20200507 TZHC Dar es Salaam

.. , -... IN THE HIGH COURT·OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) - AT DAR ES SALAAM CRIMINAL APPEAL NO 305 OF 2017 (From Original Criminal Case No. 49 of 2019, Bagamoyo District Court, Bagamoyo) DPP .................................................................................APPELLANT VERSUS -RASHID ABDALLAH SHARIFU .................................... RESPONDENT JUDGEMENT- Date of Last Order: 05/03/2020 Date of Judgment: 07/05/2020 MLYAMBINA, J. In the District Court of Bagamoyo at Bagamoyo, the herein respondent one Rashid Abdallah Sharifu was charged with causing grievous harm Contrary to Section 225 of the Penal Code/ Cap 16 (R.£2002). It was alleged that, on 29th day of January, 2017 at about 14:30 hours at Migude Kitopeni area within Bagamoyo District Coast . ·Region· the respondent herein did cause grievo~ ·harm to one Bushiri Kitamboyi on his left hand by using knife and causing him to sustain bodily injuries. The respondent pleaded not guilty to the said offence. After hearing, the trial court found the respondent 1 guilty of the charged offence and imposed sentence in the following wording: ''Having taken into consideration as to the nature of offence, character of accused and the fact that the accused is the first offender, I found it expedient to impose custodial sentence. I hereby sentence the convict to pay a fine of Tshs 5 Million- or 3-years imprisonment in default ofpayment as per Section 27 (2) of the Penal Code Cap 16 (R.E 2002)" The appellant being aggrieved with the afore decision of the trial court lodged this appeal against the sentence on one ground: That the honorable Magistrate erred in law for not properly sentencing the respondent according to the law. Wherefore, the appellant prayed the sentence imposed by the District Court be quashed and set aside and the respondent be properly sentenced. The appellant enjoyed the service of Mr. Credo Rugaju senior State Attorney. The respondent was competently represented by senior Counsel Professor Abdallah J. Safari. On 31st October, 2019 when the matter came for hearing, by consent of both Counsel, it was ordered the appeal be argued by way of written submissions. According to the schedule, the 2 appellant was to file its submissions by 21/11/2019, reply by 12/12/2019 and rejoinder (if any) by 19/12/2019. The matter was to be mentioned on 5th March, 2020 to set the judgement date. To the contrary, the appellant filed their submission on 25th November, 2019 instead of 21st November, 2019. Professor Safari has prayed the appeal be dismissed for want of prosecution basing on the decision in the case of Castei Low v. Somerset County (1993) ALL ER 952 as was cited with Approval in Mobrama Gold Corporation Ltd v. Minister for Energy and Minerals and the Attorney General and East African Gold Mines Ltd as Intervenor (1998) TLR 425. The appellant did not rejoin on the proper position of law as regards status of filing written submission, as stated by Professor Safari. This court and the court of appeal has reiterated the same principle in various decisions. In the case of Ivan Mankobrad v. Miroslav Katik and Another High Court Civil Case No. 321 of 1997 Dar es Salam District Registry (unreported) the court observed the following as regards filing written submissions: "They are meant to command parties to act within a time frame fixed by the court Ifparties are to act in total disregard 3 to those orders then court business will be rendered uncertain/ and that will not be good for the efficient administration ofJustice" In the case of Fredrick A. M. Mutafurwa v. CRBD 1996 Ltd and Others, High Court Land Case No. 146 of 2004 the court had these to observe: ''Practice of filing submissions is tantamount to hearing" In the case of NIC of (Tanzania} and Consolidated holding Corporation v. Shengana Ltd Civil Application No. 20/2007 his Lordship Kalengeya J. A. observed that: "The 1st applicant did not file submissions on due date as ordered. Naturally the court could not be made impotent by a party's inaction. It had to act.. .it is a trite law that failure to file submissions is tantamount to failure to prosecute one's case. In this case the supporting submissions was not in place/ the court." Even if I'm to consider the appeal on merits, I find the appellant has not advanced convincing arguments. There is no dispute that the respondent was charged of grievous hard contrary to section 225 of cap 16 (supra) which provides: 4 • '!4ny person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years." The appellant submitted that page 6 of the proceedings last paragraph at the bottom shows that the victim had suffered permanent disfigure on his right hand which was caused by the act of the respondent to cut him (PW1) with a bush knife in the cause of stopping the respondent to build on the plot of PWl. According to the appellant, going by the record, the respondent in his defense at page 15 of the proceedings agreed to have pushed PW1 one Bushiri. In that defence the respondent did not tell the truth of the matter. A. mere push could not have resulted PW1 to suffer grievous harm. The respondent used bush knife to cut the hand of PWl. It was further submitted by the appellant that the trial court in the judgment wrote to have considered the nature of offence and character of the accused to assess the punishment. The appellant wondered which character of the accused the trial court considered while assessing the punishment to the respondent to the respondent. In view of the appellant, the section within 5 . which the respondent was charged requires the accused be sentenced to seven-year imprisonment and not otherwise. As properly replied by professor safari, the maximum imprisonment of seven years for causing grievous bodily harm is not mandatory but can be reduced to a lesser sentence in terms of Section 27 (2) of the Penal Code Cap 16 {R.E. 2002). Section 27 (2) {supra) provides: '!4 person liable to imprisonment may be sentenced to pay a fine in addition to or instead of imprisonment or where the court so determines under the community service act to community service. " In this case, the respondent upon being sentenced to pay a fine of five million shillings or serve three years imprisonment, he opted to pay the said fine in lieu of custodial sentence. Above all, the alleged knife used to inflict the grievous harm was not tendered as exhibit by the prosecution. Further, there is nothing in record to establish that the respondent is a person of bad character. After all, assessment of character of the witness is the sole domain of the trial court. This court cannot interfere it unless there are good reasons to do so. 6 Again, mere wondering of the appellant on the character of the respondent by itself is not a sufficient cause of nullifying the trial court sentence. It is more so when it is apparent, like in this case, that the respondent was the first offender. In the circumstances of the above, the appeal is hereby dismissed for want of prosecution and for want of merits. Both conviction and sentence imposed by the trial court to the respondent are sustained and upheld. Order accordingly. Y. J. YAMBINA Junr.-1---- 07/05/2020 Judgement pronounced and dated 7th May, 2020 in the presence of Credo Rugaju, Senior State Attorney and Counsel Professor Safari for the respondent. BI 07/05/2020 7