erasto melikio vs frank katila 2023 tzhc 21904 18 august 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

ATSUMBAWANGA PC CRIMINAL APPEAL NO. 01 OF 2023 (Arising from the District Court of Mpanda at Mpanda in PC Criminal Appeal No. 13 of2022 and originated from Mpanda Urban Primary Court in Criminai Case No. 382 of2022) ERASTO MELIKIO......... ........................... ...fe............ ........APPELLANT

VERSUS *■ FRANK KATILA...... ...................—...^g|%i.„^....M...—RESPONDENT ld! August & id October, 2G23 -T MRISHA, J. Jf This is a second appeal by the appellant Erasto Melikio who is aggrieved by the judgment and orders of the District Court of Mpanda at Mpanda (the first appellate court) which was delivered on the 8th day of November, 2022. r •: v j5-? » A’ Upon hearing the rival submissions of both parties, the first appellate court partly upheld the decision of Mpanda Urban Primary Court (the trial court), save for the trial court's order requiring the respondent Frank Katila to rectify the appellant's vehicle defects which were allegedly caused by his reckless car driving which it quashed and set aside. i in order to understand what exactly transpired between the parties herein, I find it apt important to narrate albeit brief, the facts leading to the dispute between them. In the trial court the appellant stood as the complainant whereas the respondent appeared as the accused person. The charge sheet that was tabled before the trial court, involved two counts With the first one being Assault causing actual bodily harm contrary to section 241 of the Penal Code, Cap 16 R.E. 2022 (the Penal Code), whilst the second ''ivV.-. .A!'.'* count was in respect of Malicious Damage to property contrary to section 326(1) of the Penal Code. b M, In the first count it alleged by the

appellant that on the 27th day of June, 2022 at 1345 hours at Mapinduzi ;Ward, Kashalilili suburb which is within Mpanda District in Katavi Region, the respondent unlawfully assaulted the appellant on the head, backbone, hands and on the ribs thereby causing the appellant to sustain serious body pains. r On the second countit was alleged that on the same date, time and place as mentioned in the first count, the respondent unlawfully and maliciously damaged the appellant's vehicle by breaking its mirrors by using stones, the property of the appellant valued at Tshs. 2,020,000/=. As per the records of the trial court, the said criminal offences were allegedly committed .by the respondent because he blamed the appellant for his reckless 2 car driving which resulted to occurrence of an accident thereby causing injuries to the respondent's child. After closure of evidence by both parties, the trial court found that the appellant had proved his case against the respondent in respect of al! counts the respondent stood charged before it. Consequently, the respondent was convicted and sentenced to pay a fine of Tshs. 100,000/= in all counts and in default thereof, he had to serve a sentence of six (6) years in prison. Following the above trial court's decision, the respondent appealed to the first appellate court and urged the said court to overturn the decision and orders of the trial

court so that; he could be relieved from the above stated legal consequences. Generally, his complaint against the decision of the trial court was that the proceedings of the trial court were tainted by procedural irregularities and that the appellant's case was not proved beyond any reasonable doubts; hence it was wrong for the trial court to order him to rectify the appellant's car defects Vi; in the absence of such proof. As indicated above, his appeal was partly allowed by the first appellate court which reversed the order of the trial court requiring the respondent to rectify the defects of the appellant's vehicle stating that the trial court had no- power to order payment of compensation which exceed its powers as per section 3 5(1) (b) of the 3rd Schedule to the Magistrates Court Act, Cap 11 R.E. 2019 (the MCA) which empowers the Primary Court to order a person convicted of the offence it has jurisdiction to hear, to pay a compensation of Tshs. 100,000/=, save for the offences specified in the schedules to the Minimum sentences Act, Cap 90 R.E. 2019 (the Minimum Sentences Act). In addition to the above decision, the learned appellate magistrate advised the appellant to file a civil case if he had any further claims against the respondent. Unamused by the said first appellate court's decision, the appellant has now approached this Court with a: petition of appeal which

is predicated into three grounds ptappeal as they can be reproduced hereunder: 1. That, the appellate court erred in law by holding the view that the trail (sic) court ordered; rectification of the car beyond its monetary jurisdiction. > 2. That, the appellate court erred in law by creating its facts for the amount of money to rectify the car which was not decided by the trial court. - ; 3. That, the appellate court erred in law by not ordering the Respondent to rectify the car of the appellant as ordered by the trial court for the damages caused by him. When the appeal was called on for hearing, the appellant appeared in person, unrepresented while the respondent did not show appearance despite being 4 duly served with a summons. In the circumstances, and given the fact that no reasons were assigned by the respondent of his absenteeism thereby forfeiting his right to be heard deliberately, I allowed the appellant to make his submission in chief regarding the above grounds of grievance. He submitted briefly that since he had already filed his petition of appeal, it was his prayer that his grounds of appeal be adopted jn order to form part of his submission in chief and that this court be pleased to allow his appeal and quash the decision of the first appellate court. If I got him right, in other words the appellant implored me to allow his appeal, quash the decision of the

