TANZANIALAW

REPORTS1992

PUBLISHED O N BEHALF OF THE GOVERNM ENT OF TANZANIAJUTA & COMPANY LIMITED

CAPE TOWN ■ JOHANNESBURG 1 DURA AN

© Tanzania Law Reports Board 1998 All rights reserved

TANZANIA LAW REPORTS 1983 - 1992 Published through IDA CR 2413 TA

ISSN 1028-9186

Edited and typeset in Tanzania by the Tanzania Law Reports Board Published by Juta & Co Ltd.. P O Box 1-4373. Kenwyn 7790. Cape Town

’rmted and bound by CTP Book Printers (Pcy) Ltd.. Caxton Street. Parow 7500. Cape Town

EDITORIAL BOARD

ChairmanThe Hon. Justice F.L. NYALALI, Chief Justice,

Court of Appeal of Tanzania

Managing Editor Dr. Z.S. GONDWE, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

EditorsThe Hon. Mr. Justice H.M. HAMID, Chief Justice, Zanzibar

The Hon. Mr. Justice B.A. SAMATTA, Principal Judge (J.K.), High Court of Tanzania

Mr. K.S. MASSABA, D.P.P., Attorney-General Chambers, Dar es Salaam

Mr. A.M. M1SKRY, State Attorney, Attorney-General Chambers,Zanzibar

Dr. S. BWANA, Registrar, Court of Appeal of Tanzania

Mr. S.J. JADEJA, Advocate, High Court of Tanzania

Ms. C. ORIYO, Corporation Counsel,Tanzania Legal Corporation

Mr. S. MCHOME, Lecturer in Law, Faculty of Law, University of Dar es Salaam, Assistant Managing Editor

Administrative Assistant, Ms. M. SHANGALI

Special Assistant. Dr. N.N.N. NDITI. Senior Lecturer in Law, Faculty of Law, University of Dar es Salaam

TANZANIA LAW REPORTS 11992]T.L.R

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of Tanzania and the High Courts of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1992] T.L.R

V

JUDGES OF THE COURT OF APPEAL OF TANZANIAIN 1992

1. The Hon. Mr. Justice F.L. Nyalali2. The Hon. Mr. Justice L.M. Makame3. The Hon. Mr. Justice R.H. Kisanga4. The Hon. Mr. Justice A.M.A. Omar5. The Hon. Mr Justice A.S.L.Ramadhani6. The Hon. Mr. Justice N.Z. Mnzavas7. The Hon. Mr. Justice L.M. Mfaiila

- Chief Justice- Justice of Appeal- Justice of Appeal- Justice of Appeal- Justice of Appeal- Justice of Appeal- Justice of Appeal

JUDGES OF THE HIGH COURT OF TANZANIA IN 1992

1. The Hon. Mr. Justice B.A. Samatta -2. The Hon. Mr. Justice D.P. Mapigano3. The Hon. Mr. Justice K.S.K.Lugakingira4. The Hon. Mr. Justice E.W. Katiti5. The Hon. Mr. Justice B.D. Chipeta6. The Hon. Mr. Justice N.M. Mushi7. The Hon. Mr. Justice W. Maina8. The Hon. Mr. Justice J.A. Mroso9. The Hon. Mr. Justice L.J.R. Chua10. The Hon. Mr. Justice R.A. Mwaikasu11. The Hon. Mr. Justice R.J. Ruhumbika12. The Hon. Mr. Justice Y.S. Rubama13. The Hon. Mr. Justice A.G.G. Korosso14. The Hon. Mr. Justice A. Bahati15. The Hon. Mr. Justice H.A. Msumi16. The Hon. Mr. Justice J.L. Mwalusanya17. The Hon. Mr. Justice E.E. Kazimoto18. The Hon Mr. Justice E.P. Moshi19. The Hon. Mr. Justice L.A. Kyando20. The Hon. Mr. Justice W.H. Sekule21. The Hon. (Madam) Justice E.N. Munuo22. The Hon. Mr. Justice J. Masanche23. The Hon. Mr. Justice L.B. Mchome24. The Hon. Mr. Justice M.D. Nchalla25. The Hon. Mr. Justice J.J.M. Mackanja26. The Hon. Mr. Justice J. Mkwawa27. The Hon. Mr. Justice T. Mkude28. The Hon. Mr. Justice E.I.K Mwipopo29. The Hon. Mr. Justice E. Rutakangwa

Principal Judge (J.K.)- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge

- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge- Puisne Judge

VJ TANZANIA LAW REPORTS [ 1992]T.L.R

JUDGES OF THE HIGH COURT OF ZANZIBAR IN 1992

1. The Hon. Mr. Justice Hamid M. Hamid2. The Hon. Mr. Justice Dahoma -

Chief Justice Puisne Judge

vii

CASES REPORTED

AbdulkadarA.Mohamedaliv. Registrar of Titles..................C.A. 21Albert Bragan/a and another v. Mrs Flora L. Braganza........C. A.307Ally Bakari and another v. Republic.......................................C.A. 10Ally Hassan Mpapata v. Republic..........................................H.C.265Andrea Chilenav. K eniM asaka............................................ H.C.346Archard v. Asteria Mulwani and another...............................C.A. 129Auguster Salanje v. Mussa Mohamed Pemba....................... C.A. 62B.P. Tanzania Ltd v. Gruppo Sogesca Lanari

Esterio s .p .a ..................................................................... C.A.321Benjamin Mwansi v. Republic................................................ C.A. 85Bemadeta Paul v. Republic.................................................... C.A. 97Bushiri Amiri v. Republic........................ ................................ H.C. 65 -Charles Lala v. Abdallah M angi............................................. H.C.336Christian s/o Kale and anotherv. Republic............................C.A.302Christomoo Ngowi v. William Lusito and another.................C.A.340Christopher Mwakabura u Republic..................................... C.A.380Clay La way v. Republic.......................................................... C.A. 72Cosmas Construction Co. Ltd. v. Arrow Garmets L td .........C.A. 127D.P. Valambhia v. Transport Equipment L td...........................C.A.246D.T. Dobie & Company (T) Ltd v. N.B. M watebele........... C.A. 152Damian Ferdinand Kiula and another v. Republic..................C.A. 16

* Didas Rwakalila and others v. Thomas Matonande.............. C. A.314Director of Public Prosecutions v. Paul Reuben Makujaa'.... H.C. 2Edward Marealle v. Mareale Clan and another.....................C.A.275Elias Joakim v. Republic.........................................................H.C.220^Fanuel Msengi u Peter Mtumba........................... .................H.C. 109Farah Mohamed v. Fatuma Abdallah.....:.............................. H.C.205Gosbert E. Rweyemamu v. Tanzania Wood Industry

Corporation.................................................................... H.C. 112HajiAthumanilssa v. Rweitama M utatu................................H.C.372Hamson D. Ghikas v. Ludwina G. G hikas.............................C.A.288Haruna Ndologa v. Sangula Chigonela.................................. H.C. 1Hassan Juma Kanenyera and others v. Republic...................C.A. 1 (X)I.S. Msangi v. JumuiyayaWafanyakazi and another............ C.A.259IbrahimShahau MtumwaShaha...........................................C.A.211J.B. Shirima and others v. Humphrey Meena

t/a Comfort Bus Service.....................................................H.C.290John Chuwa v. Anthony C iza................................................. C.A. 23 3John Mgindi v. Republic.......................................................... C.A. 377JohnSangawe u Rau River Village Council.......................... C.A. 90

TANZANIA LAW REPORTS (19921T.L.R

Jonas Nkize v. Republic.......................................................... H.C.213Josephat Somisha Maziku v. Republic................................... H.C.227Joseph Hugo Liganga v. R ep ub lic .........................................C. A.354Joseph Maweta v. Lekitetyi K arasi........................................H.C. 70Jumanne Ramadhani v. Republic............................................H.C. 40Katemi Ndaki v. Republic.......................................................C.A.297Lausa Alfan Salum and others v. Minister for

Lands, Housing and Urban Development and another.......H.C.293Lubaga Senga v. Republic...................................................... H.C.357Luiham Martin v. Jurna Saidi...................................................C.A. 74Mafumba Jilawaji v, Budu Mnyagolya................................... H.C. 11Martha Daniel v. Peter Thomas N ko..................................... H.C.359MarwaNgegav. Kirimamase and another.............................C.A. 134MasudiAlly v. ChikuMasudi..................................................H.C. 50MaswedaAdigav. Republic...................................................H.C. 140MatheiFidolineHauie v. Republic..........................................C.A. 148Michael Haishi v. Republic......................................................C.A. 92Millen Richard v, Ayub Bakari H oza..................................... C.A.385Mkubwa Saidi Omarv. S M Z ................................................ C.A.365MohamedS.Amiri u Saidi Ngapwela.................................. H.C.342MT 7479 SGT Benjamin Holelav. Republic...................... . C.A.121MussaA. Mtalemwav. Republic...........................................C.A. 177Mwanahawa Muya v. Mwanaidi Maro.................................. C.A. 78MwitaNyamhanga v. Republic...................... !.v................... C.A.l 18Mwita Wambura v. Republic..................................................C.A. 114Nimrod E. Mkono u State Travel Serivces Ltd *| and another........................................................................ C.A. 24!Omary Mohamed u Awadh Abdallah................................... H.C. 35Principal Secretary, Ministry of Defence and '

National Service v. D.P. Valambhia ....^..............................C.A. 185Principal Secretary, Ministry of Defence and ,National Services v. D.P. Valambia.........................................C.A.387Protas J. Kitogole and another v. Republic........................... C.A. 51Republic v. Damas Cosm&s Nilahi......................................................... a. ............H.C. 194Republic v. Kenneth K izito .....................................................H.C.269Republic v. Mgema Manyuya..................................................H.C. 48Republic v. Palangyo Kaanandumi .................................. H.C.271Republic v. SeifSharrif H am ad.........................................H.C.(Z)277^Richard Matangule and another v. Republic...........................C.A. 5Salum Abdallah Kihonyilev. Republic................................... C.A.349Saumu Mohamed Kassim v. Mohamed Haji D au .................C.A.368Seif Shairif Hamad v. SM Z..................................................... C.A. 43 -

CASES REPORTED ix

Selemani Sembiko v. Republic...............................................C.A. 144Shembilu Shefaya v. Omary Ally.........................................C.A.245Shishobe Seni and another v. Republic................................ .C.A .j/M)Sofia Said and another v. Awadh A. Abeid and others.......C.A. 29Susana Joseph v. Wambura Ihembe.......................................H.C.375Sylivery Nkangaa v. Raphael Albettho................................H.C.l 10Tahfif Mini Super Market v. B.P. Tanzania Ltd................... C.A. 189Teodelina Alphaxad s/t next friend v. The Medical

Officer i/c, Nkinga Hospital............................................... H.C.235^Thomas Mjengi v. Republic.................................................. H.C. 157Transport Equipment Ltd v. D.P. Valambhia......................C.A. 182Vincent Somfo Mapunda v. Republic.................................. C.A.200Zuberi Augustino v. Anicet Mugabe..................................... C.A. 137

x i

DIGEST OF CASES REPORTED

A D M IN IST R A T IO N O F EST A T E S - Grant o f probate - Conditions for grant - Necessity of a will.Hamson D. Ghikas v. Ludwina G. Ghikas.................... C.A.288

Probate and Administration - Annulment of grant of letters of administration - Concealment of letters of administration granted by lower court - Effect of such concealment.Mwanahawa Nluya v. Mwanaidi Maro........................... C.A. 78

Probate and Administration _ Subordinate court discovers after hearing application that it has no jurisdiction - Moves High Court to exercise revisional powers - High Court sets aside decision of subordinate court - Proceeds to hear application though no fresh application was filed - Whether irregular.Luiham Martin v. Juma Saidi................................... —...C.A. 74

BILLS O F EXCHANGE - Negotiable instruments - Cheque - Payee gives assurance cheque has been cleared and consequently delivers the goods bought - Later same payee informs cheque has not been cleared and seeks restoration of the goods - Whether goods can be restored - Whether there is failure of consideration.Selemani Sembiko v. Republic...................................... C.A. 144

CIVIL PRA CTICE AND PROCEDURE - Appeals - Application forextension of time to institute appeal - Appeal filed within time but in a wrong court - Ignorance of the rules by a lay person - Whether sufficient reason - Section 25 Magistrates’ Courts Act, 1984.Martha Daniel v. Peter T. Nko........................................H.C. 359

Appeals * Leave to appeal filed two days out of time - Affidavit of material person not filed to explain the delay - Effect.John Chuwa v. Anthony Ciza.......................................... C.A. 233

Application - Consolidation of applications - Rationale. Transport Equipment Ltd. v. D.P. Valambhia............C.A. 182

xii TANZANIA LAW REPORTS ( I992]T.L.R

Assessors - Magistrate summing up to assessors - Judgment signed by magistrate but not by assessors - Magistrates’ Courts (Primary Courts) (Judgment o f Court) Rules 1987, G.N. 2 of 1988. Mohamed S. Amir v. Saidi Ngapwela..........................H.C. 342

Assessors - Summing up to assessors - Magistrates’ Courts (Primary Courts) (Judgment of Court) rules 1987, G.N, 2 of 1988. Susana Joseph v. Wambura Ihembe..................... ........H.C . 375

Conviction in criminal case - W hether conclusive o f the commission of the offence by the accused for purposes of a civil suit. Nimrod E. Mkono v. State Travel Service Ltd and another..........................................................................C.A. 24

Court of Appeal Rules - Application for extension of time to file a notice o f appeal - 1 11 health without elaboration given as reason- Whether sufficient reason.Shembilu Shefaya v. Ornary Ally....................................C.A. 245

Court o f Appeal Rules - Application for extension of time to pay court fees and security for costs - Illegality o f decision being challenged - Whether sufficient reason to allow the application. The Principal Secretary, Ministry1 of Defence and National Service v. D.P. Vatambhia............................. C.A. 387

Court o f Appeal Rules - Application for extension of time to serve respondents with a copy of the letter to Registrar applying for copy of proceedings not mentioned in notice o f motion - Relief sought specified in affidavit and mentioned when orally addressing the court - Whether application for extension o f time properly before the court.The Principal Secretary, Ministry of Defence and National Service v. D.P. Valambhia...............................C.A. 387

Court of Appeal Rules - Application for stay of execution - Notice of appeal not lodged.Christomoo Ngowi u William Lusito and another...C.A. 340

DIGEST OF CASES REPORTED x Hi

Court o f Appeal Rules - Extension o f time within which to institute appeal - Essential information not disclosed - No sufficient reason given.Cosmas Construction Co. Ltd. v.Arrow Garmets Ltd....................................................... C.A. 127

Court of Appeal Rules - High Court has exercised original jurisdiction - Whether leave must be sought and obtained in order to appeal to the Court o f Appeal.Luiham Martin v. Juma Saidi........................................C.A. 74

Court of Appeal Rules - Letter to Registrar applying for copy of proceedings - Copy of letter not served on respondent - Whether applicant is duty-bound to serve court o f letter to Registrar to the respondents - Whether there is a time limit within which to serve copy of the letter - Rule 83( t ) of the Court of Appeal Rules construed.The Principal Secretary, Ministry7 of Defence and National Service v. D.P. Valambliia............................C.A. 387

Court of Appeal Rules - Long established tradition that Government does not pay court fees and security for costs - Whether such tradition can be a basis for exempting Government from paying court fees and security for costs in respect of civil matters before the Court o f Appeal.The Principal Secretary, Ministry of Defence and National Service v. D.P. Valambhia............................... C.A.387

Court o f Appeal Rules - Notice of motion does not specify relief sought - Accompanying affidavit specifies relief sought - oral address specifies relief sought - Whether the affidavit and/or the oral address specifying relief sought can take care o f the inadequacy, in notice of motion.The Principal Secretary, Ministry of Defence and National Service v. D.P. Valambliia............................C.A. 387

Court o f Appeal Rules - payment o f court fees and security for costs by Government - Government expressly exempted from paying court fees in respect of criminal applications and criminal appeals before the Court o f Appeal - Rules are silent on payment o f court fees and security for costs by Government in respect of

xiv TANZANIA LAW REPORTS 11992JT.L.R

civil matters before Court of Appeal - Whether Government to pay court fees and security for costs in respect of civil matters before the Court o f Appeal.The Principal Secretary, Ministry of Defence and [National Service v. D.P. Valambhia.............................C.A* 387

Court of Appeal Rules - Reference - Point o f law involved - Whether the said point constitutes sufficient reason to allow the reference.The Principal Secretary, Ministry of Defence and National Service v. D.P. Valambhia...............................C.A. 185

Damages - Special damages must be specifically pleaded and proved.Zuberi Augustino v. Anicet Mugabe..............................C.A. 137

Devaluation o f the Tanzanian shilling - Reasonable award for devaluation.Zuberi Augustino v. Anicet Mugabe............................C.A. 137

Jurisdiction - Application for leave to appeal to Court of Appeal under s. 5(2) (c) Appellate Jurisdiction Act, 1979 - Whether Court o f Appeal has concurrent jurisdiction with High Court. Auguster Salanje v. Mussa M. Pemba..........................C.A. 62

Jurisdiction of High Court - Suits concern immovable property which is land not held under a government lease or a Right of Occupancy granted under the Land Ordinance.John Sangawe v. Rau River Village Council................C.A. 90

Plaint - Discloses no cause of action - Discloses relief sought - Relief is not a cause of action - What court to do.J.fi. Shirima and another v. Humphrey Meena t/a Comfort Bus Service....................................................... H.C. 290

Powers of High Court - Whether High Court can make any decision or order that could be made by the court of first instance. Archard v. Asteria Mulwani and another.................... C.A. 129

Prerogative orders - Certiorari and Prohibition - Circumstances for issue.Sausa A. Salum and others v. Minister for Lands Housing and Urban Development and another......................... H.C. 293

DIGEST OF CASES REPORTED

Proceedings ex-parte - Right o f absent party to notice o f judgment.Cosmas Construction Co. Ltd. v.Arrow Garmets Ltd........................................................ C.A. 127

Proof o f costs o f repair - Vehicle engine blown off - Cost of repair pleaded but not proved - Amount pleaded far below cost of purchasing new engine - Whether amount pleaded awardable in the circumstances.Zuberi Augustino v. Anicet Mugabe.............................C.A. 137

Revision Powers - Suo moto - When exercisable.Mwanahawa Mitya v, Mwanaidi Maro......................... C.A. 78

Security - Damages for attachment of property as security - No reasonable cause for filing suit.B.P. Tanzania Ltd v. Gruppo Sogesca LanariEsterio s.p.a........................................................................ C.A. 321

Stay of execution - Necessity of reasonable grounds for its grant. Albert Braganza and another v. Mrs Flora Lourdin Braganza............ ...............................................................C.A. 307

Stay of execution - Of only part of the award - Whether proper. Transport Equipment Ltd. v. D.P. Valambhia.........C.A. 182

Temporary injunction - Material considerations for its grant. Tahfif Mini Super Market v. B.P. Tanzania Ltd.......C.A. 189

Written Statement o f Defence - Amendment of - Without leave of Court - Whether fatal to proceedings.Nimrod E. Mkono v. State Travel Service Ltdand another......................................... ........... .......C.A. 24

Written Statement o f Defence - Whether advocate can sign on behalf o f client.Nimrod E. Mkono v. State Travel Service Ltdand another.......... ............. ....... ..................................C.A. 24

x v i TANZANIA LAW REPORTS 11992]T.L.R

CONSTITUTIONAL LAW - Derogation clause - Interpretation and applicability.Thomas Mjengi v. Republic.......................................... H.C. 157

CONTRACT - Agency - Claim for price of fuel - Attachment of truck as security pending determination o f suit - Whether reasonable cause for attachment.B.P. Tanzania Ltd. v. Cruppo Sogesca LanariEsterio s.p.a...................................................................... C.A. 321

Delay in payment of balance of price - Repeated demand letters- Whether right to be paid as par contract thereby waived - Whetherbreach of contract - Whether right to rescind contract accrues. Millen Richard u Ayub B. Hoza....................................C.A. 385

COURT OF APPEAL RULES - Appeals - Appeal to Court of Appeal - Whether leave of High Court always necessary. Tahfif Mini Super M arket v. B.P. Tanzania Ltd......... C.A. 189

Appeals - Criminal Appeals to Court o f Appeal - Procedure andpractice - Appellate Jurisdiction Act 1979 and the Tanzania Court of Appeal Rules, 1979.Mussa A. M talemwa v. Republic..................... ....... ....... C.A. 177

Jurisdiction - Whether Court of Appeal can reinstate judgment o f a District Court reversed by the High Court without a cross appeal by the Republic to the Court o f Appeal - S. 4(2) Appellate Jurisdiction Act, 1979 and s. 36 Tanzania Court of Appeal Rules, 1979.Mussa A. M talemwa v. Republic...................................C.A. 177

Limitation for filing appeals - When does time start to run - At the time o f receiving proceedings or when certificate o f assurance o f completeness o f record o f proceedings is given.D.T. Dobie & Co. (T) Ltd. v. N.B. M w atebele ........... C.A. 152

Motion - Whether a motion is an application at the time o f filing- Failure to serve copy of the letter applying for certified copy of proceedings upon respondent - Failure to serve notice o f appeal upon respondent - Whether an application to save an appeal entertainable.D.P. Valambhia v. T ransport Equipm ent L td ..........C.A. 246

DIGEST OF CASES REPORTED xvii

Service - Whether Rule 46(3) Court o f Appeal Rules requires service o f a copy o f the order o f the High Court upon the respondent - Nonapplicability o f Rule 82 (2) to applications for leave - Whether copy of ruling means copy o f the order o f the High Court - Rule 46 (3).Edward M arealle v, M arealle Clan and another........C.A. 275

(See also under CIVIL PRACTICE AND PROCEDURE)

CRIMINAL LAW - Bona fide claim o f right.Haruna Ndologa v. Sangula Chigonela.........................H.C. 1

Criminal trespass - Whether a charge of criminal trespass can succeed where ownership of the land has not been determined in a civil case. Sylivery Nkangaa v. Raphael Albertho....................... H.C. 110

Dying declaration - Authenticity and weight. .Damian P. Kiula and another v. Republic..................C.A. 16

Murder - Appellant had inflicted grievous cut wound - Cause of death was respiratory failure caused by tetanus - Whether the wound caused the tetanus.Mwita Nyamhanga v. Republic......................................C.A. 118

Murder - Cause of death.Vincent S, Mapunda v. Republic....................................C.A. 200

Murder - Committed in pursuance o f rape.Richard Matangule and another v. Republic............. C.A. 5

Murder - Provocation - Caused by words.Benjamin Mwansi v. Republic........................................C.A. 85

Murder - Provocation - Conditions for its invocation.Damian F. Kiula and another v. Republic....................C.A. 16

TANZANIA LAW REPORTS (I992IT.L.R

Murder - Provocation - Failure to address assessors on issue of provocation - Effect.Katemi Ndaki v. Republic................................................ C.A. 297

Murder - Provocation - Provocative incidents taken together - Whether defence o f provocation available.Salum A- Kihonyile v. Republic........................................C.A. 349

Murder - Provocation - Stopping appellant from taking rice and throwing an axe at him - W hether defence o f provocation available.Joseph H. Liganga v. Republic....................................... C.A- 354

Murder - Self defence - Spearing deceased from the back while pursuing him - Whether defence of self defence available. Salum A. Kihonyile v. Republic......................................C.A. 349

Murder - Self defence - Whether available where deceased not armed.Joseph H. Liganga v. Republic................. .....................C.A. 354

Murder - Self defence - Whether killing on suspicious one has been poisoned constitutes self defence.Clay Laway v. Republic...................................................C.A. 72

Murder - Spent cartridges o f sub-machinegun found 3 to 4 paces from dead body - Whether accidental killing.MT 7479 SGT. Benjamin Holela v Republic........... C.A. 121

Obtaining by false pretence.Jum anne R am adhani v. Republic................................. H.C. 40

Receiving stolen property - When offence established. Masweda Adiga v. Republic............................................ H.C. 140

Recent possession - Applicability o f the doctrine.Ally Bakari and another v, Republic............................C.A. 10

Theft - Appellant not having exclusive access to stolen items - Grave suspicion against appellant - Whether such suspicion can found a conviction.John Mgindi v. Republic...................................................C.A. 377

DIGEST OF CASES REPORTED

CRIMINAL PRACTICE AND PROCEDURE - Appeals - Appeal against acquittals originating in the District Court - Whether complainant can pursue the appeal in the High Court. Sylivery Nkangaa v. Raphael Albertho.......................H.C. 110

Appeals - Jurisdiction - Section 6(2) of the Appellate Jurisdiction Act, 1979 - Right to appeal.Seif Sharif Hamad v. SMZ............................................ C.A. 43

Appeals - Right to appeal.Fanuel Msengi v. Peter Mtumba...................................H.C. 109

Appeals - State Attorney withdraws appeal without express authority from D.P,P. - D.P.P. applies to restore appeal - Whethercourt rendered functus officio and with what effect.Republic v. Damas C. Nilahi...........................................H.C. 194

Application for presiding magistrate to withdraw from the case - Duty of the court.Republic v Seif Sharrif Hamad.............................H.C.(Z) 277

Assessors - Compliance with Rule 3 of G.N. 2 of 1988. Masweda Adiga v. Republic............................................H.C. 140

Bias - D isqualification on ju d ic ia l b ias - G rounds for disqualification.Republic v. Seif Sharif Hamad................................H.C.(Z) 277

Assessors - Compliance with Rule 3 of G.N. 2 of 1988. Masweda Adiga v. Republic...........................................H.C. 140

Bias - D isqualification on ju d ic ia l bias - G rounds for disqualification.Republic v. Seif Sharrif Hamad...............................H..C. (Z) 277

Charges - Dismissal - Before lapse of 60 days illegal and void - Court may refuse adjournment - S. 225 (4) Criminal Procedure Act, 1985.Republic v. Mgema Manyuya........................................H.C. 48

XU TANZANIA LAW REPORTS | I992JT.L.R

Chaises - Dismissal - Order dismissing charge and acquitting accused made before end of prosecution case - Whether proper - Effect. Republic v. Palangyo Kaanandumi...............................H.C. 271

Charges - Murder - Date o f charge - Whether date o f unlawful act or death.Mwita Nyamhanga v. Republic....................... .............C.A. 118

Compensation - Order given against a person convicted of receiving part of stolen property.Masweda Adiga v. Republic............................................H.C. 140

Conviction - O f robbery - Whether in addition a conviction of assault causing actual bodily harm is proper - Criminal Procedure Act, s. 300(1).Republic v. Kenneth Kizito............................................ H.C. 269

Evidence - Evidence emanating from the defence - Whether safe to sustain a conviction.Jonas Nkize v. Republic.................................................H.C. 213

Jurisdiction - Ruling on preliminary point relating to jurisdiction o f trial court - Whether appealable - Whether Court o f Appeal has jurisdiction to entertain the appeal.Seif Sharrif Hamad v. SMZ.............................. ........ ......C.A. 43

Jurisdiction - W hether Court o f Appeal has got revisionaljurisdiction.Mussa A. Mtalemwa v. Republic..................................C.A. 177

Onus of proving charge - Whether by prosecution or accused. Jonas Nkize v. Republic...................................................H.C. 213

Pleas - Equivocality and unequivocality o f pleas.D.P.P. v. Paul Reuben Makujaa........................................H.C. 2

Pleas - Plea of autrefois acquit - Whether available where previous proceedings have been declared null and void.Ally Hassan Mpapata v. Republic................................H.C. 265

DIGEST OF CASES REPORTED xxi

Preliminary hearing - Contents of memorandum not read and explained to accused - Effect - S. 192 (3) (Criminal Procedure Act, 1985.MT 7479 SGT. Benjamin Holela v. Republic.............. C.A. 121

Prima facie case - When established and what should a trial court do if not established - S. 230 Criminal Procedure Act, 1985. Jonas Nkize v. Republic...................................................H.C. 213

Sentencing - Accused below 16 years of age - Law applicable when sentencing.Republic v. Kenneth Kizito............................................ H.C. 269

Sentencing - Accused currently serving another sentence.Elias Joakim v. Republic..................................................H.C. 220

Sentencing - Accused found guilty on two counts - Criminal Procedure Act, 1085.Clias Joakim v. Republic............................................... H.C. 220

Sentencing - Mitigating factors - Plea of guilty, first offender, showing deep sorrow, promises to compensate.Lubaga Senga v. Republic.................................... ......... H.C. 357

Sentencing - Mitigation - Conviction on plea o f guilty - In remand for five years - First offender - Whether sentence of four years imprisonment proper.Beruadeta Paul v. Republic...............................................C.A. 97

Sentencing - Offence committed falls under the Minimum Sentences Act, 1972.Elias Joakim v. Republic................................................. H.C. 220

Sentencing - Omnibus sentence - Offenses committed in close association with each other - Whether consecutive or concurrent sentence - Rectification of sentencing procedure by an appellate court. Jumanne Ramadhani v. Republic.....................................H.C. 40

Sentencing - Power o f subordinate courts in sentencing - Mandatory minimum sentence o f 30 years imprisonment unconstitutional - Corporal punishment unconstitutional - The disproportionate test.Thomas Mjengi v. Republic...........................................H.C. 157

TANZANIA LAW REPORTS [ 1992]T.L.R

Sentencing - Two convictions o f murder - Whether sentence mustbe in respect o f the first conviction.Mwita Wambura v. Republic................. ........................ C.A. 114

Trial - Services o f an interpreter - Necessary where the accused does not know the language of the court.Joseph Maweta v. Lekitetyi Karasi...............................H.C. 70

CUSTOMARY LAW - Bahaya customary law - Whether masika can be excluded from inheritance.Didas Rwakalila and others v. Thomas Matondane..C.A. 314

Bahaya customary law - Whether the redeemer of clan shamba always becomes its owner.

. Didas Rwakahila and others v.Thomas Matondane..C.A. 314

Brideprice - Refund of - Principles.Andrea Chilena v. Keni Masaka................................... H.C. 346

Inheritance - Rights of children to inherit parent’s property. Masudi Ally v. Chiku Masudi.........................................H.C. 50

Tort - Jurisdiction of courts.Charles Lala v. Abdaliah Mangi........... ......................... H.C. 336

EVIDENCE - Admissibility - O f secondary evidence.Farah Mohamed v. Fatuma Abdaliah..........................H.C. 205

Bias -■ All witnesses from a village hostile to that from which accused comes - Inconsistency in evidence given by witnesses - Fears o f bias must be dispelled. 'Michael Haishi v. Republic...............................................C.A. 92

.Circumstantial - Facts from which inference o f guilt is drawn must be proved beyond reasonable doubt.Ally Bakari and another v. Republic.............................. C.A. 10

DIGEST OF CASES REPORTED xxiii

Circumstantial - Whether and when may ground conviction. Protas J. Kitogole and another u Republic.................C.A, 51

Confession - Admissibility o f confessions extracted by torture -S. 29 Evidence Act, 1967.Joseph at S. Maziku v. Republic.....................................H.C. 227

Confession - Admissibility of confessions made before a police officer - S. 27 Evidence Act, 1967.Josephat S. Maziku v. Republic........... ........................H.C. 227

Confession - Cautioned statement o f a person who is alive and available admitted under S.l 34 Evidence Act - Whether proper. Mathei F, Haute v. Republic................................. ........C.A. 148

Confession - Murder - Admission by appellant that he had assaulted his mother - Whether confession o f murder.Mathei F. Haule v. Republic..........................................C.A. 148

Confession - Repudiated confession - Repudiation during defence stage - What court to do.Shihobe Seni and another v. Republic.......................... C.A. 330

Confession - Retracted confession - Need for corroboration. Hassan Juma Kanenyera and others v. Republic...,.C.A. 100

Confession - Whether a village chairman is a person in authority- S. 27 (3) Evidence Act.Shihobe Seni and another v. Republic..........................C.A. 330

Corroboration - Evidence o f co-accused - To be treated as that o f an accomplice.Bushiri Amiri v. Republic............................. .................. H.C. 65

Corroboration - Evidence which needs to be corroborated cannot corroborate.Mkubwa Said Omar v. SMZ ...................................C.A. 365

Credibility o f witness for conviction - Essential.Richard Matangule and another v. Republic.................C.A. 5

TANZANIA LAW REPORTS [ 1992JT.L.R

Discrepancy with respect to dates - Witnesses illiterate - Whether to take them literally on the dates they mention.Shihobe Seni and another v. Republic........................ C.A. 330

Documentary - Document not registered as required by law - Right in immovable property indisputably established between the parties - W hether court may look at this otherw ise inadmissible document.Saumu M ohamed Kassim v. Mohamed Haji D au.....C.A. 368

Identification - By a single person - Need for corroboration. Hassan J , Kanenyera and others v. Republic............ C.A. 100

Identification - Description o f suspect - Significance.Bushiri Amiri v. Republic................................................H.C. 65

Identification - Under horrifying situation - Whether reliable. Hassan J . Kanenyera and others v. Republic............. C.A. 100

Identification - Witnesses contradicting themselves - Whether reliable.Michael Haishi v. Republic............................................. C.A. 92

O f co-accused - Whether admissible - How to approach and utilize it.Jonas Nkize v. Republic.................................................... H.C. 213

Provocation - Seemingly innocent words - When can be provocative.Benjamin Mwansiv. Republic....................................... C.A. 85

Testimony by children of tender years - Voire dire test - S. 127 (5) Evidence Act, 1967.Elias Joakim v. Republic.................................................. H.C. 220

Theft - Appellant not having exclusive access to stolen items - Grave suspicion against appellant - Whether such suspicion can found a conviction.John Mgindi v. Republic................................................... C.A. 377

DIGEST OF CASES REPORTED XXV

Witnesses contradicting themselves on vital details - Whether credible.Michael Haishi v. Republic...............................................C.A. 92

Witness - Credibility of witnesses.Christian s/o Kale and another v. Republic................C.A. 302

FAMILY LAW - Appeals - From High Court to Court o f Appeal - On point of law or mixed law and fact - Whether leave to appeal is a prerequisite - S. 80 (4) Law of Marriage Act, 1971. Auguster Salanje v. Mussa Mohamed Pemba...............C.A. 62

ISLAMIC LAW - Inheritance - Importance o f proximity to the deceased person in intestate succession.Sofia Said and another v. Awadh A. Abeidand others.............................................................................. C.A, 29

Inheritance - Principles o f inheritance where a person dies intestate.Sofia Said and another v. Awadh A. Abeidand others............................................................................. C.A. 29

Wakf - Whether a valid wakf created.Ibrahim Shaha v. Mtumwa Shaha...................................C.A. 211

LABOUR LAW - Em ploym ent - W rongful term ination - Employee’s right to be heard before termination.LS. Msangi v. Jumuiya ya Wafanyakaziand another......................................................................... C.A. 259

Jurisdiction - Whether court has jurisdiction to stay proceedings in order to obtain labour officer’s opinion whether a party is employed in the management of the business o f the employer - Proper order.Gosbert E. Rweyemamu v. Tanzania WoodIndustry Corporation...................................................... H.C. 112

LAND LAW - Co-ownership - Division of house in terms of its value and option to purchase the others share.Omarv Mohamed v. Awadh Abdallah..........................H.C. 35

i

x.xvi TANZANIA LAW REPORTS [1992JT.L.R

Disposition o f land -Failure to comply with regulation 3( 1) of the Land Regulations 1948 - Effect.Millen Richard v. Ayub Bakari Hoza......... .................C.A. 385

Disposition of land - Registration of document purporting to transfer right/title to land.Farah Mohamed v. Fa turn a Abdallah............................H.C. 205

Inheritance - Inheritance of a Right of Occupancy - Requisites. Farah Mohamed v. Fatuma Abdallah.............................H.C. 205

Land ownership - Whether a criminal court can determine matters of land ownership.Sylivery Nkangaa v. Raphael Albertho........................ H.C. 110

Land Registration - Whether Registrar o f Titles has power under Cap. 334 to register sub-title.Abdulkadar A.M. Ali v. Registrar of Titles..................C.A. 21

LEGAL REPRESENTATION - Legal aid - Denial o f a right to legal aid paid for by state - Right to be informed of the right tolegal representation by the trial court.Thomas Mjengi v. Republic................................. ........ H.C. 157

PEOPLES M ILITIA LAW - Sungusungu - Whether may order compensation - Peoples Militia Laws 1989.Marwa Ngega v. Kirimamase and others................... C.A. 134

STATUTORY INTERPRETATION - Offence committed before a new law came into force - Whether offence punishable under the new law - S. 49 Interpretation of Laws and General ClausesAct, 1972.Christopher Mwakabura v. Republic........................... C.A. 380

Whether section 63(2) (a) Road Traffic Act creates a mandatory minimum sentence of two years imprisonment for offenses committed under section 40 o f the Act.D.P.P. v. Paul Reuben Makujaa.......................................H.C. 2

TAXATION OF COSTS - Bill of costs - Omnibus award - Whether supportable.Haji Athumani Issa v. Rweitama Matatu....................H.C. 372

DIGEST OF CASES REPORTED xxvii

TORT - Defamation - Defence o f qualified privilege - Publication to a person not having corresponding interest and duty to receive the publication - Whether defence available.I.S. Msangi v. Jumuiya va Wafanyakazi andanother............................................................................... C.A. 259

Malicious prosecution - Appellant and others arrested on suspicion o f stealing respondent’s cattle - Ward secretary reported matter to police - Whether respondent prosecuted appellant and others.Mafumba Jilawaji v. Budu Muyagolya....................H.C. 310

Malicious prosecution - Prosecutions conducted by public prosecutors and state attorneys - D ifficulty o f providing prosecution by individual person.Mafumba Jilawaji v. Budu Muyagolya......................H.C. 310

Malicious prosecution - Prosecution conducted in Primary Court by private citizens against other citizens - False imprisonment safest cause of action by aggrieved party.Mafumba Jilawaji v. Budu Muyagolya..................... H.A. 310

M alicious p rosecution - Public p rosecu tion - W hether Government can be held vicariously liable.Mafumba Jilawaji v. Budu Muyagolya.......................H.C. 310

Negligence - Professional - Liability of medical staff - Vicarious liability o f hospital standard of care and skill.Theodelina Alphaxad a Minor s/t Next Friend v.The Medical Officer i/c, Nkinga Hospital..................H.C. 235

xxviii■X

EAST AFRICAN CASES JUDICIALLY CONSIDERED

A G. v. Lesinoi sjo Ndeinai & Others [1980] TLR 214; 1992 TLR 157 (HC)

A.G. v. Shah [1971] EA 50: 1992 TLR 43 (CA)Abdurahman Abdallah Magosso v. R Criminal Appeal No. 36 of 1990

(unreported): 1992 TLR 157 (HC)Abdurabi Ally Yusufu df Ally Yusufu Abdurabi v. R Criminal Appeal No.

59 of 1988 (unreported): 1992 TLR 177 (CA)Ali Bin Khatibu v. Khamis Bin Omar 7 ZLR 113: 1992 TLR 368 (CA) Aii Mohamed v. R. [1968] HCD No. 63: 1992 TLR 220 (HC)Alimasi Kalumbeta v. R [ 1982] TLR 239: 1992 TLR 157 (HC)Alois Kula and Another v. R. Criminal Appeal No. 121 of 1991

(unreported): 1992 TLR 43 (CA)Arusha International Conference Centre v. Damas Augustine Ndemasi

Kavishe Civil Appeal No 34 of 1988 (unreported): 1992 TLR 246 (CA) Benedicto August ino and Two Others v. Godwin Manase Zephania Civil

Appeal No. 8 of 1989 (unreported): 1992 TLR 24 (CA)Chacha sjo Wambura v. R. [1953] 20 EACA 339: 1992 TLR 297 (CA) D.P.P. v. Daudi Pete: Criminal Appeal No. 28 of 1990 (unreported):

1992 TLR 157 (HC)D.P.P. v. Rugaimkamu [1982] TRL 139: 1992 TLR 157 (HC)Damiano Petro and Jackson Abraham v. R. [1980] TLR 260: 1992 TLR

302 (CA)Dar es Salaam City Council r, Jayantlal Pragubhai Rajan Civil

Application No. 27 of 1987 (unreported): 1992 TLR 246 (CA)Daudi Mwabusila v. John Mwalefila [1967] HCD n. 59: 1992 TLR 92

(CA)David Kamugisha v. Bukop Ltd. Civil Case No. 49 of 1990 {unreported):

1992 TLR 112 (HC)David Mbowa Ndele v. R. Criminal Appeal No. I of 1989 (unreported):

1992 TLR 43 (CA)Dharamshi v. Republic [1977] LRT n. 52: 1992 TLR 140 (HC)Dube and Another v. The State Supreme Court Judgment No. 212 of

1988 (unreported): 1992 TLR 157 (HC)Etat v. R. [1954] EACA 330: 1992 TLR 100 (CA)Fazal Kassam (Mills) Ltd. v. Lawrenson and Matien [1957] EA 101 (CA) Felix. M. Shirima v. Mohamed Farahani and Another Civil Case No. 23

of 1981 (unreported); 1992 TLR 372 (HC)Festo Shirabu Musungu v. R. [1955] 22 EACA 454; 1992 TLR 297 (CA) Festo v. Mwakabana [1971] HCD n. 417: 1992 TLR 336 (HC)Francis Chilema v. R. [1968] HCD 510: 1992 TLR 97 (CA)

EAST AFRICAN CASES JUDICIALLY CONSIDERED xxix

Francis s/o Mwijage r. Boniface sjo Kabalemeza [1968] HCD n. 341' 1992 TLR 336 (HC) ‘

Frank M. Af area lie v. Paul Kyauka Njau [1982] TLR 32: 1992 TLR 90 (CA)

Fyaralal M. Rassan ami Another v. R. [1960] FA 854: 1992 TLR 51 (CA) Gabriel sjo Nzizula v. Rooza dio Muyungi [1968] HCD n. 126: 1992 TLR

314 (CA) 'George Mbugus and Another v. A.S. Maskini [1980] TLR 53: 1992 TLR

372 (HC)Godes Ltd. v, Nimrod E. Mroso Civil Application No. 5 of 1990

(unreported): 1992 TLR 189 (CA)Godfrey James Ihuxa and Three Others v. R. [1980] TLR 197: 1992 TLR

177 (CA) 'Haidan Bin Mohamed Elmandry and Others v, Khadija Binti Ali Bin Saleti

[1956] 23 EACA 313: 1992 TLR 372 (HC)Ibrahim Ahmed v. Halima Gullet [1968] HCD n. 76: 1992 TLR 92 (CA) Ibrahim Daniel Shayo v. R. Criminal Appeal No. 10 of 1990

(unreported): 1992 TLR 65 (HC)Ibrahim Hassani & Another v. R Criminal Appeal No. 92 & 107 of 1990

(unreported): 1992 TLR 157 (HC)Institute o f Finance Management v. Simon Manvaki Civil Application

No. 13 of 1987 (unreported): 1992 TLR 359 (HC)James s/o Yaram v. R. [1951] 18 EACA 147: 1992 TLR 97 (CA)James Sankey v. M jS Caltex 0/7 [1973] LRT n. 46: 1992 TLR 112 (HC) Javantilar Laiji Kura Shah v. R. [1968] HCD No. 328: 1992 TLR 220

(HC)Joseph A. Kashamukula v. R. [1970] HCD No. 201: 1992 TLR 220 (HC) Joshwa s!o Nkonoki v. R, [1978] LRT n. 24: 1992 TLR 157 (HC) Kasumbwe v. R. [1944] EACA 116: 1992 TLR 16 (CA)Kasusura and the Attorney General v. Kabuye [1982] TLR 338: 1992 TLR

129 (CA) ' *Khamisi Hamis Manywele v. R. Criminal Appeal No. 39 of 1990

(unreported): 1992 TLR 157 (HC)Kighoma Ali Malimu v. Abas Yusufu Mninganmo Civil Application No.

5 of 1987 (unreported): 1992 TLR 233 (CA); 1992 TLR 246 (CA); 1992 TLR 359 (HC)

Kimani and Others v. R. [1954] 21 EACA 316: 1992 TLR 100 (CA) Kitundu Sisal Estate v. Shingo and Others [1976] EA 557: 1992 TLR 112

(HC)Kulthum Ally Kara v. Yassin Osman [1969] EA 34: 1992 TLR 336 (HC) Laurent sjo'Joseph v. R. [1981] TLR 351: 1992 TLR 157 (HC)Ludovick sjo Kashaku v. R [1967] HCD 194: 1992 TLR 177 (CA) Lusabanya Siyantemi v. R. [1980] TLR 275: 1992 TLR 100 (CA)

XXvitl

EAST AFRICAN CASES JUDICIALLY CONSIDERED

A G v. Lesinoi sjo Ndeinai & Others [1980] TLR 214: 1992 TLR 157 ’(HC)

A.G. v. Shah [1971] EA 50: 1992 TLR 43 (CA)Abdurahman Abdallah Magosso v. R Criminal Appeal No. 36 of 1990

(unreported): 1992 TLR 157 (HC)Abdurabi Ally Yusufu & AUy Yusufu Abdurabi v. R Criminal Appeal No.

59 of 1988 (unreported): !992 TLR 177 (CA)All Bin Khatibu v. Khaim's Bin Omar 7 ZLR 113: 1992 TLR 368 (CA) Alt Mohamed v. R. [1968] HCD No. 63: 1992 TLR 220 (HC)Alimasi Ralumbeta v. R [ 1982] TLR 239: 1992 TLR 157 (HC)Alois Kula and Another v. R. Criminal Appeal No. 121 of 1991

(unreported): 1992 TLR 43 (CA)Arusha International Conference Centre v. Damas Augustine Ndemasi

Kavishe Civil Appeal No 34 of 1988 (unreported): 1992 TLR 246 (CA) Benedicto August in o and Two Others v. Godwin Manase Zephania Civil

Appeal No. 8 of 1989 (unreported): 1992 TLR 24 (CA)Chacha sjo Wambura v. R. [1953] 20 EACA 339: 1992 TLR 297 (CA) D.P.P. v. Daudi Pete; Criminal Appeal No. 28 of 1990 {unreported):

1992 TLR 157 (HC)D.P.P. v. Rugalmkamu [1982] TRL 139: 1992 TLR 157 (HC)Damiano Petro and Jackson Abraham v. R. [1980] TLR 260: 1992 TLR

302 (CA)Dar es Salaam City Council v. Jay an dal Pragubhai Raj an Civil

Application No. 27 of 1987 (unreported): 1992 TLR 246 (CA)Daudi Mwabusila v. John Mwalefila [1967] HCD n. 59: 1992 TLR 92

(CA)David Kamugisha v. Bukop Ltd. Civil Case No. 49 of 1990 (unreported):

1992 TLR 112 (HC)David Mbowa Ndele v. R. Criminal Appeal No. 1 of 1989 (unreported):

1992 TLR 43 (CA)Dharamshi v. Republic [1977] LRT n. 52: 1992 TLR 140 (HC)Dube and Another v. The State Supreme Court Judgment No. 212 of

1988 (unreported): 1992 TLR 157 (HC); Etat v. R. [1954] EACA 330: 1992 TLR 100 (CA)

Fazal Kassam (MillsJ Lid. v. Lawrenson and Matzen [1957] EA 101 (CA) Felix. M. Shirima v. Mohamed Farahani and Another Civil Case No. 23

of 1981 (unreported); 1992 TLR 372 (HC)Festo Shirabu Musungu v. R. [1955] 22 EACA 454: 1992 TLR 297 (CA) Festo v. Mwakabana [1971] HCD n. 417: 1992 TLR 336 (HC)Francis Chilema v. R. [1968] HCD 510: 1992 TLR 97 (CA)

EAST AFRICAN CASES JUDICIALLY CONSIDERED xxix

Francis sjo Mwijage v. Boniface s/o Kabalemeza [1968] HCD n, 341: 1992 TLR 336 (HC)

Frank M, Marealle v. Paul Kvauka Njau [ 1982] TLR 32: 1992 TLR 90 (CA) '

Fyaralal M. Rassan and Another v. R. [1960] EA 854: 1992 TLR 51 (CA) Gabriel sjo Nzizula v. Rooza djo Mu rung i [1968] HCD rv 126: 1992 TLR

314 (CA) 'George Mbugus and Another v. .4. S. Mask ini [1980] TLR 53: 1992 TLR

372 (HC)Codes Ltd. v, Nimrod E. Mroso Civil Application No, 5 of 1990

(unreported): 1992 TLR 189 (CA)Godfrey James lhuya and Three Others v. R. [1980] TLR 197: 1992 TLR

177 (CA) 'Haidan Bin Mohamed Elmandry and Others v. Khadija Binti Ali Bin Salen

[1956] 23 EACA 313: 1992 TLR 372 (HC)Ibrahim Ahmed v. Halima Gullet [1968] HCD n. 76: 1992 TLR 92 (CA) Ibrahim Daniel Shayo v. R. Criminal Appeal No. 10 of 1990

(unreported): 1992 TLR 65 (HC)Ibrahim Hassani & Another v. R Criminal Appeal No. 92 & 107 of 1990

(unreported); 1992 TLR 157 (HC)Institute o f Finance Management v. Simon Manyaki Civil Application

No. 13 of 1987 (unreported): 1992 TLR 359 (HC)James sjo Yaram e. R. [1951] 18 EACA 147: 1992 TLR 97 (CA)James Sankev v. M jS Caltex Oil [1973] LRT n. 46; 1992 TLR 112 (HC) Javantilar Laiji Kara Shah v. R. [1968] HCD No. 328; 1992 TLR 220

(HC)Joseph A. Kashamakula v. R. [1970] HCD No. 201: 1992 TLR 220 (HC) Joshwa sjo Nkonoki v. R. [1978] LRT n. 24: 1992 TLR 157 (HC) Kasumbwe v. R. [1944] EACA 116: 1992 TLR 16 (CA)Kctsusura and the Attorney General v. Kabuye [1982] TLR 338: 1992 TLR

129 (CA) ' 'Khamisi Hamis Manywele v. R. Criminal Appeal No. 39 of 1990

(unreported): 1992 TLR 157 (HC)Kighoma Ali Malima v. Abas Yusufu Mwingamno Civil Application No.

5 of 1987 (unreported): 1992 TLR 233 (CA); 1992 TLR 246 (CA): 1992 TLR 359 (HC)

Kimaniand Others v. R. [1954] 21 EACA 316: 1992 TLR 100 (CA) Kitundu Sisal Estate v. Shingo and Others [1976] EA 557: 1992 TLR 112

(HC)Kulthum Ally Kara v. Yassin Osman [1969] EA 34: 1992 TLR 336 (HC) Laurent sjo Joseph r. R. [1981] TLR 351: 1992 TLR 157 (HC)Ludovkk sjo Kashaku v. R [1967] HCD 194: 1992 TLR 177 (CA) Lusabanya Siyantemi v. R. [1980] TLR 275: 1992 TLR 100 (CA)

XXX TANZANIA LAW REPORTS [1992] T.L.R

Maagwi s/o Kimito v, Gibano sjo Werema: Civil Appeal No. 20 of 1984 (unreported): 1992 TLR 336 (HC)

Madhwa and Others v. Citv Council o f Nairobi [1968] EA 406: 1992 TLR 293 (HC) '

Marcel Kisiu v. Timoth sjo Msuta Civil Appeal No.23 of)991: 1992 TLR 336 (HC)

Marlin Paul v. Gerald Valery Misc. Civil Application No. 97 of 1992 (unreported): 1992 TLR 359 (HC)

Martin sjo Bikonyoro v. Celestin sjo Kaikola [1968] HCD n. 87: 1992 TLR 314 (CA)

Masasila Mioba v. R. [1982] TLR 131: 1992 TLR 330 (CA)Mashaka Shabani v. R. Criminal Appeal No. 85 of 1990 (unreported):

1992 TLR 380 (CA)Maulidi Hussein v. Abdallah Junta Misc. Civil Application No. 20 of

1988 (unreported): 1992 TLR 359 (HC)Mayaya Ngolela v. R. Criminal Appeal No. 130 of 1990 (unreported):

1992 TLR 330 (CA)Merali and Others v. R. [1971] HCD No. 145: 1992 TLR 177 (CA) Mohamed sjo Salim R. [1958] EA 202: 1992 TLR 157 (HC) Mohamed Shah sjo Lai Shah v. R. [1939] 6 EACA 97: 1992 TLR 330

(CA)M or ali and Others v. R. [1971] HCD No. 145: 1992 TLR 129 (CA) Moris Sasawata v. Manias Malieko [1980] TLR 158: 1992 TLR 336

(HC)Moshi djo Rajabu v. Republic [1967] HCD 384: 1992 TLR 213 (HC) Mrs. Grace Frank Ngowi v. Dr. Frank Israel Ngowi Civil Appeal No. 9 of

1984 (unreported): 1992 TLR 246 (CA)Mugema v. R. [1967] EA 676: 1992 TLR 157 (HC)Mugo and Another v. Wanjiru and Another [1970] EA 481: 1992 TLR 359

(HC)Murange sjo Mahende v. Maricha sjo Malosi [1981] TLR 295: 1992 TLR

346 (HC)Musa sjo Bakari v. R. [1968] HCD No. 239: 1992 TLR 220 (HC) Omari J. Kibanike and 40 Others v. R. Criminal Appeal No. 224 of 1975

(unreported): 1992 TLR 65 (HC)Osongo and Another v. Republic [1970] EA 170: 1992 TLR 246 (CA);

1992 TLR 387 (CA)Premchant v. Quarry Services [1972] EA 1962: 1992 TLR 372 (HC) Queens Cleaners and Dyers Ltd. v. East African Community and Others

[1972] EA 229: 1992 TLR 24 (CA)R v. Sumbuso sjo Rulinde and Others [1948] 15 EACA 99: 1992 TLR 100

(CA)

EAST AFRICAN CASES JUDICIALLY CONSIDERED xxx i

R. v. Enok Achila and Another [1941] 8 EACA 84: 1992 TLR 302 (CA) R. v. Gokaldas Kanji Karia and Another [1949] EACA 116: 1992 TLR 302

(CA)R. v. Kipkering arap Koske and Another [1949] 16 EACA 135: 1992 TLR

51 (CA)R. v. Lujo sjo Mgombe [1946] 13 EACA 156: 1992 TLR 118 (CA)R. v. Minlande [1940] EACA 46: 1992 TLR 100 (CA)R. v. Mohamed All Jamal [1948] 15 EACA 126: 1992 TLR 97 (CA)Ray Raphael Lameck v. R. [1967] HCD 190 27: 1992 TLR 220 (HC) Republic v. Adam Iddi and Another [1976] LRT n. 18: 1992 TLR 140

(HC)Republic v. Himo [1971] EA 351: 1992 TLR 2 (HC)Rex v. John Christopher Nealon [1950] 17 EACA 120: 1992 TLR 43 (CA) Rex v. Mohamed bin Allui [1942] 19 EACA 72: 1992 TLR 65 (HC) Robinson v. Oluoch: [1971] EA 376: 1992 TLR 24 (CA)Rozendo Ayres Ribeiro v. Olivia Daritta Siqueira E. Fachao and Lilia

Ozlinda Pia Daritta Siqueira [1934] 1 EACA 1: 1992 TLR 359 (HC) Samson v. R [1958] EA 681: 1992 TLR 157 (HC)Scrisilo Luyombya v. Uganda [1965] EA 618: 1992 TLR 199 (HC)Shah Hemras Bharmal and Brothers v. Santosh Kumari wjo J.N, Bhola

[1961] EA 679: 1992 TLR 359 (HC)The Attorney General v. W.K. Butambala Criminal Appeal No. 37 of

1991 (unreported): 1992 TLR 387 (CA)The Commissioner o f Transport v. The Attornev-General o f Uganda and

Another [1959] EA 329: 1992 TLR 185 (CA)The State v. Arab [1990] 1 ZLR 253: 1992 TLR 157 (HC)Tuwamoi v. Uganda [1967] EA 84: 1992 TLR 100 (CA): 1992 TLR 297

(CA); 1992 TLR 297 (CA)Valezi Madageda v. R. [1954] 22 EACA 389; 1992 TLR 100 (CA) Waisirikare v. Baraki [1971] HCD n. 112: 1992 TLR 336 (HC)Walter Jager v. Cordula Ltd. t/a Tanganyika Tourist Hotels and Oyster

Bar Hotel [1972] HCD 133: 1992 TLR 112 (HC) 'Yusufu sfo Gita v. R. [1958] EA 211 at p. 213: 1992 TLR 157 (HC)

xxxii

f o r e ig n Ca s e s ju d ic ia l l y c o n s id e r e d

Admiralty Commissioners r. 5,5. Susquehanna [1926] AC 665: 1992 TLR 235 (HC)

Cassidv v. Ministry o f Health [1951] 2 KB 343: 1992 TLR 235 (HC) Furman v. Georgia [1972] 408 US 238: 1992 TLR 157 (HC)Gales Hired v. Re [1944] AC 149: 1992 TLR 157 (HC)Hart v. Ceiner [1973] 433 F 2d. 136: 1992 TLR 157 (HC)Herniman v. Smith [1938] AC 305: 1992 TLR 336 (HC)Jackson & Others v. Bishop [1968] 404 F.2d 571: 1992 TLR 157 (HC) Janes v. National Coal Board [1957] 2 QB 55: 1992 TLR 277 (HC) Mancini v. DPP [1941] 3 All ER 462: 1992 TLR 213 (HC)Maneka Gandhi v, Union of India [1978] 2 SCR 248: 1992 TLR 157 ( HC) Ncube, Tshunta & Ndhlovu v. The Stale [1988] LRC (Const.) 442: 1992

TLR 157 (HC)Ncube, Tshuma and Ndhlovu r. The State [1988] 2 SALR 702 (ZS): 1992

TLR 157 (HC)Powell v. Alabama [1932] 287 US 45: 1992 TLR 157 (HC)R. v. D.K. Williams [1968] 52 Cr. App. R. 439: 1992 TLR 111 (HC)R. v. Kaktereum [1972] 56 Cr. App. R. 298: 1992 TLR 220 (HC)R. v. Pratter [1960] 44 Cr. App. R. 83: 1992 TLR 213 (HC)R. v. Reek [1982] 74 Cr. App. R. 221: 1992 TLR 213 (HC)R. v. Rudd [1948] 32 Cr. App, R. 138: 1992 TLR 213 (HC)R. v. Smith [1959] 2 All ER 193: 1992 TLR 227 (HC)R. v. White [1972] Crim. L.R. 193: 1992 TLR 40 (HC)Re Coles and Ravenshear [1907] 1 KB 8: 1992 TLR 359 (HC)Rilev & Others v. A.G. o f Jamaica [1982] 3 A ER 469: 1992 TLR 157

(HC)Roe v. Ministry o f Health [1954] 2 WLR 915: 1992 TLR 235 (HC) Sidaway v. Board o f Governors of Bethlem Roval Hospital and Maudslev

Hospital 4 [1985] AC 871; [1985] 1 All ER 643: 1992 TLR 235 (HC) The Queen, v. Hans Windvoge! and Another [1881] 2 EDC 98: 1992 TLR

157 (HC)The Queen v. Nortje [!880] 1 EDC 231: 1992 TLR 157 (HC)The State (Healy) v. Donoghue [1976] IR 325: 1992 TLR 157 (HC) Tropp v. Dulles [1958] 356 US 86 L.Ed 630: 1992 TLR 157 (HC) Tyrerv. UK [1978] 2 EHRR 1: 1992 TLR 157 (HC)Weems v. United States [1910] 217 US 349: 1992 TLR 157 (HC)

: West v. Shepheld [1964] AC 326: 1992 TLR 235 (HC)Woolmington v. DPP [1935] 25 Cr. App. R. 72: 1992 TLR 213 (HC)

x xx Hi

STATUTES JUDICIALLY CONSIDERED

Appellate Jurisdiction Act, 1979s4(2)................................................................ 1992 TLR 177 (CA)s5(2)(c).......................................................... 1992 TLR 62 (CA)s6(2)............................................................... 1992 TLR 43 (CA)s36.................................................................. 1992 TLR 177 (CA)

Contract Decrees39.................................................................. 1992 TLR 368 (CA)

Court of Appeal Rules........................................ 1992 TLR 74 (CA)........................................ 1992 TLR 127 (CA)........................................ 1992 TLR 189 (CA)........................................ 1992 TLR 245 (CA)........................................ 1992 TLR 246 (CA)........................................ 1992 TLR 340 (CA)

r8.................................................................... 1992 TLR 185 (CA)r46(3)............................................................. 1992 TLR 275 (CA)r77(l)............................................................. 1992 TLR 246 (CA)r82(2)............................................................. 1992 TLR 275 (CA)r83(l)............................................................. 1992 TLR 152 (CA)r83(l)............................................................. 1992 TLR 387 (CA)rS3(2)............................................................. 1992 TLR 246 (CA)

Criminal Procedure A ct...................................... 1992 TLR 220 (HC)sl92(3)........................................................... 1992 TLR 121 (CA)s225(4)........................................................... 1992 TLR 48 (HC)s230................................................................ 1992 TLR 213 (HC)s300 (I).......................................................... 1992 TLR 269 (HC)

Evidence Acts27.................................................................. 1992 TLR 227 (HC)s27(3)............................................................. 1992 TLR 330 (CA)s29.................................................................. 1992 TLR 227 (HC)s34.................................................................. 1992 TLR 148 (CA)s i27(5)........................................................... 1992 TLR 220 (HC)

Interpretation of Laws and General Clauses Act, 1972

s49.................................................................. 1992 TLR 380 (CA)Land Registration Ordinance............................. 1992 TLR 21 (CA)Land Regulations, 1948

reg3( 1)........................................................... 1992 TLR 385 (CA)

TANZANIA LAW REPORTS [1992] T.L.R

Law of Marriage Act, 1971s80(4)............................................................. 1992 TLR 62 (CA)

Magistrates’ Courts Act, ] 984s20(l)(a)........................................................ 1992 TLR 109 (HC)s25.................................................................. 1992 TLR 359 (HC)

Magistrates’ Courts (Primary Courts)(Judgement of Court) Rules 1987, GN 2

of 1988 ...................................................... 1992 TLR 342 (HC)...................................................... 1992 TLR 375 (HC)

r3.................................................................... 1992 TLR 140 (HC)Minimum Sentences Act, 1972............................ 1992 TLR 220 (HC)Penal Code

s285............................................................... 1992 TLR 157 (CA)s286............................................................... 1992 TLR 157 (HC)

Peoples’ Miiitia Laws 1989 ................................ 1992 TLR 134 (CA)Road Traffic Act

s63(2)(a)........................................................ 1992 TLR 2 (HC)

-YYXV

WORDS AND PHRASES JUDICIALLY CONSIDERED

“an ordinary person"........................................ 1992 TLR 16 (CA)“decree” .............................................................. 1992 TLR 189 (CA)“interlocutory order"........................................ 1992 TLR 43 (CA)"Islamic Law - classes of heirs” ..................... 1992 TLR 29 (CA)“killing on provocation” .................................. 1992 TLR 85 (CA)“not less than two years"................................. 1992 TLR 2 (HC)“order” ............................................................... 1992 TLR 189 (CA)"provocation” ................................................... 1992 TLR 16 (CA)"secondary evidence” ........................................ 1992 TLR 205 (HC)“shall be liable” ................................................. 1992 TLR 2 (HC)“vary” .................................................................... 1992 TLR 177 (CA)

H. NDOLOGA v, S. CHIGONELA (Mwalusanya, J.)

HARUNA NDOLOGA v. SANGULA CHIGONELA [HIGH COURT OF TANZANIA (Mwalusanya, J.»

13 January, 1992 - DODOMA

A

Criminal Law - Bonafide claim o f right. B

After the failure by the appellant’s brother to refund bride price, the respondent took some cattle belonging to him. The respondent, upon a complaint by the appellant, was charged for cattle theft. Both the Primary and District Court found him not guilty. The appellant C appealed to the High Court.

Held: There was no theft but a mistaken claim of right.

Mwalusanya, J.: The appellant Haruna s/o Ndologa was the complainant at Dodoma Urban Primary Court. He complained that the respondent Sangula s/o Chigonela had stolen his 20 head of cattle. The trial court held that the respondent was no guilty, because E when he took the cattle he had an honest, but mistaken claim of right because he thought he was entitled to a refund of bride price.The appellant made his first appeal to Dodoma District Court and he failed and hence this second appeal.

Like the two courts below, i find that this appeal is bankrupt F of merit. It is clear from the evidence that the respondent went to collect the cattle in broad light on the understanding that he had the right to the refund of bride price from the brother of his wife’s father.He even reported to the C.C.M. that he had taken the cattle. That was not theft. In the memorandum of appeal the appellant states G that the marriage between the respondent and the daughter of his brother is still subsisting. However that is a point to be taken in a civil suit but not in a criminal court. The appellant can sue the respondent claiming the seized cattle on the ground that he is not liable to refund the bride price for his brother and when the marriage H has not been dissolved in a court of law. But the acquittal of the respondent was proper in law.

In the event I find that this appeal has been lodged without sufficient ground of complaint, and therefore the appeal is summarily rejected. I

Appeal dismissed. D

Order accordingly.

I TANZANIA LAW.REPORTS [ 1992J T.L.R

A D.P.P.uPAUL REUBEN MAKUiAA[HIGH COURT OF TANZANIA (Msumi.J.)l

10 February, 1992 - TANGA

B Criminal Practice and Procedure - Pleas - Equivocality and unequivocal it X o f p le a s ;

Statutory Interpretation - Whether section 63 (2) (a) o f the Road Traffic Act creates a mandatory minimum sentence o f two years imprisonment for offences committed under section 40.

C 'On pleading guilty to a charge of causing death by dangerous driving c/s 40(1) and 63(2) (a) of the Road Traffic Act the respondent was convicted and fined Sh. 6.000/= in the District Court of Tanga. The DPP appealed to the High Court on the ground that the sentence

D was not only manifestly inadequate but also violates section 63(2)(a) of the Road Traffic Act which has prescribed a minimum sentence of two year imprisonment. The respondent contended that the plea was equivocal hence the conviction was not lawfully sustainable.

E Held: (i) Under section 63 (2)(a) of the Road Traffic Act the mandatory minimum sentence of two years imprisonment applies only when the Court has opted for a custodial sentence as opposed to other types of punishment;

(ii) before accepting a plea of guilty by the accused the court F must be satisfied that the accused’s reply is nothing but a clear

admission of guilt;(iii) the plea of the respondent was equivocal.

Appeal dismissed.G

Msumi, J .: On his plea of guilty, respondent was convicted of causing Death by Dangerous Driving Contrary to Sections 40( 1) and 63(2)(a) of the Road Traffic Act. He was sentenced to a fine of shs, 6000/= or three months jail. Dissatisfied with the sentence the

H Director of Public Prosecutions is presently appealing against it. And in apparent ignorance of the existence of the appeal by the Director of Public Prosecutions, respondent filed appeal against his conviction. He is arguing that his pieas was not unequivocal. Since the appeal of the D irector of Public Prosecutions cannot be

J deliberated upon without somehow ihe court considering whether or not respondent’s pleas was unequivocal, notwithstanding its

D.P.P. v. PAUL REUBEN MAKUJAA (Msumi, J.) 3

irregularity, the appeal by respondent was also allowed to be argued A upon.

In the petition of appeal by the Director of Public Procesutions it is argued that the sentence of a fine of shs. 6000/= or three months jail in default is manifestly inadequate and it is also illegal since the law prov ides for a mandatory minimum sentence of three years for B the offence. As for the belated appeal of the respondent the Republic is submitting that respondent’s plea was unequivocal hence the conviction is legally sustainable. But without prejudice to this argument the Republic is praying for order of retrial in case the court finds that respondent's reply to the charge did not amount to C admitting the guilt, but also the facts narrated by the public prosecutor to the court are inconsistent with the alleged offence. To be specific, the learned counsel pointed out the fact that whereas the charge sheet alleges that respondent drove on the extreme left of the road and thereby knocked down the deceased, the sketch D map of the scene of the accident produced by the prosecution in support of the facts of the case shows that in fact deceased was knocked down in the middle of the road.

The argument that there is statutory minimum sentence of two years imprisonment for the offence of causing Death is based E on the wording of Section 63(2)(a) of the Road Traffic Act which, as far as material, says:

63 - (2): Any person who is convicted of -F

(a)an offence under Section 40 shall be liable to a term of imprisonment of not less than two years but not exceeding five years and the court may in addition thereto impose a finenot exceeding one hundred thousand shillings.... (emphasissupplied). G

With respect the correct interpretation of this provision does not support the Republic’s view that the Section has created a mandatory minimum sentence of two years imprisonment for the offence committed under Section 40. It is common view that the phrase H “shall be liable” when statutory used in the prescription of penalties does not have compulsory effect. In simple language, what it actually means is that besides other forms of punishment authorised by law, court may impose the prescribed sentence which is usually the maximum. The erroneous view held by the Republic appears to I have been caused by the words “not less than two years” appearing

TANZANIA LAW REPORTS [ I9M2] T.L.R

in the Section. It is true'that these words set a mandatory minimum sentence of two years imprisonment. However, this sentence becomes mandatory only after the court has opted for a custodial sentence as opposed to other types of punishments. If after convicting the accused the court decides to send him to jail, then the term of such imprisonment should not be less than two years and not exceeding five years. It is not true that in every case where accused has been convicted of causing Death by Dangerous Driving, he must be sentenced to a minimum of two years imprisonment. It is quite lawful for the court to impose a sentence other than imprisonment as it did in this case.

The second limb of the argument against the sentence is equally not tenable. The learned trial magistrate fully rationalized the sentence he has imposed. Quite correctly the magistrate took into account; as mitigating factors, the fact that respondent was a first offender, he promptly pleaded guilty and the heavy family commitments he has. Taking those factors in consideration the sentence of shs. 6000/= or three months jail cannot be impugned for being manifestly inadequate.

As regards respondent’s plea, it is evident that it is not unequivocal. His statement in mitigation clearly shows that he did not grasp the nature of the offence at the time when he pleaded guilty to it. It does not appear that all the ingredients of the offence were fully explained to the respondent before his plea was taken. Whenever there is indication that accused intends to plead guilty, court should take effort to carefully explain to him each and every ingredient of the offence and a plea of guilty should only be entered if his reply to such explanation clearly shows that he has understood the nature of the offence and he is without qualification, admitting it. Except when it is absolutely satisfied that accused reply is nothing but a clear admission of the guilt, court should be warry of entering a plea of guilty where the nature of the offence is such that may likely lead the accused to think that his alleged offensive conduct is the actus reus of the offence without the other necessary ingredients such as culpable knowledge. Thus in the present case it is evident that what the respondent admitted was the fact that he caused the death of the deceased. From what he said in mitigation it is clear that he is refuting the allegation that he caused the death of the deceased because his manner of driving at the material time was either dangerous or reckless. To the contrary he is contending that there was no way he could avoid knocking down the deceased. This contention appears to be supported by the sketch map of the scene

R. MATANGULE & E.RICHARD v. R.(Ramadhani, J.A.) 5

of the accident which shows that deceased was knocked in the middle A of the road and not on the extreme left as alleged in the particulars of the offence. It appears what happened in this case is similar to what transpired in the Republic v. Himo [1971] E.A. 351 where George, C.J., as he then was, said:

BIn the first place one ought to examine with much care a plea of guilty to a charge of Causing Death by Dangerous Driving.The accused may intend to do no more than to admit that he was responsible for the accident which caused the death.

