Anjela John v Yona Ammi

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI (PC) CRIMINAL APPEAL NO. 24 OF 2023 (Arising from Criminal Appeal No. 53 of 2023 in the District Court of Babati and Originating from Criminal Case No .113 of 2023 in the Primary Court of Dareda) ANJELA JOHN..................................................................................APPELLANT VERSUS YONA AMMI……….........................................................................RESPONDENT JUDGMENT 18th and 29th November 2024 MIRINDO, J.: Anjela John of Sabila Village in Babati District within Manyara Region, on 20 August 2023, returned her goats in the shed and left for church. On coming back, her children told her that Yona Ammi removed the goats from their shed and left with them. She traced them and found them from the compound of John Saghan, Baryomot Kitongoji Chairman. She charged Yona Ammi of goat theft before Dareda Primary Court. At the conclusion of the trial, the Primary convicted Yona Ammi. Yona Ammi successfully appealed to Babati District Court and Anjela John has appealed to the High Court at Babati. Her appeal consists of six grounds of appeal, five of which boils down to question of proper re-evaluation of evidence by the District Court. She defended her 1 appeal in person while Mr. Kuwengwa Ndonjekwa, learned Advocate, respresented, the respondent, Yonna Ammi. The appeal was argued by way of written submissions. The appellant argued that the charge of theft was proved beyond reasonable doubt and that it was proved that fourteen goats and five herds of sheep were stolen by the respondent but the respondent handed to Kitongoji’s Chairman only seven goats and five herds of sheep. Mr. Ndonjekwa argued that there was no proof beyond reasonable doubt. This is an appeal from Dareda Primary Court and the powers of the High Court on appeal from primary courts are set forth under section 29 of the Magistrates’ Courts Act [Cap. 11 R.E. 2019]. These powers are very broad and include the power to rehear an appeal as was held in Archard Muhandiki v Asteria Mulwani and Thobias Tegamaisho, Civil Appeal 11 of 1992, the Court of Appeal noted with particular emphasis the import of section 29 (c): …In fact section 29 (c) gives the High Court more powers that this Court under section 4 (2) of the Appellate Jurisdiction Act, 1979…The Court of Appeal can only do what the court from which the appeal comes could have done. But the High Court can do what the original court i.e. the Primary Court, and not the District Court, could have done. The High Court has in essence the power of rehearing notwithstanding the approach taken by an appellate District Court. I will proceed to consider whether the District Court properly re-evaluated the evidence adduced before the trial court. 2 It is common ground that the respondent seized animals belonging to the appellant and that he took them to Kitongoji chairman. It is clear that the appellant found seven goats and five herds of sheep from the Kitongoji Chairman. The only point in dispute is the number of the goats actually seized by the respondent. It was the appellant’s case that she had fourteen goats, they were seized by the respondent but only seven of them were recovered. It is the respondent, the appellant argued, who knew where the rest of the goats were. Safari Qaduwe, the second appellant’s witness met the respondent and his child with goats and herds of sheep. He did not know their numbers. The third witness for the appellant was Amani Joseph was at the compound of Kitongoji Chairman and saw the respondent bringing the animals. He said nothing about their number. The respondent defended himself that he seized the animals because they had grazed on his farm. Under these circumstances, there was no evidence of the actual number of goats other than the report by the Chairman of Barymot Kitongoji. The chairperson was never called as a witness and one is bound to agree that the only goats are those listed by the Chairman in a document and handed back to the appellant. Again, there is no evidence to suggest that the respondent intended to part permanently with the ownership of the animals. That this was so is borne out by the fact that after seizing the animals, the respondent took them to the Kitongoji Chairman. In a short report prepared by John Saghan, the Baryomot Kitongoji Chairman after receiving the animals from the 3 respondent, it is stated that the animals were seized from the respondent’s farm. This fact negates the intention to steal. This report was tendered by the appellant herself and was admitted by the trial court. In the fourth ground of appeal, there is a criticism that the appellate magistrate pronounced a contradicting judgment as he wrote that the respondent was charged with the offence of entering a dwelling house with the intent to commit the offence. Because of this omission, “it is like the appeal was never heard” by the District Court. I find that as a slip of the pen as the entire judgment of the appellate magistrate made reference to the charge of stealing. There was no miscarriage of justice. It follows that I uphold the decision of the Babati District Court and dismiss the appeal. DATED at BABATI this 29th day of November 2024. F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 29th day of November 2024 in the presence of the appellant in person and in the presence of the respondent in person and his counsel, Mr.Kuwengwa Ndonjekwa. B/C: Ms. Anna Mathayo present (RMA). Right of appeal explained. F.M.MIRINDO JUDGE 4