20160624 TZHC Dar es Salaam

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IN THE HIGH COURT OFTANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM PC CRIMINAL APPEAL NO 03 OF 2014 : (Originating from Criminal Case No. 108 of 2013, Primary Court Kerege and Criminal Appeal . No. 01 of 2014, Bagamoyo District Court) . JOSEPH DAUDI KOMBA ........................................... APPELLANT vs THADEI MAYAULA................................................. RESPONDENT Date of last Order 24/06/2016 Date of Judgment 24/06/2016

JUDGMENT W.B. KOROSSO, J This is an appeal originating from the Primary Court. The background to this matter is as follows. The appellant was the accused in the Primary Court proceedings were he was i I i charged with two counts, that is; impersonation contrary to section 369 of the Penal ,. ' : , ,I ' 1: : I , l , < I Code Cap 16 RE 2002 and Obtaining Goods by False Pretences.contrary to Section 302 of the Penal Code Cap 16 RE 2002. The appellant was convicted of.the sa'me oh both counts and was fined Tshs. 50,000/- and upon failure to pay the amount to serve a sentence of fourteen (14) days in prison. For the second ,count, the appella'n't was se11tenced to a fine of Ts~s. 100,000/- or imprisonment for 21 days. In addition, the I , . appellant was also ordered to pay compensation of Tshs. 4,000,000/- to the complainant (the respondent) in the present cas~ and the said amount was to be paid within sixty (60) days from the date upon delivery of the judgment. The sentences were I, ordered to run concurrently. . 'I : I 'i ·, 1 ,, !I ii .I Th;e appellant (accused) was aggrieved by the Primary Court decision and· appea)ed to the District Court. The aJpellant filed five ground of appeal in the Distri,ct Court. First that the Primary Court magistrate erred in law and fact in entertaining the suit, and: second, in evaluating the evidence before the court. That; the trial Cqurt e~ted

in . treating the matter as a criminal case while it was a civil case emanating from a ·matter based on a land dispute. The fourth ground was that the trial Court erred in: law arid fact . in ,holding that the case was _. : proved beyond reasonable doubt. and fifth, that th~. trial . : . court erred in convicting, sentencing the appellant and the orders· for ·. fi~e and . . . . compensation meted. The appellant thus prayed for the conviction to be quashed and the sentence and orders for compensation set aside. He also prayed for any other relief the Court might find fit to grant. After considering the rival submissions from the appellant ·and the respondent vliho co'ntended that the appellant was properly convicted and sentenced by the 1 lower court, dismissed the appeal with costs. This decision was delivered despite: the iappeal Magistrate observation that the sentence awarded was not in compliance \11/ith the· lawi ' I The appellant was dissatisfied with the said decision hence the appeal before this Court. I I ! . i: I, . The grounds of appeal are as follows: I : II I ! . i. That the Honourable Magistrate erred in law and fact in upholding the decision of the Primary Court of Kerege while the charge, proceedings and decisions wen~ totally fatal and defective I',' I '. ii.' ~hat the Honourable M~gistrate erred in law and facts in evaluating the evidence _or records of the

case in treating a Land dispute or Civil Case as a criminal case ·i I: I I ' , 'I , ,1 · iii. That the Honourable Magistrate erre in law and facts in convicting and sentencing the appellant without any proof beyond reasonable doubt .. I'. ' I '. 2 i -Th:e appellant thus prayers before the Court where that the proceedings and decision of • ' ' . . ' . ;· ' . { :Kerege Primary Court and Bagamoyo District Court be quashed and set aside; and that: • . .' ( _the conviction, sentence and order of the Primary Court of Kerege and Bagamoyo · . . District Court be quashed and set aside and any other relief. The appellant was represented by Mr. Juma Mtatiro, learned advocate and the respondent appeared in person and was thus unrepresented. . ' Th'.e appeal was argued by way of written submissions with the leave of the Court: upon :prayers by both parties for the same. Parties duly filed their submissions within the prescribed dates and therefore the Court shall consider all the filed submissions. ' In expounding their grounds of appeal, the appellants submitted as per the filed grounds of appeal. With the 1st ground of appeal, the presentation by the appellant was • ' I '! I' [' i ,i ,• '. , that it is a requirement of the law that a charge shall be drawn up and be signed by a , , ,i C I Magistrate or a police officer if it is filed by the complainant and Republic respectively. ·f , l I :