CThis observation underscores the earlier warning that as a general principle, court should be chary of accepting plea of guilty in this type of cases.

I agree with the learned State Attorney that in the event the plea is declared equivocal, an order should be made for retrial. I D think it is clear for the interest of justice that prosecution is given opportunity to prove their allegation against the respondent. In conclusion this appeal is dismissed. However, the conviction is quashed because the plea of the respondent was not unequivocal.The case is referred to the District Court of Tanga for retrial. E

Appeal dismissed.

F

RICHARD MATANGULE & ELIA RICHARD v. REPUBLIC (COURT OF APPEAL OF TANZANIA

(Ramadhani and Mnzavas, JJ.A and Mapigano, Ag. J.A.)]G

20 February, 1992 - DODOMA

Criminal Im w - Murder - Committed in pursuance o f rape.Evidence - Credibility o f witness fo r conviction - Essential

HThe two appellants were convicted, by the High Court, of the murder of a tender age girl of twelve years called Mwajuma Maiko. The appellant were convicted basically on the evidence of PW, I who testified that on 24/5/87 she saw the first appellant calling the deceased and the second appellant blindfolding her with a red I handkerchief as they escorted her inside a certain house. She never

TANZANIA LAW REPORTS [IW2JT.L.R

saw the deceased alive again. The post-mortem report, which was admitted without dispute, showed that the deceased was defiled; the hymen was ruptured and there was evidence of ejaculation, and the body was burnt by hot water to the extent of 75%. In the appeal before the Court of Appeal the defence council was challenging the conviction of the appellants 011 the grounds that PW.I was an unreliable witness and that the learned judge erred when he found the first appellant as a principal offender bccause what he did was simply to ask the deceased to get into the house after which he left thereby disassociating himself.

Held: (i) PW. i was a reliable witness and her evidence as to what the appellants did could be relied upon by the court;

(ii) the evidence of PW.I was party corroborated by the evidence of PW\3;

(iii) the first appellant actively involved himself in the crime and there is no evidence showing that he disassociated himself at any time.

Appeal dismissed.

Mbezi, for the appellantsNyabiri, State Attorney, for the Republic

Ram adhani and Mnzavas, JJ.A . and M apigano. Ag. J.A.:Richard Matangule, Appellant 1 is the father of Elia Richard, Appellant 2. The two have been convicted of the murder of a tender girl of twelve years called Mwajuma Maiko. The post-mortem report, which was admitted without dispute, showed that the deceased was defiled; the hymen was ruptured and there was evidence of ejaculation, and the body was burnt by hot water to the extent of 75%. "

The prosecution procured three witnesses but Dorika d/o Berege (PW. I ) was the one on whose evidence the conviction was secured. As for Talu d/o Mashumbu (PW.2), a girl of ten years, the learned trial judge (Mwalusanya, J.) told the assessors thus: “...her evidence does not implicate any of the accused with the offence”. Jn his judgment also Mwalusanya, J. wrote: “... she denied to have had witnessed the two accused taking the deceased into the room” . So her evidence was not at all taken into account. Likewise, the testimony of Kenneth s/o Hembelo (PW.3) was held not to implicate the appellants in any way. All that PW.3 deposed was that sometime

R. MATANGULE & E.RICHARD i>. R.(Ramadhani, J.A.) 7

on the fateful day he saw four girls including PW. 1 and PW.2 going A in a certain direction while Appellant ) was behind them.

PW.l stated that in the morning of Sunday 24/5/1987 she. together with PW.2, the deceased and a f ourth girl, were playing at the house of Appellant, 1, her paternal uncle, the younger brother of her father. Then she was called inside the house by Appellant 1 B and there she found two other men besides her cousin. Appellant 2. However, PW.l was just dismissed and she went out. Then the Appellants went outside and Appellant 1 told the deceased to get into the house. As the deceased did so. Appellant 2 blindfolded her with a red handkerchief and both appellants escorted her inside. C The Appellant 1 came outside, leaving Appellant 2, the deceased and the other two men inside, and ordered PW. I and the other girls lo go to play at their grandmother’s. PW.l never again saw the deceased alive.

The Appellants were represented in this appeal, as they were D at the trial, by Mr. Mbezi, learned Counsel. He had two grounds of appeal.

In the first ground Mr. Mbezi argued that the conviction w:as wrong as it was founded on the unreliable evidence of PW. 1. In the first place Mr. Mhezi submitted that PW.l was a self-confessed E liar. When cross-examined, Mr. Mbezi pointed out, PW.l replied “ I did not see any other person inside”. However, Mr. Mbezi proceeded, upon re-examination PW. 1 said “Inside the room 1 saw' three persons sealed including 2nd accused. I was lying when 1 answered defence Counsel the contrary”. In the second place, Mr. F Mbezi submitted, the demeanour of PW. 1 in Court portrayed her to he a w itness not worthy of belief. Mr, Mhezi said that the learned trialjudge vividly described her demeanour in his judgment thus:“ ... PW.l when testifying looked worried and hesitant and was always looking down”. Yet despite of that, Mr. Mbezi continued, the G learned trialjudge rationalized her demeanour and held PW. 1 to be a witness of truth. In the third place, Mr. Mbezi contended, the evidence of PW.l was contradicted hy that of the other two prosecution witnesses. The learned Counsel pointed out that PW. 1 claimed to have been with PW.2 at the Appellants’premises yet on H cross-examination PW.2 differed from PW. I . Mr. Mbezi wondered how that could have been if both witnesses were together at the material time. Then Mr. Mbezi also pointed out that whereas PW. 1 had said that Appellant I ordered them to go to play at their grandmother’s after the deceased had got inside, PW.3 testified (hat 1 PW.2 had gone to his home crying and that PWr,3 did not say that

TANZANIA LAW REPORTS [19921 T.L.R

PW.I was with PW.2 at the time. Lastly, Mr. Mbezi in impeaching the credibility of PW .I, questioned her delay to report the matter while the body of the deceased was seen the following morning.

In the second ground, which was in the alternative to the first, Mr. Mbezi argued that the learned trial judge erred when he found Appellant 1 a principal offender. Mr. Mbezi said that according to PW. I all that Appellant I did was to ask the deceased to get into the house after which he left thereby disassociating himself.

On behalf of the respondent/Republic was Mr. Nyabili, learned State Attorney. He submitted that the conviction founded on the evidence of PW. 1 alone was sound and added that there was no need of corroboration since PW. 1 was not a child of tender years. Mr. Nyabili submitted that the inconsistencies were more apparent then real. He pointed out that according to Esteri Matangule (DW. 1), the wife of Appellant 1 and the mother of Appellant 2, PW.I had gone twice to the house of the Appellants. Mr. Nyabili said that PW.I first went there in the morning and it was then that she saw Appellant 2 and the other two men. The learned State Attorney said that PW.I went again in the noon when Appellant 2 and his colleagues were not there. Mr. Nyabili submitted that the question which PW.2 was asked was ambiguous and hence her reply appeared contradictory.

As for the demeanour of PW. 1, Mr. Nyabili reiterated what the learned trial judge had said: she was torn between telling the truth and testifying against her uncle and cousin.

On the second alternative ground Mr. Nyabili submitted that if PW.I is believed then the actions of Appellant 1 spoke for themselves. Mr. Nyabili stated that the leading of a blindfolded deceased into the house and the chasing away of the girls afterwards, brought Appellant 1 squarely under the preview of Section 22(b) of the Penal Code.

We must say at the outset that the case was very poorly presented at the trial. The sequence of the events was not clearly brought out. We agree with Mr. Nyabili, for instance, that PW.I went to the house of the Appellants twice; at the first time both Appellants as well as the other two persons were around and at the second time there was only Appellant 1 whom she served lunch. DW. 1 supported PW.I on that. Adm ittedly there are some contradictions in the testimonies of the two, that is PW. I and DW. 1, with which we shall deal soon. Secondly, we have noted that the times given, as is to be expected from villagers, were estimates and to a great extent added to the confusion.

R. MATANGULE & E.R1CHARP v. R.(Ramadham, J.A.) 9

Thai notwithstanding, we are satisfied that PW. I is credible. A First, this is because the learned trial judge found her to be so and he is the better judge of that basing on the demeanour. The shyness and the fidgeting exhibited by PW. 1 in Court was to be expected of a village adolescent girl speaking in public. It would seem that she had not even been to school. This is in addition to the reason the learned B trial judge gave that PW.! was between the devil and the deep blue sea. Secondly, we have found PW. 1 reliable on the totality of all the evidence before the Court. PW. 1 has said that she had gone to the house of Appellant I and she was supported by Appellant 1 himself and DW. 1. Then PW. 1 said that she cooked food tor and served it C to Appellant l.H ere DW. I stated that PW.I did not cook but only served food to Appellant 1. However DW. 1 and PW .! are agreed that PW. 1 served food to Appellant 1. In the third place, PW.I said that Appellant 2 had two visitors that fateful morning. Appellant 2 himself admitted that and so did Appellant! though DW. 1 mentioned D one visitor. But how would PW. 1 have known of these visitors or even a visitor is she had not actually been there in the moming. Finally, there is the fact that Appellant 2 was left at home with his two colleagues. This is what PW. 1 had said and she was supported by Appellant 1 and Appellant 2 though he claimed that the other visitor E had left before his father.

Thus in the main we are satisfied that PW. 1 told the truth and the gist of her testimony was that the Appellants were the last known persons to have been with the deceased. This fact, without any doubt, casts a very good suspicion on them. But this in itself is not F conclusive proof that the Appellants killed the deceased.

However, there are other factors too. First, we have never been able to know why the Appellants blindfolded the deceased as they led her inside. Then there is another question: why Appellant 1 chased away the other girls. Here there is the evidence of PW.3 G who saw the girls going with Appellant 1 behind them ensuring, as it were, that they were really gone. Lastly, the Appellants had to give an explanation of when and how they parted with the deceased. On the contrary they gave deliberate lies. Appellant 2 was categoric that he never saw PW. 1 or the deceased and the other girls that day. H Appellant 1, on the other hand, prevaricated. In examination-in-chief Appellant 1 said “When I went to church I did not leave her [PW. 1 ] behind". Answering the first assessor Appellant 1 said “When 1 went to church I left the deceased, Dorica and Tatu at my home”. Yet upon re-examination Appellant I replied “When going to church 1 I left them (deceased. Dorika and Tatu) playing at their homes and

) TANZANIA LAW REPORTS 11992] T.L.R

„ not at my home. I said at their homes and not mine”.Now, these deliberate lies and the refusal to give an

explanation corroborate the case for the prosecution that they are responsible for the death of the deceased.

As for the alternative ground of appeal we are of the firm i view that it has no merit at all. Appellant 1 escorted the poor girl

inside the house, then chased away her playmates and conveniently made himself scarce. He cannot have dissociated himself w ith what he had helped to facilitate.

We must confess that this situation of a father and a son being ! privy to a sexual assault on a girl aged twelve years has exercised

our minds considerably. However, that goes to motive which is not essential in a criminal conviction. However, ritual practices cannot be ruled out especially considering the question of picking and choosing the victim which preferred a much younger girl than PW.L

) The story of the defence that this was all a frame-up because Appellant 1 was suspected of continuing illicit relationship with the mother of the deceased is bogus. Father and son were very bedfellows for such a plot,

Appeal dismissed.

ALLY BAKAR1 & PILI BAKAR1 v. REPUBLIC [COURT OF APPEAL OF TANZANIA

(Ramadhani and Mnzavas, JJ.A.and Mapigano, Ag. J.A.)]

20 February 1992 - IX)D0M AJ

Evidence - Circumstantial - Facts from which inference o f guilt is drawn must be proved beyond reasonable doubt:

Criminal Law - Recent possession - Applicability o f the doctrine.

I On 1/11/86 at about 8.30 pm, two persons called at the house of PW.2 when he was outside relieving nature. They were let in by Ally Hassan, now deceased. Immediately thereafter PW.2 heard a sound of a gunshot. He ran to the house of his neighbour. When he returned he found the deceased having a wound on the abdomen. In addition the culprits had stolen several items including PW.2’s sewing machine head. None of the culprits was identified. The

A. BAKARf & P.BAKARI v. R. (Mapigano, Ag. J.A.) IJ

deceased died later. PW. 1 asserted that he met the appellant having A a gun a few hours before the incident and further that the appellant confided to him that he intended to rob someone. PW.3 alleged that he was called by the appellant while in remand prison and informed that he. the appellant, had hidden a sewing machine head in the bush and requested him to retrieve it and send it to his (appellant's) B home. On 24/12/86 PW.3 went to the scene and found the machine but did not take it. Somehow other people got wind of the event and as a result he was arrested and joined with the appellant in a charge of murder. He was discharged later. The machine was tendered in court as an exhibit. The trial judge convicted the appellant for C murder. He appealed to the Court of Appeal on the grounds, inter alia, that the doctrine of recent possession which was used to find the appellant guilty was misapplied on the ground that there was no sufficient evidence that the sewing machine belonged to PW.2.

DH eld: (i) Where the evidence against the accused is wholly circumstantial the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be inferred. E

(ii) as PW.2 could not with certainty show that the sewing machine (Exh. P.2) belonged to him the doctrine of recent possession could not be applied in this case.

Appeal allowed, F

Alimwike, for the appellant Njulumi, for the Republic

M apigano, Ag. J.A. and R am adhani and M nzavas, J J.A ,; GOn 1/11/86 at about 8.30 p.m. one Ally Hassan was shot with a firearm and killed. The incident took place in his village of Mulua in the Kondoa District, inside the house of PW.2 Juma Bakari, his relative. The appellant was charged with the murder ol the deceased man and tried by the High Court. On 20/3/91 Maina. i. sitting at H Kondoa convicted him of the offence and consequently sentenced him to death. This is an appeal from that judgment.

PW.2 gave an account of the commission of the crime before the High Court. According to him, two persons called at his house in that night when he was outside relieving nature. They were let in I by the deceased and immediately thereafter he heard the sound of

2 TANZANIA LAW REPORTS [1992] T.L.R

gunshot. He was terrified and he did the only practical thing: he ran to the house of his neighbour. When he returned to his house he found the deceased within doors, having sustained a wound in the abdomen. The culprits had made away with several valuables including PW.2’s sewing machine head, Simanco make. Neither

the deceased nor PW.2 could identify any of the two culprits. The deceased later died.

When the evidence is properly examined it becomes plain that the two culprits were involved in a common design to commit a robbery, and that their plan envisaged the instant use of maximum

t violence to overcome any possible resistance. It also becomes plain, as the learned trial judge apprehended, that the evidence led against the appellant was circumstantial in nature.

That evidence related to the appellant’s alleged encounter with PW, 1 Paulo Fokas in the morning of 1/11/86 in the village of Sori;

D a request which was allegedly made by the appellant to PW,3 Halifa Sefu, his nephew, at the remand prison; and the discovery and identification of a sewing machine head, Simanco make. i.e. exhibit P.2, that followed that request.

PW. I’s allegation was that he met with the appellant on 1/11/ : 86 early in the morning. He was in his garden when he saw the

appellant passing by. He called the appellant and sought his hand to put a bag of tomatoes on his head. His request was met with a positive response. The appellant put down his bag and came to PW. 1, On getting closer PW. 1 observed that the appellant had a magazine

F that contained bullets. PW. 1 was suspicious and he told the appellant that he wanted to see what he was carrying in the bag. The two went to the bag which the appellant opened and took out a gun. Next the appellant levelled the gun at PW. 1 and threatened to do harm to him if he revealed that he (appellant) was possessed of the

|G weapon. Finally the appellant disclosed to him that he intended to use the weapon to rob some one of a sewing machine head and other things in discharge of a deal he had made with another man. All this was denied by the appellant.

The narrative of PW.3, also denied by the appellant, was that *1 he went to the remand prison on 19/12/86 and saw the appellant, as

he had received a message from his sister that the appellant wanted to talk to him. The appellant told him that he had hidden a sewing machine head in the bush and requested him to go to the place and retrieve it, that is, take it to his (appellant’s) house. He went to the

1 place on 24/12/86 and saw the machine, exhibit P.2, but he did not take it. He went and sought counsel from his friends, but somehow

A. BAKART & P.BAKARI v. R. (Mapigano, Ag. J.A.) 13

other people came to know about the hidden machine and he was A arrested, confined and charged with the murder of the deceased along with the appellant. He was discharged nine months later.

The appellant told the trial Court that both PW.l and PW.3 had cause for telling a lie against him. namely, that PW. 1 wanted to avenge the death of his brother Valentine who, whi te in the company B of the appellant, was shot and killed by the police; and that PW.3 simply wanted to extricate himself from the charge he was facing.

Exhibit P.2 was shown to PW.2 at the trial and ihe witness claimed that it was his property and the one that was stolen by the bandits who killed the deceased. He did not produce any document C to support his claim and he would not remember its serial number. Under cross-examination he was candid enough to say that “if exhibit P.2 is put with others of this type, 1 cannot say it is mine. What I say is that the sewing machine head stolen from my house was Simanco make”. D

The trialjudge believed the evidence of PW.l and PW.3. He also accepted the evidence of PW.2 that exhibit P.2 was his property and that it was the very sewing machine head that was stolen during the killing of the deceased. He paid attention to the fact that PW.2 had once been a co-accused of the appellant and he took the view E that his evidence required corroboration, as a matter prudence, before it was acted upon. He found such corroboration in the evidence of PW.3 and, accordingly, he treated the case as one admitting of the application of the doctrine of recent possession of stolen property.

Of the seven grounds of appeal filed by Mr. Alimwike, learned F advocate, on behalf of the appellant, only five bear our consideration.The first grounds attacks the finding of the trial judge on the credibility of PW .l. In his address Mr. Alimwike argued that it is highly unlikely that the appellant would have made such a serious and risky disclosure to PW, 1. He demonstrated how in his testimony G PW.l had diverged from the statement he had previously made to the police. He^submitted that the trial judge was wrong when he dismissed the appellant’s contention that PW.l was ill-disposed to him as a result of the violent death of his brother Valentine. Appearing for the respondent Republic, Mr. Njulumi, learned State H Attorney, generally supported the reasoning and findings of the trial judge.

The second ground of appeal attacks the finding of the trial judge on the credibility of PW.3. Mr. Alimwike’s submission was that the judge ought to have approached the evidence of that witness Iwith greater caution. With respect, we have failed to see the point

TANZANIA LAW REPORTS 11992] T.L.R

of this submission, because that is exactly what that learned judge did. The judge, as shown, looked for corroboration.

The third ground of appeal faults the learned judge for holding that the evidence of PW.I supplied corroboration to that of PW.3. Mr. Alimwike said that he had failed to see how the evidence of PW.I could have done so. Again with respect, we agree with Mr. Njulumi that the evidence of PW.I could serve that purpose, provided that it was itself credible.

The fifth ground is that the trial court went wrong in accepting the evidence of PW.2 to the effect that exhibit P.2, was the sewing machine head that was stolen from the house of PW.2, and that the doctrine of recent possession was thus misapplied. Mr. Alimwike submitted that there was no sufficient evidence that exhibit P.2 belonged to PW.2. On his part, Mr. Njulumi pointed out that the appellant had not claimed the machine to be his and no body else except PW.2 had lodged any such claim.

Our view is that there was hardly any truth in the appellant’s allegation that PW.I bore hard-feeling against him in consequence to the death of Valentine. The evidence does not show why that death might have engendered such impulse in the mind of PW.I. We agree with Mr. Alimwike, however, that the encounter between PW. 1 and the appellant, as described by PW. I, was quite peculiar.

It was said that the appellant ordered PW. 1 to sit down and then threatened him with the gun. Yet within no time the appellant went on to confide to PW .I about his atrocious plan. It is an undeniable fact of life that the normal run of such criminals do not behave in such a thoughtless and dangerous manner.

It is true that in his testimony PW. 1 shifted from the statement he had made to the police and he more or less admitted that fact. He told the trial Court that he reported the appellant’s disclosure to the police on 2/11/86, that is the day following the murder. But when the police-statement was shown to him by the defence Counsel he agreed that he might have done so a week later. He also testified that he did not accept the appellant’s invitation to be a partner in the intended robbery, whereas in his police-statement he stated that he had agreed to take part in the commission of the crime.

Given the uncom m onness o f P W .I’s account and the discrepancies we have alluded to, we think that it was needful for the trial Court to apply practical wisdom in viewing and assessing the credence of that story.

The evidence of PW.3 pertained to the discovery of exhibit P-2 in the bush. We entirely agree with the trial judge that the

A. BAKARI & P.BAKARl v. R. (Mapigano, Ag. J.A.) 15

evidence of this witness required corroboration. As shown, the judge A held the view that the evidence of PW.I provided the required corroboration. The judge accepted the word of PW.2 and iound that exhibit P.2 was (he machine that was stolen from the house of PW.2 immediately after the deceased was murdered in that house.The judge went on, as mentioned already, to apply the doctrine of Brecent possession.

To be sure, if upon a charge for murder it is proved that the deceased person was murdered in a house and that the accused stole goods from the house, as was the case here, and that the accused was a few days afterwards found in possession of the stolen goods, Cthat raised the presumption that the accused was the murderer, and unless he can give a reasonable account of the manner in which he became possessed of the goods, he would be convicted of the offence.' Mr. AJimwike’s argument was essentially that the d<x;trine of recent Dpossession was inapplicable in this case, in that it was not established that exhibit P.2 was the property of PW.2 and the very sewing machine head that was stolen by the two murderers. This ;irgument has tremendous force.

Quite clearly, as a matter of law and logic, it is essential for a E proper application of the doctrine of recent possession, that the stolen thing in the possession of the accused must have a reference to the charge laid against the accused. That is to say that the presumption of guilt can only arise where there is cogent proof that the stolen thing possessed by the accused is the one that was stolen during the F commission of the offence charged, and. no doubl, it is the prosecution who assumes the burden of such proof, and the fact that the accused does not claim to be the owner of the property does not relieve the prosecution of that obligation.

Also pertinent to this matter is the rule that in a case where G the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond all reasonable doubt, and must be clearly connected with the fact sought to be inferred therefrom.

The vital question which needs to be considered and answered, H therefore, is whether there was sufficient evidence to support the finding of the trial judge in respect of exhibit P.2. This takes us back to the evidence of PW.2.

As shown above, PW.2 could not produce any document to support his claim that exhibit P.2 belonged to him. He said he could I not remember the serial number of the sewing machine head that

16 TANZANIA LAW REPORTS - * [ 1992] T.L.R

A was stolen from his house. Under cross-examination he put the matter bluntly and, on our part, there is no mistaking the state of his uncertainty, and we again quote: “if exhibit P.2 is pul with others of this type, I cannot say it is mine. What I saw is that the sewing machine head stolen from my house was Simanco make”. 11 is highly

B improbable that he was the only person who had acquired a Simanco sewing machine head in Kondoa. And it is to be observed that it was not PW.3’s allegation that the appellant had intimated to him that the sewing machine which was lying in the bush had been stolen from the house of PW.2.

C We respectfully think that the identification of exhibit P.2 byPW.2 came short of the requisite proof and we, therefore, agree with Mr. Alimwike that there was no proper occasion to invoke the doctrine of recent possession in this case.

In the final event we sustain the last ground of appeal, which D is that having regard to the totality of the evidence on record which

was wholly circumstantial, the guilt of the appellant was not proved beyond reasonable doubt. We accordingly quash the conviction and set aside the sentence, and we order the appellant’s immediate discharge from custody if he is not otherwise lawfully held.

EAppeal allowed.

DAMIAN FERDINAND KIULA & CHARLES v. REPUBLIC [COURT OF APPEAL OF TANZANIA

(Kisanga, Ramadhani and Mfalila, JJ.A.)|

G 23 February', 1990 - DAR ES SALAAM

Criminal Law - fixing decla ration - Authenticity and weight o f a dying declaration.

Criminal Law - Murder - Provocation - Conditions fo r its invocation.

This is an appeal from a conviction of murder by the High Court. The facts were that the appellant and the deceased were husband and wife and were living together at the materia! time. There was no dispute that the appellant stabbed and killed the deceased. What

I was in dispute was the motive, circumstances and reasons for the attack. The prosecution relied on a dying declaration. Exh. P.2, which

D. F. KIULA & CHARLES v. REPUBLIC (Mfalila. J.A.) 17

slated that the appellant attacked the deceased when she told him A that she was leaving him on account of his drunkenness and quarrelsome behaviour. But, according to the defence, the appellant attacked the deceased on account of her refusal to give him his money and provocative words and acts accompanied therewith. The trial judge was of the view that the deceased’s dying declaration B was weak and unreliable. However, he held that the words and acts of the deceased did not amount to legal provocation. On appeal.

Held: (i) For the defence of provocation to stick, it must pass the objective test of whether an ordinary man in the community to w hich C the accused belongs would have been provoked in the circumstances;

(ii ) the words and actions of the deceased did not amount to legal provocation;

(iii) the recording officer had no reason to lie against the appellant and that the dying declaration was authentic and contained D a painful lament by a dying mother.

Appeal dismissed,

Mfalila, Kisanga and Ramadhani, JJ.A.: The appellant was convicted of the Murder of his wife and sentenced to death by the High Court sitting at Dar es Salaam (Kyando, J.). He lodged this appeal against both conviction and the sentence of death.

There were no eye witnesses to the killing of the deceased F woman Siwajibu Kondo. She was stabbed in the privacy of their house, all the witnesses who arrived at the scene including her cousin Ali Kondo (P.W.2) found her already stabbed. However there was no dispute on the identity of the killer. The appellant admitted stabbing his deceased wife and that she died of this stab wound. What was G seriously contested by the defence at the trial were the motive. ilirciLmstanc^s and r easons fo r the attack According to the prosecution who relied on the deceased’s statement which was reduced into writing and admitted in evidence as a d^iDg^etJ4E3liao- Ex. P.2, the appellant attacked the deceased when she announced H that she was leaving him on account of his drunkenness and quarrelsome behaviour. But according to the defence, the appellant attacked the deceased on account of her provocative acts and words.

The stabbing of the deceased was of such a nature and extent that the knife embedded in the neck could not be removed at the I local hospital, the deceased had to be referred to Muhimbili Medical

18 TANZANIA LAW REPORTS [ 1992] T.L.R

A Centre where the knife was dislodged and handed over to Inspector Jumanne Itunga. Bui while still at Tumbi Hospital Kibaha. the deceased had occasion to call Inspector Ilunga and lold him the circumstances of her being stabbed. Inspector Jumanne Itunga reduced this statement into writing and this is Ex. P.2. The person

B who inflicted this injury could only have intended to cause death or at the lowest to cause grievous bodily harm. On the other hand, the appellant explained that he stabbed the deceased following her provocative behaviour both in words and deeds. He said that after leaving the Police Force, he started doing some business and

C farming, in which the deceased was fully involved. In the course of lime they managed to accumulate shs. 80,000/= which the deceased was keeping. On the day in question, he asked the deceased to give him some shs. 25,000/= for his business trip to Morogoro. Not only did she refuse him this money but she used offensive language.

D This, he said, angered him and he attacked her with a knife.The learned trial judge considered the deceased’s dying

declaration as providing the motive and circumstances of the appellant’s attack on the deceased, but he rejected it, stating that he was unable to place much reliance on it because in his view it was

E weak and unreliable on account of the contradictions between the version given by P.W.3 and P.W.4. The contradiction being that while P.W.3 stated that the deceased gave reasons for the appellant's attack on her, P.W.4 categorically stated that she did not, she having become loo weak to continue speaking. On the other hand, the

F learned judge accepted the version given by the appellant, thal he attacked the deceased when she refused to give him the money and used what he called “dirty words”, but in his view this could not have provoked “an ordinary reasonable literate Chagga living in a village” . He therefore convicted him of murder and sentenced him

G to death.In this appeal, the Tanzania Legal Corporation filed one

ground of appeal on behalf of the appellant complaining that the learned judge erred in rejecting the defence of provocation, and at the hearing of this appeal Mr, Lubulira emphasized that the

H deceased’s refusal to hand over money to the appellant as requested and her use of dirty words must have provoked him to such an extent that he lost his self-control and acted in the heat of passion. He argued that this was how an ordinary Chagga'wouT3’"have reacted in the circumstances.

I For the defence of provocation to stick, it must pass theobjective test of whether an ordinary man in the community to which

D. F. KIULA & CHARLES v. REPUBLIC {Mfalila. J.A.) 19

the accused belongs would have been provoked in the circumstances, A and the best judges to determine this question are the assessors, for they are “the ordinary persons of the community lo which the accused belongs". If courts adhere to this simple test and as amplified and explained in various judgments of this Court, the need to resort to judgments passed and pronounced in a different sociological B context would never arise. We have in inind the case cited by the trialjudge when considering the presence or absenee of provocation in this case. In considering whether the act of the deceased refusing to hand over money to the appellant amounted to provocation in law. the trial judge quoted remarks from an old case which to us C appear not only unsuited lo the facts of the present case but oul of place in the context of the present sociological environment. The learned judge stated;

As regards the act of the deceased refusing to hand over money, D the courts have repeatedly stated that in the case of an uneducated African villager, the reasonableness of his reaction to ihe provocation must be gauged not by what the judge would have done, but by what an average tribal villager might have done in the circumstances. E

This passage is from Kcisumbwe v. R. (1944) - EACA 116 al page 119, Unless these words were only meant to denigrate the African as it was fashionable in those days, we do not see the relevance of singling out the uncducated African villager whose reactions should F be related to the average tribal villager, and not to what the judge would have done. The Ordinance and its definition of provocation which have been in force since 1930 makes no such distinction. Everybody, whether an uneducated African villager or otherwise must be judged according to what an ordinary man of his community G would have reacted in the circumstances and not what the judge would have done. As we stated earlier, this case is also unsuited to the facts of this case because the present appellant is not an uneducated African villager. It could not therefore be applied to him even if it were sociologically acceptable. Section 202 of the H Penal Code which defines provocation provides as follows:

202. The term "provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the Ipresence of an ordinary person to another person who is under

20 TANZANIA LAW REPORTS [1992] T.L.R

A his immediate care, or to whom he stands in a conjugal,parental, filial or fraternal relation, or in the relation of master or servant, lo deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult

B is done or offered and:

For the purposes of this section the expression “an ordinary person” shall mean an ordinary person of the community to which the accused belongs,

CIn the present case the “dirty words” allegedly uttered by the deceased were not considered because the appellant did not specify them, but even if he had done so, they would not in our view have amounted to provocation because in the appellant’s own words, up

D to that stage he thought the deceased was joking. What angered him was, to quote his own words:

After I had washed and returned into the house that is when she displayed her hostilities, deceased refused completely to

E give me the money. Because of this I was seized with anger and I became very bitter because it is 1 who earned that money.In that state of anger and bitterness I injured my wife with a knife.

F The learned judge was of the view that an ordinary reasonableeducated Chagga would not have been provoked by the deceased's action of refusing to hand over money to him. He would have taken other measures to get the money. We are not certain whether the learned judge was in a position to put himself into the shoes of

G what he called “an ordinary reasonable educated Chagga". Secondly, there was no evidence that the appellant is educated apart from the fact that he was at one time a policeman. The learned judge would have been on firmer ground if he had gone by the views of the assessors who rejected the appellant’s story. They seemed to prefer

H the dying declaration as providing the basis for the attack on the deceased. They however stated that even if the appellant’s story were true, the refusal by the deceased to hand over money would not have provoked him to make him commit the kind of assault he committed on the deceased. In legal language, the assessors were

I saying that no ordinary man of the appellant’s community, would

A.A. M OHAMHDAU v. REGR. OF TITLES (Mnzavas, J.A.) 21

be provoked by the actions of the deceased to the extent that the A appellant claims he was.

For our part we do not think there were good reasons for regarding the dying declaration in Ex.P.2 as weak and unreliable. It was recorded by a police officer who had no reason to lie against the appellant. The fact that P.W.4 did not hear the deceased give B reasons for the attack cannot be explained solely on the basis that the reasons recorded by P.W.3 were invented. Indeed the dying declaration appears very authentic as it contains a painful lament by a dying mother - “who will look after my children?” These moving words could not have been invented by P.W.3. C

For these reasons we are firmly of the view that the dying declaration provides the motive for the killing of the deceased and that the appellanHnventedlhe money story which as the assessors stated, even if it were true, could not have amounted to provocation in law. The appellant’s attack on the deceased was cruel, intended D and calculated to cause death. His conviction for murder was in these circumstances well founded. Accordingly this appeal has no merit and it is dismissed.

Appeal dismissed. E

ABDULKADAR A. MOHAMEDALI v.REGISTRAR OF TITLES F

ICOURT OF APPEAL OF TANZANIA (Ramadhani and Mnzavas JJ.A. & Mapigano Ag. J.A.)]

28 February 1992 - DAR ES SALAAMG

Land Law - Land registration - Whether or not the Registrar o f Titles has power under Cap. 334 to register a sub-title.

The appellant had applied, under Cap. 334, to the High Court seeking for orders that a deed of conveyance between him and one A.H. HShamshudin be registered and a “sub-title” be issued conferring rights over Plot No. 266 Alan Road, Upanga CT, No. 186181/46 to him. The Registrar submitted that there was no provision in the Land Registration Ordinance, Cap. 334, that empowered the Registrar of Titles to register appellant’s “sub-titles”. I

>2 TANZANIA LAW-REPORTS [I992 | T.L.R

\ The High Court judge upheld the Registrar's submission anddismissed the application as incompetent. The appellant sought the assistance of the Court of Appeal.

Held: The deed of conveyance between the vendor and the appellant 8 was a registrable document under section 8( I )(b)of the Registration

of Document’s Ordinance, Cap. 117, but this argument was not conversed before the High Court.

Appeal dismissed.n

Ngasala, for AppellantsRegistrar of Titles, appeared in person.

Mnzavas and Ram adhani, J.f.A. and M apigano, Ag. J.A.:D This is an appeal against the ruling of the High Court (Rubama. J.),

dated 30/4/90.The appellant/applicant had applied to the High Court seeking

for orders that a deed of conveyance between him and one A.H. Shamshudin be registered and a “sub-title” be issued conferring

E rights over Plot No. 266 Alkham Road. Upanga CT. No. 186181/ 46 to him.

In support of the application in the High Court the appellant/ applicant relied on the provisions of the Land Registration Ordinance, Cap. 334 of the Laws.

F In the High Court the respondent, the Registrar of Titles,submitted that there was no provision under the Land Registration Ordinance Cap, 334, that empowered the Registrar of Titles to register appellant’s "sub-titles”.

In his ruling the learned judge said, inter alia:j

I have gone through the law (Cap. 334) under which this application has been made and have not been able to identify any provision under which this Court could order the respondent to register the applicant’s sub-title.

The learned judge then proceeded and dismissed the application as incompetent.

When the appeal came up for hearing on 26/11/91 and after hearing Mr. Ngasala, learned counsel for the appellant, it was

. glaringly clear to us that Mr. Ngasala had not made sufficient research on the law pertaining to real property. We accordingly

A.A. MOHAMEDALI v. REGR. OF TITLES (Mnzavas. J.A.) 23

adjourned the matter and gave the learned counsel three days to do A some research.

When the appeal came up again fur hearing Mr. Ngasala abandoned his earlier argument that the learned judge should have invoked his inherent powers under section 95 of the Civil Procedure Code and grant the application. He now argued that the deed of B conveyance between the appellant/applicant and the vendor in connection with Plot No. 266 Alkhan Road. Upanga. CT. No, 186181/46 should be registered under the Registration of Documents Ordinance, Cap. 117 of the laws.

With respect lo the learned counsel for the appellant/ applicant C the application before the High Court was based under the Land Registration Ordinance. Cap. 334 of the laws. As we have already mentioned above the learned judge held that the application was incompetent, based as it was, under Cap. 334 of the laws.

With respect we agree with the finding of the learned judge D that Cap. 334 deals with land registration and was inapplicable on the facts of this case which concerned limitation of the vendor’s interest over the property situated on the above mentioned plot.

We agree with Mr. Ngasala that the deed of conveyance between the vendor and the appellant was a registrable document E under section 8 ( I ) (b) of the Registration of Documents Ordinance. Cap. 117, but this argument was not canvassed before the High Court.

In the event we dismiss the appeal with costs. The appellant/ applicant is at liberty to make a fresh application before the Registrar of Document !Tto seek registration of the deed of conveyance between F him and the vendor under the Registration of Documents Ordinance, Cap. 117.

Appeal dismissed.

24 TANZANIA LAW REPORTS 11992] T.L.R

A NIMROD ELIREHEM AN MKONO v. STATE TRAVELSERVICE LTD. & MASOO SAKTAY [COURT OF APPEAL OF TANZANIA

(Ramadhani and Mnzavas. JJ.A. and Mapigano Ag. J.A.)]

B 28 February 1992 - DAR ES SALAAM

Civil Practice and Procedure - Convictions in Criminal case - Whether or not conclusive o f the commission o f the offence by the accused fo r purposes o f a civil suit.

C Civil Practice and Procedure - Written Statement o f Defence - Whether the Advocate can sign on behalf o f his client.

Civil Practice and Procedure - Written Statement o f Defence - Amendment o f - Without leave o f the court - Whether fatal to the proceedings.

DIn the District Court of Musoma the second respondent, then accused, was convicted of causing death by dangerous driving and driving a motor vehicle on a public road in a manner which having regard to all the circumstances then pertaining was dangerous to

E the public or to any other person using the road. After the conviction the appellant sued the respondent in the High Court claiming Sh. 4 million as damages for the benefit of the deceased’s estate. In the course of the proceedings two issues arose. First whether or not the 2nd respondent was negligent in his driving. Second whether the

F amended W.S.D. by the second respondent was properly before the court and whether the signing of the said W.S.D. by the 2nd respondent’s advocate was proper in law. As to the first question the judge ruled that negligence was still an issue in the Civi! case before him. On the second issue the judge said the W.S.D was

G properly before him and that the signing of the W.S.D. by the advocate was in order. The appellant appealed to the Court of Appeal.

Held: (i) Under section 43A of the Tanzania Evidence Act, a H conviction in criminal proceeding in the absence of an appeal, is

conclusive evidence that the person so convicted was guilty of that offence;

<ii) the proviso to 0.6 R. 14 of the Civil Procedure Code allows an ad vocate by reason of absence of the client or for other good cause to

I sign on behalf of his client; ■(iii) the amendment of the W.S.D. without leave of the court

N.E. MKONO v. S.T.S. LTD.& SAKTAY (Mnzavas, J.A.) 25

offended the provisions of 0.8.R. 13 but this did not prejudice the A appellant’s case.

Appeal allowed in part.

Uzanda, for the appellant BMnzavas, for the respondent

Mnzavas and Ramadhani, JJ.A. and Mapigano, Ag. J.A.:In the District Court of Musoma (TRAFFIC CASE NO. 5/1984) the second respondent/then the accused was convicted of causing C death by dangerous driving and driving a motor vehicle on a Public road in a manner which having regard to all the circumstances then pertaining was dangerous to the public or to any other person using the road.

Consequent to the conviction the appellant/plaintiff filed a D suit (civil case No. 158/86) in the High Court against the respondents/defendants claiming a total of over shs. 4,000,000/= as “general damages, special damages, damages for the benefit of the estate and such farther reliefs as the Court may deem fit’’.

When the case came up for hearing Mr. Uzanda, learned E counsel for the appellant/plaintiff, asked the Court to adopt three issues he had framed. Mr. Mnzavas for the respondents/defendants argued that the issues must include whether or not the 2nd respondent/2nd defendant was negligent in his driving. Mr. Uzanda countered that the question whether or not the second respondent F was negligent in his driving was not an issue .and quoted section 43A for the Evidence Act in support of his argument.

There were also arguments before High Court whether the amended written statement of defence by the second defendant/ second respondent was properly before the Court and also whether G the signing of the written statement of defence as well as the amended written statement was proper.

After hearing arguments from both parties the learned judge held in favour of the respondents/defendants that negligence was still an issue in the civil case before him, that the amended written H statement of defence by the 2nd defendant was properly before the Court and that the signing of the written statement of defence and later the amended written statement of defence by the teamed defence counsel was in order.

It is against this ruling by the High Court that the appellant I has come to this Court.

26 TANZANIA LAW REPORTS 11992] T L R

j\ Before us Mr. Uzanda, learned counsel for the appellantsubmitted that the conviction of the 2nd respondent was not disputed and as such the respondents could not deny negligence in the civil case. In support of his argument the Court was referred to the decision in Robinson, v. Oluoch [1971] E.A. 376. It was also his

B submission that in view of the wording of section 43A of the Evidence Act the second respondent could not deny negligence and that the most he could do was to plead contributory negligence. To fortify his argument he quoted the decision in Queens Cleaners and Dyers Ltd. v. East African Community and Others 11972] E.A.

C 229 and Civil Appeal No. 8 of 1989 - Benedicto Augustino <£ Two Others v. Godwin Manase Zephania\ decided by this Court. It was also the learned counsel’s submission that there was no plea of contributory negligence by the respondents.

As for the signing of the written statement of defence by the D advocate for the respondent it was argued that this was contrary to

0.6 R.14 of the Civil Procedure Code. It was submitted that there was no good reason why the party concerned should not have signed the pleading.

Finally Mr. Uzanda argued that the filing of an amended E written statement of defence without first being granted leave by

the Court went counter to the provisions of 0.8 R. 13 of the Civil Procedure Code; and that the trial judge should have disallowed the amended written statement of defence.

It was submitted that on the pleading the respondents were F liable and that the only issue before the High Court should be the

question of quantum.In rebuttal Mr. Mnzavas, learned counsel for the respondents

supported the decision of the High Court. It was submitted that section 43A of the Evidence Act deals with criminal matters and

G that it does not stop a party going to court in connection with a civil suit. The learned counsel also referred us to the decision of this Court in Civil Appeal No. 8/89 (supra) in which section 43 A of the Evidence Act was discussed.

As for the signing of the written statement of defencc by the H advocate for the 2nd respondent it was argued that the 2nd defendant

was served by substituted service by publication on the application ol the appellant/plaintiff and that the advocate had to sign on behalf ot the 2nd respondent/2nd defendant who was absent. In support of his argument the Court was referred to 0.6 Rules 14 and 15 of the

1 Civil Procedure Code.

N.E. MKONO r. S.T.S. LTD.& SAKTAY (Mnzavas, j.A.) 27

Coming to the question of amendment of the written statement A of defence without first obtaining leave of the Court Mr. Mnzavas argued that 0.8 Rules 1 and 2 allowed the respondent to amend the written statement of defence without leave.

In the alternative the learned counsel submitted that if the Court found that he should have sought leave to amend the written B statement of defence he prayed that he be allowed to amend the written statement of defence to enable him to include the defence of contributory negligence.

After having carefully scrutinized the submissions by the learned counsels and having read the decisions quoted to us, we are C far from being persuaded by Mr. Mnzavas argument in rebuttal that section 43A of the Evidence Act only deals with criminal matters and that a decision in a criminal case can be challenged in civil proceedings.

DSection 43 A of the evidence Act says:

A final judgment of a court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against that Ejudgment or after the date of the decision of any appeals in whose proceedings, which ever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence.

FSection 47A of the Kenya Evidence Act which is apparently

analogous in its wording with section 43A of our Evidence Act was subjected to legal interpretation by the East Africa Court of Appeal in Robinson V. Oluoch [19711 E.A. 376 in which (at page 378) the Court said, inter alia: G

The respondent to this appeal was convicted by a competent court of careless driving in connection with the accident, the subject of his suit. Careless driving necessarily connotes some degree of negligence ... in those circumstances it may not be Hopen to the respondent to deny that his driving, in relation to the accident, was negligent. But that is a very different matter from saying ... that a conviction for an offence involving negligent driving is conclusive evidence that the convicted person was the only person whose negligence caused the I

TANZANIA LAW REPORTS 11992] T.L.R

accident, and that he is precluded from alleging contributory negligency on the part of another person in subsequent civil proceedings.

Coming back home this Court had occasion to deal with section 43A of the Evidence Act in Civil Appeal No. 8 of 1989 in Benedicto August!no and two others v. Godwin Manase Zephania (supra) where it said, inter alia:

... Mr. Raithatha assailed the inclusion of the result of the traffic case in a civil suit and disagreed with section 43A of the Evidence Act used by the learned trial judge for this purpose. Section 43A in effect says that final judgment of a court in a criminal offence shall be taken as conclusive evidence that the person so convicted was guilty o f that offence. Of course it shall be taken as conclusive evidence that the person so convicted and no other, was guilty of that offence, whether another person contributed to the happening of the collision is a matter which calls for other evidence.

That being the law regarding section 43A of the Evidence Act and bearing in mind that the 2nd respondent did not challenge ether conviction by way of an appeal and after the time limited for an appeal had expired he cannot be heard to say that he was not negligent in his driving. As he was convicted of causing death by dangerous driving it is our view that dangerous driving connotes some degree of negligence. We agree with Mr. Uzanda’s argument that the most the respondents could do is to allege contributory negligence.

As for the signing of the written statement of defence by the advocate it is our view that 0.6 R. 14 of the Civil Procedure Code gives discretion to the Court under the proviso “that where a party pleading is. by reason of absence or for other good cause, unable to sign the pleading it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.”

it is our view that the Indian decisions quoted to us by Mr. Uzanda, learned counsel for the appellant are too restrictive. The learned trial judge properly exercised his discretion when he said that the signing of the pleading by the advocate for the respondents was in order.

Coming to the amendment of the written statement of defence without leave of the court we agree that this offended the clear

S.SA1D &Y.M. MUSA v. A.A.ABEID (Mapigano. Ag. J.A.) 29

provisions of 0.8 R. 13 of ihe Civil Procedure Code but it is also our A considered view that this lapse on the part of the respondents did not prejudice the appellant/plaintiff; this is especially so taking into account that the plaintiff had been given leave to amend his plaint.We would like to mention, if only in passing, that justice should always be done without undue regard to technicalities. B

In the event it is our view that this appeal should be allowed in part. The appellant is awarded 50% of the costs which are to follow the event.

Appeal allowed in part. C

SOFIA SAID AND YUSUF MOHAMED MUSA v. AWADH AHMED ABEID & THREE OTHERS

[COURT OF APPEAL OF TANZANIA (Ramadhani and Mnzavas, JJ.A.and Mapigano Ag. J.A.)]

E28 February, 1992 - DAR ES SALAAM

Islamic law - Inheritance - Principles o f inheritance where a person dies intestate;

Islamic law - Inheritance - Importance o f proximity to the deceased F person in intestate succession.

Fatuma d/o Sefu who was a Sunni - Shaffii Moslem died intestate in 1983. After an application in the Kariakoo Primary Court by the could be heirs the Court appointed the fourth respondent as the G administrator of the deceased estate. On the same day the court made an order that the assets of the deceased be sold by auction. There was no dispute that under Islamic law Mgeni Hemedi, the surviving husband of the deceased was entitled to take half of whatever fell to be decided. The issue was the method to be adopted H for the distribution of the remaining part of the estate. Several relatives from the uterine and agnate sides competed for a share.The matter was taken to the District Court. The District Court held that since there were no Koranic heirs other than Mgeni Hemedi. heirs on the utejine side are entitled to inherit along with those on 1 the agnate side. The appellants are aggrieved by this decision and

30 TANZANIA LAW REPORTS (19921 T.L.R

A they appealed to the High Court. The High Court upheld the decision of the District Court. They appealed further to the Court of appeal.

Held: (i) In the Islamic law of succession the principle of proximity is of great importance in that within the limits of each class the

B nearer of blood excludes the remote;(ii) under the Islamic law of inheritance there are three

principal classes of heirs - the “sharers” or “koranic heirs"; “Residuaries” and the “Distant Kindred". The rule regarding their right of inheritance prescribes that residuaries inherit only where

C there are no koranic heirs or where the inheritable estate is not exhausted by the Koranic heirs and the distant kindred inherit only where there are no sharers of residuaries;

{iii) as the Koranic heir, Mgeni Hemedi, did not exhaust the estate the only person who has the right of inheritance in the

D circumstances is a residuary i.e. the second appellant. The rest of the claimants have no right under Islamic law.

Appeal allowed.

E Mehara, for the appellants Ngasala, for the respondent

M apigano, Ag. J.A. and Ram adhani and M ruavas, JJ.A .:This case concerns the estate of Fatuma d/o Sefu. hereinafter “the

F deceased”, who died intestate in 1983. The deceased was a Sunni - Shaffii Moslem, so the distribution of the estate, of which two houses are the main assets, is governed by the rules of that sect.

On 23/11/83 before the Primary Court at Kariakoo in Dar es Salaam the two appellants and three other persons who claimed to

G be heirs proposed that Mohamed Ussi, the third respondent herein, be appointed administrator of the estate. But on 3/12/83 it pleased that court that the administration of the estate be granted to Saidi Mohamed Harriz, the fourth respondent. On the same day the court made an order that the assets be sold by auction.

H The deceased was the wife of Mgeni Hemedi. and there wason agreement by the claimants, and it was in full accord with the law of the estate, that Mgeni Hemedi, as surviving spouse, is entitled

v to take half of whatever fell to be divided. There was however a dispute as to whether Mohamed Ussi, Shaban Abdul and his sisters

1 Tatu Abdul and Fitina Abdul could be called to the succession along with the appellants Sofia Saidi and Yusuf Mohamed Mussa. The

S.SAID &Y.M. MUSA v. A.A.ABE1D (Mapigano, Ag. J.A.) 31

contention of the appellants was that they were the only persons, A apart from Mgeni Hemedi, who could succeed to the estate, by reason of agnation. The appellants took the dispute to the District Court of Ilala although the matter could and should have been adjudicated upon by the primary court first, in terms of the Fifth Schedule to the Magistrates' Courts Act, 1963, which was then in B force.

Mr. M achano, learned advocate, who appeared for the appellants submitted before the district court that Mohamed Ussi, Shaban Abdul and his sisters are excluded from succession on two grounds: first, they are kindred on the uterine side, which indeed C they are, and Mr. Machano referred the court to a broad statement made by Sheikh Ali bin Hemedi El-Buhuri in his handbook Mohamedan Law o f Inheritance: secondly, they were “too far in the genealogical line”.

However, another handbook on the same subject written by D an equally renowned Islamic law jurist. Sheikh Abdullah Salehe Farsy. was available to the senior district magistrate, and the learned magistrate understood Sheikh Farsy as holding the contrary, namely, that in a situation like the one is this case the net estate is divided to both agnate and uterine heirs. E

In his judgment dated 13/7/84 the learned magistrate preferred the view taken by Sheikh Farsy and held that since there was no Koranic heirs other than Mgeni Hemedi, which was common ground, heirs on the uterine side are entitled to inherit along with those on the agnate side. He also took into consideration the fact, as he found F it, that the uterine claimants were more intimate to the deceased and had cared for her during her old age and incurred a substantial amount of money on her funeral. He expressed no opinion on the respondents’ argument that since the mother of the deceased would have taken of half of the estate, if she had survived the deceased, those who G would have inherited the m other's estate are not debarred from distribution. And he did not pronounce on the portions to be given to the claimants.

They, innuendo the appellants, were aggrieved by the decision of the district court and they appealed it to the High Court. In his H judgment dated 20/12/86, Bahati, J. upheld that decision. What is before us, therefore, is a second appeal.

On behalf of the appellants Mr. Mchora, learned advocate, has set out three grounds of appeal in the memorandum viz:

32 TANZANIA LAW REPORTS ( 1992| T.L.R

A 1. That the learned judge erred when he upheld the decision of the lower courts which held that heirs on the uterine side may inherit along with those on the agnate side where the deceased is a Moslem and his or her estate has to be administered according to Islamic law.

B2. That the learned judge misdirected himself when he upheld

the reasoning that Sheikh Farsy’s opinion in respect of the matter was more appropriate and fitting than that of Sheikh Buhuri.

C3. That the learned judge erred when he held that the appeal

had no merit.

Jt seems to us that these grounds admit of being considered D together. We have, however, failed to understand why the first,

second and fourth respondents have been made parties to these proceedings.

Before we heard the appeal we were under the strong impression that these grounds of appeal are confined to the question

E whether agnate heirs were, at law of the estate, superior to uterineheirs, and in actual fact that was the burden of Mr. Machano’s address in the district court. But in his submission before us Mr. Mchora changed tuck. He criticized the learned judge in the High Court for failing to consider the proximity to the deceased of each

F of the claimants. He concluded his speech by asking us to remandthe case back lo the primary court for it to take additional evidence on ihe point and determine the same.

Learned counsel for the respondents. Mr. Ngasala, supported ihe concurrent finding of the court below, saying that the courts

G were entitled to accept Sheikh Farsy’s opinion, which opinion, hesaid, is grounded on equity. With regard to the question of proximity, Mr. Ngasala replied that the matter was not raised in the courts below, though he conceded that it is of immense importance in the scheme of Islamic succession.

H With due respect to Mr. Ngasala. it is not true that the questionof proximity was not raised in the courts below. It was raised in the district court. We think that that is precisely what Mr. Machano had in mind when he submitted that the respondents are “too far in the genealogical line”, about which the learned magistrate said

I nothing.It is beyond question that in the scheme of Islamic succession

S.SAID &Y.M. MUSA v. A.A.ABE1D (Mapigano. Ag. J.A.) 33

the principle of proximity is a vitally momentous one. It is a scheme A that has held true for centuries, and one that is applicable to all classes of heirs so that within the limits of each class the nearer of blood excludes the more remote. We are disposed to think that even Farsy’s statement is subject to that principle.

Another scholar. Sir Roland Knyvel Wilson holds with the B view expressed by Sheikh Buhari about agnate superiority. In his Digest of Anglo - Muhammadan Law, 5th edition, Wilson writes at page 62:

Special rules, based directly or by analogy on Koranic texts, C govern the cases of females standing alone in the nearer degrees, and beyond the degree of sister patriarchal usage prevails in all Sunni schools to the extent of totally excluding females and blood- relations of either sex connected with the deceased through females, so long as there is any male Dcollateral, tracing up and down through an unbroken line of males - in other words any agnate, however remote.

In any event, the claims of the heirs in this case must be considered in the light of their classes, which, in our view, is E determinative of the claims. Islamic lawyers distinguish three principal classes of heirs and this also has held true down through the ages.

The first principal class is called "Sharers” or “Koranic heirs” Fof which, as stated, there is only one in this case, i.e. Mgeni Hemedi,The second is called “Residuaries” or “Asabah” and looking at the Table of Residuaries in Mulla’s Principles o f Mohamedan Law, 14th edition at page 69A, there is only one such heir among the claimants in this case i.e. the second appellant Yusuf Mohamed G Musa, he being an agnate nephew of the deceased. The third class is commonly referred to as "Distant Kindred” and this is the class to which the rest of the claimants, including the first appellant Sofia Saidi. belong.

Germane to these classes is the rule o f exclusion or H postponement. The rule prescribes that Residuaries are called to succession only where there are nos Sharers or where the inheritable estate is not exhausted by the Sharers; and the Distant Kindred are called to succession only where there are no Sharers of Residuaries:See Mulla, sections 65 and 67 (1). I

Accordingly, inasmuch as there is only one Koranic heir and

TANZANIA LAW REPORTS* I i 9921 T.L.R

there will be a residue left after satisfying his claim, the residuary, i.e. the second appellant, should be called to succession. And inasmuch as there is a residuary, nothing can devolve upon the rest of the claimants. That is the legal position, and much as we may appreciate the affection and generosity which some of the claimants had displayed toward the deceased, there is nothing we can do.

For the benefit of some of the claimants we conclude by making this observation: it is a wrong thought that they can stand in the place of the mother of the deceased, for the doctrine of representation is alien to Islamic intestacy. So it matters not that the mother of the deceased would have been called to the succession of the estate, if she had survived the deceased, and that upon her death the claimants would have partition in her inheritance. As Wilson points out in his Digest at page 64, the case of Prophet Mohamed himself poignantly exemplifies the true legal position. He writes:

Thus, in Muhammad's own case, his father Abdullah having predeceased him (in fact, having died before he was bom) while the grandfather was still living, the other sons of the grandfather divided the whole of the latter's inheritance lo his total exclusion, and he owed his maintenance and start in life to the kindness of one of his uncles.

Wilson presumes that this system satisfied the Prophet’s sense of justice though he personally suffered by it, since he did not alter it when he was in a position to do so. And of course it is beyond our competence to change that system.

In the ultimate event this appeal succeeds, and we allow ii with costs. In view of what we have remarked about the joinder of the first, second and fourth respondents, we order that the costs be paid by the third respondent Mohamed Ussi alone.

Appeal allowed.

O. MOHAMED i>. A. ABDALLAH (Kyando, J.) 35

OMARY MOHAMED v. AWADH ABDALLAH A[ HIGH COURT OF TANZANIA (Kyando, J.)l

28 February 1992 - TANGA

Lund law - Co-ownership - Division o f the house in terms o f its B value and option to purchase the other’s share.

The plaintiff and the defendant, who arc cousins, jointly owned on equal share, a plot and a house located in Ngamiani area in Tanga municipality. Thejtboth lived in the said house with their relatives. C After some time a sharp disagreement arose between them and the plaintiff sought for and got alternative accommodation. The plaintiff brought this action requesting the court to either sell the house and have the proceeds divided equally between them or any of the parties should purchase the share of the other. D

Held: (i) In the circumstances of the case the defendant was not responsible for the conflict which arose in relation to the occupation and use of the house;

(ii) the fairest method, for which the parties also agreed, was E the division of the house in terms of its value and to give the parties an option of purchasing the other’s share.

Order accordingly.F

Kyando, J .\ The plaintiff and the defendant in this case are cousins. Their mothers are full sisters. They jointly bought Plot No.8,”BIoc"46. Barabara ya 8, Ngamiani, Tanga Municipality and constructed, jointly, a house on it. There had been an old house on the plot, which had belonged to their mothers. They demolished G the old house and constructed their present house in its place. Construction commenced in 1974 and was completed in 1979. It is apparent that in the house which was demolished their respective parents and other relatives, such as their mothers’ sisters and an uncle lived in, together with the parties hereto. On completion of Hconstruction of the new house the plaintiff and the defendant divided between themselves rooms in the house and they each had equal portions in the house. They continued to share their respective portions with their relatives, e.g. on the part of the defendant, with hoth his parents, and on the part of the plaintiff, with his mother, Ihis mother’s sisters and an uncle of the parties.

TANZANIA LAW REPORTS fl992j T.L.R

They (the parties) are now involved in a wrangle over the house. The plaintiff in his plaint prays that it be sold, at a public auction, and the proceeds be divided equally between them, or, alternatively, any of the parties purchase the share of the other by paying him shs. 75(),()()()/= and any one party whose share is purchased should vacate the house “the soonest.”

The plaintiff alleges that what brought about the conflict over the house was the defendant’s breach of their agreement whereby the (the defendant) let into the house “his relatives other than his families, to wit he let in one (1) Addarahman Abdala with his wife and 2 children (2) Ramadhani Abdalla with his wife and 2 children.” (See para 7 of the plaint). In paras 8 - 14 of the Plaint, the plaintiff stales that:

8. That because of this influx of this large number of peopleand whose character and behaviour was quite unbearable, the plaintiff found the said so he protested against this move by the defendant but the latter took no positive step to rectify the situation.

9. That finding that he could not reside at the house with hisfamily, the plaintiff decided to and rented his pari of the house.

10. That the plaintiff s tenants who were sociable people could not stay in the house for long due to molestation and annoyance by the defendant and his relatives.

11. That since the end of 1983 to date the plaintiff has not been able to use his part of the house and so the same has remained idle.

12. That the plaintiff has made proposals to the defendant that because the purpose of acquiring the house and rebuilding it has been defeated, ihe same should be sold by public auction or one party purchase the other’s share in the said house, the defendant has been unreasonably resisting any of these alternatives.

13. That the current market value of the house according to offers made by prospective buyers is shs. 1,5(X),(X)0/=.

O. MOHAMED v. A. ABDALLAH (Kyando. J.) 37

14. That the plaintiff is willing and ready to buy the defendant’s Ashare in the house by paying him shs. 750,000/=.

In his defence the defendant stated that it is not true that he let into the house people other than members of his family. He said the people concerned are his full brothers Abraham an Abdalla and BRamadhani Abdallah.

In paper 5,7,8, 9 and .10, of his written Statement of defence the defendant states:

5. The defendant denies para 8 of the plaint for the reasons Cthat there were not large numbers of people as stated by the plaintiff more than my young brothers as mentioned in para 4 of this written statement of Defence.

7. Paragraph 10 of the plaint is completely denied, there were Dnot any molestation and annoyance to his tenants. Further more he reached (sic) this matter to the police and henceto court complaining that I threatened his tenants Criminal Case No, 508/86 in the District Court Tanga refers. Those tenants called to court to give their evidence about the Ecomplaint of the plaintiff, but they told the court that (here were no any trouble or molestation or annoyance made by the defendant to them.

8. Paragraph II is also denied as nobody prevented him to Fuse his part, he is living in his house at Street No. 7 that iswhy he locked his rooms.

9. The defendant denies para 12 of the plaint, first of all Ilived in that house since 1970 until now, and 1 have no Gother house to live in. I agree to purchase the share to the plaintiff, but not by (sic!) black market as this matter has reached to the Resident Magistrate - in - charge. Tangaand he wrote a letter with Ref, SRM CONF/CIV/3/12 of 27/3/1987 to the Regional Valuation Officer to visit the Hhouse and make his value (sic!) but to date no reply effected.

10. Paragraph 13 of the Plaint completely denied, the saidhouse cannot reach (sic!) even half the amount as stated I

18 TANZANIA LAW-REPORTS [I992]T.L.R

k by the plaintiff, and that is why I emphasise to be valuedby value (sic) Officers.

The Written Statement of Defence is drawn by a lay hand. This is apparent from a mere glance of it. Nonetheless, while the

B defendant agrees with the proposal to have the house divided into shares in terms of value and that one of them, the parties, should purchase the other’s share and keep the house, he disagrees with the idea of the house being auctioned. He prefers that it be valued

! by a Government Valuer and then half of the value be paid to one|C who will not keep the house by the one who will keep it. He suggests

that he should be the one to buy out the plaintiff as he. he said, has no other house to live in while the plaintiff has the one he moved to when he shifted from the house in dispute in this case. The defendant also denies that he is the one who is responsible for the dispute

|D which arose between the parties in relation to the house.The following issues were agreed on by the parties:

(1) Should the house be sold by public auction or one partyshould pay the other part of the amount shown in the

5 Valuation Report?

(2) What reliefs are the parties entitled to?

On the first issue, the plaintiff proposes sale of the house F because, as shown, he considers that the defendant is the one to

blame for the dispute which has arisen in relation to the house. However, during the hearing the defendant contended that the plaintiff is an over sensitive and arrogant person; he took offence at very trivia! matters which his (defendant’s) relatives did. He said

G the plaintiff would even brag that he was light complexioned while the defendant and his relatives were dark skinned (both the parties are Arabs). He bragged too, according to the defendant, about his having money while the defendant and his kins did not have any.

In my opinion on the first issue when the house was H constructed it cannot be said that it was meant for occupation

exclusively by the parties and their families only - families in the European or white man’s sense of the word. I think it was intended for occupation by the parties and their relatives as it now is. This is event from the fact that each of the parties had his relatives in the

I house right from the time it was ready for occupation. In fact even before then, in the old house, the parties lived with relatives. The

O. MOHAMED v\ A. ABDALLAH (Kyando, }.) 39

defendant lived with both his parents in the house. It would not A therefore be any wonder if his brothers, Abdarahamar Abdallah and Ramadhani Abdallah came to the house and joined their parents and brother, the defendant, even with their children and wives, there.I am of the view then that the coming to the house of the defendant’a brother was not in itself a breach of any agreement in relation to the B occupation of the house by the parties. I am of the view, too. that the coming to the house by the defendant’s brother is not a matter for which the defendant is to be blamed in relation to the conflict which arose. The conflict arose due to poor relations between the plaintiff and those brothers and 1 think it may be true that it was C because of the plaintiffs oversensitivity, hatred and arrogance as stated by the defendant in his evidence. I will not therefore hold the defendant in any way to blame for the conflict w hich has now arisen in relation to the occupation of the house.

The above being the position, i think it is then for this court D to adopt the fairest method of dealing with the house as between the parties. Selling it at a public auction would certainly render the defendant homeless, for no fault, as held, of his. The plaintiff on the other hand has another house and docs not live in the suit house.I am of the view then that selling the house by auctioning it will E result in grave injustice to the defendant.

There is a method which both the parlies agree to. The plaintiff, of course, seems to have developed second thoughts about it and now insists on sale by public auction. The method is the division of the house in terms of its value, and then giving the parties an option F of purchasing the other’s share and the one whose share has been purchased to move out of the house. The plaintiff says that if this is the option adopted, he should be the one to be given the opportunity . to buy.

I think this method is fair. As I have said the plaintiff pleads G it in his plaint as an alternative relief. He is bound by his pleading and he cannot now wriggle out of them as he now attempts to do. Also I do not see why he should be the one to be given the first option to buy. As 1 have sid the defendant is not to blame for the conflict which has arisen in relation to the house. Also he is the one H now in occupation of the house. I think it would be fair therefore to let him see if he can purchase plaintiff s share first and if he fails then the plaintiff should be given the chance to purchase defendant's share. In the result then, the house is to be divided in two shares in terms of value. Then the defendant is to be given the first chance to I purchase the plaintiff s share. If he fails to do so within three months

40 TANZANIA LAW REPORTS 11992| T.L.R

A from the date o f the delivery o f this judgm ent, then the plaintiff is to purchase defendant’s share. The house was valued by a Government Valuer at Shs. 2,077,440/= on 26th June, 1991 (see his Valuation Report No. VAR/C/TAN/I/VOL.XI of 25th June, 1991) and that is to be taken as the present value of the house. The

B parties, or anyone of them, may reapply to the court for revaluation of the house by the Government Valuer before any purchase of the shares is done. The new value will then be the basis for dividing the house into the shares I have ordered here.

I have made the above order because I am satisfied on the C evidence that the parties cannot possibly continue to co-own the

house. They are in serious conflict over it now, and it is best that one of them ceases to be associated with it altogether. This wi)] disengage them from further contacts over the house, which contacts have been the reason for the present conflict between them.

D In the decision which I have made, I do not think either partycan be said to have won as against the other. I therefore will not make any order as to costs.

Order accordingly.E ___________________

JUMANNE RAMADHANI v. REPUBLIC F [HIGH COURT, OF TANZANIA (Masanche. J.)|

1 I March 1992-MWANZA

Criminal law - Obtaining by false pretence.G Criminal Practice and Procedure * Sentencing - Omnibus sentence

- Offences committed in close association with each other - Whether consecutive or concurrent sentence - Rectification o f sentencing procedure by an appellate court.

H Appellant was charged with and convicted of obtaining money by false presences contrary to section 302 of the Penal Code. It is alleged that the appellant went around in the township of Mwanza soliciting lor money, especially from Asian businessmen, saying that he was sent by Government officials to collect such monies for Mwenge

I festivals. He collected money from five persons,The sentence he got was one of three years for all the offences.

JUMANNE RAMADHANI v. REPUBLIC (Masanche, J.) 41

Held: (i) It is unlawful to award omnibus sentence. Each count Amust receive a requisite sentence. The magistrate may then decideto order the sentences to either run concurrently or consecutively depending on the nature of (he charges and the evidence unfurled at the trial [See R. r. White [19721 Crim L.R at 193!;

(ii) the three year sentence imposed on the appellant was not Bon the high side. For the record purposes the sentencing procedure adopted by the trial magistrate must be rectified:

(iii) On each of the five counts the appellant be sentenced to three years imprisonment. These sentences should run concurrentlyto each other and hence the appellant should serve three years C imprisonment.

Appeal dismissed.

M asanche, J.: Appellant Jumanne Ramadhani was charged D with and convictcd of obtaining money by false presences contrary to section 302 of the penal code. He had been charged along with another person called Mohamed Ally, Jumanne Ramadhani, the present appellant, was the second accused, according to the charge sheet dated 11/8/86, and Mohamed Ally was the first accused. E Mohamed Ally got acquitted on a benefit of doubt. The present appellant got convicted on all the counts he had been charged with, and was sentenced to an om nibus sentence of three years imprisonment.

I must straight away say that it is unlawful to award omnibus Fsentence. Each count must receive a requisite sentence. The magistrate may then decide to order the sentences to either run concurrently or consecutively, depending on the nature of the charges and the evidence unfurled at the trial. A commentary to the case of R. v. White [1972] Crim. L.R., at 193, a case decided by GQueens Bench Divisional Court comprising Lord Widgery C.J., Sacks L.J., and Ackner J., says this:

The general principle that offences committed in close association with each other should not normally attract FIconsecutive sentences applies only where the offences concerned are broadly similar in character or related in terms of subject - matter. Where two wholly different offences are committed at the same time, even against the same victim, consecutive sentences may properly be imposed. I

ftl I

t . ______

/-"

I

TANZANIA LAW,REPORTS |I992j T.L.R

\ In that case, a Jamaican got convicted on five counts of obtaining property by deception and one of rape. He got money by telling the victims that he could cure them of their evi] spirits. From one of them, a woman, he demanded sexual intercourse as a cure. Consecutive sentences were imposed and upheld.

B Yet, in another commentary, in [1970] Crim L.R., at page593, it is said, on sentences:

As a general rule, consecutive sentences even though imposed for quite separate offences should not be added together to

2 produce an aggregate sentence which is totally out ofproportion to the gravity of the individual offences, or the most serious of them. A court is entitled to reduce what would be the logical total sentence if a strictly mechanical approach were followed, if this is necessary to produce a reasonable

D result.

The general rule, and the pattern in most cases is for the court to impose sentences on each count and then order that the sentences should run concurrently.

The appellant, as Mr. Kabonde, the learned state attorney has pointed out. is appealing against sentence. He is not aggrieved at the conviction. Indeed, he could not complain against the conviction on such tangible evidence that was unfurled at the trial. Appellant went around in the township of Mwanza soliciting for money, especially from Asian businessmen, saying that he was sent by Government officials to collect such monies for Mwcnge Festivals. Almost all the Asian businessmen who parted with money identified him in Court to be the very fellow who had gone around to collect such moneys. In total, he collected about Shs. 10,000/=. He then got caught and was sent before law enforcing organs; then he got charged and got convicted. The sentence he got was one of three years for all the offences put together.Such a 3 year jail term was not on the high side.

However, for record purposes, I have to rectify the sentencing J procedure that the learned magistrate had adopted. I order that on

each of the five counts the appellant be sentenced to three years imprisonment. But, these sentences should run concurrent to each other. That is to say, the appellant only serves three years imprisonment.