first appellate court and upheld the decision of the trial court. ..... Suffice it to say that I have carefully read the records of the two courts below and their respective- decisions together with the grounds of appeal as raised 'xA-, by the appellant; herein. I have also gone through the submission of the -■ £'-' '- . • j':v A-?:r-y appellant in respect of all his grounds of appeal which in my view fall on a single complaint tha^he first appellate court erred in law by finding that the trial court ordered;rectification of the appellant's vehicle defects beyond its monetary jurisdiction. I am fortified in the above view due to the fact that looking on grounds number two and three above, it is crystal clear that they all relate to an order of the trial court which had the effect of requiring the respondent to rectify the appellant's vehicle defects. 5 Having said the above, X am of the considered opinion that the issue for determination by this court is whether the findings of the first appellate court were correct. As I have alluded above, the appellant has faulted the first appellate court for finding that the trial court went beyond its monetary jurisdiction when it ordered the respondent to rectify the appellants vehicle defects alleged caused by the respondent's reckless driving. At this juncture, I wish to state that powers of the courts of jaw stem from the law. This

means a court of law cannot make an order requiring a-person to do '-M-k or refrain from doing a certain act which it has no jurisdiction to inquire and determine, nor can it exceed the limit of the powers"bestowed upon it by the law. When confronted by a similar situation, my learned brother Ndunguru, J. while s'ii ;■ ,x; 7 -r -11 5. '■X j' ■*-. /. <<; A- deciding the case .of Matrida Mwanawima vs Sebastian Nguvumali, PC Criminal Appeal No. 22pf 2022 [High Court-Sumbawanga] (unreported), had the following to say: - "I respectfullydo agree that as per item 5 (1) (b) to the 3rd Schedule to the Magistrate Court Act [supra] the jurisdiction of the primary courts in respect of orders of compensation is limited to the amount not exceeding one hundred thousand shillings only and more than one hundred thousand if it convicts a person of an offence .specified in the schedules to the Minimum Sentences Act. I find the order of 6 compensation of Tshs. 5,600,000/= by the trial court is above the jurisdiction of a primary court "[the underlining is mine] The above position of the law as stated by my learned brother Ndunguru/L squarely relates and fits to the circumstance of the case at hand where the centre of dispute between the parties herein is that the trial court made an order of compensation against the respondent/beyond its monetary jurisdiction. Hence, I am persuaded to follow that

decision. Back to the instant case, it is on records that although in making the order of compensation the learned trial magistratedidnot specify the amount of compensation to be paid by the respondent in respect of the second count, her judgment clearly shows that she was aware that the defects of the appellant's vehicle which were allegedly, caused by the respondent, created a loss of Tshs. 2,020,000/— as indicated in the charge sheet filed with the trial court. jF"' "'W It appearsto me that the trial magistrate was smart when she decided not to accept the fact that the said loss is commensurate to the value of value of the allegedly defects as no evidence was laid by the appellant to prove that. However, she took the view that by looking on the damage of the said vehicle the value of such damage would shoot up to the amount mentioned in the charge sheet tabled before the trial court and because of that, she decided to 7 order the respondent to rectify the appellant's vehicle defects so that it turns to its original state. This can be gleaned from page 17 of the trial court typed judgment in which the trial magistrate reasoned that: "Mba/i na hayo Hieiezwa katika hati ya mashtaka kuwa uharibifu uliofanyika kwa gari hiyo ni wa kiasi cha thamani ya shiiingi 2,020,000/=, hata hivyo hakuna ushahidi zaidi uiiotoiewakuonyesha uharibifu huo ni wa thamani i!iyotajwa,..Kwakuwa thamani

ya kiwango cha uharibifu hakijaweza kgthi&if^^g^hakafnhyinaona kwamba SU1 anapaswa kurekebisha gari y^^ML na kurejesha katika haii yake ya awali kabia ya uharibifu huo/' - ^ Literally, the above wores mean that according to the trial magistrate since the amount of loss which is Tshs. 2,020,000/= as indicated in the charge sheet, was not proved, the respondent who was the accused person in that case, was supposed to reWy the said defects in order to return the appellant's vehicle to its original state. Again, in making the order of compensation which is the subject of this appeal, the trial magistrate stated at page 20 of the typed judgment that: 8 "Mshtakiwa anaamriwa kufanya marekebisho ya gari !a mlalamikaji na kulirejesha katika hall yake ya awali had! kufikia tarehe 30/11/2022, gari hilo Hkabidhiwe kwa mlalamikaji mbele ya mahakama hli/' The above order was to the effect that the respondent was required to rectify the appellant's vehicle to the extent that it turns to its previous condition on or before the 30th day of 2022, and that upon compliance of the said order, the said vehicle had to be handled over to the appellant before the trial court. From the above exceptions, there is no doubt that the order of compensation made by the trial court was intended to ensure that the appellants vehicle is returned to its original state before thedamage which was maliciously

