Simon Abel Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MWANZA SUB REGISTRY

AT MWANZA PC. CRIMINAL APPEAL NO. 24821 OF 2024 (Arising from the decision of the District Court of Magu at Magu in Criminal Appeal No.33/2023) Before Hon E.J Kimaro -SRM Originating from Criminal Case. No.247/2023). SIMON ABEL ….…………..………..….............................................. APPELLANT

VERSUS JUMA PAULO ……………..…......………...................................... RESPONDENT

JUDGMENT 18th November & 13th December, 2024 CHUMA, J. In the instant appeal, the appellant advanced seven grounds challenging the decision of the first appellate Court in Criminal Appeal No. 33 of 2023 which I don’t see any reason to reproduce, the same will appear in due course. The appellant sought the following reliefs: - The Appellant requests this court to quash and set aside the decision of the first appellate court in Criminal Appeal No. 33/2023 dated 27.3.2024 and confirm the decision of the Primary Court dated 28.11.2023 in Criminal Case No. 247/2023. The Respondent be ordered to pay the costs of this case. The Respondent be ordered to pay the Appellant any other costs deemed fair. 1|Page This appeal was heard ex-parte against the respondent following his non-attendance in court. In this appeal, the appellant had no representation and the ex-parte hearing proceeded via written submission. Having gone through the appellants’ submission and my careful perusal on record, the issue that calls for determination by this court is whether or not this appeal is meritable. The first ground of appeal is to the effect that, the first appellate court erred in law by failing to analyze the seven (7) grounds of appeal submitted by the appellant leading to a decision that was not based on the submitted grounds as there is no part in the District Court’s judgment where the appeal

grounds were discussed. My close look into the first appellate court judgment, I aligns with the appellants’ submission that the presented grounds of appeal were not entertained. As it was said now and then the court may not be bound to consider all grounds of appeal but is duty-bound to determine all claims or complaints raised in the filed appeal before it. This position was held in a number of cases including that of Malmo Montage Konsult AB Tanzania Branch Vs. Magret Gama Civil Appeal No. 86 of 2001. where it was held that: - 2|Page “In the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the role of the trial court. It is however, expected to address the grounds of appeal before it. Even then, it does not have to deal seriatim with the grounds of appeal as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address the decisive ground of appeal only, or discuss Each ground separately”. Guided by the above authority, and my scrutiny of the first appellate court decision, the same does not reflect any determination on the presented grounds of appeal. What was done is a creation of its way of disposing of the appeal by not considering the presented points of grievance. Even if the court has no reasons to consider grounds of appeal before it for whatever reasons, reasons have to be

assigned for not considering them which in this appeal was not done which to me is fatal. This is because the court is bound by the pleadings, evidence, or submission before it in its determination. Part of the first appellate court decision on page 4 reads, I quote: - “Katika sababu za rufaa ambazo zimeletwa kuna sababu za kimwenendo na za kisheria”. 3|Page After those words, no further explanation was given by the court on its observation of the existing grounds on procedure and the law. In other words, the same was not discussed. This cements my analysis above that the presented grounds were not considered or determined. Since all grounds remained unattended I feel unable to proceed determining the remaining grounds as the first point suffices to dispose of this appeal. I then nullify the first appellate court proceedings, quash and set aside its judgment. I remit the matter to the first appellate court to rehear the appeal in line with the law and procedure before another Magistrate with requisite jurisdiction. The appeal is then allowed to the extent above stated. I so order. DATED at MWANZA this 12th day of December, 2024. W.M. CHUMA

JUDGE 4|Page The judgement delivered in court before the appellant in person and in the absence of the respondent this 12th day of December, 2024. J. MUSAROCHE

DEPUTY REGISTRAR 5|Page