Appeal is dismissed.

SEIF SHARIF HAMAD v. S.M.Z (Ramadhani, J.A.) 43

SEIF SHARIF HAMAD v. S.M.Z A[COURT OF APPEAL OF TANZANIA

(Ramadhani and Mnzavas, JJ.A. and Mapigano, Ag. J,A.)1

13 March 1992 - ZANZIBARB

Criminal Practice and Procedure - Jurisdiction - Ruling on preliminary point relating to jurisdiction o f trial court - Whether appealable - Whether Court o f Appeal has jurisdiction to entertain the appeal.

Criminal Practice and Procedure - Appeal - Jurisdiction - Section C 6(2) o f the Appellate Jurisdiction Act, 1979 - Right to appeal.

After preliminary inquiry ihe appellant was committed to the High Court for trial. A regional magistrate, Mr. Mm ilia on extended jurisdiction was duly assigned to hear and determine the case. Before D hearing commenced the appellant raised a point of jurisdiction of the trial court. The court ruled that it had jurisdiction to try the case.The appellant filed an appeal with the Court of Appeal challenging the ruling that the regional magistrate, with extended jurisdiction, was legally competent to conduct the trial. E

Before the Court of Appeal could entertain the appeal it considered whether it had jurisdiction to hear the appeal in view of section 6 of the Appellate Jurisdiction Act. 1979 and also whether the appellant was competent to lodge the appeal.

FHeld: (i) The ruling of Mr. Mmilla was a specie of interlocutory order, and following our decision in Alois Kula we have no jurisdiction to hear an appeal against it under the Appellate Jurisdiction Act, 1979;

(ii) the Court of Appeal has no inherent power to exercise G jurisdiction where no right of appeal is provided;

(iii) our appellate jurisdiction derives from the Appellate Jurisdiction Act, 1979. Section 6 deals with criminal appeals like this one. Section 6(2) expressly permits only the D.P.P. to appeal against any order of the High Court or subordinate court in the H exercise of extended jurisdiction;

(iv) The appellant has no right of appeal.

Appeal incompetent and premature.

4 TANZANIA LAW REPORTS [1992|T.L.R

Ramadhani and-Mnzavas, J.J.A. and Mapigano, Ag. .I.A.:The appellant, Seif Sharif Hamad, is challenging the ruling of Mr. Mmilla, Regional Magistrate, in the exercise of extended jurisdiction, that he has the jurisdiction to try the appellant.

After the conduct of a preliminary inquiry the appellant was committed to the High Court for trial. His Londship, the Chief Justice of Zanzibar, Mr. Hamadi, assigned the case to Mr. Mmilla .on extended jurisdiction. The appellant raised one major preliminary point of jurisdiction at the trial, and that was whether Mr. Mmilla was legally competent to conduct the trial.

This appeal was adjourned on the day it was first set for hearing. This court then required the counsel for the appellant, as well as the counsel for the respondent/S.M.Z. to come to address it, when hearing is resumed, on whether or not this Court has jurisdiction to hear the appeal in view of Section 6 of The Appellate Jurisdiction Act, 1979 as interpreted in our recent decision in Alois Kttlo and Another v. R., Criminal Appeal No. 121 of 1991 (unreported).

Before us, was Mr. Nowrejee. learned counsel. He had two main submissions.

First, he said that the decision in Alois Kula is to the effect that this Court does not have jurisdiction to hear appeals against interlocutory orders. He submitted that the present appeal is not against an interlocutory order but against a decision on a preliminary point of law. He argued that at the stage reached before the Regional Magistrate no plea had been taken and assessors had not been chosen. In short the trial had not started. To him an interlocutory order is one made after a trial has commenced but before it has been concluded. He argued that this appeal is founded on fresh proceedings before Mr. Mmilla even before the trial had started. So, he concluded, what is before us is an appeal against a preliminary point of law not an interlocutory order.

His second submission was that this Court has inherent and or residual powers of appeal where the proceedings before the lower Court were a nullity or where jurisdiction was lacking. He cited David Mhnwa Ndeie v. R. Criminal Appeal No. I o f 1989 (unreported) as his authority. In Ndede the Court of Appeal of Kenya used its inherent or residual powers to hear an appeal against a conviction founded on a plea of guilty while that is prohibited by Section 348 of the Criminal Procedure Code which only allows appeal against sentence.

SEIF SHARIF HAMAD v. S.M.Z (Ramadhani, J.A.) 45

Mr. Nowrejee then urged us to use our inherent and residual A powers to hear this appeal.

On behalf of the respondent/S.M.Z. was Mr. Mutembei, learned Stale Attorney. He submitted that the ruling of Mr. MmiHa was interlocutory. To him an interlocutory order is one which is made by a court at any stage of the case but which does not finally B determine the case.

Mr. Mulembei argued that the appellate jurisdiction of this Court is a creation of a statute. The Appellate Jurisdiction Act, and that Section 6. does not admit of an appeal against an interlocutory order. Mr, Mutembei relied on Alois Kula and A. -G v. Shah [1971] C E.A. 50, which we have cited in Alois Kula, as his authorities for his submission.

As for the issue of inherent and residua] powers of this Court.Mr. Mutembei said that the division in Ndode supports that in Alois Kula. The learned State Attorney submitted that the prohibition on D appeal against conviction after a plea of guilty is not absolute and it was so said in Ndode. But here. Mr. Mutembei argued, the prohition on appeal against interlocutory order is absolute.

in reply Mr. Nowrejee stuck to his guns that there was no interlocutory order, E

Then Mr. Nowrejee contended that what gives this Court its jurisdiction is section 4 of the Appellate Jurisdiction Act which is broader in scope than Section 6. He admitted that Section 6(2) permits the D.P.P. only, and nol the other party, to appeal against any order of the High Court. But he submitted that was not so in Fevery instance. Where the issue is nullity of proceedings or want of jurisdiction there are inherent and residual powers of appeal. Mr. Nowrejee pointed out that Alois Kula did not deal with these two issues so it is distinguishable.

Mr. Nowrejee also argued that Section 6 of the Appellate GJurisdiction Act does not give a right of appeal to a party other than the D.P.P. by implication only and that the right of appeal is not expressly denied. However, he added, the prohibition of appeal against as conviction based on a plea of guilty, as provided in section 324 of the Criminal Procedure Decree, like section 348 of the H Kenyan Criminal Procedure Code, is expressly prescribed. So, he submitted, if, notwithstanding an express prohibition, an appeal is entertainable, then it is a fortiori case where the prohibition is by implication.

The first issue we have to determine is whether Mr. Mmilla’s 1 order was an interlocutory order or not.

TANZANIA LAW REPORTS 11992] T.L.R

Blacks Law Dictionary (Revised 4th ed) has this to say on interlocutory order:

An order which decides not the cause, but only settles some intervening matter relating to i t ...

Now, what was the “cause” before Mr. Mmilla? Was it whether or not he had jurisdiction, and for that matter jurisdiction to do what? Or was the cause before him whether or not the appellant was guilty of the charges facing him? We are not a shade in doubt that the guilty or the innocence of the appellant was the cause before him, and that the preliminary point was raised just when he was about to try that cause.

It is plain that Mr. Mmilla’s ruling did not decide the cause. The ruling, in our view, was a specie of interlocutory order, and following our decision in Alois Kula we have no jurisdiction to hear an appeal against it under The Appellate Jurisdiction Act. 1979 of which we shall have more to say in a short while.

The second issue which calls for our decision is whether or not we have residual or inherent powers over and above these given by the statute.

This was categorically settled by our predecessor, the Court of Appeal for Eastern Africa in Rex v. John Christopher Nealon (1950) 17 E.A.C.A. 120 at 121 thus:

This Court has no inherent power to exercise jurisdiction where no right of appeal is provided.

That was reiterated by that Court twenty years later in A - Cj v. Shah thus:

It has long been established and we think there is ample authority for saying that appellate jurisdiction springs only from statute. There is no such thing as inherent appellate jurisdiction.

And that is what we, also after another twenty years, have maintained in Alois Kula.

Our appellate jurisdiction derives from The Appellate Jurisdiction Act, 1979. Section 6 deals with criminal appeals like this one. Section 6(2) expressly permits only the D.P.P. to appeal against any order of the High Court or subordinate court in the

SEIF SHARIF HAMAD v. S.M.Z {Ramadhani, J.A.) 47

exercise of extended jurisdiction. Thus any party other than the AD.P.P., like the appellant here, has no such right.

As we have mentioned Mr. Nowrejee submitted that that denial does not extend to issue of nullity o f proceedings or jurisdiction. With respect that is not so and has never been so as this extract from R. i\ Nealon at page 121 vividly demonstrates: B

But learned Crown Counsel relying on Rex v. Sironga has argued that the revisional order in this appeal was made without jurisdiction and is a nullity so that in his submission the order appealed from was not a valid order in revision and C in his submission an appeal ties on point of jurisdiction.

The Court then went on to say that:

it may well be thought most extraordinary that no appeal D should lie from an order purporting to be made in revision either on a point of law or on point of jurisdiction, but vi e must take the law as we find it and under the law the right of appeal to this Court from the Supreme Court of Kenya exists only in cases where a right of appeal is provided by the laws E of Kenya and there is no such provision applicable to this case. This Court has no inherent power to exercise jurisdiction where no right o f appeal is provided, (emphasis provided).

if we substitute Tanzania for Kenya wherever that name appears F and the High Court for the Supreme Court, then the analogy is complete.

The reasons for prohibiting a party other than the D.P.P. from appealing against interlocutory orders are not far to seek. The criminal proceedings would undoubtedly be very protracted as an G accused person would be attracted to appeal against every order.

That ought to have disposed the appeal but from brotherly respect to our colleagues in the Court of Appeal of Kenya we have to say a thing or two on Ndcde.

First, we could say that the decision is of mere persuasive H authority. That is an easier thing to do but it is escapist. So, secondly, we say that even this Court has done the same in similar cases like Ndede because then the appellant comes with reasons saying that “I did not plead guilty" or words to that effect. The Court then has to assess the plea whether it was one of guilty or not. If it was of I guilty then that disposes of the matter forthwith, because there is

TANZANIA LAW REPORTS [ 19921 T.L.R

no right of appeal against a proper plea of guilty.We want to make it abundantly clear that our decision does

not finally determine the rights of the appellant. After the trial before Mr. Mmilla is over, and if the appellant is aggrieved, he can still come back and raise the issue of jurisdiction as one of his grounds of appeal. So this appeal is incompetent and premature and we dismiss it.

Appeal dismissed.

THE REPUBLIC v. MGEMA MANYUYA [HIGH COURT OF TANZANIA (Korosso. J.)|

26 March. 1992 - TABOR A

Criminal Practice and Procedure - Charges - Dismissal - Before lapse o f 60 days illegal and void - Court may refuse adjournment- S. 225 (4) Criminal Procedure Act, 1985.

In a trial before a District Court the presiding magistrate dismissed the charge and discharged the accused under section 225(4) of the C.P.A after 55 days since commencement of proceedings.

On revision the judge of the High Court found that the dismissal and discharge were unlawful and void, but observed that court have power in appropriate cases to refuse further adjournments of a case.

Held: (i) The order for dismissal of the charge and discharge of the accused was null and void. Such order can only be made after the expiry of sixty days;

(ii) in the application of the provisions of section 225(4) (a) of the CPA. the court has a discretion to refuse to adjourn a case even where a certificate has been filed by the Regional Crimes Officer if satisfied that the certificate has not been able to show an existence of a real need for an adjournment or the grounds are unreasonable.

REPUBLIC v. MGEMA MANYUYA (Korosso, J.) 49

Korosso. J .: This revisions! file was ordered to be opened A with a view to satisfying this Court as to the legality or propriety of the learned Principal District Magistrate order dated 27/3/1991 in which he dismissed the charge and discharged the Accused for failure by the prosecutor to file a certificate of the Regional Crimes Officer, Shinyanga, asking for an adjournment of the case for a B further aggregate period of 60 days as provided under the provisions of section 225 (4) of the CPA No. 9/85.

Mr. Oswald, the learned State A tto m ey ^h o represented the Republic at the hearing of the revision, submitted that the initial 60 days having not elapsed, the learned trial Magistrate was not legally C justified in dismissing the charge and discharging the Accused.

Indeed, the learned State Attorney, is right. The Accused had the charge formally read over to him on 31/1/1991 so that on 27/3/ 1991 when the charge was dismissed, there had elapsed 55 days or so in the aggregate. Self-evidently, the order was made prematurely. D The discharge of the Accused was consequently illegal and the order a nullity,

Be as it may, the learned trial M agistrate needs to be commended for being so mindful about the magnitude of the provisions of section 225 (4) of the CPA. There can be no room for E compromise in the application of section 225(4) of the CPA. I may further observe that in the application of the provisions of section 225 (4) (a) of the CPA, the Court has a discretion to refuse to adjourn the case even where a certificate has been filed by the Regional Crimes Officer if satisfied that the certificate has not been able to F show an existence of a real need for an adjournment or the grounds are unreasonable. Take this case in point as an example. The Accused was charged with the offence of giving false information to Mr, Magige, the Primary Court Magistrate at Bumela Primary Court on 14/90. In a case of this nature the said Magistrate was the only key G witness. It is difficult to really believe that it was not possible to secure the attendance of the Primary Court Magistrate, working in the same District before the District Court.

There may also arise a situation where all the witnesses but one have testified. If the Court honestly believes that (he evidence H of the remaining witness will be just like “a fly on the coach-wheel’, so that the case is bound to stand or fall on the evidence given thus far, it will be doing justice to the case to refuse the application. The position under the provisions of section 225 (4) (b) and (c) of the CPA has no relevancy to my foregone observations for under those I

50 TANZANIA LAW REPORTS J19921 T.L.R

A paragraphs (b) and (c) adjournment is obligatory once appropriate certificates are filed on time,

* I would emphasize here that the provisions of section 225{4) (a) (b) and (c) of the CPA are essentially intended to control the speed of hearing criminal cases so that proceedings are concluded

B within ascertainable period of time. The section is just like a reins which a rider uses to control the direction and speed of an unruly horse.

The final question is whether or not this Court should order the arrest of the Accused so that the proceedings resume from where they

C stopped.I find myself overwhelmed by reluctance as a result of my

surprise I expressed ‘supra’ because of the prosecution’s failure to secure the attendance of Mr. Magige. the Primary Court of Burnela Primary Court, for 55 days.

D Under the circumstances of this case, it would be violatingthe provisions of Article 13 (6) (b) of the Constitution of 1977.

Consequently, I invoke the inherent powers of this Court by dismissing the charge and discharging the Accused.

E The t im e r Court’s order is quashed.

F MASUD1 ALLY v. CH1KU MASUDI[HIGH COURT OF TANZANIA (Korosso, J J |

10 April 1992 - TABORA

G Customary' Law - Inheritance - Rights o f children to inherit parent ’j property.

This is an appeal by the appellant challenging the decision of Kigoma District Court which rejected his claim fora right to inherit from a

H deceased person who was not his relative.

Held: Under customary law only children of the deceased have the right to inherit from their deceased’s parents property. ,

I Appeal dismissed.

PJ.KITOGOLE & ANOTHER v. REPUBLIC {Makame, J.A) 51

Korosso, J .: This is an appeal lodged by the Appellant A challenging the decision of the Kigoma District Court which reversed the decision of the Ujiji Urban Primary Court.

The Appellant was neither the son nor the relative of the Respondent’s late father who exclusively owned the disputed residential house in Tabora Municipality. B

According to the para 26 of the Second Schedule of Declared Customary Law G/N 436/63, it is the children - them alone - of the Deceased that are customarily entitled to inherit the entire property, (without exception), of their late father. The appellant having been a complete stranger to the family of the Respondent’s late father, C he is equally a stranger to the property of the Respondent’s late father.

As it were true that the Respondent’s late father had ever inherited the property of the Appellant's late father in 1956 when his father died, the Appellant would naturally have sued the D Respondent’s late father during his lifetime until in. 1990 when he passed away. Seeing that the Respondent’s father is no longer with us, he decided to lest the wisdom of courts of law.

On the foregone grounds, I dismiss the appeal in total with costs. E

Appeal dismissed.

PROTAS JOHN KITOGOLE AND ANOTHER v. REPUBLIC (COURT OF APPEAL OF TANZANIA

(Makame. Kisanga & Omar, JJ. A.)JG

April 21, 1992 - MBEYA May 28, 1992-M BEYA

Evidence - Circumstantial - Whether and when may ground a 'conviction. H

The appellants were charged with and convicted of murder by the High Court. The case against both accused/appellants was based wholly on circumstantial evidence. The pieces of circumstantial evidence tending to implicate the second appellant were: (i) after I the two deceased watchmen had been fatally wounded he was found

52 TANZANIA LAW REPORTS i 1992] T.L.R

A at the home he was staying with a big fresh cut wound which was bleeding; (ii) A trail of blood was traced from there right up to the carpentry workshop where the murders were committed. The appellants explanation that the cutwound was inflicted on him by bandits who had invaded the home was not backed up by any

B evidence; (iii) on the fateful nighl some 14 carpentry planes were stolen from the workshop, and six days later the appellant told PW5, a relative, that he had carpentry planes for sale but cautioned him not to disclose this to anyone because theft of carpentry planes had taken place at Tosamaganga; (iv) just about six days prior to the

C commission of the murders, the same workshop had been broken into and a welding machine (electric motor) was stolen from there blit was later found abandoned only about nine meters away. In the dead of that same night the appellant had approached PW4 and asked him for a motor-vehicle to transport a motor from the

D workshop. Sensing that the said motor was stolen PW4 refused to oblige.

As for the first appellant there were the following pieces of circumstantial evidence; (i) the appellant’s companionship with his co-appellant (ii > the appellant’s girl friend said that five to six days

E following the murders she visited the appellant’s home where she noticed the appellant with a big cut wound on his lower arm; the wound was not fresh. He threatened to kill her if she told people about the wound. She went on to say that the appellant used to put on T-shirts but that after the murders he used to put on long-sleeved

I* shirt and a big coat; (iii) the appellant claimed that he sustained the cut wound when he was trying to commit adtiltery with someone’s wife. However there was no evidence to that effect.

The Court of Appeal considered whether or not the pieces of circumstantial evidence could ground a conviction in respect of cach

Cj appellant.

Held: (i ) The fact that only shortly after the murders were committed, the second appellant was found with a big cut wound and that a trail of Wood was traced from where he was found to the scene of

H the murders were incriminating circumstances which lead to the only reasonable inference that the appellant took part in the murders. And the fact that the second appellant gave a false account of how he sustained the injury goes to strengthen this view;

(ii) although the evidence against the second appellant was a 1 great deal stronger than that against the first appellant we are fully

satisfied that the circumstantial evidence against the first appellant

P.J.KITOGOLE & ANOTHER v. REPUBLIC (Makame, J.A) 53

was enough to lead lo the irresistible conclusion that he was one of A the killers; (Kisanga. J.A.. dissenting);

(iii) (per Kisanga, J.A.) The fact that the first appellant hadsustained a cut wound on a certain day which wound according to the prosecution he was hiding cannot justify drawing the only reasonable inference that the first appellant sustained that wound Bduring the commission of the murders at the workshop on the nightin question. That fact can be explained on another reasonable hypothesis, namely, that the injury could have been sustained elsewhere and the appellant would have reason to conceal it in order to avoid detection; C

(iv) (per Kisanga, J.A.) The fact that the appellant has not given a true account of how he sustained the cut wound would be relevant only if there was evidence which implicates him sufficiently with the offences charged;

(v) (per Kisanga, J.A.) To Attach any importance to the Dappellant’s giving a false account of how he sustained the injury and to his subsequent attempt to conceal the injury, and then to proceed to convict him would, in the circumstances of this case amount to basing conviction on the weakness of the defence rather than on the strength of the prosecution case; E

(vi) (per Kisanga J.A.) Each of the inculpatory facts or set of inculpatory facts, adduced against the first appellant, considered singly does not justify the drawing of the inference that the first appellant committed the murders in question. Likewise when considered together they could not justify the drawing of such F inference for the simple reason that it is not possible to add nothinglo nothing and gel something.

Appeal dismissed.G

Mwangole, for the appellants. n

M akame, Kisanga and O m ar, JJ.A : These two appellants were sentenced to suffer death after being found guilty of murdering two night watchmen, employees of Tosamaganga Mission in Iringa H District on 14lh September, 1983. Chua, J., and all the three assessors silling with him were satisfied that the two appellants were the ones who violently killed the deceased persons in the course of a theft. Both appellants were themselves found to be bearing serious cut wounds at the time ihey were arrested. 1

54 TANZANIA LAW REPORTS [ 1992] T.L.R

A Mr. Mwangole, learned advocate, argued the appellants’appeal before us. He complained that his clients were convicted merely because of the wounds they had, that their explanations as to how they each got injured should have been believed, and that there was no evidence that the appellants took part in breaking into the

B Mission Workshop the deceased persons were guarding. On the other hand, Mrs. Makuru, learned State Attorney for the respondent Republic, supported the High Court decision, urging thal the evidence adduced was enough to sustain both convictions.

The evidence relied on was completely circumstantial. We are C able to say at the outset that it was clearly good enough and reliable

evidence. We respectfully think that the learned trial judge arrived at a reasonable conclusion.

The evidence was thal the two appellants were constant companions. A paramour of the appellant Kitogcle, P.W.9 Isabela

D Luwungo, testifies to this. She was supported by P.W.2 Dr. Elius Mwakalobo, ihe other appellant’s sister’s husband.

During the material night P.W.2 was called to Tosamaganga Hospital where he was working as a doctor, to go and help fellow doctors altend the two watchmen who had been badly wounded. At

E that time his brother-in-law, the appellant Nzalalila. who had come out of prison that year, was staying with P. W.3 Leokadia Nzalalila. heard her brother, the second appellant, cry out that he had been hurt by bandits. An inspection of the premises later the same night did not convince the several people there lhat the second appellant

F had really got the injuries at the premises. The second appellant’s story that the bandits had escaped.

There was anolher piece of evidence the learned trial judge mentioned both in his summing-up to the assessors and in his resume of the evidence in Ihe course of his judgment but which he did not

G express an opinion on. We have in mind the testimony of P.W.4 Alfonce Kimotuo according to which very late al night on 8/9/83 the second appellant and another person who took great pains to hide his identity wenl to his house wanting to hire his Pick-up,^Ftie second appellant said he wanted to go to Cheraheni to collect a 1

H motor from there. P.W.4 suspected thal the item would be stolen property, so he refused. Two days later P.W.4 reported the incident to PW.6, the brother il will be remembered, and P.W.6 told him that a huge welding machine, called an electric molor by some people, had been stolen on 8th September, 1983, that is the same

I night the second appellant asked for transport from P.W.4, but that it had been carried a distance of about nine metres only, to Ruaha

PJ.KITOGOLE & ANOTHER u REPUBLIC (Makame, J.A) 55

Bridge, and abandoned there. Incidentally we learn from P.W.2’s A evidence that the place the murders were committed is also called Cheraheni and from the testimony of P.W.6 we realize that the .‘motor’ and the planes were stolen from one and the same workshop, the scene of the two murders.

It is our view that the trial court should have felt entitled to, B and we do, take the foregoing as one additional circumstance as far as the second appellant was concerned. 11 showed not only the second appellant's propensity but established that he had been at the same scene of crimc, al night, six days previously, only that his efforts had been frustrated by his failure to sccure transport. C

We are fully satisfied that from the various circumstances it was eminently proper to come to the conclusion that the second appellant must have been one of the persons who went to steal from the workshop al Tosamaganga Mission and maliciously killed the two watchmen in the process. His conviction was sound and we D accordingly dismiss his appeal.

Mr. Mwangole before us pursued the line taken by his other client at the trial as to how he got injured that is the Kihesa adultery story. He submitted that ihe first appellant trot injured some-ten^ days afteFxhe killings so his w:ounds had nothing to Hn with thp alleged offences. Learned Counsel further urged that in any event, even if the first appellant told lies about how he got injured, that does not mean that he was one of the killers.

We have seriously considered the evidence against the first appellant Protas Kitogeie. We wish to say, in all candour, that the F evidence against his co-accused was a great deal stronger than that against him. We hasten to add. however, that we do not at all intend, by making that observation, to mean that the evidence against Kitogeie was weak, or that it was not strong enough to ground a conviction. We are, on the contrary, fully satisfied that the G circumstantial evidence against him was enough to lead to the irresistihle conclusion that he was one of the killers. There was first the evidence of constant companionship with the second appellant. There was also the testimony of the first appellant’s own lover that at the funeral, which was on the morrow’ of the killings, she saw the H first appellant wearing a long-sleeved shirt and coat for the first time. There was also the evidence by the same witness that four days later when she visited the first appellant al his house and he inadvertently revealed that he had a bandage on his arm he told the witness on being asked by her, that he had been burnt by a kerosene I cooker. Then he changed his story and said he had been cul with a

56 TANZANIA LAW REPORTS 1I992|T.L.R

A knife by someone with whom he had quarrelled. The appellant added that he had turned down advice that he should go to a Government Hospital for treatment and that he had decided to treat himself at home. The .appellant also threatened to kill the woman jf ■-he p.mn. disclosetTthat hFTiad a large wound. During the investigation, and

B at the trial, this appellant must have appreciated the dire consequences that might befall him if proved to have been involved in the crimes. We have first asked ourselves: would a person so seriously cut, with two wounds infact - one on the left shoulder and the one seen'by P.W.9 on the right arm. have stayed from hospital

C treatment merely because he had been surprised preparing to commit adoltery with someone’s wife? Faced now with a possible murder case, would he have declined to show Sgt. Kasian, P.W .l, the investigating officer, the location of the house he had intended to fornicate in, and had got so severely injured? He would have at

D least tried to lead P.W.l to the house as the incident imaginary in our view, had taken place at about 4.30 in the afternoon. Also it cannot be true that the first appellant got injured on 25th September, 1983, that is a good ten days after the killings. P.W.9 was clear that she discovered only four days after the funeral that the first appellant

E had a cut wound which already was not fresh then. That would be 19th or 20th September. We are unable to entertain what would be fanciful doubt about the first appellant's guilt. We are satisfied that* he too was justly convicted.

F Appeal dismissed.

Kisanga, J.A: I have had the advantage of reading in draft the judgment of Makame and Omar, JJ.A. upholding the conviction

G of both appellants for murder and the sentence of death passed by the High Court (Chua, J.). The facts of the case are sufficiently apparent from that judgment and I need not repeat them here.

I agree that the case against both appellants was pased wholly on circumstantial evidence. I also agree that such circumstantial

H evidence as adduced against the appellant Wilbert Nzalaliza was sufficient to ground his conviction. The pieces of circumstantial evidence tending to implicate him and the inferences to be drawn from them are as follows. After the two deceased watchmen had been tatally wounded, this appellant was found at the home of P.W.2,

I where he was staying, with a big fresh cut wound which was bleeding, and a trail of blood wax traced from there right up to the

P.J.KITOGOLE & ANOTHER v. REPUBLIC (Kisanga. J.A) 57

carpentry workshop at Tosamaganga Mission where the murders- £ werecom milled. The appellant's explanation that the cut wound was inflicted on him by bandits who had invaded the home of P.W.2, his host and brother-in-law, was obviously bogus because there was no evidence of any breaking or entry by strangers into the room where the appellant claims he was attacked or into any part of B P.W.2’s premises. Thus the fact that only shortly after the murders were committed, the appellant was found with a big cut wound, that a trail o f blood was traced from where he was found to the scene of the murders were incriminating circumstances which lead to the only reasonable inference that the appellant took part in the C murders. And the fact that the appellant gave a false ground of how he sustained the injury goes to strengthen this view.

On the fateful night some fourteen carpentry planes were stolen from the workshop, and about six days later the appellant told P.W.5. a relative, that lie had carpentry planes for sale but D cautioned him not to disclose this toanvone because a theft of carpentry planes had taken place at Tosamaganga. The only reasonable conclusion to be draw'nfTdfeTS'thiH the appellant must have taken part in stealing the planes from the workshop and in murdering the two watchmen in the process; and his caution to P.W.5 was necessarily calculated to protect him from detection.

Again iust,ahmiL^ix da vs prior to the commission o f the murders, the same workshop-hadbeen_broken into and aw eldinn | m^chine.~aTstncnown as an electric motor, was stolenTrom there luit was later found abandoncd^MnVabounnrie metres away. The F appellant was connected with the theft because in the dead of that same night he had approached P.W.4 and asked him for a motor vehicle to transport a motor from the workshop, but sensing that the said motor was stolen he (P.W.4) refused to oblige. Once again the only reasonable inference to be drawn here is that the appellant went G to the workshop again to carry out theft which he had attempted unsuccessfully on the previous occasion and that in the process he committed the murders.

The various conclusions of inferences drawn from the inculpatory facts point irresistibly to the appellant as being a H participant in the criminal activity which resulted in the murder of the two watchmen in the workshop at Tosamaganga Mission on the fateful night. The appellant’s conviction, therefore, was amply justified.

Turning now to the appellant Protas John Kitogele, however, 1 I find myself unable to agree with the majority judgment. My view

58 TANZANIA LAW REPORTS [19921 T.L.R

A is thal the facts do not meet the test for convicting on circumstantial evidence as was laid down by the Court of Appeal for Eastern Africa in the case of R. v. Kipkering arap Koske and Another (1949) 16 E.A.C.A. 135, and followed by this Court in a number of subsequent decisions. Briefly stated the test is that in order to justify the inference

B of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of the inference from the facts to the exclusion of any reasonable hypothesis of innocence is

C on the prosecution and it never shifts.The pieccs of circumstantial evidence adduced as tending to

implicate this appellant are as follows: First, there was the evidence of the appellant’s companionship with his co-appellant Wilbert whose conviction we have upheld. The evidence on this appeal was

D given by two witnesses. The appellant’s own gir! friend (P.W.9) ^ who at the material time was doing (he work of selling pombe said:

The two accused used to walk together and come to the pombe shop together. They appeared to be friends because they were

E always together.

This is supported by P.W.2 who said:

1 have known the first accused (present appellant) for a very F short period ... I came to know the first accused in drinking

places. At first the first accused used to come alone. Nearer the dates when the events occurred the two accused used to come to the drinking places together.

G The first question to determine is this: Are the witnesses sayingthat both appellants were always together when they went to the pombe shop or are they saying that they were together at all times? It seems plain to me that neither witness could meaningfully be saying that the appellants were together at all times, for the simple

H reason that the witnesses themselves were not with the appellants at all times. For instance when P.W.9 was at the pombe shop selling pombe she would not know what company the appellant was keeping before his coming to the pombe shop. What is more, the appellant Wilbert whose case we have already deal with, used to frequent the

I home of P.W.2 and. indeed on the night of the murders the appellant was spending the night there. But it is significant that neither P.W.2

PJ.KITOGOLE & ANOTHER v. REPUBLIC (Kisanga, J.A) 59

nor P.W.3, his wife, suggested that they saw the appellant Protas at A their home. In other words, if both appellants were together at all times P.W.2 and his wife P.W.3 would have seen them together during the frequent visits by the appellant Wilbert at their home, and they would have said so. But on the contrary P.W.2 merely testified that he saw both appellants together at pombe shops, while B P.W.3, his wife, makes no mention at all of the appellant Protas.

On the evidence, therefore, all one can confidently say is that both appellants used to go to the pombe shop or pombe shops together, and the question is whether that fact was sufficient from which lo draw the inference that Protas must have also accompanied C his co-appellant Wilbert to the workshop on the fateful night and there, together with Wilbert committed the murders. For my part, 1 could not answer that question in the affirmative. For one thing, there was no evidence whatsoever that both appellants were seen together anywhere, let alone at the scene of crime, on the day of the Dincident. Further-more when P.W.2 parted with the appellant Wilbert on the materia] night and the latter went to sleep in P.W.2’s back house. Wilbert was alone and not accompanied by the appellant Protas.

Thus on the evidence there were times when both appellants E were not together. Both appellants were not seen together anywhere on the day of the murders. On the other hand in the evening of the night of the incident, the appellant Wilbert was alone at the home of P.W.2 until bed time. In the face of such evidence I could not reasonably conclude that some how the appellant Protas must have Faccompanied Wilbert to the scene of crime that night. To my mind such conclusion would merely amount to speculation. The fact of Protas’s companionship with Wilbert to pombe shops is capable of an innocent explanation in that Protas may have kept such company only when going to drinking places but not during criminal ventures G by his companion.

The next set of facts tending to implicate the appellant Protas with the murders was also given by P.W.9, his girl friend. She said in effect that five to six days following the murders, she visited the appellant’s home where she noticed the appellant with a big cut H wound on his lower arm; the wound was not fresh. After giving on inconsistent account of how he had sustained the wound, the appellant then threatened to kill her is she told people about the wound. She went on to say that before the murders, the appellant used to put on T-shirts but that after the murders he used to put on Ilong sleeved shin and a big coat which, according to the prosecution.

60 TANZANIA LAW REPORTS [1992] T.L.R

A was designed to hide the wound. At the trial the appellant claimed that he sustained the cut wound at Kihesa in Iringa town when he was trying to commit adultery with someone’s wife.

I find that the appellant sustained a cut wound on his lower arm, and I am prepared lo find further that he has nol given a true

B account of how he sustained that wound. The question that follows is: What nexus is there between his cut wound and the murders in the workshop at Tosamaganga Mission? Is there material to warrant the inference that I he appellant must have sustained the injury in the course of committing the theft and murders at the workshop? I

C could find no justification for drawing any such inference myself. In the first place on the evidence it is not established when the appellant sustained the wound. When P.W.9 noticed it five or six days after the murders, the wound was not fresh. But can one conclude that it was necessarily inflicted on the day of the murders

D and at the workshop? Relying on the evidence of P.w.9 the prosecution takes the view that after the murders were committed, the appellant used to put on long sleeved shirt and a big coat in order to conceal his injury. But there is no evidence that P.W.9 used to see the appellant every day. Nor does P.W.9 say when she

E saw the appellant last before the murders were committed. In the absence of any such evidence it is impossible lo know when the appellant began lo put on that kind of attire. He might have started putting it on one day or two days, when P.W.9 might not have seen him, before the commission of the murders, in which case if he was

F hiding a cut wound it would be a cut wound sustained elsewhere, and unconnected with the incident at the workshop. But even assuming that the appellant started putting on this type of attire on the day following the murders, that would nol be sufficient from which to conclude that he was trying to hide an injury which he had

G sustained during the incident at the workshop. For he could have sustained the cut wound elsewhere in the commission of some other wrong, and it would be in his interest to hide it. and even to threaten P.W.9’s life against the disclosure of it, in order to avoid detection. In other words, the fact that the appellant had sustained a cut wound

H on a certain day which wound according to the prosecution he was hiding cannot justify drawing the only reasonable inference that the appellant sustained that wound during the commission of the murders at the workshop on the night in question. As has just been demonstrated, that fact can be explained on another reasonable

I hypothesis, namely, that the injury could have been sustained

PJ.KITOGOLE & ANOTHER u REPUBLIC (Kisanga .J.A) 61

elsewhere and the appellant would have reason to conceal it in order A to avoid detection.

The fact that the appellant has not given a true account of how he sustained the cut wound would be relevant only if there was evidence which implicates the appellant sufficiently with the offenses charged. In the case of Fyaralal M.Rassan and Another v. B R. [I960] E.A. 854 the Court of Appeal for Eastern Africa, dealing with a similar situation, said:

It is quite plain that false statements made by an accused person do not have substantive inculpatory effect and cannot be used C as a make-weight to support other material, unless the other material would be sufficient independently to sustain a verdict against the accused.

In the instant case the fact that the appellant had sustained a cut D wound and that he tried to hide it by dressing differently and by uttering threats to P.W.9 against disclosure of it does not necessarily connect him with the murders at the workshop because, as demonstrated earlier these facts can be explained. On another reasonable hypothesis; the appellant could have sustained the injury E in the course of committing some other wrong and it would be injury his interest to try to hide it in order to avoid being delected. Quite clearly the facts which do not necessary connect the appellant with the offenses charged could not be relied upon to sustain his conviction for those offenses. Consequently in terms of Bassan’s F case above cited the appellant’s false account of how he sustained the cut wound could not be used to support what may only be described as a weak prosecution case. To attach any importance to the appellant’s giving a false account of how he sustained the injury and to his subsequent attempt to conceal the injure, and then to G proceed to convict him would, in the circumstances of this case, amount to basing conviction on the weakness of the defence rather than on the strength of the prosecution case.

In the last analysis my view is that each of the inculpatory facts or set of inculpatory facts adduced against the appellant Protas, H considered singly does not justify the drawing of the inference that the appellant committed the murders in question. Likewise when considered together they could not justify the drawing of such inference for the simple reason that it is not possible to add nothing to nothing and get something. In other words the inculpatory facts" I"whether taken individually or collectively, do not point irresistibly

62 TANZANIA LAW REPORTS | 1992] T.L.R

A to the appellant as a participant in the offenses charged.It is for these reasons I concur that the appeal by Wilbert has no

merit and should be dismissed but would have allowed the appeal by Protas.

B Order accordingly.

C AUGUSTER SALANJE v. MUSSA MOHAMED PEMBA[COURT OF APPEAL OF TANZANIA (Makame, J.A.)]

22 April 1992 - DAR ES SALAAM

D Civil Practice and Procedure - Jurisdiction - Application fo r leave to appeal to Court o f Appeal under section 5(2)(c) Appellate Jurisdiction Act, 1979 - Whether Court o f Appeal has concurrent jurisdiction with High Court.

Family law - Appeals - From High Court to Court o f Appeal - On E point o f law or mixed law and fact - Whether leave to appeal is

a pre-requisite - Section 80(4) Law o f Marriage Act, 1971.

This was a second application for leave to appeal to the Court of Appeal of Tanzania made to a single judge of the Court of Appeal

F after the High Court judge had refused the application. The Court of Appeal judge considered the propriety of filing the second application and what section 80(4) of the Law of Marriage Act, 1971 provides.

G Held: (i) Under section 5(2)(c) of the Appellate Jurisdiction Act, 1979, no appeal shall lie to the Court of Appeal if the matter started in the Primary Court unless the High Court certifies that a point of law (or, by necessary extension, a point of mixed law and fact) is involved;

H (ii) only the High Court may so certify - there is no concurrentjurisdiction like that under section 5( 1 ){c);

(iii) what has been introduced by section 80(4) of the Law of Marriage'Act is the dimension that even on a ground of mixed law and fact a person may appeal to the Court of Appeal. It is in that

I sense less restrictive, but I do not read that to mean that one may automatically come up. It would still have to be determined whether

A . SALANJE v. M..M.PEMBA (Makame, J.A,} 63

there w as a point of law or mixed law and fact, and only the High A Court has power to identify such a point in the first instance;

(iv ) the applicant could only come up by way of appeal to the full court against the order refusing to grant leave and not by way of a second application to a single judge.

BApplication misconceived and dismissed.

Kisusi, fo r the applicant.

M a k a m e , J.A .: The appellant Auguster Samanje was C advocated for by Mr. Kisusi, learned Counsel, while the respondent, Mussa M oham ed Pemba, who did not wish to be present, was unrepresented.

The appellant successfully sued for diverseJn the Primary Court. It w as also decided by the Primary Court that the applicant D should g e t 50% of all the matrimonial assets, and the respondent’s appeal against that decision was dismissed by the District Court.On further appeal to the High Court, it was decided that the applicant should get only a small portion of the matrimonial assets, not 50% as o rdered by the two courts below, Maina, J. who made that E decision, la te r heard the present applicant’s application for leave to appeal to the Court of Appeal and refused to grant such leave. He said that he had made the variation because of the undisputed fact that the present applicant’s contribution to the acquisition of the m atrim onial assets was less than that by her former husband, the F respondent. The learned judge refused leave on the basis that there was no question of law involved, a pre-requisite under section 4(2)(c) (Sic) o f the Appellate Jurisdiction Act, 1979.

The applicant contended that she contributed services and money even towards the improvement of the property she found G the respondent with, and that this should have been taken into account by the High Court in terms of section 114.

Mr. Kisusi also argued that in basing himself on section 4(2)(c) o f the Appellate Jurisdiction Act the learned judge overlooked section 80(4) of the Law of Marriage Act 1971, which says: H

.... A ny person aggrieved by a decision or order of the High Court in its appellate jurisdiction may appeal therefrom to the C ourt of Appeal (for East Africa) on any ground of law or mixed law and fact. I

64 TANZ AN 1A LAW REPORTS [1992] T.L.R

A Counsel submitted that Maina. J. was not entitled to upset theconcurrent award by the two courts below.

I decided to set out the foregoing by way of background only, as it will soon be clear.

Reference to Section 4 of the Appellate Jurisdiction Act by B the learned High Court judge was obviously lapsus calami, and by

learned Counsel lapsus linguae. The old section 4, which would have been the relevant one, became the current section 5 when Act No. 16 of 1984 was passed. The intended section was therefore section 5(2) (c) and it is about that I now wish to say something.

C The High Court Ruling was delivered on 20th February, 1990.This matter started in the Primary Court. Under section 5(2)

(c) no appeal shall lie to the Court of Appeal if the matter started in the Primary Court unless the High Court certifies that point of law (or, by necessary extension, a point of mixed law and fact) is

D involved. Only the High Court may so certify - there is no concurrent jurisdiction like under section 5( I )(c). Section 5( f )(c) is excluded by section 5 (2) which applies “Notwithstanding the provisions of subsection (1)...”

What has been introduced by section 80(4) of the Law of E Marriage Act is the dimension that even on a ground of mixed law

and fact a person may appeal to the Court of Appeal. It is in that sen.se less restrictive, but I do not read that to mean that one may automatically come up. U would still have to be determined whether there was a point of law or mixed law and fact, and only the High

F Court has power to identify such a point in the first instance.The implication must be that that the applicant could only

come up by way of appeal to the full court against the order refusing to grant leave, and not by way of a second application to the single judge. It follows therefore that the application before me is

G misconceived and it is hereby accordingly dismissed. The applicant may wish to pursue matter elsehow as the substantive merit of his effort is not determined by the present decision.

Order accordingly.H ___________________

BUSHIRI AMIRI v. REPUBLIC <Mroso,J.) 65

BUSHIRI AMIRI v. REPUBLIC A[HIGH COURT OF TANZANIA (Mroso, J.)]

April 28, 1992 - ARUSHA

Evidence - Identification - Description o f suspect - Significance. B Evidence - Corroboration - Evidence o f co-accused - To be treated

as that o f an accomplice.

The appellant and another were prosecuted and convicted Cor cattle theft and sentenced each to eight year imprisonment. The appellant C alone appealed against both conviction and sentence. The two witnesses who testified against him had not given a detailed description of lhe appellant before his arrest and before they had a chance of seeing him. He also charged that his co-accused evidence was given much weight in arriving at his conviction. D

H eld: (i) The two witnesses ought to have given a detailed description of the appellant to the persons to whom they first reported about the theft before they had a chance of seeing the appellant after he was arrested; the description would be on say appearance, E colour, height and on any peculiar mark of identity;

(ii) in every case in which there is a question as to the identity of the accused the fact of there having been a description given and the terms of that description given are matters of the highest importance of whichjevidence ought always to be given; first of all, F of course, by the person or persons who gave the description and purport to, identify the accused, and then by the person or personsto whom the description was given - Rex v. Mohamed bin AUui (1942) 19 E.A.C.A. 72.

(iii) the evidence of a co-accused is on the same fooling as G that, of an accomplice, lhat is it is admissible but must be treated with caution and, as a m atter o f prudence, would require corroboration;

(iv) it would be unsafe to found a conviction of the appellanton the uncorroborated evidence of the co-accused. H

Appeal allowed.

Shayo (Junior), for the appellantMwaimu. for the respondent I

66 TANZANIA LAW REPORTS* [ 1992] T.L.R

A M roso, J .: The appellant and another were prosecuted andconvicted for cattle theft, contrary to section 268 and 265 of the Penal Code. They were each sentenced to eight years imprisonment. The appellant, but not the other accused person, felt aggrieved by the conviction and sentence and. therefore, has appealed to this court

B through his advocates M/S Shayo, Jonathan and Company. Six grounds of appeal were filed and Mr. Shayo, Junior, learned advocate, argued the appeal before me.

The brief facts on which the District Court of Hai convicted the appellant are as follows. At about noon on 27/12/89, at

C Bomang’ombe, two young men. P.W.l - Ally Mohamed aged 16 years and P.W.4 - Twalili Abdi aged 14 years, were grazing cattle27 head of cattle and 7 goats in the pastures. Two people approached them, beat them up, and stole all the animals which were being grazed. The two young men were forced to accompany the cattle

D raiders but, later in the evening, they managed to escape from them. About three days later a village search party which included P.W.6- Mayaha Lesekoni, recovered all the stolen cattle from the boma of the first accused (in the trial court) in Kiteto District. The first accused was also immediately arrested after the cattle were

E recovered. The first accused named the appellant as a co-participant in the theft of the cattle. That led to the arrest of the appellant.

At the trial P.W.l said that appellant was one of the cattle raiders, that he had put on a militia uniform and held a shotgun. The same evidence was given by P.W.4. P.w.6 told the trial court

F that the first accused implicated the appellant. The first accused admitted in court when he was being cross-examined by the appellant that he had indeed named him as a participant in the cattle theft. The appellant himself during his defence said he had been a militia man and attempted to denial of the charge against him. He merely

G said that his village, apparently Sanya Station, had been raided on the night of 26/12/89, which should be the night before the day for the cattle theft, and that he was one of the persons who the village chairman had instructed to patrol the village. He was arrested on 2/ 1/90.

H The trial magistrate held that P.W. 1 and P.W.4 had reliablyidentified the appellant as one of the cattle raiders because they had ample time to mark their appearance unmistakenly. It is not however apparent from the judgment if the trial magistrate made use of the claim by the first accused to the arresting party that the appellant

I participated in the cattle theft.

BUSH1RI AMIRI v. REPUBLIC (Mroso, J.) 67

In the first ground of appeal it was argued that the trial A magistrate erred in taw and in fact in not considering the defence evidence of the appellant. It is true the trial magistrate did not comment on the evidence of the appellant in his defence, but I can find nothing helpful to the appellant in his defence evidence. As I mentioned earlier in this judgment, he made no attempt to expressly B deny the chargc of cattle theft which was facing him.

It was also argued that since the prosecution did not cross- examine the appellant on what he said in his defence evidence, it must be taken that the defence evidence was accepted as correct and true. With respect to the learned counsel for the appellant, was C there anything worth cross-examining on? It seems to me that apart from mentioning the date he was arrested, the appellant did not say anything during his defence which was relevant to the charge against him.

He talked about being instructed by his village chairman D during the night of 26/12/89. The cattle theft occurred at noon on 27/12/89. He said nothing about what he did or where he was on 27/12/89.

In the third ground of appeal it was argued that the trial magistrate grossly erred in not considering the issue of identification. E The trial magistrate in fact appears to have considered the question of identification of the appellant and the first accused but. certainly, not adequately.

I would agree that it was not enough for PW .l and P.W.4 to tell the trial court that the appellant had put on a militia uniform F and carried a shotgun, even though the appellant admitted in his evidence he had trained as a militiaman. There ought to have been evidence that the two witnesses gave a detailed description of the appellant to the persons to whom they first reported about the theft, before they had a chance of seeing the appellant after he was arrested. G The description would be on say appearance, colour, height and on any peculiar mark of identity.

The great significance of evidence of description of a suspect was underscored as long ago as 1942 in the Court of Appeal for Eastern Africa judgment in Rex v. Mohamed Bin Allui (1942) 19 HE.A.C.A. 72 cited to me by Mr. Shayo, where the Court said:

This Court has previously pointed out. and we wish to repeat, that in every case in which there is a question as to the identity of the accused, the fact of there having been a description Igiven and the terms of that description are matters of the

68 TANZANIA LAW REPORTS [ 1992] T.L.R

A highest importance of which evidence ought always to be given; first of all, of course, by the person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given .......

BIf the description is recorded at the time in an Occurrence Book, Diary or in any other form of writing such book or writing should be put in evidence, if admissible ...

C In the case under discussion, the only evidence of description of the appellant was that he wore a militia uniform and carried a gun. That kind o f evidence does not help in identifying the appellant unmistakenly.

The third ground of appeal is not justified. It is complained D that the trial magistrate grossly erred in believing that the first

accused mentioned the second accused (appellant) "without any evidence to that effect”. I can see no reason why the trial magistrate should not have believed that the first accused mentioned the appellant as a participant in the cattle theft. The first accused

E admitted as much in court under cross-examination by the appellant, thus confirming the evidence of P.W.6. But as said earlier in this judgment, there is no clear indication from the judgment that the trial magistrate relied on that evidence of P. W.6 and the first accuscd in convicting the appellant.

F I think it is well accepted that the evidence of a co-accused ison the same footing as that of an accomplice, that it is admissible but must be treated with caution and, as a matter of prudence, would require corroboration.

In Omari J. Ki ban ike and 40 others v. R. Criminal Appeal G No. 224/75 (DSM High Court Registry) the late Biron, J. said:

Where at a trial an accused opts to give evidence on oath and in such evidence he incriminates a fellow accused, such evidence is admissible against the other, though it cannot be

H treated otherwise than as evidence of an accomplice andtherefore requiring corroboration in practice though not in law, vide section 142 of the Evidence Act, 1967.

Mapigano. J. echoed that view in - Ibrahim Daniel Shayo r. R. I Criminal Appeal No. 10 of 1990 (DSM High Court Registry)

unreported, where he said:

BUSHIRI AM IRI v. REPUBLIC (Mroso, J.) 69

Where an accused person gives evidence on oath in a joint A trial implicating another accused (even if not a confession), whether or not he implicates himself, it may be used against that other accused, because that evidence is on the same footing as that of any other witness, though as a matter of prudence it must be approached with caution. B

In the case under appeal before me, the first accused implicated the appellant by saying under cross-examination from the appellant, that he had said they were together when committing the cattle theft.The first accused did not, as suggested by the trial magistrate in his C judgment, repudiate or retract or qualify the claim that they committed the crime together. But should the court rely on the word of the first accused alone to convict the appellant?

It is my judgment that it will be unsafe to found a conviction of the appellant on the evidence of the first accused. There are two D reasons for this view. First, bccause of the time honoured practice of the courts that the evidence of a co-accused, who is treated as an accomplice, should require corroboration. Second, the first accused when giving his evidence in chief did not implicate the appellant. He only did so under cross-examination. This, to me, casts a shadow of E doubt on the truthfulness of his claim and enhances the need for corroborative evidence. Because of the weakness of the evidence of identification given by P. W. J and P.w.4,1 am unable to consider it as good corroborative evidence. It follows that the trial court would not have been on safe ground to convict the appellant on the basis of F the evidence of the first accused.

Ground six of the petition of appeal criticized the judgment for wanting in legal (judicial) reasoning. 1 would agree right away. After summarizing the evidence at some length, the trial magistrate spent only 10 lines of the two page typed judgment to explain why G he found the appellant guilty as charged. The only reason he found the appellant guilty was that he was satisfied P.W. 1 and P.W.4 upmistakenly identified the appellant, because “they had ample time of marking their assailan ts” . But he never considered the shortcomings which I highlighted above such as their failure to give a H description of the appellant before he was arrested or the failure of the investigating officers to mount an identification parade. In fact the impression one gets from the recorded evidence is that the appellant was arrested solely because the first accused had named him. 1

70 TANZANIA LAW REPORTS 11992) T.L.R

A Earlier in this judgment 1 said thal the appellant had not madea clear denial of the offence. For that reason, the appellant had practically no defence for the offence charged. But despite that weakness he could not be convicted on that basis for an accused who had pleaded not guilty to a charge can only be convicted on the

B strength of the prosecution evidence against him and not because of his weak or worthless defence.

In this appeal the learned State Attorney for the Respondent Republic did not seek to support the conviction. I have come to the same view that it will not be safe to uphold the conviction. It follows

C that I am allowing the appeal by quashing the conv iction and setting aside the sentence which was imposed on him. He is to be set free forthwith unless he is held for some other lawful cause.

Appeal allowed.D ---------------------------

JOSEPH MAWETA v. LEKITETYI KARASI [HIGH COURT OF TANZANIA (Maina. J.)]

E29 April 1992 - DODOMA

Criminal Practice and Procedure - Trial - Services o f an intepreter- Necessary where the accused does not know the language o f

F the court.

This is an appeal by the appellant against the decision of the District Court of Dodoma which perused the original proceedings in Haneti Primary Court and ordered the retrial of the respondent on the ground

G that the respondent did not get a fair trial.

Held: (i) Conducting trial against the respondent, who did not know Kiswahili, without the assistance of an intepreter was an un-incurable irregularity;

H (ii) the respondent was not given a fair trial.

Appeal dismissed.

M aina, J .: The appellant was the complainant before the I primary court at Haneti in which the respondent was charged with

assault causing actual bodily harm contrary to section 214 of the

JOSEPH MAWETA v. LEKITETYI KARAS I (Maina. J.) 71

Penal Code. The Primary Court acquitted the respondent. The A appellant was dissatisfied and he appealed to the District Court at Dodoma. The District Court quashed the proceedings before the Primary Court and ordered a retrial. This appeal is against the decision of the District Court.

The learned senior district magistrate declared the proceedings B before the Primary Court a nullity on the ground that the respondent, who was the accused person, did not get a fair trial. The proceedings were conducted in Kiswahili language which the respondent did not understand. I may hasten to add that the trial Primary Court magistrate found the respondent guilty of the offence charged, but C the two assessors who sal with him found him not guilty. I have also to point out, like the learned senior district magistrate did, that interpreter who was present when the charge was read over to the respondent, does not appear to have been sworn or affirmed as required by section 26(2) of the Primary Courts Criminal Procedure D Code. It is not clear whether the interpreter appeared only when the plea was taken on 11 May 1988.

The evidence was recorded on 11 May 1988 when witnesses gave evidence for the prosecution, and there is no indication whatsoever whether the interpreter was affirmed or sworn. Similarly, E when the trial proceeded on 13 and 14 May, 1988, there is no indication anywhere in the record whether there was an interpreter present. If the interpreter was present on 11 May 1988 when the charge was read over to the respondent, as the record shown, that interpreter was not sworn or affirmed. That was an irregularity. When F the trial proceeded on 13 and 14 May 1988, there is no indication that there was an interpreter. Again, that was an irregularity. These irregularities are incurable. The respondent was not given a fair trial. The learned Senior District Magistrate properly quashed those proceedings before the trial primary court an ordered a retrial. I G must add that the retrial should be before another magistrate of competent jurisdiction.

Having found that the proceedings were a nullity, it is not necessary to consider whether or not there was sufficient evidence to convict the respondent, That will have to be considered by the H primary court when the retrial is held. I do not wish to comment on the evidence because anything which I may say on the evidence will prejudice the primary court which will hold the retrial.

Appeal dismissed. I

TANZANIA LAW REPORTS [ 19921 T.L.R

72CLAY LAWAY v. REPUBLIC

[COURT OF APPEAL OF TANZANIA A (Omar. Ramadhani and Mnzavas. JJ.A.)]

May 13 1992 - ARUSHA

j jaw - Murder - Self-defence - Whether killing on suspicion B been poisoned constitutes se lf defence.

killed a person. In hisdcfence he said he killed because The had g'lven him poisoned milk. The High Courth » him of murder. On appeal the Court considered whether

^ self-defence was available to the appellant.a « lv , .n v the P plea of self-defence cannot by any stretch of imagination jij.lci: to the appellant. Was the appellant by hacking the

apl- '[ t|e fending himself from further poisoning'?

APPe°*ifi' the appellant.

c n u i i i1' | t>r the respondent.

itar, Ram adhani and Mnzavas, JJ.A .: The appellant Clay charged with and convicted of the offence of murder

I 10 sect*on ^ 6 of the Penal Code. It is the prosecution. ,ntrjl . that the appellant was on 19/9/89 at about 6 p.m. in the

his step brother called Akweso. Members of the family l'i just returned from the fields where they had been cultivating

j onions, and others like Akweso’s two daughters Martha ll!.jstina had been to the Cattle Market, were all in this

j £ ^ 7 in the presence of the members of the family, the appellant hou^*’ IV an hour previously had been with them looking at who lT,1„,phs of the family members, and had gone out of the house

jll>l0 ^ l‘J.ned. suddenly started attacking Suzana, the deceased who P j r^ 'jy ife of Akweso. He struck her with a panga on the back of an <h- ■ ’ * ■ ' -*

H

j- th1-* (1ie when their mother was killed. They said that there had theif (juarrel at any time that day between the appellant and anybet*'1 '^ o f th e family,

iii^ '

CLAY LAWAY v. REPUBLIC {Omar, J.A) 73

In his defence the appellant stated thus: A

At 5 p.m. on 19/9/89 I came from working in my shamba. I went to the home of deceased. She was at home with her young children. She gave me milk which was poisoned. I got drunk and I killed her while in a state of dizziness and confusion. I B took a panga which was in the house of deceased and I attacked deceased, killing her ... I used to drink but 1 suffered stomachache and I slopped. After killing deceased I ran away bccause 1 became frightened.

CAppellant tendered Hospital Discharge Certificate as Exhibit D, I which showed that he was admitted in hospital on 22/9/89 and discharged three days later on 25/9/89.

Going through the evidence we find that none of the prosecution witnesses had mentioned about seeing the appellant D being given milk by the deceased on that material day. The learned trial judge was of the view that if at all appellant was found suffering from food poisoning then the poison must have been taken by him after he had attacked the deceased and had run away from the scene of crime, E

Mr. Ojare, the learned counsel for the appellant considered whether it is credible or supportable that appellant was given poisoned milk. He considered the time that witnesses gave of the family members’ return from their respective farms P.W.2 said 7 p.m., P.W.l said 6 p.m.. the appellant said 5 p.m. So Mr. Ojare F concluded that there was a sufficient timegap for the deceased to administer the poisoned milk. The solitary ground of appeal canvassed by the learned defence counsel is that he killed in self- defence but Mrs. Lyimo, learned state attorney for the prosecution said that this was not a case of self-defence or of provocation but of G mere revenge and she prayed for the appeal to be dismissed.

We are of the view that although there was a hospital discharge certificate showing that he was hospitalised for three days on the doctor’s diagnosis of poisoning, there is no sufficient evidence from either side to this case to show how this poison got into the H appellant's body and at what time in relation to the event. No doctor was called to clarify on this diagnosis which was on the discharge certificate. Furthermore the plea of self-defence cannot by any stretch of imagination be applicable to him. Was the appellant by hacking the deceased defending himself from further poisoning? The I appellant in his defence stated that he felt dizzy and confused after

74 TANZANIA LAW REPORTS | I992J T.L.R

A drinking poisoned milk and without knowing what he was doing hetook the panga which was in the house of the deceased and cut her on the neck. We cannot in these circumstances find any of the known defences available to the appellant. The story of poisoned milk is still not convincing nor does it raise any doubt in the prosecution

B case. If there are causes to this killing the members of the familyare not willing to divulge them, then the matter rests there, that the killing was senseless and motiveless. We therefore find that the appellant was properly convicted.

C Appeal dismissed.

D LUIHAM MARTIN v. JUMA SAID1[COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas, JJ.A.)[

13 May 1992 -ARUSHAE

A dm inistration o f Estates - Probate and A dm inistration - Subordinate c ourt discovers after hearing application that it has no jurisdiction - Moves High Court to exercise revisionai powers- High Court sets aside decision o f subordinate court~ Proceeds

F to hear the application though no fresh application was filed - Whether irregular.

Civil Practice and Procedure - Court o f Appeal Rules - High Court has exercised original jurisdiction - Whether leave must be sought and obtained in order to appeal to the Court o f Appeal.

GLetters of administration were initially granted to the respondent by the Moshi R.M.’s Court. Then the R.M.’s court realised that it lacked jurisdiction. So it invited the High Court to revise the proceedings.

H The High Court ruled that the R.M.’s court had no jurisdictionand set aside the grant in that cause. Then the High Court (D’Souza. Ag J .) proceeded to hear and determine the cause although no fresh application was before it. The appellant, aggrieved by the decision of the High Court applied for leave to appeal to the Court of Appeal.

I That application was heard by Mroso, J. who decided that no leave was required because D’Souza, Ag. J. was exercising original

LUIHAM MARTIN v. JU M A SAIDI (Mnzavas, J.A .) 75

jurisdiction. In the Court of Appeal arguments were heard on whether A the decision of Mroso, J. was right.

Held: (i) The procedure adopted by D’Souza, Ag.J. amply showed that the court decided to hear the case in its original jurisdiction.The framing of issues and the hearing of witnesses from both parties B did not, by any stretch of imagination, amount to revising the R.M.’s Court;

(ii) since the High Court (D‘Souza Ag. J.) heard the application in its original jurisdiction, in view of the provisions of section 52 of the Probate and Administration Ordinance, Cap. 445 and section C 5(t )(a) of the Appellate Jurisdiction Act, the High Court (Mroso,J.) was right in ruling that no leave was required for the appellant to appeal to the Court of Appeal.

Order accordingly. D

Mamma, for the appellant.Sang’ka, for the respondent.

Mnzavas, O m ari and Ram adhani, JJ.A .: When this appeal H came up for hearing the Court decided, with the consent of both learned counsel, that the question whether or not the High Court, (Mroso. J.), was right in his ruling in Misc. Application No. 95/91 dated 25/7/91 he argued first.

Mroso, J. Held in his ruling that the grant of letters of F administration to the respondent by the High Court, D’Souza, Ag.J., (as he then was) in what is referred to as Civil Revision No. 1/81 was not in exercise of the High Court’s revisional powers but that the High Court had granted letters of administration acting in its original jurisdiction. Having so held the learned judge concluded Gthat the appellant required no leave from the High Court to appeal to this Court.

Arguing against the ruling Mr. Maruma, learned counsel for the appellant, submitted that the High Court, (D’Souza, Ag. J.), was exercising his powers of revision when he granted letters of H administration to the respondent and that as such section 5( 1 )(c) of the Appellate Jurisdiction Act required the appellant to seek leave from the High Court before lodging an appeal to this Court.

Mr. Sang’ka, learned counsel for the respondent, on the other hand supported the ruling of Mroso, J., that no leave was required Ifrom the High Court before the appellant appealed to this Court. It

76 TANZANIA LAW REPORTS 11992] T.L.R

A was submitted that the High Court (D’Souza, Ag. J.) acted in its original jurisdiction and that under section 5( 1 )(a) for the Appellate Jurisdiction Act no leave was necessary.

In supporting of the argument that the High Court. (D’Souza. Ag. J.), acted in its original jurisdiction when it granted letters of

B adm inistration we were referred to pages 21 and 30 of the proceedings. The learned defence counsel also argued that proceedings under the Probate and Administration Ordinance are regulated by the Civil Procedure Code 1966 and referred the Court to section 52 of the Probate and Administration Ordinance.

C Our reading of the proceedings show that letters ofadministration were initially granted to the present respondent by the Moshi, R.M’s Court on 21.7.80. On 3/12/80 the R.M.’s Court realised that it lacked jurisdiction as the value of the estate was in excess of the R.M.’s jurisdiction and consequently wrote a letter to

D the High Court inviting it to revise the proceedings of the R.M’s Court.

On 4/1/85 the matter came before D’Souza. Ag. J., (as he then was). The present appellant was represented by Mr. Kapoor and Mr. Shayo appeared for the respondent.

ETwo issues were framed namely;

( I ) who is entitled to the estate of the late Mariam Hamisi?

F (2) who should administer the estate?

Thereupon Mr. Shayo, learned counsel for the respondent addressed the Court:

G “I pray to start", Mr. Kapoor obliged and replied “O.K.”

The court then heard witnesses from both parties and delivered its ruling in favour of the respondent. In its ruling the High Court said inter alia on page 39 of the proceedings:

... As the estate could by no means be termed a “small estate” under the provisions of Cap. 445 - section 6; the District Court Moshi obviously had no jurisdiction and the grant in that cause is accordingly set aside...

LUIHAM MARTIN v. JUMA SAIDI (Mnzavas, J.A.) 77

Mr. Maruma argued that the High Court (D’Souza, Ag. J.), A should have, (after setting aside the grant by the district court), asked the appellant/applicant to file a fresh application in the High Court and that it should not have resorted to framing issues in the absence of an application for letters of administration before the court.

Mr. Sang'ka conceded that the procedure followed by the High B Court was irregular but argued that the irregularity did not prejudice the interests of the parties and that the counsel for the parties consented to the procedure adopted by the court.

With respect to the learned counsel for the appellant the procedure adopted by D ’Souza, Ag. J. amply showed that the court C decided to hear the case in its original jurisdiction. The framing of issues and the hearing of witnesses from both parties did not, by any stretch of imagination, amount to revising the R.M.’s Court as Mr. Maruma would like us to believe. The fact that the R.M.’s court had no jurisdiction to grant letters of administration the proceedings D before that court were a nullity and hence their being set aside.

That it would have been neater for the High Court to ask the appellant to file a fresh application for letters of administration before proceeding to frame issues and determine as to who should be granted letters of administration there can be no doubt; but as rightly E argued by Mr. Sang’ka, learned counsel for the respondent, both counsel did not quarrel with the procedure adopted by the court and the parties were not prejudiced by the irregularity.

It is our considered view that the High Court (D'Souza, Ag.J., as he then was) heard the application for letters of administration F in its original jurisdiction. That being the position and in view of the provisions of section 52 of the Probate and Administration Ordinance, Cap. 445 and section 5 (1) (a) of the Appellate Jurisdiction Act the High Court, (Mroso, J.) was right in his ruling dated 25/7/91 that no leave was required for the appellant to appeal G to this Court. Cost to follow the event.

Order accordingly.

78 TANZANIA LAW REPORTS 11992| T.L.R

A MWANAHAWAMUYAu MWANAIDI MARO[COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas. JJ.A.)]

13 May 1992 - ARUSHAB

Administration o f Estates - Probate and Administration - Annulment o f grant o f letters o f administration - Concealment o f letter o f adm inistration granted by low er court - Effect o f such concealment.

C Civil Practice and Procedure - fievisional powers - Suo moto - When exercisable.

The appellant applied for and was granted letters of administration by the Resident Magistrates’ Court. In that court the respondent

D was the objector. Despite this grant the respondent filed a petition for letters of administration in the High Court in respect of the same estate. The respondent 'deposed in her petition that there had not been any proceedings for grant of probate or letters of administration regarding the estate. The High Court granted letters of administration

E to the respondent. D issatisfied with the grant of letters of administration to the respondent by the High Court, the appellant filed a civil application in the High Court challenging the grant of letters of administration to the present respondent and prayed that the grant of letters of administration to the respondent by the High

F Court be revoked. This civil application was heard by a different High Court judge who instead of addressing the issue invoked revisional power suo moto and declared the proceedings in the Resident Magistrates’ Court null and void.

The Court of Appeal considered whether the grant of letters G of administration by the High Court was valid. It also looked into

the propriety of invoking revisional jurisdiction suo moto by the High Court over the proceedings of the lower court.

Held: (i) Respondent’s blatant lies that there had not been previous H proceedings regarding grant of probate or letters of administration

while she was in fact the objector in the R.M.’s court when letters of administration were granted to the appellant, amply demonstrated that she was bent to defraud other interested parties in the estate. Had the High Court (Nchalla. J.) dealt with this issue he would no

1 doubt have found that this was a good reason to annual the grant of

M. MUYA u MWANAIDl MARO (Mnzavas. J.A.) 79

letters of administration to the respondent by the High Court (Chua, A J);

(ii) in a proper case the High Court can invoke its powers of revision in a grant of letters of administration by the District Court. Powers of revision are however usually exercised by the High Court m o moto when exercising its supervisory powers over subordinate B courts;

(iii) it is wrong, indeed improper, for the High Court to resort to its re visional powers where (as it was in this case) there are specific issues calling for determination by the court.

CAppeal upheld.

D ’Souza. for the appellant.Muhafane, for the respondent,

DM nzavas, O m ar and Ram adhani, JJ.A .: This is an appeal

against the decision of the High Court (Nohalla, J.), in Misc. H.C. Civil Application No. 161 of 1986 dated 26/1/90 in which the court held that the decision of the R.M.’s Court in Misc. Civil Application No. 51/81 granting letters of administration to the appellant/ E applicant. Mwanahawa Muya. was null and void.

Arguing in support of the appeal Mr. D'Souza, learned counsel for the appellant submitted that the High Court failed to consider the appellant’s application which was brought under the Probate and Administration Ordinance. Cap. 445 of the laws. It was the F learned counsel’s submission that the appellant’s application before the High Court was that in granting letters of administration of the estate of the deceased Al-Hadji Karama Maro, to the respondent, Mwanaidi Maro, in the Probate and Administration Cause No. 5/ 1986 the High Court, (Chua. J.) was misled in that the applicant, G now the respondent, failed to comply with Rules 32 and 71 and section 49 o f the Probate and Administration Ordinance. Mr. D’Souza also submitted that in his application for letters of Administration before the High Court, (Chua. J.), the respondent has misled the Court when she said that no proceedings for grant of H probate and/or letters of administration had been commenced before any court inside or outside Tanganyika. In support of this argument the court was referred to page 45 of the proceedings. According to Mr. D 'Souza’s submission instead of considering applicant’s application which was based on non-compliance with the provisions I of the Probate and Administration Ordinance, the High Court,

80 TANZANIA LAW REPORTS 11992] T.L.R

A (Nchalla. J.), dealt with the case as if it was an appeal and quashed the decision o f the R .M .’s Court which granted letters of Administration to the appellant; a matter which was not before him.

It was argued that if the respondent had been aggrieved by the decision of the R.M.’s Court in Probate and Administration

B Cause No. 51/1981 in which letters of administration were granted to the appellant he should have appealed to the High Court or alternatively she could have applied for revocation of the grant under section 49 of the Probate and Administration Ordinance.

Lastly Mr. D’Souza argued that the High Court. (Nchalla. J.), C erred in invoking his revisional powers suo moto in the course of

writing his ruling. The Court was invited to allow the appeal on the ground that the High Court, (Nchalla. J.), failed to deal with the application before him.

In rebuttal Mr. Mahatane. learned counsel for the respondent D argued that it was not clear whether the matter should have been

handled as a small estate or as a big estate. It was submitted that for purposes of revocation of a small estate section 82 of the Probate and Administration Ordinance applied whereas section 49 of the Ordinance dealt with revocation of big estates.

E It was Mr. Mahatane’s submission that proceedings in thelower courts show that the matter was treated as a small estate and that in a fit case the High Court can interfere with a grant o f letters of administration by a lower court. The learned defence counsel argued that in the present case the High Court, (Nchalla. J.), granted

F letters of administration to the respondent after it had revoked the grant by the district court. It was finally submitted that the appellant had already been divorced five years before the death of the deceased, Alhadji Karama Maro, and that as such she had no interest in the estate as she had already received her “Kithumni".

