rehema makonda vs kitindi bulabo 2021 tzhc 5536 30 july 2021

IN THE HIGH COURT OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA CRIMINAL APPEAL NO. 6 OF 2019 (Arising from Judgment of the District Court of Nzega in Criminal Appeal No. 4 of 2019 delivered on 20th June 2019 (G.N Barthy, RM) REHEMA MAKONDA............................................ APPELLANT VERSUS KITINDI BULABO................................................. RESPONDENT JUDGMENT Date of Last Order: 21/05/2021 Date of Delivery: 30/07/2021 AMOUR S. KHAMIS, J; In this second appeal, Rehema Makonda challenges Judgment and Orders of the District Court of Nzega which upheld a decision of the Nyasa Primary Court pronounced in favour of Kitindi Bulabo, the respondent herein. In the trial Primary Court, Rehema Makonda had filed a complaint leading to a charge against Kitindi Bulabo for assault occasioning actual bodily harm contrary to Section 241 of the Penal Code, Cap 16, R.E 2002. 1 It was alleged that on or about 18th day of October 2018 around 6.00 hours at Undomo area, Uchama Ward, Nyasa Division in Nzega District, Kitindi Bulabo assaulted Rehema Makonda by beating her with fists on various parts of the body thereby causing great pains. Upon trial, Kitindi Bulabo was acquitted for insufficiency of evidence. On appeal to the District Court of Nzega, the trial Court’s decision was upheld. In the present appeal, Rehema Makonda advanced four grounds of appeal, namely: 1. That the learned Resident Magistrate erred in law and in fact in deciding the case before it against the weight of the appellant’s evidence. 2. That the learned Resident Magistrate erred in law and in fact by holding that at the appellate Court there was no application for extension of time without regard that Court granted extension of time to the appellant vide Misc. Criminal Application No. 2/2019. 3. That the learned Resident Magistrate erred in law and in fact by posing a question suo motto on whether the records of the trial Court shows that the said witness one Shija Masanja testified as PW 3 (SU 3) before the trial Court by name of Shija Madaha. 2 4. That the learned Resident Magistrate erred in law and in fact by neglecting to direct the trial Court to take additional evidence of PF 3 from Police Station and medical examination report from the doctor of the hospital of Nzega. Kitindi Bulabo filed a Reply to the Petition of Appeal challenging all grounds of appeal and subjecting the appellant to strict proof thereof. Throughout this appeal parties were unrepresented and hearing was conducted through the video conference facility. Whereas the appellant adopted the four grounds of appeal, the respondent (Kitindi Bulabo) adopted contents of the Reply to the Petition of Appeal as their respective submissions. This being a second appeal, I am cautious of the duties of this Court at this stage. Such role was well explained in AMZRATZAL DAMODAR’S MALTASE AND ANOTHER t/a ZANZIBAR SILK STORES V A. H. JARIWALLA t/a ZANZIBAR HOTEL (1980) TLR 31, thus: “In my respectful view, where, as in the first instant case, there are concurrent findings of facts by two courts, this Court should as a rule of practice follow the long established rule repeatedly laid down by the Court of appeal for East Africa, that an appellate Court in such circumstances should not disturb concurrent findings offacts unless it is clearly shown that there 3 has been a misapprehension of the evidence, a miscarriage of justice or violation of some principle of law or procedure.” In R V HASSAN BIN SAID (1942) 9 EACA 62 the same legal principle was stressed that: “On second appeal, the Court of Appeal is precluded from questioning the finding of facts of the trial Court, provided that there was evidence to support those findings, though it may think possible, or even probable, that it would not have itself come to the same conclusion. It can only interfere where it considers that there was no evidence to support the finding offact, this being a question of law. ” Having set the standards, I will now address the parties’ contentions. In a Reply to the Petition of Appeal, the respondent contended that the present appeal was time barred. Section 25 (1) (b) of THE CRIMINAL PROCEDURE ACT, CAP 20, R.E 2019 provides that any party aggrieved by the decision or order of a District Court in the exercise of its appellate or revisional jurisdiction may, within thirty days after the date of the decision or order, appeal therefrom to the High Court and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired. 4 The impugned Judgment of the District Court of Nzega was delivered in presence of both parties on 20th June 2019. The petition of appeal was lodged in this Court on 15th July 2019. By simple arithmetic, the present appeal was lodged on the 25th day from date of delivery of the Judgment and thus within time. The respondent’s allegation on time limitation is therefore rejected. I will now address the grounds of appeal. In the second ground of appeal, Rehema Makonda faulted the appellate magistrate for holding that there was no application for extension of time. According to her, she was granted extension of time vide Misc. Criminal Application No. 2 of 2019. Kitindi Bulabo strongly resisted this claim asserting that an application for extension of time was neither lodged nor served on him throughout the proceedings in the lower Court. This issue should not detain me. The records before me excludes proceedings in respect of Miscellaneous Criminal Application No. 2 of 2019 and the appellant did not attach or supply any document in respect of such proceedings. The appellate magistrate observed at page 2 that the appeal before it was time barred and no application for extension of time was filed. 