walter munuo another vs republic another 2005 tzhc 287 25 september 2005

IN THE HIGH COURT OF TANZANIA AT MOSHI (PC) CRIMINAL APPEAL NO. 2 OF 2003 (C/F DC HAI CRIMINAL APPEAL NO. 9/2002) (C/F ORIGINAL HAI KATI P/C CR. CASE NO. 35/2002) 1. WALTER MUNUO ) 2. ELINISA URASSA ) ..............................APPELLANTS VERSUS 1. REPUBLIC ) 2. ARANYAUNYANGA D/O YOHANA ) ..... RESPONDENTS JUDGMENT HON. JUNDU. J. The Appellants in the trial court that is Hai Primary court were charged with Assault causing actual bodily harm c/ss 241 of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that the Appellants on 20/2/2002 at 3:00 p.m at Bomang’ombe within Hai District in Kilimanjaro Region did assault the 2nd Respondent and occasioned actual bodily harm to her after slapping her. In the trial court, the 2nd Respondent and her witnesses in their evidence had alleged that the Appellants and the 2nd Respondent had been attending a meeting whereby a misunderstanding erupted between the 2nd Respondent and other associates at the meeting. So the 2nd Respondent and her witnesses alleged that the Appellants assaulted her thereby occasioning actual bodily harm to her. She reported to the Police where she was given PF3, the latter was tendered in the trial court and admitted as Exhibit P I. On the other hand, the Appellants and their witnesses in their evidence denied to have assaulted the 2nd Respondent and that it was the 2nd Respondent who had abused them and chased them away from the said meeting. At the end of the trial, the trial court acquitted the Appellants having found that there was no sufficient evidence to prove the charge against the Appellants beyond reasonable doubt. The Respondent having been aggrieved by the acquittal of the Appellants, she appealed to the Hai District Court, the first appellate court. The Senior District Magistrate who heard the appeal stated “I am satisfied that the acquittal of accused persons by the primary court was not proper in the eyes of law therefore I set aside the decision of the primary court in acquitting persons and I found them guilty for the offence of assault causing actual bodily harm under Section 241 of the Penal Code as charged”. Having convicted them, the said magistrate sentenced the Appellants to a conditional discharge not to commit the same offence for a period of 12 months. The Appellants having been aggrieved by the conviction and sentence imposed on them by the first appellate court have appealed to this court listing six (grounds) of appeal in their Petition of Appeal. Though the Appellants had joined the Republic as the 1st Respondent, the latter was withdrawn from the appeal with leave of this court on 4/8/2006 after Mr. Juma learned State Attorney had submitted that the Republic had no interest in this appeal nor was it a party in the proceedings in the lower court. The Appellants, in their grounds 1, 2 and 6 contend that the appeal that the Respondent had lodged in the District Court of Hai was time barred hence the Senior District Magistrate grossly erred to entertain the same. They contend that the judgment of the trial court was delivered on 30/5/2002 but the Respondent had filed his appeal (Civil Appeal No. 9/2002) to the District Court seven months thereafter. They contend further that vide their letters dated 26/8/2002 and 4/12/2002 had informed the said court that the said appeal was time barred. The issue here is whether the appeal instituted by the Respondent in the Hai District Court against the decision of the trial court was time barred. The Respondent in her submission has vehemently challenged the submission of the Appellants. She contends that her appeal in the Hai District Court was well within time. The record shows that the judgment of the trial court was delivered on 30/5/2002. On the same date the Respondent wrote a letter to the trial court that he wished to appeal against its decision hence she requested to be supplied with certified copies of proceedings and judgment. The record shows further that the said copies were supplied to the Respondent on 2/7/2002 vide ERV. No. 15252381 and she filed the appeal on 29/7/2002. This is a period of 27 days only from the date of being supplied with copies of proceedings and judgment. In my considered view a copy of judgment is a necessary document to enable an appellant to prepare his/her appeal to an appellate court. The period taken to obtain the said copy has to be excluded from computation of time limit. In this case, the period of 30 days provided for under Section 20 (3) of the Magistrates’ Courts, 1984 to appeal to the District