19911204 TZHC Dar es Salaam

. ' . . H!>iIDLL.i-.TB JUl:<IS~ICTIUi~ ,· { ,, , . · •· • · __ PC., C.rUl'11IN,,L i,:i_--i--i;;,.1 No.}4 UF l;,)S:Jl f~·rom th\;) .uecisic.m of the vistrict Court of Mo.rogor.o.--,~ Criminal a:;1,eal: ~'b. ?8 cf 1990. 0ri6inal i'rimar/ c 0urt Kibd;i Crir,1inal Case No.26/90 1., 0 J? 0 p O O. 0 0 • 0 0 " 0 0 0 ~ 0 0 0 0 G O OO OO OO O C, 0 • 0 0 0 0 0 i-i.Pt'~LL1.NT versus • n D O a O • o 1<£.S P{.,Nl,ENT .. -Befc,re the J?riwary C0urt at Kibuti in Morot,c,ro Listriet the r~siJ~~(1enta i"l<.hamed Bukari @ iv,ohamecl Mtliwl-. and Bak. ri Kimweri were · on tht:ir, vwn 'plec,s c0nvicted uf rnalictous c:a.r;iace to property c/e 326(1) ~- of t~e-,l(e,!:al Cc.H..te. 'i'he' charge had allec;e:cl that they rnalieiousl.;y: grazed ~ l " •• t~e,1r. ca'ttle in the complainant I s maize shamba am:_ caused damage e~·ti~ated c.o.t 150,000/:;:. In the euurse .q of Qarrating . the !acts ...the cvmplain;;.nt revealeC.. that he hau demanl1ec.l 50,000/::: but the respcnc.ente had plef.lu.ed with him \lntil he retluc<)d it to 20,000/:::. Later, hvwever, they ha~ retusb<l tu iay even the reduceJ sum anJ had actually denied liability. fh~t Jrcm~tad hie to take the matter to court. The resp0ndent accepted the facts withuut reservation. ~hey were duly convi~ted ancl sentencotl to c, fine of 3,000/::: or four monttis imp1: ris0nment each. In ad(~ition they were ordered t~ pay the'IReumplainant 60,000/== as comi;.,1;nsc1.ti0n for his crops anll to refund him shs ., 5, 800/c, .· apparently beine, tho cornplainunt's cuntribution to 11 trc:.nsport fosts~ ., the court went to view the sharnba • when ,.ccorcling tu the record, thu fines wer.: paic.1. But the responc.leJliS then appealecl to the Listric;t Court asainst their ccnviction, een1e11•·e antl the other orQers just mentilnecl. In a hichly charged, highly conuw.tive ju.-...gm~t suff1.1S0u. with pseuclo-pc;litica'.'. sloganeerinf., · .'the: c).ppel ;utE: fficl1..,istr(...t0 (K. J10, Kulolola) allowed th~ apreal while .. i~s~{ni?; th,e f ulluwing sh0rtc~rnin(:jS :- I ,, 1. thut the churJe shet>t uiJ. p_ot f',stute ,.:th'e· acre&ce tt'··,.. .. destrvyf.:cl; ..... . t • --'-·. . 2. that the ch2r~e sh~~t~~i~ not ~t~te the value ~t the • •••.• /2. ' . h J., .-- .. '\ \3. that the plc":s wore impn•perly obtained because:- (a) the crop destroyed was not statetl; (b) the cha;rce was v~e;ue; 1'- 4. that the facts did 'not state which of the respondents owned the cattle 5. th .... t the person who first spotte~. the animals in the shamba was not sum1:1onecl to apJ:.:ear in cou.rt; 6. t.h&t the value of 1.50,000/= wDs not in the charge sheet but wt.s connected by the trial court antl, therefcre, that the awaru. cf 60, 000/= Wc::s arbitray; 7. that ths trial c~urt unlawfully appropriate~ transport charges frum the parties. Upon allowinc the apJeal he set asi4e the sentence and the compensation oruer ancl tpen vrJered the trial mo.e;istrate anc.1 his assessors to refund the transport ch<ir(Ses .on pain of distress. He did not stop there. The api:,,ellute mac;istrate, who preferred to style himself 11 Hakimu wa Wilflya l-'ifawiclhi 1 " further pointed out that Secticn 16 of th.e, Penal Code u.icl not prutect mae:;istrutes anJ. assessors for 1:roceetlines .•ont!ucte~ outsiue the law. In the upshot he directed thut his judgment be distributed tu all magistrates in the district to take note of his remarks. '£he Virector of Public Prosecutions wns aggrieved and brought the present ~ppealo The arcument in the appeal is es· ential!y that the aprella te mat;istrate misdirected hirne:·elf on the proceedings ~ in the trial court. I must onfess that when I read the judcment of the learned appe- llate magistrate and, then +.urn(;:d to the proceedings at the trial I was left t wondering wheth<:r the ap1.;ellate maEistrate had a cif:! erent.,i-._, proceedincs in view. To be brief, items (2), (3) 1 (4) and (6) as listed ,, . above &re palpubly fu.lse.. ki thur the ap:,. ellate