5 However, the District Court went ahead to extend time suo motto and thus determined the appeal on merits. In that context, it is of no use to prolong this ground of appeal which is thus declined. In the fourth ground of appeal, Rehema Makonda reproached the appellate magistrate for failure to direct the trial Court to take additional evidence of the PF 3 from Police Station and medical examination report from the hospital. Kitindi Bulabo asserted that the appellant was given a chance to call her witnesses and submit any evidence in her possession but failed to do so. While addressing this issue, the appellate magistrate discerned that: “It is apparent that from the face of record the appellant was not denied to tender her PF 3 as she alleged. But she informed the Court that it was at the police station. The appellant did not state she was denied to take it from the Police or why she did not bring it from the Police Station.....” It is trite law that a party is bound to prove its case on the standards required. Rule 1 of THE MAGISTRATES9 COURTS (RULES OF EVIDENCE IN PRIMARY COURTS) REGULATIONS, G.N NO. 22 OF 1964 as amended by G.N No. 66 OF 1972 provides that where a 6 person is accused of an offence, the complainant must prove all the facts which constitute the offence, unless the accused admits the offence and pleads guilty. Proceedings in the trial Court show that the respondent pleaded not guilty and the case proceeded to trial. The complainant Rehema Makonda, the present appellant, testified as SM 1 followed by SM 2 Kulwa Abdallah. Thereafter, the appellant sought for an adjournment on the ground that her next witness was sick. On 3/12/2018, Rehema Makonda informed the trial magistrate that she was no longer interested to summon the remaining witness and prayed to omit his name from the list of witnesses. Further, the appellant prayed to close her case which prayer was granted by the trial magistrate. The appellant personally signed proceedings evidencing that she willingly closed her case. In such happenings, I find no reality in the fourth ground of appeal which is disallowed. In the third ground of appeal, Rehema Makonda attacked the appellate magistrate for observing that Shija Masanja and Shija Madaha was the same person who testified as SU 3. She contended that the appellate magistrate wrongly acted suo motto in linking the two names to one person. Responding to that assertion, Kitindi Bulabo propounded that: 7 “.....Since the learned Resident Magistrate stated clearly in the judgment without any ambiguity that in the records of the trial Court the said Shija Masanja testified during the trial as PW 3 (SU 3) by another name of Shija Madaha and if the appellant was under any impression that the said witness was her key witness why she did not call him to testify in her favour which is her duty to call for her witnesses.” In page 3 of the typed Judgment, the appellate magistrate wrote that: “Also the claim that the Court did not call Shija Masanja the witness who was at the scene. However, the records of the trial Court shows that the said witness testified as PW 3 (SU 3) before the trial (Court) by name of Shija Madaha....... ” In her testimony, SM 1 Rehema Makonda stated that after the respondent had beaten him, a man showed up at the scene and questioned him as to what had transpired. SM 1 Rehema Makonda narrated as to what had happened and that the later escorted her to her residence. SU 3 Shija Madaha informed the trial Court that on his way back from safari, he saw the appellant holding a stick and threw it to the respondent. He drew closer and questioned what happened. According to him, the appellant explained that the respondent spread rumours of having an affair with her. 8 SU 3 Shija Madaha added that the appellant said that she could not have an affair with such a type of a person. Having examined the records and considered parties’ rival arguments, I am of the view that the appellate magistrate did not err in linking the two names because she did so in the course of evaluating the evidence on record. In any case, that observation did not do away the appellant’s duty of proving her case beyond reasonable doubts. I therefore find no density in the third ground of appeal which collapses. In the first ground of appeal Rehema Makonda maintained that the appellate magistrate decided the case against the weight of her evidence. In reply, Kitindi Bulabo contended that the appellant brought one witness, her husband against three witnesses of the respondent. He added that all three witnesses paraded by the respondent were present at the scene as opposed to the appellant’s witness. In her Judgment, the appellate magistrate reviewed the evidence on record and concluded that the respondent’s case was heavier than that of the appellant. The question is whether this conclusion was supported by the evidence on record. As I said earlier, two witnesses testified for the appellant: SM 1 Rehema Makonda and SM 2 Kulwa Abdallah. 9 Whereas SM 1 narrated on how she was allegedly attacked by the respondent, SM 2 was not at the scene and failed to corroborate her case. SU 1 was the respondent Kitindi Bulabo, SU 2 was Mustafa Bulabo and SU 3 was Shija Madaha. According to their testimonies, all these witnesses were at the scene and testified to the effect that it was the appellant who used a stick to hit the respondent. In such circumstances, there was nothing to fault the concurrent findings of facts by the two magistrates below. Consequently the entire appeal is hereby dismissed with no gme'ni delivered in chamber Court in presence of both the £_ x x f Appeal explained. io