DILU VS BENJAMIN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY)

AT SHINYANGA MISC. CRIMINAL APPLICATION NO. 14 OF 2023 (Arising from the Judgment of the High Court of Tanzania at Shinyanga Registry (Hon Justice F.M. Mirindo/ J) in PC Criminal No. 06/2023 dated J.9h November; 2023). DILU ISANG'HALA I ••• I •••••••••• I •• II. II. I.' I •• I" II •••••••••••••••••••••••••••• APPELLANT

VERSUS BENJAMINI KITAN DA 1 ••• 1 •••••• I ••••• I •• I ••••••••• I •••• I ••••••••••••••••• RESPONDENT

RULING Date of Last Order: 14.02.2024 Date of Ruling: 23.02.2024 MWAKAHESYA, l.: At the Mkula Primary Court within Busega District the applicant was tried and convicted of the offence of obtaining money by false pretences contrary to section 302 of the Penal Code. He was sentenced to one-month conditional discharge and was ordered to compensate the respondent TZS 400,000/=. He unsuccessfully appealed against the conviction and sentence in the District Court of Busega at Busega prompting him to further appeal unsuccessfully to this court before my brother Hon. Mirindo, J. The applicant is now beseeching this court to certify that there is a point of law Involved so that he can have his day before the Court of Appeal. A brief background as garnered from the records is that in the month of September, 2022 the applicant, under the pretence of leasing piece of his 1 land for the respondent to graze his cattle, received TZS 400,000/= from the respondent. This transaction was witnessed by one Donard Majora. However, upon the respondent taking his cattle to graze on the said piece of land he found that the pastures were already occupied by other herders. The applicant reneged on the transaction and denied receiving any money from the respondent prompting the respondent to take him to court where he was eventually convicted and sentenced. The applicant is thus praying for the following

orders: 1. That, this honorable court be pleased to certify that, there is a point of law for the applicant to appeal to the Court of Appeal against the judgment of the High Court of Tanzania at Shinyanga (Hon. F.M. Mirindo, J) in PC Criminal Appeal No. 06/2023 dated 15th day of November, 2023); 2. Costs; and 3. Any other reliefs this court deems fit and just to grant. The applicant's application is duly supported by a four-paragraph affidavit sworn by himself. Meanwhile, the respondent, resisting the application, has also filed a counter affidavit. The gist of the applicant's application can be found in paragraphs 4, 5 and 6 of his affidavit. I find it prudent to reproduce it hereunder: "4. That, aggrieved by the impugned decision of the trial court, the applicant appealed against the impugned decision Criminal appeal No. 06/2023 from the High Court of Tanzania at Shinyanga whereby the applicant lost when the ;?Id appellate court delivered impugned decision that goes to the root of the matter; 2 (i) That, the learned Judge erred in law by disregarding that failure to call the key and material witnesses who were seen by 5M1 and 5M2 grazing was nothing but illegality. (ii) That, the learned Judge erred in law by disregarding that, there was no witness who counted the said Tsh 400,000/= whereby the money cannot be counted through eyes but rather through counting by hands. (iii) That, there was no eye witness who saw the transaction when the respondent paying (sic) Tsh. 400,000/= to the applicant. (iv) That, the learned Judge erred in law by disregarding that respondent did not reveal the type of contract entered by the parties from the trial court, District court to the High court of Tanzania.

5. That, tbe Z" appellate court did not evaluate and analyse the evidence both the evidence of the trial court and that of the 1st appellate court which failed to perform its duty of evaluating the evidence of the trial court 6. That, the intervention of this honorable court is of paramount important (sic) as there were points of law which left undetermined. " Meanwhile, the respondent resisting the application filed a counter affidavit containing 12 paragraphs disputing the applicant's assertion that there are points of law worthy of certification by this court. At the hearing of the application the applicant, after adopting his affidavit, did not advance any sound submission but rather insisted that the trial court erred basing its decision on the testimony of Donald Majora who was not a key witness. The respondent, likewise, stood to his guns that both lower courts were correct in their findings. 3 Regardless of the oral submission of the applicant in support of his application, since both parties had earlier filed their respective affidavits and duly adopted them at the hearing, I will endeavor to make my decision basing on the same. The requirement for this court to certify, in matters originating in primary courts, that there is a point of law worthy of scrutiny by the Court of Appeal is found in section 5(2)( c) of the Appellate Jurisdiction Act which provides that: ''No

appeal shall be against any decision or order of the High Court in any proceedings under Head (c) of part III of the Magistrate CourtsAct unless the High Court certifies that a point of law is involved in the decision or order. " The role of the High Court is to frame a point(s) of law or to approve and adopt one framed by the intending appellant and certify it to the Court of Appeal, see Harbani Hajimosi and Another vs Omari Hilal SeiFand Another [2001J TLR 409 at page 412. On what amounts to a point of law, I wholeheartedly subscribe to the definition given by my learned brother Hon. Dyansobera, J. in Mariam Othman Matekele vs Nyacheri Joseph Mwangwa, Misc. Civil Application No. 139 of 2021, High Court- Mwanza (unreported). At pg. 6 he observed that: '' ..a point of law is a matter involving the application or interpretation of legal principles or statutes. It is the determination of what the law is and how it is applied to the facts in the case." 4 And having gone through the applicant's affidavit and with specific reference to paragraphs 4, 5 and 6 as quoted previously, I do not see any point of law to be determined by the by the Court of Appeal worthy of certifying. Matters such as lack of a witness to the counting of the monies paid by the respondent to the applicant do not qualify as points of law. Likewise, the allegation that this court failed to evaluate the evidence of the two lower courts is merely argumentative and unfounded when one goes through the High Court's judgment. In light of the above, I, therefore, dismiss this application with costs. It is so ordered. N.L. MWAKAHESYA

JUDGE 23/02/2024 5