magistrate did not re~d the ttial record or, if he did, he had a poison~d ~i~ion of ~~at '~ l:it: read. Indeed, his combative rno0d does not. help to .dispil this ~' ' impr~ssion. lhe chorGe~sheet diJ give the vulue of the cro~ ~~ } l.50t000/=, althou$h'the fi 0 urc was writte11 as:l,.50,000/=; the crop was I ·' l ' expressly stated as maize; the facts revealed that the respon~ent~ were father c.nd son anc'. that the cattle were either their property or in their possessi0no Item (1) is irrelevant since the guilt of the respl,ntlents uiJ. not depencl on the mae;nitude of the damage; it co.nc~iued since the cvurts do not call witnesses in guilty plt!:.DS. Item (7) is also irrelevant to thb pleas but I will revert to it lat~r. Kfter careful.y studying the trial recora I was left in no deubt vn the cl~rity of the charGe and the facts adduced by the ccmp~ant ~hi~h were rea~ily accepted by the resv0ndents. l am satisfied the.t the respcrtclents I pleas wero unequivocal and that they were prup~rly con~icteuo I will briefly comment on the order of compensation and the order llirected t0 the trial masistrc.to anC. his assessors. l,s stated at the bet,"inninL the complainant first demanded 50 1 000/:. which he red\&ced to 20,000/= befvre the disputed was taken to court. I think the complain~nt was entitled to ignore the settleraent and tc press !or the full and equitable value of his crops when the resp0ndents refused to ma.ke paym,,mt and even <leniecl liability. It seems tc me, huweyer 1 that he went speculatively hi:;h when he shot to 150,000/= from 50,000/=• It is stil~ instructive that the trial ccurt, upon visiting the sharnbal, estimat<::d the dama;:,e at 60,000/= and this was not far from the complainent 1 s initial estir,1ate. Otherwise the tourt was entitled to orC.0r the ficure set out in the chari::,e sheet_anc accepted by the respunJents in their pleas. For that teason, I think the uwurd vf 60,000/~ was equitable and not orbitr~ry as supposed by the laarne~ a~~0llate macistratc. :J.·he 0rL~E:r f 0r th.0 refunC.. of tr&nsport cost or charges by the trial mu~istrc.lte and his assessors ia another controversial area/·, '. Before the ~istrict Court both the complainant and the respondents ., claimeu that the paymtmt was made to the court 1 that ,Jl.O receipt was , issued c-nu, worse a still 1 that the shamba 11 visited.11 was ~ m;;re 35 paces or 100 feet frcrn the ccurt huuse. If so it was I think anyone-; charging o••••/4. t . f • t trans~ort CLsts uu~ht to accvunt f0r his actiono Transpcrt by · whut anJ tu where? 'i'he ~.rublem uf this case, th0uch, is that the ap~ellate ma~istrate 0verzea1ously enterEJ upon the subjeot e.nu in a m'ann,,·r that could not be ju:~tiffoL1 in l&w. He could net, ill justice, c~n~emn thJ trial maGistr~te an2 his assessors without givi~g them an OlJ!:,ortunity to be hearuo In my vie:w he should hcwe resepved that issue for aJ.ministrati Ve follo¼ '·tH rc1th(:,)r than pronuuncing juufiment uver it. I still beiievo that the oatt~r can be irivest,~ eated actr:iinistr1;1tiv0ly amt appr0priate measures taken against every• one involved. Lastly, LI sh:.iuld point out that it is impropGr t0 use administrative title$ in juuicial proceedine;s. Vie do not have 11 Hakimu wa Wilaya Mfawidhi 11 on the District (Jourt bench but I am civen t·o understaJid this to be an administrative cadre. For the purpose of judicial proeecdint.s a magistrate has to subscribe his substantive app0intt ment to ~he bench. fhey are free to amuse themselveG with thei~ othep trappings where those applyo In sum, this a]_J,_ e&l by the 1 • .P.Po succ0e'u.s and it is allowed accvrdingly. The respun~ents' convicticn is restored as well as . '/- Sgd. Ko s, .ff• LUGl~KlNGlHA ---- - JU~,GJ:1 ........ 4th ~ccemb~r, 1991. Miss Kiwanta for ~e,ublic. ·This is the certified true copy of the ...:.'·t:/ ,-,. ---· ----:::-~:.·:..... ... ~-·Di;:~''rY R~:r~·;l~~R~~) ---r•·c_-·· '. k _ _ _ . ._ ~ ---- I·• ...,.... ---····