Court against the decision of the Primary Court has to be computed from 2/7/2002 when the Respondent was supplied with certified copies of proceedings and judgment of the trial court. As the appeal was filed on 29/7/2002 by the Respondent, it was a period of 27 days only hence the appeal was well within time. In ground 4 of the appeal, the Appellants contend that the District Court erred in not finding that a copy of the notice of intention to appeal should have been served on the Appellants and that the Respondent did not comply with the said procedure hence resulting into confusion and misunderstandings between the parties. The issue to be determined here is whether the Respondent was obliged to serve notice of intention to appeal she had issued on 30/5/2002 to the trial court on the Appellants (then respondents). The Respondent in her submission contends and I quite agree with her that there is no obligation on the appellant to serve notice of appeal on the opposite party on first appeal and that the alleged confusion and misunderstanding is denied or if any then it is self created. In actual fact, there is no obligation to issue notice of appeal under the provisions of the Magistrates’ Courts Act, 1984 by an intending appellant. In the 3rd and 5th grounds of appeal, the Appellants in effect contend that the first appellate court had failed to evaluate the evidence adduced in the trial court. They contend that the Senior District Magistrate erred to rely on the evidence of the Respondent and that of PW.2 and to ignore the evidence of the day meeting, the minutes which shows that it was in favour of the Appellants. The Respondent in her submission replied that the first appellate magistrate evaluated the evidence adduced in the trial court and that this court as the second appellate court has only to deal with points of law in an appeal but there are none in this appeal. In my considered view, the third and fifth ground of appeal raises a criminal point of law, that is whether the prosecution had proved the charge against the Appellants beyond reasonable doubt. The Senior District Magistrate relied on the evidence of the Respondent that she was slapped in the 1st Appellant and beaten by the 2nd and 3rd Appellants as well as the PF3 (Exhibit “P I”) which allegedly showed that the Respondent had sustained injuries on the left mandible. He also relied on the evidence of SM2 who contended that he had seen the 1st Appellant slapping the Respondent and the 2nd and 3rd Appellants beating the Respondent. However, the record shows that there was overwhelming evidence of the Appellants and their witnesses who were present at the meeting that the Appellants did not assault or beat the Respondents but it was the Respondent who had abused the Appellants and chased them away from the meeting. This is vividly clear from the following paragraph in the judgment of the trial court “Mashahidi wote hao wameieleza mahakama kuwa walikuwapo kwenye kikao siku ile ya tukio na mpaka kikao kilipovunjika kutokana na vurugu zilizofanywa na mlalamikaji na watoto wake za kuwafukuza watu na kuwatishia kuwapiga wajumbe wa kikao na watoto wake kuwafukuza watu na kuwatishia kuwapiga wajumbe wa kikao kila kwa matofali, hawakumuona mshtakiwa hata mmoja akimpiga mlalamikaji, na hakuna maelezo au ushahidi wowote uliopokelewa kutoka kwa mlalamikaji ulioweza kuihabarisha mahakama hii ni kwa sababu zipi mashahidi wake ambao ni nduguze wa karibu watoe ushahidi wa upinzani dhidi yake.” In my considered view, the Appellants’ evidence in the trial court had sufficiently raised reasonable doubt in the Respondents’ prosecution case. Therefore, the trial court had rightly acquitted the Appellants. The Senior District Magistrate in view of the finding of the trial court should not have overturned the decision of the trial court to acquit the Appellants as they had managed to raise a reasonable doubt on the case of the Respondent or that the evidence of the Respondent and her witnesses was not watertight to support conviction. On the premise, this appeal based on grounds 3 and 5 in the petition of appeal has merit. I hereby allow the appeal, set aside the conviction and sentence imposed by the Senior District Magistrate on the Appellants. It is so o rd e r^ H F.A.R. JUNDU, JUDGE, 25/9/2006 F.A.R. JUNDU JUDGE, 25/9/2006 25/9/2006 Coram: F.A.R. Jundu, J. For the 1st Appellant: present For the 2nd Appellant: present For the 2nd Respondent: present C/C: Matiku Court: Judgment delivered in the presence of the Appellants and in the presence of the 2nd Respondent. F.A.R. JUNDU JUDGE 25/9/2005 AT MOSHI