I That in the trial Court, the respondent, who was the complainant, complained by virtue r: , ·, ; I' . : ,. ii i: 'r · • of section 8 and 21 of the MCA, Cap 11 RE 2002. That there was no charge drawn up by Ii l :: i I' I: the Magistrate or police officer and therefore there was no charge against the appellant. That the charge in the Primary Court was incurably defective having violated mandatory legal provisions and therefore this fact was enough for the Primary Court proceedings to be vitiated: and thus it was improper for the· District Court· on appeal, to 1 uphold the erroneous decision of the Primary Court which violated the law. i · The second leg in arguing this ground is that, in a primary court, it is a legaPrequirement 1 that the trial Magistrate must consult with the assessors, take their opinion and: record their opinion and ensure that their signatures are in the proteedings a·ndjudgrnent of the Court. That this is by 1 virtue of Rule 3(1} and {2} and Rule 4(1} (2) and {3} ?f the Magisrate's Court {Primary Courts} Judgment of Court} Rules··G.N. No. 2 of 1988 of the Magistrate's Courts Act, Cap 11 RE 2002. The appellants' cited the case of Ismail i: 3 !' I r' I ;: J '': ! I :Bushaila vs Republic {1986} TLR No. 1 to support this contention. Anoth~r case' cited 'was. Mathias Katonya vs. Ndola Masimbi {1980} TLR 390. In .rebuttal, the respondent submitted that with

regard to the charge not being signed or drawn by the magistrate or police, tha is baseless because the two counts were br!ought before the Court and the c,harge read over to the appellant who was the accused :and he was asked to plead thereto. That the trial court observed procedures and they w'.ere in ·co~pliance with Paragraph 8(1) of the Third Schedule of the Primary Court cr,minal • • ; I • ' • 'code, which stipulates that where a complaint of facts constituting an offence w~ere: a · . ' Primary Court has jurisdiction is made to a magistrate, the magistrate shall examine the complaint and if satisfied that there are grounds for doing so, issue summons or warrant of arrest compelling appearance of accused person. :' '1; On the issue of involvement of assessors, the respondent contended that they· were , I I ' ' involved from the start of the trial and this is seen in the Court records. That the assessors, Elizabeth William and John Ngelingeo were involved in examination: of witnesses and they were consulted throughout the proceedings and in "the decision making and their signature appeared in the judgment and proceedings. ifherefore the i'. t ,. contention they contende'd lacks substance. f ' ' ,I :1 ., . :: I I On the 2nd ground of appeal, the appellant stated that the records of the Primary Court, i · I :I it is clear that the gist of the complaint in Court related to a

contract of sale of a piece of i ; ,I : 'j ' land between Juma Sambuka {the seller} and Thadei Mayaula {the buyer}. The exhibits 'I I ' ,Ii: admitted in Court, which included a contract of sale of land between the said two was dated 18/03/2012. That there is also an agreement for payment of debt between Thadei Mayaula and Alfan Ramadhan dated 12/04/2014 and that all the said transaction where made at the Ward Tribunal of Kerege and settled at the said Ward Land TribunaL 1 They argued further that all in::all meant that the gist of the issue was one not based on:a criminal case but a civil case that is a land case. 'I :i 4 i · I 1 ! ,I i ( ii i I. : i ,. The 3rd ground of appeal is based on submissions by the appeUant that the case w~s not prbven beyond reasonable doubt as against the appellant. Th~ argun,ent being th~t the · 'ap'.pellant is Joseph Daudi Komba whilst the person in the contract of sale is: Juma · . ,sambuka, a transaction witnessed by Abdala Salehe. The appellant asser~ed that, the. · . :' important witnesses were never called to testify. That there was no identification . ' ; ' . . :pa:rade or handwriting expert from the forensic bureau. to ascertai,n the signatLres or ' • • • I O: ' , identify of the appellant who was charged. That omission occasioned miscarriage of justice and commensurate legal requirements. . . . ' It was contended that at the Ward Tribunal,

