silvester owiwo vs odhiambo angwango 2010 tzhc 276 23 july 2010

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGIST AT MWANZA (PC) CRIMINAL APPEAL NO. 28 OF 2008 (From the decision o f the District Court o f Tarime at Tarime in Criminal Appeal No. 4 o f2008, Original Primary Court o f Tarime in Criminal Case No. 105 o f2007) SILVESTER OW IW O.................. .. APPELLANT VESUS ODHIAMBO ANGWAN'GO ......... , RESPONDENT JUDGMENT 3/5/2010 & 23/8/2010 NYANGARIKA, J. The appellant appeared in the Primary Court of Tarime at Riagaro (hereinafter referred to as the trial court) charged ‘With and convicted o f contempt o f court c/s 114 (1) (h) of the Penal Code (Cap 16 RE 2002) and was sentenced to pay a fine of Tshs. 60,000/= or six (6) month jail. On appeal, the decision of the trial court was reversed by the District Court of Tarime at Tarime (hereinafter referred to as the, First Appellate court) where both Ithe, cohvictlpn|j,and sentence were quashed and set aside with an order that the respondent be refunded his Tshs. 60,000/= paid as fine! Dissatisfied with the decision of the First Appellant court, the appellant has now preferred the present appeal to this court against the decision of the First Appellate court. In this appeal, the appellant has registered four (4) grounds of appeal which can be summarized to only one ground, namely, I "That the First Appellate court erred in - law and fact by holding that the respondent has not committed an offence o f contempt by trespassing and selling the land which was lawfully awarded to the appellant by the court" In quashing the findings of the trial court, the First Appellate court held that the trial court erred in admitting an exhibit which was an uncertified copy of the judgment of the Primary Court delivered on 30/12/2003 and did not consider the evidence of DW2, Karume Jeremiah, the chairman -of Sudi i ; •' 1 Government village, who, told the trial court that the 'land!in, dispute belong to the respondent. 2 I agree with the First Appellate court that it was wrotfgsjfor i 4 1 ' ': • ‘ ' the trial court to receive a copy of the judgment which was not certified but it appears also that the copy received was not sealed with a court seal. Further that the respondent was not shown and asked of it to find out whether he had an objection or not, an objection,, if any, ought to be resolved before the same is admitted in court as an exhibit A. On the same vein, the First Appellate court should have found that a copy of the minutes of the meeting of committee of i ■! , • | Sudi village tendered in court as Exhibit R 4was also notj| a certified copy and there is no reason why the original was not tendered in court instead. Morever, the appellant and the respondent were not the writer or author of the exhibits tendered in the court and therefore were not competent witnesses to tender the exhibits as they could no be in a position to answer questions relating to the geinunes and authenticity of those exhibits. Therefore from those irregularities, it was wrong for the First Appellate court to fault and reverse the findings of the trial court on that score alone in favour of the respondent as the 3 same irregularities applies to the copy of the minutes of the ! i meeting which was tendered by the respondent asian Exhibit p i Therefore the best option in such circumstances was for the First Appellate court to quash the .finding of the trial court and nullify the proceeding with an order for retrial as I hereby do. The appeal is allowed. The judgments of the First Appellate court and the trial court are hereby quashed and set aside. The proceedings of the two courts below are also nullified. The case shall be heard afresh in the primary court before another magistrate sitting with different assessors in accordance with the law. 7C. 'Jttftutqanifa, JUDGE At Mwanza 23/ 7/2010 4