maria d achinamba vs maria mdetele another 2015 tzhc 2297 27 april 2015

IN THE HIGH COURT OF TANZANIA

AT IRINGA PC CRIMINAL APPEAL NO. 2 OF 2013 (Originating from Criminal Appeal No. 18 of 2012 Njombe District Court from Criminal Case No. 217 of 2012 Njombe Urban Primary Court) MARIA D. ACH IN AM BA................. APPELANT

VERSUS 1. MARIA MDETELE ........... RESPONDENTS 2. HILDA MTEGA J

JUDGMENT KIHWELO, J . In the Njombe Urban Primary Court, the respondents Maria Mdetele and Hilda Mtega were jointly charged with assault causing actual bodily harm contrary to Section 214 of the Penal Code Cap 16 RE 2002 and were found not guilty of the charge and were acquitted. Aggrieved by the decision of the Primary Court, the appellant Maria D. Achinamba appealed to the District Court against the acquittal. The appellant’s appeal was not successful in the District Court. The appellate court found that there was no serious ground or point of law involved and therefore dismissed the appeal. Still aggrieved the appellant had filed this second appeal to this court. The appellant has presented four grounds of appeal in her Memorandum of Appeal. However, the main grounds of appeal can be summarized as under: - (1) The appellate magistrate had no jurisdiction to hear the appeal as she took oath to preside in the Primary Court and the working station is that same court where this appeal originated. (2) The appellate magistrate erred in law and fact in not holding that the statement “Ni kweli lakini tulikubaliana tulipe pesa na alishalipwa” as a plea of guilt by the first respondent. (3) The appellate magistrate erred in law and in fact in not considering the statement of the respondents at the police station as well as the PF3. (4) The appellate magistrate erred in law and fact in

holding that the two names referred to different persons. The background to this case is that it is alleged that on 12/06/2012 at around 07:30 hours at Chaugingi area within Njombe, the respondents intentionally and unlawfully assaulted the appellant thus causing her bodily harm. The matter was taken to Njombe Police Station and later the respondents were arraigned at Njombe Primary Court. During trial one of the issue which arose was that while the name of the complaint in the case file was Maria Daniel the recorded name in the Police Form No. 3 (PF3) was Maria Achinamba and the court found out that the two names were not the same. When this matter was called for hearing the appellant a lay person did not have much to say and simply asked the court to quash the decision of the District Court and order that she tie paid compensation for the assault and injury sustained. I have careful read the records of the two lower courts and I am of the considered opinion that the assertion that the Honourable Magistrate who presided over the appeal at the District Court did so erroneously as she took oath to preside in the Primary Court, this ground is seemingly baseless and a mere afterthought as the same was never raised at the courts below. I think it will be an abuse of the court process to uphold the appellant’s contention. Fairness demands that a party who intends to raise a

preliminary issue, should do so at an earliest opportunity. In the present case the appellant ought to have raised the issue in question during the appeal at the District Court but he did not do so. She can not be allowed to do so now after a period of three years. This position was taken in the case of Aloys Lyenga V Inspector General of Police and Another [1997] TLR 101. As regards to the contention that the first respondent pleaded guilty to the charge this also does not seem to be the case when you careful read the records of the trial court which categorically indicates that respondents denied the charge against them. In any case the statement “Ni kweli lakini — ” by any stretch of imagination can not be taken to be unequivocal pfea of guilty if at all one was to consider that besides the other records as I have pointed out above. Lastly I am not prepared to agree with the contention by the appellant that the PF3 proved the charge of assault. However, I am not at issue with the two lower courts that the name in the PF3 and the name in the case file referred to and the same person. Having said so the only issue for consideration is whether the present appeal is meritorious. I am fully aware that this is a second appeal. I am therefore supposed to deal with questions of law only. I can ! ♦ only interfere where there was a misapprehension of substance, nature or quality of evidence. This has been the position of the law which have been celebrated in several instances one of which is the case of Salum Mhando V Republic [1993] TLR 170. In view of what I have just stated above, I am satisfied that there is no ground upon which this appeal can succeed and I am bound to dismiss it in its entirety. P. F. KIHWELO

JUDGE 27/04/2015 Right of Appeal is fully explained.