DC CRIMINAL APPEAL NO 3791 OF 2024 NESTORY ANDREA VS REP

IN THE HIGH CO URT OF UNITED REPUBLIC OF TANZANIA (KIGO MA SUB-REGISTRY) A T K IG O M A DC. CRIM INAL APPEAL NO . 3791 OF 2024 NESTORY ANDREA APPELLANT VERSUS T H E R EP U B LIC RESPO N D EN T (Appeal from the decision of the District Court of Buhigwe at Buhigwe) (K. V. Mwakitalu, SRM) Dated 11th day of January 2024 In Criminal Case No. 132 of 2023 JUDGM ENT 15/07 & 19/08/2024 NKWABI, J.: This case reminds me of what was stated by the Court of Appeal of Tanzania in the case of Hatibu Ghandhi & Others v. Republic [1996] T.L.R. 12 thus: "It has to be borne in mind that there is still a large section of the population in our country which is inclined to seek help from witchdoctor~ as a matter of course/ whenever faced with problems or challenges of life. The efficacy ofsuch conduct is a matter ofcontroversy outside the scope of this case. '' 1 The a bo v e is still tru e a b o u t the c o m m un itie s a lo n g La k e T a n g a n y ik a . Th e h o use o f P W l W ils o n s/o L uz ib il a , a w a rd c oun c ilo r, w as de m o lis h e d a nd bu rn t b y a g roup o f p e op le in the e v en in g o f 1 1 /09 /2 0 2 3 in v ill a g e , w h ic h is a t t h e c e n t e r o f c o n t r o v e r s y in h is a p p e a l , h o w e v e r , w it h i n B u h ig w e Di strict in Kig o m a re g io n . T h e d e m o lis he d h o u s e w a s a ll e g e d ly v a lu e d a t T .s hs 1 3,7 8 0 ,000 /= . O th e r p ro pe rtie s w h ic h g o t de s tro y e d a re tw o b eds v a lu e d a t T .s hs 5 0 0,0 0 0 /= , tw o s a c k s o f b e a n s v a lue d a t T .s h s 8 00 ,0 00 /= a n d 2 1 sa c k s o f ma ize v a lue d a t T .s h s 2 ,5 2 0 ,00 0 /= . T h e to ta l v a lue o f th e d e stro y e d p rope rtie s w e re T .s h s 1 8,00 0,0 00 /= . T h e a cc u sed p e rso n s , in the tria l c ou rt, w h e re c o n v ic ted in th e ir a b s e n c e s a v e fo r th e a p p e lla n t w h o re -a p p e a re d o n the ju d g m e n t da te . W h e n th e h e a rin g o f th e e v id e n c e o f b o th p a rtie s co n cl u d e d , the tria l c o u rt fo u n d tha t th e ch a rg e w a s sq u a re ly p ro v e d be y o n d reas o na b le d o u b t. It convicted the appellant and other convicts with the offence so charged and sentenced them. The appellant, namely Nestory Andrea is angrily disparaging the decision of the trial court. The district court convicted and sentenced the appellant to serve 5 years imprisonment for arson offence. In addition to the imprisonment term, the appellant was ordered to pay the victim a 2 compensation amount of money at T.shs 4,500,000/=. The offence is, as indicated above, committed contrary to section 319 (a) of the Penal Code. The hearing of the appeal was conducted through written submission. Mr. Moses Rwegoshora, learned counsel drew and filed the submissions in chief and the rejoinder submission. The reply submission was drawn and filed by a State Attorney who did not mention his name. Making the complaint being heard, the counsel for the appellant, in submission in chief, to support his claim that the charge was not proved beyond reasonable doubt, pointed out that there is a variation between the charge sheet and the evidence. He explained that while the charge sheet indicates that the offence was committed in Kashanga village, the facts that were read over during the preliminary hearing and the evidence of all prosecution witnesses testify that the offence was committed in Munzeze village. To reinforce his stance, he cited the case of Frank Charles@ Sumbuka v. The Republic, Criminal Appeal No. 678 of 2020 CAT. Concerning the village name, there is a charge sheet which indeed mentions Kishanga village as opposed to the prior charge sheet which mentions Munzeze village. 3 O n m y s id e , I a cc e de th a t du e to v a ria tio n o f th e e v id e n c e a g a in st the c h a rge s h e e t w h ic h w as s ub s titu ted fo r, th e c h a rg e w a s n o t p ro v ed a s p e r th e d e c is io n in Frank Charles @ Sumbuka v. Republic, Criminal Appeal No. 678 of 2020, CAT which quoted with approval the decision of Said Musa Soweni v. Republic, Criminal Appeal No. 93 of 2020, CAT where it was held that: 11 The law is settled that, a charge which is in material conflict with the witnesses/ testimonies materially shakes credence of the prosecution case and renders the prosecution case not proved to the required standard. // It is unfortunate that the prosecutor who substituted the charge sheet and filed that is in conflict with the evidence or statement of witnesses is like a football player who strikes the ball, in an attempt to defend, which goes straight into the net of his own goal poles. No wonder, the State Attorney who submitted in opposition of the appeal did not offer resistance to this complaint. Finally, the appeal is found to be merited because the charge sheet is at variance on a material particular with the testimonies of the prosecution witnesses. I thus, allow this appeal. The decision, that is, the conviction and sentence meted out against the appellant, by the trial court are respectively quashed and set aside. For avoidance of doubt, as this 4 criticism of the decision of the trial court disposes the appeal, I do not see the need to discuss the rest of the gro unds of appeal. The appellant is to be im m ediately released from custody unless he is otherw ise held therein for other lawful cause. It is so ordered. 5