G In reply Mr. D’Souza argued that the appellant had not beendivorced before the death of her husband. That she was a widow of the deceased the court was referred to page 9 of the proceedings.

As for the provisions of section 82 of Cap. 445 Mr. D’Souza submitted that this argument has been brought rather too late in the

H day. tt was submitted that if the matter was treated as a small estate by the lower courts the respondent was required to file an application before Chua. J. under R. 85 of Cap. 445. It was also argued that under Rule 71 filing of consent of the other interested parties was mandatory and that no consent was filed by the respondent in her

I application for letters of Administration before. Chua. J.It was finally argued in reply that the ruling of Mr. Kiyeyeu

M. MUYA v. MWANAID1 MARO (Miuavas, J.A.) 81

did not revoke the earlier decision of the district court. It was A submitted that Mr, Kiyeyeu’s ruling concerned Mr. Munuo’s application to be heard. In support of this argument the court was referred to page 64 of the proceedings.

This matter has a chequered history. It first started in the primary court from where it was transferred to the district court as the appellant B (then petitioner) had indicated that he was employing an advocate.On 16/4/81 letters of administration were granted to the appellant, Mwanahawa Muya, by the district court - ARUSHA RESIDENT MAGISTRATE’S COURT MISC. CIVIL APPEAL. NO. 51 of 1981. C

Despite this grant the respondent, Mwanaidi Maro, filed a petition for letters of administration in the High Court - probate and Administration Cause No. 5 of 1986 in respect of the same estate and on 20/8/86 the High Court, (Chua, J.), granted letters of administration to the respondent. D

Dissatisfied by the grant of letters of administration by the High Court, (Chua, J.), to the respondent, Mwanaidi Maro, the appellant, Mwanahawa Muya. filed Misc. Civil application No. 161/86 before the High Court challenging the grant of letters of administration by the High Court, (Chua, J. J, to the present respondent E and (b) of the Probate and Administration Ordinance, Cap. 445 and Rules 32 and 71 of the same Ordinance; and prayed that the grant of letters of administration to the respondent by the High Court, (Chua,J.), be revoked.

The application was heard by the High Court. (Nchalla, J.), F in Misc. Civil Appl. No, 161/86 in which the learned judge said inter alia ... “There are several documents on record in this matter indicating that the size of the deceased’s estate in this matter is quite substantial, amounting to hundreds of thousands of shillings.

On the foregoing facts and reasons, I am quite satisfied that G the order of the district court made on 8/4/81 in Misc. Civil Appl.No. 51/81 granting letters of administration to the applicant. Mwanahawa M uya,... was null and void .... In the circumstances 1 invoke, the revisional powers of this court both under section 31 (1 )(2) of the M agistrates’ Courts Act ... and section 79 of the Civil H Procedure Code, 1966, and hereby quash the whole proceedings ...The instant application is dismissed with costs.” .

The High Court also said that the respondent, Mwanaidi Maro, was to remain the administrator of deceased’s property as appointed by the High Court, (Chua, J.), in the Probate and Administration I Cause No. 5 of 1986,

82 TANZANIA LAW REPORTS 11992] T.L.R

A ll is against this decision by Nchalla. J., that the appellant hascome to this Court.

After hearing arguments from both learned counsel for the parties and after our close examination of all the records, we are satisfied in our own minds that the High Court. (Nchalla, J.). did

B not at all deal with, nor determine, the issues before him.As clearly brought out from appellant’s application by

chamber summons (page 8 of the proceedings) the learned judge was asked to determine whether or not the grant of letters of administration to the respondent by Chua. J. was invalid as the

C respondent being the sole administrator did not file an affidavit as required under Rule 32 of the Probate Rules.

The grant was also said to be invalid because, it was argued by the appellant in his application before Nchalla, J., the respondent did not file “CONSENT” of all those who would be entitled to the

D whole or part of the deceased’s estate as required by Rule 7 1 of the Probate Rules.

Finally the learned judge was required to decide whether or not the grant by the High Court. (Chua, 1.) was invalid by reason of being obtained fraudulently by the respondent who was alleged to

E have made false suggestion and/or concealing from the court something material to the case.

Apparently no where in his lengthy ruling does the learned judge mention, leave alone discuss, the serious allegations levelled against the respondent.

F As we have already mentioned above the learned judge merelyinvoked his powers of revision suo moto and held that the resident magistrate’s court had no power to grant letters of administration to the appellant and dismissed appellant’s application which challenged the grant of letters of administration to the respondent by the High

G Court, (Chua, J.).Clearly, and as the learned judge will no doubt agree with us

on reflection, the question whether or not the resident magistrate’s court had power to grant letters of administration to the appellant was not the issue before him. The issue before him was whether, as

H alleged in the chamber summons, the respondent had misled and/or concealed important information from the High Court, (Chua, J.), and thereby causing it to grant letters of administration to the respondent; which letters of administration the High Court would not have granted had the true facts been divulged by the respondent

I to the court.As rightly argued by Mr. D ’Souza. learned counsel for the

M. MUYA v. MWANAID1 MARO (Mnzavas, J.A.) 83

appellanl. appellant’s complaint before the High Court (Nchalla, A J.). was based on non-compliance with Rules 32 and 71 and section49 of the Probate and Administration Ordinance. Cap. 445 of the laws.

Section 49 of the Ordinance enumerates reasons which may cause the grant of probate and letters of administration to be B annulled:

One of such reasons is where “the grani was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case.”

In her petition before the High Court, (Chua, J,), the C respondent. Mwanaidi Maro, stated in paragraph seven:

No proceedings for the grant of probate and/or letters of administration or otherwise for the administration of the said deceased’s estate have been commenced before any court of Dcompaclent authority whether inside Tanganyika or outside it.

It was Mr. D’Souza’s submission, as already mentioned above, that the respondent misled the court when she said that there had E not been any proceedings for grant o f probate or letters of administration regarding the estate; while she very well knew that the appellant had been granted letters of administration by the R.M.’s court where she (respondent) was the objector. This deliberate lie by the respondent, it was argued, would have entitled the High Court, F (Nchalla, J.), to annual the grant of letters of administration to the respondent by the High Court, (Chua, J.) - As, it was submitted, Chua. J. would not have granted letters of administration if he had been aware that letters of administration in respect of the same estate had already been granted to the appellant by the R.M.’s Court. G

Mr. Mahatane, learned counsel for the respondent, vigorously argued that section 49 of the Probate and Administration Ordinance talks about fraud and that the respondent did not fraudulently mislead the court. Mr. Mahatane also submitted that failure to adhere to the rules does not by itself harm the interests of the parties. H

With respect to the learned counsel for the respondent section49 (1) (b) of the Probate and Administration Ordinance is very clear and does not require interpretation or interpolation. Respondent’s blatant lies that there had not been previous proceedings regarding grant of probate or letters of administration while she was in fact 1 the objector in the R.M.’s Court when letters of administration were

84 TANZANIA LAW REPORTS 11992] T.L.R

A sranted to the appellant, amply demonstrated that she was bent to defraud other interested parties in the estate. Had the High Court (Nchalla. J.). dealt with this issue he would no doubt have found that this was a good reason to annul the grant of letters of administration to the respondent by the High Court. (Chua, J,).

B We agree that in a proper case the High Court can invoke itspowers of revision in a grant of letters of administration by the district court. Powers of revision are however usually exercised by the High Court suo moio when exercising its supervisory powers over subordinate courts. Tt is. in our view wrong, indeed improper,

C for the High Court to resort to its revisional powers where (as it was in this case), there are specific issues calling for determination by the court.

As for Mr, Mahatane’s submission that the appellant had no interest in the estate as she had been divorced five years before the

D deceased met his death and that she had received her "kithumni” under Islamic law, this would have been as relevant argument by the respondent when the appellant was seeking letters of administration before the R.M.’s Court. It would also have been a relevant argument if the respondent had appealed against the grant

E of letters of administration to the appellant by the R.M.’s Court.We, with respect, do not see the relevancy of the argument in

this appeal which is against the decision of the High Court. (Nchalla. J.), that he had failed to decide the issues before him.

It is our considered view that the High Court. (Nchalla, J.)T did ' F not at all consider the application of the applicant which was brought

under the Probate and Administration Ordinance - Cap. 445.As for the decision of the High Court. (Chua. J.}. it is clear

from what we have stated above that letters of administration would not have been granted to the respondent had the High Court been

: G informed of the fact that letters of administration in respect of the same estate had already been granted to the appellant by R.M .’s Court.

We agree with Mr. D’Souza’s argument that the respondent was wholly to blame in misleading the Court to do what it would not have

H done had it been aware of the fact of the previous grant of letters of administration to the appellant.

In the event this appeal is upheld with costs in this Court and the courts below. For avoidance of doubt this decision does not bar the respondent from challenging the grant of letters of administration

I to the appellant by the R.M.’s Court if she is so minded.___________________ Appeal upheld.

BENJAN1N MWANSI v. REPUBLIC (Ramadhani, J.A) 85

BENJANIN MWANSI v. REPUBLIC A(COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas, JJ.A)]

13 May 1992- ARUSHAB

Criminal law - Murder - Provocation - Caused by words.Evidence - Provocation - Seemingly innocent words - When can be

provocative

The appellant confessed killing his fiancee. In his defence he said C he was provoked by ihe words of the deceased whom he found in the bed of her new lover. Upon being asked she replied: “wewe bwana achana na tnimi. Sina habari na wewe” (literally translated: "Please leave me alone. I have no business with you” ). The Court considered whether these seemingly innocent words could provoke D a person to killing.

Held: (i) Now, those words in themselves appear innocent. But if Ihey are looked at with the hindsight of what had transpired they are powerful dynamite sufficient to blow off the faculty of reasoning E of the appellant. Not only that the appellants hope of marriage with her was kindled by her deceit but also that very day she made him part with his shs. 20/=. As if that was not enough, and to add insults to injury, she turned him into a sentry and made him kick about his heels eagerly waiting for her when she knew just too well that she F was not going to come back to him;

(ii) the appellant was provoked by those words.

Appeal allowed. Guiltx o f manslaughter.-G

Ram adhani, O m ar and Mnzavas, JJ.A .: Benjamin Mwansi, the appellant, was convicted of the murder of Lucia d/o Hamadi and was sentenced by the High Court of Tanzania at Arusha (Nchalla, J.) to suffer death by hanging.

The Republic had produced three witnesses whose testimonies H were not worthy even to prove the case on a balance of probabilities which is not the standard in criminal trials. The appellant had put the nail in his own coffin, so to speak. His extrajudicial statement (Exh. P.3), which he readily owned without requiring it to be produced by the Justice of Peace who recorded it, and his evidence I in Court formed the planks on which his conviction was based.

86 TANZANIA LAW REPORTS | I992( T.L.R

A The appellant and the deceased had agreed to marry and asthe day of days was fast approaching, the deceased schemed back­pedalling while putting up a facade that all was as planned. The deceased was also dishing out favour to one Idi Kazimoto. The appellant had intelligence of that affair but was satisfied by the

B assurances of Idi that he, Idi that is, was not aware that he was trespassing on the appellant’s garden and promised to desist further encroachments.

On the fateful day the appellant met the deceased on the way. The deceased managed without any difficulty to extract some twenty

C shillings from the appellant. As the deceased w as on a very private errand, she promised to refurn and be with the appellant within a short while. Minutes ticked by. The appellant then realised that he was left stranded on a barren and rather a dreary shore. Or, as they say, “aliwachwa kwenve ma(aa \ So the appellant decided to go

D after the deceased. He went on Idi"s where he was told that the deceased had merely passed through without stopping. The appellant for some few minutes was sitted outside with Idi when suddenly Idi came up with an offer of a cup of lea at a nearby cafe. While there, an invitation was extended to the appellant to wail for food which

E was being prepared by one Monica. The appellant had a brainwave and alone he went back to Idi’s where, peeping through an aperture

* in the wall, he saw his Lucia cosily lying of Idi’s bed. The appellant asked her “Ee bwarui sasa vipi'T' To that the deceased replied i"Wewe bwana achanu na mimi. Sina habari na wewe”. The appellant said

F he went wild. He kicked the mud thatched wall making a hole through which he got access into the room. He then picked a plank of wood which he found therein and with it administered unknown number of blows on the head of Lucia. She died instantly. The appellant melted away until he was arrested.

G Th^ triable issue was whether or not the appellant wasprovoked. The learned trial judge, in agreement with a male assessor and at variance with a female assessor, found that the appellant was not provoked.

The appellant was advocated for by Mr. Ojare, learned H counsel. He had a sole ground of appeal which was that there was

“grave provocation” . The learned advocate had two points in that respect. First, he pointed out that the words which the deceased replied to the appellant were taken to be not provocative because they were held to constitute neither an offence nor a wrong. Mr.

1 Ojare pointed out further that the definition of provocation, as given in Section 202 of the Penal Code, includes an insult.

BENJAN1N MWANSI i>. REPUBLIC (Ramadhani, J.A) 87

The learned advocate then submitted that the words uttered A by the deceased when looked at with the background of the relationship which existed between the deceased and the appellant were insulting and were nothing but provocative. As his second point, Mr. Ojare contended that provocation was at the time of the utterance of those words by the deceased and that there was no B moment for cooling down. The learned counsel submitted that the learned judge erred in holding that even if there was provocation the appellant had time to cool down. Mr. Ojare argued that the appellant just did not have that time to cool down.

On behalf of the respondent/Republic was Mr. Mono, Senior C State Attorney. He started by questioning the credibility of the appellant who first disowned the extra-judicial statement, then offered plea of guilty to manslaughter and finally came round to adopt the extra-judicial statement. However, Mr. Mono threw up the sponge and conceded that the appellant was consistent in denying D murder and pleading manslaughter. Secondly, Mr. Mono contended that as the appellant had a pre-knowledge of the relationship between Idi and the deceased then heshOTttnYofhave been provoked when he found Lucia in Idi’s bed.

There are three matters which require our determination for E the disposal of this appeal. First, whether or not there was a cause for sudden provocation. Then there is the question at what occasion did that cause present itself. Lastly, and consequent to the second issue, whether or not there was time for cooling down.

The learned trial judge found that malice aforethought was F established:

... from the nature of the weapon used (Exh. P.2), the nature of injury caused (Exh. P . l ) and the excessive force used by the accused... Also the accused hit the deceased on the head, G vulnerable part of the body.

With respect that was begging the issue which was to be decided. Killing tin provocation is provided in section 201 of the Penal Code thus: H

W hen a person who unlaw fully k ills ano ther under circumstances which, hut for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter 1

88 TANZANIA LAW REPORTS 11992] T.L.R

A defined, and before there is time for his passion to cool, he is guilty of manslaughter only, (emphasis provided)

Thus in killing on provocation circumstances which constitute murder are proved and established. But that is not the end. There is

B something extra and that is sudden provocation. If we were to be mathematical and devise a formula we would say: killing by provocation is equal to circumstances which constitute murder plus- sudden provocation without lime for cooling down.

So what the learned Judge did was to catalogue circumstances C which would constitute murder. But the issue is was there or was

there not sudden provocation.Admittedly the learned Judge also made the finding that the

appellant had formed the intention to kill when he was awaiting food with Idi and that was why he left stealthily. The learned Judge

D stated:

It is established on the evidence that accused intended to kill the deceased and the motive thereon was to punish her for fidelity or dishonesty and lo revenge from Idi Kazimoto.

EThe issue then for determination here is whether Ihe appellant returned to Idi’s having made up his mind to pay off old scores, as the learned Judge found, or he was provoked by the reply of the deceased, as Mr. Ojare contended.

F The appellant said that he refused to wait for food and so leftIdi and then revisited Idi’s place to investigate There is not the slightest suggestion thal he left Idi stealthily. Admittedly in his swom evidence the appellant had said that he had heard the voice of the deceased from the house of Idi the first time he was there. But in his

G extra-judicial statement (Exh. P.3) he did not say so and instead he stated that because of suspicion he went back to Idi’s to find out whether or not Lucia was there. The extra-judicial statement seems more credible. It would seem odd. if the appellant had known that the deceased was there, that he would let himself be kidded by Idi;

H taken away to a cafe for a cup of tea and forget the purpose of his mission.

However, for the sake of argument and for the avoidance of doubt, too. let us take the swom evidence of the appellant and work on it. Suppose the appellant was aware that the deceased was inside

1 the room of Idi. and suppose, also, the appellant had already resolved to teach the deceased a lesson when he had gone to Idi’s the second

BENJANIN MWANSI v. REPUBLIC (Ramadhani, J.A) 89

time, one wonders why the appellant did not go straight and. without A a word, force his way through the door. Indeed one wonders why he did not go there armed so as to execute his purpose. Or put it the other way: how did the appellant know that he would stumble upon a plank of wood in the room of Idi which would conveniently present itself as a weapon with which he would accomplish his murderous B errand. We have failed to come up with answers to these questions that would satisfy us beyond reasonable doubt.

What we are then left with is his story. The appellant said he peeped through the wall and saw Lucia relaxed on the bed of her new lover and upon being asked she replied "Wewe bwana achana C na mimi. Sina habari na wewe".

Now, those words in themselves appears very innocent. But if they are looked at with the hindsight of what had transpired, they are a powerful dynamite sufficient to blow off the faculty of reasoning of the appellant. Not only that the appellant’s hope of D marriage with her was kindled by her deceit but also that very day she made him part with his shs. 20/=. As if that was not enough, and to add insults to injury, she turned him into a sentry and made him kick about his heels eagerly waiting for her when she knew just too well that she was not going to come back to him. With this E prelude one would agree with the lady assessor that the appellant was provoked by that reply. [

Did he have time to coo! down? No, obviously not. If so, had the gentleman assessor grasped what happened, he would have opined as his colleagues for he had said: F

The accused had time lo cool, from the time he discovered that Lucia was in the house of Idi Kazimoto to the time accused returned there for the second time,

GMr. Mono, has also submitted that the appellant, being a

Nyiramba. whose custom, as he had admitted, does not give a right to a fiance to stop a fiancee from running with other persons, should not have been provoked. We agree with Mr. Ojare that Lucia was not a Nyiramba but a Mbulu and the matter was in Hanang District which H again is in Mbulu area. Moreover, under Section 202 of the Penal Code the appellant has to be judged as "an ordinary person of the community to which the accused belongs”. At the time of the offence the appellant belonged to the Mbulu community.

W'e. therefore, find the appellant not guilty of murder but of 1 manslaughter. So we quash the conviction for murder. We set aside

90 TANZANIA LAW REPORTS 11992] T.L.R

A the sentence of death and impose one of imprisonment for a term of 4 years taking into account that he has been in custody over since 18/8/1998. Appeal is allowed to that extent.

Appeal allowed.B ----------------------------

C JOHN SANG AWE v. RAU RIVER VILLAGE COUNCIL [COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas. JJ.A.)]

13 May, 1992-ARUSHAD

Civil Practice and Procedure - Jurisdiction o f High Court - Suits concern immovable property which is land not held on a Government lease or a Right o f Occupancy granted under the Land Ordinance.

EIn an application for striking out a notice of appeal the Court was moved to make a ruling on the competence of the High Court to entertain a suit which concerned immovable property which is not land held on a government lease or a right of occupancy granted

F under the Land Ordinance

Held: By virtue of the provisions of s. 63( 1) Magistrates Courts Act, 1984 the High Court had no jurisdiction to entertain the suit.

G Order accordingly.

O m ar, Ram adhani and Mnzavas, J.J.A.: Before this appeal came up for hearing Mr. Mahatane, learned counsel for the

H respondent stated that while he was giving a copy of the Notice of Motion to the advocate for the Appellant in which mention he wanted to argue on the striking out of this appeal as being time barred; he came across the decision of this Court in Civil Appeal No. 25 of 1989, which is on all fours with the present case. The decision he

I drew our attention to is to the effect that the High Court had no jurisdiction to entertain the suit which concerned immovable

J. SANGAWE v' R.R. VILLAGE COUNCIL {Omar, J.A.) 91

property which is not land held on a Government lease or a Right A of Occupancy granted under the Land Ordinance. The relevant provision of the law governing this decision is Section 63(1) of the Magistrates Courts Act, 1984 which reads:

Subject to the provisions of any Jaw for the time being in Bforce where jurisdiction in respect of the same proceedings is conferred on different courts, each court shall have a concurrent jurisdiction therein;

Provided that no civil proceedings in respect of marriage, C guardianship or inheritance under customary law, or the incidents thereof, and no civil proceedings in respect of immovable property, other than proceedings relating to land held on a government lease, or a right of occupancy granted under the Land Ordinance or proceedings under section 22 or D23 of the Land Ordinance shall be commenced in any court other than a primary court unless the Republic is a party thereto or unless the High Court gives leave for such proceedings to be commenced in some other court.

EWe are satisfied that this following decision of this Court in

Civil Appeal No. 25 of 1989 is relevant in this case. It reads thus:

We held that the High Court has no original jurisdiction in the matters mentioned above and cannot therefore order such F proceedings to commence in itself. Our conclusion on this point is supported by the view expressed by this court in the case of Frank M. Mareatle i>. Paul Kvauka Njau f 1982] T.L.R. p. 32.

GWe think the rationale or policy behind the provisions of

section 63 (I) which deprive the High Court of original jurisdiction in these and involve the community at the grass roots level, that the matters are better dealt with first by courts whith are closer to the people than the High Court. H

We declare that these proceedings in the High Court were a nullity.

The appellant would remain with that portion of land which he is at this moment occupying. Either party if he is so minded can I

92 TANZANIA LAW REPORTS 11992J T.L.R

A start fresh proceedings in the proper court.There should be no outcry on damages or costs that may have

accrued since the inception of this case in the High Court.

Order accordingly.B -----------------------------

MICHAEL HAISHI v. REPUBLIC [COURT OF APPEAL OF TANZANIA

C (Omar, Ramadhani and Mnzavas. JJ.A.)]

13 May, 1992 - ARUSHA

Evidence - Witnesses contradicting themselves on vitcd details - D Whether credible.

Evidence - Bias - All witnesses from a village hostile to that from which accused comes from Inconsistency in evidence given by witnesses - Fears o f bias must he dispelled.

Evidence - Identification - Witnesses contradicting themselves - E Whether reliable.

The appellant is alleged to have been a party in malicious damage of property of another person. He was prosecuted, acquitted by the trial court, convicted on appeal to the High Court and then he

F appealed to the Court of Appeal challenging the decision of the High Court. His conviction was supported by evidence of identification and other pieces of evidence adduced by witness who hailed from a village which harboured hostility against the appellants village. It was argued in favour of the appellant that the evidence

G given by the witness had so many contradictions that it was unsafe to ground conviction on such evidence. Further it was said that since all the witnesses hailed from a hostile village there was need to dispel fears of bias and on the evidence these fears were not dispelled.

H Held: (i) Since the witnesses contradicted themselves on thequestion of identification of the appellant that evidence cannot remain unshaken:

(ii) since all the witnesses hailed from a village which was hostile to that of the appellant a high degree of consistency than the

I one displayed is essential to dispel fears of bias.

MICHAEL HAISHI v. REPUBLIC (Ramadhani, J.A) 93

Appeal allowed. A

Sang'ka, for the appellant.Lyitno, for the respondent.

Ramadhani, Omar and Mnzavas, JJ.A .: At about mid-day B of 23/3/1987 the house of Slaa s/o Malley (P.W. 1) at Gongali Village in Mbulu District was rid of its roof which was then put on the ground and set on fire. This was done by about fifty people of whom six were prosecuted for malicious damage to property contrary to section 326( 1) of the Penal Code. The District Court of Mbulu found C that three accused persons had no case to answer and at the end of the trial the remaining three were acquitted because of insufficient evidence.

The Republic was aggrieved by that judgment and appealed against two of the discharged accused persons before the High Court D of Tanzania at Arusha. In the course of the hearing the Republic abandoned the appeal against one respondent but proceeded to secure a conviction and a sentence of imprisonment for two years with respect of the remaining respondent, Michael Haishi, the present appellant. E

As in the High Court, the appellant was represented before us by Mr. Sang’ka. learned advocate. The memorandum of appeal contained five grounds which crystalizes down to three. The first ground is on the credibility of the Prosecution witnesses while the second is on the existence or non-existence of circumstantial F evidence and lastly the severity of the sentence.

Mr. Sang’ka submitted that the learned first appellate Judge (Mchalla. J.) “erred in law and fact in interfering with the trial magistrate’s findings on the issue of credibility in the absence of circumstances of unsual nature apparent in the record of the trial G court”. To support his proposition, the learned advocate cited the following authorities: Daudi Mwabusila v. John Mwalefila | 1967] H.C.D.n.59 and Ibrahim Ahmed v. Halima Gullet 119681 H.C.D.n.76

Mr. Sang’ka said that the trial M agistrate who saw the H witnesses disbelieved them but the first appellate Judge accused him of having “acted on wrong principles and thereby grossly misdirected himself on the law and hence wrongly acquitted the 1st respondent". Mr. Sang’ka submitted that it was the learned Judge who misdirected himself when he said “1 really fail to see how the I trial magistrate disbelieved P.W.2’sevidence.”

94 TANZANIA LAW REPORTS (1992] T.L.R

A Mr. Sang’ka had a twofold attack on the credibility of theProsecution Witnesses. Firsi, he contended that they were not independent. He said that there were two hostile bordering villages: Gongali and Bassodowish. Mr. Sang’ka pointed out that all Ihe P.W.s. were from Gongali while the appellant was the chairman of

B Bassodowish. Secondly, Mr. Sang’ka pointed out that the only eye witness, Akweso s/o Baric (P.W.2). was unreliable as he had contradicted himself in a material particular.

On behalf of the respondent/Republic was Mrs. Lyimo, learned Stale Attorney. She conceded that there was the inter-village

C hostility but contended that it was prejudicial since the four crucial prosecution witnesses were at various localities when they saw what they testified to in court and therefore did not have an occasion to conspire against the appellant. She thus argued that the prosecution witnesses were independent. Against Mrs. Lyimo admitted that there

D were contradictions in the testimony of P.W.2 but she submitted that they were not fatal because of the circumstantial evidence from the other prosecution witnesses.

Al this juncture it is imperative that we pose to review what these prosecution witnesses testified in court.

E The eye witness, P.W.2, stated that he had seen the appellantleading a group of about fifty persons to the house of P.W. 1. This witness was very positive that he saw these people lifting off the roof of P.W. 1 ’s house, resting it on the ground and that the appellant then applied a lighted match-stick lo il and thereby set the roof

F ablaze. On the other hand, P.W.3, Yohana d/o Ako, only recognised the appellant out of ihe fifty strong who were warming themselves against a fire which was about thirty paces from ihe house of P.W. I.

P.W.4, Bura s/o Lehema, testified that he was told by the appellant that the appellant "will demolish the house of P .W .l”.

G Soon after that P.W.4 saw from far away smoke rising up to the sky but he did not know whal was burning. P.W.4 added "when 1 saw them passing 1 did not know where they were going”. P.W.4, Sahware Barie, saw the appellant with his group going to the house of P.W. 1. We belter let him tell his own story:

HThey started to break the house of P.W. 1. they break all the house and started to carry it from there and wenl with it outside the shamba. Afler a short time 1 saw a big smoke which was followed by fire.

MICHAEL HAISHI u REPUBLIC (Ramadhani. J.A) 95

P.Ws 2 and 5 claimed to have been eye witnesses yet their A testimonies are irreconcitable. Whereas P.W.2 saw just the roof being hoisted down and set on fire by the appellant. P.W.5 witnessed the whole house being demolished and then merely saw a big smoke. P.W.5 did not see who lighted the fire and all that he said about the appellant was that '‘all that they did this accused was there" - So B according to P.W.5 the transgression committed by the appellant was being present without knowing whether innocently or otherwise.

Then, as Mr. Sang’ka had pointed out. P.W.2 contradicted himself. Both in his exam ination-in-chief and in his cross- examination by the sixth accused, P.W.2 was emphatic that ’‘it was C only Michael [the appellant | who set fire to the house and no one else” . However, P.W.2 shifted ground when he replied to the fourth accused that “Even this accused [fourth accused] did set fire to the house” . So it was no longer only the appellant and no one else who lighted the fire. D

Again P.W.2 testified that the whole mob of fifty people was in a single group. P. W.4, on the other hand, talked of three district groups and that the appellant was in the second one. At first, however, this witnesses had deposed: "They were too many but I only identified two of them, that were village chairman ( I st accused) E and 2nd accused. They passed me in a group.” It is not clear whether by “in a group” he meant the whole lot was in a single group or as he had said later in the second group. Not only that, but P.W.4 went on to say that he identified the fifth accused too in the third group thus contradicting his earlier deposition that he had identified only F I st and 2nd accused persons. Then P.W.5 talked of two groups and that the appellant was in the first group contrary to what P.W.4 had said.

So we find that P.W.2 was not the only one who had contradicted himself but that P.W.4 did that as well and that P.Ws G 2.4 and 5 contradicted one another hopeless ly-in vital details.

However, the learned Judge found that “Inspite o f the discrepancies in P.W.2’s evidence as pointed out by Mr. Sang’ka. that evidence on the whole remains unshaken. With respect we are a shade unsure whether that could be so and particularly as P.W.2 H is controverted by the other who are themselves irreconcilable - and the fact that the learned Judge did not pose to consider these.On the contrary he found that “The evidence of P.W.2 was highly corroborated by another cogent evidence that was given by P.W.3 and P.W.4 who were also physically present at the scene..." 1

96 TANZANIA LAW REPORTS [1992) T.L.R

A This unhealthy state ofevidence is aggravated by the fact ofhostility which was established to exist between the two villages. The learned Judge stated:

I tend to agree with the finding of the trial magistrate that the B source of the problem in this matter could be a dispute over

ownership of land which the parlies in this case are contending.

If so. in our considered opinion, then the probability of biased testimony, prompted by that hostility becomes a matter of nagging

C concern which could not be lightly waived aside by saying;

There is no reason, let alone good reason, given why these witnesses who are independent witnesses at that should have conspired to testify falsely against the 1st respondent and

D thereby implicate him in this charge.

The trial magistrate correctly pointed out that all the six prosecution witnesses hail from Gongali Village while the appellant was the chairman of Bassodowish Village. So a high degree of

E consistency than the one displayed is essential to dispel fears of bias. Thus we agree with the trial magistrate that:

These collection of those doubts make any court of justice and law find the accused not guilty at all.

FOnce we have come to this conclusion then the remaining

two grounds of appeal are superfluous. There could be no question of corroborating circumstantial evidence since that, too, would have come from the other biased witnesses. Of course if the appellant is

G not guilty there is no question of punishment.We thus allow the appeal, quash the conviction, set aside the

punishment and order the immediate release of the appellant unless he is otherwise lawfully held.

H Appeal allowed.

BERNADETAPAUL u REPUBLIC (Mnzavas, J.A.) 97

BERNADETA PAUL v. REPUBLIC A[COURT OF APPEAL OF TANZANIA (Omar, Ramadhani, anti Mnzavas JJ.A.)]

13 May 1992- ARUSHAB

Criminal Practice and Procedure - Sentencing - Mitigation - Conviction on plea o f guilty - In remand fo r five years and first offender - Whether sentence o f 4 years imprisonment proper.

The appellant was convicted on her own plea of guilty, of killing Cher 8 day old baby. In sentencing the appellant the High Court considered only two mitigating factors - that she was a first offender and that she had been in custody for almost five years. The sentence imposed on the appellant was 4 years imprisonment against which she appealed. It was argued on appeal in favour of the appellant that Dthe fact that she readily pleading guilty to the offence was not considered as a mitigating factor.

Held: (i) An appellate court should not interfere with the discretion exercised by a trial judge as to sentence except in such cases where Eit appears that in assessing sentence the judge has acted upon some wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive;

(ii) had the learned judge taken into account appellant’s plea of guilty to the offence with which she was charged the judge would Fno doubt have found that the appellant was entitled to a much more lenient sentence than the sentence of 4 years imposed.

Order accordingly.G

Maritma, for the appellant.Lundu. for the respondent

O m ar, R am adhani and M nzavas, J.A .; The appellant. Benadeta Paul, had an affair with one Godfrey on 20/11/84. The Hembrace culminated to pregnancy and on 20/8/85 she delivered a full-term baby boy in hospital where she had been sent by her parents. Apparently the parents did not suspect her to be in the family way. neither did she tell them of her condition.

She remained in hospital for only one night and was discharged Ihome. On arriving home the parents who had. as already mentioned.

TANZANIA LAW REPORTS 11992| T.L.R

A been taken completely unaware started asking her as to who was the father of her child. The appellant replied that she did not know the whereabouts of the putative father, it would appear from the facts narrated to the trial court that parental pressure reached to such an extent that eight days after delivery of the infant the appellant

B decided to kill the baby and did so by administering a coffee pesticide to it.

From the facts in support of the charge after the baby had died the appellant tried to take her own life by drinking the same pesticide. Immediately after the killing of the baby the appellant

C was arrested and charged with infanticide c/s 199 of the Penal Code.She pleaded guilty to the charge and. on her own plea of guilty,

she was convicted as charged. In sentencing the appellant the High Court, (Munuo, J.), remarked:

D The accused is a first offender. She has been in custody since September, 1985, almost five years now. 1 sentence the accused to 4 years imprisonment.

Mr. Maruma. learned defence course, who also defended the E appellant in the High Court has no quarrel with the conviction, based

as it was, on appellant’s unequivocal plea of guilty. He has however appealed to this Court on behalf of the appellant against the sentence imposed.

Arguing against the sentence of 4 years imprisonment the F learned defence counsel submitted that in imposing the sentence

the learned judge only took into account (as mitigating factors) that the appellant was a first offender and that she had been in remand for almost five years. It was submitted that the fact that the appellant readily pleaded guilty to the offence was not considered as a

G mitigating factor nor it was argued, the possibility that at the time she committed the offence she was mentally confused due to constant harassment by her parents who wanted to know the paternity of the child.

It was the learned defence counsel’s submission that had the H learned judge taken into account these other mitigating factors she

would have found that custodial sentence was not the proper punishment. The court was invited to allow the appeal, set aside the sentence of imprisonment and order the release of the appellant from custody.

I In rebuttal Mr. Lundu. learned state attorney, supported thesentence on the ground thal “the nature of the offence called for a

BERNADETA PAUL v. REPUBLIC (Mnzavas, J.A.) 99

severe punishment". The learned counsel was of the view that the A sentence of 4 years was “rather lenient”. It was submitted that there was nothing wrong for parents to question their daughter as who was the father of the child; and that there was nothing wrong for parents to question their daughter as who was the father of the child; and that such inquiries by parents could not be said to amount to B harassment of the daughter to the extent of making her mentally confused and driving her to commit infanticide. The Court was asked to dismiss the appeal.

Dealing with the question of reduction of sentence imposed by a trial .judge the Court of Appeal for Eastern Africa had this to C say in R. v. Mohamed Ali Jamal, 1948 15 E.A.C.A. 126:

An appellate court should not interfere with the discretion exercised by a trial judge as to sentence except in such cases where it appears that in assessing sentence the judge has acted Dupon some wrong principle or has imposed a sentence which is either patently inadequate or manifestly excessive.

In a later case - James s/o Yaram v. R. (1951) 18 E.A.C.A. 147, the same court also said: E

A court of appeal will not ordinarily interfere with the discretion exercised by a trial judge in a matter of sentence unless it is evident that he has acted upon some wrong principal or over-looked some material factor. F

Conning to the present case it is clear from the record that in imposing the sentence of 4 years imprisonment the learned trial judge overlooked the fact that the appellant pleaded guilty to the offence charged. G ■-

In the case o f Francis Chilema v. R. [1968] H.C.D. 5 10 where the accused had pleaded guilty the court said inter alia:

It is generally, if not universally, recognised that an accused pleading guilty to an offencc with which he is charged qualifies Hhim for the exercise of mercy from the court. The reason is, I think obvious, in that one of the main objects of punishment is the reformation of the offender. Contrition is the first step toward reformation, and a confession of a crime, as opposed to brazening it out, is an indication of contrition. Therefore in 1

1 (K) TANZANIA LAW REPORTS 119921 T.L.R

A such a case a court can, and does impose, a milder sentence thatin would otherwise have done.

Il is our considered view that had the learned judge taken into account appellant’s plea of guilty to the offence with which she

B was charged she would no doubt have found that the appellant was entitled to much more lenient sentence than the sentence of 4 years she imposed. This is especially so taking into account that the appellant had but for this conviction an unblemished record and. if we may also mention, she had been in remand for about five years

C with the serious charge of infanticide hanging on her.Taking all these factors into account we agree with Mr.

Maruma, learned defence counsel, that this was a case that loudly cried for leniency.

As the appellant was sentenced to 4 years imprisonment of D 16/2/90 she has now already served more than two years of the

sentence. We think that is more than sufficient punishment. The sentence of 4 years imprisonment is accordingly hereby set aside and in substitution therefore the appellant is sentenced to such term of imprisonment as would result to her immediate release from

E custody; unless she is otherwise lawfully held in connection with another matter.

Order accordingly.

F

G HASSAN JUMA KANENYERA AND OTHERS v. REPUBLIC [COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas, JJ.A)]

13 May 1992 -ARUSHAH

Evidence - C onfession - R etracted confession - N eed fo r corroboration. *

Evidence - Identification - By a single person - Need fo r corroboration.

I Evidence - Identification - Under horrifying situation - Whether reliable.

H.J. KANENYERA v. REPUBLIC (Ramadhani, J.A) 101

The appellants were convicted of murder and sentenced to suffer A death. They appealed challenging the evidence adduced and which grounded their conviction. Four of the appellants were identified during a parade by P.W.4, the wife of one Dr. Tesha who was killed. P.W.4 is said to have been raped by several of the bandits in the presence of her 12 year bid daughter. The appellants challenged the B reliability of identification by P.W.4 in such a horrifying situation. The first and second appellants were identified by P.W.4 alone. The appellants charged that identification by a single person needed corroboration which in their case was wanting. Other pieces of evidence which supported conviction were retracted confessions. C These were challenged as being involuntarily made and that in any case they needed corroboration which was lacking. The retracted, confession in respcct of the first appellant was tendered in evidence by the appellant himself during cross-examination and the defence councel raised no objection. D

Held: (i) However horrifying a situation is there is a watershed mark and if that is reached then a victim overcomes his or her fear and measures up to the occasion. We- believe P.W.4 after such languish sojourn with her persecutors she surpassed fear and as she E said “Despite the torture I remained alert in the mind and observed the bandits closely". Moreover, in this particular case the reliability of the identification of the appellants largely depended on the demeanour of P.W.4. This tvas the monopoly of the learned trial judge who believed P.W.4 and we will be wrong to fault her. F

(ii) exh. P. 15 was produced by the first appellant himself as an exhibit when he was cross-examined by the prosecution and the defending counsel did not object. So it cannot now be heard that the statement was involuntary;

(iii) the two retracted statements can be safely relied upon G under the authority of Tuwamoi v. Uganda [1967] E.A. 84;

(iv) since we have found that P.W.4 properly identified the authors of the two retracted statements as well as the other appellants then her evidence provides corroboration if that was required;

(v) it is a rule of practice, not of law, that corroboration is H required of the evidence of a single itrfess of identification of the accused made under unfavourable conditions; but the rule does not preclude a conviction on the evidence of a single witness if the court is fully satisfied that the witness is telling the truth.

102 TANZANIA LAW REPORTS [ 1992] T.L.R

A Appeal o f 1st, 2nd, 3rd and 5th appellants dismissed. Appeals o f 4th and 6th appellants allowed.

Ng'nuiryo, ftemba and Mariana, for appellants Mono, for the respondent

BRam adhani, O m ar and Mnzavas, JJ.A .: The deceased. Dr.

Luis Tesha, on the night of 14/6/1985 was at his home in Chekereni, Weruweru Village in Moshi, together with his wife, Zaresh Tesha (P.W.4), his daughter, Sia Tesha (P.W.5) and a house boy. Prosper

C Francis (D.W.6), when they were invaded by a group of thugs who killed him, raped and serious assaulted his wife, harassed his daughter and the house boy and made away with a number of items of property.

The widow (P.W.4) named and identified the first appellant, D Hassan Juma Kanenyera, who, until a couple of months before the

incident, had been their watchman. The first appellant was tracked down at Kilosa by D/Cpl. Paulo (P.W.2). He was brought back to Moshi where he owned participating in the crime and named six other persons as his companions. He recorded a statement with the

E Police which was admitted as Exh. P. 15. However, when he was taken to a Justice of the Peace, Luvanda (P.W. i ), he recorded an extra-judicial statement (Exh, D .l) in which he retracted what he had admitted in Exh. P. 15 just as he had done at the trial. One of the persons whom the first appellant hadHm plicated, Cyprian Joseph,

F the second appellant, admitted to have been a party to the crime and gave a narrative very much like that of the first appellant which was recorded by P.W.l as an extra-judicial statement (Exh. P. I ), The second appellant, too, retracted the admission in his sworn evidence in court. As a result of the admission's of these two

G appellants, the persons they had implicated were also arrested and charged. All in all there were eight accused persons. Accused No. 6, John Magesa. was acquitted, while accused No. 8, Julius Hamza, was convicted of receiving stolen property c/s 311(1) of the Penal Code and was sentenced to imprisonment for a term of ten years.

H The remaining six accused persons were convicted of murder by the High Court of Tanzania at Arusha (Munuo, J.) and needless to say, were sentenced to suffer'death. These six have now appealed before us.

The first appellant was represented by Mr. Ng’maryo, learned

H. J. KANENYERA u REPUBLIC (Ramadhani, J.A) 103

attorney, while Mr. Itemba, learned counsel, advocated for the A second appellant, and the other four appellants had the services of Mr. Maruma, learned counsel.

Mr. Ng’maryo had a memorandum of appeal containing eight grounds and Mr. Itemba had two while Mr. Maruma presented six grounds of appeal. For the sake of simplicity and clarity we have B consolidated all these grounds, some of which are mere repetitions, and we have come up with five objections. Again to avoid . recapitulations we are first going to consider the five grounds drawing from the arguments of all the three learned advocates without indicating who submitted what and then take into account *C the counter-claims of the respondent/Republic through Mr. Mono, the Senior State Attorney. After that we shall determine how our v findings atfect the individual appellants.

The first contentious issue was the credibility of the widow, P.W.4, which was assailed on two fronts. First, the appellants have D argued that P.W.4 was not reliable because she did not mention the first appellant in her Police Statement. Exh. D.2, which was recorded on 17/7/1985, that is just over a month after the incident. There she had said:

ENakumbuka rwuimo tarehe 14/6/85 kama saa 01.00 usiku huko nyumhani kwatigu Karanga tulivamiwa na majambazi

-wasiojulikana...

However, it was pointed out by the appellant that on 10/9/85, some F three months later, she was able to pick out the first, the second, the third and the fifth appellants from an identification parade which was mounted by Inspector Daniel Kawiche (P.W.3) the results of which were tendered as Exh. P.2. In another identification parade on 25/9/84 (Exh. P.3), after fifteen days, P.W.4 could not pick-up G anybody though the fourth appellant was paraded. It was ffirther pointed out that it was after the two identification parades that P.W.4 gave her second statement (Exh. D.3) in which she claimed to have recognised the first appellant among the bandits who killed her husband. So the appellants submitted that if P.W.4 had indeed H identified the first appellant that fateful night she would not have missed to record that in her first statement to the Police.

To that submission the respondent/Republic countered that P.W.4 was cross-examined on that and she had said thal she did not disclose the first appellant in her first Police statement because she I was concerned about her own safety. In any case Mr. Mono added.

104 TANZANIA LAW REPORTS j 1992) T.L.R

A P.W.4 had mentioned the first appellant to A.S.P. Mwanga (P.W.9) and that it was after P.W.9 had identified himself as a Policeman lhat P.W.4 was at ease to make that revolution.

The learned trial judge believed P.W.4 and we see no good reason to fault her. P.W.4 did not also disclose in her first Police

B statement that she had been raped. Yet she was and by four thugs, one after another, and within an earshot of her young daughter of twelve years, P.W.5. To make it worse, the awareness lhat among the thugs was a person who had been in her pay-roll was undoubtedly nauseating. P.W.4 would definitely be loathsome to pul lhat in writing

C for all to see just a few weeks after the incident when she had not conditioned herself to live with her tormenting memory. On the other hand, one could easily understand her readiness to whisper that disgusting experience into the car of a Police investigator in privacy just a day after the incident, on 15/6/1985.

D The other front relied upon by the appellants on the issue ofcredibility of P.W.4 was that she was not borne out by the evidence of the other two occupants of the house in that evening. The young daughter, P.W.5, they contended, was loud and clear:

E I did nol note the particulars of their clolhes because one of the bandits was holding a sime of my neck. Under such captivity I was more concerned about surviving; not looking at the clothes the bandits wore... I was naturally terrified under the panga threats.

FAs for the houseboy, P.W.6, the appellants' pointed out. he did identify the sixth appellant at the second identification parade but in his evidence on behalf of the defence, after he was offered by the prosecution, he stoutly and categorically denied that:

G1 did not see accused No. 7 al the banditry raid on the material nighl.

D.W.6 admitted to have identified accused No. 7 (6th appellant) H but that was because he “used to buy milk from us”. So the appellants

quarried how could it have been that only P.W.4 had that cool nerve that evening to be able to identify them.

We agree with Mr. Mono that P.W.5 gave her reasons for being unable to identify any of Ihe bandits. This is not surprising at

I all considering lhat P.W.5 was merely twelve years old at the timewhen she was subjected to seeing her father flat on the flix>r groaning

H. J. KANENYERA i . REPUBLIC (Ramadhani, J.A > 105

in deep pain and hearing her mother crying as she was being A manhandled by the bandits. That was enough traumatic experience to make her avoid looking at the thugs. However, she supported her mother in that she heard one of the robbers saying that it was the former watchman i.e. 1st appellant, who had told them that there was a lot of money in the deceased's house. As for D,W.6he could B not definitely identify anybody. From the first sound of breaking into the house he sought refuge under a bed until he was fished out by one of the bandits.

We shall have more to say on this in the following ground of appeal. C

.The second ground of appeal was that the identification by P.W.4 could not be relied upon. The first limb of contention was that the c ircum stances were not favourable for a proper identification. It was argued that it was night time with just hurricane lamps as sources of light and as for the outside there was moonlight. D Then it was pointed out that it was an intense moment of panic-and horror. In addition to that, it was argued. P.W.4 was severely injured anti had to be hospitalised for a month from 14/6/1985 to 14/7/ 1985. All these factors, it was submitted, did cast a shadow on the correctness of the identification. E

Mr. Mono countered that by saying that P.W.4 had spent quite a long time with these people and at a very close range and so was able to photograph their identities on her mental film. The learned^ Senior State Attorney also pointed out that the first appellant had

*been her employee for about three months and she was therefore F able to identify him very easily and particularly as she had said that she recognised his voice when he told his colleagues that P.W.4 was dead.

There is a lot of merit in what Mr. Mono has said. P.W.4 had a good opportunity which was denied to P.W.5 and D.W.6. Besides, G it is our considered opinion that however horrifying a situation is there is a watershed mark and if that is reached then a victim overcomes his or her fear and measures up to the occasion. We believe P.W.4 after such languish sojourn with her persecutors she surpassed fear and as she said “Despite the torture I remained alert H in the mind and observed the bandits closely” . Moreover, in this particular case the reliability of the identification o£the appellants largely depended on the demeanour of P.W.4. This was the monopoly of the learned trial judge who believed P.W.4 and we will be wrong to fault her. 1

Again the advocates of the appellants pointed out that after

106 TANZANIA LAW REPORTS 11992] T.L.R

A the identification parade appellants 1, 2. 3, and 5 registered their complaints that P,W.4 had known then before. Sarkar’s La\r o f

i Evidence 13th ed. p.99 was cited as authority that an identificationparade is useless if the persons put on the parade to be identified are

* known to the person who is to make the identification.B We concede that with respect to the first appellant. The

identification parade was superfluous. However, that could not be said to have been the case in respect o f the remaining three appellants. These appellants knew P.W.4 as ' ‘Mama Mazi\yaV. But that does not mean that P.W.4 must have known them too. Apart

C from her activity of selling milk P. W.4 was the wife of a veterinarydoctor. She was prominent enough to be known by all and sundry in the village but the rev e jM J^ -a a tiru e . Had it been that P.W.4 knew the rest of the appellants before the identification parade and that was why she picked them out, then she should not have failed

D to identify the fourth appellant, who is the brother of the fifth appellant, during the second parade. The fourth appellant too was a resident of that village, therefore according to the contention of the appellants, was known to P.W.4.

* The third ground of appeal was that the statement of the first E appellant to the Police, Exh. P.15, and the extrajudicial statement

of the second appellant, Exh. P. I, were retracted and therefore required corroboration. Advocates, for the appellants cited a series of rather old authorities like R. r. Mitiiande (1940) E.A.C.A.46; Kimani and Others'v. R. (1954) 21 E.A.C.A. 316; and Etat v. R.

F (1954) E.A.C.A. 330 to the effect that the prosecution is to prove voluntariness of the statements.

We do not think that this should detain us even a bit. First, Exh. P. 15 was produced by the first appellant himself as an exhibit

.when he was cross-examined by the prosecuting State Attorney and G the defending counsel did not object. So it cannot now be heard

that the statement was involuntary. Second, the two retracted statements can be safeiy relied upon under the authority of Tuwamoi v. Uganda (1967) E. A. 84. The advocates of the appellants pretended not to be aware of this classic authority on retracted confessions.

H Third, and as Mr. Mono submitted, these two statements, which 'Were confessions, are saved by Section 29 of the Evidence Act. 1967. Lastly, since we have found that P.W.4 properly identified the authors of the two retracted statements* as well as the other appellants then her evidence provides corroboration if that was

1 * required. ' **The fourth ground of appeal was the need for corroboration.

H. J. KANENYBRA v. REPUBLIC (Ramadhani, J.A) 107

This was argued first in relation to the retracted confessions which A we have already dealt with. Them it was also submitted with respect to identification by single witness that is P.W.4. Our decision in Lusabanyo Siyamemi r. R. [1980} T.L.R. 275 was cited as authority for that. But there we said:

BIt is a rule of practice, not of law, that corroboration is required of the evidence of a single witness of identification of the accused made under unfavourable conditions; but the rule does not preclude a conviction of the evidence of a single witness if the court is fully satisfied that the witness is telling the truth. C

Here we have amply demonstrated that the conditions were not .unfavourable. Admittedly the learned trial judge did not openly say that she was satisfied that P.W.4 was telling the truth. Since this is a first appeal we can, and we hereby, cure that oversight for the D reasons already advanced. So we find this ground, too, to be baseless.

,The fifth ground was that of alibi. But this, as was properly pointed out by Mr. Mono, largely concerned the first and the fourth appellants who gave due notice of alibi. Again here we dismiss this ground since we have believed P.W.4 and have found the two E retracted statement to be reliable.

i After making the above findings we cannot but dismiss the appeal of the first and the second appellants forthright. Both have

.confessed to have participated in the commission of the crime. Also as for the third and fifth appellants apart from having being F implicated by co-accused persons i.e. the first and the second appellants in their confessions, they were identified by P.W.4.

The fourth appellant, Adam Mamboleo, was mentioned by the second appellant only and not by the first appellant. Also though he was on the second identification parade he was not picked out G by P.W.4. The only other piece of evidence which could implicate him is the statement of D/SSgt. Wilfred (P.W.7) who arrested him. P.W.7 said that he found the fourth appellant having locked himself in his room from without. P.W.7 did not break the door because he got the key from the mother of the fourth appellant. This could be H an incriminating factor. However, P.W.7 was very clear that he found the brother of the fourth appellant who is the fifth appellant hiding under a bed in a room locked from outside. But P.W.7 did not say so with respect to the fourth appellant, so that is to the credit of the fourth appellant. But also P.W.7 had to break the door of John 1 Magesa who was the sixth accused because he too had locked in

108 TANZANIA LAW REPORTS 11992] T.L.R

A himself with a padlock outside his door. Yet this John was acquitted because the house boy of the deceased. D.W.6, who picked him out at the identification parade, did so because John used to go to buy milk from P.W.4. Yet John was implicated by both the first and the second appellants. So we feel that Adam Mamboleo, the fourth

B appellant, is entitled to the benefit of doubt. The fact that he had locked himself in could be explained otherwise than that he was involved in the murder of the deceased. We therefore quash his conviction of murder.

The sixth appellant. Hamadi Juma Kanyonga. was implicated C by both the first and the second appellants. Indeed the first appellant

named him as one of the rapists of P.W.4. However, as he was not in either of the two identification parades.

We cannot say whether P.W.4 would or would not have identified him. Since he cannot be convicted solely on the

D confessions of co-accused persons-section 33(2) of the Evidence Act, 1967 - we have to quash his conviction.

Therefore the appeals of the first, the second, the third and the fifth appellants are dismissed. The appeals of the fourth and the sixth appellants are allowed and it is ordered that they be released

E forthwith unless they are otherwise lawfully held.Before we finish we would like to comment in passing on the

conviction of Julius Hamza Shimangwe for receiving stolen property c/s 311(1). Admittedly receiving is a lesser offence than murder but it is not a cognate offence with murder and therefore it was

F wrong to have made that substitute finding. It was held in Valezi Madageda v. R. (1954) 22 E.A.C.A. 389 that the offence of being an accessory after the fact to murder is minor to but not cognate

I with murder. That decision overturned R. v. Sumbuso s/o Rulinde j and Others (1948) 15 E.A.C.A. 99. If accessory after the fact to I G murder is not cognate with murder then receiving stolen property is | even more so. But as there is no appeal against that before us and as

we have no revisional jurisdiction we leave that matter as it is.

HOrder accordingly.

F. MSENG1 v. PETER MTUMBA (Mwalusanya, J.) 109

FANUEL MSENG1 v. PETER MTUMBA A|HIGH COURT OF TANZANIA {Mwalusanya. J.)]

19 May 1992- SING1DA

Criminal Practice atui Procedure - Appeals- Right to appeal B

The respondent was acquitted by the District Court of the offence of cattle theft. The appellant, owner of the cattle, aggrieved by the decision of the District Court appealed to the High Court.

CHeld: (i) This was not a private prosecution, rather a public prosecution conducted by the Director of Public Prosecutions, as such the complainant has no right of appeal - Section 378( 1) Criminal Procedure Act No. 9 o f 1985;

(ii) where the criminal case originates from the Primary Courts D under section 20( I )(a) of the Magistrates’ Courts Act No. 2 of 1984 the complainant or the Director of Public Prosecutions may appeal to the District Court and to the High Court against an acquittal in a public prosecution.

EAppeal misconceived.

M walusanya, J .: The respondent Peter s/o Mtumba was acquitted by the Singida District Court for the offcnce of cattle theft c/ss 265 and 268 of the Penal Code Cap. 16. It was alleged at the F trial that the respondent who is a Ward Secretary of the Ward of Issuna had on 18/8/89 stolen a cow belonging to the complainant one Mr. Fanuel s/o Msengi who is now- the appellant. Aggrieved by the decision of the District Court in acquitting the respondent, the complainant has now appealed to this court. G

This was a public prosecution conducted by the Director of Public Prosecutions (D.P.P.). It was not a private prosecution. That being the case the complainant has no right of appeal to this court. According to section 43 of the Magistrate’s Court Act No. 2/1984 appeal from District Courts to the High Court have lo be done in H accordance with the procedure stipulated in the Criminal Procedure Act No, 9/1985. Now according to section 378( 1) of the Criminal Procedure Act No. 9/1985 only the D.P.P. may appeal against an acquittal to the High Court in respect of public prosecution. The complainant is not personally allowed to appeal in a public I

TANZANIA LAW REPORTS 11992J T.L.R

A prosecution - what he can do is to ask the D.P.P. to appeal on his behalf. So the appeal in this case was misconceived.

The position is different in respect of criminal cases originating from the Primary Courts. Under section 20( 1 Ha) of the Magistrates’ Court Act No. 2/1984, the complainant or the D.P.P. may appeal to

B the District Court and to the High Court against an acquittal in a public prosecution. However that is not the position in respect of criminal cases originating from the District Courts.

After reading the evidence on record I am of the view that the appellant may have a remedy by filing a civil suit against either the

C respondent or Copl. Michael (P.W.3) or both, whom he alleges he entrusted the missing cow at a public auction. And he may call Amos s/o Misai as his witness whom he alleges was present when either the respondent or Copl. Michael was handed over the cow in question. He is at liberty to seek a redress in a civil court.

D Be that as it may, this appeal is misconceived and incompetent.The appellant has no right of appeal in law. The appeal is dismissed and struck off the register.

Appeal dismissed.E ----------------------------

SYL1VERY NKANGAA v. RAPHAEL ALBERTHO F IH1GH COURT OK TANZANIA (Mwalusanya. J.)]

26 May 1 9 9 2 -DODOMA

Criminal Practice and Procedure - Appeals - Appeal against G acquittals originating in the District Courts - Whether the

complainant can pursue the appeal in the High Court.Criminal txiw - Criminal Trespass - Whether a charge o f criminal

trespass can succeed where ownership o f the land has not been determined in a civil case.

H Land Law - Land ownership - Whether a Criminal Court can determine matters o f land ownership.

Raphael s/o Albertho, the respondent was charged, in Singida District Court, with criminal trespass c/s 299(a) of the Penal Code.

I The appellant was the complainant. At the end of the trial the Court acquitted the respondent and declared him the lawful owner of the

S. NKANGAA v. R.L ALBERTHO (Mwalusanya, J.) 111

disputed land. The complainant appealed to the High Court. Three A issues required determination. First, whether the complainant could in view of the provisions of sections 378( I ) of the Criminal Procedure Act, appeal in person to the High Court of Tanzania. Second, whether a charge of criminal trespass can be sustained where the ownership of the land has not been resolved in a civil case. B Third, whether it is competent for a Criminal Court to determine matters of land ownership.

Held: (i) By virtue of section 378(1) of the Criminal Procedure Act, m public prosecutions only the DPP can appeal against an C acquittal from cases originating in the District Court;

(ii) a charge of criminal trespass cannot succeed where the matter involves land in dispute whose ownership has not been finally determined by a civil suit in a court of law;

(iii) a Criminal Court is not the proper forum for determining D the rights of those claiming ownership of land. Only a Civil Court via a civil suit can determine matters of land ownership.

Appeal dismissed.E

M walusanya, J.: The appellant Sylivery s/o Nkangaa was the complainant at Singida District Court where the respondent Raphael s/o Albertho was the accused charged of criminal trespass contrary to section 299( I ) of the Penal Code Cap. 16. The accused (respondent) was acquitted of the offence he was charged with. Now F the complainant is appealing to this court against the acquittal.

This appeal is obviously misconceived. According to section 43( 1 )of the Magistrate’s Court Act No. 2/84, appeals from the District Courts to the High Court have to be concluded in accordance with the virtue of section 378( 1) of the Criminal Procedure Act. in G public prosecutions, only the Director of Public Prosecutions (D.P.P.) can appeal against a acquittal by the District Court. This was a public prosecution and therefore the complainant has no right of appeal. Therefore this appeal is misconceived and incompetent.

Even if the appeal was properly filed, still the appeal had to Hfail on merits. This was a charge of criminal trespass. This court on numerous occasions has held that the charge of criminal trespass cannot succeed where the matter involves land in dispute whose ownership has not been finally determined by a civil suit in a court of Jaw. In this case both the complainant and the respondent claim Iownership of the land in dispute. The respondent claims that it is

TANZANIA LAW REPORTS [1992] T.L.R

A his clan land, while the complainant/appellant claims that he was lawfully allocated by the village land allocating committee. Thai being the case, the charge of criminal trespass is not maintainable as the ownership of the land in dispute has not been resolved by a court of law in a civil suit. The rationale behind that doctrine is that

B under section 9 of the Penal Code Cap. 16 the alleged trespasser is protected because he has an honest (bona fide) claim to the land in dispute, even though the claim may be mistaken. The honest claim of right can only be destroyed after a court of law in a civil suit determines who is the owner of the land in dispute. The learned

C Resident Magistrate was quite alright in acquitting the respondent. However the learned Resident Magistrate was wrong to declare the respondent as the lawful owner of the land in dispute. A criminal court is not the proper forum for determining the rights of those claiming ownership of land. Only a civil court via a civil suit can

D determine matters of land ownership. Therefore using my powers of revision. 1 will quash that part of the decision of the Resident Magistrate which declares the respondent as the owner of the land in dispute. The parties are at liberty to file a civil suit which will determine once and for all, who is the owner of the land in dispute.

E In the event I hold that this appeal is misconceived andincompetent and therefore it is dismissed. The order by the District Court declaring the respondent as the owner of the land in dispute is hereby quashed. The parties are at liberty to file a civil suit which will determine as to who is the lawful owner of the land in dispute.

FAppeal dismissed.

GGOSBERT EDWARD RWEYEMAMU v. TANZANIA

WOOD INDUSTRY CORPORATION [HIGH COURT OF TANZANIA (Rubama. J.)]

H 26 May 1992 - DAR ES SALAAM

Labour Ixiw- Jurisdiction - Whether court has jurisdiction to stay proceedings in order to obtain labour officer's opinion whether a party is employed in the management o f (he business o f the

1 employer - Proper order.

G. EDWARD RWEYEMAMU u TWICO (Rubama. J.) 113

The plaintiff sued the defendant, his employer, for wrongful A termination of employment. At the time of termination of services the plaintiff held the position of general manager. A preliminary objection was raised by the defendant that by virtue of s. 28( I ) of the Security of Employment Act, 1964 the High Court had no jurisdiction to entertain the suit. Arguments were made as to the B course of action open to the court.

Held: In such circumstances the court should order stay of the suit leaving it open for either party to obtain the opinion of the labour officer under s.4(e) of the Security of Employment Act as amended C by the Security of Employment (Amendment) Act, No. 45 of 1969.

Order accordingly.

Mrugaruga, for plaintiff DMule by a, for defendant

Rubama. J.: Gosbert Edward R we ye mam u is suing Tanzania W ood Industry C orporation for w rongful term ination of employment. He had been employed on two years contract and E positioned at the time of his termination as General Manager of Tabora Msitu Products Company Ltd. In the Written Statement of defence, Tanzania Wood Industry Corporation raise a preliminary objection that this court has no jurisdiction to entertain the suit as is provided by s. 2K( 1) of the Security of Employment Act Cap. 574. F This raised objection was argued by Mrs. Mulebya, learned advocate for the defendant. Mr. Mrugaruga, A Labour Officer appearing for the plaintiff replied.

Mrs. Mulebya submitted that by virtue of s .28(1) of the Security of Employment Act 1964, this court had no jurisdiction to G entertain the suit. She quoted several cases that had dealt with this question of ousting of jurisdiction: Kitundu Sisal Estate v. Shingo and Others [1976] E.A. 557, a case decided by the Eastern Africa Court of Appeal; James Sankey v. M/S Cult ex Oil j 1973] LRT n. 46 (Biron, J.); Walter Jager v. Cordtda Ltd. t/a Tanganyika Tourist H Hotels and Oyster Bay Hotel [ 1972J H.C.D. 133 (Onyiuke. J.). In reply Mr. Mrugaruga referred the court to the Security Employment (Amendment) Act, 1969 and some cases decided under it: Walter Jager v. Corbula Ltd. t/a Tanganyika Tourist Hotels and Oyster Bay Hotel (supra) and David Kamugisha i\ Bukop Ltd. Civil case 1 No. 49/90 (M wanza Registry) tunreported , Sekule, J) Mr.

TANZANIA LAW REPORTS [19921 T.L.R

A Mrugaruga submitted that the trial court is not expected to dismiss the plaint as called upon by Mrs. Mulebya but stay the suit leaving either party seek the labour officer's opinion on whether or not the plaintiff as in this case is in a managerial position. Mr. Mrugaruga went on to submit that the labour officer’s opinion was obtained in

B the case under consideration. I hasten to point out on this last submission that there is no record in the case file that supports the submission.

I have gone through all the cases referred lo the court except for the case of David Kamugisha v. tiukop Lid. (supra). I could nol

C lay my hands on this case notwithstanding my efforts. On these decided cases, the prayer by Mrs. Mulebya cannot be granted. I dismiss the preliminary objection for want of merit.

Unlike as was the case in James Semkey v. M/S Caltex Oil (supra) it is not that easy in the present case to determine the question

D of the jurisdiction of this court to hear and determine the case before getting the labour officer’s opinion of whether the plaintiff was employed in the management of the defendant’s business or nol. If the circumstances I go the way Onyiuke, J. went in the ease of Walter Jager v. Cordula Ltd. t/a Tanganyika Tourist Hotels and

E Oyster Bay Hotel (supra) and order stay of the suit leaving it open, in the words of Onyiuke. J. in the case quoted above, at p. 136, “for other to obtain the opinion of the labor officer under section 4(e) of the Security of Employment Act as amended by the Security of Employment (Amendment) Act. No. 45 of 1969.”

FOrder accordingly.

G

MWITA WAMBURA v. REPUBLIC [COURT OF APPEAL OF TANZANIA

H (Nyalali, C.J., Ramadhani, J.A. and Mapigano, Ag. J.A.)|

29 May 1992-MW ANZA

Criminal Practice and Procedure - Sentencing - Two convictions 1 o f murder - Whether sentence must be in respect o f the fir s t

conviction.

MWITA WAMBURA v. REPUBLIC (Mapigano. Ag. J.A) 1 15

The appellant was convicted of the murder of two persons, a husband A and a wife. The first and second convictions related to the deceased husband and wife, respectively. Then the learned trial judge imposed the mandatory sentence of death in respect of the second conviction.On appeal the propriety of imposing sentence in respect of the second conviction was questioned. It was argued that imposing sentence in B respect of the second conviction suggested that the judge harboured doubts in his mind as to the guilt of the appellant in relation to that court.

Held: (i) Where more than one count of murder have been charged, C and convictions entered on two or more counts, the practice has been to impose the death sentence in respect of the first of such convictions. It seems to us, however, that that is simply a matter of form. There is no rule which makes it obligatory on the court to hand out the sentence in respect of the first conviction and it is not Dour desire to create one. The choice of which count to pass the sentence on is a matter which is better left to the discretion of the trial judge;

(ii) reading the trial judgment it is clear to us that the judge was left in no reasonable doubt as to the guilt of the appellant on Eboth counts.

Appeal dismissed.

Rttgarabanui, for the appellant. F*Mussa, for the respondent.

M apigano, Ag. J.A., Nyalali, C .J. and Ram adhani, J.A.:This is a case of double murder. A man called Patrick Tyenyi and his wife Jenorever were brutally hacked to death in the night of 14th/ G 15th September. 1985, in the Musoma Township. Jenorever was found dead in a pool of blood inside the couple’s house at Nyakato, while the dead body of Patrick was discovered a kilometre away. It is evident that the couple was killed by bandits who raided their house in that night and that Patrick was killed by the bandits after being H taken forcibly from the house or when he was giving chase. It is also evident that the injuries the couple sustained on the heads were inflicted by a sharp weapon.

The bandits made away with clothes, a blanket, a mosquito net and a gun which belonged to Patrick’s employer and which was in his 1 possession on account of his employment.

TANZANIA LAW RHPORTS 11992) T.L.R

A The appellant Mwita Wamhura was charged with the murdersof the couple on two counts and tried by the High Court sitting at Musoma. Although the prosecution produced no eye witness to the incident the learned trial judge, Sekule, J„ in a careful judgment, was of the opinion that there were three principal pieces of credible

B evidence that established the following facts: (a) that the raiders were prosecuting a common design i.e. robbery; (h) that their common design extended to everything which in fact occurred in the course of the raid: (c) that the murders were committed in the course of the raid; and (d) that the appellant was a party to the raid

C and the murders.The first piece of evidence pertained to the appellant’s

possession of the articles that were stolen from the couple’s house a few hours after the raid. There was credible evidence that the appellant accompanied by two other men who evaded arrest brought

D the stolen articles to the house of PW.2 Nyamtondo in the night of the raid. Some of the articles were blood-stained. There was also credible evidence that the trio came to that place carrying two pangas. also blood-stained, and a knife.

In effect the appellant failed to explain to the Court how he E acquired possession of the stolen goods. Under our criminal law' the

unexplained possession by an accused person of the fruits of a crime recently after it has been committed is presumptive evidence against the accused not only on the charge of theft or receiving with guilty knowledge, but of any aggravated crime like murder as well, when

E there is reason for concluding that such aggravated and minor crimes were committed in the same transaction. And the force of this presumption is greatly strengthened if the property consists of a number of miscellaneous articles.

The second piece of evidence was the appellant’s possession G of the blood-stained weapons, weapons which were eminently

capable of inflicting wounds of the kind that the deceased couple sustained.

The third piece of evidence was the conduct of the appellant when he was confronted by the neighbours of PW.2 in the following

H morning. It was in evidence that upon realizing that he was about to be apprehended he promptly fetched the stolen gun from the house of PW.2. gathered the other stolen articles and then took to his heels, threatening to shoot his pursuers with the gun.

Accordingly, the learned judge convicted the appellant on both I courts. Thejudge was fully aware that underour law he was obliged

to pass a sentence of death, which is mandatory, on only one count.

MWITA WAMKURA v. REPUBLIC (Mapigano. Ag. J.A) ] 17

So he pronounced the sentence in the following terms: A

Mwka Wambura. I have found you guilty and convicted you of two counts of murder ... 1 hereby sentence you to suffer death by hanging until you die in respect of the murder of Jenorever w/o Patrick Tyonyi. You are so sentenced. B

It is to be observed that the murder of Jenorever was the subject matter of the second count.

The appellant has appealed to us against the decision of the trial judge. On his behalf Mr. Rugarabatnu, learned advocate, filed C two grounds. However at the start of hearing Mr. Rugarabamu announced that he was dropping one of the grounds, and this didnot come to us as a surprise, given the abundance and quality of the materials on record.

The ground that remains to be considered is that “if the D conviction on Court No, t was sound there was no plausible reason why the learned judge chose to sentence the appellant lo suffer death on Court No. 2". In his short address Mr. Rugarabatnu has made two points in that regard. The first point is that the trial judge erred when he passed sentence on the second count. In his submission E the judge should have passed the sentence on the first court instead.In answer to a question from the bench Mr. Rugarabamu has readily conceded that there is no benefit that will ensure to the appellant if we sustain this point.

The second point is a sequel to the first and it is lhal the judge's F choice to hand down the sentence on the second count is indicative of a state of misgiving in the judge’s mind about the guilt of the appellant on the first count.

We agree with Mr. Mussa, learned Senior State Attorney who resisted the appeal, and hold that there is no substance in the two G points raised by Mr. Rugarabamu, We knew that in most cases where more than one count of murder have been charged, and convictions entered on two or more counts, the practice has been to impose the death sentence in respect of the first of such convictions, ll seems to us, however, that that is simply a matter of form or wont. There H is no rule which makes it obligatory on the Court to hand out the sentence in respect of the first conviction, and it is not our desire to create one. In our view the choice of which count to pass the sentence on is a matter which is better left lo the discretion of the trial judge.

