Mussa Masunga v Sumbya mashauri Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY)

AT SHINYANGA MISC. CRIMINAL APPLICATION NO. 16 OF 2023 (Arising from Pc. Appeal No. 2/2023 from the High Court of the United Republic of Tanzania at Shinyanga dated 10th November, 2023) MUSSA MASUNGA ……………….……………...…………………………APPLICANT

VERSUS SUMBYA MASHAURI……………………………………….……..…… RESPONDENT .

RULING Date of Last Order 12.06.2024 Date of Ruling 12.07.2024 MWAKAHESYA, J.: The applicant, Mussa Masunga, being aggrieved by the decision of this court in PC. Criminal Appeal No. 2 of 2023 (Hon. Morris, J) has preferred the present application seeking certification that there is a point of law. The same is made under section 6(7)(b) of the Appellate Jurisdiction Act and has been brought by way of chamber summons and supported by an affidavit sworn by the applicant himself. Resisting the application, the respondent, filed a counter affidavit. 1 The brief facts of the events that have led to this application are as follows: In the Bunamhala Primary Court, Bariadi District – Simiyu Region, the respondent was charged with the offence of Obtaining goods by false pretence c/s 302 of the Penal Code. The appellant was the erstwhile complainant. The particulars of the charge being that on 08.08.2017 the respondent, without any colour of right, obtained TZS 4,638,000/= and two bicycles worth TZS 260,000/= property of the applicant, under the promise that the same will be reverted to the applicant when needed. The trial court convicted the respondent and sentenced him to four (4) months conditional discharge. It also ordered the respondent to return TZS 4,638,000/= and the two bicycles to the applicant. Aggrieved, the respondent appealed to the District Court of Bariadi which

overturned the conviction and subsequent orders of the trial court, thereby prompting the applicant to appeal to this court. The High Court upheld the decision of the District Court. Aggrieved by the decision of the District Court, the applicant is now seeking to knock on the doors of the Court of Appeal, and this matter having originated in the Primary Court, in accordance with the dictates of the law, the applicant must first obtain a certificate that there is a point(s) 2 of law involved to be determined by the Court of Appeal before he can lodge his appeal, hence the present application. In paragraph 6 of his affidavit, the applicant has attempted to highlight the said points of law which he seeks certification. I shall therefore reproduce the same for ease of reference: “6. That, the 2 nd appellate court erred in law by failure to substantiate between two offences namely; (a) Wizi wa mali kinyume na kifungu cha 302 cha Kanuni ya Adhabu (Sura ya 16 RE 2019) in the judgment of the trial court; and (b) Obtaining money by false pretence contrary to section 302 of the Penal Code, [Cap. 16 RE 2019[ (ii) That, the 2nd appellate Court erred in law by disregarding and ignoring that, the 1st appellate court introduced a new offence which the respondent stood not (sic) charged with before the trial court. (ii) That, the 2nd appellate court erred in law by ignoring and disregarding

that, the offence of theft has distinct elements with the offence of obtaining money by false pretence.” On 17.05.2024 both parties were present in court whereby it was agreed that the hearing of this application should be conducted on 12.06.2024. However, on 12.06.2024 the respondent was a no-show; thus, 3 I ordered the hearing to proceed ex-parte. The applicant, appearing in person proceeded to prosecute his application. The applicant adopted his affidavit and submitted to the effect that, the judgment of the trial court had stated that the offence that the respondent was charged with was theft. That was the end of his submission. The task left for this court is to decide if there is a point(s) of law to be determined by the Court of Appeal, and if so then to frame such point(s) or to approve and adopt ones framed by the applicant (see Harban Haji Mosi and Another v. Omari Hilal Seif and Another [2001] T.L.R. 409]. Having gone through the records and the applicant’s affidavit in support of this application the issue of whether the first appellate court introduced a new offence which the respondent was not charged with at the trial court was well canvassed by the second appellate court (Hon. Morris, J) and in light of the available records of the trial court and the first appellate court. The same, as correctly held by the second appellate court, was nonexistent. It is an imagination on the part of the applicant and has no truth behind it. 4 Therefore, I find that, the issues raised by the applicant in paragraph 6 of his affidavit in support of the application do not qualify to be points of law. In light of the above, this application is dismissed. It is so ordered. N.L. MWAKAHESYA

JUDGE 12/07/2024 5