the respondent was a party and was given a shamba (a farm) by Alfan Ramadhani, and it is clear that the appellant was not a. party to this transactions. That there was no evidence to prove the appellants involvement to enable the Court to find that the case against the appellant was proved beyond reasonable doubt, the standard required in criminal cases. 1Therefore, th'e appellants counsel asserted, that there was no case to answer• on the part of the appellant. The case of Jonas Nkize vs Republic {1992)TLR 213 was cited 1to strengtHen the!:argument of the need for the whole evidence before the Court to be considered and theifact that'it is upon the prosecution to prove their case. I I . 1: . I : I ·: The appellants counsel contended further that the respondent's case had not proven any criminality elements therefore it should have been tailored under a civil liability umbrella. It was their submission for the proceedings, judgment or decision, conviction, sentence and any related orders of the Primary Court of Kerege in Criminal Case no. ;108 of 2013 and Bagamoyo District Court in Criminal Appeal ·No. 1 of 2014 be quashed arid . I set aside being null and void in law. '' :' : L ,I ,: :· The respondent argued 2nd and 3rd grounds of appeal jointly. That the argument by the • 1 ·I i I appellant that there was erroneous evaluation of evidence and the case was not proved ,'. :I i•

I : I (. •I beyond reasonable doubt are without substance. That the records of proceedings and a :: I \; ! ; . i 5 i; I, ,I .I : L ✓ pe;rusal of the judgment show that the trail court critically scrutinized and ~valuated the evidence and the complainant had proved their case to the standard required. F~rther • : argument being that the evidence expresses that it was the appellant ' wh6. had ' . introduced to the respondent through his uncle that the appellant owned the :plot at Kerege, however the said plot was later discovered not to belong to the appellant. That the evidence of SM, SMl and SM2 show that the appellant had received part payment amounting to Tshs. 4,000,000/- in respect of the sale of the plotfor which he pret~nded .' . ,• ' : w~s his own while he knew he did not own the said plot., The respondent fyrther :submitted that there is written evidence which was submitted in Court, in the sale · agreement, where the signatures of the appellant and respondent are contained, an agreement witnessed by the village chairman. The respondent asserted that the appellant had represented 1himself as Juma Sambuka an:d later it was revealed that was not the case and that the respondent had described him before the Police, in terms of marks, and body which led to his arrest. It was further alleged that through the· said misrepresentation the appellant obtained I Tshs. 4,000,000/-

from the respondent. Therefore they submitted the case 1 against the ap'pellant had been proven beyond reasonable doubt. The 1case of Adam Yusufu vs.· Republic, Criminal AppeafNo. 75 of 2004 {HC) at DSM registry to support the holding of the Court that where one knowingly made false representation with intent to defraud with facts allegedly similar,to the present case. I ·r ' . . I . , 0~ the averment by the appellant that the ·case on hand is a land case and therefore' a i civil liability matter it should not be considered, because, in accordance with the respondents submissions, the case on hand is centred on'ingredients of personating and false pretences. Evidence presented at the trial Court was that there wa·s; no sale of a 1 plot at all, the transactions on the sale of the plot were fake and therefdre false. The ' ' appellant had no plot to sell even though he received the Tshs. 4,000,000/-. Thafbeing 6 I 'I I ,I I I I I' the case there was no land sold or transacted, it was purely a transaction planned with . . . ;, : . intent to defraud. ; i\ .i. ' ' . ;· '0~ the issue of the Court drawing adverse inference for failure to call so~e wit~esses such as Halfan _(the respondent's uncle} who witnessed the sale agr~ement, the respondent submitted that there was no reason to call him because there• 1as a· · : . ': . Uk~lihood that there was a conspiracy between the appellant

