20111010 TZHC DODOMA

. , ... .· •: i, 0 IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION (PC) CRIMINAL APPEAL . NO 1 OF 2011 .: . (From the··Decision of the District Court of Kongwa at Kongwain Criminal Appeal No 30 of 201.0 Arising From ....,.> · -Criminal Case No 213 of 201.0 ·· '.°<::r . -Of Kongwa . . i.J~ban Primary . Cour,tJ . . . ' . .. : .... \~:.-\--. ~ : --~ MAKU RUNGE TU MBO ....:... ·.·-~ ~ ~: ~ ...·.....:...... 'I • • --~)~t:•:t(.... ~ -~~-:·.APPELLANT • •,:,•.•• • . __ ~ VERSUS ... . .. • ~ ·~. 111: ,· :; 1.:.JACKSON SEBUNGA} .... , .:' 2 ...-SAMSON:_._.(fHIMAISI 3. MONICA·SEBUNGA . '·--::··:. . . ............. ~~<~ ········RESPONDENTS .· ~ . .. . . .. . . •, JUDGMENT 05/09/2011 & 10/10/2011 KWARIKO, J. The respondents herein were arraigned before the trial court with the offence of threatening violence c/s 89 (2) of the Penal Code Cap 16 [R. E. 2002]. The three had denied the charge hence their trial. The facts of the case at the trial reveal that the appellant herein, PW1 who was . the complainant testified that on the unknown day while he was at Kongwa the respondents herein 1 ti .-. ,. Q discussed his granddat.fghter's engagement. That,. when he returned home he found a letter (exhibit pl) threatening· him death. He did not know the author of the letter but suspected the respondents because they discussed his granddaughter's engagement in his absence. His two witnesses told the court that they knew nothing about the allegations. Armed vyith the foregoing evide~c:e the trial court ruled that the respor.idents had. no case to answer herice ·dismissed the charge and.· acquitted them in terms of section 36 of the Primary Courts Crin{ina!Procedure.Code. . . .. -.•,'. . .. .·.·.. •,• . .· ;....· . . . .. . . . ·: . .· y::?!{P:, . .... · . Havi.ng·: been :·.oiss··atisfied with the tn~r··:court's decision the appellant unsucce·s'sfully appealed ·befof~tlhe: :pistrict Court of Kongwa·. Thereforef:this is a second·:appe:~-j where the appellant · filed . upon two . g:tounds of appeal , wh.ere (n. essence he is. complaining thaf·'ihe first appellate couft· erred to dismiss the appeal without -considering his evidenc·e. -:·:sec:ondly, the appellant complains that the district court 'did not· give him opportunity to give his evidence . . . . When the appeal came before the court for hearing the 1st respondent did not appear and prior efforts which had been made to serve him proved futile as he was reported to be away to Tanga and had lost contact with his_ family including his wife ahd son, the 2nd and 3rd respondents respectively. The appeal was ordered therefore to be heard in his absence. However, for reasons that will be apparent soon this appeal will not be decided on merits. Since the particulars of the charge and the facts of the case show that the appellant received written threats, the right offence which the respondents ought to have 2 . :·· · .. · .· ·• . : ·,., r . ... ··.....: ·:. ,,' .. · ·.. : ·:· . . ·· ::· .. . ,,; . . ; ' . : .!\ ••• .. I •• I,' ' 0 been charged is Written Threats to Murder c/s 214 of the Penal Code Cap 16 R.E.2002 as amended by Act No 4 of 2004. This offence is not in the list of offences which the law gives . :. jurisdiction to the primary courts to try (see First Schedule to the·· Magistrates' Courts Act Cap 11 R.E.2002). For,:nerly,_ this offence wa_s triable by the High Court only but Act No 4.. -.of·· :·:. 2004. ·.amended the_ First Schedule 'to the Criminal Procedur¢>:.iAct . Cap 20 R.E.2002 to vest jU'risdiction to a subordinafe·court to try this offence. The Cri'min.al Procedure Act is only app°i'ic:able tcr the High Court, the Cowrt of Resident Magistrate· and. the;·.oistrict Court unless oth.e:r~ise/pr,ovided in the Act and the_·.prim:aty•:.:court has· its own: Crirrf'inaJ ·Prot~dure Code. . :. : . \'' :· ' ·.. :? . .:. ' •. . '. .. .. ;. ~ ., . ·~•. . . It. follows· Jh·e-~efore that the trial. prim~ry court had no jurisdiction to 6-y" this offence. Thus the proceedings . . there were null and void and are quashed. Likewise·-tne .proceedings of the first appellate court which originated in 'the·-_null· proceedings are equally void and are quashed. This court thus cannot entertain the appeal that originated in the null proceedings. :Jt is dismissed for being incompetent. The appellant is advised if he so wishes to report the complaint to the police for necessary action. It is ordered accordingly. -Al~ ;~ .~.K~ARiKo) JUDGE 10/10/2011 3 Q COURT; Right of Appeal fully explained. --1 CM~~Ri~o~ . JUDGE 10/10/2011 .· ··:· DELIVERED At.-·ooDOMA 10/10/2011 : ·_,· .. . ... . .. .. . ,••. : '•.1 ·.'· ,• . . . . .. , . Appellant: Present ··.·.,·.. . ·~·.. . ,··. "\ •,••'. ' st - .. ··, \ . •.•. .. . 1' • 1 Respondent: Absent 2 nd Respondent: Present . rd • 3 Respondent: Present C/C: Ms Komba. 4