caused by the respondent. In the circumstance, it does; not require much energy to find that the amount of money to be used by-the respondent in the course of complying to the said VIi •?*!•.< A. 1 '' "" ’X.-t^Xr;.'i- 'tv i* order of the trial courtpwill exceed Tshs. 100,000/= (one hundred thousand / W. shillings) which is the limited amount of compensation the primary court can order to be paid by the wrong doer. The said powers are provided under section 5(1 )(b) of the 3rd Schedule to the MCA which declares that: 9 5.-(l) A court may where the justice of the case so requires, and shall, in any case where any law for the time being in force so requires, make orders- (a)„, N/A (b) for the payment of compensation not exceeding one hundred thousand shillings or costs or for compensation of more than one hundred thousand shillings where it convicts a person of an offence \J<P. specified in the Schedules to the Minimum Sentences Act which it has jurisdiction to hear" According to the above provisions of the law, it is apparent that the powers of the primary court to order compensation in criminal cases are limited to the amount of one hundred thousariti^hijlirigs, save where it convicts a person of an offence specified in the schedules to the Minimum Sentences Act which it has jurisdiction to hear \ > w In the present case,- it appears that the respondent was charged

with Malicious Damage to Property contrary to section 326(1) of the Penal Code as the second count. Admittedly, that offence is among the offences which the Primary Court has jurisdiction to hear, as provided under Part I of the 1st Schedule to the MCA. io However, it is my settled view that the said offence is not among the offences listed in the schedules to the Minimum Sentences Act. Hence, it is obvious that the primary court does not have jurisdiction to order an offender to pay a compensation which exceeds one hundred thousand shillings, as rightly found by the first appellate magistrate. I may also add that the primary court can only extend amount of compensation under exceptional circumstances as indicated in the proviso to section 5(l)(b) of the 3rd Schedule to the MCA. To that end, the above issue is answered affirmatively. Before I pen off, I wish to opine in passing, about the modality used by the trial magistrate to passing the sentences against the respondent after entering convictions in respect of the two counts which the respondent was charged T'£y-, with. At page 19 of the trial cburt typed judgment, the trial magistrate wrote . ''44. 4.4 -s .44 the following when imposing sentence against the respondent: - .. "ADHABU H '% 4. '4 * ...Mahakama hii chini ya Aya ya 2(3) Nyongeza ya III, sheria ya MahakamazaMahakimu Sura ya 11 marejeo ya 2019

inamuhukumu mshitakiwa kulipa faini ya shiiingi 100,000/= kwa makosa yote mawili na endapo atashindwa kulipa faini basi atumikie kifungo cha miezi sita (6) gerani." [Emphasis is mine] ii In other words, the trial magistrate while sentencing the respondent who was the accused person in Criminal Case No. 1 of 2022 (the original case), directed that the respondent should pay a fine of Tshs. 100,000/= (one hundred thousand shillings) in respect of all the two counts he was convicted of and in default thereof, he had to serve a sentence of six months in prison. In my considered opinion, and with all due respect to the honourable trial magistrate, that was not a proper way of imposing sentence given the circumstances of the case she was handling. What was/passed*by the trial magistrate was an omnibus sentence which is; not allowed in law. This is because it is illegal to pass an omnibus sentence where the accused person is convicted on two or more counts in a trial; what the trial magistrate is supposed to do in a situation /like that, is to pass a sentence on each count separately; See Abraham Moses @Abunuasi and 2 Others vs. Republic (Criminal Appeal No/30 of 2017.of2017) [2018] TZCA 2790-Tnzlii. In the original case, the respondent was convicted on two counts namely: Assault Causing Bodily Harm contrary to section 241 of the Penal Code and Maliciously Damage to Property contrary

to section 326(1) of the Penal Code. In the circumstance, it was incumbent for the trial magistrate to pass a sentence on each of the two counts separately, and not to pass a single sentence for all offences of which the respondent had been convicted of at a single trial, as she did. 12 Therefore, due to foregoing reasons, I am inclined to find that the complaint of the appellant is without merit. Consequently, I dismiss the present appeal for want of merit and upheld the decision of the first appellate court. Order accordingly. DATED at SUMBAWANGA this 18th day of October, 2023 4 .. w.

A

JUDGE 18.10.2023 13