josia mwasenga vs southern followman and others 2020 tzhc 1203 29 may 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA AT MBEYA PC. CRIMINAL APPEAL NO. 18 OF 2019 (Originated from District Court of Mbeya at Mbeya; Criminal Appeal No. 49 of 2018, Original Criminal Case No. 516 of 2018 from Mbalizi Primary Court) JOSIA MWASENGA.............................................APPELLANT VERSUS Jfc, % SOUTHERN FOLLOWMAN & 5 OTHERS ...... RESPONDENT JUPGMENt Date of last order: 11/05/2020 Date of Judgment: 29/05/2020 NDUNGURU, J. This is the second appeal, originating from Criminal Case No. 516 of 2018" from Mbalizi Primary Court where the appellant being dissatisfied with the decision of the Primary Court appealed to Mbeya District Court (Criminal Appeal No. 49 /2018) where the District Court upheld the decision of Mbalizi Primary Court. Thus this second appeal. The appellant has lodged three grounds of appeal to wit: 1. That the appellate court erred both in law and fact when held that the appellant's case is solely based on suspicion. Page 1 of 8 2. That the appellate court erred both in law and fact for not put into consideration that the charge against the respondents was due to their alteration threats against me few hours after they had imprehanded (sic) and released on bail. 3. That the appellate court erred both in law and fact for not comprehending that there is an important documentary evidence untended (sic) and refractory witness to be re-testified^ Before the Primary Court where the appellant was the complainant, the respondents were charged of malicious damage to property contrary to Section 326 (1) of the Penal Code, Cap 16 (R:E 2002). Where the trial court found the respondent to have no case to answer as the complainant failed to adduce evidence to establish a prima faciecase. Thus the respondents were acquitted as per Rule 36 of the Primary Court Criminal Procedure Code. Dissatisfied with that decision of the trial court the appellant appealed to the District Court which upheld the decision of the trial Primary Court, still aggrieved hence this second appeal. A brief historical back ground of the matter is to the effect that; The appellant and the respondents are residents of SHIZUVI Umalila and the appellant is a chairman. Sometimes in August, 2018 the Page 2 of 8 appellant was ordered by Village Executive Officer to order his villagers to participate in village development activities including making bricks. Some villagers obeyed but the respondent did not participate in those activities as a result some of them were arrested by the order of Village Executive Officer. However, they were granted bail. On the same date at 10:45 p.m. the appellant motor cycle caught fire at his home. The matter was reported to Village Executive Officer. Village Executive Officer made efforts to investigate the matter but without success. It appears that the appellant suspected the respondents to be responsible for setting fire to his motor cycle hence the appellant instituted the charge against the respondents. At the trial court the appellant who testified as SMI told the court that he did not identify the persons who set on fire to his motor cycle also Nyanqa Paulo Tambalika (Village Executive Officer) who testified as SM2 his testimony was to the effect that he did not discover who set on fire the appellants motor cycle. Even Solomoni Josephat his (appellants brother) who reported to awoken the appellant did not saw the persons who set on fire to the said motor cycle. The trial court found that there was no case to answer to the respondents, aggrieved by that decision, Page 3 of 8 the appellant appealed to the District Court which upheld the decision of the trial court, still uncomfortable hence this second appeal. From the above version of the prosecution evidence, it is clear that the appellant while asleep in his house, his motor cycle which was outside the appellant's house caught on fire and no one was seen setting on fire to that motorcycle but the appellant suspected the respondents to be responsible. ^ % When this appeal came for hearing, the appellant appears in person (unrepresented) while the respondents did not appear. The fact that there was a proof of service contained in the returned summons it was ordered the appeal to proceed ex parte against the respondents. The appellant submitted that being aggrieved by the decision of the Primary Court he appealed to the District Court which did not decide the appeal justly. He further submitted that the Primary Court denied to receive the letter of Village Executive Officer introducing him to the Police Station the content of the letter was to the effect those who fired my motor cycle but the letter did not mention the names of the people who burned the motor cycle but the names was attached. Page 4 of 8 The appellant continue to submit that at the District Court the respondents agreed that the destroyed motor cycle was tendered as exhibit, the fact that the respondents made a threat immediately before the event then he believe it is them who fired his motor cycle. The appellant prayed the court to consider and allow his appeal with cost. Both lower courts decided against the appellant on point of facts. This being the second appeal it was expected that the appellant could raise the point of law. To my view there is no point of law has been raised. The grounds of appeal raised by-the appellant are factual issues which are not the concern at this second appeal. As there is no valid point of law raised in this second appeal, I find no reason to differ from bothjower court's findings of fact. It has often been stated and I am aware that the second appellate court should bejeluctant to interfere with a finding of fact by a trial court, move so where a first appellate court has concurred with such findings of fact. See the case of Neli Manase Foya vs. Damian Mlinga, Civil Appeal No. 25 of 2002 Court of Appeal of Tanzania (unreported). Page 5 of 8 It is established principle that a court of second appeal will not routinely interfere with the concurrent findings of the fact by the two courts below except where they completely misapprehended the substance, nature and quality of evidence; where there is misdirection or non directions on the evidence or where it is clearly shown that there is miscarriage of justice or a violation of some principles of law or practice. See the case of Director of Public Prosecution vs. Jaffary Mfaume Kawawa [1981] T.L.R149 and Salum Mhando Stores vs. Republic [1993] T.L.R 170. In this instant case, the District Court which was the first appellate court, concurred w itlf the findings of facts by the Primary Court. So has this court itself, having considered and evaluated the evidencebeforeit and issatisfied that there was no evidence upon which both lower courts could make concurrent findings of convicting the respondents. In the case of Peters vs. Sunday Post Limited (1958) EA 424 or page 429 the defuct Court of Appeal of Eastern Africa held: "it is a strong thing for an appellate court to differ from the findings, on a question of facts, of a judge who tried the case, and who has had the advantages of seeing and hearing the witness. An appellate court has indeed jurisdiction to review the evidence in order to determine Page 6 of 8 whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might come to a different conclusion." In all the circumstances, I am satisfied that the second appeal was rightly determined. In the result I dismiss the Appeal in its entirety. It is so ordered. UM J(_ D. B. NDUNGURU JUDGE 29/05/2020 Page 7 of 8 Date: 29/05/2020 Coram: D. B. Ndunguru, J Appellant: Absent Respondent: Absent B/C: Zena Paul Court: Judgment delivered in the absence of the parties, though the //{$pappe\\aht^Bs aware ofthe judgment date. . f~F r*f f '■ •/ D. B. NDUhbUKU JUDGE ~ 29/ 05/2020 Right of Appeal explained. Page 8 of 8