Reading the trial judgment il is clear to us that the judge was 1 left in no reasonable doubt as to the guilt of the appellant on both

118 TANZANIA LAW RHPORTS |]992|T.L.R

A counts. This is how heconcluded the judgment:

The accused and the other persons, each one of them therefore is responsible for deaths of the deceased persons under the doctrine of common intention ... Like the gentlemen assessors,

B I am satisfied that ihe case against the accused person has been proved beyond reasonable doubt. I would and do hereby find the accused guilty of murder on both counts and I convict him accordingly.

C That was an explicit finding and we have been unable to accept the proposition that the terms of the sentence derogated from it and implied that ihe judge was somewhat uncertain about Ihe validity of the conviction on the first count. In any event in our assessment we entertain no doubi whatever that the judge reached ihe right

D decision. Certainly the proven incriminating facts excluded all reasonable likelihood of the appellant’s innocence on both counts.

Appeal dismissed.

E

MWITA NYAMHANGA v. REPUBLIC F [COURT OF APPEAL OF TANZANIA

(Nyalali. C.J., Ramadhani, J.A. and Mapigano, Ag. J.A.)J

29 May 1992- MWANZA

G Criminal law - Murder - Appellant had inflicted grievous cut wound - Cause o f death vras respiratory failure caused by tetanus - Whether the wound caused the tetanus.

Criminal Practice and Procedure - Charges - Murder - Date o f charge - Whether date or unlawful act or death.

HThe appellant, using a panga. inflicted .a cut wound on a person who later died because of tetanus. He was convicted of murder by the High Court. On appeal he challenged the conviction arguing that there was no evidence to connect the cut wound and tetanus

I which ultimately caused the death of the deceased. The Court Appeal also considered the proper way of framing charges in case of murder.

MWITA N YAMHANGA v. REPUBLIC (Ramadhani, J.A.) 1 19

Held: (i) We cannot say beyond reasonable doubt that the wound A by the appellant caused tetanus. There is evidence that the deceased had fever before the attack by the appellant;

(ii) the date of the charge is that of the unlawful act and not that of the death.

BAppeal allowed.

Rttgarabarmt, for the appellant.Malamsha, for the respondent.

CRam adhani, J.A., Nyalali, C-J. and M apigano. Ag. J.A.:

It has never been in dispute both in the High Court of Tanzania at Musoma (Masancho, J.) and before us that the deceased, Sokoture s/o Chacha. died because of tetanus and that the appellant, Mwita Nyamkanga. had on 14/4/86 inflict&d a grievous cut wound on the D deceased by means of a panga. Equally it is settled that the deceased met his untimely death on 25/4/86, that is, some eleven days after the wounding.

The point of serious contention, which has brought the appellant to this Court, as it was allegiantly canvasscd for him by E Mr, Rugarabamu, learned advocate, was whether tetanus was brought about by the wound inflicted by the appellant or that death was hastened by that wound.

The post-mortem report (Exh. P. 1) merely said that the cause of death was “respiratory failure caused by tetanus” , Mr, F Rugarabamu said that the report did not give the cause of tetanus and the doctor who performed the examination was not called to testify. The learned Counsel referred us to two medical treatise: A Text-bctok o f Bacteriology by Fair brother and Tylor at page 367 and "Lecture Notes on Pathology” by Thomson and Cotton at page G 30. Both of these authorities state that the incubation period for tetanus is a minimum of eight days. Mr. Rugarabamu pointed out that the eleven days which elapsed between the wounding by the appellant and the death of the deceased is within the span of time of incubation if tetanus had resulted from that wound. However, he H argued that Ihe two extracts he had produced do not say what is the maximum incubation period nor do they indicate after how many days from the time of injury or when symptoms have appeared is death likely to result. So. Mr, Rugarabamu submitted that there is no evidence that the wound inflicted by the appellant caused that I

121) TANZANIA LAW REPORTS 11992| T.L.R

A tetanus or that that wound hastened the death of the deceased in any way.

For the respondent/Rcpublie was Mr. Malamsha. learned State A ttorney, who conceded the om ission pointed oul by Mr. Rugarabamu but made a fervent prayer that we exercise our powers

B under Section 4 (2) of the Appellate Jurisdiction Act, 1979 and do what (he High Court could have done, that is call the author of the posI-mortem report lo testify or order the High Court lo hear him on that point.

Mr. Rugarabamu objected lo that prayer but conceded that C this Court could do that siw moto. Alternatively, Mr. Rugarabamu

agreed that the appellant could be found guilty of causing grievous harm c/s 225 of the Penal Code.

We agree with Mr. Rugarabamu that we cannot say beyond reasonable doubt that the wound by the appellant caused tetanus.

D There is evidence that the deceased had fever before the attack by the appellant. We do not know what caused that fever.

We toyed with the idea of taking additional evidence but decided against it. We are a shade unsure of its usefulness. We do not know w hether the m edical officer who perform ed the

E examination could, if recalled, be able to know when the deceased showed the symptoms of tetanus and give his opinion as to whether that tetanus could or could not have been caused by the wound inflicted by the appellant. This is taking into account that it is six years now since the examination was done. We are also aware of

F the fact that the appellant has been under the gloom of uncertain late for the same length of time. We feel that we should not prolong his ordeal. So we quash the conviction of murder and set aside the sentence of death. We find him. instead, to be guilty of causing grievous harm c/s 225 of the Penal Code and sentence him to

G imprisonment fo ra term of six years.We have one small but vital remark to make. The information

contained the following particulars of offence:

Mwita s/o Nyamhanga on or about the 25th day of April, 1986 H at Nyarwana Village, in the District of Tarirne in Mara Region

murdered one Sekoture s/o Chacha.

Now, 25/4/1986 was the date the deceased died but that was not the date when the appellant inflicted the injury on the deceased.

1 That was 14/4/1986. as already said. It has been established long

MT.7479 SGT. B. HOLELA u REPUBLIC (Nyalali, C.J.) 121

time age by R. r. Lujo s/o Mgombe <1946) 13 EACA 156 that the A date of the charge is that of the unlawful act and not that of the death.We wish to remind those responsible for filing information about this requirement.

Appeal allowed. B

MT. 7479 SGT. BENJAMIN HOLELA v. REPUBLICJ COURT OF APPEAL OF TANZANIA C

(Nyalali, C.J., Ramadhani, J.A. and Mapigano, Ag. J.A.)j

29 May - MWANZA

Criminal law - Murder - Spent cartridges o f sub-machine gun found D 3 to 4 paces from dead body - Whether accidental killing.

Criminal Practice and Procedure - Preliminary hearing - Contents o f memorandum nor read and explained to accused - Effect - Section 192(3) o f the Criminal Procedure Act.

EThe appellant was charged with and convicted of murder and sentenced to suffer death by hanging. He appealed against both conviction and sentence. There were two pieces of evidence which among others, grounded his conviction. The first piece was contents of a memorandum by w hich the appellant was said to have admitted F under section 192(3) of the Criminal Procedure Act. 1985. The contents of the memorandum were not read and explained to the appellant. The second piece of evidence was spent cartridges of the appellant’s sub-machine gun which were found 3 to 4 paces away from the dead body. The appellant argued that there was a struggle G between him and the deceased for control of the gun in the process of which two bullets accidently got discharged and hit the deceased.

Held: (i) Section 192 (3) of the Criminal Procedure Act. 1985 imposes a mandatory duty that the contents of the memorandum H must be read and explained lo the accused. Since the requirements under section 192(3) were not complied with the provisions of section 192 (4) of the Criminal Procedure Act cannot apply;

(ii) the fact that the two spent cartridges were found by PW 1 to be 3 to 4 paces from the body of the deceased is consistent with 1 the appellants story that in the course of a struggle for control of the

122 TANZANIA LAW REPORTS i 1992] T.L.R

A gun two bullets accidentally got discharged and hit the deceased;(iii) the appellant has succeeded to raise a reasonable doubt

concerning the shooting evidence.

Appeal allowed.B

Magongo, for the appellant.Kaduri, for the respondent.

Nyalali, C.J., Ramadhani, J.A. and Mapigano, Ag. J.A.:C The appellant. No. MT 7479 Set. Benjamin Holela. was charged

and convicted in the High Court at Tabora for the offence of murder c/s 196 of the Penal Code and sentenced to the mandatory sentence of death by hanging. The proceedings were a retrial consequent upon an earlier order by this Court declaring the earlier proceedings

D a nullity and directing a trial de novo. The appellant is aggrieved by the decision of the High Court in convicting and sentencing him. Hence this appeal to the Court. Mr. Magongo, learned advocate, represented the appellant before us, whereas Mr. Kaduri, learned Senior State Attorney, appeared for the respondent/

E Republic. Only one ground of appeal was submitted by Mr. Magongo for the appellant. The appellant however, had earlier submitted three grounds of appeal from jail.

Only one issue is in dispute in this case, and that is whether the appellant shot the deceased with his sub-machine gun or whether

F the bullets which fatally hit the deceased were discharged accidently from the gun.

It is undisputed between the parties in this case that on the 9th August 1984, one Paulo s/o Mbigusulu got fatally shot with two bullets in Migato Village, Bariadi District. At the material lime.

G the appellant was a soldier in the Tanzania People’s Defence Forces, more popularly known by its acrononym as T.P.D.F., and was in charge of militia trainig of villagers in a compaign against rempant banditry in the area. On the material day, the appellant, accompanied by another soldier, namely. Private Zacharia Kasubi intercepted a

H group of people whom he suspected of banditry. Among this group was the deceased, together with the second prosecution witness, namely Makingo s/o Sabila. and the third prosecution witness, namely, Mazahabu s/o Selesi, hereinafter described simply as PW.2 and PW.3. After intercepting them the appellant ordered them to

I return to Migato Village shops. Sometimes later, the deceased and two of his companions, took to their heels. The appellant gave chase

MT.7479 SGT. B. HOLELA v. REPUBLIC (Nyalali, CJ.) 123

lo the deceased, at first on foot, and later on bicycle. AFurthermore, it is not in dispute that the appellant discharged

several shots in the air as warning shots before the deceased stopped, turned round and walked back towards the appellant, with his arms raised. Soon thereafter, the deceased got shot in the chest and his left leg. He died on the spot. Subsequently, the appellant sent a B written message to his District Chief Militia Officer and to the Police Officer In-Charge of Police Station. Bariadi, in which he made a report concerning the incident. A Police Officer, that is the firsi prosecution witness, namely. No. B 6419 Corporal Ainatus, hereinafter described simply as PW.l visited the village, met the C appellant and visited the scene of the incident.

With regard to the only issue in this case, it was the prosecution case at the trial that the appellant shot the deceased dead, after the deceased had surrounded and was walking back towards the appellant with his hands up. The defcnce case at the trial on the D other hand asserts that as the deceased thus approached the appellant, the deceased suddenly jumped upon the appellant, kicked him and seized the appellant’s sub-machine gun. In the struggle that ensued for control of the gun, two bullets accidently got discharged and hit the deceased. E

The material evidence on this issue consists of the matters admilied under Section 192 of the Criminal Procedure Act, 1985 logelher with the testimony of PW. I, PW.2 and PW.3; as well as the two spent cartridges found ai the scene of the incideni, and the message sent by the appellant and which was tendered at the trial as F exhibit P.2.

Let us start with the matters admitted in the preliminary hearing under Section 192 of the Criminal Procedure Act. Under sub-section (3) it is provided:

At the conclusion of a preliminary hearing held under this G section, the Court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained to the accused in a language lhat he understands, signed by the accused and his advocate and by the public prosecutor, and then filed, (emphasis supplied) H

It is obvious from those provisions that the contents of the memorandum have to be read and explained to the accused, and that duty is mandatory. The record of the trial proceedings however does not indicate compliance with this duty. We take it that there I was non-compliance.

124 TANZANIA LAW REPORTS [ 1992] T.L.R

A Under sub-section (4) it is provided that:

Any fact or document admitted or agreed (whether such fact is mentioned in the summary o f evidence or not) in a memorandum filed under this section shall be deemed to have

B hfien duly proved ...

The question that arised here is whether the above emphasized provisions apply where there has been a non-compliance as is the situation here. We are settled in our minds that the above emphasized

C provisions do not apply where it has been a failure to read and explain the contents of the memorandum to the accused.

The necessity to read and explain the memorandum to the accused is highlighted by the provisions of rules 4 and 6 of the Accelerated Trial and Disposal of cases Rules, 1988 made under

D section 192 (6) and published under Government Notice No. 192 of 1 July 1988. Under Rule 4 it is provided:

The person prosecuting shall in every trial under those rules, prepare, as clearly as possible, the facts of the case which

E shall be read to the accused and explained in a language hecan understand.

Under rule (6) it is provided:

F When the facts of the case are read and explained to theaccused, the Court shall ask him to state which of those facts he admits and the trial magistrate or judge shall record thesame.

G It is apparent that a statement by counsel or advocate for theaccused to the effect that the matters raised are admitted is not sufficient under the law. It is the accused himself who must indicate what matters he or she admits. In cases where the matters comprise documents, the contents of the documents must be read and

H explained to the accused, in the event of a sketch plan or such likedocuments, the sketch plan must be explained and shown to the accused to ensure that he or she is in a position to give an informed response.

The second piece of evidence consists of the testimony of 1 PW. 1 who testified to the effect that when he met the appellant, the

latter admitted killing someone suspected of being a bandit. This

MT.7479 SGT. B. HOLELAu REPUBLIC (Nyaiaii, C.J.) 125

testimony was challenged under cross-examination by Mr. Mbussa, A learned advocate for the appellant at the trial. The Defence suggested that the appellant had told PW. I that the deceased died by bad luck. Under those circumstances, and bearing in mind the defence story, the testimony of PW. 1 on this point has to be treated with caution.

The third piece of evidence for the prosecution is the testimony Bof PW.2 and PW.3 who claim to have seen the appellant shoot the deceased as the latter surrendered. PW.2 claims to have been 60 paces from the incident and to have seen the appellant shoot the deceased from a distance of about 20 - 30 paces. PW.3 on the other hand claims to have been about 200 paces from the incident Cand to have seen the appellant shoot the deceased from a distance of 7 paces. We think the testimony of PW.2 and PW.3 has to be treated with caution, since it is inexplicable how PW.2 and PW.3 came to be so separated from each other at the time they claim to have observed the incident, in the light of the evidence which suggests that PW.2 D and PW.3 stayed together when the deceased and two of his companions bolted from the custody of the appellant.

The fourth piece of evidence for the prosecution on this point is exhibit P.2. That message reads inter alia:

E"... Majambazi tnatme tuiiyakamata jana tarehe 09 August 84 saa 1530 HRS (Jwawili 12) katiyao walikimbia (CNA) mmoja tulimfukuza tonbali wo ki. mbili na nusu (.)na tulimpiga risasi na kufa (J mmuja aiiloweka kabisa (.) walibaki wawili nao wall jar ibu ku tor oka na walinzi usiku walifaulu... Aliyekufa ni FPaulo M pigisule... ”

In our view the contents of this message are ambiguous in a material particular. According to the message, the appellant and some other person or persons shot the deceased. On the face of it, it G contradicts the other evidence adduced by the prosecution which suggests that the appellant alone shot the deceased. It is therefore unsafe to rely on exhibit P.2 without corroboration by independent evidence. Since we have found that the testimony of PW.2 and PW.3 requires to be treated with caution, it cannot be used to corroborate H exhibit P.2.

The fifth piece of evidence comprises the spent cartridges found at the scene of the deceased. This has been a hot point of contention by the appellant, not only in his evidence at the trial, but also when we allowed the appellant in person to supplement the I submissions made by counsel on his behalf. We allowed him to do

126 TANZANIA LAW REPORTS [ 19921 T.L.R

A so under Rule 3 (2) of the Tanzania Court of Appeal Rules 1979, on the basis that he was being represented on a deck brief and not by counsel of his own choice. The appellant used the opportunity very well. He argued that had he shot the deceased in the manner stated by PW.2 and PW.3, the two spent cartridges would have been found

B far away from the spot where they were found by PW.I, since cartridges from a sub-machine gun of the type in question tend to fall some 3 o r4 paces backwards from the position of firing the gun. The fact that the two spent cartridges were found by PW. 1 to be 3 to 4 paces from the body of the deceased in consistent with the

C appellant’s story.We think the appellant has succeeded to raise a reasonable

doubt concerning the shooting evidence. It was for the prosecution to show beyond reasonable doubt that the relative positions of the deceased and the two spent cartridges were consistent with the

D deceased being shot by the appellant in the manner described by PW.2 and PW.3 - that is, deceased being shot at from the distances stated by PW.2 and PW.3. This the prosecution apparently failed to do.

Finally, we end with the single ground of appeal contained in E the memorandum of appeal filed by counsel for the appellant. We

do not think that the failure by the prosecution to call Private Zacharia to testify justifies any adverse inference being drawn against the prosecution in the circumstances of this case, where there is no suggestion by the evidence that Private Zacharia was in

F a better position than PW.2 and PW.3 regarding the shooting incident.

In the final analysis therefore, we are satisfied, like the two gentlemen assessors who assisted the trial judge, that the prosecution did not prove its case beyond reasonable doubt. We consequently

G allow the appeal, quash the conviction, set aside the sentence and direct the immediate release of the appellant from jail unless detained therein for other lawful course.

Appeal allowed.

C.CONSTR.CO. v. A.GARMENTS (Makame. J.A.) 127

COSMAS CONSTRUCTION CO. LTD. v. ARROW AGARMENTS LTD.

[COURT OF APPEAL OF TANZANIA (Makame, J.A.)]

6 June 1992 - DAR ES SALAAMB

Civil Practice and Procedure - Proceedings ex-parte - Right o f absent party to notice o f judgment.

Civil Practice and Procedure - Court o f Appeal Rules - Extension o f time within which to institute appeal - Essential information not disclosed - No sufficient reason given. C

This was an application, by the applicant company, for extension of time to institute an appeal. The proceedings giving rise to this application were heard by the High Court in the absence of the applicant, the applicant having refused to accept service of summons, D It was in evidence that the applicant was not given notice of judgment.On appeal it was submitted by counsel for the respondent that the High Court had no obligation to notify the applicant of the date when the judgment was going to be delivered. In his application for extension of time the applicant said that he was not given notice of E judgment but did not disclose when he got to know of the existence of the judgment.

Held: (i) A party who fails to enter an appearance disables himself from participating when the proceedings are consequently ex-parte, F but has to be told when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may follow;

(ii) without disclosing when the applicant got to know of the existence of the judgment it is not possible to gauge the extent of the delay. No sufficient cause for the delay has been established. G

Application dismissed.

Maira. for the applicant.Lamwai, for the respondent. H

M akame, J.A .: This is an application for extension of time within which to institute an appeal, brought by Cosmas Construction Company Limited represented by Mr. Maira, learned advocate. It is being resisted by Dr. Lamwai, learned counsel, on behalf of the Irespondent Company, Arrow Garments Limited.

128 TANZANIA LAW REPORTS 119921 T.L.R

A The applicantwas one of three respondents in the High Courtin Misc. Civil Cause 54 of 1989 in which the respondent alleged that it had been defrauded of a plot of land by one of its directors, one Kunda Isai Mwasha. the second respondent, who in turn sold it to the present applicant, then the third respondent. In the High Court

B the present respondent petitioned for rectification of the Land Register under section 99(b) of the Land Registration Ordinance, Cap. 334, so that the memorial entered in favour of the present applicant is struck out.

The second respondent in the High Court, Kunda Isai Mwasha. C evidently central in the whole situation, made some effort to resist

the Petition but eventually he left matters mid-air. According to the record, the applicant simply did not bother. Going by an endorsement on the summons, returnable on 15th July 1989, the applicant refused to accept service and thereafter, throughout the proceedings, never

D appeared. Proof against the applicant was therefore ex-parte and the hearing closed on 25th June 1991. By then, or thereafter, the learned trial judge, Masanche J. was stationed out of Dar es Salaam and he composed the judgment at Mu soma on 1 st August 1991. It was delivered in Dar es Salaam by Kaijaga, Ag. SDR, on 17th October 1991.

E According to the Coram for that day Dr. Lamwai was there, for the applicant, and Mrs. Sinda or Finda was present "for the 4th Respondents”, (Sic). This does not make sense at all, for there was never a fourth respondent at any stage and so the record fails to contradict the applicant’s contention that the judgment was delivered in

F his absence.Dr. Lamwai has submitted before me that the High Court had

no obligation to notify the applicant of the date when judgment was going to be delivered. With respect, that view cannot be correct. A party who fails to enter an appearance disables himseif from

G participating when the proceedings are consequently ex-parte, but that is the farthest extent he suffers. Although the matter is therefore considered without any input by him he is entitled to know the final outcome. He has to be told when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may

H follow.In the present matter the applicant was not present and there is no

proof that he was served with a copy of the Notice of Judgment dated7 th October 1991.

On the other hand, and quite seriously, the applicant has held I back information he should have supplied if he really wanted to

have time extended. Just as he did not quite come out and say in so

ARCHARD v. A. MULWAN1 (Ramadhani,, J.A.) 129

many words that the proceedings were ex-parte - he said, instead, he A was unfortunately absent - he does not say when he eventually got to know that the judgment had been delivered. Both Mr. Subash Patel’s affidavit and Mr. Maira before me were conveniently silent on this vital aspect of the matter. Judgment was delivered on 17th October 1991. The Affidavit in support of the motion was not sworn until B17th March 1992. How can one know how long the applicant kept quiet after knowing the outcome? How can I agree that the applicant could not have instituted an appeal because he ‘could not have complied with Rules 76, 77 and 83’ - the Rules which impose time - scales? Mr. Maira is an experienced lawyer and it is difficult to see Chow he could have expected his client to have time extended without disclosing when he got to know of the existence of the judgment. It is not possible to gauge the extent of the delay.

I am unable to hold that sufficient cause for the delay has been established and so 1 dismiss the application, with costs. D

Application dismissed.

ARCHARD u ASTERIA MULWANI AND THOBIASTEGAMA1SHO F

[COURT OF APPEAL OF TANZANIA (Omar and Ramadhani. JJ.A. and Mapigano Ag. J.A.)]

9 June 1992 - MWANZAG

Customary Law - Bahaya Customary law - Whether a woman can sell clan land.

Civil Practice and Procedure - Powers o f the High Court - Whether the High Court can make any decision or order that could be made by the court o f first instance. H

The first respondent, a woman, sold clan land to the second respondent who did not belong to the same clan. It was not contested that the first respondent being a woman could not. in Bahaya customary law, dispose of clan land. The appellant clan member, Isued both respondents for recovery of the said clan land in

TANZANIA LAW REPORTS [ 1992] T.L.R

A Kamachumu Primary- Court. The court nullified the sale and gave the land to the appellant. The two respondents appealed separately to the District Court of Muleba which gave contradictory judgment. The appellant appealed to the High Court which set aside the District Court's decision, restored that of the Primary Court with justification

3 that the disputed land be restored to the clan and not the appellant in person. The appeal lant appealed to the Court of Appeal arguing that the High Court erred in rectifying the judgment of the Primary Court.

Z Held: Under section 29 (c) of the Magistrate’s Courts Act of 1984 the High Court has powers to make any decision or order which might have been made by the court of first instance.

Appeal dismissed.

Rweyemamu, for the AppellantAugustino Tegamaisho appeared with power of Attorney on behalf of the first respondent

E R am adhani and O m ar, JJ.A . and M apigano, Ag. J.A.: Itwas not in dispute that the first respondent, Asteria Mulwani, sold some clan land to the second respondent, Thobias Tegamaisho, who though a member of the larger family does not belong to the same clan or Ihiga as they call it in Bukoba. It was also not contested that

t*7 the first respondent being a woman could not in Bahaya customary law dispose of clan land. A woman has the right of possessing and utilizing clan land for the duration of her life. The appellant was aggrieved by that sale by the first respondent who is his paternal aunt. The appellant filed a suit in the Primary Court of Kamachumu

IG and sought to nullify that sale and restore the land to the clan.The trial court nullified the sale and ordered that “shamba

lirudi mikononi mwa mdai ”. That is: the land to revert into the hands of the plaintiff (now the appellant). The respondents were aggrieved and each appealed separately. Thus there were Civil Appeal No.

^ 52/86 and Civil Appeal No. 53/86 before the District Court of Muleba. The two were, and properly so, consolidated by the Senior District Magistrate. However, at the end of the day the learned Magistrate issued under his hand two separate and contradicting

, judgments.P The appellant appealed to the High Court where all parties

agreed that there was a gross irregularity. So. Mwalusanya, J.

ARCHARD v. A. MULWANI (Ramadhani,, J.A.) 131

nullified both judgments of the District Court. The learned judge had A this to say:

In view of the fact that the decision of the District Court has been set aside, 1 therefore order that the decision of the trial court is restored and so it prevails. The land in dispute reverts B to the clan. The 1st respondent should hold it in usufruct i.e. for her life time...

That order of the learned judge that the first respondent should have life-time use of the land aggrieved the appellant and hence C this appeal. There is only one ground of appeal on a point of law and that is that the learned judge, after he had declared the two judgments of the District Court null and void, erred in rectifying the judgments of the Primary Court as if there was an appeal before him instead of ordering a re-hearing of the appeal by the District D Court.

The appellant was represented by Mr. Rweyemamu, learned advocate, who said that the learned judge should have stopped at the point of declaring that the judgment of the Primary Court was restored. He argued that it was wrong for the learned judge to have E gone on to rectify the judgment of the Primary Court. The only course open to the judge, Mr. Rweyemamu submitted, was to permit an aggrieved party to go back to the District Court on appeal. He cited Kasusura and the Attorney General v. Kahuye | 1982]T.L.R. 338 as authority for the proposition that if a judgment is fatally defective F then there is really no judgment and the only course is the unusual one of setting it aside and ordering a retrial. Mr. Rweyemamu argued further that the High Court could not even step into the shoes of the District Court and do what that court could have done. The learned counsel distinguished the present appeal from Morali and Others v. G R, 11971J H.C.D. No. 145. He argued that in Morali there was a judgment but here was no judgment.

On behalf of the first respondent was Mr. Augustino Tegamaisho with powers of attorney to act for her. He contended that the High Court was right in doing what it did by virtue of section H 29(c) of the M agistrates’ Courts Act, 1984 (No. 2 of 1984).

The second respondent appeared in person and said that he had nothing to submit as he is no longer an interested party because he has already relinquished the piece of land in issue and that he has been refunded the purchase price he had paid for the plot since I 20/11/1987.

132 TANZANIA LAW REPORTS [I992J T.L.R

A Part III of the Magistrates’ Courts Act, 1984 deals with appeals from the Primary Courts. Powers of the High Court on such appeals are provided in section 29 and what is of particular significance here is paragraph (c) thereof which Mr. Tegamaisho referred us to. That provides as follows:

B29. In the exercise of its appellate jurisdiction under this Part, The High Court shall have the power -(a)...(b)...

C (c)make any other decision or order which might have been made by the court of first instance.

Thus in dealing with appeals emanating from the Primary Courts the High Court has the power to make any other decision or order

D which the Primary Court could have made. This is crucially important. The decision or order that Mwalusanya, J. made is the one which could have been made by the Primary Court. In fact that order was one which the Primary Court should have made. The prayer, as was properly pointed out by Mr. Tegamaisho, was that

E the land be returned to the clan. But the Primary Court gave it to the appellant who at no time had control over it. Besides it is the Bahaya customary law that the first respondent is entitled to use the clan land for her lifetime. Now that is what Mwalusanya, J. ordered.

Mr. Rweyemamu submitted that the High Court could not do F what it did since there was no judgment of the District Court. With respect

we do not think so. He referred us to our judgment in Kasusura and theA.G. v. Kabuye. But that case is distinguishable from the present one. The circumstances are totaly different as the following passage at p. 339 illustrates:

GWe have seriously considered whether we could assess the evidence of the witnesses from the typed record. We however are of the view that it is not possible to do so. We do not have the opportunity of seeing and hearing the witnesses. The trial

H judge should have evaluated the evidence of each of thewitnesses, assessed their credibility and made a finding on the contested facts in issue. He did not do so. In some cases an appeal court can be in as good a position as a trial court in evaluating the evidence of witnesses, but this is not one of

I those instances. We have therefore no relevant material before_us to base any finding, (emphasis provided).

ARCHARD v. A. MULWANI (Ramadhani,, J.A.) 133

The situation in this appeal was that Mwalusanya, J. had at A his disposal all that we complained not to be available to us in the Kasusura’s appeal. The Primary Court of Kamachumu, which tried the case, made them available. Thus though Mwalusanya, J. nullified both judgments of the District Court, he still had relevant material before him on which to base the order he gave. Besides, what were nullified B were the judgments while the proceedings before the District Court were left intact.

Mr. Rweyemamu tried to distinguish the present appeal from that of Merali to which we drew his attention. In Merali the East African Court of Appeal set aside the order for a re-trial given by C the High Court of Tanzania and then considered the three options it had. Two of those options are relevant here and these are: to order a re-hearing of the appeal or to deal with the appeal on its merits.The Court of Appeal decided to do the latter citing section 3(2) of the Appellate Jurisdiction Ordinance (Cap. 451) which gave it power D to step into the shoes of the High Court from which the appeal proceeded. This was what in effect Mwalusanya, J. did under section 29(c) of the Magistrates’ Courts Act, 1984 though he did not say so. In fact section 29(c) gives the High Court more powers than these of this Court under section 4(2 ) of the Appellate Jurisdiction E Act, 1979 (in pari materia with section 3(2) of Cap. 451 cited in M eralf s case). The Court of Appeal can only do what the court from which the appeal comes could have done. But the High Court can do what the original court i.e. the Primary Court, and not the District Court, could have done. F

This appeal must then fail. The order of Mwalusanya, J, that:

The land in dispute reverts to the clan. The 1st respondent should hold it in usufruct i.e. for her life time. If the 1st respondent does not take possession of the same, then the G clan council should sit and decide to allocate it to the deserving heir in the clan.

is upheld. The appeal is dismissed with costs.H

Appeal dismissed.

134 TANZANIA LAW REPORTS [19921 T.L.R

A MARWA NGEGA v. KJRIMAMASE AND OTHERS (COURT OF APPEAL OF TANZANIA

(Omar and Ramadhani, JJ.A. and Mapigano. Ag.J.A.)[

9 June 1992 - MWANZAB

Peoples M ilitia Law - Sungusungu - W hether may order compensation - Peoples' Militia Laws 1989.

The appellant was alleged to have stolen a village grinding machine. C After his arrest by the sungusungu, he appeared before the Baraza

la Jadi, a sungusungu organ, where he was “found guilty” of stealing the machine and ordered to compensate the village in the sum of shs, 60.000/=. He paid the amount. Then he appealed to the High Court where he was not successful, hence the appeal to the Court of

D Appeal. Among other things the Court of Appeal looked into the scope of powers given to sungusungu under the relevant law.

Held: (i) The Baraza la Jadi, a sungusungu organ, went beyond its powers when it compelled the appellant to make the compensation;

E (ii) the money paid as compensation was refundable to theappellant.

Appeal dismissed.

F Rugarabamu, for the appellant.

O m ar and Ram adhani, J,I.A. and Mapigano, Ag. J.A,: This action relates to the loss of a grinding machine which was the property of the Masurura Ujamaa Village situate in Musoma District,

G the proceedings of a Baraza la Jadi in respect of the machine and the upshots of those proceedings.

The chronology is a follows. The machine was stolen on December 12, 1986, during the night and it was never recovered. Several informations were subsequently laid to the secretary of the

H village, the third respondent Simon Warioba, which implicated six youths, the appellant included. On July 31,1987, the appellant was apprehended by members of the local Sungusungu group and brought before a meeting of the Baraza la Jadi. The said meeting was chaired by the first respondent Kirima Maso, the secretary was

I the third respondent, and the fourth and fifth respondents, i.e. Mwita Rubirya and Mwita Makori, attended the meeting as members of

M. NGEGA v. KIRIMAMASE {Mapigano, Ag. J.A.) 135

ihe Baraza. In course of the meeting the Baraza found that the A appellant was actually a party to the theft of the machine. The Baraza resolved that the appellant should make compensation in the sum of Shs. 60,000/=. He paid the amount of November 7, 1987, and it is quite likely that he did so after his cattle had been seized by Sungusungu to enforce the resolution of the Baraza. In January, 1988, B the appellant instituted a suit in the High Court at Mwanza against the respondents. The suit was one for damages for slander and assault, in respect of which he claimed a sum of Shs. 200,000/= and Shs. 100,000/=, respectively, and for a refund of the Shs. 60,000/= he had paid to the Village Government. On July 26, 1988, the High C Court dismissed the suit with costs.

In support of his claims the appellant told the High Court (Munyera, J.) that he had denied that he was involved in the theft of (he machine; that false and malicious statements were spoken of him at the meeting of the Baraza by the respondents imputing theft; that D he was subjected to the thorough drubbing of 100 strokes; and that thereafter the respondents directed that he should pay the compensation. He called no witness. The respondents denied each and every allegation. They stated that the appellant had admitted before the meeting of the Baraza that he had taken part in the theft of E the machine when that charge was put to him by the third respondent, and that the payment of the compensation was made by him in the context of that admission.

The learned judge was not satisfied that the appellant was unlawfully compelled to pay the compensation. Otherwise, he said. F the appellant had ample time between (he day of the sitting of the Baraza on July 31, 1987, and the day he paid the compensation on November 7, 1987, to contest the payment before higher authorities, which he did not.

The judge found that there was in fact publication of defamatory G allegations respecting the appellant in the meeting of the Baraza. But the judge was of the opinion that those statements were privileged and sincere. This is what he stated in his judgment:

It is the law that any publication imputing the commission of H a criminal offence is a defamation actionable per se. In this case there was such publication and the plaintiff was branded a thief. But it was agreed as well that the village’s grinding machine was stolen. The machine was owned communally and every villager had an interest in it. the eight defendants I inclusive. They were justified in trying to find the thief so the

136 T A N Z A N IA LAW REPORTS_________ 11992] T.L.R_____ - ~~ — * — — — —

A defamatory utterances against the plaintiff were made in a Dri vileeed occasion. they were not promoted by personal spite of a n y defendant. For that reason defamation is not proved.

In relation to the assault the judge also found that the B appellant's evidence had come short. He wondered how the appellant

coSd not produce even a single witness from the village to support hk ifhis allegations were really true. He found it hard to believe that the appellant would be able to walk from the meeting after he had received such a heavy thrashing. He adverted to the medical

r rhit innexed to the plaint and observed that the materials contained in that document did not tally with the thorough flogging described

by the a said ear|ier the judge dismissed the suit in its entirety and awarded the costs to the respondents. Aggrieved by the

D decision, the appellant lodged this appeal to us. We are surprised that it took the sub-registry almost three years to prepare the High Court proceedings. The appellant is represented by Mr. Rugarabamu, while the respondents appear in person.

We have heard and followed the arguments of both sides. E With regard to the slander, we are unable to fault the trial judge’s finding

that the s landerous statements were sincere and privileged to the extent that they were published to those people of Masurura who attended the Baraza meeting. Appellant’s Counsel has pressed upon us the subm ission that there were people from another village,

F Lyamisansia at that meeting, which is true. But if u is probable that the appellant adm itted that he had stolen the grinding machine, we think that the plea of justification was available to the respondents in that respect, and we are of the opinion that there was probably

G ^ aw tlT re g a rd to the sound flogg ing and the forced compensation, the problem was that it was only the word ot the appellant against the words of the respondents and we are disposed to share the m isgivings expressed by the trial judge. Just why the appellant could not produce even one witness to support his

H allegations, is not easy to understand. With respect to Mr. Rugarabamu, there was no ind irec tion on the standard of proof on the n m of the judge. What we understand the judge to have held is that in the circum stances of this case the evidence of the appellant alone was not sufficiently proponderant to estabish the allegations.

I We are not therefore, persuaded by the argument that the judge

Z. AUGUSTINO u A MUGABE (Ramadhani, J.A) 137

was wrong to hold that there was neither a flogging nor a forced A compensation.

We are clearly of the view, however, that the Baraza la Jadi a Sungusungu organ, went beyond its powers when it compelled the appellant to make the compensation. The powers vested in Sungusungu are limited. Under Section 3( 1) of the Peoples Militia B Laws (Miscellaneous Amendments) Act 1989, they enjoy the same powers of arrest for breaches of any provision of written law and search as those enjoyed by police constables. Once they arrest a suspect their duty is to take him to the police for any action the police may deem proper to take. The sooner this is impressed upon their C minds the better for the administration of justice. It seems to us, therefore, that the money paid as compensation was refundable to the appellant.

It follows from what we have stated this appeal should be dismissed in all respects, save that the sum of Shs. 60,000/= is to be D refunded to the appellant. It is ordered accordingly, it is also ordered that the appellant shall pay to the respondents only 75% of the costs, here and below.

Order accordingly.

ZUBERI AUGUSTINO v. AN1CET MUGABE [COURT OF APPEAL OF TANZANIA

(Omar and Ramadhani, JJ.A. and Mapigano, Ag. J.A.)] F

9 June. 1992- MWANZA

Civil Practice and Procedure - Damages - Special damages must be specifically pleaded and proved. G

Civil Practice and Procedure - Proof o f cos! o f repair - Vehicle engine blown o ff- Cost o f repair pleaded but not proved -Amount pleaded fa r below cost o f purchasing new engine - Whether amount pleaded awardable in the circumstances.

Civil Practice and Procedure - Devaluation o f the Tanzanian shilling H - Reasonable award fo r devaluation.

The respondent entrusted his mini-bus to the appellant with the ultimate intention of selling it. While in possession of the respondent the engine of the bus was blown off. In a suit filed by the respondent I in the High Court the appellant was found at fault and the respondent

138 TANZANIA LAW REPORTS 11992) T.L.R

A was awarded shs. 5 0 0 ,0 0 0 /= as repair costs, shs. 500,000/= for non­use of the bus and shs. 1 ,0 0 0 ,0 0 0 /= to off-set the devaluation of the shilling.

On appeal the a w a r d s by the High Court were attacked.

B Held: (i) It is trite law t h a t special damages must be specifically pleaded and proved; a l th o u g h pleaded cost of repair was not proved since the engine was b lo w n o ff and because it is a notorious fact that prices are rising in a s tro n o m ic proportions and that the amount pleaded cannot even buy a reconditioned engine we allow the amount

C pleaded;(ii) we hold it as a f a c t needing no proof that the value of our

shilling has been going d o w n very fast; however, the rate of 200% is very high and that a 509& rate is reasonable in the circumstances.

D Appeal dismissed.

Magongo, for the a p p e llan t.

Ram adhani and O m a r , JJ.A . and Mapigano, Ag. J.A.: The E respondent, Anicet M ugabe* sued two people: the appellant. Zuberi

Augustino, and another p e r s o n who was the second defendant. Daudi Missana, who was found n o t at fault and so did not have a reason to appeal.

The respondent o w n s a Toyota mini bus with registrationF number TZ 84061. He w a n te d to sell it so he asked the appellant to

look up for prospective buyers . The bus was entrusted to the appellant who drove it f r o m Nyegezi to Amini Mungu Garage in Mwanza town where it w a s agreed that it would be kept. That was on 2/12/1988. Two days la te r , on 4/12/88, the respondent was told

G that the bus had broken d o w n at Kisesa. It was not denied that the engine of the bus was b lo w n off and the respondent towed the vehicle to Mabula Garage where i t is to date.

The High Court o f T a n z an ia at Mwanza {Munyera, J.) found the appellant at fault and aw arded the respondents Shs. 500,000/=

H he had prayed for as r e p a i r costs, another Shs. 500.000/= for the non-use of the bus and S h s . 1,000,000/= to off set the devaluation of the shilling.

The appellant w a s represented by Mr. Magongo, learned advocate, and he had six g ro u n d s of appeal which in the course of

I hearing he abandoned a l l b u t two. In the first ground the complaintis that special damages h a v e been granted by the learned judge which

Z. AUGUSTINO V. A MUGABE (Ramadhani, J.A) 139

were not specifically proved and indeed the award for the non-use A had not even been specifically pleaded. Then the other ground is that the devaluation at the rate of 200% granted by the learned judge is manifestly excessive.

The respondent was not represented and in effect did not make any submissions in reply to the two grounds of appeal. B

It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved. Cost of repair was pleaded but not proved. The respondent merely slated it to be Shs. 500,000/=. However, the learned trial judge was satisfied that the engine of the bus was completely blown off and is in fact beyond C repair. It is a notorious fact that prices are rising in astronomic proportions and that the amount pleaded cannot even buy a reconditioned engine. So though repair costs have not been specifically proved we allow the amount pleaded. Then as already said, non-use was not all pleaded. However, it was not disputed D that the appellant was using the bus for passenger trips between Mwanza town and Kisesa and the engine was damaged in that process. He definately got some advantage which he should not be left to benefit from his wrongful acts. We agree with Mr. Magongo that the respondent intended to sell the bus. But that could not E preclude him from putting it into use. Besides, he wanted to sell the bus so as to realise money with which to buy a tractor which he believed would be more profitable. Those plans have yet to materialise. So it is our well considered opinion that the respondent is entitled to some relief and we would sustain the award of Shs. F 500,000/= under the prayer of “any other relief this Court may deem just and fit to grant". We so grant.

The award for devaluation has exercised our minds greatly.We hold it as a fact needing no proof that the value of our shilling has been going down very fast. However, we agree with Mr. G Magongo that the rate of 200% is very high. We think a 50% rate is reasonable in the circumstances of this case. Thus we allow shs. 250,000/= for the devaluation.

In the end result we grant a total of Shs. 1,250,000/= with an interest of 10% from the date the vehicle was damaged, that is 4/ H 12/1988, to the date of payment.

The appeal is dismissed except to the extent allowed above.The appellant is to pay 75% of the costs both here and below.

Appeal dismissed. I

140 TANZANIA LAW REPORTS [ 19921 T.L.R

A MASWEDA ADIGA v. REPUBLIC(HIGH COURT OF TANZANIA (Chipeta, J.))

12 June 1992 - MWANZA

B Criminal Practice and Procedure - Assessors - Compliance with Rule 3 o f G.N. 2 o f 1988.

Criminal Practice and Procedure - Compensation - Order given against a person convicted o f receiving part o f stolen property.

Criminal law ~ Receiving stolen property - When offence established.C

The complainant had his 37 fishnets stolen. Two of them were found in the possession of the appellant who subsequently was charged with and convicted of the offence of receiving stolen property. He was sentenced accordingly and ordered to pay shs, 237,000/= to

D the complainant as compensation. After unsuccessfully appealing to the District Court the appellant appealed to the High Court, A number of grounds were argued in the High Court. First, that the record in the Primary Court did not show that the magistrate consulted assessors before preparing the judgment as required by

E rule 3 of G.N. No. 2 of 1988. Second, that the compensation order was improper.

Held: (i) Failure to show on record that Rule has been complied with would not necessarily be fatal if, on a careful perusal of the

F record, it is plain that there had been consultation;(ii) there was a substantial compliance by the trial court with

Rule 3 of G.N. 2 of 1988;(iii) in order to prove a charge under section 311(1) of the

Penal code, it must be established that the accused received orG retained the property in question, and that he received or retained

the same with guilty knowledge in the sense that he knew or had reason to believe that the same had been stolen or otherwise feloniously obtained or disposed of;

(iv) the compensation order was not justified.

Appeal allowed in pari.

Rugarabamu, for the appellant;Magoma, for the respondent.

MASWEDAADIGA u REPUBLIC (Chipeta, J.) 141

Chipeta, J .: In Kome Primary Court, the appellant, Maswena A Adiga, was charged with and convicted of the offence of receiving stolen property contrary to s. 311 (1) of the Penal Code and was sentenced to pay a fine of Shs. 5.000/= or six months imprisonment in default. He was further ordered to pay Shs. 257,000/= to the complainant as compensation. He unsuccessfully appealed to the B District Court of Sengerema. This. then, is his second appeal.

The prosecution’s evidence, as given by the complainant and his three witnesses, was to the following effect: at the material time the complainant had 37 fishnets and had three employees, namely, Filberti Mayaka, Ndalahwa Kipipi. and Juma Bugatu (all of whom C testified), who were trapping Fish on behalf of the complainant. All the 37 fishnets had special identity marks written on the bouys, and ropes. The bouys were marked MAKI LTD and three dots -... The ropes were marked with red and green colours, while the bouys were painted green. D

On 24/8/89, the three employees went fishing, and at about9.00 a.m. they left the fishnets at the lakeshore. When they went to the spot next morning, they found all the fishnets missing. They looked for the missing nets for several months. It was not until on 19th May,1990 that they found two of the 37 fishnets at Ntama village in E possession of the appellant. The two Fishnets were produced at the trial as Exhibit ‘A’. The appellant claimed that those two fishnets were his own property. The two fishnets were found to have identity marks of the complainant.

In his defence, the appellant simply said that the two fishnets F seized by the complainant and his employees were his own property.He said that his fishnets had letter ‘M \ But when asked to examine the fishnets in court and point out letter ‘M \ there was no such letter ‘M \ Besides, the appellant did not even attempt to say from where he obtained the two fishnets. G

On that evidence, the trial court found as a fact that the two fishnets were among the 37 fishnets of the complainant which had been stolen, and it is in fact, inferred that the appellant was a guilty receiver.

During the hearing of this appeal, Mr. Rugarabamu. learned H counsel for the appellant, had the following submissions to make.In the first place he submitted that the trial was illegal because the learned Primary Court Magistrate did not sum up the case to the assessors nor did he seek their opinions. In any case, he submitted, the record does not show that he consulted the assessors before I

142 TANZANIA LAW REPORTS [ 1992J T.L.R

A preparing the judgment as required by rule 3 of G.N.No.2 of 1988.Secondly, and in the alternative. Mr. Rugarabamu sumitted that

the evidence of identification of the two nets was inconclusive in that the witnesses did not say what marks were on the nets. On this point, he relied on the case of Republic v. Adam Iddi and Another [1976]

B LRT n. 18Thirdly, learned counsel submitted that the nets were not

produced in court as exhibits, and so they could not make the gravamen of the trial. Here the learned counsel referred the court to the case of Dharamshi v. Republic [1977] LRT n.52.

C Fourthly, learned counsel subm itted that it was notsatisfactorily proved that 37 nets were stolen and so the order of compensation was improper.

Finally, learned counsel submitted that since the appellant used servants to do the job, it has not been shown that the appellant

D knew that the nets were stolen property, and so he cannot be held liable because there is no vicarious liability in criminal law.

Mr. Magoma. learned senior state attorney, submitted that the learned trial magistrate throughout involved the assessors up to the time of assessment of the sentence. So it is clear that he observed

E rule 3 of G.N. No.2 of 1988. That being so, the trial was not a nullity.

On the question of identification of the two nets, Mr. Magoma submitted that evidence of identification was watertight as the four witnesses gave identical descriptions of the nets. On the question

F of the assenting members of the court, and the dissenting members will give a brief statement specifying findings of fact and the law, his decision on the issue and the reasons for it. (See Rule 4( 1) and (2) of the Rules.)

As was conceded by both learned counsel, the Rules do not specify G how the consultation is to be done. In my view, this must necessarily be

done in private, and 1 think that it would be desirable if the record did show that Rule 3 has been complied with. However, I do not think that failure to show on the record that Rule 3 has been complied with would necessarily be fatal if, on a careful perusal of the record, it is plain that

H there had been consultation. To hold otherwise would be to cling to the letter and thus miss the substance of the matter. As the Latin Maxi goes, Qui Haeret in Liiera Haeret in cortice (He who clings to the letter clings to the dry and barren shell and misses the truth and substance of the matter).

I In the present case, the trial court’s record reveals that thetrial magistrate involved the assessors at every stage of the trial

MASWEDA AD1GA v. REPUBLIC (Chipeta, J.) 143

right up to the sentencing process and the order of compensation. A Throughout, the language of the court shows that there was a consensus among all members of the court. Even the judgment reveals that. In my considered view, therefore, there was a substantia] compliance by the trial court of Rule 3 of G.N. No. 2 of 1988, To hold to the contrary would be to go contrary to the letter and spirit of the provisions B of s.37(2) of the Magistrate’s Courts Act. 1984, which I need not reproduce here.

1 now turn to the question of guilty knowledge. It is certainly the law that in order to prove a charge under s .311 ( I ) of the Penal Code, it must be established that the accused received or retained C the property in question, and that he received or retained the same with guilty knowledge in the sense that he knew or had reason to believe that the same had been stolen or otherwise feloniously obtained or disposed of. (See Republic v. Adamu Iddi and Another (supra).) D

In the instant case, the appellant had insisted that the two nets were his own property, and this was in the face of everwheiming evidence of identification of the fishnets. Some of the identifying marks were so clear that no owner of the fishnets could possibly have mistaken them. A fortiori, some of the identifying marks had E been interfered with on some of the buoys. In those circumstances,I am of the view that the trial court’s inference of guilty knowledge on the part of the appellant was fully justified. The appellant’s conviction, therefore, was inevitable on the evidence on record.

Finally, I turn to the question of compensation. I am prepared F to accept the complainant’s evidence that in all 37 fishnets were stolen. His evidence was that he bought the same from shops, and he gave their total value to be Shs. 257,000/=. Unhappily, he lead no further evidence as to how he arrived at that figure. He did not even say how old they were. Be that as it may the crucial question is G whether the order of compensation was justified. In my view, it was not. The charge against the appellant was receiving stolen property and not theft. What was proved was that he received two fishnets if the charge preferred and proved had been that of stealing.The order of compensation in this case amounted to speculation to H the effect that the appellant had received all the 37 stolen fishnets, which is absurd.

In the final analysis, this appeal fails as against the conviction and sentence. However, the order of compensation is hereby set aside. I

144 TANZANIA LAW REPORTS 11992] T.L.R

B

CSELEMAN1 SEMBIKO v. REPUBLIC [COURT OF APPEAL OF TANZANIA

(Makame, Kisanga and Omar, JJ.A.)]

17 June 1992 - DAR ES SALAAM

D Bills o f Exchange - Negotiable instruments - Cheque - Payee gives assurance cheque has been cleared and consequently delivers the goods bought - Later same payee informs cheque has not been cleared and seeks restoration o f the goods - Whether goods can be restored - Whether there is failure o f consideration.

The appellant wanted to buy a car from M/s Cooper Motors Corporation Ltd. Since the seller insisted that payment must be in US dollars the appellant approached a third party who drew a cheque in favour of the corporation. The appellant undertook to reimburse

F the drawer in local currency. Upon the appellant presenting the cheque to the corporation it was made clear to him that the motor vehicle would be realised to him only after the cheque was cleared and the proceeds thereof received by the Land Rover Factory in England. After about a month the corporation informed the appellant

G orally and later by a letter that the cheque had been cleared. Theappellant reimbursed the drawer of the cheque. The Corporation delivered the motor car to the appellant.

Later the Corporation claimed that the cheque had not been cleared. Such revelation was followed by criminal proceedings

H which ended up with acquittal of the appellant and others and an order that the motor vehicle be restored to the Corporation. This appeal was against the restoration order.

Held: (i) Once the Corporation had repeatedly assured the appellant 1 that all was all right and that it had duly received the proceeds of

the cheque; it seems plain to us that the corporation cannot validly

E

SELEMANI SEMB1K0 v. REPUBLIC (Kisanga, J.A) 145

be heard to come back to the appellant and allege that it has not A received consideration for the motor vehicle, contrary to its own earlier assurances which were as clear and unambiguous as they could possibly be;

{ii) the restoration order was wrongly made in as much as it purported to benefit the corporation which was all along to blame. B

Appeal allowed.

Mkatte, for the appellantC

K isanga, M akam e and O m ar, J J .A .: The appellant Selemani Sembiko and two others were jointly charged in the District Court with obtaining a motor vehicle by false pretences from Messrs Cooper Motors Corporation Limited, hereinafter to be referred to simply as the Corporation. The three of them were also charged D jointly on a related count of making a false document, and the appellant alone was charged on yet a further related count of uttering a false document. After a full trial they were all acquitted on all the counts with an order, however, that the motor vehicle in question be restored to the Corporation. The appellant’s appeal to the High E Court against the said order was unsuccessful, hence this second appeal.

The background to the case was briefly as follows: The appellant is a managing director of a firm known as Steadfast Tanzania Limited duly registered and operating in Tanzania. Some F time in 1988 he approached the Corporation for the purchase of a new Land Rover for his firm. He was given a quotation of US$33,145.00 for it, and it would appeal that the Corporation insisted on the payment being effected in foreign currency. Whereupon the appellant approached one Damas Nilah, a business associate and G co-accused at the trial, for help. This latter in turn approached a European friend of his called Danied Snadon who was operating a company called East African Sailing Safari duly registered with the Registrar of Business names with its place of business at the Yatch Club in Dar es Salaam. Between these three, an agreement H was reached whereby the owner of the East African Sailing Safari issued a cheque in foreign currency for the purchase of the motor vehicle and the appellant undertook to re-imburse him in local currency while Damas Nilah guaranteed the re-imbursement.

Upon the appellant presenting the cheque to the Corporation, I it was made clear to him that the motor vehicle would be released

146 TANZANIA LAW .REPORTS i 19921 T.L.R

^ to him only after the cheque was cleared and the proceeds thereof received by the Land Rover Factory in England. After about one month the appellant was called by the Corporation to be informed that a telex message was received from the Land Rover Factory England stating that the money on the cheque was duly received.

B and that the Corporation could now proceed to process delivery of the motor vehicle to the purchaser. This was yet followed by a letter by the Corporation by which the appellant was further assured that the cheques had been honoured and payment of it had been duly effected. In reliance of these assurances the appellant proceeded to

C re-imburse the drawer of the cheque to the tune of Tsh. 4,000,000.00 being the equivalent in foreign currency of the purchase price of the motor vehicle. In the meantime the Corporation duly processed delivery of the motor vehicle in favour of the appellant's firm, the Steadfast Tanzania Limited.

iD Some time after delivering the motor vehicle, however, theCorporation claimed lhat the Land Rover Factory in England sent information that the very cheque which earlier on was said to have been cleared and the proceeds thereof received in England had been dishonoured by an Australian bank with which the drawer once

E operated an account but had since closed it. Such revelation was followed by criminal proceedings which, as stated before, ended up with the acquittal of the accused persons and the order now under review.

The basis for the concurrent decisions of both courts below F to restore the motor vehicle to the Corporation was that the

Corporation had received no consideration for the motor vehicle, and that the appellant’s remedy, if any, was to sue the East African Sailing Safari. Mr. Mkatte, learned advocate who represented the appellant both in this Court and in the High Court, however,

G submitted in effect that the Corporation was at all material times the holder of the cheque in due course for value, and that as such it was the Corporation, not the appellant, which was to seek relief by suing the drawer of the cheque.

This matter is not free from difficulty. Admittedly the H argument of both courts below that the Corporation had received

no consideration for the motor vehicle would have much force if there was nothing more to it. But that argument obviously overlooked or played down some important consideration, namely, that it was the Corporation itself which was the author of its own

1 misfortune. The Corporation had made it clear to the appellant that the motor vehicle would not be released until the foreign cheque

SELEMANI SEMBIKO v. REPUBLIC (Kisanga, J.A) 147

was cleared and the proceeds thereof were received by the Land A Rover Factory in England. The appellant was agreeable to that and waited patiently for about one month after which the Corporation gave him repeated assurances that all was well, that the cheque had been honoured and that payment of it had been effected. It was on the strength of such repeated assurances that the motor vehicle was B released or delivered to him. In other words the Corporation had assured him that it had duly received consideration for its motor vehicle, otherwise it would certainly not have parted with it.

The appellant for his part, acting on the Corporation’s repeated assurances, went ahead and re-imbursed the drawer of the foreign C cheque in local currency in the amount equivalent to what the Corporation made him believe that it had duly received as the price of the motor vehicle. That was clearly consideration for the motor vehicle on the part of the appellant. Then the question is: In these circumstances what further was required of the appellant to make D his claim over the motor vehicle a valid one? Surely once he was assured that the cheque was valid and had been duly honoured, it would be idle to expect him to turn to the drawer of the cheque for any questions regarding the cheque.

Once the Corporation had repeatedly assured the appellant E that all was all right and that it had duly received the proceeds of the cheque, it seems plain to us that the Corporation cannot validly be heard to come back to the appellant and allege that it has not received consideration for the motor vehicle, contrary to its own earlier assurances which were as clear and unambiguous as they F could possibly be. Had the Corporation not given those assurances, the transaction would not have been concluded. If as now claimed by the Corporation the drawer of the cheque had closed his account, the Corporation which was having the cheque ought to have brought this to the notice of the appellant who would then take up the matter G with the drawer of the cheque in order to prevent anyone being defrauded. But the Corporation was negligent. It did not care to establish or ascertain the true status of the cheque, i.e. whether it was drawn on an account that had since been closed,even though the Corporation had up to about one month to do this. Not only H that. The Corporation went on to feed the appellant with wrong information about the status of the cheque saying that it was valid and had duly been honoured, thereby inducing the appellant to part with his Tshs. 4,000,000.00 believing that he was reimbursing the drawer of the cheque for foreign currency in respect of the purchase 1 price for the motor vehicle. All along it was the Corporation, not

148 TANZANIA LAW REPORTS [ 1992] T.L.R

A the appellant, which was to blame; in our view the Corporation must bear the consequences that flow from there.

We are firmly of the view that the restoration order was wrongly made in as much as it purported to benefit the Corporation which was all along to blame. If the Corporation received no

B consideration for its motor vehicle from the appellant, this was because of the Corporation’s own misleading assurances that it had duly received such consideration. Had it not given such misleading assurances, appropriate steps would have been taken to ensure that the Corporation duly received consideration for its motor vehicle.

C On the other hand the appellant, acting on the Corporation misleading assurance or information gave consideration for the motor vehicle by reimbursing the drawer of the cheque for the foreign currency which the Corporation made him believe that it had received from the said cheque as being the price of the motor

D vehicle. In our view, the appellant had done all that was required of him to make his firm’s claim over the motor vehicle valid.

In the result the appeal succeeds. We accordingly reverse the order in question, and direct that the motor vehicle in question shall remain in the name of the registered owner, The Steadfast Tanzania

E Limited.

Appeal allowed.

F

G MATHEI FI DO LINE HAULE v. REPUBLIC[COURT OF APPEAL OF TANZANIA

(Makame, Kisanga and Omar, JJA .)]

17 June, 1992 - DAR ES SALAAMH

Evidence - Confession - Cautioned statement o f a person who is alive and available admitted under section 34 Evidence Act - ■Whether proper.

Evidence - Confession - Murder - Admission by appellant that he I had assaulted his mother - Whether confession o f murder.

MATHEI F.HAULE v. REPUBLIC (Kisanga, J.A.) 149

The appellant assaulted his mother whom he believed to be a witch. A In convicting the appellant the trial judge relied on two pieces of evidence. The first was a statement the appellant made to his village chairperson that he had assaulted his mother. The second was a cautioned statement alleged to have been made by the appellant before a police officer who at the time of the trial was reported B dead. The trial judge Treated both pieces of evidence as confession.

Held: (i) The mere admission by the appellant that he had assaulted his mother could not really be taken to amount to a confession to the offence of murder with all its essential ingredients, especially C as at the time the a_p_pellant was making the admission the victim was still alive’and receiving treatment at the hospital; (

(ii) section 34 of the Evidence Act was inapplicable to the facts and circumstances of this case, and consequently the learned trial judge wrongly admitted the alleged cautioned statement of the D appellant in evidence.

Appeal allowed as limited.

Mbuya, for the appellant ESenguji, for the respondent

Kisanga, M akam e and O m ar, JJ.A .: The appellant was charged with and convicted of murder contrary to section 196 of the Penal Code and sentenced to death by the High Court < Kazimoto. F J.) sitting at Songea. He is now appealing against both conviction and sentence.

Briefly, the facts of the case were as follows: The appellant is the son of the deceased woman. The two had been in some misunderstanding apparently arising from the appellant’s belief that G the deceased had, by witchcraft, caused the disappearance and subsequent death of his child. The case for the prosecution was that acting on such suspicions the appellant set out to the home of the deceased on the material night and, on finding her, struck her with a stick on the head. Later the deceased died in hospital following H the head injury thus inflicted.

In his defence at the trial the appellant, denied assaulting the deceased and put up an alibi.

In convicting the appellant, the trial judge relied Cm two pieces of evidence: One is that which he treated as a confession made by I the appellant to his village chairman or chairperson Cotride Msangu

150 TANZANIA LAW REPORTS |1992] T.L.R

A (P.W.1), The other pieces is a cautioned statement alleged to have been made by the appellant to a police officer who at the time of the trial was reported dead, and in which the trial judge also took the view that the appellant had confessed to the offence charged.

Mr. Mbuya learned advocate who argued the appeal before B us submitted that the alleged cautioned statement of the appellant

was wrongly admitted in evidence. Indeed the defence had objected to its admissibility at the trial, but the objection was overruled and the court proceeded to admit it under section 34 of the Evidence Act which may be invoked where it is sought to put in evidence the

C statement of a witness who died before he could testify orally. But the cautioned statement in this case is attributable to the appellant who is both alive and available. It is not a cautioned statement of the police officer who allegedly recorded it from the appellant and who is now reported dead. As such. Mr. Mbuya contended, the

D provisions of section 34 of the Evidence Act could not be prayed in aid here.

Mr. Senguji, learned State Attorney for the respondent Republic at first took the view that the cautioned statement was rightly admitted in evidence, but upon reflection he conceded that

E it was not. We are in entire agreement with counsel for both sides. We are satisfied that for the reasons set out hereinbefore section 54 of the Evidence Act was inapplicable to the facts and circumstances of this case, and consequently the learned trial judge wrongly admitted the alleged cautioned statement of the appellant in

F evidence.That leaves the alleged confession to P.W.l as the only

evidence implicating the appellant with the offence charged. P.W. 1 testified that she was the village chairman or chairperson of her village. At about 10 O’clock in the night the appellant called oh

G her and stated that he had a big problem, namely, that he had assaulted his mother and that he was now asking P.W. 1 to go to the victim and plead for forgiveness for him. Whereupon P.W.l advised the appellant to remain at her house for the night, as it was already late, and promised to take up the matter the following morning. On

H the following morning she handed over the appellant to the police for appropriate action.

As stated before, the appellant in his defence at the trial vehemently denied assaulting his mother and equally denied to have told P.W, 1 what he is alleged to have said to her. However, the trial

I court believed P.W.l and rejected the appellant’s denial and we

MATHE1 EHAULEv. REPUBLIC (Kisanga, J.A.) 151

could find no fault with that. The assault on the deceased was clearly A unlawful.

The question which arises is whether what the appellant said to P.W.l amounted to a confession to the offence of murder. A confession within the context of criminal law is one which admits m terms the offence charged, ft is one which admits all the essential B

~eTements or ingredients ot theoffence. Anjdmission of one or only some of the ingredients of the offence is noTsufficient. In theinstant case all that the appellant said to P.WVT was that he had assaulted his mother. Admittedly assault, or to be more precise, an unlawful assault is an essential ingredient of the offence of murder with which C the appellant was charged. But it is by no means the only one. There are other essential ingredients such as the intention on the part of the prisoner to kill or cause grievous bodily harm, and the fact that the victim in question is in fact dead. Thus the mere admission by the appellant that he had assaulted his mother could not really be D taken to amount to a confession to the offence of murder with all its essential ingredients, especially as at the time the appellant was making the admission the victim was still alive and receiving treatment at the hospital.

On the other had it is plain from the evidence thal following the E appellant’s assault on the deceased the deceased was taken to hospital for treatment where she died about six days later, and there is no evidence of any intervening act of assault by anyone else. The post­mortem examination repnrt shows that ihe deceased had sustained a compressed fructure of the skull which caused brain injury and F intracranial bleeding leading to the death. The only conclusion to be drawn is that the deceased died from injuries following the assault, inflicted on her by the appellant.

But we could find no clear evidence of malice aforethought on the part of the appellant. It is not clear what intention the appellant G had when he assaulted the deceased. It is not clear whether he wanted to kill her or cause her grievous bodily harm or whether he simply wanted to punish her out of anger for thinking that she was the cause_ p f his child’s disappearance and its subsequent death. Nor is there any evidence as to whal weapon, it any was used in assaulting the H deceased, nor the extent of the depressed fructure of the skull. In the circumstances we feel inclined to give the benefit of doubl to the appellant. Consequently we find the charge of murder not proved beyond reasonable doubt. However for the reasons already stated' we find the appellant guilty of the lesser offence of manslaughter and I convict him accordingly. *

152 TANZANIA LAW, REPORTS [1992] T.L.R

A As regards sentence, we must state at once that this was a badcase of manslaughter bordering on murder itself. This fact must be reflected in the punishment to be awarded. The appellant is accordingly sentenced to ten (10) years’ imprisonment. The appellant’s appeal is therefore allowed to this limited extent.

BAppeal allowed in part.

C

D.T. DOBIE & COMPANY (TANZANIA) LTD, v.N.B. MWATEBELE

ICOURT OF APPEAL OF TANZANIA D (Kisanga. Ramadhani and Mnzavas, JJ.A.)|

19 June 1992 - DAR ES SALAAM

Court o f Appeal Rules - Limitation fo r filing appeals - When does E time start to run - At the time o f receiving proceedings or when

certificate o f assurance o f completeness o f record o f proceedings is given

After being dissatisfied by the decision of the High Court, the F advocate for the appellant indicated his intention to appeal and

received the record of the appeal on 11.1 L 91. He thought however that the record was incomplete and wrote to the registrar requesting to be supplied with the missing part(s). The registrar wrote back on13.12.91 saying that the record was complete and. on request, he

G issued a certificate under rule 83( 1) of the Court of Appeal Rules to that effect. The appellant’s advocate filed his appeal on 17.1.92. At the hearing of the appeal the advocate for the respondent filed a notice of motion raising a preliminary objection that the appeal was time barred claiming that the 60 days time limit, counted from

H 11.11.91, ended on 12/1/92.

Held: (i) Where there are no grounds for thinking that a certificate of assurance of completeness of record of proceedings is incorrect or improper court would not interfere with it;

I (ii) Where a party, on reasonable grounds, writes to theregistrar asking for missing part(s) of the proceedings, the limitation

D.T. DOB IE v. N.B. MWATEBELE (Kisanga, J.A.) 153

period does not begin to run against such a party until he receives A either the part of proceedings asked for or an assurance that the proceedings sent to him were complete.

The preliminary abjection fails.B

Uzanda, for the Appellant Raithatha, for the Respondent

K isanga, R am adhani and M nzavas, JJ .A .: When this appeal was due hearing, Mr. M. Raithatha. learned counsel for the C respondent, filed a notice of motion raising a preliminary objection that the appeal is time barred.

The background to the matter is quite short. Mr. Uzanda, learned advocate for the appellant, had written to the Registrar, High Court, for the supply of a typed copy of proceedings for the purposes D of preparing the record of appeal in this case, and the same was duly supplied on 11.11.91. He noticed, however that the record was incomplete and therefore he addressed another letter to the Registrar requesting to be supplied with the missing part or parts. The Registrar wrote back on 13.12.91 saying that what he had supplied was the E complete set and that there was no part missing. This was followed by requests to the Registrar for a certificate under rule 83( 1) of the Court of Appeal Rules which certificate was eventually supplied to the learned counsel on 8.1.92. The relevant part of the certificate reads: F

This is to certify that a period from 3rd January, 1991 when M/S. Donaldson and Wood and Co. Advocates for the Appellant applied for copies of certified proceedings to 13th December, 1991 when the same were supplied to the G Appellant’s Advocate is to be excluded as such days were required for the preparation and delivery of the proceedings to the said Advocate.

Relying on this certificate. Mr. Uzanda filed the appeal on 17.1.92. H

Mr.' Raithatha’s contention as we understand it is to the effect that the Registrar’s certificate is misleading because it talks of supplying a copy of proceedings to counsel for the appellant on13.12.91 when in fact those proceedings were supplied on 11.11.91. 1Emphasizing that no proceedings were in fact supplied on 13.12.91,

(54 TANZANIA LAW REPORTS [ I992J T.L.R

A he contended that the limitation period ought to run from 11.11.91 when the proceedings were in fact supplied and not from 13.12.91 aS the Registrar’s certificate purports to say, because no proceedings were supplied on that day. Thus, Mr. Raithatha went on. the appellant ought to have filed the appeal within 60 days of his receipt of the

g copy of proceedings on 11.11.91, which gave him up to 12.1.92. The appellant, however filed the appeal only on 17.1.92, which made him out of time by 5 days.

Resisting the objection, Mr. Uzanda argued that the appeal was in time because it was within the time limit set out in the

C Registrar’s certificate. He submitted further that the Registrar was empowered by the Court of Appeal Rules to issue the certificate and that it was not competent to question or go behind such certificate.

We have to point out at once that the Registrar’s certificate is D not, and cannot be, beyond question. It is true that the Registrar has

power to issue the certificate under the proviso to rule 83( I ) of the Court of Appeal Rules. But we are quite clear in our minds that if there are gounds for thinking that the certificate is incorrect or otherwise improper, that would justify interfering with it. However,

E we are satisfied that there are no ground for interfering with the certificate in this case.

As stated earlier, when Mr. Uzanda received the copy of proceedings on 11.11.91 and noticed that some part was missing, he wrote to the Registrar to request for the missing part, but the Registrar

F replied on 13.12.91 saying that what he had supplied was the complete set, and that there was no part missing. A glance through the record of appeal confirms Mr. Uzanda’s claim that the proceedings sent to him were incomplete even though the Registrar’s assurance is to the contrary. For example, Mr. Uzanda had asked to be

G supplied with the first part of the proceedings which, both counsel who also represented the parties at the trial are agreed, related to the giving of the ex-pcirte judgment, but that part of the proceedings is not reflected on the record of appeal. Mr. Raithatha argued that in any case the ex-parte judgm ent was not essential for the

H preparation of the record of appeal. For, the ex-parte judgment was set aside, and the suit proceeded to hearing leading to this judgment now being appealed against. So that, counsel argued, the non­inclusion of it in the proceedings by the Registrar could not constitute a valid ground for Mr. Uzanda writing to request for the supply of

I it and thereby prevent the limitation period from starting to run against him.

D.T.DOBIE v. N.B. MWATEBELE(Kisanga. J.A.) 155

We have carefully considered this submission but we could A not acceed to it. Mr. Uzanda had the conduct of the case. As such he was entitled to require to be supplied with the material which he considered necessary for the preparation of the record of appeal. Perhaps one can say with some justification that the ex-parte judgm ent was not necessary for the preparation of the record of B appeal after one has studied the proceedings closely and after deciding what grounds of appeal one was going to raise. But it is less certain whether one could do so only after the initial perusal of the proceedings. Mr. Uzanda wrote to request for the missing part of the proceedings on 13.11.91, that is, only about a day or two after C receiving the set of proceedings. It is obvious that he wrote the request only after the initial and quick perusal of the proceedings. It could be doubted whether at that stage he could say with certainty that the ex-parte judgment would not be necessary for the preparation on the record of appeal. In this respect it is pertinent to note Mr. Uzanda’s D remarks at the hearing of this objection that even after receiving the Registrar’s reply that the set of proceedings sent to him was complete, when in fact it was not, he was still of the view that he needed the missing part but thought that it was pointless to persist on his request because it was then evident that it would yield no results. E Consequently he decided not to write further on that aspect of the matter and instead proceeded to prepare the record on the incomplete set of proceedings.

