justinian clemence vs justus clemence 2023 tzhc 23374 15 december 2023

IN THE HIGH COURT OF TANZANIA (BUKOBA DISTRICT REGISTRY) AT BUKOBA PC CRIMINAL APPEAL No. 16 OF 2023 (Arising from CriminalAppeal No. 4/2023 of the District Court ofBukoba at Bukoba and Originating from Criminal Case No 5/2023 of Bukoba Urban Primary Court) JUSTINIAN CLEMENCE ....... ................................ APPELLANT VERSUS JUSTUS CLEMENCE.... ................. ............ RESPONDENT JUDGMENT 14^ November & 15th December2023 OTARU, J.; Justinian Clemence, the appellant herein and Justus Clemence, the respondent are brothers. The respondent had complained against the appellant in the Primary Court of Bukoba Uf'ban that he (the appellant) threatened to kill him with a panga, contrary to section 89(2)(a) of the Penal Code (Cap. 16 R.E. 2022). At the trial, the respondent relied on five (5) witnesses, including himself while the appellant relied on himself and one additional witness. The trial court was riot convinced by the evidence adduced in court. It held that the Prosecution failed to prove beyond reasonable doubt the case against the appellant. The court acquitted the appellant. Aggrieved, the respondent appealed to the District Court of Bukoba District at Bukoba. The appeal was decided in his favour by finding the appellant to be guilty and sentencing him to pay a fine of Tshs 200,000/=. It was the appellants turn to be aggrieved. He i filed this appeal based on four grounds. All grounds revolve around the question of evidence. The appellant faulted the first appellate magistrate for convicting him while the case was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant was represented by Mr. Derick Zephurine, learned Advocate Mr. Danstan Mutagahywa, also learned Advocate appeared for the respondent. The appeal was heard by way of written submissions. The appellant begun by questioning the prosecution's case and pointed out the doubts that the trial court had observed including the panga not being tendered as evidence in court. He also challenged the reasoning of the first appellate court which he said failed to consider the appellant's defense. In support: of his arguments, he cited the case of Leonard Mwanashola vR, Criminal Appeal No. 226 of 2014 (CAT) unreported. He thus humbly prayed to the court to re-evaluate the evidence: on record and decide accordingly. On the part of the respondent, the learned advocate argued that not submitting the panga in court could not change the fact that the incident happened. He also claimed that the evidence adduced at the trial proved the case beyond reasonable doubt against the appellant. He also stated that the defence evidence was rightly ignored by the appellate court due to credibility aspect. He finally urged the court not to interfere with the decision of the 1st appellate court because no misapprehension of justice had been shown by the 2 appellant. In support of his contentions, counsel relied on the cases of DPP v Jaffari Mfaume Kawawa [1981] TLR149 and Musa Mwaikunda v R [2006] TLR 387. I have considered the grounds of appeal, the rival parties' submissions as well as the records of the courts below. Thus, the issue for determination of this court is whether the case against the appellant was proved beyond reasonable doubt This being a criminal case, by virtue of R, 5(1) of the Magistrates' Courts (Rules of Evidence in Primary Courts) (GN No, 22 of 1964) the standard of proving such cases is beyond reasonable doubt. The trial magistrate cited the provision and made reference to the case of Hassan Naziru v Peradius Perinton, (PC) Criminal Appeal No. 26 of 2020, (HCT at Bukoba), unreported, where the cited provision was discussed. I have observed that the source of the dispute is the appellant planting banana trees. According to the appellant, he was planting on his shamba but the respondent claimed that the trees were blocking his neighbor's entrance such that he decided to confront the appellant by asking why he was doing that. That when confronted, the appellant attacked him using words, then took a panga with intention to kill him. When he run for his dear life, the appellant chased him to his home. 3 The trial magistrate considered the evidence as adduced by the five witnesses of the prosecution and the two witnesses for the defense. After analysis of the overall evidence, he concluded that the defense has managed to create doubts in the Prosecution's case. He was of the view that the case against the appellant was not proved to the required standard. However, the 1st appellate court was of a different view. The 1st appellate court considered that the case was well established against the appellant and proceeded to convict him. It is not in dispute that the appellant was planting banana trees. It is however in dispute as to where the said trees were being planted. Was it on the appellants own shamba or blocking other peoples' entrances. It is on record thatfthe respondent went to complain to one Deus Alexander Kailembo (SM2) a local government leader, about the appellant planting trees which were blocking the street. He followed up on that and found the appellant with his tools (a pangaand a hoe). He then arrested the appellant for blocking the street by planting banana trees. Nothing about the threat to kill the respondent was mentioned. The witnesses who supported the respondent's version are his Wife (SM3) and daughter (SM5). SM3 stated that the appellant run after the respondent with a panga until he was caught. SM5 stated that the appellant was caught just as he raised his panga to cut the respondent. However, the person who Is said to have caught the appellant (SM4) stated that the appellant was caught when he was proceeding with his tree planting activity. The 4 appellant's side of events is that he (SU1) and his assistant (SU2) were confronted by local leaders for blocking the road with banana trees. Reading between the lines, the appellant's version tallies with what SM2 stated. In my view, SM3 and SM5 had interest in the case, thus the possibility of favoring the respondent is grave. The testimony of SM2, a neutral party is more believable than that of SM3 and SM5. Even SM4 indicates that the respondent was not in any danger of being killed by the appellant as alleged. Consequently therefore, stepping into the shoes of the trial magistrate, I too am of the view that the case against the appellant was not proved beyond reasonable doubt as required in criminal cases. As a result, the answer to the raised issue is negative; that is the case against the appellant was not proved beyond reasonable doubt. Subsequently, I find this appeal to be meritorious and it is hereby allowed. The findings and judgment of the District Court of Bukoba at Bukoba are quashed and set aside and the judgment of Bukoba Urban Primary Court are upheld. The appellant is hereby acquitted from his conviction by the District Court of Bukoba at Bukoba unless held for other lawful cause. DATED at BUKOBA this 15th day of December, 2023. M.P. Otaru Judge 5