halima hussein vs richard benedicto and another 2021 tzhc 9339 15 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

BUKOBA DISTRICT REGISTRY

AT BUKOBA MISC. CRIMINAL APPLICATION NO. 55 OF 2021 (Arising from High Court of Tanzania at Bukoba in Criminal Appeal No. 22 of2020 and Criminal Appeal No. 21 of2020 in the District Court ofKaragwe; Original Criminal Case No. 54 of2020 of Nkwenda Primary Court) HALIMA HUSSEIN........................................... APPLICANT

VERSUS 1. RICHARD BENEDICTO......................... 1st RESPONDENT 2. IMELDA RICHARD............................. 2nd RESPONDENT

RULING 15/12/2021 NGIGWANA, J. The applicant Halima Hussein vide her chamber application made under section 6(7) (b) of the Appellate Jurisdiction Act [Cap. 141 R:E 2019] seeks the certificate of the court that there is a point of law to be considered and determined by the Court of Appeal of the United Republic of Tanzania in her intended appeal thereto. The application is supported by affidavit deponed by the applicant. A brief back ground giving raise to this matter is to the effect that sometimes in February, 2020 before the Primary Court of Nkwenda within Kyerwa District in Kagera Region the respondents stood charged with the i offence of assault causing actual bodily harm contrary to section 241 of the Penal Code Cap. 16 R: E 2019. The case was registered as Criminal Case No. 54 of 2020. It was alleged that the respondents on 01/01/2020 at 16:30hours at Bushongore Hamlet, Nyakatuntutu Village, Division of Mabira within Kyerwa District did jointly and together assault the applicant by slapping and kicking her thereby causing heavy pains. The respondents pleaded not guilty to the charge. After full trial, they were both acquitted because the court found that the case had not been beyond reasonable doubt. Aggrieved by the trial court decision, the applicant lodged an appeal before the District Court of Karagwe challenging the acquittal of the respondents, the appeal was

registered as Criminal Appeal No. 21 of 2020. Again, after hearing both parties, the said appeal was dismissed for want of merit. Dissatisfied by the decision of the District Court, the Applicant preferred an appeal before the High Court. The 2nd appeal was registered as Criminal Appeal No. 22 of 2020. When the appeal was called on for hearing, both parties appeared and unrepresented. At the end, the appeal was again dismissed for want of merit. The applicant was aggrieved by the decision of this court, hence lodged this application seeking for certification of this court that there is a point of law worthy of being considered and determined by the Court of Appeal of the United Republic of Tanzania. 2 When the application is called on for hearing, the parties appeared in person and unrepresented. When invited to make her submission in support of the application, the applicant adopted her affidavit, and submitted that, she wants to appeal to the Court of Appeal for the Court of Appeal to determine whether the offence of assault causing actual bodily harm had been proved against the respondents beyond reasonable doubt. The respondents on their side, each of them stated that, there is nothing suggesting the presence of a point of law or points of law worthy of being considered by the Court of Appeal of Tanzania. In her brief rejoinder, the applicant sated that her evidence was

very strong, and she still believes that the case against the respondents was proved beyond reasonable doubt. Now, the duty before me is to determine whether this application is meritorious or otherwise. Paragraphs 1, 2, 3, 4 and 5 of the applicant's founding affidavit were coached as follows; 1. That I am the applicant in this application, the Appellant in Criminal Appeal No.22/2020 and Criminal Appeal No.21/2020 before Karagwe District Court, and the Complainant in Criminal Case No.54/2020 of Nkwenda Primary Court, thus conversant with the facts to be deposed herewith.

2. That the applicant is aggrieved by the decision of Nkwenda Primary Court and Appealed to the District Court of Karagwe whose decision further aggrieved the applicant. 3 3,That the applicant then filed Criminal Appeal No.22/2020 before this Honorable Court when the said appeal was also dismissed on 24h September, 2021 4. The applicant intends to challenge the decision of this court and those of the courts below to the Court ofAppeal of Tanzania by way of an appeal 5. That the applicant has filed a notice of appeal to the Court of Appeal of Tanzania, and it is the requirement of the law that one can appeal if the High Court certifies that a point of law is involved" The respondents in their joint counter affidavit opposed the application. It is trite that in application proceedings, the affidavits constitute not only the pleadings but also the evidence. The applicant therefore makes out his/her case in his founding affidavit and he/she must stand or fall by the allegations contained therein. It follows therefore that the applicant must set out sufficient facts in his/her founding affidavit which will entitle him/her to the relief sought. I have carefully read the five (5) paragraphs of the founding affidavit to see whether there is a point of law or points of law set out therein, but I found that there is nothing of such nature. However, as per chamber application and the