and the said: Halfah;; That . . ." the respondent had called SM, SM1 and SM2 who witnessed the drawing of the sale. · •. • . l '• ' agreement and the signing and they were enough and they are the ones the respo:ndenf be.lieved were credible witnesses to support his case. The respondent further submitted that taking in consideration section 143 of the Evidence Act, CAP 6 RE 2002, there is no particular number of witnesses that are required to testify in criminal proceedings. Criminal proceedings are not adjudged by the number of witnesses one calls to :prove their case but what is relevant is witnesses who are credible and truthful. Therefore th~y submitted and prayed that the appeal be dismissed and orders be sustained: They : . · : . : : I. l . : also prayed for costs. I Th:e appellant1s rejoinder; submission reiterated the contention that the charge was 1 defective and therefore they argued there was not charge drawn up before the Court. Also that they do not dispute the attendance of assessors, what they challenge~ 1is'the fact that the certified judgment does not show where the opinion of assessors :nor 1 . ! signatures in the decision. They asserted further that the'. appellant was not party to the sale transactions and it was expected the alleged land owner should have been called to disprove ownership and John Sambuka was never called to testify and thatithe suit

was mfsconceived. The appellant counsel also submitted• that the 'case cited by the I respondents to support their submissions is distinguishable because the facts: are different. They reiterated their prayers. 7 ]1 : 11 ,, : i: ! I\ ; I : I ,i I i Jt is important to note that, in this case, it being a Criminal appeal originating frohi the ,'Primary Court, the Director of Public Prosecutions was notified so as to state his position in '.this appeal. On the 14th of December 2015, Ms. Mosie, Learned State Atto~ney . 'ap'pearing for the DPP informed the Court, that the DPP has no interest in the case and · : . . ' : ·1 ,. ' . prayed to withdraw his pa.rticipation , . by virtue of section 386 . of the Criminal . Proc:edi.Jre · .' . Act. The Court proceeded to discharge him to argue the appeal. In determination of this matter, we find that in the process of analysis and evalua(ion of ·ap:peal grounds, we start with addressing the procedural mc1tters : . raised in: the appeal .. . ' an.d what the Court has discerned on perusal of the court rec6rds. This being the second appeal, the Court shall not address matters related to facts but those related to law. We find it prudent to address these facts. The following are the procedural issues raised in the appeal: i , I I j 'I,,, ' I i. That the charge was defective ii. That there was contravention of the law with regard to the

involvement: of the as~essors in the proceedings and decision. It was asserted that the assessors opinion was not recorded nor did c1ssessors sign the decision of the trial Court iii. The case is based on civH liability and not criminal. ; i ' . : ' I' 'I I ; I I : iv .. The sentence given by the trial Court was illegal (this is found in the judgment of the 1,. District co·urt). : I ,With regard to the charge, having perused the Court recor:ds and fou~d that: \n t~e ' • , I, , , I , ,, , , Primary Court there was a charge sheet prepared by the Police Force which was signed !; . ' by· MP 2156 CPL Mbise prepared on the 24/9/2013 and approved on the same date. The charge has two counts. i' I • ,I 8 . . .I I :' first Count: Kujitambulisha kwa udanganyifu k/f 369(1) K/A Sura ya 16 .RE 2002 ·. na :Maelezo ya Kosa where particulars of the offence are stated. :Second Count: Kujipatia Fedha kwa njia ya Udanganyifu K/F 302 Sura ya 16:K/A RE 2002· · nd Maelezo ya Kosa Thereafter on record the charge is signed by the Primary. Court Magistrate ~erege :sa,gamoyo, signed on Tues:day, 24/9/2013 at 8.30 hrs. It is stamped and seai'ed. Records of proceedings of the primary Court on 24/9/2013 reveal as follows: 24/9/2013 Mbe/e ya Mh. J Kayombo- PCM Washauri: 1. John Mzeligab i: 2. Elizabeth wapo I'. Mlalamikaji Mshitakiwa wapo Mah: Msh amesomewa mashtaka yanayomkabili naye amejibu i I 1st Count:

