amosi so goyi vs zawadi do lihwa 2007 tzhc 139 1 october 2007

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (PC) CRIMINAL APPEAL NO. 1 OF 2006 ORIGINAL CRIMINAL CASE NO. 15 OF 2005 OF THE DISTRICT COURT OF BARIADI DISTRICT AT BARIADI ORIGINAL NYAKABINDI PR. COURT CRIMINAL CASE NO. 7/2005 RTCFORF,: J D MAYAYA. Each PRINCIPAL DISTRICT MAGISTR/!TE AMOSI s/o G O Y I.................................................APPELLANT (Original Accused) Versus ZAWADI dJo LIHW A........................................... RESPONDENT (Original Prosecutor) JUDGMENT 1st Aug.07 & 7th Sept.07 MUJULIZI. J. Amosi s/o Goyi, the Appellant herein, was arraigned before the Nyakabindi Primary court in Criminal Case no. 7 of 2005 on 1 charges of obtaining money by cheating c/s 304 of the Penal Code (Cap. 16 R.E- 2002) upon a complaint filed by Zawadi d/o Liwa the Respondent herein. In the particulars of the offence it was alleged that, the Appellant, a peasant farmer of Mwadabona Village, Dutwa Division, in Bariadi District of Shinyanga Region, had, on 14/03/2002 at 06.00 requested for the cash, Tshs. 500,000/= claiming that he was heading for Mwanza to procure (buy) goods for his shop. However, that, although he received the said amount of money from the Respondent, he later refused to refund the ir^nev upon being requested by the Respondent, on grounds that; the Respondent had no evidence to prove*£nat sue nuu UuJ' money to him as claimed. To support the charge, the complainant testified that the Appellant was her husband and that between 12/2001 — 2004 the Appellant had taken the money amounting to Tshs. 500,000/= in installments as follows; ■ Tshs. 150,000/= to buy goods for the shop. - Tshs.m80,000 - when he alleged that hehad goneto buy a motor vehicle (He stayed away for three weeks) ■ Tshs. 85,000 for the same motor vehicle. • Tshs. 50,000/= for repairs of the motor vehicle (spare parts) - Tshs. 135,000/= for the business of selling fuel on whole sale in Nansimo. 2 - Plus Tshs. l'0,000/= when he was departing. Then; after that, she. started following up repayment to no avail; and instead,, he assured her, that she need not have fears of loosing the money since she was occupying his house. Thereafter* he changed his mind and tried to send her out of the houses claiming that she was not his wife. It is after this matrimonial problem that she decided to file the complaint. The second witness on the prosecution side, Magumba Masululu, testified that; he new the Complainant and the accused, who^a^to^hi^know ledge been living together, in one Jiouse until when the accused moved with his wife to N&ismiu me complainant in the house. The third witness for the prosecution, only testified to the effect that;, all that he knew, was that the Complainant and the accused had lived together as husband and wife. The fourth witness, the Complainant’s son, only testified; that; in June, 2003 he had witnessed the complainant give the accused Tshs. 150,000/=. In criminal matters, the burden of proving the charge beyond reasonable doubt lies squarely on the prosecution. The Primary Court considered the evidence adduced by the Respondent to prove the charge, and came to the unanimous decision that the complainant had failed to prove the essential 3 elements of the charge, including the fact that she was in possession of the said sum of Tshs. 500;000/=. It therefore acquitted the Appellant of the charged offence, but then stated “Hivyo namwachilia huru chini ya kanuni ya 32 ya endeshaji wa mashauri ya jinai.” I am not sure why after acquitting the accused the Court would proceed to discharge the accused under Rule 32 of the Primary Courts Criminal Procedure Code —(Third Schedule to the Magistrate’s Courts Act Cap. 11. R.E. 2002) which relates to conviction upon accused admitting the offence, unless he meant Rule 37(1) of the same, code w I.will treat the reference to Rule 32 in the typed judgment as a typographical error. Aggrieved by the decision, the Respondent herein filed appeal to the District Court on 7/06/2005, but later filed another, on 5/7/2005, attaching certain documents, and changing the claim to Tshs. 1,820,000/= inclusive of accrued interest, in addition to * raising complaints that the trial Primary Court had refused to accept the Respondent’s documentary evidence as well as refusing to take the testimony of three named witnesses, who, she alleged, were present at the trial. For good measure, she attached to the 4 second batch of “ sababu za rufaa a letter from her church to prove that the Appellant herein was her husband. The judgment appealed frcrm to the District Court was delivered on 9/5/2005 when the right to appeal within 30 days was explained to the parties. However, as stated above, as the record stands, there are two versions of “Sababu za Rufaa.” The second one was filed on 5th July, 2005. This, is