We are therefore satisfied that Mr. Uzanda had reason to write to the Registrar to ask for the missing part of the proceedings, and F the question now is: What effect, if any, did this have on the limitation period? Mr. Raithatha takes the view that since the Registrar replied saying that the set of proceedings sent was complete, then the period of limitation started to run as from 11.11.91 i.e. the very day the said proceedings were sent. For, counsel went G on, the Registrar did not send anything on 13.12.91 when he wrote to say that the set of proceedings was complete. In this connection Mr. Raithatha pointed at the Registrar's certificate as being CTFoneous for citing 13.12.91 as the day when the proceedings were supplied to counsel for the appellant because, he stressed, nothing was sent H on that day. Although this argument has some force, we are of the view that it cannot succeed. We think that where, as in this case, a party on reasonable grounds writes to the Registrar asking for missing part or parts of the proceedings, the period of limitation does not begin to run against such party until he receives either the I part of proceedings asked for or an assurances lhat the proceedings

156 TANZANIA LAW REPORTS 11992] T.L.R

A sent to him were complete and there is nothing further to be supplied. The question whether the missing part was necessary for the preparation of the record of appeal is no doubt relevant but the decision of the Court on that issue must depend on the facts and circumstances of each case.

B As has been shown, Mr, Uzanda in this case did not receivethe missing part of the proceedings which he had asked for. Rather he received the assurance, which was obviously erroneous, that the set of proceedings sent to him was complete and that there was nothing further to be communicated to him. That assurance was

C sent to him on 13.12,91. In our view that was the date on which the period of limitation began to run against him. Under rule 83{ \ ) of the Court of Appeal Rules he was required to lodge the appeal within 60 days from that date. He was well within that period when he did lodge the appeal on 17.1.92.

D Admittedly the Registrar’s certificate is misleading for referring to 13.12.91 as the date on which the copy of proceedings was sent to the appellants advocate. For, as Mr. Raithatha rightly pointed out, no proceedings were sent on that day. We think, however, that this was a mere slip of the pen, and that the Registrar

E must have meant to refer to that date as being the date on which heinformed the appellant’s counsel that the set of proceedings sent to him earlier on was complete. At any rate, we are quite satisfied that the error was harmless and did not affect the validity of the certificate, and that Mr. Uzanda was perfectly entitled to rely on it,

F as he did, in lodging the appeal.In the result the preliminary objection fails and it is accordingly

dismissed with costs.

Appeal dismissed.G __________________

THOMAS MJENGI v. REPUBLIC (Mwalusanya, J.) 157

THOMAS MJENGI v. REPUBLIC A[HIGH COURT OF TANZANIA (Mwalusanya, J.)]

23 June, 1992-DODOMA

Legal Representation - Legal A id- Denial o f right to legal aid paid B fo r by the state -Right to be informed o f the right to legal representation by the trial court.

Criminal Practice and Procedure - Sentencing - Power o f subordinate courts in sentencing - Mandatory minimum sentence o f 30 years imprisonment unconstitutional - Corporal punishment C unconstitutional - The disproportionate test. ,

Constitutional Law - Derogation clause - Interpretation and applicability.

Criminal Law - Armed Robbery - An offence under section 285 and 286 o f the PenaI Code. D

In an appeal against conviction and sentence the judge found that the subordinate trial court erred in not informing the appellants of their right to free legal aid paid for by the state and that the subordinate trial court had no power to sentence the appellants to a E term of imprisonment of a period exceeding eight years. The judge also found that the mandatory minimum sentence of 30 years imprisonment and corporal punishment were unconstitutional and were not saved by the derogation clause in the constitution. The judge also found that the offence of armed robbery exists in the F Penal Code.

Held: (i) The trial is a nullity because the appellants who are indigent were denied of their statutory and constitutional right to legal representation paid for by the state; G

(ii) the trial was also a nullity because the appellants were not informed of their right to have legal representation;

(iii) as regards sentence, the fmal magistrate had no power to pass a sentence of over eight years imprisonment;

(iv) the m andatory m inim um sen tence of 30 years H imprisonment under the minimum sentences Act No. 1 of 1972 as amended by Act No. 10 of 1989 is unconstitutional and void becauseit is an inhuman and degrading punishment;

(v) the mandatory minimum sentence of 122 strokes of corporal punishment is unconstitutional and void as it is an inhuman I

158 TANZANIA LAW REPORTS |I992J T.L.R

A and degrading punishment prohibited by article 13(b)(e) of the Constitution. The proper test whether a punishment is inhuman and degrading is the disproportionate test;

(vi) a derogation clause should not be interpreted as entitling the government to impose vague or arbitrary limitations on basic

B human rights; but that limitation should be reasonable and only be invoked when there exists adequate safeguards and effective remedies against abuse;

(vii) armed robbery is provided for in sections 285 and 286 of the Penal Code. It is committed where the offender is armed with

C any dangerous or offensive weapon or instrument.

Mwalusanya, J.:

I. IntroductionD

The two appellants Thomas s/o Mjengi and Ramadhani s/o Mussa whose appeals have been consolidated were charged and convicted of robbery with violence c/s 285 and 286 of the Penal Code Cap. 16. They were each sentenced to the prescribed minimum sentence

E o f 30 years im prisonm ent and ten(sic) strokes of corporal punishment. They are now appealing against conviction and sentence. Under s.3 of the Legal Aid f Criminal Proceedings) Act No. 21/1969 I granted legal aid to the two appellants so that an advocate paid for by the government could argue their appeals. One

F Mr. Mbezi was assigned to prosecute the appeal on behalf of the appellants.

Counsel for the appellants Mr. Mbezi in his amended memorandum of appeal, raised three matters of constitutional importance and which are of public interests. The matters involve

G the interpretation of our Constitution with regard to the basic freedoms and rights. The Senior State Attorney, Dodoma who is the representative of the Attorney General was duly served with the amended memorandum of a p p e a le d was quite aware of the constitutional matters raised - and so s. !7A(2) of the cap. 360 as

H amended by Act No. 27/1991 was duly complied with.The three constitutional matters raised are:

First that the trial was a nullity because the indigent appellants were denied their right to free legal aid payable by the state nor were they informed of their right to engage counsel at their own expense;

I ’ secondly that the mandatory Minimum Sentence of 30 years imprisonment is an inhuman and degrading punishment and so

THOMAS MJENGI v. REPUBLIC (Mwalusanya, J.) J59

unconstitutional; Thirdly that corporal punishment is an inhuman A and degrading punishment and so unconstitutional. Besides those three constitutional matters, counsel Mr. Mbezi has also stated that the conviction was against the weight of evidence; and that the appellants were convicted of armed robbery an offence which is non-existence in the Penal Code and in any case they were convicted B with an offence they had not been charged with.

II. The Right to Legal Representation

On this point counsel for the appellants Mr. Mbezi based his C argument on my recent decision in the case of Khamisi Hamis M anyw ele i\ R. Dodoma H.C. Crim. Appeal No. 39/} 990 (unreported), which I understand has gone to the Tanzania Court of Appeal, on appeal by the D.P.P. Therefore I will not spend much time discussing the genesis of the right to legal representation, as D most of the points canvassed were thoroughly documented in the Manywele case (supra).

Suffice here to briefly state what that right is all about. The right to legal representation stands on two legs: The constitutional right and the statutory right. E

The constitutional right to legal representation stands on two legs - first under Art. J3(6)(a) o f our Constitution which provides for the right to be heard. There are three persuasive authorities which interpret the phrase 'fair'hearing’ in their Constitutions to include the right to legal representation paid for by the State for an indigent F person whose constitutional rights are at stake. First we have the case of Powell v. Alabama {1932) 287 U.S.45 decided by the U.S.A. Supreme Court. Then from Zimbabwe the Supreme Court there in the case o f Dube & another The State: Supreme Court Judgment No.2 12/1988. That case is defended by Hon. Mr. Justice A.R. G Gubbay of the Zimbabwe Supreme Court in his paper of ‘Third Commonwealth Africa Judician Conference’ in Lusaka, Zambia April 1990, Titled ‘Judicial Review in the enjoyment of Human Rights’ published in the Commonwealth Law Bulletin Vol. 16 No.3 of July 1990 from pp. 992- 1001. The third persuasive authority is H the decision of the Supreme Court of the Republic of Ireland in the case of The State (Healy) v. Donoghue (1976) 1R.325. That decision is defended by the Hon. Mr. Justice John Kenny of the Supreme Court of the Republic of Ireland in his article ‘A Bill of Rights’ published in the Northern Ireland Legal Quarterly ( 1979) Vol. 10 I No.3 at p. 195.

160 TANZANIA LAW REPORTS [1992] T.L.R

A The second leg on which the constitutional right rests is onthe right to personal freedom under Art. (15(2) of our Constitution. That Article stipulates that no one shall be deprived of his personal liberty except by procedure established by law. In India in the case of Maneka Gandhi v. Union o f India (1978) 2 S.C.R. 248,

B interpreting a similar provision, it was held by the Supreme Court there, that no procedure can be regarded as reasonable, fair and just which does not afford legal representation to an accused person who is placed in jeopardy of his life or personal liberty in a criminal proceedings. The above decision was in principle adopted by the

C Tanzania Court of Appeal in the case, of D.P.P. v. Daudi Pete: Crim. Appeal No. 28/1990 (unreported). The right to legal representation for the poor, includes the right to be informed of that right by the trial court, so decided the supreme Court of India in the Maneka Gandhi case (supra). The Hon. Mr. Justice Bhagwati, the

D former C.J. of India defends the above case, in his article ‘Human Rights as evolved by the jurisprudence of the Supreme Court of India published in the Commonwealth Law Bulletin Vol. 13 No. 1 of January 1987 at pp.230 - 245.

In fact the right to legal representation for the poor is recognized E all over the world. !t is contained in the Universal Declaration of

Human Rights (1948), the International Covenant on Civil and Political Rights (1976), Art. 7(1) of the African Charter of Human and People’s Rights (1981), and Art. 6(3) (1) of the European Convention on Human Rights (1950). Therefore the right to legal

F representation is accepted by the community of nations as a birthright for every human being.

That is why I hold that the S tatu tory right to legal representation is contained in s. 310 of the C.P.A. No.9/1985 as interpreted in the light of international human rights stands and

G norms as above adumburated. In short s. 310 of the C.P.A. should be interpreted to mean that those who can afford to pay have a right to legal representation; and those who cannot afford to pay (i.e. who are poor) have an equal right to free legal aid paid for by the state, as provided in the Legal Aid (Criminal Proceedings) Act No.

H 21/1969. that right includes the right to be informed of that right by the trial court. Perhaps it important to emphasize that, the above construction of s.310 of the C.P.A. is inevitable in the light of international human rights standards and norms. As Mr. Justice A.R. Gubbay of Zimbabwe Supreme Court states at p. 999 (in his

I article cited above):

THOMAS MJENGI v. REPUBLIC (Mwalusanya, J.) 161

In giving meaning to legislation on human rights expressed Ain general or even vague terms, where uncertain or incomplete, there is ample scope for a Judge to look to international developments and drawn upon them in seeking a solution.International human rights instruments and precedents......provide invaluable information and guidance. A judicial Bdecision has greater legitimacy and will command more respect if it accords with international norms that have been accepted by many countries, than if it is based upon the parochial experience or foibles of a particular Judge or Court.

CThat is one way of reaching at the conclusion that there exists a statutory right to legal representation for the poor i.e. by way of seeking guidance from international human rights instruments

The other way of establishing the statutory right to legal representation is the generous and purposive construction of S .3) 0 D of the C.P.A interpreted in the light of Act No. 21/1969. Those provisions were enacted to inculcate in our heads that justice should not only be done, but should be seen to be done. It will be recalled that before the 1969 legislation, the right to legal representation for poor accused persons was restricted to capita! offences (murder, E treason and manslaughter). However after the 1969 Act, the right to legal representation for poor accused persons was extended to cover non-capital offences like theft, causing grievous harm, robbery e.t.c. which are triable by the District Courts and R.M.’s Courts.

Counsel for the appellants Mr, Mbezi has exclaimed at the F existing anomaly. He said for offences like incest or written threats to murder, punishable with a maximum of not more 5 years and 7 years imprisonment respectively, the offenders are provided free legal aid by the State simply because the offences are triable by the High Court. However offenders charged with offences like armed G robbery, punishable with a minimum of 30 years imprisonment, are not provided with free legal aid. simply because the offender is charged in a subordinate court. That is unfortunate. It is submitted that the correct interpretation of the decision of the Tanzania Court of Appeal in the case of Laurent s/o Joseph v. R. [1981 ] T.L.R. H 351, is that in either case whether the offence is trible by the High Court or subordinate court, the trial is a nullity if the indigent accused person was not provided with counsel, at least for all serious offences.

That a certifying authority under s.3 of the Legal Aid (Crim. 1 Proceedings) Act No. 21/1969 has a discretion to refuse or grant

162 TANZANIA LAW REPORTS 11992] T.L.R

A legal aid to a poor accused person, is a myth. The E. A.CA. in the case of Mohamed s/o Salim v. R: [1958] E.A. 202 which originated from Tanganyika, said at p. 203:

That in such a case (the certifying authority) should give the matter anxious consideration before deciding to refuse a

B certificate for legal aid on the ground of sufficiency of means;that a reasonably liberal interpretation ought to be placed on the section and that in case of doubt the discretion should be exercised in the prisoners’ favour.

C I wish only to point out that s.3 of the Poor Prisons Defence Ordinance Cap.21 which the above case was interpreting is in pari materia with our s. 3 of Act No. 21/1969. In fact Prof. James Read in his tours de force article 'The Advantage o f Counsel' in the ‘East African Law Journal’ Vol. VIII NO. 4 (1971) concludes at p.294

D that the certifying authority has no option but to grant legal aid if the accused is poor. He says:

Although the decision in the Gales Hired v. The King: [ 1944] A.C. 149 turned in part upon the mandatory nature of the

E legislative provision for legal aid in Somaliland, it has beenregarded as establishing a general principle - see for example, the remarks of E.A.C.A. in Samson v. R. [1958] E.A,681 at p. 682 at p. 683 where they said: ‘We do not think that anything turns upon the fact that appellants were entitled as of right to

F have an advocate assigned’. See also the judgment of Bennet J.of High Court of Uganda in Yusufu s/o Gita v. R. [1958] E.A. 211 at p. 213: ‘Every accused has the undoubted right to be defended by counsel.

G It is astonishing to learn that since 1969 the members of theJudiciary and the Bar have with a calculated conspiracy of silence, buried their heads in the sand like ostriches, pretending that they are unaware of the above authorities of the E.A.C.A. Without shame they have glorified the right of these who can afford to be defended

H by counsel, while quite obvious to the similar right of poor persons tried by subordinate courts. Such an anomalous practice can be seen in such cases as: D.P.P. v. Rugaimkamu [ 1982] T.R.L. 139; Alimasi Kalumbeta v. R: [1982] T.L.R.329; Joshwa s/o Nkonoki v. R. [1978] L.R.T. n. 24, Mugema v. R: [1967] E.A. 676. The poor

I accused persons triable by the subordinate courts and Economic Crimes Courts have been completely forgotten. The judiciary and

THOMAS MJENGI v. REPUBLIC (Mwalusanya, J.) 163

members of the Bar are in the dock for having left the poor accused A persons in the cold for far too long since 1969.

Counsel for the Republic Mr. Kifunda was candid enough to concede that a poor accused person has a statutory right to be provided with free legal aid and to be informed of that right by the trial court. He .said that that right stems from the purposeful B construction of s.310 of the C.P.A. as read in the light of s. 3 of the Act No. 21/1969. He said for all serious offences triable by the subordinate courts, poor accused persons have the right to free legal aid paid for by the state. He conceded that the trial in this case was a nullity, and said that he would pray for a retrial. C

However Mr. Kifunda would not go as far as stating that a poor accused person has a constitutional right to free legal aid. He said that so long as an accused person has failed to perform his duties to society by committing a crime, then he forfeits his rights to free legal aid as per Act 29( I ) of our Constitution. It is the same D point that prompted Mr. Kifunda to appeal to the Tanzania Court of Appeal in the Manywele case (supra). The short answer to that argument is that it is faulty in that it presupposes that the poor accused person has already been found guilty. And 1 wonder if it makes any great difference if the right to free legal aid for poor E accused persons is founded on a sta tu tory provision or a constitutional provision.

In the event 1 held that the trial was a nullity because these poor appellants were denied of their statutory and constitutional right to free legal aid, and were not informed of that right by the F trial court.

III. Mandatory Minimum Sentence of 30 years imprisonment whether an inhuman and degrading punishment

GUnder Act.l3(6)(e) of our Constitution, it is provided that,

for the purposes of ensuring equality before the law, the state shall make provisions to the effect that no person shall be subjected to torture or to inhuman or degrading treatment.

The test as to whether a mandatory minimum sentence is H inhuman and degrading is the disproportionate test which is now universally recognised. Punishment which is so excessive, arbitrary, unusual or disproportionate to the offence as to shock the public conscience, that is the conscience of a reasonable man is prohibited.The provision encompasses a cardinal principle of human justice. I namely that punishment should be proportional to the offence for

164 TANZANIA LAW REPORTS [ 1992] T.L.R

A which it is enacted. The said provision draws its meaning from the evolving standards of decency that mark the progress of a maturing society. The disproportionate test was first propounded in the U.S.A. by the Supreme Court in the case of Weems v. Uniled States (1910) 217 U.S. 349 which was discussing the eighth Amendment of the

B U.S. constitution. The matter was revisited in Tropp v. Dulles () 958) 356 U.S. 86, L. Ed. 630 and later in the case of Furman v. Georgia: (1972) 408 U.S. 238 and the case of Hart v. Ceiner: (1973) 433 F. 2d. 136.

The above mentioned test was adopted by the supreme CourtC of Papua New Guinea in Reference by the Marobe Provincial

Government (1958) L.R.C. (Const.) 642. In there a bench of five judges sat to decide if the Summary Offences Act which provided for mandatory minimum sentences of 10 years and other mandatory minimum fine sentences were constitutional and not an inhuman and

D degrading punishment. Among the five judges, three (Bred meyer, Kaputin and McDermott JJJ.) agreed that the disproportionate test was the proper test in the circumstances. However the other two judges (Kidu C.J. and Kapi D .C.J.) did not agree that the disproportionate test ought to be invoked.

E Two of the three judges who invoked the disproportionatetest (i.e. Bredmeyer and Kaputin JJ.) held that:

1. That the minimum penalties here, although high were not so excessive as to offend Act. 36 of the Constitution. They

F said that although the sentences were very severe, theywere not so disproportionate as to be regarded as excessive and unconscionable. They said the sentences reflected a legitimate need for strongly deterrent penalties, providing an index of contemporary community standards.

G2. The minimum penalties do not infringe the constitution

because the harshness of those penalties is tempered by s. 138 of the District Court Act which allows for imposing lesser sentences if special reasons are shown as regards

H character, antecedents, age, health or mental condition ofthe accused or trivial nature of the offence or to the extenuating circumstances under which the offence was committed.

1 On the other hand the third judge Me Dermott J. invoking the disproportionate test found that the minimum sentences prescribed

THOMAS MJENGI v. REPUBLIC (Mwalusanya, J.) J65

offended the constitution because each of them imposed a penalty A which would be wholly disproportionate to the offence in readily imaginable situations, as the impugned legislation treated all offences in each category as equally reprehensible up to an arbitrarily set level of punishment, preventing the court considering any of the usual factors relevant in sentencing individuals. B

More recently the Zimbabwe Supreme Court invoked the disproportionate test in the case of The State v.Arab [ 1990] l.Z.L.R. 253. It concerned the precious Stones Trade Act, 1978 which prescribed minimum sentences for those found dealing in precious stones illegally. The appellant was convicted of dealing in emeralds C and was sentenced to three years imprisonment, being the minimum sentence. The court found no special reasons which could make it pass a sentence lesser than the minimum. The Supreme Court held that the power of the trial court to consider and if appropriated find special reasons allowed for a sentence which was not necessarily D disproportionate. So the provision was held not to be un­constitutional. A disproportionate test had earlier been invoked by the Zimbabwe Supreme Court in Ncube, Tshuma and Ndhlovu v.The State [1988] 2 S.A.L.R. 702(ZS) a case which concerned the constitutionality of the punishment of whipping. E

In Botswana, the Court of Appeal in the case of the State v. Petrus [1985] L.R.C. (Const.) 699 agreed that the disproportionate test was the appropriate test to find out if any punishment prescribed by legislation was constitutional or not i.e. it was not cruel, inhuman and degrading punishment. F

The above discussion vindicates my earlier statement that the disproportionate test is universally recognised and accepted. I adopt it for use in Tanzania. It will be seen from the above discussion that the disproportionate test focuses on two factors which may render the punishment unconstitutional: First if the minimum sentence is Garbitrarily fixed. Secondly if the sentence is inherently excessive or unconscionable.

On the first point I am satisfied that the Minimum Sentences Act No. 1/1972 as amended by Act No. 10/1989 has fixed the minimum sentences arbitrarily. What the challenged legislation here H effectively does is treat all offences as equally reprehensible up to an arbitrarily set level of punishment. Thus all offences of armed robbery have a minimum sentence of 30 years, while simple robbery has a minimum of 15 years, attempted armed robbery a minimum level of punishment is simply not called for. This crudely applied Iacross - the board, approach denies to the person being punished

166 TANZANIA LAW REPORTS 11992| T.L.R

A any consideration of the following factors: degree of participation, the age of the offender, the offender’s previous good record, the remorse and prevalence of the offence e.t.c. If the courts in Tanzania were allowed to pass a lesser sentence if special reasons are adduced, then that would have been alright and the legislation would have been

B constitutional as shown by the two cases cited above (Morobe case)from Papua New Guinea and the Arab case from Zanzibar. In order for the Act No. 1/1972 to be Constitutional, s .6 (l) of the Act should be amended such that special reasons should be allowed to be adduced for every convict and not only to those

C convicted on property not exceeding T.Shs. 100/=!!! Moreover the Minimum Sentences Act in applying minimum terms of imprisonment carte-blanche preclude considerations being given to (a) probation (b) conditional discharge (c) suspended sentences (d) entering into recognizances etc. That much il has rendered

D the impugned legislation to be arbitrary and disproportionate.On the second point. I am of the considered view that the

minimum sentence of 30 years imprisonment is disproportionate because il is excessive or unconscionable even for the offence of armed robbery. A punishment is ‘excessive’ if it makes no

E measurable contribution to acceptable goals of punishment and hence is nothing more than the purpose and needless imposition of pain and suffering. Brian Slattery in his book A Handbook on Sentencing in Tanzania (1972) E.A. Literature Bureau says at p. 27:

FPunishment for criminal offences is generally viewed as serving one or more of three main purposes: (a) deterrence, boih of the criminal himself (special deterrence) and also of society at large (general deterrence), (b) the rehabilitation of the criminal;

G and (c) restraint - the isolation of the hardened or dangerouscriminal from society. These objectives are seen as constituting the ultimate justification for sentence imposed by a court in place of the more traditional view which simply holds that evil men deserve to be punished, which notion is sometimes called 1

H retribution orthe notion of justice.

The government takes rehabilitation as of top priority as shown in s.6l of the Prisons Act No. 34/1967 - wherein emphasis is laid on training of prisoners so that when the prisoner comes out he becomes

I a good citizen usefully se lf em ployed. Now the 30 years imprisonment is self-defeating because that period is the life-

THOMAS MJENCI v. REPUBLIC (MwalusanyaJ.) 167

expectancy of a Tanzanian, on the average, and so the rehabilitation A policy is not in place. It appears the government on enacting those severe sentences had in mind only retribution and restraint of the offenders. Bui it should be remembered that restraint of offenders is reserved for recidivists only (hardened and dangerous criminals). And retribution as a sentencing policy is old fashioned and B uncivilised as is espouses sadism? It will be seen therefore that the punishment of 30 years minimum sentence, goes beyond legitimate penal objectives and does not bear a rational relationship to the accomplishment of penological goals which are of sufficient importance to justify its severity. The 30 years'imprisonment is C indeed purposeless and needless imposition of pain and .suffering, as the legislative purpose could be served by a less severe punishment.

Therefore to suggest that our Parliament had seriously addressed itself to the whole issue of sentencing is a premise which D is obviously suspect. This is because it is both simplistic and unrealistic to suggest that an increase in the severity of punishment by itself will have any significant impact on existing patterns of crime.

Where moral values are central to a problem such as crime, E the legal system struggles to achieve even incidental significance.The working of the criminal justice system can have little, if any, impact on complex sociological phenomena. Any discussion of crime and punishment inevitably overlooks, the heart of the dilemma. Really, what we have is a major problem involving F education and policing.

A sociological phenomenon cannot be effectively influenced by judicial band-aiding. Imposing harsh sentences indiscriminately is nothing other than Kangaroo justice. It just does not work and stands little chance of effectively influencing current crime rate. So G we cannot look for the courts alone, otherwise that would be a fundamental misunderstanding of the role of the courts. All that the justice seem can reasonably do at the present time is to maintain a predictable and reasonable response to the increasing crime rate, in terms of what most Tanzanians really and truly might be the H consequences of detection on conviction (moderate prison sentences). Any major change can only be effected at the political level, when, if ever, our legislators are encouraged to get serious about what has become a problem of grave national importance. It is my finding therefore that the minimum sentence of 30 years is I unconstitutional because it is inhuman. It is inhuman because it is

168 TANZANIA LAW REPORTS [ I992J T.L.R

A disproportionate and excessive - as it makes no measurable contribution to acceptable goals of punishment; and goes beyond legitimate penal objectives. It bares no rational relationship to the accomplishment of pennologica! goals. As White J. said in the case of Furman v. Georgia (supra) at p. 391 this punishment is with

B only marginal contributions to any discernible social or public purpose. A penalty with such negligible returns to the State would be patently excessive and unusual and cruel punishment violative of the Eighth Amendment.

Therefore 1 don’t agree with the State Attorney Mr. Kifunda C that the sentence of 30 years imprisonment is proportionate to the

offence of armed robbery. I subscribed to the view canvassed by the defence counsel Mr. Mbezi that the sentence of 30 years is too severe to deserve to be termed inhuman and cruel. Mr. Mbezi also contended that under Art. 15(2) of our Constitution, Parliament is empowered

D to take away the personal freedom of an individual only by using law which is fair, reasonable and not arbitrary. He said that the law on criminal procedure and evidence should be fair and reasonable; and that the law on sentencing should also be fair and reasonable. That he said is the full import of the case of D.P.P. v. Daudi Pete Crim.

E Appeal No. 28 of 1990 (CAT) which had cited the Indian case of Maneka Gandhi u Union o f India ( 1978) 2 SCR 248, So he said that since a sentence of 30 years im prisonm ent is patently excessive, then it offends the doctrine expounded in the Daudi Pete case. At this stage, all I can say is that there is merit in the

F argument brought forth by the defence counsel.

IV. Corporal Punishment - is it a torture or inhuman and degrading punishment?

G Corporal punishment is one of the punishments permissible under s. 28 of the Penal Code Cap. 16 and where imposed, it is to be inflicted in accordance with the Corporal Punishment ordinance Cap. 17 and the Corporal Punishment Order (G.N. 74/1930 and G.N. No, 76/1941) made thereunder. The independent government

H of Tanganyika made corporal punishment mandatory for certain offences under the Minimum Sentences Act No. 29/1963. The Bill was greeted with enthusiasm by parliamentarians some of whom went even further than the government proposals suggesting more torture as part of punishing offenders - see L.P. Shaidi in his

I “Explaining Crime and Social Control in Tanzania Mainland: An Historical Socio-economic Perspective”, A Ph.D. Thesis submitted

THOMAS MJENGI v. REPUBLIC (Mwalusanya. J.) 169

to the University of Dar es Salaam in 1985, at pp, 323-331 where A the author quotes the Parliamentary Debate.

In 1972 mandatory corporal punishment was abolished by the Minimum sentences Act No. 1/1972 only to be brought back in 1989 by Act No. 10/1989. Once again the honourable members of Parliament shocked the nation by applauding the re-introduction of B corporal punishment. One member even suggested that such punishment should be administered in public (market place) and that women offenders should not be exempted - see the Daily News of 25/4/1989.

D efending the Bill against an objection of a lone C parliamentarian on the ground that corporal punishment might be contrary to the Bill of Rights, the Minister for Justice and Attorney General argued that bandits and robbers were breaching the rights of other citizens and therefore it was in the interest of the community at large that corporal punishment was being re-introduced. The D Minister proffered his legal opinion that the Constitutional validity of the proposed law would be covered under the derogation clause Art. 30 of the Constitution - see Radio Tanzania Report of the Parliamentary proceedings, excerpts broadcast live on 24/4/1989.

It appears to me that basically two different situations can E render punishment to be cruel, inhuman and degrading. First a punishment which is not inherently inhuman or degrading may become so by the mode of execution. Secondly that certain types of punishment are inherently or by their nature cruel, inhuman or degrading e.g. infliction of acute pain and suffering. I shall discuss F these two situations seriation.

As stated above the mode of executing of the punishment can render that punishment to be cruel and degrading. That was the decision of the full bench of five judges of the Court of Appeal of Botswana in the case of The State v. Petrus & Anar: (1985) L.R.C. G (Const.) 699. That court led by Maisels P. held that the manner of punishment which was administered by repeated and delayed instalments of corporal punishment was ultra vires the constitution.The legislation there had provided that the convicted person should be given four strokes each quarter in the first and last years of his H term of imprisonment, and the prescribed penalties of imprisonment with corporal punishment were mandatory sentences. In the course of its decision, the Court of Appeal drew support from decisions of the European Court of Human Rights, the U.S. Supreme Court and to a strong dissenting opinion of the Privy Council in Riley & others I

J 70 TANZANIA L-AW REPORTS 11992) T.L.R

A v. A.G. o f Jamaica (1982) 3 All ER 469. In fact Hon. Mr. Justice Aguda said at p.p. 727 - 728:

1 am entirely in agreement with the submission of Mr. Hodes for the appellants that corporal punishment administered by

B instalments when tacked onto a term of imprisonment, cannot but bring about aggravated torture upon the human being made subject to that sort of punishment. To describe such a type of punishment as degrading is perhaps the very least that can be said of it.

CIn fact that was the view of the State Attorney Mr.Kifunda in this case. Commenting on the manner or mode of executing punishment as one of the causes of cruel punishment Mr. Justice Blackman of the U.S. Supreme Court in the case of Jackson & others v. Bishop

D (1968) 404 F. 2d 571 said at pp. 579 - 580:

There can be no argument that excessive whipping or an inappropriate manner of whipping or too great frequency of whipping or the use of studded or over long straps, all

E constitute cruel and unusual punishment. Corpora) punishmentgenerates hate toward the keepers who punish and toward the system which permits it. It is degrading to the punisher and to the punished alike. This record cries out with testimony to this effect from the expert penologists, from the inmates and

F from their keepers.

Now Tanzania like Botswana has a legislation which sanctions corporal punishment by instalments. The Minimum sentences Act No. 1/1972 as amended by Act No. 10/1989 introduced corporal

G punishment by instalments. The Corporal punishment Ord. Cap, 17 is amended in s. 12 whereof corporal punishment shall be inflicted in the instalments, each consisting of six strokes, the first instalment at the commencement of the term of imprisonment and the other immediately before the person in question is Finally released. That

H is a horrible situation.It is noteworthy that postponed whipping or whipping by

instalments was deemed as cruel as long ago as 1880 in apartheid South Africa. In the case of Queen u Nortje (1880) I EDC 231 the Eastern District Court of South Africa held that corporal punishment

I by instalments (pan of the lashes to be inflicted at one end the reminder at the expiration of the sentence) was illegal. The case of

THOMAS MJENGI v. REPUBLIC (Mwalusanya ,J.) 171

Queen u Hans Windvogel and Anor 11881] 2 E.D.C. 98 is to the A same effect. That court fond it highly objectionable to sentence persons to lashes to be inflicted at the expiration of a sentence of hard labour. It is my Finding therefore that corporal punishment in this case, is unconstitutional because it is cruel, inhuman and degrading as it is inflicted by instalments. B

The second situation 1 earlier alluded to, is as to whether corporal punishment is inherently and by its very nature is cruel, inhuman and degrading. The leading case in this regard is the decision of the European Court of Human Rights which was cited with approval both by the Zimbabwe Supreme Court and the C Botswana Court of Appeal. It is the case of Tvter v. U.K. (1978) 2 E.H.R.R.l, where a 15 year old boy was sentenced by a juvenile court in the Isle of Man to three strokes of the birch on conviction of assault. The Court found that, while the punishment in the instant case did not constitute torture, or inhuman punishment.it did amount D to degrading punishment and therefore was in violation of Act 3 of the European Convention which is identical to our Act. 13 ( I6)(e) of our constitution. The substantive paragraph in the judgment deserves to be quoted in extenso, they said at p. 11:

EThe very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence, that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried Fout by the police authorities of the state. Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment whereby he was treated as an object in the power of the authorities - Constituted an assault on precisely that which it is one of the main purposes of Act. 3 to Gprotect, namely a person’s dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects. The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact H that those inflicting it were total strangers to the offender.

The aura of official procedure attaining corporal punishment that the European Court refers to with apparent disgust is even mere disgusting in Tanzania under the Corporal punishment order which I provides:

172 TANZANIA LAW REPORTS 11992) T.L.R

A 2. A sentence of corporal punishment shall be inflicted upon adults upon the bare buttocks with a light rattan cane which is free from knots. Such cane shall be not less than half an inch and not more than five-eights of an inch in diameter and shall not exceed Forth-two inches in length.

B4. During the infliction of a sentence of corporal punishment

the person undergoing punishment shall be so secured that he cannot, by reason of the movement of his body, cause the strokes to fall upon any other part of his body

C then upon which they are to be inflicted in accordancewith this Order.

If as in this case, one has to use a value judgment, it seems to me that the corporal punishment incapably falls within the definition

D of inhuman and degrading punishment.In the case decided by the Supreme Court of Zimbabwe Ncube,

Tshunut & Ndhlovu v. The state (1988) L.R.C, (Const.) 442 after reviewing the position in Zimbabwe, South Africa. U.K., Canada, Australia and The United States Mr. Justice Gubbay

E concluded that:

Fortunately on the few occasions where the issue of whether whipping is Constitutionally defensible has been judicially considered, it appears to have resulted in little difference of

F opinion, whether imposed upon an adult person or a juvenile offender the punishment in the main has been branded as both cruel and degrading.

Mr. Justice Gubbay described the penalty of whipping as:G

... not only inherently brutal and cruel. It is relentless in its severity and contrary to the traditional humanity practised by almost the whole of the civilised world, being incompatible with the evolving standards of decency.

HThe approach to constitutional interpretation adopted by the Zimbabwe Supreme Court and Botswana Court of Appeal has been in Bangalore. India in February 1988. The Bangalore Principles which that meeting adopted, recognised and affirmed the relevance

I and importance of:

THOMAS MJENG1 v. REPUBLIC (Mwalusanya, J.) 173

... a growing tendency for national courts to have regard to A these international norms for the purpose of deciding cases where the domestic law - whether constitutional, statute or common law - is uncertain or incomplete.

That view was reiterated by the Commonwealth Judges in the Harare B declaration o f Human Rights (H arare principles - Judicial Colloquium in Harare, Zimbabwe 19-22nd April 1989) and also in the Banjul Affirmation (Judicial Colloquium in Banjul. The Gambia 7th to 9th November, 1990).

It is gratifying to note that the Nyalali Commission (1992) C (The Presidential Commission on whether Tanzania should adopt a one-party or multi-party system) in its Report, Book Three at p. 10. holds the view that corporal punishment is inherently cruel, inhuman and degrading and contrary to Art. 13(6)(3) of our Constitution. Such a considered view from eminent Tanzanians should weigh D highly on this court. There can be no doubt that corporal punishment is against the dignity of man as stipulated in Art.9( I )(a) of our Constitution which is part of the Fundamental Objectives and Directive Principles o f State Policy. The Zimbabwe Supreme Court in the Ncube case (supra) on the same theme said: E

The raison d'etre underlying section 15( 1) is nothing less than the dignity of man. It is a provision that embodies broad and idealistic notions of dignity, humanity and decency, against which penal measures should be evaluated. It guarantees that Fthe power of the State to punish is exercised within the limits of civilised standards. Puni shments which are incompatible with the evolving standards of decency that mark the progress of maturing society or which involve the unnecessary and wanton infliction of pain, are repugnant. Thus a penalty that Gwas permissible at one time in own nation’s history is not necessarily permissible today. What might not have been regarded as inhuman or degrading decades ago may be revolting to the new sensitivities which emerge as civilisation advances. H

Those decisions on the unconstitutionality of corporal punishment are examples of the prudent application of international human rights norms to domestic human rights law. They identify with evolving standards of decency and humanity. Tanzania cannot be left behind 1in that boat.

74 TANZANIA LAW REPORTS 11992] T.L.R

i) Therefore when the Atiomey - General suggests above that corporal punishment is constitutional because it is saved by the derogation clause in Act. 30(2)(b) of our Constitution, it beats my comprehension. Act. 30(2)(b) states that a legislation which infringes the constitution is valid if it is wholly for ensuring the interests of

U defence, public safety, and public order. However as pointed out by the Tanzania Court of Appeal in the case of the D.P.P. v. Daudi Pete Criminal Appeal No. 28 of 1990, any derogation clause must meet the proportionality test or reasonableness test. It should be given a restricted but purposive construction, so that the basic rights

C of the citizens are not marginalised nor completely emasculated by the derogation clause. For the derogation clause to apply to a given situation it must be shown that it is required by a compelling social need and that it is so framed as not to limit the right in question more than is necessary to achieve a legitimate objective. For example

P in the Daudi Pete case (supra) it was found that the legislation , denying accused persons bail was too broad as to take away the

basic right to freedom to all and sundry. Equally here the derogation clause cannot be interpreted so broadly so as to cover every cruel, inhuman and degrading punishment. A derogation clause should

E not be interpreted as entitling the government to impose vague or arbitrary limitations on basic human rights; but that limitation should be reasonable and only be invoked when there exists adequate safeguards and effective remedies against abuse. In other words a derogation provision has to be construed narrowly. I do not conceive

F it to be the duty of this court to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve. As the Tanzania Court of Appeal observed in the case of A.G. v. Lesinoi s/o Ndeinai & Others'. [1980) T.L.R. 214. ‘A Constitutional provision should not be construed so as to

G defeat its evident purpose, but rather so as to give it effective operation’, I may point out that Prof. Issa G. Shivji is of the same view that the derogation clause does not save corporal punishment from being unconstitutional see his paper ‘State Coercion and Freedom in Tanzania’ a Monograph by the institute of Southern

!H African Studies, National University of Lesotho (1989) at P.22.in conclusion 1 hold that corporal punishment not only is it

inherently inhuman and degrading, and so unconstitutional; but in addition international statements of human rights indicate that such type of punishment has become simply unacceptable in a civilized

1 and democratic society. The weight of international opinion is against corporal punishment. It is up to us to remain an island on ourselves.

THOMAS MJENGI v. REPUBLIC (Mwalusanya, J.) 175

V. Miscellaneous M atters A

Under this head, I will have to consider as to whether the offence of armed robbery exists, secondly as to whether the trial court had power to impose the sentence that was awarded and finally review the evidence on record. B

On the first plaint Mr. Mbezi argued that the offence of armed robbery is not contained in the Penal Code Cap. 16. He said that the trial magistrate was wrong to sentence the two appellants for an offence which they were not charged with nor convicted of. In fact that is the same view that was canvassed before Mushi J. in the case C of Ibrahim Hassani & another v. R. Tanga High Court Criminal Appeal No. 92 & 107/1990 that argument found favour with Mr. Justice Mushi who quashed the sentences. I understand the D.P.P. is appealing to the Tanzania Court of Appeal. However my considered view is that the offence of armed robbery is there in the D Penal Code in sections 285 and 286. This comes about if the court invokes a generous and purposeful construction on the Penal Code and the Minimum Sentences Act. Armed robbery is committed under sections 285 and 286 where the offender is armed with any dangerous-or offensive weapon or instrument, that is what E Parliament intended to curb. Therefore Mr. Mbezi’s argument fails.

The next point is as to whether the trial magistrate had power to impose a 30 year prison sentence. It will be recalled that under section 170 (I) of the Criminal Procedure Act. No. 9/1995 a subordinate court may not pass a sentence of imprisonment F exceeding eight years for any offence falling under the Minimum Sentences Act No. 1/1972. However section 170 (4) of the criminal Procedure Act states:

The provisions of subsection {1) shall be without prejudice to G the provisions of any written law authorizing a subordinate court to impose in relation to any offence specified in such written law, a sentence in excess of the sentences provided for in that subsection,

HThat provision was a subject of interpretation by Msumi J. in Abdarahman Abdallah Magosso v. R. Dar es Salaam (High Court) Criminal Appeal No. 36/1990. In the judgment delivered on 19/9/1991 Msumi J. held that since the provisions in the Penal Code did not confer on the subordinate courts extended power of sentencing, I then it was illegal for the subordinate courts to pass a sentence of

76 TANZANIA LAW REPORTS f I992J T.L.R

l over eight years for scheduled offences. I agree with that view. What the trial magistrate should have done was to commit the accused to the High Court for sentencing. The trial magistrate had no power to impose the 30 year prison sentence.

It behoves me to review the evidence on record, in case I am [ wrong on the above thesis about the constitutionality of the trial.

The case involves the identification of the culprits at the scene of the erime. There was a torch at the scene of the crime. The culprits are village-mates and so the faces were quite familiar. The bandits spent a considerable long time demanding to be shown the money.

’ TTie husband and wife purported to have had identified the culprits. The appellants offered an alibi. The trial magistrate warned himself of the danger of convicting the culprits on evidence of identification which is not water-tight. In my considered view the convictions were proper. The case was proved beyond any reasonable doubt.

)VI. Conclusion

The trial is a nullity because the appellants who are indigent were denied of their statutory and constitutional right to legal

i representation paid for by the State. The trial was also a nullity because the appellants were not informed of their right to have legal representation. As regards sentence, the trial magistrate had no power to pass a sentence over eight years imprisonment. In any case the mandatory minimum sentence of 30 years imprisonment under the Minimum Sentences Act. No. 1/1972 as amended by Act No. 10/1989 is unconstitutional and void because it is an inhuman and degrading punishment. The mandatory minimum sentence of 12 strokes of corporal punishment (not 10 strokes as the trial magistrate imposed) is also unconstitutional and void as it is an

j inhuman and degrading punishment, prohibited by Art. 13<6)(3) of our Constitution.

Should I order a retrial? The appellants have been in prison now 2 lh years. 1 think this is a fit case where I have to leave it to the D.P.P. to decide whether appellants should be retried or not.

I Thus 1 leave it to the D.P.P. to decide.Consequently the appeal is allowed. The convictions are

quashed and sentences are set aside. The appellants should be released forthwith, unless held for any other offence.

Order accordingly.

MUSSAA.MTALEMWAv. REPUBLIC (Ramadhani, J.A) 177

MUSSA ALOBOGAST MTALEMWA v. REPUBLIC A [COURT OF APPEAL OF TANZANIA

(Kisanga, Ramadhani and Mnzavas, JJ.A.)J

29 June 1992 - DAR ES SALAAMB

Criminal Practice and Procedure - Jurisdiction - Whether Court o f Appeal has revisional jurisdiction.

Court o f Appeal Rules - Jurisdiction - Whether Court o f Appeal can reinstate judgment o f a District Court reversed by the High Court without a cross-appeal by the Republic to the Court o f C Appeal - S.4( 2) Appellate Jurisdiction Act 1979 and s. 36 o f the Tanzania Court o f Appeal Rules, 1979.

Court o f Appeal Rules - Criminal Appeals to Court o f Appeal - Procedure and practice - Appellate Jurisdiction Act 1979 and the Tanzania Court o f Appeal Rules, 1979. D

In the District Court of Ilala was Mussa Alobogast Mtalemwa charged together with two other persons. Mtalemwa, the appellant was convicted of robbery while the rest were set free. He appealed to the High Court which quashed the conviction on robbery and E substituted it with one of receiving stolen property c/s. 311 (1) of the Penal Code, Cap 16. Still dissatisfied with this conviction he appealed to the Court of Appeal. However there was no cross - appeal by the Republic against the judgment of the High Court.

When hearing the appeal, the Court of Appeal invited counsel F for the appellant to address the Court on whether the Court had jurisdiction to quash the decision of the High Court and restore that of the District Court without there being a cross-appeal by the Republic. Counsel for the appellant contended that the Court had no jurisdiction to reinstate the judgment of the District Court and that the G Court has no revisional jurisdiction.

Held: (i) The Court of Appeal lacks revisional jurisdiction;(ii) when a party appeals to this Court, the Court is not just

limited to either upholding the appeal and granting the reliefs prayed H for or to dismissing the appeal and leave intact the decision appealed from;

(iii) if a party appeals against conviction, then, instead of dismissing the appeal or of allowing it and acquitting him, this Court could find him guilty of an offence more serious than the one with I which he was charged and acquitted by the lower Court and

178 TANZANIA LAW REPORTS 11992] T.L.R

consequently enhance the sentence. Likewise, if the appeal is against sentence only, in appropriate case, this Court could enhance it instead of reducing it as pleaded by the appellant, or just leave it intact.

Appeal dismissed,

Maina, for the appellant Muni sit for the respondent

R am adhani, Kisanga and Mnzavas, JJ.A .: The appellant, Mussa Alobogast Mtalemwa, was charged together with two other persons. One of them was acquitted as there was no case to answer. The other was acquitted of the charge of receiving stolen property. The appellant, on the other hand, was convicted of robbery.

The District Court of Ilala was satisfied that on 3rd July, 198 (at about 8.15 p.m.) PW, 1 was driving a saloon car, TZA 159, belonging to PW.2, along Bagamoyo Road. The appellant and another person stopped him for a lift to Keko, The appellant sat on the front seat and suddenly he pointed a pistol at PW. 1 ordering the car to be driven to the National Stadium where PW. 1 was ditched out and beaten to unconsciousness. When PW. 1 regained his senses he reported the matter to the Kilwa Road Police Station where he was taken to the Oysterbay Police Station. On 5th July as PW. 1 was in a Police car going through the Morocco Road he spotted out what he was convinced to have been his stolen car but then it had AAJH 5238 as its registration number. The driver of that car refused to stop. So the Police Van gave chase and the driver came to a halt when, according to PW.4, a pistol was leveled at him. The appellant was that driver and PW, 1 identified him as one of the two robbers.

in his defence the appellant alleged that the vehicle was given to him by the second accused person to process pre-registration formalities of evaluation and custom fees as it had been imported from Zambia. As already said that story was rejected by the trial Court.

On appeal to the High of Tanzania (Mkwawa, Ag. J., as he then was) quashed the conviction of robbery and substituted it with one of receiving stolen property contrary to section 311 (1) of the Penal Code. The learned Judge had two reasons fordoing so. One. he said “when the only evidence against an accused is the finding of recently stolen property in his possession, an accused is entitled to an acquittal if he gives an explanation which may reasonably be true”. Two, the learned Judge reiterated that iLit is unsafe to support

MUSSA A.MTALEMWA v. REPUBLIC (Ramadhani, J.A) 179

a conviction on the bare assertions of witnesses that they had A recognized the accused’*. He went on to cite the case of Ludovick s/o Kashaku v.R [ 1967| HCD 194 where reasons for identification, such as the sound of voices or distinctive clothing, were required to be given. The Judge then reduced the punishment from fifteen to eight years imprisonment. B

The appellant had a memorandum of appeal containing four grounds of appeal. However, his learned advocate, Mr. Maira, decided to abandon the second ground, argued the first and the third grounds together, and concluded with the fourth ground. The respondent/Republic was represented by Miss Munisi, learned State C Attorney.

For reasons which will be obvious in a moment, we do not deem it necessary to make a resume of the submissions for an against the appeal. When we were deliberating on the appeal so as to write a judgment, we were in no doubt about the guilt of the appellant. D What exercised our minds was whether the appellant was not after all guilty of robbery as the District Court had found him to have been.

That thought, in its turn, brought to the surface two preliminary points. The first was that we had not been addressed on whether or E not the appellant is guilty of robbery. Second, we wondered whether we could quash the decision of the High Court and restore that of the District Court without there being a cross-appeal by the Republic.

To clear up those two points we decided to re-open the matter and invite both Counsel to address us after we had given them a F sufficient notice.

Mr. Maira was resolute that this Court could only uphold the judgment of the High Court or quash it and acquit the appellant and that the Court does not have jurisdiction to reinstate the judgment of the District Court. He had two reasons for saying so: First, he said, Gthis Court could only act where there is before it a writ of error and that it was not for the Court to search for errors. Here, the learned Counsel submitted, the writ of error before us challenged the conviction against receiving stolen property and that there was no writ of error challenging the acquittal of the appellant of the charge H of robbery which is what the High Court had done. As his second reason Mr. Maira pointed out that this Court lacks revisional jurisdiction and so it could not invoke those powers to reinstate the judgment of the District Court.

As to whether or not there is sufficient evidence on record to Isustain a conviction for robbery, Mr. Maira submitted that there are

180 TANZANIA LAW REPORTS 11992] T.L.R

A grave doubts on the correctness of the identification of the appellant by PW. 1. The learned Counsel contended that what PW. 1 identified was the vehicle when he came across it on Morocco Road and not that the appellant was the robber.

Miss Munisi, on the other hand, said that it was open to this B Court to ascertain the propriety or otherwise of the quashing of the

conviction of robbery by the High Court without there being a cross­appeal. She referred us to section 14 (2), of the Appellate Jurisdiction Act, 1979 (hereinafter referred to as the Act) and she also cited the decision of the East African Court of Appeal in Meridi and Others

C v. K. [1971] H.C.D. No. 145.As for the conviction of robbery, Miss Munisi submitted that

the identification of the appellant by PW.l was not challenged in cross-examination. Then she added that the invocation of the doctrine of recent possession was proper as the appellant was caught

D driving the vehicle just three days after the robbery. Miss Munisi concluded that the conduct of the appellant at the time of arrest was inconsistent with the presumption of innocence.

Admittedly we lack revisional jurisdiction, so, can we act where there is no cross appeal?

E This question was considered by this Court in Godfrey JamesIhuya and 3 Others v. R. [1980]T.L.R. 197. This Court dismissed the appeals o f the appellants and upheld the convictions of manslaughter against all four of them. The matter then which was debated was whether this Court could enhance the punishment given

F to them without there being a cross appeal by the Republic. It was held that this Court had such powers. Reliance was put on Rule 36 of the Tanzania Court of Appeal Rules. 1979, which reads:

The Court may, in dealing with any appeal, so far as its G jurisdiction permits, confirm, reverse or vary the decision of

the High Court, or remit the proceedings to the High Court with such directions as may be appropriate, or to order a new trial, and to make any necessary incidental or consequential orders, including orders as to costs.

HIt was held that the word “vary” in this Rule means that “the Court has power to increase or decrease the sentence when either the prisoner or the Republic appeals”.

The word “vary” is subjected to “so far as its [Court’s]I jurisdiction permits” . The question is whether jurisdiction permits,.

So here we go further to say that when a party appeals to this Court

MUSSAA.MTALEMWA v. REPUBLIC (Ramadhani, J.A) 181

then we are not just limited either to uphold the appeal and grant A the reliefs prayed for or to dismiss the appeal and leave intact the decision appealed from. The party who appeals lays himself bare and gives the Court the power it would not have had if he had not appealed. Thus there is a third alternative. This is where the Court says: ‘Yes, the lower Court has indeed erred but not in the way the B appellant contends that injustice has been done to him but rather that the appellant ought to have been found guilty of a more serious offence or that he deserved a stiffer sentence than the one that was administered to him’. Thus if a party appeals against conviction then instead of dismissing the appeal or of allowing it and acquitting C him, this Court could find him guilty of a more serious offence of which he was charged but acquitted by the lower Court and consequently enhance the sentence. Likewise, if the appeal is against sentence only, then, in appropriate case, this Court could enhance it instead of reducing it as was pleaded by the appellant or leaving it D intact.

Mr. Maira talked about a writ of error. First of all a writ of error was the mode of appealing used in criminal proceedings in England but that was abolished by section 29 (1) of the Criminal Appeal Act, 1907, So that is not the requirement even in England E now. Be it as it may, in Tanzania appeals to this Court are governed by the Act and the Tanzania Court of Appeal Rules, 1979 made under it. A party to a criminal proceedings in the High Court or in a subordinate Court with extended jurisdiction who has a right of appeal under the Act has first to file a Notice of Appeal under Rule F 61. In such Notice of Appeal the aggrieved party indicates whether the appeal is against conviction or sentence or both. Now the notice of appeal has the effect of delimiting our powers to what is appealed against. It would be outside our powers to look into conviction when the notice of appeal was on sentence only. The appellant G then has to concisely enumerate his grievances in a memorandum of appeal (Rule 65). This is what, we suppose, Mr. Maira calls a writ of error. Without the leave of the Court, the appellant would not be heard on any matter not contained in the memorandum of appeal (Rule 74 (a)). It seems to us utterly inconceivable that H whereas we can allow an appellant to go outside his memorandum, we cannot ourselves do so. Now once we have done that and have come to the opinion that the lower Court had erred we then can step into the shoes of the lower Court and make the necessary corrections under section 4 (2) of the Act as Miss Muni si submitted and as was I done by our predecessor in MeraU’s case.

182 TANZANIA LAW REPORTS [ 1992] T.L.R

A In fact this Court again did that in Abdurabi Ally Yusufu &Ally Yusufu Abdurabi v. R. Criminal Appeal No. 59 of 1988 (unreported), that was an appeal of a former Member of Parliament for Songea against his conviction o f unlawful possession of Government trophies. This Court found him guilty of the more

B serious offence of dealing in Government trophies of which he had been charged in the alternative but was acquitted by the learned trial judge. There was no cross-appeal and in fact the appellant was neither represented nor was personally present at the hearing of the appeal as he had indicated his desire not to be present.

C We have found it pertinent to dwell on this point for aconsiderable length for the sake of dispelling any doubt as to the powers of this Court in the absence of a cross-appeal.

Now to get back to the substance of the appeal, we agree with Miss Munisi that there is watertight evidence with which to convict

D the appellant of robbery. The doctrine of recent possession coupled with the inexplicable criminal conduct immediately prior to his arrest corroborates the identification by PW. 1 though that was not necessary.

We therefore quash the conviction of receiving stolen property E and substitute it was one of robbery c/s 285 and 286 of the Penal

Code. The sentence of eight years passed on him is hereby enhanced to the minimum sentence of thirty years provided by the amendment of Act No. 10 of 1989.

F Appeal dismissed.

GTRANSPORT EQUIPMENT LIMITED v. DEVRAM P.

VALAMBHIA [COURT OF APPEAL OF TANZANIA

(Makame. Kisanga and Ramadhani, JJ.A)]H

2 July 1992 - DAR ES SALAAM

Civil Practice and Procedure - Application - Consolidation o f applications - Rationale,

I Civil Practice and Procedure - Stay o f execution - O f only part o f the award - Whether proper.

T. E. LTD.v. D. P.VALAMBHIA (Makame, J.A.) 183

This concerned two references from the ruling of a single judge of A the Court of Appeal. In the first the learned judge refused to allow an application to consolidate for hearing two applications before him. In the second the learned judge ordered only a partial stay of execution pending determination of an intended appeal.

BHeld; (i) To refuse to consolidate will be to fragment the process and delay the outcome;

(ii) a consideration of the general damages cannot exclude a reflection on the award refused to be stayed. The two may well have a bearing one on the other if, as in this case, the award of C general damages was ordered to be stayed we think it would have been neater to stay the other part of the award.

Order accordingly.D

Mbuya. for the applicantMaira and Marando, for the respondent

M akame, Kisanga and Ram adhani, JJ .A .: When these two References, concerning the same parties, came up for hearing, it E was agreed, all round that they should be consolidated for hearing. They arise out of the same transaction and share a common background of five different applications to single judges of this Court. It was clearly desirable to deal with two References together.Mr. Mbuya, learned advocate, represented the applicant. Transport F Equipment Ltd., while Mr. Maira and Mr. Marando learned Counsel, advocated for the respondent, D.P. Valambhia. Both Mr. Maira and Mr. Marando addressed the Court on behalf of the respondent.

Civil Reference No. 7 of 1991 came to us as a result of Omar,J.A. refusing to consolidate for hearing two applications before him: G Civil Application No. 13 of 1991 by the present respondent, which sought to prevent the present applicant from appealing against the decision of Rubama, J. in the main suit. High Court Civil Case No.210 of 1989, for failure to take essential steps in instituting an appeal; and Civil Application No. 29 of 1991 in which the present applicant H applied for extension of time for serving the Respondent with a copy of the Notice of Appeal. The application for consolidation was by Mr. Mbuya and, as afore said, it was refused. In the event Omar, J.A. did not have to go into the merits of the two applications.

The argument in favour of consolidation was that the two I applications were essentially two sides of the same coin, as it were.

184 TANZANIA LAW REPORTS [1992] T.L.R

A That is to say if, for example the single judge decided that the present applicant had indeed failed to take essential steps and so strike off the Notice he could not then turn round in the other application and permit the present applicant to comply with all the formalities. And vice versa.

B Against consolidation it was submitted that for administrativereasons one of the applications was not listed for that particular day, in the first place, and that one application could be determined without affecting the course of the other.

Basically the same argum ents were repealed, if with C elucidation, before us.

We are grateful for the inputs by learned Counsel. The destination of these exercises must be to do justice, and in a conclusive and meaningful manner. We think with respect to refuse to consolidate will be to fragment the process and delay the outcome.

D We are satisfied that to consolidate would be the better course in the circumstances, and we so order. The two applications shall therefore go to a single judge who shall hear them together as consolidated, and determined them. We respectfully urge an early hearing as the outcome there from will have a close bearing on

E other aspects of the dispute between the parties.The second Reference we dealt with was No. 10 of 1991 as

already indicated. The application before a single judge, Mapigano, Ag. J.A. was Civil Application No. 15 of 1991. Following certain decisions by Rubama. J. in the High Court, there was an application

F for a grant of stay of the execution of the decree. For reasons Mapigano, Ag. J.4, lucidly explained, there was ordered only a partial stay. He granted a stay in respect of only the general damages pending determination of the intended appeal but declined to grant a stay in respect of the 40% of the contract sum.

G Mr. Mbuya urged before us that if they went on appeal theywould challenge even the award of 45% of the contract sum. Mr, Marando, for the respondent, opposed the application and submitted that there was no valid ground for faulting Mapigano, Ag. J.A.’s decision. He further submitted that one of the factors to be taken

H into account was the substance of the intended appeal and suggested that there was none here.

We have given anxious thought to the matter. We think, with respect, that a consideration of the general damages cannot exclude a reflection on the award refused to be stayed. The two may well

I have a bearing one on the other and if, as in this case, the award of general damages was ordered to be stayed we think it would have

MINISTRY OF DEFENCE v. VALAMBHIA (Kisanga. J.A.) 185

been neater to stay the other part of the award. It is not in receivable A that the applicant would raise arguments on the part of the award stayed which would impinge on the portion not stayed.

We therefore allow the Reference and accordingly order the whole decree stayed pending determination of the appeal depending, of course, on the outcome of the hearing of the consolidated B Applications 13 and 29 of 199! before a single judge. Despite the proliferation of applications, as observed, we very much hope that at the end of the tunnel a truly just and conclusive and of this chequered conflict will have been achieved.

COrder accordingly.

PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE v. DEVRAM VALAMBHIA

[COURT OF APPEAL OF TANZANIA (Makame, Kisanga and Ramadhani, JJ.A)]

E3 July, 1992 - DAR ES SALAAM

Civil Practice and Procedure - Court o f Appeal Rules - Reference - Point o f law involved - Whether the said point constitutes sufficient reason to allow the reference. F

This was a reference arising from the ruling of a single judge of the Court of Appeal granting an application to strike out a notice of appeal for failure to take essential steps in the proceedings and at the same time refusing a counter application for extension of time G to take such essential steps.

During the hearing counsel for the applicant urged the Court to allow the reference on the ground that the intended appeal involved a point of law. The Court considered whether the said point of law involved constituted “sufficient reason” in terms of H rule 8 of the Court of Appeal Rules.

Held: (i) Where, as here, the point of law at issue is the illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute “sufficient reason” within the meaning ot I rule 8 of the Rules for extending time;

186 TANZANIA LAW REPORTS 11992| T.L.R

A (ii) when the point at issue is one alleging illegality of thedecision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and. if the alleged illegality be established, to take appropriate measures to put the matter and the record right.

BAppeal allowed.

Mrema, for the applicant Marando, for the respondent.

CK isanga, M akam e and R am ad h an i, J J .A .: This is a

reference arising from the ruling of a single Judge of this Court granting an application to strike out a notice of appeal for failure to take essential steps in the proceedings, and at the same time refusing

D a counter application for extension of time to take such essential steps.

It was common ground that the Principal Secretary Ministry of Defence and National Service, failed to serve on Mr. D.P. Valambhia a copy of his notice of appeal and a copy of his

E application to the Registrar, High Court, for copy of proceedings in respect of an intended appeal against the ruling of the High Court requiring him to comply with a garnishee order of that Court within three weeks.

It was claimed on behalf of the Principal Secretary that one F Mr. Mtangi of the Attorney General’s Chambers had been duly

instructed to serve copies of the said documents on the opposite party but he failed to do so. However, the said Mr. Mtangi was not made to file an affidavit to confirm that he was duly instructed to serve the documents on the opposite party and if so why he did not

G comply therewith. In refusing the counter-application for extension of time the learned single judge took the view that no sufficient reason had been disclosed in terms of rule 18 of the Court of Appeal Rules because the information so far adduced through the affidavits did not rule out the possibility that the said instructions might not

H have been given to Mr. Mtangi in due time. We, too share that view, and if there was nothing also we would have so difficulty in dismissing this reference.

But Mr. Mrema, the Director of Civil and International Law Department in the Attomey-General’s Chambers who appeared for

1 the Principal Secretary Ministry of Defence and National Services, had urged us also to allow the reference on the ground that the

MINISTRY OF DEFENCE v.VAL AM BHlA(Kisanga, J.A..) 187

intended appeal raises an important point of law. The said point of A law, he weni on, concerned the interpretation of rule 2A of Order 21 of the Government Proceedings (Procedure) Rules 1968 (G.N.376 of 1968) whether in terms of that rule the garnishee order made by the High Court came within the ambit of section 15 of the Government Proceedings Act, 1967 which prescribes the mode of satisfying or B executing Court orders against the Government or Government offices.

It is noted that this point was the subject of considerable submissions by counsel in the High Court and the learned High Court judge in his ruling dealt with it at length, although the single C judge of this Court in his ruling did not allude to it at all. Before us Mr. Mrema submitted, in effect, that the High Court put a wrong interpretation on rule 2A of order 21 of the Government Proceedings (Procedure) Rules 1968 (G.N. 376 of 1968), and thereby came to the erroneous conclusion that the decree could properly be executed D by issuing a garnishee order when it could not. Mr. Mrema strongly felt that this Court should declare what the law is on the matter. On the other hand Mr. Marando, the learned advocate appearing for Mr. Valambhia, ardently maintained that the alleged point of law did not in fact arise because the garnishee order in question did not come E within the ambit of Section 15 of the Government Proceedings Act 1967. Upon a glance through the record, and having regard to the submissions by counsel for both sides, we think that the matter is arguable; a point of law is involved and the decision on it may go one way or the other. The question which falls for consideration now is F whether the said point constitutes ‘'sufficient reason” in terms of rule 8 of the Court of Appeal Rules to warrant the exercise of discretion in favour of the Principal Secretary Ministry of Defence and National Service to extend the time for him to serve copies of the said documents on the opposite part. G

The same question arose in the case of The Commissioner o f Transport v. The Attorney-General o f Uganda and Another [ 1959]E.A. 329 involving somewhat similar facts. There the Court of Appeal for Eastern Africa refused to extend the time and in the course of doing so it said, inter alia: H

As to the argument that a point of law of fundamental importance was at issue, it is to be noted that this contention was not supported by the respondent. We were not impressed by the argument and thought that there would be little difficulty I in testing the matter in other proceedings. We saw no reason

188 TANZANIA LAW REPORTS |I992|T.L.R

A to hold that the importance of the point at issue was such as to constitute sufficient reason for extension of time under r. 9 of the Appeal Rules.

In other words the Court refused to extend time because the point B of law at issue was not of sufficient importance to justify the

extension. The corollary of that is that in some cases a point of law may be of sufficient importance to warrant extension of time, while in others it may not.

The point of law at issue in that case was whether contracts C of a certain type required registration as a floating charge under the

law and, as shown above, the Court held that the point was not of sufficient importance to warrant extension; it taking the view that the matter could be tested in other proceedings. In other words the Court was saying that the opinion of the lower Court on the question

D whether that type of contracts required registration as a floating charge was not of sufficient importance to warrant extension of time and the decision embodying that opinion should remain on record.

In the case before us, however, the point at issue, in effect is E the illegality or otherwise of the garnishee order as a means of

executing the Court order against the Government. For, should it turn out that the garnishee order is within the ambit of Section 1 of the Government Proceedings Act, 1967 as urged by counsel for the Principal Secretary Ministry of Defence and National Service, then

F the order is illegal and hence a nullity. We think that where, as here, the point of law at issue is the illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute “sufficient reason” within the meaning of rule 8 of the Rules for extending time. To hold otherwise would amount to permitting a

G decision, which in law might not exist, to stand. In the context of the present case this would amount to allowing the garnishee order to remain on record and to be enforced even though it might very well turn out that order is, in fact a nullity and does not exist in law. That would not be in keeping with the role of this Court whose primary

H duty it is to uphold the rule of law.It should be noted that the position in this case is

distinguishable from that in the case of The Commissioner o f Transport v. The Attorney-Genera! o f Uganda and Another earlier cited. There the point at issue was not the illegality of the type of

I contracts in question; it was simply the correctness or otherwise of the opinion whether or not that type of contracts required registration

TAHFIF SUPER MARKET v. B.P. (TZ ) {Ramadhani, J.A.) 189

as a floating charge. Indeed the refusal by the Court to extend time A amounted to allowing the decision being challenged to remain on record and to be enforced. That was perfectly in order, for, the decision was itself valid in law, while the issue whether or not the opinion expressed therein is erroneous should, in the Court’s own discretion, await decision in other proceedings. Such is not the B position in the present case where the point at issue is the illegality of the decision being challenged. In our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to C take appropriate measures to put the matter and the record right.

There were certain weaknesses and failures on the part of the Principal Secretary Ministry of Defence and National Service, and some members of the Attorney-General’s Chambers in their handling of this matter. However, we think that the importance of Dthe point of law at issue outweighs our consideration and such failures and weaknesses. In the result, the reference is allowed.The notice of appeal is restored and The Principal Secretary Ministry of Defence and National Service is to serve the opposite party with copies of the documents in question within four days of his receipt Eof this ruling. We make no order as to costs.

Appeal allowed.

TAHFIF MINI SUPER MARKET v. B.P. TANZANIA LTD. [COURT OF APPEAL OF TANZANIA (Ramadhani, J.A.)]

G24 July 1992 - DAR ES SALAAM

Court o f Appeal Rules - Appeals - Appeal to the Court o f Appeal - Whether leave o f the High Court always necessary.

Civil Practice and Procedure - Temporary Injunction - Material H considerations fo r its grant.

The applicant unsuccessfully applied for a temporary injunction in the High Court of Tanzania. He had filed a notice of appeal against that refusal but meanwhile he filed a notice of motion for a temporary I injunction. Before hearing the application, the advocate for the

190 TANZANIA LAW REPORTS 119921 T.L.R

A respondent sought to strike out the notice of appeal on the ground that the applicant had neither obtained nor applied for leave.

Held: (i) The ruling of the High Court is a preliminary decree and, under section 5(1) (a) of the Appellate Jurisdiction Act, 1979, no

B leave to appeal is required;(ii) considering the public importance of services rendered

the disputed premises should immediately be restored to the applicant.

C Appeal allowed.

Mwajasho, for appellant Mkatte, for the respondent.

D Ramadhani, J.A .: The applicant. Tahfif Mini Super Market,unsuccessfully applied for a temporary injunction before Rubama, J. He has filed a notice of appeal against that refusal but meanwhile he has this notice of motion praying for a temporary injunction.

A couple of days before this application was to be heard. Mr. E Mkatte, the learned counsel for the respondent, B.P. Tanzania Ltd.,

with the ability of a Chinese acrobat, made a preemptive move and sought to strike out the notice of appeal of the applicant. In his notice of motion Mr. Mkatte argued that the applicant has neither obtained nor applied for leave to appeal to this Court.

F I must say the move by Mr. Mkatte was unprocedural. Itwould have been proper if he had given notice of a preliminary objection under Rule 100. Admittedly that rule talks of “preliminary objection to any appeal”. However Rule 2( 1) defines “appeal” to include “intended appeal” as Mr. Mwajasho, the learned advocate

G for the applicant, did not object, and I consolidated the two notices of motion. So the first application I have to address myself to is that by Mr. Mkatte; prayer for striking out the notice of appeal.

The issue here is whether or not leave to appeal is required. This in turn poses the question of what was the ruling of Rubama,

H J. refusing to grant a temporary injunctions an order or a decree. Ifit was the latter, that is a decree, then that is covered by Section 5( 1 )(a) of the Appellate Jurisdiction Act, 1969 and no leave to appeal is required. But if the ruling was an order then it falls under Section 5 (1 )(c) and leave to appeal is required.

I Mr. Mkatte submitted that the ruling of Rubama, J. as an order.He relied on the interpretations of decree and order as provided buy

TAHFIF SUPER MARKET v. B.P. <TZ ) (Ramadhani, J.A.) 191

section 3 of the Civil Procedure Code, 1966 and the ruling of A Mnzavas, J.A. in Codes Ltd. v. NimrodE. Mroso Civil Application No. 5 of 1990 (unreported). On the other hand Mr. Mwajasho contended that ruling of Rubama, J. was a preliminary decree. The learned advocate argued that what determines whether a ruling is an order or a decree is the substance not the form. B

Section 3 of the C.P.C. defines a decree thus:

... the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the Crights of the parties with regard to all or any of the matters. In controversy in the suit and may be either preliminary or final ... but shall not include -

(a) an adjudication from which an appeal lies as an appeal Dfrom an order.”