"Siyo Kweli" signature 24/9/13 2dd Count: Siyo Kweli" , signature ,124/9/13 Mah: Mshitakiwa amekana mashitaka yote 2 kuwa siyo kweli signature 9 j '. I' I :! 24/9/13 This Court having reviewed the Court proceedings and the Charge as found: in the records, : finds no fault with the charge. It should be understood that a charge . or;formal• . . . co'.mplaint is the foundation of a criminal prosecution, and is the first document on a. case file. Therefore this Court finds that the assertion by the appellant with regard to. · the charge being defectiv~ and the provision cited by the. counsel . for the appellant, . t:hat' . is/Section 8 and 21 of the: MCA quoted in the rejoinder submissions do not in an~ way relate to the charge before the Court in a criminal proceeding in the primary court. Paragraph 8(1) of the Third Schedule to the MCA, The Primary Courts Criminal Procedure Code reads; "In any proceeding in a magistrate's court in which any rule of Assessors customary Jaw or Islamic Jaw is in issue or relevant, the court may, and when directed by an appropriate judicial authority shall, sit'with an assessor or assessors; and every such assessor shall be required, before judgment, to give his opinion as to all questions relating to customary law or Islamic Jaw in issue in, or relevant to, the proceeding: ; I I ,. i· ' ,, ·I ! Provided that in determining the proceeding the court

shall not be bound to conformwith it . i r .1 I: ! the opinions of the assessors". The said provision with regard to complaints of criminal nature in the Primary Court, having perused the records we find, that the Primary Court was in compliance as already pr~sented to hereinabove. We also proceed to discuss the issue that, the decision was null and void because the assessors were not properly involved as required by the law. 'i I I : I ' This Court has _already shown the presence of the two assessors at the start of I ; ·1 I i'. i. proceedings. The Court records of proceedings also reveal that they were present on the I I ; : i/ 8/10/2013 when witnesses started giving evidence. That is when SMl, SM2 and SM3 , !j r 'i ;; 10 , I ./ ·; I ! I testified. The records reveal that the said assessors also questioned the sad witnks~es.: ' . ,. ' . . : : ' ,:When the Complainant (respondent now) closed his case, the. trial magistrate s~eked. the assessors opinion on whether the accused had a case to answer and Eliz:abeth ·stated: "kwa ushahidi uliopo, kwa kuwa amemtambua pam6ja na vielelezo anayo kesi · .: • • • • I • ' . II ya kujibu" and the second assessor Ngelingao stated Anaya kes; ya kujibu''; :on the 19/11/2012, when .the defence case started, the two assessors were:.. also present ' : ; .. ,an·d asked questions to the accused. The assessors presence is also recorded on th~ date

· of delivery of judgment that is 24/12/2013. The judgment is signed by one 6f, the I • • assessors John Ngalingao and the Magistrate. Elizabeth William has not signed the judgment. It is true that when you look at the records, there is nowhere where the opinion of the assessors are shown after the defence had closed the case and before writing the judgment. Even in the judgment itself, it fails to acknowledge the opi'nion of th~ assessors although one of the assessors signed the judgment showing he had read an'd did not refute it. I I ; I . / l Rule 3 (1) and (2) of the Magistrate's Court's (Primary Courts) (Judgment of Court) Rules, ' ' '' ' : . 1987 GN No. 2 of 198, provides as follows - "3 (1) Where in any proceedings the court ha's heard all the evidence or matters pertaining to the ·issue to be determined by the court, the magistrate shall proceed to consult with the assessors present,• with the view ofreaching a decision of the court. 'I : 1 I I .I I ·! , :1 • (2) If all the members of the court agree on one decision, the magistrate shall proceed to l ' .. record the decision or judgment of the court which shall be signed by all the members." .I : L ' .· (emphasis supplied} i 1· : (3) For the avoidance of doubt a magistrate shall not, in lfeµ of or in aqdition tp, the consultations referred to in sub-rule (1) of this Rule, be entitled to sum up to the· other m~mbers of