follo\^ing a prayer by the Respondent, to the District Court on 21/6/2005^ when the appeal was firs^ m en tion ef^ ^Jie it. She prayed for, and, was granted, the prayer- “to be supplied with copy of the judgment so that I should prepare fresh grounds of appeal. ” Before proceeding further, 1 will exercise my revisional powers, to strike off the record; this second document. It is not a Petition of Appeal, but rather, it amounts to an originating claim for it states among other; " Kwamba sasa mjibu rufaa nina mdai Tshs. 1,820,000/= kama ifuatavyo/ (a) Riba Tshs. 1,470,000/= (tangu 12/1/2003 mpaka 30/6/2005, ni miezi 42 = 35, x 42) (b) Fedha nilizo mkopesha ni Ths. 350,000/=, Jumla ya fedha zote ni Tshs. 1,820,000/=. Pia ikumbukwe kuanzia mwezi wa Julai, 2005 5 riba itaendelea .kudaiwa kila m wezi Tshs. 35,000/= hadi hapo madaiyoteyatakapolipwa kikamilifu” In my judgment, the Respondent’s claim on appeal- of matters not raised in criminal charges before the Primary Court, was an abuse of the process of the Court, and could only be excused on the part of the respondent being a lay person. But. not so for the learned District Magistrate. He ought to have reject t:<i that document., if anything, to bring back the appeal to its prope r perspective. I therefore proceed to strike ihgt document from the record.] Having done so there remains only the undated “Sabahiu Rufaa.” The one filed on 7/(i/2UU5. I now revert to the appeal before me. The appeal is not against the judgment of the District Court. The District Court is yet to determine the appeal from the decision of the Primary Court. What happened is that; after hearing the appeal, the Court reserved its judgment to 30/8/2005. But, then, before delivering judgment gave an order, in the absence of the parties to the effect; 6 ORDER: For interest of justice I order additional evidence of people alleged to had (sic) witnessed appellant giving the respondent Shs. 350,000/= be called as additional witnesses. These witnesses have (sic) named as Josephin. 2) Barnaba and 3. Kisenga. Additional evidence to be recorded by J Jewe (PCM) stationed at Nkolo” The appeal is against this order. On the fa<v of it- this is an interim order. 'The District Court is yet to hand o u t its judgment in the Appeal. Under section 2] of the Magistrate’s Conn Aci (Cap 11. R.E.2002J the District Court has powers, in tin* exercise of it Appellate jurisdiction; to direct the Primary Court to take additional evidence and to certify it to the District Court or, for reasons to be recorded in writing, to hear additional credence itself; I am satisfied that the District Court was exercising that power in relation to the order appealed from. It would be prejudging the matter if I were to interfere with that order at this stage. The Court should be left to conclude the Appeal, which it is still properly seized with. The Appeal, if any. should'only come after the Court has given its judgment. The matters giving rise to the order of the District Court directly arise from the “Sababu za Rufaa.” Grounds no 2 and no. 3 thereof. The record also shows that the Respondent when arguing the appeal said; “Appellant: My testimony wasn’t correctly recorded. I recorded the transaction related to the dispute money in writing but trial primary court refused my document as exhibits” Itjis not proper for me at this stage to determine whether or not the District Uourt was correct m exercising m a t discretion- m view of the evidence on record during trial, because that, is a matter to be determined, only if the District Court ever reverses the decision of the Primary Court acquitting the Appellant. Section 25 (1) (a) of the Magistrates’ Court Act, (Cap. 11 R.E: 2002) provides; “20-(l) save as hereinafter provided-(a) in proceedings o f a criminal nature, any person convicted of an offence or in any case where a district court confirms the acquittal of any person by a primary court or substitutes an acquittal for a conviction, the complainant or the DPP or, if aggrieved by the decision or order etc. “may appeal. ” I find no licence in that section, granting a right of appeal, to any party, in Criminal Proceedings, to appeal against an order for additional evidence. In the premises therefore, the Appeal before me is not maintainable. It is therefore dismissed. Let the tile be remitted to the District Court to expedite the determination of the appeal still pending before it . JUDGE 7/9/^007 ORDER DR; I will be on leave on the date scheduled for delivery of tnit judgment. Deliver it on my behalf. A.K. M U J UL<lZil JUDGE 7/9/2007 Date: 1/10/2007 C-oram- I. Arufani, Ag.DR. Appellant’- Amosi Goyi * Absent no return of service. 9 Respondent- Zawadi Lihwa, absent no return of service. CC- Mr. Nhelegani, RMA. Court' Judgment delivered today 1st day of October, 200 I. AEUFANJ AG: DISTRICT REGISTRAR 1/10/2007