rahisi mtendamunji vs nanjayo transport co ltd 2023 tzhc 21867 21 august 2023

. THE UNITED REPUBLiC aF-TANZA^M

JUDICIARY IN THE HIGH COURT OF .TANZANIA. ; F^TWARA DISTRICTWNE.. ATMTWARA ■ PC CRIMINAL APPEAL CASE N O/3 OF^22t (Originating from: Criminal Case No 7/2022; Masasi District Court and from Criminal Case No 31 of 2022 Lisekese Primary Court at Masasi) NANJAYO TRANSPORT.CO. -MrpYw.^ < RULING- 21/8/2023 . ”• LALTAIKA, J. ' : The appellant herein, RAHISt/MTENPAMUNjIy-wa.^ arraigned in the Primary Court of Masasi at Lisekese and charged with the offense of Stealing by Agent contrary to Section 273(b) of the.’Penal- Code [Cap. 16 R.E. 2019]/ now the REVISED EDITION 2022. It was the respondent's assertion that on diverse dates from 26/06/2021 to 20/11/2021 within Masasi District and other areas of Mtwara Region, the appellant, as an. agent of the respondent, was’entrusted TZS. 12,475,000/= to transport cashews of the Page 1 of 6 respondent from Newala District, but the appellant did steal such an amount of money for his personal use. When the charge was read over and explained to the appellant, he pleaded not guilty. Consequently, the matter went for a full trial. After a full trial, the learned trial Magistrate (Hon. B.S. Nyaki) convicted him as charged and sentenced him to six months on conditional discharge. Moreover, the trial court ordered the appellant to pay the respondent a compensation of TZS. 12,475,000/- within twenty-one (21) days from the date of the order. Dissatisfied with both conviction and sentence, the appellant appealed to the District Court of Masasi via Criminal Appeal No.7 of 2022. The first appellate court presided over by Hon. B.K. Kashusha, RM, dismissed the appeal for lack of merit. Again, dissatisfied with both conviction and sentence, the appellant has filed the Petition of Appeal, which is predicated on the following grounds: .

1. That the learned Magistrate of Masasi District Court erred in taw and facts by upholding the decision of Msckese Primary Court without considering that the Usekese Primary Court had no jurisdiction to determine Criminal Case No, 31 of 2022.

2. That the learned Magistrate of Masasi District Court erred in law and facts by departing from the grounds of appeal advanced by the appellant and determined the issues that were not subject to appeal. I have dispassionately, albeit suo moto, gone through the records of the lower courts. As the court of record vested with revisionary power, I have discovered that there is an important issue that should be attended to before even going to the hearing of the matter. To this end, the issue for Page 2 of 6 determination is whether the trial court had jurisdiction to entertain the present matter. Jurisdiction of any court must be established at the earliest possible: time by the court that has received the case/suit. The objective of ascertaining the issue of jurisdiction at the earliest opportunity is to enable the court to avoid the risk of proceeding with the hearing with the assumption that it has jurisdiction to try the case. This position was articulated in. Fanue! Maritin Ng'unda vs Herman M. Ng'unda, Civil Appeal No.8 of 1995 (CAT-unreported), when it was said; "The jurisdiction of any court is basic; it goes to the vety authority of the court to adjudicate upon cases of different nature...the question of jurisdiction is so fundamental that courts must, as a matter of practice on the face of it, be certain andassured of their jurisdictional position at the commencement of

the trial. It is risky ■and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon the case, (emphasis supplied)" 1 am also aware of the settled principle of law that all courts in Tanzania are creatures of statutes, and their jurisdiction is purely statutory. In Shyam Thanki and Others vs NewiPatlacO-Hotel (1971) EA 199, the erstwhile East African Court of Appeal held at page 202 thus: "AH the courts in Tanzania are created by statute, and their jurisdiction is purely statutory. It is an elementary principle of taw that parties cannot by consent give a courtjurisdiction that it does : not possess." " Page 3 of 6 it is also important to point out what exactly is meant by the term jurisdiction in the legal purlance. The term jurisdiction is defined in Halsbury's Law of England Vol. 10 paragraph 134 to mean: "■' / "Theauthority which a court has to decide matters that are litigated before it or total cognizance of matters prescribed in a forma! way for its decision." As I intimated earlier, the appellant was charged with the offense of .Stealing by Agent contrary to Section 273(b) of the Penal Code. [Ca. 16 R.E. 2019], now the Revised Edition 2022. Primary Courts are creatures of a statute, established under section 3 of the Magistrates' Courts Act [Cap. 11 R.E. 2019] (hereinafter referred to as MCA). The provisions of section 3 of

the MCA read: ”5. (1) There are hereby established in every district primary courts which shall, subject to the provisions of any law for the time being in force, exercisejurisdiction within- the respective districts in which they are established. (2) The designation of a primary court shall be the primary court of the district in which it is established," Jurisdiction of Primary Courts, which is the crux of this ruling, is vested under section 18 of the MCA. However, narrowing down particularly to the matter at hand, jurisdiction of the trial court is vested in section 18(l)(c) of the MCA, which provides: A primary court shall have and exercise Jurisdiction: (c) in allproceedings in respect of which jurisdiction is conferred on a primary court by the First Schedule to this Act;" Page 4 of 6 It goes without saying that the offense with which the appellant was charged, convicted, and sentenced by the trial court and blessed by the first appellate court is not among the listed offenses under the provisions of the Penal Code as enshrined by Part I of the First Schedule of the MCA. Had the District Court discharged its power over the trial court vested under section 21 of the MCA, I am fortified that this matter would have ended at the first appellate court's level. The first appellate court needed only a slightly more focused attention to details. "■ To this end, I am fortified

that the Primary Court of Masasi at Lisekese had clothed itself with jurisdiction to try an offense not scheduled by the Magistrates’ Courts Act [Cap. 11 R.E. 2019] as triable by Primary Courts. In addition, the District Court of Masasi erroneously blessed the illegal criminal case against the appellant. Based on the above, what is the way forward? First and' foremost, I impress upon our learned Magistrates to ascertain jurisdictional issues before commencement of hearing of any matter before them, whether criminal or civil. Secondly, District Courts are called upon to exercise their powers over Primary Courts vested by the provisions of the MCA to meet the objectives of establishing the same and reduce unnecessary cases in the registries of the High Court. Said and done, the appeal is allowed. I hereby nullify the proceedings and judgments of the lower courts, quash, and set aside the conviction, sentence, and compensation order. Furthermore, I do hereby free HAHISI MTETOAMUNM from the order. Page 5 of 6 It is so ordered. Court: This ruling is delivered under my hand and the seal of this court on this 21st day of August 2023 in the presence of Mr. Wilbert Jackson, learned Advocate for the appellant and in absence of the respondent.

JUDGE 21.8.2023 Page 6 of 6