the court." '.l 11 11 'j, I ; I J ·• 0 :Re ading the above provisi~ns and guided by the decision of the· Co~rt of A'ppeal: ih NeU . Manase Foya vs. Damian Mlinga, Civil Appeal No. 25 of 2002 {CAT at Arus_ha) . :(unreported), the Court held: ;" We do not read anything in Rule 3 (1), (2) and (3) above which demands the assessors Jo give their opinions on an issue before the court. Under RuleZ assessors. a,re me'mbers of the court which include the magistrate. It is evident from sub rule (2) above that all members of the court are'. required to participate in the decision making proces~ of ; ' . . the . ' • ' f ' • 'court. Assessors are members of the court, co - equal with the magistrate. After they have completed hearing the evidence from the parties, the stage is then set for the magistrate to consult with them in order to reach a decision of the court. This presupposes that before the court reaches a decision, there will be a conference of the members of the court to deliberate on the issues before, them and reach, a decision~ In suth a case, the magistrate will write down the decision, which will then be:·signed by all members of the court... The assessors are members of the court and sign the judgment as such, and not for the purpose of authenticating it or confirming it. Assessors ' I , , j ' , : / • r , , ('. ' are 1 : , neither required to give their opinions, nor to have

their opinio'!s recorded by the j , :. 1: I ,I j .:: • t e ... II mag,sra . I i 'I ,· Therefore this being the position, one cannot challenge the situation 1in this: Court, bearing in mind that all the assessors were present when the judgment :was delivered and majority of them signed it. Therefore the argument on nullity by reason of .limited participation of assessors ·falls. This judgment or position does not depart from- what w~s held in the cited case 1of Ismail Bushaija vs. R {1986} TLR1, it just expounds'on the I • pdnciple therein. Bushaija:finding was to insist on sitting with assessors throughb~tthe proceedings which was complied with in the present case. lri any case the omission in one assessor not signing did not occasion any miscarriage of ,justice since a majority of ' ,. those required to decide did sign the judgment. ' ' i• i I 12 ·On the third iss·ue that the case is based on Civil liability and not Criminal,• having .pe'rused through the records, the Hon Magistrate of the District Court of Bag~moyo .: : i . ' ! ,I ' '. ' : ' ; discussed this issue at length in his judgment. This Court cannot depart from find\ng of : facts of both the lower courts on the issue of believing the witnesses whci testiffed on ' ' i. . . . .be.half . of the respondent, .on the fact that, the appellant had· made a representation . of oV:,ning a plot, and been ~ party in signing a

sale agreement and witnessed by some of · the respondents witnesses who testified in court to that effect. The offence of : ;: :impersonation. Section 369 of the Penal Code reads: : ; '. ' _· '. i . . 369.-{1) Any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, commits an offence. Lobking at the section the ingredients of this offence are· intent to defraud another person; falsely representi'ng oneself to another. The Primary Court and the· District Court, having evaluated the evidence found that the witne·sses had proved that 1the appellant falsely represented himself with intent to defraud. That there was 1 no plot belonging to the appellant, that is why one cannot say the matter is •a la•nff'matter since possessing a plot, was the gist of the false representation: with intent to' defraud the respondent. There is no doubt that this is a criminal offence.· I ' The offence under Section 302 of the Penal Code also reads: • r • • -i l_.i 1· 1, · I: 'I .

302. Any person who by any I t false pretence and with , intent to defraud, . obtains from any other person anything capable of being stolen or induces any other person to deliver to anr person anything cap~ble of being stolen, commits an, offence an d is li1?le to 1 1 imprisonment for seven years. , I ; : Therefore we find no substance in the argument that the matter was one of civil liability 1 '. ' I : : , : '1 • ii ' l ' since the evidence proved contravening the provisions of pen~I sanctions. Therefo~e the I ' • ,: : ' ,. I, ground also falls. i I 13 ii , I f: '. I j . ,· : i 1 ;Th e last Ground was on the sentence, since the appellant did not challeng~ the se~tence . .. an·d order we shall not dwell on this much. For reasons stated herein above, this :Court ' fin.ds . that the respondent had proven his case to the standard required and . finds no • . ' . ' 'reason to depart from the decision of the trial Court and the District Cour~ with; ~egard to: conviction and sentence except for the order for costs. Costs are not generally · :or~ered in criminal cases, so the order for costs is set asid~. The appeal is therefore dismissed. Ordered ~~=-.::" A <; v·S\ 'S,"" \ .. . .,.,,<:A !; ~ '- . 7':/,;).:;~ . J w·,ntr·,da B. Korosso ' l C> •"'··..-'-' /• .$ -'}\,, / . -l ,____ Judge . I ~9' , 24th June 2016 . ,. 'I 'i . • ' I i • 14