Then an explanation follows thus:

A decree is preliminary when further proceedings have to be Etaken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

Then “order" is defined in negative terms: F

... the formal expression of any decision of a civil court which is not a decree.

The issue for determination here is whether or not the ruling Gof Rubama, J. conclusively determined the rights of the parties with regard to any of the matters in controversy in the dispute either preliminarily or finally.

To be in a position to make that determination I have to find out what were the matters in controversy. H

The applicant is the plaintiff before the High Court. Under a Reseller Licence Agreement the applicant possessed the University Service Station and ran the Petrol Station as well as a Mini Super Market. The respondent demanded in writing, giving 29 days, that the premises be handed back to him alleging certain breaches. So 1 the applicant filed a suit praying for two substantial orders:

192 TANZANIA LAW REPORTS [1992J T.L.R

A (a) A declaratory order be issued to the effect that there is no subsisting breach of the Reseller Licence Agreement to warrant termination.

(b) The Reseller Licence Agreement should subsist until there B is a current or a subsisting breach.

This is why the applicant applied for a temporary injunction be maintain the status quo', keeping the premises.

The respondent, on the other hand, filed his written statement C of defence and prayed for, infer alia,

(ii) that the plaintiff immediately hands over the B.P. University Service Station.”

D Thus possession of the suit premises is one of the matters incontroversy as was properly contended by Mr. Mwajasho. Now, possession had been with the applicant under the Reseller Licence Agreement. The effect of the ruling of Rubama, J. was to give back possession to the respondent. Can that be said to conclusively

E determine the rights of the parties with respect of the issue of possession.

The conclusive determination of the rights of the parties is from the point of view of the court formally expressing the adjudication. That is according to the definition of decree in Section

F 3. Now, can Rubama, 3. be said to have had that plaint of view?

Rubama, 3. said this:

Mr. Mwajasho ... and Mr. Mkatte ... elaborated on their G positions, they were extensive detailed and of extreme

usefulness to the court. I do not, however, intend to go into them;, they greatly go into the merits of the main suit whose determination would have to wait the finalization of the pleadings and naturally the hearing of the case. To go deep

H into the advanced conflicting submissions would buy and large amount to prejudging the case. Yet I have to make a ruling on the application. In the light of the material before me. I find mvself unable to grant the application by the applicant.” (emphasis mine).

TAHFIF SUPER MARKET v. B.P. (TZ ) (Ramadhani, J.A.) 193

The learned judge decided not to grant the application and therefore A rendered possession of the suit premises to the respondent “in the light of material before” him. I ask, what material? The learned judge has given the answer. It consisted of the submissions of the learned advocates which were “extensive, detailed... greatly go into the merits of the main suit” , the learned judge was wary not to go B deep into that material lest he prejudged the case. Yet that was the material “of extreme usefulness to the court” which made him refuse to grant the application and in effect allowed the respondent’s prayer "that the plaintiff immediately hands over” the suit premises. Thus

from the material before him, which according to the learned judge C determines the case, he could not avoid to hand back possession to the respondent even before the complete disposal of the suit.

In my opinion, the ruling by Rubama, J. is a preliminary decree. Therefore no leave to appeal is required.

No, I turn to whether or not injunction is to be granted. DAs correctly argued by Mr. Mwajasho the dispute, if any, is

over payment for petrol supplied. But the suit premises were also used as Mini Super Market which has nothing to do with the payments for petrol. Then, even for the usage of the premises as a Petrol Station, untold hardship is brought to bear on the innocent E public particularly in view of the fact that there are no alternative services rendered within the vicinity. Above all, as submitted buy Mr. Mwajasho, the parties continued doing business from the date the suit was filed in the High Court (7/5/91) to the date the respondent locked up the premises (11/7/92). Business worth shs. 1,087,075/ F 80 was transacted on 26/3/92 according to Annexture B to the affidavit sworn by the operator of the applicant which was not denied by the respondent.

For the above reasons I am of the opinion that injunction should be granted and that the premises should immediately be G restored to the applicant. I so order.

The application for injunction pending appeal is allowed withcosts.

Appeal allowed. H

194 TANZANIA LAW REPORTS 11992[ T.L.R

A REPUBLIC v. DAMAS COSMAS NILAHI[HIGH COURT OF TANZANIA (Bahati, J.)j

10 August, 1992 - DAR ES SALAAM

B Criminal Practice and Procedure - Appeal ~ State Attorney withdraws appeal without express authority from IX P. P. - D.P.P. applies to restore appeal - Whether Court functus officio and with what effect.

C A state Attorney who was instructed to go to Court and attend an appeal, without authority given by the D.P.P. withdrew the appeal from court. The D.P.P. applied to have the appeal restored. It was considered whether the D.P.P. was duly represented in Court and whether the Court became functus officio.

DHeld: (i) I have no hesitation in holding that the D.P.P. was duly represented in the appeal and that the D.P.P. withdrew the appeal;

(ii) although this court is functus officio, it has inherent jurisdiction to declare the withdrawal a nullity and to restore the

E appeal;(iii) the withdrawal could only be revised if there was a

genuine mistake or fraud;(iv) there being no mistake or fraud the withdrawal was in

order and cannot be revised.F

Application dismissed.

Mr. Mallaba for the applicant Dr. Lamwai for the respondent.

GBahati, J.: This is an application by the DPP for the restoration

of the appeal in this case which was withdrawn by Mr. Mwengela a State Attorney, on 14/10/91. The application is supported by an affidavit of Mr. Teemba, a Principal State Attorney in the Attorney

H General’s Chambers.The affidavit avers that Mr. Teemba’s duties as a Principal

State Attorney include assigning duties to State Attorneys in the DPP’s Department. It goes on to aver that on 14/10/91 Mr. Teemba instructed Mr. Abdul Mwengela a State Attorney to go to Court

I and attend an appeal No. 123/90 Filed by the DPP against DamasCosmas Nilahi. Mr. Teemba never gave Mr. Mwengela the

REPUBLIC v. DAMAS COSMAS NILAHI (Bahati. J.) J 95

instructions or authority to go and withdraw the appeal from court A on that day. Mr. Teem ba learn t subsequen tly from the Commissioner of Customs that the appeal had been withdrawn from the Court. On 7/11/91 Mr. Teemba and the DPP summoned Mr. Mwengela who admitted having acted contrary to Mr. Teemba’s instructions. Mr. Mwengela admitted having withdrawn the appeal B on his own authority and withhelding that fact later. Mr. Mwengela under normal circumstances ought to have reported back to the DPP or to Mr. Teemba what had transpired in court. The appeal according to Mr. Teemba has overwhelming chances of success and is of great public interest. He concluded that justice will only be met (done) to both C parties if the appeal is restored.

In chambers, Mr. Malaba, learned State Attorney reiterated what is contained in the affidavit of Mr. Teemba. He said that Mr. Teemba gave Mr. Mwengela instructions to proceed with the appeal and not to withdraw it. He submitted that by applying to withdraw D the appeal Mr. Mwengela was acting contrary to the express instructions he had been given and that it was wrong for him to purport to act for the DPP. He referred the Court to section 377 of the Criminal Procedure Act which defines the DPP to include anyofficer subordinate to the D P P .... in accordance with his general Eor special instructions. He stated that if a State Attorney has special instructions of the DPP in relation to a particular matter, he will be acting contrary to the DPP’s authority if he does not comply with the DPP’s instructions. He submitted that Mr. Mwengela admitted to have noted contrary to the instructions of the DPP and that after F the withdrawal of the appeal, he withheld information to that effect from the DPP.

In reply, Dr. Lamwai, learned counsel for the respondent, submitted that the main issue was to what extent is a State Attorney presumed to be able to bind the DPP in what he does in court. He G conceded that Mr. Mwengela was a junior State Attorney and he raised 2 fundamental questions namely: (1) Under what law can the High Court revise its order entered on application of one of the parties to the proceedings. The other question was not mentioned by Dr. Lamwai who only dealt at length with the only question H raised. He submitted that there is no law which empowers this court to restore an appeal which has been withdrawn. He referred to the Criminal Procedure Act and commented that it talks of restoration of a dismissed appeal and not a withdrawn appeal. He also submitted that the Court cannot use its inherent powers and I that even the chamber summons does not seek inherent powers. He

196 TANZANIA LAW REPORTS 11992] T.L.R

A said further that inherent powers are used to stop an abuse of process of court which was not the case here. He also submitted that an order granted on application for withdrawal of an appeal is a final order and that the court was functus officio and unable to reverse its decision.

B Dr, Lamwai next argued the substance of the application onthe basis of the affidavit. He said that Mr. Teemba in his affidavit was conceding that Mr. Mwengela was duly instructed to conduct the appeal which meant that he could either argue the appeal or withdraw it. He submitted that it cannot be said that Mr. Mwengela

C did not conduct the appeal on behalf of the D.P.P. He said that in the absence of specific instructions to the contrary the Court should conclude that a State Attorney has power to proceed with an appeal or terminate it. He said that section 377 of the CPA was irrelevant because it was only a definition section. He submitted that there

D cannot be any dispute that Mr. Mwengela had general or special instructions to appear in the appeal and that the DPP was therefore in court, and the DPP decided to withdraw the appeal. He argued thal matters of instructions in the D PP’s office are internal arrangement and that the Court cannot act on such internal

E arrangements as if they were law.With regard to paragraph 7 of the affidavit, Dr. Lamwai

submitted that there was no evidence that Mr, Mwengela acted contrary to instructions as nothing was produced to show what the instructions were. He said that only Mr. Mwengela could solve

F this riddle by swearing or an affidavit stating the nature of instructions and admitting going contrary to such instructions. He said further that to hold otherwise would be putting Mr. Mwengela on trial without being heard. He prayed that paragraphs 7,8 and 9 be disregarded.

G With regard to the question of overwhelming chances ofsuccess, Dr. Lamwai said that Mr. Teemba wanted to convince the Court to open a Pandora’s box in that he wants the Court to hold that when one State Attorney find that there is no evidence and the other finds evidence, then the case should be reopen. He submitted

H further that the application amounted to putting the respondent in double jeopardy because he was acquitted in 1990 and the appeal was withdrawn in 1991 and it was now in July 1992. He referred to the record of the court which shows that on 25/9/91 an adjoummeni was sought by the DPP to consider withdrawal of the appeal. He

I concluded that there was no shoddy deal in this matter and that more suspicion could not help in the administration of justice.

REPUBLIC v. DAMAS COSMAS NILAHI (Bahali, J.) 197

In reply to the above, Mr. Malaba submitted that there was no A law requiring every application to be supported by the law under which it is made and that the Court had inherent powers to deal with any legal matter in issue for the interests of justice.

With regard to the issue of “functus officio”, Mr. Mallaba submitted that this applied only where a matter had been heard on B merits. With regards to the affidavit, he said that the affidavit is presumed to contain the truth until the contrary is proved by a counter affidavit or in cross-examination. Dr. Lamwai intervened by stating that the respondent filed a counter-affidavit. Indeed such counter affidavit is there. C

On the question of section 377 of the CPA Mr. Malaba reiterated that once a State Attorney fails to comply with specific instructions of the DPP then he cannot be said to be acting for the DPP and that once the DPP has directed a State Attorney to issue instructions on his behalf then those instructions are of the DPP. D He concluded that if a State Attorney decided to go contrary to specific instructions then there is no DPP in court.

On the issue of 25/9/91, he said that it was Mr, Mwengela who appeared on that day and he never briefed the DPP of his intention to withdraw the appeal. E

The issues to be determined in this application are interesting and may be unprecedented. Here is the DPP who has withdrawn the appeal through his State Attorney asking that the order for withdrawal be revised and the appeal restored because the State Attorney in question did not have instructions from him to withdraw F the appeal. In paragraph 4 of his affidavit, Mr. Teemba Principal State Attorney is saying, “I never gave him the instruction or authority to go and withdraw the appeal from court on that day.” Does a State Attorney require instructions or authority to withdraw an appeal (or a case for that matter) in order for his withdrawal to G be effective in law when acted upon by the Court by making the appeal withdrawn? Mind you, Mr. Teemba is not saying, “I gave him instructions not to withdraw the appeal.” From paragraph 4 of the affidavit it is clear that there were no instructions to withdraw the appeal or not to withdraw the appeal. From the reading of H paragraph 3 of the affidavit, it is also clear that the only instructions there were to Mr. Mwengela from Mr. Teemba were to go to court and attend an appeal No. 123/90 which is the case in question; there were therefore no specific instructions not to withdraw the appeal. Therefore, with respect to Mr. Mallaba. learned State Attorney, his I submission to the effect that Mr. Teemba instructed Mr. Mwengela

198 TANZANIA LAW REPORTS 11992) T.L.R

A not to withdraw the appeal is not supported by anything in the affidavit. The instructions were to go to Court and attend an appeal (the appeal No.l 23/90. Whereas in paragraph 4 of the affidavit Mr. Teemba avers that he never gave Mr. Mwengela instructions or authority to go and withdraw the appeal from the court on that day,

B it is also correct to say that Mr. Teemba never gave instructions not to withdraw the appeal to Mr. Mwengela. On the basis of the above, it cannot be said, as Mr. Malaba has submitted, that Mr. Mwengela was acting contrary to express instructions which he has been given and hence not representing the DPP. The fact that Mr. Mwengela

C did not report to the DPP that he had withdrawn the appeal cannot alter anything, because, as submitted by Dr. Lamwai, that would be internal arrangements in the DPP’s office. I have no hesitation in holding that the DPP was duly represented in the appeal and that the DPP withdrew the appeal. I also agree with Dr. Lamwai that it

D would be wrong for this court to hold that Mr. Mwengela admitted to have acted contrary to instructions of Mr. Teemba without giving Mr. Mwengela the right to be heard because such a finding would be prejudicial to him. Paragraphs 7 and 8 of the affidavit of Mr. Teemba are charging Mr. Mwengela with a serious infraction of

E regulations and as such these paragraphs are controversial. This court can only act on them if Mr. Mwengela himself confirmed the truth of these paragraphs, indeed if these paragraphs are true then he would have expected either an admission in writing or an affidavit from Mr. Mwengela himself. Short of that I am not prepared to

F accept them at their face value. This court has the duty to scrutinize what is in the affidavit or any evidence and it cannot take for granted or presume that an affidavit is true even if there is nothing to challenge it in writing.

There is the point raised by Dr. Lamwai concerning the power G of the court to revise an order entered in circumstances such as the

present. Dr. Lamwai has argued that the court is functus officio in such a situation. Mr. Mallaba on the other hand has argued that the court has inherent powers to entertain any matter when the interests of justice so require and that the court become/w/icm.f officio only

H when a matter has been determined on merits.After diligent search for a case in point, I have come upon a

Ugandan case of Scrisito Luyombya v. Uganda [1965j EA 618. This case concerned a notice of abandonment of an appeal given under section 328 A(3) of the Uganda Criminal Procedure Code.

I The appellant made an application for leave to withdraw the notice of abandonment although there were no provisions in the Criminal

REPUBLIC v. DAMAS COSMAS NILAHI (Bahati, J.) 199

Procedure Code to that effect. The Chief Justice dismissed the A application as incompetent on the ground that the appeal was already deemed to have been dismissed by operation of law under S.328A (3) and the Court was functus officio. On appeal to the Court of Appeal for the East Africa it was held that:

B(i) the appellate courts in U ganda have an inherent

jurisdiction to allow an abandoned appeal to be restored, if it can be shown that the notice of abandonment was given by mistake or fraud such as to involve a possible failure of justice in the event of the appeal not being Crestored;

(ii) an application to withdraw notice of abandonment is not necessarily an abuse of legal process, because there maybe cases in which, although functus officio, an appellate Dtribunal will use its inherent jurisdiction to declare such notice a nullity, and allow the appeal to be restored.

The matter was remitted to the High Court to hear the application on its merits. E

Since the above case is from Uganda, it is only of persuasive authority although it is a Court of Appeal decision. However, I entirely agree with the decision arrived at which can be applied even in the case before me. Going by the above cited case, I hold that although this court is functus officio, it has inherent jurisdiction to F declare the withdrawal a nullity and to restore the appeal. I cannot see why the position in Tanzania should be different from that in Uganda on this issue.

I will therefore examine now whether there is any justification for declaring the application for withdrawal or the withdrawal itself G a nullity in this case.

One thing is clear in this case, and it is that the withdrawal of the appeal by the Slate Attorney Mr. Mwengela was not expected by the DPP nor was it wanted or desired by the DPP. the withdrawal was certainly not by mistake. Was it fraudulent? There is no H evidence that it was fraudulent. I have already ruled above that the controversial parts of the affidavit which purport to charge Mr. Mwengela with an infraction of the regulations cannot be accepted without more because that would amount to condemning Mr. Mwengela without giving him a hearing. Therefore we go to the I next and possible the last question in this matter which is whether

200 TANZANIA LAW REPORTS f1992j T.L.R

A Mr. Mwengela had power to withdraw the appeal from the court. My answer to this question is in the affirmative because Mr. Mwengela as State Attorney duly representing the DPP had power to do what was within his power when he appeared in the Court. The withdrawal of the appeal was a matter within his powers. That

B the DPP did not like the step taken buy Mr. Mwengela cannot mean that Mr. Mwengela had no such power.

It follows therefore that the withdrawal was in order and the appeal is deemed to have been duly dismissed. It could only be revised if there was a genuine mistake or fraud which is not the

C case here.I agree with Dr. Lamwaj that this application should be dismissed.

I dismiss it accordingly.

Appeal dismissed.D

VINCENT SONFO MAPUNDA v. REPUBLIC [COURT OF APPEAL OF TANZANIA

(Makame and Kisanga, JJ.A and Mapigano Ag. J.AJ]

F 14 August, 1992 - DAR ES SALAAM

Criminal Law - Murder - Cause o f death.

The appellant was convicted of the offence of murder by the High G Court and sentenced to suffer death. It was alleged that the appellant

had given medicine to the deceased. The trial court found that the appellant had in fact given medicine to the deceased. It was in evidence that the medicine given to the deceased, if taken in large quantities, could lead to death. It was argued on appeal that there

H was no evidence to establish the quantity of the medicine given tothe deceased and therefore that the prosecution had failed to discharge that burden.

Held: (i) The duty of the prosecution consisted in showing that the I medicinal or toxic substance taken by the deceased was the cause

of the death. In order to discharge that burden it was essential for

V.S. MAPUNDA v. REPUBLIC (Mapigano, Ag. J.A.) 201

the prosecution to adduce evidence to establish two things, namely A (a) the quantities and strength of the substances that were found in the dead body; and (b) the known minimum doses of those substances that are necessary to kill;

(ii) there was no sufficient evidence on which the High Court could properly have based a conviction for the offence charged or B for any other lesser offence.

Appeal allowed.

Kameja, for the appellant CMuni si, for the respondent

M akame and Kisanga, JJ.A . and M apigano, Ag. J.A.: A woman called Constansia Matembo died at her home in Tingi Village. Mbinga District, on the 13th of July, 1989 at dawn. The D appellant Vincent Sowo Mapunda was later brought before the High Court charged with the murder of the woman. In a judgment dated June 19, 1991 Kazimoto, J. found the appellant guilty of the offence and convicted him accordingly and then sentenced him to suffer death by hanging. The appellant has come to us with a four- E ground memorandum, in a bid to have the conviction quashed. He is represented by Mr. Kameja, learned advocate, while the respondent Republic is represented by Miss Munisi, learned State Attorney.

The starting point in this case is the death of one Raymond F Mapunda who was the brother of the appellant and the husband of the deceased Constansia. Raymond predeceased Constansia, having died back in 1986. It was the prosecution's allegation that the appellant had, subsequent to the death of Raymond, made proposals to Constansia to “inherit” her and that his proposals drew a negative. G This allegation was based on the evidence of P.W.l Sikolastika Mapunda and P.W.2 Salvius Mapunda who are. respectively, the daughter and the son of the deceased Raymond and Constansia, that the deceased Constansia had narrated to them such a story a few days before sfte died. If their evidence is to be believed, the H appellant had also warned Constansia that evil would befall her if she refused to become his wife. At the trial the appellant denied the truth of that story, and it seems to us that these allegations of proposals, rebuff and threats were not given much consideration by the trial judge. I

202 TANZANIA LAW REPORTS (1992] T.L.R

A Constansia fell sick in 1989 and the objective symptom ofher illness was the swelling of the body. The treatment she received at Tingi dispensary' did not cure the illness and, understandably, her condition became a matter of great concern to P.W.l and P.W.2. Again according to these two witnesses, Constansia had narrated to

B them that the appellant had told her matter-of-factly that she would not recover her health and she would indeed die because she had cultivated at a place where he had buried his medicine called “Kipalapala” . It was admitted by the appellant at the trial that he had admonished Constansia in those terms. It was the appellant’s

C contention that Constansia had broken a heathen taboo by cultivating at a forbidden place.

There can be no doubt that eventually P.W. 1 and P.W.2 came to suspect or believe that Constansia had been bewitched by the appellant, and it would appear that these feelings peaked when they

D were endorsed by a fortune-teller whom P.W.2 had consulted. So on 10/7/89 a meeting was held to deliberate on the plight of Constansia, and P.W. 1, P.W.2, Constansia as well as the appellant, attended the meeting. It was common ground that at that meeting the appellant owned up to the admonition. P.W.l and P.W.2 then

E decided to take the matter to the Chairman of the Village, P.W.3 Vincent Kawonga.

P.W.3 convened a meeting at his office on 12/7/89 to discuss the matter. At that meeting, which Constansia did not attend, the appellant again owned up to the admonition. He however assured

F P.W.3 that he had an antidote for Constansia’s affliction and promised to restore her to health within a period of three days. The meeting ended on that note and the appellant as well as P.W.l and P.W.3 walked away to return to the home of Constansia.

It was not in dispute that the appellant set out from the office G at a fast pace, taking a different route, a short one. It was admitted

by the appellant that when he reached the home of Constansia he proceeded to furnish some medicines to her. It was further admitted by him that when P.W. 1 and P.W.2 came back to the place he had already left. Bearing in mind that it was just a matter of twenty

H minutes’ ordinary walk from the office, it must be accepted as a fact that the medicines were furnished to Constansia within a very brief space of time.

Constansia disclosed to P.W.l and P.W.2 that the appellant had given her one medicine to take internally, and that she had

I done so; and another medicine to bathe with. The two witnesses upbraided her for having swallowed the medicine in their absence.

V.S. MAPUNDA v. REPUBLIC (Mapigano, Ag. J.A.) 203

In the hours that followed, Constansia’s condition changed for the A worse, and the appellant was not to be seen around. In his testimony he stated that he was somewhere drinking. Around 5 a.m. on the morrow Constansia passed away. On suspicion of foul play the matter was reported to the police and the appellant was taken into custody on 14/7/89. On suspicion that the appellant had given poison B to Constansia the police seized three kinds of medicine from him, two of them in powder form and the third being herbal leaves.

The appellant denied to have given Constansia any medicine to take internally. He stated that what he gave her was the herbal leaves for external use. C

The guarded autopsy opinion, as stated in exhibit P I, was that Constansia possibly died of “poisoning with local medicine”. Specimen of the liver and lung tissues as well as stomach contents of the deceased were taken and dispatched to the Government Chemist along with the medicines that were seized from 2nd D appellant, for further investigation. The report of the Chemist, exhibit P2, reads that all the medicines as well as the liver tissue contained organo sulphur and alkaloids; that organo sulphur is frequently used to prepare pesticides and is harmful if consumed in large quantity; and that alkaloids are poisons and harmful if E swallowed in large quantity.

As mentioned above, there was no dispute that the appellant supplied medicine to the deceased, and we find, as did the trial judge, that it was one of those seized by the police and later analysed by the Chemist. Those medicines contained poisonous properties F and in answer to ground 3 of the appeal, we are also prepared to go along with the finding of the trial judge that the appellant was aware of their toxic properties.

The finding of the trial judge was also that the appellant did actually give medicine to the deceased for internal use and that the G substance was swallowed by her. The evidence relied on by the learned judge was the dying declaration, i.e. what the deceased had allegedly related to P.W.l and P.W.2 when the two witnesses returned from the office of P.W.3. This finding is the subject-matter of ground 2 of the appeal. H

Mr. Kameja, who ably argued the appeal and incisively said about all that could be said on behalf of the appellant, submitted that the trial judge should have felt unsafe to come to that finding in view of the fact that there was only one’s word against the other’s. Miss Munisi came round to agree with Mr. Kameja, and properly I so, as we consider that P.W. 1 and P.W.2 were evidently witnesses

204 TANZANIA LAW REPORTS [ 1992] T.L.R

A whose evidence should have been approached with circumspection, for the chances are that they had twisted or embellished the words of the deceased.

However, if one is to take the trial judge’s view of the matter, the question that would then arise is whether the judge was right

B when he went on to find that the death of the deceased was caused by poison. Ground 1 of the appeal is directed against that finding.

As shown already, it is plain that the autopsy opinion was just pritna facie and the only other material piece of evidence relating to this point was the Chemist’s report exhibit P2. The point taken by Mr.

C Kameja is that exhibit P2 did not subscribe much to the uncrystallized autopsy opinion and that the prosecution evidence was thus inconclusive of the precise cause of death.

That is a tenable point and we respectfully think that the trial judge would have come to a different conclusion if he had looked

D at exhibit P2 critically. The reason is simple. The charge against the appellant was that he had killed the deceased by causing her to swallow poison, and the appellant denied the truth of that charge. The duty of the prosecution consisted, therefore, in showing that the medicinal or toxic substance so taken by the deceased was the

E cause of death. And we entirely agree with Mr. Kameja that in order to discharge that burden it was essential for the prosecution to adduce evidence to establish two things, namely (a) the quantities and strength of the substances that were found in the dead body; and (b) the known minimum doses of those substances that are

F necessary to kill. For as Taylors Principles and Practice of Medical Jurisprudence. Vol.II. 11 th edition, elucidates at page 203, a poison in a small dose may be a medicine, just as a medicine like aspirin i.e. in a large toxic dose, a poison.

There is no such evidence in this case. What we have here is G merely that organo sulphur and alkaloids were detected in the

materials submitted to the Chemist for analysis and that such substances are capable of acting injuriously on the body if taken in large doses, and we consider that this is where the greatest weakness in the prosecution case lay.

H In view of the findings we have made above, it becomesunnecessary for us to deal with ground 4 of the appeal which has reference to the question of malice aforethought, and we sustain the wherefore-contention set out in ground 5, which is conceded by Miss Muni si, that there was no sufficient evidence on which the

J High Court could properly have based a conviction for the offence charged or for any other lesser offence.

F. MOHAMED v. FATUMA ABDALLAH (Mrosso, J.) 205

We accordingly allow the appeal and set aside the conviction A and the sentence, and we order that the appellant be set at liberty forthwith if he is not otherwise lawfully detained.

Appeal allowed.B

FAR AH MOHAMED v. FATUMA ABDALLAH C[HIGH COURT OF TANZANIA (Mrosso, J.)]

18 August. 1 9 9 2 -ARUSHA

Land law - Disposition o f land - Registration o f documents D purporting to transfer right/title to land.

Land law - Inheritance - Inheritance o f a right o f occupancy - Requisites.

Evidence - Admissibility - O f secondary evidence.E

The original owner of disputed property had died intestate, leaving the property in the hands of caretaker. The caretaker who did not have letters of administration sold the property to another person upon whose death, the property was again sold to the respondent. This was a suit by respondent (then plaintiff) against the Appellant, F (the original defendant) for trespass occasioning loss.

The trial court found for the respondent that the disputed land belonged to her and the appellant was a trespasser. The appellant appeals to High Court.

GHeld: (i) A right of occupancy or an offer of a right of occupancy cannot be inherited by'the mere possession of documents of title;

(ii) he who doesn’t have legal title to land cannot pass good title over the same to another;

(iii) documents purporting to transfer ownership of a right of H occupancy must be registered otherwise those documents are invalid and ineffectual;

(iv) transfer of a right of occupancy without consent of the President is ineffective and unenforceable.

Appeal allowed.

206 TANZANIA LAW REPORTS [ 1992] T.L.R

A Minde for Zeffer Mi, for appellant Shayo for Jonathan, for respondent

M rosso, J .: The respondent. Fatuma Abdallah, was the successful party in a suit she had Filed in the Court of the Resident

B Magistrate at Moshi against the appellant Farah Mohamed. The suit was in respect of Plot No. 15, situate at Sanya Chini, in an area commonly known as Somali Minor Settlement, in Hai District. The respondent, then plaintiff, had alleged that the plot belonged to her and that the appellant, then defendant, had trespassed onto it and in

C doing so, caused the respondent to suffer a loss of a Finger millet crop from which she would have earned shillings 352,000/=. She sought a declaration that the appellant was a trespasser, damages in the sum of shillings 200,000/=, an eviction order against the appellant and costs.

D The trial court found that the plot belonged to her and,therefore, the appellant was a trespasser. It is fibt, however, clear from the decree if an eviction order was granted as prayed. The prayer for damages was refused, and there has not been any cross­appeal on that. The appellant was dissatisFied with the judgment

E and decree of the trial court and has appealed to this court. Mr.Zaffer Ali. learned advocate who prosecuted the defence for the appellant in the trial court, has Filed eight grounds of appeal to this court and. with the leave of the court, has filed Written arguments. The respondent who was duly served did not appear at the hearing

F of the appeal. She wrote a letter seeking adjournment but for thereasons given in a ruling, the application for adjournment of the hearing was refused.

Before I deal with the grounds of appeal, let me attempt a summary of the facts, as I understand them. One Abdallah Farah

G obtained an offer of a Right of Occupancy over the suit land on 1 stJuly, 1954, for a term of 99 years. The land commonly known as Plot No. 15, measured 23.5 acres. Apparently Abdallah Farah did not live on the plot nor was there clear evidence if he developed it except by building a house on it. Subsequently he died in a year

H which was given in the evidence by the appellant as 1957. Even so,up to the time the suit came for trial, he remained the registered owner of the plot, according to the evidence of one Tadeo Simon Mwakilema (D.W.3), who was an Assistant Land Registry Officer.

After Abdallah Farah’s death a close relative, allegedly an I aunt, one Gurman Mohamed. took possessions of the plot. Some

witnesses said she inherited it. She does not appear to have applied

F. MOHAMED u FATUMA ABDALLAH (Mrosso, J.) 207

for any letters of administration nor appointed administrator of the A estate of Abdallah Farah.

According to the respondent’s case, Gurman Mohamed sold the suit plot to one Awadh Abdi and when Awadh Abdi died his wife Hadija Awadh (P.W.3) applied for and was granted letters of administration in respect of the estate of her deceased husband. By B a written agreement, a copy of which was tendered in evidence despite objection, the suit land was sold by Hadija to the respondent and one Oreson Shuma jointly, that was in 1979. In the following year Shuma surrendered his half share to the respondent who became the sole owner until in 1985 when the appellant allegedly trespassed C onto it.

The appellant had a different story to tell. His case was that after both Adballah Farah and his aunt Gurman Mohamed died he got the plot in 1971 “through relationship”, to use his own words, whatever exactly that meant. The plot has been in his possession D ever since. He also had Abdallah Farah’s title deed in his possession and he tendered a certified copy of it in evidence. He was paying the land rent in the name or Abdallah Farah. He therefore denied the respondent’s complaint that he was a trespasser on that plot.

The appellant contended that Awadh Mohamed (sic) (Abdi?) E bought only a house on the disputed plot and not the plot itself.The copy of Sale Agreement had been tendered as exhibit P.2 and it specifically mentioned the plot and not a house on the plot.

The appellant did not claim ownership of the suit plot. To quote his words, he said of the suit plot: F

I do not possess the land. It is not my property. I’m an agent.

He did not disclose whose agent he was. He appeared to say, G however, that he was hoping he would eventually own it - “I'm paying the rent so that I would possess the Farah’s plot; It being no body’s”. The appellant in fact owned an adjacent plot -N o.14.

From the appellant’s own words, he had no ownership claims over the suit plot. He said he had possession of it only as an agent H (of a principal who was never disclosed). This assertion is so vague as to be meaningless and unhelpful to himself and to the court. The court cannot be expected to give serious consideration to it. One could only say, as indeed the appellant said himself, that since he had Abdallah Farah’s title documents, he paid the land rent with hope Ithat some day he might somehow acquire ownership of the plot.

108 TANZANIA LAW REPORTS [ 1992] T.L.R

\ On the other hand, the respondent’s story finds some supportfrom appellant’s own witness Mohamed Ahmed (D.W.3 (sic). He should have been numbered as D.W.4). This witness confirmed that Awadh Abdi had possession of the plot after the death of Gurman Mohamed. He also confirm ed that Hadija Awadh

B transacted over the plot and the witness signed a document evidencing Hadija’s transaction over the plot. He must have been referring to Exh. P.2 which, when given to him in court, he read and said the contents were correct. Exhibit P.2 purported to be a sale agreement regarding the plot whereby the respondent and Orison

C Shuma were supposed to have bought it.It seems plain to me that the appellant’s contention that Awadh

Abdi had bought only a house on the plot and not the plot itself is untenable on the evidence and for the obvious reason that a house is part of the land on which it stands and it could not be sold

D separately from the land quicquidplantaiur solo, solo cedit. The fact that the appellant had Abdallah Farah’s title documents in his possession did not give him any title over the suit plot because he never applied for nor was he granted any title or interest over it. But did the respondent herself have any proprietary rights over the

E disputed plot?It may be convenient to start with Gurman Mohamed. It was

suggested by the respondent that she inherited the suit plot from Abdallah Farah. Assuming that was true, and there was hardly any evidence to sustain that assumption, it cannot seriously be argued

F that she obtained any legal title to the plot. A right of occupancy, or even an offer of a right of occupancy for that matter, is not inherited like cattle in a boma. Even if it were, there was not a shred

i of evidence that any procedure under Som ali custom for I inheriting the property of a deceased Somali was followed to vest |G the plot in Gurman Mohamed. At best she was only a kind of | caretaker for the plot.| If Gurman Mohamed had no legal title to the plot, she could1 not pass any to Awadh Abdi, who allegedly bought it from her.

The same thing would be said of Hadija Awadh, the wife of Awadh H Abdi, who after the demise of Awadh Abdi, sold the plot to the

respondent and one Orison Shuma, whether or not there was a properly executed sale agreement.

But even if it were assumed that Gurman Mohamed had a legal title to the plot, did she effectively pass it on to Awadh Abdi?

I During the trial of the suit in the lower court a photostat copyof a document evidencing sale of plot number 15 by Gurman

F. MOHAMED u FATUM A ABDALLAH (Mrosso, J.) 209

Mohamed to Amed Abdi (who I take is the same person as Awadh A Abdi) was tendered in evidence as exhibit P.2. There was some controversy on whether it was adequately stamped. I do not find it necessary to go into that. A more important question is w hether the document was admissible as evidence. Mr. Zaffer Ali objected to its admission but u vtnuled. * * B

There is no doubt Ex. P.2 was secondary evidence in terms of section 65(b) of the evidence Act, 1967. The respondent said the original of the document had either been stolen or was lost o t misplaced by her~:hildren. The trial magistrate appears to have accepted that explanation. While one might say the magistrate was C perhaps lenient vetTit did not, I think, amount to a misdirectionor error,. [Twas therefore admitted presumably under section 67(l)(c) tfiat is to say, the provision that secondary evidence is admissible: .

when the original has been destroyed or lo s t,... D

Mr. Zaffer Alii objected to the admissibility of that document on another ground. Since the respondent was relying on that document (and others to be discussed later), it should have been annexed to the plaint, which was not done. Mr. Jonathan for the E respondent argued, inter alia, that the appellant had not been taken by surprise and that the respondent had filed the plaint in person and was ignorant of the technical requirement under Order 7 rule 14 of the Civil Procedure Code, 1966. The trial magistrate also agreed with Mr. Jonathan. F

Under Rule 18(1) of the same Order 7 of the Civil Procedure Code, 1966 the court is empowered to grant leave to a plaintiff to tender in evidence a document which ought to have been filed together with the plaint but was not. It has not been argued that the trial magistrate exercised his discretion under Rule 18(1) wrongly. G

Of even greater importance is the question whether Exh. P.2 passed any title over the plot to Awadh Abdi. If that document purported to transfer the ownership of the plot, then, under section 8(1) (a) of the Registration of Documents Ordinance, Cap. 117, its registration was compulsory. In the provision cited it is stated: H

S.8( I). The registration of the following documents if executed or made after the commencement of this Ordinance is compulsory -

210 TANZANIA LAW REPORTS [1992] T.L.R

A (a)Non-testamentary documents, including decrees of anycourt or awards, which purport to or operate to create, confer, declare, limit, assign, transfer or extinguish any right, title or interest whether vested or contingent, to, in, over land, ...

BThere was no suggestion that document had been registered under Cap. 117. That being the position the document was invalid and ineffectual. Section 9 of Cap......says:

C 9. No document of which the registration is compulsory shallbe effectual to pass any land or any interest therein or render such land liable as security for the payment of money, or

. be received as evidence of any dealing affecting such land unless and until it has been registered.

DSimilarly, under Section 41 (2) of the Land Registration Ordinance, Cap.334 a disposition of land which has not been registered under the ordinance is ineffectual to transfer any title or right over it.

The purported transfer of the land by way of sale had another E serious disability. No consent of the President or the Commissioner

for Lands or other public officer to whom the powers of the President may have been delegated, was obtained and therefore, the transfer was ineffective and unenforceable.

An offer of a Right of Occupancy which is usually given in F respect of unsurveyed plots is as good as a right of occupancy. Under

regulation 3(1) of the Land Regulations, 1948 a disposition of a Right of Occupancy is inoperative, even if in writing, unless it is approved by the President (which term includes officers to whom the President has delegated his powers to consent) - see Fazal

G Kassam (Mills) Ltd. v, Lawrenson and Matzen[l951) E.A. 101 (C.A.).

As will be recalled, the plot purportedly passed from Awadh Abdi to the respondent and another when Hadija Awadh, the wife of Awadh, who had been granted by the High Court Letters of

H Administration in respect of the estate of her late husband, sold it.An uncertified copy of a supposed sale agreement was tendered in evidence as Exhibit P .l, again notwithstanding objection by Mr. Zaffer Ali, who was overruled by the trial magistrate.

What I have said in connection with the sale of the plot by I Gurman Mohamed and Exhibit P.2 substantially applies to the sale

of the plot by Hadija Awadh to the respondent. There was no valid

IBRAHIM SHAHAu MTUMWA SHAHA (Makame, J.A) 2] 1

transfer of any title to the respondent for the same reasons as already A explained above. The document, Exh.P.l, which did not meet the requirements of section 65 of the Evidence Act, 1967 was not secondary evidence and should not have been admitted into evidence. It was not in any case registered under section ... of the Registration of documents Ordinance, Cap. 117 and Concept of the B President for the transfer under Regulation 3 of the 1948 Land Regulations, was not obtained. So, no title or right over the plot was ever transferred to the respondent. It follows, she had no enforceable claim over Plot No. 15 in dispute. Her claims ought to have been dismissed. The title over the plot has not, to date, changed C hands.

For the above reasons this appeal is allowed with costs to be taxed both in this court and in the court below.

Appeal allowed. D

IBRAHIM SHAHA v. MTUMWA SHAHA | COURT OF APPEAL OF TANZANIA E

(Makame, Omar and Mfalila, JJ.A)]

18th August, 1992 - DAR ES SALAAM

Islamic Law * Wakf - Whether a valid wakf created. F

The respondent and her brother, one Khamisi, inherited a house when their sister died childless. The respondent and Khamisi decided to create a wakf and dedicate the house to a mosque. There was an authentic document to that effect. When Khamisi died the appellant, G administrator of Khamisi’s estate, wanted to include Khamisi’s portion of the house in dispute in Khamisi’s estate but the respondent resisted arguing that a wa&fhad been created over the house. It was argued that although there was an authentic document evidencing creation of wakf no valid wakf had been created. H

Held: Since there was no evidence that Khamisi was paying rent to the mosque the property had not been conclusively dedicated as wakf.

Appeal allowed.

212 TANZANIA LAW REPORTS 11992) T.L.R

A Semzaba, for the appellantMwajasho, for the respondent.

Makame, O m ar and Mfalila, JJ.A .: The parties are Brother and Sister. When their sister, Mwanabasi Shaha, died childless her

B properties were inherited by her siblings. The present appellant gottwo houses and four cows, - while the respondent and a brother called Khamisi inherited a house. This property is House No. 20, Sukuma Street, Dar es Salaam, the object of a dispute which has now come to this Court on third appeal: After Khamisi’s death the

C present appellant, the administrator of Khamisi’s estate, wanted to include Khamisi’s portion of the house in dispute in Khamisi’s estate, but the respondent resisted this, asserting that she and her brother, the deceased Khamisi, had created wakf over the property and dedicated it to the Rufiji Mosque in the City of Dar es Salaam.

D The Primary Court agreed with the respondent that the house was w'ajfc/property but on appeal to the District Court, Ilala, (Kayombo, SDM) reversed the Primary Court decision, so in turn Mtumwa appealed to the High Court where Kazimoto, J. re-instated the decision of the Primary Court, holding that there was a valid wakf.

E That decision is now appealed from by Ibrahim, advocated for by Mr. Semzaba, learned Counsel, while Mr. Mwajasho, learned advocate, appeared for the respondent Mtumwa.

We think that all along there was no serious dispute about the authenticity of Exh. B, the document purporting to create the wakf

F We think also that the intention of Khamisi and Mtumwa to create a wakf and dedicate the house to the mosque comes out clearly and is noi at all in doubt. The issue however was whether a valid wafc/had been created.

There was evidence by Mtumwa that after the house had been G declared to be w akf in favour of the mosque she was paying rent to

the mosque for the portion she was occupying and also passing on to the mosque the rent being paid by tenants. The learned high Court judge was right that Mtumwa’s assertion on this had not been disproved but, with respect, she was only one of the intending wajiks.

H There was no similar evidence regarding Khamisi,' There was, that is, no evidence that he was paying rent to the mosque so it must be assumed that he continued to live in the house rent - free; and that, quite rightly, bothered the learned Senior District Magistrate. Mr. Semzaba submitted that it meant that the property had not been

I conclusively dedicated as w akf Mr. Mwajasho’s references to Mulla’s Principles of Mohamedan Law were quite apt with regard

JONAS NKIZE v. REPUBLIC (Katiti. J.) 213

to transfer of physical possession and title. His submissions however A left unanswered the important issue of non-payment of rent by Khamisi, which rendered the purported w akf not absolute.

This appeal must succeed, however regrettable it may sound.We accordingly allow the appeal and make no order as to costs.

We note that Mtumwa is entitled to a portion of the house in B her own right, having inherited the same from Mwanabasi, and that she is also entitled to a portion of the deceased’s Hamisi part of the house. According to the evidence on record Mtumwa and Ibrahim are Khamisi’s heirs.

CAppeal allowed.

DJONAS NKIZE v. REPUBLIC

[HIGH COURT OF TANZANIA (Katiti, J.)]

19 August 1992 - TABORAE

Criminal Practice and Procedure - Evidence emanating from the defence - Whether safe to sustain a conviction.

Criminal Practice and Procedure - Onus o f proving the charge - Whether by prosecution or the accused.

Criminal Practice and Procedure - Prima facie case - When Festablished, and what should a trial court do i f not established - S.230 o f the Criminal Procedure Act 1985.

Evidence - O f co-accused - Whether admissible - How to approach and utilize it.

GBefore the Kigoma District Court were Jonas Nkize the Appellant and two others charged with stealing c/s 258 and 265 of the Penal Code. Cap 16. In the alternative Jonas Nkize as a third accused was charged with obtaining goods by false pretences c/s 302 of the Penal Code, Cap 16. H

The arraignment of the appellant in the said court was prompted by the second accused who implicated the appellant in his sworn defence. He called several witnesses to support his story against the appellant, the prosecution evidence having failed to touch him. Relying on the swom evidence of the second accused as I confirmed by the witnesses he called the trial Magistrate acquitted

214 TANZANIA LAW REPORTS 11992] T.L.R

A the second and first accuseds and proceeded to convict the appellant on the second charge on the strength of the same evidence. On appeal to the High Court;

Held: (i) While the trial Magistrate has to look at the whole evidence B in answering the issue of guilt, such evidence must be there first,

including evidence against the accused, adduced by the prosecution;(ii) the general rule in criminal prosecution that the onus of

proving the charge against the accused beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting or ignoring

C it is unforgivable, and is a peril not worth taking;(iii) the burden of proving the charge against the accused is

on the prosecution, so that the trial Magistrate, to say he cannot depend on the prosecution evidence, is to read upside down the authorities, and if it is by design, then it is strange and unjudicial

D behaviour;(iv) the trial Court is enjoined to direct its minds to the

evidence adduced by the prosecution when it has closed its case, and if it appears to the court that, the case is not made out against the accused person sufficiently to require him to make a defence,

E the court shall dismiss the charge and acquit the accused person;(v) where in joint trial, an accused goes into a witness box

and gives testimony, such evidence becomes evidence for all purposes, including being evidence against his co-accused;

(vi) where the co-accused’s evidence implicating the co- F accused is tainted by improper motive, such evidence should be

received with caution.

Appeal allowed.

G Mr. Boaz and Mr. Osward for the Republic

Katiti, J .: Witnessing the prosecution of Jonas Nkize, the appellant, for the offence of stealing c/s 265 of the Penal Code Cap. 16, or in alternative, obtaining goods by false pretences c/s

H 302 of the Penal Code Cap. 16 of the Law, was Kigoma District Court, which ultimately found the appellant guilty, of the alternative count - obtaining goods by false pretences c/s 302 of the Penal Code Cap. 16 of the Laws, and accordingly convicted him. The appellant was sentenced to five years imprisonment, a sentence which was

I followed by the statutory compensation order, that the said appellant.

JONAS NKIZE v. REPUBLIC (Katiti, J.) 215

shall compensate the Kigoma R.T.C., the value of 100 cartons found A stolen.

The appellant aggrieved, has appealed to this Court, contending that he was unfairly convicted, as he himself was never involved, in the charged crime. The learned State Attorney Mr. Boaz, declined to support conviction, submitting, as he did, that B there was no evidence sufficient enough to sustain conviction. The evidence shall need to be scrutinized, and revisited. The genetic starting point here, is that by the way of two Kigoma RTC Internal Stock Transfer Vouchers, (ISTV) numbered, No. 7617 of 29/9/1988, and No. 624 of 17/10/1988, Exhibits PI and P2 respectively, one C hundred, and three hundred cartons of match boxes, (Kibo brand), respectively, were taken from the RTC store, or godown, then manned by the 2nd accused. The former ISTV consignment, was purportedly issued for MANYOVU RTC retail shop, and the latter, for MWANDIGA RTC Retail shop. And it remains an undeniable D fact, on the evidence by PW. 1 Aron Kimerei, the then Kigoma RTC general Manager and PW.2 B 857 DST Issa, and rightly found by the trial Magistrate, that not a single carton of match boxes, reached their assigned destinations, i.e. Manyovu RTC Retail shop, nor MWANDIGA RTC retail shop, although they were taken out of E the godown. On the allegations, that Exhibits PI and P2, the Internal Stock Transfer Vouchers, (ISTV), had been issued by the 1 st accused Boniface Mhehe, the Marketing Manager, and that the same cartons were taken out of the Kibirizi godown. whose keeper was Hem Shuba, the two were charged, as first and second accuseds F respectively. And, because (ISTV) No. 7617, had in the line •'COLLECTED by” . J. NKIZES. inserted therein, the person by this name, was arrested and charged as the third accused, and is the appellant charged as above. It is pertinent, to point out here, that the handwriting Ex pen report Exh. PV reads: G

Htvyo ninayo maoni kwamba sahihi hiyo inayobishaniwa iliyopo penye kielezo “A 4 ” “Sehemu ya “Collected by “ na alama “S ” siyo sahihi xake halisi”

HHowever, it was the 2nd accused who implicated the appellant,

in his swom defence, and called DW.4 Athuman Makongoro, DW.5 lssa Ndiyunviye, DW.6 Ally Dogo, to support the 2nd accused’s evidence against the appellant, the prosecution evidence having failed to touch the appellant, and at the stage he implicated the I appellant, the second accused had this to say, and I quote:

216 TANZANIA LAW REPORTS [1992! T.L.R

A The ISTV was written by Masaba, I took it and went toKibirizi, then when I was coming down, I saw the third accused, and the driver of motor vehicle 3187 (Rombo Safari) having parked their motor vehicle under a tree. 1 opened the go-down, and the two brought their motor vehicle. The third

B accused gave me the ISTV, and a piece of paper. I asked thethird accused as to which country was he taking the goods to. But I knew the standing instructions, that anybody who comes with papers ISTV was not allowed to be queried.... After loading their motor vehicle, they drove off. The porters who

C loaded the motor vehicle are present with the RTC, they cantestify, if they are needed. It was the First ISTV, coming to the 2nd ISTV which had two hundred cartons of match boxes.

Such evidence, as apparently confirmed by the evidence of D DW.4, DW.5, DW.6, influenced the trial Magistrate to acquit, the

first and second accused persons, but to convict the appellant, of obtaining goods by false pretences c/s 302 of the Penal Code Cap. 16. In approaching to convict, the trial Magistrate, did appreciate, that the evidence implicating the appellant came from the defence.

E He appreciated too, how convictions emanating therefrom, are unsafe, but nevertheless proceeded to convict arguing. “I think the magistrate has to look at the overall evidence, rather than depend on the prosecution, if justice is to be done." (The under-lining is mine).

F With due respect, to the trial Magistrate, the underlined aboveimputed to his pen, is inaccurate in law and grossly, if I may add. While, the trial Magistrate, has to look at the whole evidence, in answering the issue of guilt, such evidence must be there first, - including evidence against the accused, adduced by the prosecution,

G which is supposed to prove the case beyond reasonable doubt. It is question of burden of proof, and upon whom it lies. The day shall never come, not in my life time, when such highly priced principles, of criminal prosecution, will be as simplifically thrown into the such dirty dust bin of convenience. That, the general rule in criminal

H prosecution, the onus of proving the charge against the accused, beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting or ignoring it is unforgivable, and is a peril not worth taking. Was it not in the case of Woolmington v. DPP [ 1935] 25 Cr. App. R. 72, when Lord Sankey L.C. then said:

JONAS NKIZE v. REPUBLIC (Katiti, J.) 217

... if at any period of trial, it was permissible for the judge to Arule that the prosecution had established its case, and that the onus was shifted on the prisoner to prove that he was not guilty, and that unless he discharged that onus, the prosecution was entitled to succeed, it would be unabling the judge in such a case to say, that the jury must in law, find the prisoner guilty, Band so make the judge decide the case, and not the jury, which is not the common law. It would be an entirely different case, from those exceptional instances, of special verdicts, where a judge asks the jury to find certain facts, and directs them that on such facts, the prosecution is entitled lo succeed. Indeed, a Cconsideration of such special verdicts show, that it is not till the end of the evidence, that a verdict can properly be found, and that at the end of the evidence it is not for the prisoner to establish his innocence, but f0 £thejrosecution to establish his guilt. Just as’therein evidence, on behalf of the prosecution, so D there may be evidence on behalf of the prisoner, which cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence, and it is sufficient for him to raise a doubt. Eas to his guilt; he is not bound to satisfy the jury of his innocence ... Throughout the web of the English criminal law, one golden thread, is always to be seen, that it is the duty of the prosecution to prove the prisoner's g u ilt... No matter what the charge, or where the trial, the principle that the prosecution must prove Fthe guilt of the prisoner is part of the common law of English, and no attempt to whittle it down can be entertained.

And in the case of Mancini v. DPP [1941] 3 All E.R. 462 28 Cr.App. R. 65 Viscount Simon Lc, added: G

.... I would form ulate the fo llow ing propositions: W oolmington’s case, is concerned with explaining, and reinforcing the rule, that the prosecution must prove the charge it makes, beyond reasonable doubt, and consequently, that if, Hon the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it. The rule is general application, in all charges, under the criminal law. The only exceptions arise, as explained in Woolmington’s case, in the defence of insanity, and in offences where onus of proof is 1specially dealt with by statute.

218 TANZANIA LAW REPORTS 11992] T.L.R

A And back here, we have cases, like Moshi d/o Rajabu v. Republic 11967J H.C.D. No. 384, that, the burden of proving the charge against the accused is on the prosecution so that the trial Magistrate, to say he cannot depend on the prosecution evidence, is to read the upside down the authorities - and if it is by design, then it is strange and

B unjudicial behaviour.Again, in the same vein of caring about the law, if the trial

magistrate had exercised a little care, to acquaint himself with the provisions of section 230 of the Criminal Procedure Act [985, he would have discovered that the trial Court is enjoined to direct its

C minds to the evidence adduced by the prosecution when it has closed its case, and if it appears to the Court that, “the case is not made out against the accused person, sufficiently to require him to make a defence, either, in relation to the offence, with which he is charged, or in relation to any other offence of which under provisions of

D section 3 12 - 321 - he is liable to be convicted, and shall dismiss the charge, and acquit the accused person. Thus, the subordinate trial Court is enjoined at the closure of the prosecution case, to see whether the crime charged, or such offence as is convictable, in the alternative, under Sections 312-321 of the CPA 1985, has been

E established, and if it has not, the court has to acquit the accused. Thus the trial Magistrate’s observation that is not necessary to depend on the prosecution case, is inadmissible and extravagant. In fact, if the trial Magistrate had looked upon the provisions, and 1 note the said provisions are not even referred to, in the proceedings,

F he would have noted, that, by the closure of the prosecutions case, there had not been, an iota of evidence implicating the appellant - and the provisions of Section 230 of the Criminal Procedure Act 1985, would have carried the day triumphantly. That is, if upon the administration of Section 230 of the Criminal Procedure Act 1985,

G the offence as charged, or as alternatively convictable under Sections 3 12 - 321, of the CPA 1985, is not made out, or established, it is mandatory for the trial Court, to dismiss the charge, and acquit the accused person. Of course the trial magistrate, did not acquit the accused in this case.

H When all is said and done above, we must concede, that theevidence by the second accused, and his defence witnesses - DW.4, DW.5, DW.6 implicated the appellant, as having in September 1988 loaded a hundred cartons at RTC godown, carried and left with the same. This evidence, is not useless in law, I must concede. While

I it is a fundamental rule of evidence, that statements made by co­accused, statements made in the course of, and in pursuance of a

JONAS NKIZE v. REPUBLIC (Katiti, J.) 219

joint criminal enterprise, which the accused was a party excepted, A are not evidence against the co-accused, unless such co-accused, has expressly, or by implication adopted the same as his own, such statements.assume a different dimension, when given sworn in the course of a trial in the presence of an accused. That, is, where in joint trial, an accused goes into a witness box, and gives testimony, B such evidence he has given, becomes evidence for all purposes, including being evidence against his co-accused. See R. v. Rudd, [19481, 32 Cr. App. R 138.

How such evidence should be approached, and utilised is well settled. In the case of R. v. Pmtter [1960] 44 Cr. App. R. 83, as C qualified, in R. v. Reck (1982) 74 Cr. App. R. 221, it was held that where the co-accused’s evidence implicating the co accuseds, is tainted by improper motive, as having a purpose of its own to serve, it should be received with caution, and accomplice warning may be give, if there is basis, for suggesting that said co-accused, was D participant in the crime, or was in any-way involved in the crime the subject matter, of the trial. That is, co-accused evidence is suspect for many reasons i.e. holier that thou mentality, expectation of elemency, or mercy, etc.

In this case, with a lot of respect, though the evidence by E DW.2, and the witnesses called by him. is indeed implicating the appellant, the said evidence, is also raising questions, that are post' trial difficult to answer. First, although the offences charged, were allegedly committed on the 29/9/1988, the said witnesses gave damning evidence on 28/4/1990, over a year later, why they were not F available as prosecution witnesses, is surprising, and why, the 2nd accused had not disclosed their whereabouts, is a piece of curiosity, a gordian knot. Second, the 1STV No. 7617 Exhibit PI, that the 2nd accused handled first, at the Kibirizi godown, was for transferring hundred cartons o f Kibo Match boxes, from such G godown, to Manyovu RTC Retail shop, but according to the 2nd accused, “Asked the third accused, as to which country he was taking the goods to. But I knew the standing instructions, that anybody who comes with ISTV, was not to be queried.” But with respect to the 2nd accused, if the ISTV Exhibit P.I, he was given, was to H transfer match boxes from Kibirizi to Manyovu, as it does in equivocally speak by itself, and endorsed, passed by the 2nd accused himself, and the carrier, obviously doing it. on behalf of the said RTC, I cannot see how the question, which country the carrier was taking the goods, arises? 1 cannot see how, the 2nd accused, could Ihave received instructions, not to query under the circumstances!

220 TANZANIA LAW REPORTS [1992] T.L.R

A Third, the 2nd accused said in court, in Examination - In-Chief, and I am sure he had encouraged his witnesses to say so, that, the used motor vehicle was No. TB 3187, Rombo Safari, but in the ISTV Exhibit P. 1, the name of carrier is shown as TB 3178, after an unsuccessful erasure of another 3 178. If according the 2nd accused.

B it was motor vehicle TB 3 187, that carried the charged goods, as he testified in evidence in chief, then why did he. if he did, insert TB 3178 in the ISTV Exhibit P. I, and where is the ISTV, if any, that was used by motor vehicle 3187? From the above, it is my view, that the innocence that the 2nd accused boldly put on his face, is

C questionable, as the legal guilt of the appellant becomes even more doubtful. The 2nd accused, may have been improperly motivated, if not an accomplice, and his evidence is very suspect, and we have no corroboration on the same. In the event, the appeal is allowed, conviction quashed, and sentence set aside. The appellant to be

D released forthwith, unless he is otherwise legally held.

Appeal allowed.

EELIAS JOAKIM v. REPUBLIC

[HIGH COURT OF TANZANIA (Katiti, J.)]

19 August 1992 - TABORAF

Evidence - Testimony by children o f tender years - Voire dire test - s. 127(5) Evidence Act 7967.

Criminal Practice and Procedure - Sentencing - Accused found guilty on two counts - Criminal Procedure Act 1985.

G Criminal Practice and Procedure - Sentencing - Accused currently sewing another sentence.

Criminal Practice and Procedure - Sentencing - Offence committed falls under the Minimum Sentences Act 1972.

H Elias Joakim, the appellant was charged and prosecuted before Shinyanga District Court of two counts - house breaking c/s 294 (1) and stealing c/s 267 of the Penal Code. The appellant was found guilty and sentenced to 2 years’ imprisonment on the first count, far below the minimum mandatory sentence prescribed by the

I Minimum Sentences Act 1972. On the second count the appellant was condem ned to 5 years’ imprisonment, without the trial

ELIAS JOAKIM v. REPUBLIC (Katiti, J.) 221

M agistrate ordering the same to run, either, concurrently or A consecutively. The convictions were procured basically on evidence tendered by children of tender years.

In mitigation it also transpired that the appellant was serving another sentence. Aggrieved with the conviction and sentence the appellant appealed. B

Held: (i) Competency in giving evidence in so far as the child of tender years is concerned , is not a m atter o f age, but of understanding;

(ii) where a child of tender years gives evidence sworn after a C successful voire dire test, and that he understands the nature of the oath, his evidence so given is as good as that of an adult;

(iii) it is trite law, under the Minimum Sentences Act, 1972, Section 5, that where the value of the property obtained during the commission of the scheduled offence exceeds shillings five D thousand, the m inim um sentence im posable is five years imprisonment;

(iv) it is judicial practice that where in an indictment consisting of several or many counts, that have attracted convictions, the sentence imposed and assigned to each count shall be ordered to E run concurrently, if such related offences arose out of a single transaction, or are part and parcel of a single plan.

Appeal dismissed.F

Osward, for the respondent.

Katiti, J.: Indicted and prosecuted, before Shinyanga District Court was Elias s/o Joakim, herein to be called the appellant, facing two counts - House breaking c/s 294 (1) of the Penal Code - and G Stealing c/s 265 of the Penal Code Cap. 16. At the end of the day, the appellant, was found guilty and convicted, as charged and sentenced to two years imprisonment on first count, and five years imprisonment on 2nd count, without ordering the same to run, either, concurrently, or consecutively. However, the Public Prosecutor, H before the above sentence, told the court, that the Appellant had previous convictions - store breaking and stealing c/s 296 (1) of the Penal Code Cap. 16 - Criminal Case No. 94/89, and the appellant in mitigation prayed as follows;

222 TANZANIA LAW REPORTS [1992] T.L.R

A I pray for leniency. I pray that, my other sentence I amcurrently serving, be considered in sentencing me. This is all.

The trial and sentencing magistrate, directed as follows:B

It is further ordered, that as a 2nd offender, and because he was sentenced to six years imprisonment, in the previous conviction, these sentences shall be served consecutively, the resultant effect, being he shall serve a total of seven (7) years

C imprisonment.

The appellant aggrieved, has appealed against conviction, contending that the quality and quantity of the evidence, at hand, did not prove the charge preferred beyond reasonable doubt. While

D the sufficiency and quality of evidence is to be tested, too, to be visited is the aspect of sentence, that was meted out, or should have been meted out, to the appellant.

The facts of the case, significantly speak for themselves thus. On the morning of 18/7/1989, PW.l Justina d/o Mazinge, left for

E work after locking her house. When she came back at 5 p.m., same day, she was welcomed back by the doors, that were open and ajar. Her count of her properties, disclosed that properties including glasses, plates, spoons, electric iron, handbag, etc. valued at shs 23,885/=, had been stolen therefrom.

F The obvious question was, and now, is who broke into thishouse, and stole. The Prosecutor, produced PW.2 Zacharia s/o Maganga and PW.4 Kelvin s/o Lumbeli, both aged twelve and seven years of age, respectively, and who after a successful voire dire test, gave evidence on oath. PW.3 Zacharia s/o Maganga, narrating

G how he saw the appellant entering the complainants house, at about2 p.m. has this to say:

The accused that day, came and called Kelvin, who he sent for cigarettes. He gave him money. Kelvin went forcigarettes.

H When he left, I saw the accused enter Justina’s house by thedoor leading to the annex rooms. He went and kept for long. About 1/2 an hour, later on, I saw him come out carrying sack full of things, on his shoulders. He came to the place I was, put his luggage down and told me, that, 1 should tell Kelvin,

I to keep cigarettes he had sent for, as he was in hurry, and hecould collect them, after he sent his luggage. He wanted to

ELIAS JOAK1M v. REPUBLIC (Katiti, J.) 223

take his luggage and go. 1 told him, see Kelvin was coming A from afar.

It is not timely and opportune at this juncture, to hear from PW.4 Kelvin s/o Lumbeli, who picks therefrom, and tells us thus:

BSometime last week. I remember I saw Elias pass with an empty sack. He went to the direction of the machine. He later came again, and stopped where we had been playing.He stopped there, and asked me to go for cigarettes. When I came back, I found him with a sack, which now was no longer C empty, but full of things. When he saw me from a distance, he put it on the ground, and came running for the cigarettes before he went back for his luggage and he hurriedly vanished away with it.

DWith this and such evidence, was the defence that, the appellant was at 2 p.m. with DW.3 Mama Dina, who had invited him for food. However DW.3 while conceding, the appellant went to her, she denied she had invited him for food, and added that he only stayed there, for two minutes. The appellant also added, he had E been attending meeting at the oil mill, which DW.4 Yusufu Leonard the oil mill chief clerk discounted, saying that, the appellant had been sacked as an employee long before 18/7/1989, and could not therefore attend any meeting, and that in any case, there was no such meeting, on that day at all. F

With such evidence, the trial court found PW.2 and PW.4 credible, establishing that it was the appellant, who broke into the complainants dwelling house, and stole, and hence the conviction.The appellant is complainingly attacking the trial Magistrate, for relying on the evidence of children of tender years - PW.2 and PW.4 G to convict him. The appellant seeks, that the evidence by PW.2 Zacharia s/o Maganga and PW.4 Kelvin s/o Lumbeli, be discounted because of their tender ages.

With a lot o f respect, what we wish is not always the right thing, or even legal - wishes are not horse rides. The course of H action, that has to be taken, as and when a child of tender years (child of, or, below the apparent age of fourteen years, - see Section 127 (5) of the Evidence Act) has to give evidence, is not just wished, but dictated by Section 127 (2) of the Evidence Act 1967. That is, under the above subsection, a child of tender years may be sworn, if I he understands the nature of oath, or may give evidence unsworn.

224 TANZANIA LAW REPORTS [ I992| T.L.R

A if he has sufficient intelligence, and understands the duty of telling the truth, so that it should in my view follow that, competency in so far as the child of tender years, is concerned, is not a matter of age, but of understanding. And to crown it all, the appellant is worth learning, that the trial Court, may even competently rely on the

B testimony by a child of tender years, when such child of lender years, has given such testimony on the side of the prosecution, to convict the accused person, if it is fully satisfied, that the child is telling nothing but the truth, and has warned itself, of the danger of acting on such evidence, in the absence of corroboration. And where

C a child of tender years, gives evidence sworn after a successful voire dire test, and that he understands the nature of oath, his evidence so given, is as good as that of an adult, and it is treated that way, and such evidence may only require corroboration, if it is accomplice evidence, or is such evidence which as a matter of practice or

D requirement of law, corroboration is necessary.In this case, PW.2 Zacharia Maganga and PW.4 Kelvin s/

Lumbeli, gave evidence sworn, after a successful voire dire test, thal, they knew the nature of oath, and each ones evidence, is as good as that of any adult. If, Justina d/o Mazinge left her house locked,

E and she came back and found broken into, and goods stolen, and if PW.2 saw the appellant entering and later coming out with a sack full of things, a sack that was also seen by PW.4, with the appellant’s alibi that he had been at the meeting, and or that he had been invited by Mama Dina all denied, and smashed by the appellant’s witnesses,

F the conclusion reached by the trial Magistrate, that it was the appellant who broke into the house, and stole, is as sound as granite, and gives no room for successful attack. In the final analysis, the convictions on both counts, are upheld.

The last point, to be dealt with in this case, is the aspect of G sentence. The trial court, imposed two years imprisonment, on first

count, and five years imprisonment on 2nd count - no more, no less. But there followed another order, that the sentence of six years imprisonment, the appellant was serving upon previous conviction, run consecutively with the above sentence, according to the trial

H court, “the resultant effect being, he shall serve a total of seven years imprisonment.” May 1 say, with attendant due respect, that the above is provokingly attracting comments - first - on the legality of sentence on first count - two - the trial magistrate failure to show whether such sentences shall run concurrently or consecutively with

I the sentence on second count, and - three - the propriety of ordering sentences based on separate indictm ents and trials, to run

ELIAS JOAKIM v. REPUBLIC (Katiti, J.) 225

consecutively, and - 4 - the arithmetical or additional accuracy. I A shall hereunder deal with each, of the above aspects.

The legality, or illegality, of sentence on the first count cannot pass without corrective comment. It is trite law, under the Minimum Sentences Act. 1972, section 5 that where the value of property obtained during the commission of the scheduled offence, (1st B schedule), exceeds five thousand shillings, the minimum sentence imposable, is five years imprisonment. In this case, the appellant stole property worth Shs. 23,885/=. Similarly, where the accused has a previously been convicted of scheduled offence, in the proceeding five years as the appellant had been, (store - breaking C and stealing Cr. Case No. 94/89) and is subsequently convicted of another scheduled offence, the minimum sentence imposable, is five years imprisonment. It would seem to me, that the appellant was legally and sentence wise, cornered, with neither front, nor rear, through which to escape, the Minimum sentence of five years D imprisonment. The illegal sentence of two years imprisonment is therefore set aside, and five years imprisonment imposed, instead.

Again, the trial Magistrate had left the sentences, on counts(1) and (2) hanging, may be in the parlance, of Section 36 of the Penal Code Cap. 16 “the same to be executed after the expiration of Ethe former sentence, unless the Court directs, that it shall be executed concurrently, with the former sentence, or any part thereof, they were to be presumed run consecutively - See AH Mohamed v. R.[ 1968] HCD No. 63. But the judicial approach has been that, where in an indictment consisting of several, or many counts, the trial Fcourt convicts the accused on such several or many counts, it has to impose and assign each count, that attracted conviction, a separate sentence, and shall indicate therein, whether the sentences are to run concurrently, or consecutively, and not leave them hanging.As it was pertinently observed by the Court of Appeal in the case of G Hussein T. Kabeka and Others (1980) T.L.R. 267 - “A sentencing Court will never go wrong, if on deciding to pass concurrent terms of imprisonment, on an offender, it inflicts sentence on each offence and then directs the sentence so passed to run concurrently, and no more.” H

When to decide whether a concurrent, or consecutive sentence, should be imposed is in my view not a gordian know it is not with respect, an inextricable difficulty. The judicial view and approach, on when concurrent sentences, should be ordered, is abundantly and oversupplied in the case law. Citing a few examples, will be as I graphic, as will suffice in my view. In the case of Musa s/o Bakari

226 TANZANIA LAW REPORTS [1992] T.L.R

A v. R. [1968] H.C.D. No. 239, it was held that, it was universal practice, in the absence of good reason to the contrary, to order the sentence for related offences, of house breaking and stealing, to run concurrently, or where the charged counts, attracting convictions, arose out of single transaction, or are part and parcel of the same

B transaction, or are part and parcel of single plan of campaign concurrent sentences will be ordered - see Jayantilar Laiji Kara Shah v. R. [1968] H.C.D. No. 328, Ray Raphael Lameck v. R. [1967] H.C.D. 190 27 and Joseph A. Kashamakula v. R. [1970] H.C.D. No. 201, Just to mention a few. Thus, it is the judicial approach.

C that where in an indictment, consisting several or many counts, that have attracted convictions, the sentence imposed and assigned to each count, shall be ordered to run concurrently, if such charged offences are related, arose but of single transaction, or are part and parcel of a single plan. That is, without rule, or order, to the contrary,

D a good working rule is that consecutive sentences, should not be passed for offences arising out of the same transaction, as the sum total sentence resulting therefrom, may often prove to be too great considering the circumstances of the case. - See R. v. Kaktercum [1972] 56 Cr. App. R. 298. In this case, house - breaking and

E stealing, are so related, and interconnected operationally, that the sentences should have been ordered to run concurrently. For obvious reasons therefore, I hereby confirm the sentence on 2nd count, and further order, that the sentences on the two counts, shall run concurrently.