applicant's submission, the applicant wants to appeal to the Court of Appeal of Tanzania to allow the Court of Appeal to determine whether the offence of assault causing actual bodily harm had been proved against the respondents beyond reasonable doubt. 4 It should be noted that certification is aimed to ensure that ail cases originating from Primary Courts like the present one, end in the High court except where there are matters of legal significance and public importance. The Court of Appeal in the case of Ali Vuai Ali versus Mzee Suwed [2004] TLR 110 held that; "The purpose of certificate for the class of appeals originating in Primary Courts was to ensure that deserving cases only reached the Court of Appeal. The exercise is therefore a screening process which would leave for attention of the court only those matters of legal significance and public importance". What constitutes a point of law was described in the case of Mohamed Mohamad & Khamis Mselem versus Omari Khatib Criminal Appeal No. 68 of 2011, where the Court of Appeal of Tanzania at Zanzibar held "a novel point, where the issue raised is unprecedented, where the point sought to be certified has not been pronounced by this court before and is significant, or goes to the root of the decision, where the issue at stake involves jurisdiction, where the court(s) below misinterpreted the lav/'. The role of this Court

when called upon to certify whether there exists a Point of law for determination by the Court of Appeal was stated in the case of Agnes Severini versus Mussa Mdoe [1989] TLR 164 (TZCA). The Court of Appeal had this to say; 'We wish to observe at the outset that this was an unsatisfactory way of certifying a point I of law. That certificate is capable of two interpretations. 5 It could mean posing the question whether there was any evidence at all to support the concurrent decisions of the courts below. It could equally mean to ask the question whether the evidence as adduced was sufficient to support and justify those decisions. How, this distinction is imported. The question whether there was any evidence at all to support the decision is a question of law which can properly be certified for the opinion of this court. But whether the evidence as adduced was sufficient to support the decision is a question of fact which could not properly be the subject of a certificate for the opinion of this court. For, this court takes the view that if there was some evidence on which the courts below could have arrived at the decision they did, then this court will not interfere, even though had this court itself tried the case it might have come to a different decision. Those who are called upon to certify points of law should, therefore, keep this distinction in mind in order to ensure

that only the correct questions are certified for the opinion of this court" In the application at hand, I have carefully gone through the proceedings and judgment of this court as a whole to see whether the same reveal disturbing features requiring the Court of Appeal intervention and provision of guidance but found nothing. It is elementary that the onus is always on the prosecution to establish and prove the guilty of an accused person beyond reasonable doubt. I have considered the fact this this matter originated from Primary court where the evidence Act Cap 6 R: E 2019 is not applicable. Rules of Evidence in Primary Courts are in place, and the standard of proof required is the same, to wit proof beyond reasonable doubt. 6 Regulation 1(1) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations, G.N. 22 OF 1964 states that; "Where a person is accused of an offence, the complainant must prove all the facts which constitute the offence, unless that accused admits the offence and pleads guilty" Rule 5(1) states; "In criminal cases, the court must be satisfied beyond reasonable doubt that the accused committed the offence" Rule 5(2) states; "If, at the end the case, the court is not satisfied that the facts -in- issue have been proved the court must acquit the accused. This principle is part of our laws. I have no doubt that the issue raised does not

constitute a point of law or a point of public importance for the Court of Appeal to consider. The chamber summons and affidavit were drawn by Mr. Joseph Bitakatwe, learned advocate. It is my observation that, the learned counsel did not advise his client accordingly, otherwise this application would not have been filed. An advocate is duty bound to advise his/her client accordingly and not just to draw documents/ pleadings for him/her. In the present matter, the learned counsel before drawing the chamber summons and affidavit ought to have read the judgment of this court and those of the lower courts so as to be in a good position to advise his client accordingly. 7 Finally, since there is no point of law or points of law exhibited worthy of consideration by the Court of Appeal of Tanzania, this application is devoid of merit and I proceed to dismiss it in its entirety. It is so ordered. applicant, respondents in person, Mr. E. M. Kamaleki, Judges Law Assistant and Mr. Gosbert Rugaika B/C. eTl N(^/VANA

JUDGE 15/12/2021. 8