It depends, if the substance of the document which has been expunged is largely the same in substance and content as the ora! evidence that was adduced by the witness, expunging the document cannot affect the remaining evidence on record..." Appellant, testified that he was assaulted by respondent. The testimony of the appellant was collaborated by testimony of SM4 and SM6 and that was sufficient evidence as all these witnesses were eye witness and they are credible. It has to be known that there is no principle that each fact has to be proved by tendering evidence, even oral testimony is credible. See Abas Kondo Gede vs Republic, Criminal Appeal 472 of 2017. Further, defence by respondent did not shade doubt on appellant case and therefore, I find the offence of common assault was proved beyond reasonable doubt. I find there was misapprehension of evidence which I found prudence to analyse. In the upshot, the appeal has merit and I allow it, I proceed to quash the judgment of the District Court of Tarime at Tarime in Criminal Appeal No. 000012880 of 2024 and setting aside its resulting orders. Page 9 of 10 As consequence, the judgment of the trial court in Criminal Case No. 173 of 2024 is restored. It is so ordered. DATED in MUSOMA this 28th Day of November, 2024. M. L. KOMBA Judge Page 10 of 10