19871123 TZHC Dar es Salaam 1

DJ THE HIGR coi:m.T OF T}.NZJJUJ. J-..T DJ.II. ES Sl..LLJJi'l (PC) CRIMilfJJ., i~PPEil L NO. 2 OF 1987 (]'rom the decision of the District Court of Morogoro in Criminal Appeal No.174,/86) (Original _Mvomero Pr. Court Cr.Case No·.193/86) SILL.LEI s/o LENGAI••••••••••••••••A.PPELL.A.NT > versus BJJ.IJi.DH.AliiJ/ MBIRU. • ............ : ••• RElSPONDENT JUD GM E.!..1_ The appellant, Silalei Lengai, was convicted by the P.rimary Court at Mvomero of malicious damage to property contrary to Section 326(1) of the Penal Code. The trial court sentenced the appellant's father to a fine of Shs. 500/= or one month imprisonment. It was also ordered that the appellant should pay Shs~ 15,000/= compensation to the· complainant~ ~Then the complainant appealed to the district court at Morogoro, his main complaint was that the a.mount of compensation was inadequate-. He wanted to be paid Shs. 73,500/=·• The district magistrate enhanced the a.mount of compensation to Shs.40,000/=• The appellant was not satisfied, In his petition of appeal to this court the appellant raises two tne,tters~ First df all he claims that the person who was charge4 in the Primary Court was his father Malango Kibangashi~ When the accused died, the appellant was then made an accused person in the case• Secondly, the appellant ttomplains that he could not be ordered to pay compensation when the offence was committed by someone else. The re is me xii t in this appeal"• The re co rd of the primary court shows clearly that the original accused person befo~ the primary court was one Jialongo Kibangash:1.'~ That is clear from the complaint signed by, t~ complainant Rama,J.hani Mbiu~ Even the file cover is to that effect. tne procijEdings commenced and twoo witnesses gave eviden<1e for the p~secutJ.on·~ The hearing was adjourned, and on 12th Septem.er, 1986 tbt oelllr8ci Malango Kibangashi was absent·• It is on :t'\3cord -flhat he was sick'; On 19th September, 1986 the record reads: - n'~ • ~Mtoto wa..t· -s}?.taldwa w-ieletwo., ai twa Sila.J.ei Lengai, ;,upo·.n The more witneeses for the p;:rose•uti0n, gave evidence and the appe_llant gave fl.is evidence .4.Qnying tl~ charge~ He was subsequently convicted of the off.nee wit}lwhich his father 2- The trial The trial primary couxt g:rQssly erred in convicting the appellant who was in fact not charged with the offence. Tne learned State attorn~y conceded and he did not support the conviction. This was a serio'!Ul miscarriage of justice~ The appellant was convicted. for an offenee with which he WQS not c~arged. No.person may be convicted un:\,ess hit has been cll~ged and the charge has been read and explained to him~ Since the appel:1!:Ult was ~t the accused in the case and h·is name was op'l.1 'substituted in the oJiarge sheet after two witnesses haq given evidence and wi'€hout charging 'fihe a:ppellant and i.l recalling th~ wi t:nesses, · the' convic'\ion age.inst him cannot stand·. In .o\ fact the aPPt:Vant was convicted on \)eha.1,f of his f~ther. That· was a f~· gross error·. The conviction cannot be allowed 'to• ~tand~ It is herebY: quashed. I shall on11 make a few remarks on the order of compensation, for the guidance of the lower courts, Firstly,, the order of compensation was.a nullity bec~1aae the assessors' opinions were not obtained as req-uired by Section 7 ( 2) of the Magistrates' Courts Act 1984~ Secondly, the appeal by the complainant to the district magistrate.. against the order of Qompensation was misconceived. If the complainant was disatisfied and he thought :the amount of compensation was inadequate, he would have filed a. civil suit'. in a. c-0urt otf c-ompetent jurisdiction; Under Section 20(1) (a) of .the Magistrates' courts I.ct it is pro"."ide·a· , that only the pers~n convicted of an offence by the primary court .may appeal to the, district coutt. ~he .compiainan.t or the Director of Public Prosecutions jp.ay ont,y.appeal to, .:t:he distric.t court where the accused person has been·. acquitted·.; If '.the, compl:a-in~ is disatisfied with the order of compensation wn'~ .an ac'bused person h~s been convicted, ·he may file a ciyil suit, if ·hec-' so wishes';· ,, 1 '" : This appi3al i~ allowed~· The· coliviction is quashed, and the ~e:n:tence . and ol'd:er fo-} ~~~pensation a~ . set. a~\de:; The fine whi'ch the appellant paid must be' refunded to him; W• J • j\,tt..llJ'A JUDGE MOROGORO 2)rd novembe:r:, 1987 ,. I~_~aba, ~_ta.te Attorney1 fotr the Republic .4~pe~l'ant absent·~