CRIMINAL APPEAL DONARD MGANGA

IN THE HIGH COURT OF TANZANIA

MUSOMA SUB REGISTRY

AT MUSOMA PC CRIMINAL APPEAL NO. 000027645 OF 2024 REFERENCE NO. 202409262000027645 (Arising from the Criminal Appeal No. 000012224 of2024 of Musoma District Court, Originating from Mugango Primary Court in Criminal Case Number 58 of2024) DONARD MGANGA.......................................................................... APPELLANT

VERSUS MTAJU MASATU..................................................................... 1st RESPONDENT AMANI MASATU..................................................................... 2nd RESPONDENT

JUDGMENT 06th December & 22nd January, 2025 M. L KOMBA, J,: This is the decision against an appeal by the above-named appellant who was dissatisfied by the decision of the Musoma District Court (the 1st appellate court) in Criminal Appeal No. 000012224 of 2024. Briefly back ground to this appeal goes like this, it was alleged that on 18/03/2024 at 17:00 hours at Kusenyi village in Suguti ward within the District of Musoma the respondents threaten to kill appellant by machete Page 1 of 8 the act which is contrary to section 89(2) (a) of the Penal Code, Cap 16 R.E 2022. Respondents denied the offence hence matter went to full trial. Upon hearing testimony of each side, the trial court (Mugango Primary Court) found the complainant who is now appellant failed to prove the case to the required standard and decide in favour of the respondents herein; and were acquitted. Appellant was dissatisfied by the decision of the trial court and decided to appeal to the first appellate court fronting two grounds of appeal in which he complained that he managed to prove the case to the required standard and that, the trial court did not analyse circumstantial evidence. The first appellate court analysed evidence in record and dismissed the appeal after it was found with less merit. For the second time he was dissatisfied and at this appeal he has two (2) grounds which may be summarised as follows; 1. That, the two courts bellow errored both In law and facts by deciding in favour of respondents while appellants managed to prove the offence beyond reasonable doubt.

2. That, the first Appellate Court erred both in law and facts by not making proper evaluation of evidence adduce by appellant which was heavier than that of the respondents. Page 2 of 8 When the appeal was scheduled for hearing, both parties appeared in person without any legal representation. It was appellant who started to address this court on his appeal and submitted that, he had heavier evidence than respondents but the Magistrates in both courts failed to analyse his evidence properly as he managed to prove the offence beyond reasonable doubt. Arguing for the 2nd ground he submitted that the trial court misdirected itself on law when it failed to analyse evidence which was adduced during trial and the same mistake was done by the first appellate court. He went on clarifying that 2nd respondent did not adduce any evidence during trial but at the 1st appeal he raised new issues which he complained not to be the position of the law. He prayed his appeal to be found with merit. The 1st respondent protests the appeal and submitted that both lower courts were correct and decision was right as it was the appellant who failed to prove is allegation. He went on submitting that appellant complained of being threatened to be killed by machete but during hearing, prosecution testified against different weapon and therefore the charge was not proved. He pointed that there were

contradictions on appellant witnesses while he insisted that respondents' defense was Page 3 of 8 heavier as among the witnesses there was village chairman who testified there was no criminal incidence on that day. He prayed the appeal to be dismissed. The second respondent objected the appeal too on the submission that evidence was considered basing on what appellant testified in court. The trial court analysed the charge and the duty of appellant was to prove his case against charge sheet, he insisted. However, he was of the position that the trial court noted the case was staged because appellant had a witness who testified that the crime took place at 18:00 hours while appellant said it was 17:00 hours, another witness testified that the weapon was big knife (sime) but he failed to prove how that weapon was used instead there was abusive language. That being not enough, 2nd respondent went on submitting that there was contradiction on whether there was an alarm (yowe) or not during the fateful day. Finally, he insisted that the trial court was correct to decide what has been decided as the case was not proved beyond reasonable doubt. He argues me to dismiss the appeal and order compensation and costs so that appellant should not bother respondents on this issue again. Page 4 of 8 When given time for rejoinder, appellant prayed this court to read proceedings and find there

is no contradiction. I am called upon to decide if the appeal has merit. On the first place it has to be known that this is the second appeal and the principle is that that; the Court should very sparingly depart from concurrent findings of fact by the trial and first appellate court. Only in exceptional circumstances, that any interference may be warranted and it is when it is clearly shown that there was misapprehension of the evidence, miscarriage of justice or violation of some principles of law or procedure by the courts below See. Joseph Safari Massay vs. Republic, Criminal Appeal No. 125 of 2012 and Wankuru Mwita Vs Republic, Criminal Appeal No. 219 of 2012. In the latter case, the position was emphasized by the Court having said as follows: '... The law is well-settled that on second appeal' the Court will not readily disturb concurrent findings of facts by the trial Court and first appellate Court unless It can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature and quality of the evidence; misdirection or non direction on the evidence; a Page 5 of 8 violation of some principle of law or procedure or have occasioned a miscarriage ofjustice' I find prudent to set position of the law before I analyse this appeal. On the second ground of appeal, appellant is complaining of the

evaluation of the evidence by the trial court. The same ground was listed in the first appellate court and the second ground was on proving the offence beyond reasonable doubt. Both grounds compel analysis of the evidence. In our legal regime it is the trial court which is best mandated to analyse demeanor of witnesses and evaluation of evidence as was in the case of Silas Sendaiyebuye Msagabago vs The D.P.P, Criminal Appeal No. 184 of 2017 and Raphael Ideje @ Mwanahapa vs The Director of Public Prosecutions, Criminal Appeal No. 230 of 2019. Further it is settled that the first appellate court is final court of evidence as it is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision. See also Mwita Cornel Philimon © Gaucho vs Republic (Criminal Appeal No. 306 of 2020) [2023] TZCA 17822. In the case at hand, appellant is complaining of failure of both lower courts in analysing evidence which, as per appellant submission, if evidence was Page 6 of 8 properly analysed, respondents would have been convicted as they threatened him. As indicated, at the second appeal, courts deal with question of law alone. I am aware of the exception that this approach rests on the premise that the findings of fact are based on a correct appreciation of the evidence. If it happens both courts completely misapprehend

the substance, nature and quality of the evidence, then the second appellate court may re-evaluate evidence for the interests of justice intervene. I have read grounds of appeal and submission by parties, I failed to find any point of law warranting this court to interfere the findings neither misapprehension of evidence. Evidence was properly analysed by both lower courts, they pointed contradictions on prosecution case and further; they found the offence was not proved against the charge sheet. So far as there is no point of law, I find no need to inferred with the position of two lower courts. In the upshot I find the appeal lacks merit and is hereby dismissed. This being the criminal case, no order as to costs. DATED in MUSOMA this 22nd day of January, 2025. Sgd: M. L. KOMBA Judge Page 7 of 8 Judgment delivered by deputy Registrar before parties. Ag. Deputy Registrar Page 8 of 8