F And finally, I verily confess, that I would at this juncture haverested in peace, if it were not for the trial Magistrate order, that the previous sentence of six years earned, in a different trial, run consecutively, with the present sentence, which is five years imprison, but computing it have the “effect o f being, he shall serve

G a total o f seven (7) years im p r iso n m e n tI come, to this aspect, notbecause the order was made, and it had to be made in view of the appellants prayers for judicial intervention, otherwise the command by the provisions of section 36 of the Penal Code take its course, but more, I come in because, if as the trial Magistrate ordered, the

H sentences imposed in different trials, should indeed be served, consecutively, in the parlance of section 36 of the Penal Code - each sentence to be executed after the expiration of the former sentence they add up to eleven years imprisonment. As I understand, consecutive sentences are accumulative, one sentence being served

I after the other, - they add up arithmetically. If this be so and I am convicted it is, six years imprisonment earned in the previous trial,

JOSEPHAT S, MAZIKU v. REPUBLIC (Katin, J.) 227

and five years im prisonm ent earned in th is case, served A consecutively can only add-up to eleven years imprisonment, and not seven years imprisonment, as the trial Magistrate erroneously added up. With the correction, the appellant shall serve the two sentence consecutively - eleven years imprisonment. The appeal is dismissed, convictions and sentences upheld. B

Appeal dismissed.

JOSEPHAT SOMISHA MAZIKU v. REPUBLIC [HIGH COURT OF TANZANIA (Katiti, J.)]

19 August 1992 - TABORA D

Evidence - Confession - Admissibility o f confessions extracted by torture - S.29 - Evidence Act 1967.

Evidence - Confession - Admissibility o f confessions made before a police officer - S.27 Evidence Act 1967. E

Josephat Somisha alias Maziku the appellant, was at the material time, employed as a watchman by TaBora Region Co-operative Union. On 1/5/90,11 was discovered that 18 louvre glasses had been extracted from windows and one typewriter stolen. F

Through interrogation by Sungusungu, the appellant confessed to have stolen the louvre glasses but not the typewriter. The appellant, in hisxautioned statement to 7909 D/CplBenjamin, further confessed to have stolen the louvre glasses.

On the strength of this evidence, the trial Magistrate convicted the G appellant on the charge of stealing by public servant c/s 270 and 265 of the Penal Code. In his memorandum of appeal, the appellant contended that his confessions to the Sungusungu was extracted by threats and with violence.

HHeld: (i) While it is trite law that the condition precedent for the admissibility of a confession is its voluntariness, a confession is not automatically inadmissible simply because it resulted from threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of I guilt;

228 TANZANIA LAW REPORTS 11992] T.L.R

A (ii) where you have threats and a confession far apart withouta causal connection, and no chance of such threats inducing confession, such confession should be taken to be free of inducement, voluntary and admissible;

(iii) it is a principle of evidence that where a confession is, by B reason of threat, involuntarily made, and is therefore inadmissible,

a subsequent voluntary confession by the same maker is admissible, if the effect of the original torture, or threat, has before such subsequent confession, been dissipated and no longer the motive , force behind such subsequent confession.

CAppeal dismissed.

Oswald, for the respondent

D Katiti, J : Charged and indicted, before Tabora District court,with the offence of stealing by public servant, c/s 270 and 265 of the Penal Code, was Josephat s/o Somisha alias Maziku, herein to be called the appellant, whose plea of not guilty thereto, introduced the case to full trial. At the end of the trial, the appellant, found

E himself on the wrong-side of the law - was convicted as charged, and finally sentenced to five yearsimprisonment. And on heels, to such sentence, was the usual statutory compensation order, that, the said appellant shall compensate, his employer TARECU, the value of the unrecovered typewriter, and louvre glasses.

F The appellant aggrieved, is appealing against conviction,contending in the main, - 1 - that he denied and still denies committing the charged offence, - 2 - that he was arrested and tortured by the infamous Sungusungu, and that any confession before whom, being inadmissible in law, the trial Magistrate seriously erred

G in law, avoiding being guided by the provision of section 27 of the Evidence4ct 1967 hereafter to be called the Act to convict him, and- 3 - that the confession before D/Cpl. Benjamin was inadmissible, and that consequently and finally, as a result and left without such inadmissible evidence, the prosections case, is yawningly, wanting,

H and lacking. The appellant therefore demands his liberty now.1 can and I am assuring the appellant, that liberty will be his,

subject to his innocence remaining undisplayed by guilt. The facts that contributed to the appellant being where he is, are as follows. The appellant was at the material time, employed as a watchman by

1 Tabora Region Co-operative Union, and then, assigned his duties at the Tabora Branch. It is defying challenge that, on the 1/5/90, it

JOSEPH AT S. MAZIKU v. REPUBLIC (Katiti. J.) 229

was discovered that, eighteen louver glasses had been extracted from Athe windows, and the typewriter stolen, all valued at Shillings 67.200/=.

Obviously and invariably the question was. - who was the culprit. It is fashionable, these days of our time to resort, to the obviously officious Sungusungu for assistance, and as a result. Bseventeen louvre glasses were recovered, three from PW 3 Wilbert R. Msisi, four from PW 2 Wilberd Mzawa. some from one Pendeza. and some were from yet another person, who did not give evidence.It is a finding of fact, that seventeen louvre glasses Exh. P.l, were recovered though the typewriter is still without a trace, to date. It is C too, a good unchallengeable finding of fact, that PW.2 Wilberd Mzawa, PW 3 Wilbert Msisi and PW.4 Joseph John Manji. claimed to have bought the same from one Ramadhan, whose definition, whereabouts, or other aliases, are one record unknown. However through Sungusungu’s interrogation, witnessed by PW 4 .Musa D Ramadhan, a sungusungu enthusiast, the appellant confessed to them, to have stolen the louvre glasses, but not the typewriter. And PW.6 S. 7909 D/Cpl. Benjamin, tendering a cautioned statement as Exh. P.2 testimonially told the court that the appellant confessed, in.. his cautioned statement, to have stolen the louvre glasses. The E appellant in his defence, still protested his innocence, denying that charge, disowning all, that the prosecution said. The trial Magistrate found the evidence establishing the offence beyond reasonable doubt, and convicted.

Mr. Boas, the learned State Attorney, appearing for the F Republic supported the conviction, the case as I see it, stands, or falls, on the only one issue of admissibility of confessions, allegedly made by the appellant, first to sungusungu, and subsequently to PW. 6 C.'9709 D /Cpl. Benjamin, consecutively, to whom, the appellant confessed, to have stolen the louvre glasses. I notice, the G evidence was not digested and dissected, by the trial court, bearing in mind the provisions of section 27 of the Act, on the admissibility of confessions. In fact, the appellant, is attacking the trial court, for its failure to pay attention, to the provisions of section 27 of the Act. alleging as usual than not, than in many cases of this kind. that. Hthe sungusungu extracted the confession from him, by and with violence.

The evidence digested, to the most desirable extent, it will and has to be discovered, that in this case, somewhere between the theft, the appellants confession, and the recovery of the louvre 1glasses, is one Ramadhan. who as above said, sold the said louvre

230 TANZANIA LAW REPORTS [1992] T.L.R

A glasses. As this Ramadhan, is neither an accused, nor a prosecution whness, but for the appellants confession, we would for sure, have never known, how the louver glasses left their places of fixture. But it is also in my view true, that the appellant confessed to Sungusungu on 5/5/1990, as witnessed by PW 4 Musa Ramadhan,

B to have on the 1/5/1990, stolen the said glasses, and in a cautioned statement to PW 6 D/Cpl."Benjamin, on 10/5/1990 to have stolen the same.

The appellant, as above aforementioned challenges, that the confession by him to sungusungu, was inadmissible, as he was

C tortured by them, to extract the same from him. This being the appellant’s contention, it doesn’t seem to me, that it was a misconception. For first, while it is trite law, that the condition precedent for the admissibility of the confession, is its voluntariness, the said confession is not automatically inadmissible, simply because

D it resulted from threats, or promise; it is inadmissible, only if the inducement or threat was of such a nature as was likely to cause an jjAteue admissiotLof-guilt, see section 29 of the Act: Second, it is a view I humbly hold, again, that a confession is not just rejectable, because threats have been made. Not at all in my view. This is

E because, it is for the prosecution to prove voluntariness of the confession, and once a threat has been shown to have been made, the Court may presume, that it induced the confession, until the prosecution proves, that there was no causal connection, - see Smith (1959) 2 QB 35. [ 1959] 2 ALL. E.R. 193. So that where you have

F threats, and a confession far apart, without causal connection, and no chance of such threats inducing confession, such confession should be taken to be free of inducement voluntary, and admissible. In this case, the appellant confessed before Sungusungu. Although Sungusungu are known for torturing suspects, it is perhaps not

G permissible to vouch, that they torture every suspect nor is it justifiable, to raise such conduct into a rebuttable presumption; that they should be presumed to have tortured the suspect, till the contrary is proved. In any case, if one is, or was tortured, the court cannot read the same on the face, the victim has to tell his experience. In

H this case, through out the prosecutions and the defence case, at no time did the appellant, either, personally in his defence, or through cross examination, if witnesses show he was tortured at all. It is curious, and easily smelling afterthought, that the same should be raised by him, in his memo of appeal, and I am not inclined in any

I way to take him seriously.

JOSEPHAT S. MAZIKU v. REPUBLIC (Katiti, J.) 231

But too, the appellant confessed, before D/Cpl. Benjamin on A the 10/5/1990, in the cautioned statement, inter alia, thus:

Mwezi wa April, 1900 siku ambayo siikumbuki niliamua kuiba (Rovers) kutoka kwenye nyumba ofisi za hapo TARECU Branch. Sikum buki idadi ya vioo nilivyoiba. Sababu B zMzonifanya niibe rouvers hizo ni baada ya kuuguliwa na mke wangu Janeth d/o W illiam ... N ilipoona hakuna uwezekano wa kuapata fedha za kumuuguza mke wangu, niliona njia nyepesi ni kuchukua louvers hizo nikauze Hi nipate fedha za kumpatia matibabu mke wangu. Rouvers hizo C nilizichukua kwenye majira ya xaa 20.00 za mchana. Nakumbuka siku hiyo ilikuwa siku ya sikukuu, kama sikukosea nadhani ilikuwa May Mosi, Nilizichukua nilimpelekea Ndugu James, ambaye alikuwa anakunywa kahawa M taa wa Usagara. D

In my view, so much and extent of the above statement, from the cautioned statement Exh. P.2, shows how the appellant thought, concieved the plan to steal, and how he executed and consulated the same. In his own defence, the appellant denied knowledge of E what PW.6 D/Cpk Benjamin said, and tendered. But in his memo of appeal, the same appellant castigates the trial Magistrate, alleging, that the evidence of PW.6, was relied upon without regard, as to his credibility. First to put the cart behind the horse, the excerpt above, taken from the tendered cautioned statement Exh. P.2. constitutes a F confession, it was made before the Police Officer, of the rank of Corporal, and as before and now, as inducements are not alleged, not even by the appellant, to have been committed by him, (PW.6), the admissibility of the said confession, meets no legal hurdle at all. on its way into the judicial records, and it was rightly admitted Gunder section 27 of the Act. And if PW.6, recorded correctly and right, what the appellant said, and acknowledged it by his signature, and only equivocally impugns it now, I don’t see how, doubts about PW. 6 credibility came about. He recorded what he was told by the appellant, after the administration of the caution. H

It falls and remains to be concluded, that the appellant twice, and at intervals confessed, to have stolen the louvre glasses, to Sungusungu and on the 5/5/1990 repeated the same, to PW 6. As I did find the first confession was on evidence not induced by threats, as the second confession, was also voluntary. But if I may add. Ithough not duty bound, and for sake of argument, that even if, the

232 TANZANIA LAW REPORTS [1992] T.L.R

A first confession, had been induced, and therefore rendered inadmissible, the second confession would only be inadmissible, if the threats, or undue influence, under which the first confession was made, was still persistent, when the second confession was made. In other words, even if the first confession were inadmissible

B for reason of torture - involuntariness, the second cautioned confession would be admissible, as by the time was made, the effect of the original torture, had been dissipated. Thus it is a principle of evidence, that where the first confession is by reason, if threat, involuntarily made, and is therefore inadmissible, a subsequent

C voluntary confession by the same maker, is admissible, if the effect of the original torture, or threat, has before such subsequent confession, been dissipated and no longer the motive force behind such subsequent confession - see /?. k D.K. Williams (1968)52 Cr. App. R. 439.

D In this case, even if Sungusungu, were to demonstrate theirtorturing true colours, and rendered the first confession inadmissible, which on evidence they did not any way, and the confession was admissible, the second voluntary confession would be admissible, as on 10/5/1990, when the second confession was made, five days

E later, such torture even if perpetrated, on 5/10/1990 would not still be influential events. But, to all intents and purposes. I believe, the evidence vindicating, no torture/ undue influence, has been shown to have been exercised, and the belated complaint by the appellant, is only a product of afterthought, some kind of wisdom after the event,

F that hardly has any retrospective efficacious effect. And same and sound as the appellant was, and is, with the opportunity any way, he could not have confessed giving the details of theft, unless he actually stole. I like the trial court, I am satisfied beyond reasonable doubt, that the appellant committed the charged offence. He was rightly

G convicted, and as the sentence is only the statutory minimum for the offence, interference with the same, is not legally attractable. The appeal is therefore, totally dismissed.

Appeal dismissed, H ->

JOHN CHUWA v. ANTHONY C1ZA (Ramadhani, J.A.) 233

JOHN CHUWA v. ANTHONY C1ZA a[COURT OF APPEAL OFTANZANIA (Ramadhani, J.A.)]

20 August, 1992 - TANGA

Civil Practice and Procedure - Appeals - Leave to appeal filed two B days out o f time - Affidavit o f material person not filed to explain the delay - Effect.

An application for leave to appeal was Filed two days after time.The delay was explained. It was said that the documents for the C application were filed well within time but that the receipt for the fees was issued two days out of time. The learned judge of the High Court ruled that the date of Filing the application is the date of the payment of the fees and not that of the receipt of the relevant documents in the registry. The delay in paying the fees was D explained by saying the cashier was absent from the station and hence no receipt could be obtained although the money was paid on the date the relevant documents were submitted. The said cashier did not Fite an affidavit to explain the applicant’s delay.

EHeld: An afFidavit of a person so material, as the cashier in this case, has to be Filed.

Application dismissed.F

Akaro, for the applicant.

Ramadhani, J.A.: Here I have consolidate two applications.In Civil Application No. 3 of 1992 the applicant, John Chuwa, is seeking leave to appeal while in Civil Application No. 4 of 192 he G is praying for a stay of execution of the same decision in Civil Appeal No. 2 of 1984 (H.C.). Both parties did not object to the consolidation.

The judgment complained of was delivered by Mushi, J. on 13/6/1990. The notice of appeal was filed in time on 25/6/1990 which was within time. However, the receipt for the fees was issued H on 29/6/1990 which date was out by two days. According to the learned judge, the date of filing the application is the date of the payment of the fees and not that of the receipt of the relevant documents in the registry. Mr. Akaro, learned advocate for the applicant, conceded that before me and I cannot fault the learned I judge there.

234 TANZANIALAW REPORTS fl992)T.L.R

A In this application Mr. Akaro sought to explain lhatdiscrepancy. He filed two affidavits: one by the applicant and the other by one Emmanuel Kanju, who was a court clerk at the material time. It is slated that the papers were submitted al the registry on 25/6/1990 and were properly stamped by Mr. Kanju . However, as

B the cashier was absent then the fees were left with Mr. Kanju who undertook to pass them on to the cashier. That was done and hence the receipt dated 29/6/1990.

Mr. Akaro answered me that he did not find it necessary to produce these affidavits before Msumi, J. because he was satisfied

C that the date of filing the documents was that which appeared on the registry stamp which was within the statutory limit.

Let me pose here and make an observation that there is a contentious point here of whether or not it is proper to admit this new evidence which was not produced before Msumi, J. However,

D I have chosen not to decide that point but to assail the additional evidence itself. One of the reasons for avoiding making that decision is that the parties did not address me on that point.

The respondent, Anthony Ciza, appeared in person. He pointed out that the affidavit of Mr. Kanju does not show when the

E fees were passed on to the cashier. Then, the respondent argued, that if Mr. Akaro or the applicant were really serious they would have made a follow-up on the payment of the fees to the cashier the next day i.e. 26/6/1990 and that they would not have waited until 29/6/1990 and that they would not have waited until 29/6/1990 when

F the receipt was given to them by Mr. Kanju.These are two very strong points which demolish the effect

of the affidavit of Mr. Kanju. In addition the failure to file an affidavit by the cashier is even more devastating. This Court decided in Kighoma Ali M alima v. Abas Yusufu M wingam no Civ.

G Application No. 5 of 1987 (unreported) that an affidavit of a person so material, as the cashier in this case, has to be filed.

So with the shortcomings detailed above the production of the new evidence, whether rightly or wrongly, does not cure the defect which confronted Msumi, J, And for that very reason, like

H Msumi, J„ I have to dismiss this application with costs.The respondent submitted that if the application for leave to

appeal fails then the prayer for a stay of execution must fail too. I think there cannot be a more logical proposition than that. So too the prayer for a stay of execution is dismissed with costs.

Appeal dismissed.

T. ALPHAXAD v. NKINGA HOSPITAL (Katiti, J.) 235

THEODELIN A ALPHAXAD A MINOR NEXT FRIEND v. ATHE MEDICAL OFFICER I/C, NKINGA HOSPITAL

[HIGH COURT OFTANZANIA (Katiti, J.)|

20 August, 1992 - TABORAB

Tort - Negligence - Professional - Liability o f medical sta ff - Vicarious liability o f hospital - Standard o f care and skill.

In an action for damages for negligence arising from professional negligence of a doctor in attending the plaintiff, causing the C amputation of her arm, the trial judge found that the defendant was negligent.

Held: (i) If a person is admitted as a patient by a hospital, and is, in medical treatment occasioned injury through the negligence of some D member of staff, it is unnecessary for him to pick upon any identifiable particular employee for suing purposes. The said hospital is vicariously liable;

(ii) where the doctor, consultant, etc, are selected and employed by the patient himself, the question of vicarious liability E by the hospital does not arise, and such liability does not attach to the hospital;

(iii) where in a hospital, ,the doctor engaged, has seen him and the patient, established the doctor and patient relationship, by accepting him/her for treatment purposes, the said doctor has a duty F of care, and has to exercise the same with skill attendant to modem medicine and surgery, under permitting circumstances. Such general duty is not subject to dissection into a number of component parts,to which different duty of care apply, or combination of both, i.e. that the investigation and, or treatment of the plaintiff was in G accordance with current standards of medical practice, or, that, the plaintiff s injuries were not caused by any negligence on behalf ot the defendants.

Judgment fo r plaintiff. H

K a titi, J . : One Alphaxad M irobo, the next friend of Theodeolina Alpha, a minor then aged six years, filed this action on her behalf in this Court, against the Medical Officer In Charge of Nkinga Hospital, claiming Shs.5,000,000/=, as damages with I interests, and costs of the suit, and such further reliefs as may be

236 TANZANIA LAW REPORTS [ I992J T.L.R

A commensurate to the occasion, for the loss of the left fore-arm. that was amputated, claimedly and allegedly, because of faulty and negligent treatment of the same, by the defendant. The plaintiff did not give evidence.

With the defendant demurring that, it was the plaintiff s father, B her next friend, that was negligent, in not sending back the child, to

hospital, I plainly drew the issues, as follows:

(1)Whether Nkinga hospital was negligent in the medical treatm ent o f Theodelina Alpha, as to lead to limb

C amputation.(2)What reliefs, if any, are the parties entitled to?

What happened, to the culmination of the suit, is yearning indeed. The facts, as they themselves understandably and audibly

D speak, are straight-forward, and uncomplicated, and they are as follows. P.W. 1 Alphaxad Mirobo, a Primary School teacher, as at the material time, is the father of Theodelina Alphaxad, who at the material time, was and still is a minor, but then aged six years. Both were residents of Nguyiti village, in Igunga District, Tabora

E Region. And Nkinga Hospital well known in this area, is a.private Mission Hospital, being run by the Pentecost Church of Tanzania, situated in Igunga District, Tabora Region. At the material time, a certain Dr. Martin was in charge of the same hospital, only to be succeeded by D.W. 1 Dr. Lars - GOHAN LIND GREEN as from

F 6th July, 1991. And it is defying controversy, that this Hospital among others, had then employed P.W.2 Dr. Kirungu a surgeon, PW.3 Mrs. Juliana Lusinga then a student nurse, and P.W.4 Andrew Athanazi, then a male nurse among other, to mention only a few. Thus, that P.W.2 Dr. Kirunga a Surgeon, P.W.3 Mrs. Juliana then a

G student nurse, were the employees, of Nkinga Hospital, is as true as the birth of Christ - and hence the contractual employer and employees relationship between them - i.e. Nkinga Hospital, and the said employees, respectively.

Undefiably, and there is no controversy, on the 21/1/1991, H the minor Theodelina Alphaxad, was on her playing errands, with

her agemates, when she fell and hurt her arm. The dispensary Sungwizi, to which she was rushed by her father, referred her case management to Nkinga Hospital. And that, on the very 21/1/1991, she was received by Nkinga Hospital, is conceded by no less, an

I authoritative person, than Dr. Kirunga. who concedes his failure to attend her, on that very day for reasons, - (1) that it was an X-ray

T. ALPHAXAD v. NKINGA HOSPITAL (Katiti, J.) 237

day, which I humbly think the minor wanted immediately, in the A first place, and, - (2) - that the minor had eaten, and six hours had not elapsed, as administering anaesthesia at that time, or before the lapse of that period, would have attracted vomiting, with attendant negative consequences, upon the respiration system. And of course as advised, P.W .l, did take the child home, not-withstanding, the B condition she was in.

The minor, plaintiff, it is defying challenge, was sent again to the very Hospital, on the 22/1/1991, when the X-ray Exhibit “A”, revealed the fractures of both the ULNA and RADIUS -the two forearm bones, the said Minor was anaesthetized, and a P.O.P. C installed, or a plaster casted, against the affected area, by no less a Surgeon than Dr. Kirunga, who according to P.W. 1, discharged them despite her feeling of pains, with instruction to go home and report back, after a week. It is again too true, to be dismissed, that on 25/ 1/1991, the minor while suffering from pain generating tears, was D sent back to the very Hospital, but she was not treated on this day, and on the 26/1/1991, upon the P.O.P. being removed, the hand was found to have blackened, the circulation of bipod in the affected area negative, and as it could not be improved, and consequently, the arm, was amputed on the 7/2/1991. And because of the above E undefied facts, the plaintiff is avering that the Hospital, “was negligent in their actions, which were not in accordance with good medical practice, during the whole course of treatment" i.e. delay of treatment, and manner of treatment.

While the plaintiff avers, and apportioned negligence to the F hospital in their mode of treatment, defendant Hospital demurred, and tried to throw the suit ball, back into the yard of the plaintiff D.W. 1 Lars - Gohan Hind Green, the medical officer in charge of the very Hospital since 6th July 1991 may as a person, be forgiven sympathetically, as absent as he had been, he can only theorise. G about generally accepted medical Standards, generally exercisable, and not testify as to the standards, that were actually applied, in the management of this case. But, it is very true that D.W.2. Dr. Kirunga was the one who handled, the minor’s case. While Dr. Kirunga, concedes to have not treated the minor on the 21.1.1991, when he H saw her, and concedes not to have treated the minor on the 25.1.1991,- till 26.1.1991, the discoloration of skin, and circulation of blood impediment, had set in, and hence the amputation, that was consumated. She was cared for, on 26.1.1991, despite her arrival on 25.1.1991, upon it being observed as shown, by Outpatient Card I Exhibit'‘P. B” that:

238 TANZANIA LAW REPORTS 11992] T.L.R

A That fingers now is black, like gangrenous process probably due to fracture complications, or P.O.P, compressed the blood supply - remove the P.O.P.

In para (7) and (8) of the Written Statement of Defence, it is B being averred, that, the real mistake was that, she did not “return

im m ediately to H ospital, when getting pain, swelling, and miseolouration of hard and arm. And that, information was given hv the attending Surgeon Dr. Sabri Kirunga, at the first attendance nn the 22.1.1991. of possible complication after applying, the P.O.P.

C and, absolute need to come back immediately in case of anv romplications”. Indeed D.W.2 Dr. Subri Kirunga testified this:

“I told the father before the patient, is anaesthetized that after the operation, if the patient shows any swelling, or pains, she

D has to be brought back immediately.”

Indeed, it is a fact as conceded by the defence, that the minor in the very afternoon of the very, 22 .1.1992, was already complaining of pains, and D.W.2 Dr. Kirunga reacted, as follows to the same:

EI looked at the arm, and did not note any swelling. I washesitant to make any adjustm ent. But when the childcomplained of pains, I called for instrument to cut the P.O.P.,I cut the P.O.P. to release, the thumb, where the pains were

F being left for two inches. I asked the child, if she still feltpains, and upon getting a negative answer, I left them to go.

Crowning it all, the case is that, while the plaintiff claims that the totality, or the accumulative effect of the spectrum of treatment,

G assumed a negligent culmination, and hence the detested amputation, defendants washing their hands off the episode maintained, that the plaintiff s father was to blame, in not bringing the child back to hospital upon the complication, that had been communicated to them, setting in.

H Whether the hospital was negligent, is the question that wantsan answer. The plaintiff claims damages, against the hospital, saying that even H ospitals, attract liability , where there has been professional negligence, in the treatment of the patient. Whether, or not, a hospital is liable for the professional negligence of its staff,

I is well established, and in the case of: Cassidy v. Ministry o f Health

T. ALPHAXAD v. NKINGA HOSPITAL (Katiti, J.) 239

[1951 ] 2 K.B. 343, and at page 359, Lord Justice Denning’s view, on A the same is as follows:

‘i f a man goes to a doctor because he is ill, no one doubts that the doctor, must exercise reasonable care and skill, in his treatment, of him, and is so, whether the doctor is paid for his B service, or not. But if the doctor is unable to treat the man himself, and send him to hospital, are not the hospital authorities then, under a duty of care of their treatment of him? I think they are. Clearly if he is a paying patient, paying them directly for their treatment of him, they must take reasonable care of Chim, and why should it make any difference, if he does not pay them directly, but only indirectly through the rates which he pays to the local authority, or Insurance contributions, which he makes in order to make the treatment? I see no difference at all. Even if he is so poor that he can pay nothing, and the Dhospital treats him out of charity, still the hospital, are under a duty to take reasonable care of him, just as the doctor is, who treats him without asking a fee.

In my opinion, authorities, Government boards, or other Ecorporations, are in law under the self-same duty, as the humblest doctor, whenever they accept a patient for treatment, they must use reasonable care, and skill to cure him of his ailment. The hospitals cannot of course do it themselves, they have no ears to listen, through the stethoscope, and no hands Fto hold the Surgeon’s knife. They must do it, by the staff which they employ; and if their staff are negligent in giving the treatment, they are just as liable, for that negligence, as is anyone else, who employs others, to do his duties for him.What possible difference in law, I ask, can there be between Ghospital authorities, who accept a patient for treatment, and sailing, of shipping authorities, who accept passengers for carriage? None whatever. Once they undertake the task they come under a duty to use care, in the doing of it, and that is so, whether they do it, for reward or not. ...” H

Another similar persuasive lesson, on the matter could be gathered from the case of Roe v. Ministry o f Health [1954] 2 W.L.R. 915, Lord Denning, was, as was usual, professional and expertly at it again. He held thus: ‘I

240 TANZANIA LAW REPORTS [1992) T.L.R

A The Hospital authorities, are responsible for the whole of theirstaff, not only for nurses and doctors, but also for the anaethetists and the Surgeon. It does not matter, whether they are permanent, or temporary, resident or visiting, wholetime, or part time. The Hospital authorities are

B responsible for all of them. The reason, is because even ifthey are not servants, they are agents of the hospital to give treatment. The only exception is the case o f consultants, or anaethetists selected, and employed by the patient himself....

C I am, from the above excerpts given to think that Cassidy’s,and Roe cases above, support the good and objective propositions,- One - (1) - that if a person is admitted as a patient by a hospital, and is, in medical treatment occasioned injury through the negligence of some member of staff, it is unnecessary for him to pick upon any

D identifiable particular employee for suing puiposes, the said Hospital is vicariously liable - two - (2) - the law seems to apply the principle of responde - at Superior, in the case of a hospital, just as it does, in the case, of master and servant, in any other sphere of activity; professional, industrial or otherwise, and three * (3) where the

E doctor, consultants etc. are selected and employed by the patient himself, the question of vicarious liability by the hospital does not arise, and such liability does not attach to the hospital, lhat did not employ them.

Thus, we may as well say, authoritatively, that hospitals are F responsible for all those, in whose charge the patients are, or patient

is. In other words, where in a hospital, the doctor engaged, has between him and the patient, established the doctor and patient relationship, by accepting him/her, for treatment purposes, the said doctor has a duty of care, and has to exercise the same, with skill

G attendant to modern medicine and surgery, under permitting circumstances. Such general duty, I better add. is not subject to dissection into a number of a component parts, to which different duty of care, apply, or combination of both. i.e. that the investigation and or treatment of the plaintiff was in accordance with current

H standards of medical practice, or that, the plaintiffs injuries were not caused by any negligence on behalf of the defendants. In this case, the defendants are adopting, both approaches.

Dutifully digging into the evidence, as adduced will give nothing, but the truth on the matter, whether there was negligence

I on the part of the hospital. It is a finding of fact that the minor was

T. ALPHAXAD v. NKINGA HOSPITAL(Katiti, J.) 241

referred to the defendant hospital on 21.1.1991 with a hurt hand, and it A is conceded by Dr. Kirunga, that the minor was not treated on this day.But Exhibit “P.A.", shows, what I assume was symptomatic diagnosis:- “disJocation of left arm - Like Green stick fracture - X-ray, kesho” dated21.1.1990. It is therefore.... . and perhaps good sense as well, thatwhere the doctor is himself under a duty of care, he has to apply such Bcare, throughout, right from time, he has received the patient, knowing as we should, that the body, does not function, as a stop-watch, - operate as and when the doctor wants.

The reasons that Dr. Kirunga gave, for not treating the minor on 21.1.1991, was that it was an X-ray day, and that the said minor Chad eaten. Such, in my humble mind being the reason for sending the patient back home, after receiving her, is flabbergasting and unacceptable, for if it was an X-ray day, then X-ray examination was the most needed, at that material time, to determine the extent of the harm, and if I have to surmise, I cannot imagine, that there D were no emergency facilities, either. The reason for not treating the minor on 2 1.1.1991, is given by Dr. Kirunga, thus:

On 21.1.1991 it would be impossible, as it was X-ray day, and second the child had eaten, and normally six hours had to Eelapse after eating, before anaesthesia can be administered, to avoid com m itting respiring vomit resulting in ugly consequences.

With respect, if X-ray had not been taken, the extent of harm was Funknown, and as such, the anaesthesia administration, could not be contem plated, in the first place. I thought, in my humble unprofessional view, that it was the X-ray examination, which would have led to the conclusion, whether or not anaesthesia, should be administered. But it was an X-ray day, and why the minor was not G X-rayed, we need revelation by divine power. Further, the said learned doctor, does not seem to have tried even a small inquiry, to find out as to how many more hours, had to pass, for the child to qualify for the anaesthesia administration, as admitting the child to await the lapse of such hours, would have made a lot of difference, Hthan sending her to home village altogether. And to expect proper management of such hurt condition, whose extent was not even known to a doctor was to expect too much. With a lot of difference, but with respect, this way and manner of dealing with a patient, hardly accords with the exercise of reasonable skill and care, in the Itreatment of the patient. For, certainly sending a known patient

242 TANZANIA LAW REPORTS 11992] T.L.R

A back home, in villages where facilities are known to be wanting, means late diagnosis, primary treatment delayed, as of course in the meantime, no therapy has been given. The consequences of the same, can be extremely serious, as irreversible changes can take place, in the body, or affected area, which actually in my view,

B took place. The hand deterioration process, had no stop watch system i.e. stop when the child is sent home, or otherwise unattended, but resume the process, when the doctor is around, -but the purpose of going to hospital, is to have the same arrested immediately.

If it may be recapitulated, further and I think, it should be, the C minor was dressed in, P.O.P. on 22.1.1991, after the X-ray

examination necessitated such a course of action, and it was not long after, that the child felt pains - after such P.O.P. installation, - and this is conceded by Dr. Kirunga thus:

D On the 22.1.1991, when the plaintiff came claiming the child was having pains, I cut part of the P.O.P. After that the child said, she was not feeling pains any more.

This first shows, that im m ediately, the P.O.P. was alreadyE demonstrating itself a s ...... and the plaintiff dutifully reported, as

earlier warned. While I may concede, that the learned doctor did, the needful at that time, I must submit, that what he did was cosmetic, in the circumstances, for, in my modest view, such was the danger signal, and reasonable skill and care, would have demanded

F circumspection, by monitoring the progress, instead of discharging her, to the village. But the learned doctor knew the potential dangers attendant to P.O.P., for in that direction. Dr. Kirunga said:

The P.O.P., is know for impairing blood circulation.G

I am heartily thankful to him, for this disclosure. If I get the doctor right, he means that the P.O.P. may become tight, causing increasing severe pains, loss of sensation, impairing blood circulation, leading to gangrene and hence loss of limb, or a functionally useless limb,

H - an actuality that the minor experienced, and suffered. But with even greater respect to Dr. Kirunga, if the pains signal, were already setting in, on the very day, and were rightly reported to him, I would have im agined , that the very Surgeon, who should have professionally anticipated such complications, should have made

J certain that, not only the cast, or P.O.P. is adequately adjusted, but too, the patient is carefully monitored, so that, if such warning signs

T. ALPHAXAD v. NKINGA HOSPITAL (Katiti, J.) 243

persist, the P.O.P. is split. And it beats my imagination, why the minor, A was without prejudice, not attended on her arrival on 25.1.1991, the doctor only to be rudely awakened, to the fact, that the fingers were getting black on 26.1.1991. In my humble view, failure to take adequate precautions, or act prompdy, when the signs of trouble appeared, and to let the patient to go hence, without thorough observations and to leave B him unattended on the 25.1.199 L when she reported, is indefensible, and hardly can it be said, that reasonable standard of care, and skill were applied.

The defendants averments that, it was for the plaintiff s father P.W. I to take, the minor immediately it felt pains, to hospital, has C above been answered successfully in my view, that as pains set in almost immediately after the P.O.P. was installed, the report, was accordingly made to Dr. Kirunga. It was for Dr. Kirunga. to monitor the same, considering the potentialities of the harm - but he did not, with respect. But if I may go further, may I peep, into what kind of D information the doctor ought to give to his patient, and whether the information he gave to the minor's father P.W. 1 was commensurate with the occasion, and the harm being experienced. In the case of: Sidaway v. Board o f Governors o f Bethlem Royal Hospital, and Maudsley Hospital 4 [ m 5 ] A.C. 871, [1985)11 All. E.R. 643 H.L., E it was held that, it was settled English Law, that when a doctor decides, what he ought, or ought not, to tell his patient, about the risks of the proposed procedure, the lawfulness of what he does, will be principally judged by tests founded, on the evidence of appropriate contemporary standards of professional care. That is F the doctor, will be found to have been in breach of his duty of care, to his patient, if he did not make enough disclosures, and the patient satisfied the court, that, he has suffered harm, as a consequence of the non-disclosure. And coming to think of our mother-land. I would in trepidation, fear, to imagine, and worse refuse to hear, that, our G circumstances would demand less modern and contemporary standards of professional care; in the information, being given to the patient, as to his diagnosed ailment. In Sida-way case, (supra), Lord Temele Man, in annunciating the type, and nature of information, to the patient, by his doctor, said thus: H

At the end of the day, the doctor, bearing in mind the best interest of the patient, and bearing in mind the patient rights, to information which will enable the patient to make, a balanced judgment, must decide what information should be Icouched. The Court will award damages, against the doctor,

244 TANZANIA LAW REPORTS 11992] T.L.R

A if the Court is satisfied, that the doctor blundered, and that the patient was deprived of information which was necessary for purposes, I have outlined above.

1 would draw an educative lesson from the above, that when the B doctor and patient relationship exists, and the doctor decides to give

his patient information about his/her ailment, such information must be such as to enable the said patient to make a balanced judgment, in respect of his/her ailments, or signs pertaining to the same, and such information, must, circumstances permitting, be consistent with

C contemporary standards, of professional medical care.In this case, without prejudice to the fact, that the minor did any

way report about the pains setting in, on that very day, and therefore. Dr. Kirunga should have been on alert, the doctor knowing the child’s problem only told P. W. 1, that if the minor felt pains, he shouJd be

D sent to Hospital immediately. With respect. Dr. Kirunga did not divulge enough to P.W. 1, and the minor, about the potential dangers involved, including possible amputation of the affected arm. From the above, the patient having not been attended, or otherwise, even after symptomatic diagnosis on 2 1 J . 1991, when she should have

E been and hence delayed treatment, on the 22 .1 .19 9 1 with P.O.P. straight occasioning pains showing it had not professionally been installed, and, the cast or P.O.P. being just cut in part instead o f monitoring her, considering the dangers known to D.W. 1 Dr. Kirunga, her not being attended on 25 .1.1991, when she returned in treating

F pain, only to be attended on 26.1.1991, when the gangerous process was already setting in, and the non-disclosure of the real dangers potential to the harm, suffered by the minor, before being discharged to their village, show that by any stretch of imagination of the same, no reasonable care and skill, founded on the appropriate

G contemporary standards of professional care, were applied to this patient. I hold and find in my view, that, the hospital was negligent in the treatment of the patient, and it is so guilty, and I so find.

The general damages sought are. Shs. 5,(XK),000/=, interest at 7%, from filing of the suit etc. for loss of the limb. The plaintiff

H did not even elaborate on how such figure was reached. But I can hardly blame him, as this is a difficult area, scaring even old hands in this business. But as it was pointed out in the case of Admiralty Commissioners v. SS Susquehanna [1926] A.C. 665, and approved in West v. Shepheld [1964] A C. 326, damages for tort, or even

I breach of contract, are such damages, which so far as money can compensate, will give the injured party, reparation for the wrongful

S. SHEFAYA v. OMARY ALLY (Ramadhani, J.A.) 245

act. After all, as it was pointed out. in West v. Shepheid [1964] A A.C. 326 money cannot renew the physical frame of the limb etc., that, has been battered, and all the court, can do is to award sums which must be regarded, as given reasonable compensation. In this case, in my view, considering the current money value, 1 hereby award Shs. 1,2(X),000/=. That I think meets the justice of the case, B and such amount is so awarded, with costs and prayed interests.

Order accordingly.

SHEMBILU SHEFAYA v. OMARY ALLY [COURT OF APPEAL OF TANZANIA (Ramadhani. J.A,)]

20 August. 1992 - TANGA D

Civil Practice and Procedure - Court o f Appeal Rules - Application fo r extension o f lime to fd e a notice o f appeal - 111 health without elaboration given as reason - Whether sufficient reason. E

The applicant who lost an appeal in the High Court delayed to file his notice of appeal within the prescribed 14 days period. Then he filed an application in the High Court for extension of time to file a notice of appeal. The application was dismissed because "ill health F without elaboration cannot amount to a good reason....” Aggrieved by the decision of the High Court the applicant appealed to the Court of Appeal

Held: No sufficient reason has been given for the delay. G

Application dismissed.

R am adhani, J.A .: The applicant. Shembilu Shefaya, was sued by the respondent, Omari Ally, in Dochi Primary Court and H won the case. So Omari appealed successfully to the District Court of Lushoto. Then Shembilu. the applicant, appealed to the High Court but without success. He now wants to appeal to this Court.

The judgment of Mr. Shungu, Principal Resident Magistrate (Extended Jurisdiction) was read over to the applicant in Lushoto I District Court on 13/12/1989. However, the 14 days in which he

246 TANZANIA LAW REPORTS 11992] T.L.R

A was to file his notice of appeal elapsed without his doing so.The applicant then filed an application in the High Court for

extension of time to file a notice of appeal, that application was dismissed by Mushi, J. because “ill health without elaboration cannot amount to a good reason for extending time to file notice of appeal

B ... after a delay of about five months.'7The applicant has come to this Court with the same prayer for

extending time to file a notice of appeal. His affidavit in support of this application does not provide the elaboration which was wanting before Mushi, J. Even at the hearing he merely insisted that the

C disease he had was not one for hospital treatment and that the local doctors could not be available to bear witness to that fact. Now, that, as property points out by the respondent in his counter-affidavit, could be alleged by any body with impunity. For court work we need something more than excuses.

D Then the applicant merely attacked Mushi, J. that the period whichelapsed between the decision and the filing o f the application was not five months but fifty days. But fifty days is neither a short period nor excusable.

No sufficient reason has been given for the delay and as such E I cannot see any reason for enlarging time. The application is

dismissed with costs.

Application dismissed.

F

D.P. VALAMBIA v. TRANSPORT EQUIPMENT LTD [COURT OF APPEAL OF TANZANIA (Mfalila, J.A.)]

G 24 August, 1992 - DAR ES SALAAM

Court o f Appeal Rules - Motion - Whether a motion is an application at the time offiling - Failure to serve a copy o f the letter applying fo r certified copy o f proceedings upon the respondent - Failure

H to serve notice o f appeal upon the respondent - Whether an application to save an appeal entertainable.

In an application to extend the time in which to serve notice of appeal from the Ruling of the High Court of Tanzania, the Justice

I of Appeal found that the application was not entertainable as it was made to save the appeal after another application to strike out the

D.P. VALAMBIA v. T. EQUIPMENT LTD (Mfalila, J.A.) 247

notice of appeal had already been filed. Further the Justice of Appeal A found that the application was technically not entertainable for failure to comply with Court of Appeal Rules regarding service of a copy of the letter applying for a certified copy of proceedings in accordance with Rule 83(2) and failure to serve upon the respondents the notice of appeal as required by Rule 77{ 1). B

Held: (i) A motion is an oral application made at the time when the applicant addresses the Court or Judge, not when the notice of motion is filed;

(ii) if the respondent does not serve upon the applicant a copy C of their letter in which they apply for a copy of the proceedings as required by Rule 83(2) they are not covered by the exception in sub-rule (1). Thus if the Registrar issued them with a certificate under sub-rule (I) of Rule 83 such certificate was issued under a mistake of fact. Consequently the period available to the respondents D in which to institute the appeal was sixty days;

(iii) failure by the respondents to serve a copy of the notice ofappeal on the applicant through negligence and/or inaction is a failure to take an essential step in the proceedings as required by Rule 77(1). E

Order accordingly.

Mfalila, J.A .: This matter concerns two applications which were consolidated by order of this Court dated 3rd July, 1992. These Fare application Nos. 13 and 29 of 1991. In Application No. 13 of 1991, the applicant is D.P. Valambhia and Transport Equipment Limited are the respondents, while in Application No. 29 of 1991, the roles are reversed. Transport Equipment Ltd. are the applicants and D.P. Valambhia is the respondent. At this stage, a brief historical Gbackground would be in order. In Dar es Salaam High Court Civil Case No. 240 of 1989, M/S Transport Equipment Limited, sued D.P. Valambia whom they had Commissioned to collect on their behalf, certain monies due to them from the Government of Tanzania. This Commission was worth $ 150,000, but they alleged Hthat D.P. Valambia had made fraudulent attempts to have paid to his personal account abroad a sum of money far in excess of his entitlement. D.P. Valambia denied the allegation and counter­claimed on the basis that he was entitled to 45% of the contract sum due to Transport Equipment Limited. On the hearing date, the Iplaintiffs did not appear, the suit was therefore dismissed and the

248 TANZANIA LAW REPORTS [ 1992] T.L.R

A judge entered judgment in favour of the respondent on his counter­claim. That was on 12th February 1991. On J 4th February 1991, the plaintiffs Transport Equipment Ltd., filed with the Registrar of the High Court a notice o f appeal, that they intended to appeal to this court against the whole of the Ruling and Judgment of die High

B Court. This notice for one reason or another was never served on D.P. Valambia the prospective respondent in the intended appeal until two months later on 19th April 1991 when D.P. Valambia filed a notice of motion, instituting Civil Application No. 13 of 1991 in which he prayed to move a judge of this Court for an order that the

C notice of appeal filed by the respondents Transport Equipment Limited be struck out on the ground that some essential step in the proceedings had not been taken and/or has not been taken within the prescribed time, and for an order that the costs of and incidental to this application may be paid by the said respondents. This

D application was supported by two affidavits deposed to by the applicant D.P. Valambia and one Hamisi Dihoni a clerk in the Chambers of Maira & Co. Advocates, the applicant’s Counsel. The respondent Transport Equipment through their Counsel E.H. Mbuya, opposed this application and filed two counter affidavits. Counter

E affidavit I was deposed to by Miss Cecilia Joyce Sichalwe, A Secretary in Mr. Mbuya's office, while counter affidavit II was deposed to by Mr. Evarist Mbuya himself.

Before this application was disposed of, Transport Equipment Limited filed a notice of motion to move the Court for an order that

F the time for serving the respondent with a copy of the notice of appeal be extended up to the date the respondent received the said notice of appeal and for an order that costs of and incidental to this application abide the result of the said appeal. This was registered as Civil Application No. 29 of 1991. When Civil Application No.

G 13/91 came up for hearing before Omar, J.A., Mr. Mbuya applied orally to have that application consolidated with his client’s application No. 29/91. After hearing the arguments, Omar, J.A. dism issed the application holding that “Lum ping the said applications together would not meet the ends of justice because

H each application has its own separate object to pursue.” Mr. Mbuya was dissatisfied with this refusal to consolidate and he took it on reference before the Court. The Court consisting of Makame, Kisanga and Ramadhani, JJA, allowed the reference stating at page2 of the typed Ruling:

We think with respect to refuse to consolidate would be toI

D P. VALAMBIA v. T. EQUIPMENT LTD (Mfalila. J.A.) 249

fragment the process and delay the outcome. We are satisfied A that to consolidate would be the better course in the circumstances and we so order.

This Order led to these consolidated proceedings before me involving Civil Applications Nos. 13 and 29 of 1991. B

For my part, in dealing with the present applications, 1 did not lose sight of the decision of this Court in Civil Appeal No. 34/88 where the problem facing the Court and the way counsel for the appellant sought to go about it are similar to those facing me in the present applications. In that appeal, Arusha International C Conference Centre v. Damns Augustine Ndemast Kavishe, the question arose as to whether a notice of motion to save an appeal could properly be taken out in answer to another notice of motion which had sought to have that appeal struck out as being incompetent. This to me appears to be what Transport Equipment D Limited were trying to do in their notice of motion in Civil Application No. 29 of 1991, namely to save their notice of appeal from being struck out as prayed for in Civil Application No. 13/91.In that appeal, the Arusha International Conference Centre was appealing against the decision of the High Court granting an E injunction against it, restraining it from evicting the respondent from a residential house. When the matter came up for hearing. Counsel for the respondent orally took a preliminary objection that an essential step had not been taken in that the appellant had failed to extract the decree being appealed against and make it part of the F record of the intended appeal. However the Court refused to entertain this oral applications being against the rules, but he was allowed to file the necessary notice of motion in which he sought to have the appeal struck out as being incompetent. At the resumed hearing. Counsel for the appellant filed a notice of motion seeking G extension of time to file the memorandum and record of appeal and leave to file a supplementary record of appeal. Faced with this situation, the Court (Kisanga, J.A) stated:

It thus became apparent that the situation was getting confused H because a notice of motion to save an appeal could not properly be taken out in answer to another notice of motion which had sought to have the appeal struck out as incompetent. It was accordingly directed that the first m otion raising the preliminary objection be heard first and depending on the T outcome thereof the subsequent motion seeking an extension

250 TANZANIA LAW REPORTS 11992] T.L.R

A of time to file the memorandum and record of appeal andleave to file supplementary record of appeal could then be heard.

After hearing the first motion to strike out the appeal, the Court B held that failure to extract a decree and to include it in the record of

appeal in terms of Rule 89(2) of the Court of Appeal Rules was fatal making the appeal incompetent and was accordingly struck out. Regarding the other application by Counsel for the appellant for the extension of time to lodge the memorandum and record of

C appeal as well as to file a supplementary record of appeal the Court held:

In the light of this ruling, (i.e. that the appeal is incompetent and was therefore struck out) it would now be pointless to

D entertain the application for extension of time. The applicationfor extension of time to file the memorandum and record of appeal presupposes that there is already a notice of appeal in existence. But the notice of appeal which brought into being the appeal which has just been struck out, disappeared with

E the striking out of the appeal. So that there is now a cleanplate as it were with nothing on it. If the appellant wishes to lodge a proper appeal he will have to start afresh by applying for an extension of time to give notice of his intention to appeal. But this Court has no jurisdiction to grant such extension.

F That jurisdiction is vested in the High Court under section11(1) of the Appellate Jurisdiction Act.

In my view, this is what Omar, J.A. had in mind when he refused to consolidate Civil Application No. 13/91 with Application No. 19/

G 91 which seeks to save the notice of appeal from being struck out as prayed in Civil Application No. 13/91. But even with these two applications having been consolidated, I intend to deal with them on the lines adopted in Civil Appeal No. 34/88 quoted above. I will therefore start with Civil Application No. 13/91.

H As indicated earlier, the applicant in this application is seeking an order that the notice of appeal filed by the respondent be struck out, because some essential step in the proceedings has not been taken and/or has not been taken within the prescribed time as required by Rule 77 (1) of the Court of Appeal Rules 1979 which

I provides as follows:

D.P. VALAMBIA u T. EQUIPMENT LTD (Mfalila, J.A.) 251

77 - (1) An intended appellant shall, before, or within seven days, A after lodging a notice of appeal, serve copies of it on all parties who seem to him to be directly affected by the appeal; but the Court may, on an exparte application, direct that service need not be effected on any person who took no part in the proceedings in the High Court. B

At the hearing of this application, Mr. Marando who appeared for the applicant, submitted that there were two essential steps which were not taken. First, he said, the respondents did not serve the applicant with the notice of appeal as required by Rule 77 (1) quoted C above. Secondly, he said that the respondents did not send to the applicant a copy of their letter applying for certified copies of the record, thus disqualified themselves from the benefits of the exception in Rule 83 (2) regarding the computation of time, fn the circumstances, he said, the respondents should have filed the D memorandum of appeal by 19/4/91 i.e. within 60 days of their filing the notice of appeal.

Before proceeding further with this application, I think I should deal first with the question regarding its validity. This application was undoubtedly brought under the provisions of Rule 82 which E provides as follows;

82. A person on whom a notice of appeal has been served, may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal. F as the case may be on the ground that no appeal lies or that some essential stop in the proceedings has not been taken or has not been taken within the prescribed time. (The emphasis is supplied).

GIn the present case, the application to strike out the notice of

appeal was filed before the applicant was served with the notice of appeal, thus making him unqualified to mount this application under the above quoted rule. In this connection Mr. Marando submitted, rightly in my view, in the light of the observations by the defunct H East African Court of Appeal in O son go and another u Republic ( 1970J EA 170, that since at the time he was orally addressing the Court on the notice of motion, he had already been served with the notice of appeal, this application is valid under Rule 82. In the Osongo case, it was contended for the respondent that the application I

252 TANZANIA LAW REPORTS 11992] T.L.R

A was incompetent because it was filed before the application to the High Court. The Court held at page 171 B:

We think that a motion is an oral application and therefore that it is made at the time when the applicant addresses the

B Court or judge, not when the notice of motion is filed. This isborne out by the wording of the prescribed form of the notice of motion.

Indeed the word used in the Rule is “apply” not “file” . Since C therefore in this application the applicant was served with the notice

o f appeal on 25/4/91, he was already served with the notice at the time he was addressing me on 30/7/92, and that therefore it comes within the provisions of Rule 82 and is accordingly valid.

Reverting now to the first of the steps which were not taken, D Mr. Marando said that he was served with the notice of appeal dated

14th February 1991 on 25/4/91. This Notice was lodged with the High Court on 19th February, 1991. Under Rule 77 (1) it should have been served within seven days from 19th February, 1991, i.e. by 27th February, 1991.

E The respondents have conceded throughout that the notice ofappeal which they lodged with the High Court on 19th February,1991, was not served on the applicant within seven days and that it was served two months later on 25/4/91. But Mr. Mbuya submitted on behalf of the respondents that there are sufficient grounds not to

F strike out the notice of appeal and for extending the time within which to serve it. He said that the notice of appeal was not served on the applicant due to a mix up in his office. Mr. Mbuya then proceeded to explain this mix up. He said that on 14/2/91, he drafted the notice of appeal and indicated that copies were to be served on

G the applicant through his two advocates. On 18/2/92, he drafted a letter to the Registrar, requesting for certified copies of proceedings and indicated that copies of the letter were to be sent to the applicant’s advocates. This letter was referenced EHC/501/TeL/ HCC 210/89 dated 18/2/91. The relevant envelopes were typed.

H but the mix-up occurred when it came to putting the contents in them. Instead of putting in each envelope a copy of the notice and a copy of the letter, his secretary put in one envelope two copies of notices and in the other two copies of the letter. As it turned out. the envelope addressed to Marando & Co, contained the two copies

I of the notices. This envelope remained in Mr. Mbuya’s office undelivered until April. The other envelope addressed to Maira &

D P. VALAMB1A v. T, EQUIPMENT LTD (MfaJila, J.A.) 253

Co., had the two copies of the letter, but this according to Mr. Mbuya, A was handed by him personally to a clerk in the chambers of Maira & Co. for delivery to his employers. The clerk is Hamisi Dihoni.All this information is contained in affidavits I and II deposed to by Miss Sichalwe and Mr. Mbuya himself. But in his affidavit, Hamisi Dihoni stated that he was handed an envelope by a secretary in Mr. B Mbuya’s office on 25/4/91 for delivery to Maira & Co and that this envelope contained a notice of appeal dated 14th February, 1991, and a letter reference No. EHC/301/TEL/HCC 210/89 dated 18th February, 1991, and that he delivered these documents to Mr. Maira of Maira & Co. Advocates. C

1 will start with the non delivery of the notice of appeal. Rule 77(1) was not complied with due to mistake by Counsel. The question is whether this is sufficient reason. Mr. Marando submitted that the notice of appeal was not served on the applicant because of negligence and inaction on the part of his learned colleague, counsel D nor the respondents, and that this negligence and inadvertence cannot excuse the non-appliance with Rule 77 (1). This Court has held on a number of occasions that lapses of a minor nature on counsel’s part, may be excused, but where counsel’s conduct amounts to negligence or inaction leading to non-appliance with a mandatory E statutory requirement, this Court will not be easily moved to condone the conduct. In this case, by Mr, Mbuya’s own admissions, he seems to be guilty of negligence and inaction at two levels. Having prepared the notice of appeal and the letter applying for copies of proceedings timeously, it is really inexcusable that the documents F were wrongly placed in the envelopes and then left the envelope addressed to Mr. Marando lying in his office for over two months!Yet he knew or he is supposed to know the mandatory provisions of Rule 77 (1). Quite clearly, by this kind of conduct, counsel for the respondents was doing very little to protect the interests of his G clients. In Civil Appeal No. 9/84, Mrs. Grace Frank Ngowi v. Dr. Frank Israel Ngowi, this Court rejected the contention by counsel for the applicant that he had not served the notice of appeal on the respondents because he had relied on the undertaking by a registry officer to serve the notice on the respondent which he failed to do H and also that he had inadvertently failed to despatch a copy of the application and a copy of the record to the respondent. The appeal was struck out.

Regarding the copy of the letter applying for copy of proceedings two copies were put in an envelope addressed to Mr. IMaira, which never reached him in February or by the time they

254 TANZANIA LAW REPORTS [ 1992) T.L.R

A filed the notices of motion for an order to strike out the notice of appeal. This requirement is governed by Rule 83.

83 - (1) Subject to the provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within

B sixty days of the date when the notice of appeal was lodged -

(a) a memorandum of appeal, in quintuplicate;(b) the record of appeal in quintuplicate;(c) the prescribed fee; and

C (d) security for the costs of the appeal;

save that where an application for a copy of the proceedings to the High Court has been made within thirty days of the date of the decision against which it is desired to appeal, there

D shall, in computing the time within which the appeal is to beinstituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery of that copy to the appellant.

E (2) An appellant shall not be entitled to rely on the exceptionto sub-rule (1) unless his application for the copy was inwriting and a copy of it was sent to the respondent.

Mr. Mbuya stated in his affidavit and at the hearing that he F personally handed the envelope containing the copy of the letter to

Mr. Maira’s clerk one Hamisi Dihoni for delivery to his employers, and that when he saw the contents of paragraph 3 of Dihoni’s affidavit, he confronted him and Dihoni informed him that the particulars in his affidavit which are handwritten had not been

G inserted by him and that he also recalled the fact of his handing over to him the envelope containing the copy of the letter ref. No. EHC/501 /TEL/CC 210/89/91 dated 18/2/91. This was all the depositions stated about the respondents’ compliance with Rule 83 (I), namely that a copy of the letter applying for a copy of

H proceedings was sent to the respondent. But as Mr. Mbuya undoubtedly knows, all this is hearsay. He should have filed an affidavit by Hamisi Dihoni confirming their alleged conversation. In a parallel case, Civil Application No,5/87 KigotmiAli Maiima v. Abbas Yusuf Mwingamo, the applicant applied to have the appeal

1 filed by the respondent struck out in terms of Rule 82 on the ground that although the respondent had filed the memorandum and record

D.P. VALAMBIA v. T. EQUIPMENT LTD (Mfalila, J.A.) 255

of appeal in time, he failed to serve the documents on the applicant. A In his reply, counsel for the respondent filed an application also by way of motion for an order that he be granted an extension of time to serve a copy of the memorandum and record of appeal on the applicant. In support of his application for extension of time, counsel stated that on 27/11 /86 he had handed the documents to a messenger B in his office one Iddi Selemani Sengumba with instructions to deliver it to counsel for the applicant. He was thus surprised to learn through applicant’s application to strike out the appeal that apparently the memorandum and record o f appeal had not been served on applicant’s counsel. C

This Court held that in the absence of an affidavit by Sengumba that he had tried and failed to serve applicant’s counsel, that was no reason let alone sufficient reason before the Court for the failure by respondent to serve the applicant w ith the memorandum and record of appeal in terms of Rule 77 of the Rules. D Hence the application for extension of time was refused and the appeal was struck out. This is exactly what Mr. Mbuya should have done in this case, namely file an affidavit by Hamisi Dihoni. However, Mr. Mbuya explained his failure to file Dihoni’s affidavit, saying that under pressure from his employers, that is Maira and E Company Advocates, Hamisi Dihoni was most unwilling to make an affidavit to contradict what he stated in paragraph 3 of his affidavit. Apparently there was some correspondence on this aspect of the matter between Mr. Mbuya’s Chambers and these of Maira& Company which ended with Maira & Co. vehemently denying F the allegation and added that they could not be involved in conduct which was illegal. This letter is annexure R6. But at the hearing of these applications, Mr. Maira submitted that at an earlier hearing, they had brought Hamisi Dihoni along so that Mr. Mbuya could cross-examine him on his affidavit if he so wished, but that Mr. G Mbuya had not taken up the offer. Even subsequently, Mr. Maira added, Mr. Mbuya never thought it necessary to have Hamisi summoned for cross examination on his affidavit.

Mr. Mbuya also tried to prove that the letter of 18/2/91 was sent to counsel for the applicant by pointing out that the letter referred H to in paragraph 3 of Dihonis’ affidavit, was not the one he sent on 25/4/91, but the one which was sent in February and that therefore the fact that the applicant referred to this letter, is proof that it reached him in February by the hand of hamisi as he claims. Mr. Maira answered this quite simply by pointing out that was the letter which I they received with the notice of appeal on 25/4/91 and that it was

256 TANZANIA LAW REPORTS [19921 T.L.R

A none of their business that it was not the letter Mr. Mbuya had intended to send to them.

Quite clearly Mr. Mbuya must take all the blame. He knew and he knows the importance of complying with Rule 83 (2) to enable him enjoy the protection under the exception clause in sub-

B rule (1), yet he made no attempt to keep a record of the fact that he had handed the letter to Maira’s cierk. As Mr. Marando correctly stated, Mr. Mbuya could have achieved this by one of two ways. He could have used a despatch book or made Hamisi acknowledge his receipt of the envelope. This would have been enough proof

C that the copy of the letter was sent to the applicant was required by Rule 83 {I ) and that therefore he is covered by the exception in that sub-rule. At the lowest Mr. Mbuya could have mitigated the effects of Dihonis affidavit by cross-examining him. The Registrar of the High Court must therefore have issued the certificate under a

D mistaken belief that the respondent was entitled to it. As matters stand then, the respondent is not covered by the exception in sub­rule (1) because although he applied for the copy of the proceedings in writing within thirty days, he did not send the copy of the letter to the applicant. Since on my finding the respondents failed to take an

E essential step in the proceedings, in that they did not, through negligence and/or inaction serve a copy of the notice of appeal on the applicant as required by of Rule 77 (1), this notice of appeal must be and is hereby struck out. Since also on my finding, the respondents did not send to the applicant a copy o f their letter in

F which they applied for a copy of the proceedings, as required by Rule 83 (2) they are not covered by the exception in sub-rule (1) and that therefore the Registrar issued them with a certificate under sub-rule ( I ) while labouring under a mistake of fact. Consequently the period available to the respondents in which to institute the

G appeal, was sixty days.With these findings, it is not strictly necessary for me to

consider and determine Civil Application No. 29/91 in which the applicants are seeking an extension of time to serve the respondent with the notice of appeal, namely up to the date the respondent

H received it. I say it is not strictly necessary because in the reference which ordered consolidation, the Court appears to have accepted the argument in favour of consolidation to the effect that “the two applications were essentially two sides of the same coin, that if for example, the single judge decided that the present applicant had

I indeed failed to take essentia! steps and so strike out the notice, he could not then turn round in the other application and permit the

D.P. VALAMB1A u T. EQUIPMENT LTD (Mfalila, J A.) 257

present applicant to comply with all the formalities and vise versa.” A Nevertheless with this in full view, I intend to deal with application No. 29/91 on its merits.

As indicated earlier on in this Ruling, this application was launched by the applicants essentially to save their notice of appeal dated 14/2/91 from being struck out. The basic position of this B court in such matters was clearly set out in Civil Appeal No. 34/88 set out earlier. The power to extend the various periods in the Rules is provided in Rule 8 and this court had the occasion in Civil Application No. 27/87 Dar es Salaam City Council v. Jayamlal Pragubhai Rajan to make general comments on the exercise of the C powers under that Rule. The court stated at page 4 of the typed judgment

It is now well established that under this rule this court has wide powers to extend the time for the doing of any act in Dterms of the rule, provided that sufficient reason is shown. However the problem often arises as to what amounts to sufficient reason.

The court then proceeded to state what amounts to sufficient reason E and stated at page 12:

What is discernible from the applicants’ affidavit and the submissions by counsel was that the delay was actually due to lack of diligence. A good instance of this is afforded by the F claim that the applicant, having access to the Order of the Chief Justice at the Court of Appeal registry on 23/6/86 did not bring the application because the information was unofficial. Quite clearly that was no evidence of diligence in pursuing the matter. Time and again the court has stressed Gthe need to comply with the court rules the purpose of which is to provide a timetable for the conduct of litigation. The court’s discretion under Rule 8 to extend the time fixed for doing an act is one to be exercised judicially. No doubt the decision whether or not to exercise the discretion in favour of Hthe applicant will depend on the facts and circumstances of each individual case, but one of the important consideration influencing that decision is whether the application was brought promptly. The inordinate delay in the instant case is clearly a factor which operates against the exercise of the Idiscretion in favour of the applicant, the absence of any or

258 TANZANIA LAW REPORTS 11992] T.L.R

A valid explanation for the inordinate delay and complete lack o f diligence are yet other factors operating in the same directions.

In present application, the failure to serve the notice of appeal was B not only due to negligence and inaction on the part of counsel for

the applicants, but the application itself for the extension of time was brought as a saving measure, it was filed in response to another application seeking to strike out the very notice of appeal the applicants were frantically seeking to save from the axe. This

C application is therefore only a reaction, one cannot in these circumstances say that the application was promptly brought on sound reasons. There is another difficulty facing this application. Even if this application to extend the time in which to serve the notice of application on the respondent were to be granted, the

D applicants will still be faced with the problem of instituting the appeal under Rule 83( I), in that the 60 day period seems to have run out. There is no application seeking to extend the 60 day period in which to institute the appeal by lodging in the registry, a memorandum of appeal, the record of appeal, the prescribed fee

E and security for the costs of the appeal. Those documents appear to have been filed on 3rd June 1992 more than a year after the due date.

Mr. Mbuya advanced two other reasons for this court to exercise its discretion under Rule 8 and order extension of time. He

F said that the intended appeal if allowed to take off, has overwhelming chances of success because of the exceptional circumstances present in the case. He elaborated on this saying that the learned judge’s order refusing an adjournment and his award of the judgment on the counter claims were against the rules of natural justice.

G With regard to the claim that the intended appeal hasoverwhelming chances of success, the record shows that the suit was dismissed and judgment entered on the counterclaim in default. The story narrated at the hearing of this application, is typical of what appears to be Mr. Mbuya’s style of doing things. He left the

H whole thing up to the very last moment, unfortunately his client failed to arrive in Dar es Salaam, hence Mr. Mbuya could not file a defence as ordered by the court. With a little more diligence and application, Mr. Mbuya could have managed to file the defence to the counterclaim by the appointed day. This is so particularly when

I the amount at stake is considered. However, likelihood of the intended appeal succeeding, is not in itself sufficient to make this

I.S. MSANG1 V. JUWATA(Kisanga, J.A.) 259

court exercise its discretion in favour of the applicant. Rules of A court were created to act as vehicles to enable this court to dispense justice between parties, and the court’s task in this direction is made easier if the rules are complies with. The general rule therefore is that this court will lean towards strict compliance with the rules, only to depart from this general rule in cases where it is clear that B strict application would not be in the interests of justice. In such cases, discretionary powers provided in rules such as Rule 8 would be brought into play. As this court remarked in Civil Application No. 20/87 quoted earlier, the purpose of the court rules is to provide a timetable for the conduct of litigation. In this application, this C timetable states that by the time the applicants filed this application, they were deemed under rule 84 to have withdrawn their notice of appeal. Very good reasons other than negligence and inaction must be firmly established before this timetable can be disturbed. There are neither good reasons nor exceptional circumstances in this case D to warrant the disturbance of the timetable by which litigants are supposed to conduct their affairs.

For the totality of all these reasons, this application to extend the time within which to serve the notice of appeal fails and it is dismissed with an order for costs in favour of D.P. Valambhia the E applicant in Civil Application No. 13/91 and respondent in Civil Application No. 29/91.

Appeal dismissed._______________ F

[.S. MSANGI v.JUMUIYA YA WAFANYAKAZI AND WORKERS G

DEVELOPMENT CORPORATION (COURT OF APPEAL OF TANZANIA

(Makame, Kisanga, and Omar, JJ.A.)1

26th August, 1992 - DAR ES SALAAM {-f

Tort - Defamation - Defence o f qualified privilege - Publication to a person not having corresponding interest and duty to receive the publication - Whether defence available

Labour Law - Employment - Wrongful termination - Employee right to be heard before termination.

260 TANZANIA LAW REPORTS 11992) T.L.R

A The appellant sued the respondents in the High Court for defamation and wrongful termination of employment. The basis of his suit for defamation was that a defamatory statement relating to him was published to persons not having corresponding interest and duty to receive the publication. The defamatory statement was contained

B in a probe team report which instead of being published to the general council of JUWATA which had ordered the probe was published to Kamati ya Usimamm ya Baraza Kuu (KUBK) and the board of directors of the Workers Development Corporation (WDC) of which he was general manager. And the basis for his complaint against

C wrongful termination was that he was not given an opportunity to be heard by the body which terminated his employment. KUBK did give him an opportunity to be heard and in the end recommended that the appellants employment be terminated and the board of directors of W.D.C. terminated his services without giving him an

D opportunity to be heard. The trial court found the complaints to be baseless on the following grounds: (a) that the respondents were availed the defence of qualified privilege; and (b) that the appellant was afforded an opportunity to be heard by KUBK. On appeal to the Court of Appeal.

EHeld: (i) Where a person raises the defence of qualified privilege on the ground that he had a duty to make the offending statement it must further be shown that the statement was made in good faith and that the person to whom it was made had a corresponding interest

F and duty to receive it;(ii)the report containing defamatory statements was ordered by

the general council of the first respondent and was expressly required to be submitted to that body. Publication of the report to members of KUBK when they were not supposed to receive it was wrong;

G (iii) it was necessary to afford the appellant the opportunityto be heard by the body which ultimately decided his fate i.e. the board of directors, because there can be no guarantee that given that opportunity his defence before the board of directors would necessarily be the same as his defence before the probe team.

HAppeal allowed.

M akame, O m ar and Kisanga, JJ.A .: The appellant sued the first respondent, JU M U IY A YA W AFANYAKAZI

I TANZANIA (JUWATA), for defamation, and in the same plaint he also sued the second respondent, the Workers Development

I.S. MSANG1 v. JUWATA(Kisanga, J.A.) 261

Corporation (W.D.C) for wrongful termination of his employment. A The second respondent in a counter-claim sued for unrefunded loans which the appellant had obtained from the said respondent with or without authorization. The High Court in which the action was brought dismissed both the claim and the counter-claim and made an order for costs against the appellant. The appellant is now B appealing, but the second respondent has not appealed against the dismissal of its counter-claim.

The facts of the case may be stated briefly as follows: The appellant was employed by the W.D.C. as its general manager. As part of his duties, the appellant prepared and submitted a report of C the W.D.C. and its subsidiary companies at the annual meeting of the general council o f JUWATA: it is the general council of JUWATA, consisting of two to three hundred members, which supervises the affairs of the W.D.C. As the appellant was trying to present his report before the general council, members of the council D felt that the report involved certain inadequacies or unsatisfactory matters which made it necessary to appoint a probe team of seven members to examine the report and submit their Findings to the general council at its next meeting. After the report of the probe team was prepared it was presented to the Secretary-General of E JUWATA who, however, submitted it, not to the general council as had been directed, but to the Kamati ya Usimamizi ya Baraza Kuu (KUBK) consisting of 20 to 30 members, and also to the Board of Directors of the W.D.C.

Upon receiving the probe report, the KUBK required the F appellant to appear before it to defend himself against allegations made against him in the report and he did so. In addition to the appellant’s defence the KUBK also received from the board of directors of the W.D.C. their comments on the probe report. After that the KUBK proceeded to appoint a select committee to scrutinize Gfurther the probe report in the light of the appellant’s defence and the comments by the board of directors of the W.D.C., and then report back to the KUBK. The select committee accordingly submitted its report and after discussing and adopting it the KUBK recommended the termination of the appellant’s employment; acting H on that recommendation, the board of directors of the W.D.C. accordingly terminated the appellant’s employment.

The appellant’s claim for defamation was essentially based on the publication of the probe report to the bodies of persons other than that which had ordered or directed such probe. And the basis Ifor his complaint against wrongful termination was that he was given

262 TANZANIA LAW REPORTS 11992| T.L.R

A no opportunity to be heard by the body which terminated his employment.

The trial judge dismissed the appellant’s claim for defamation on the ground that the first respondent had the defence of qualified privilege. He dismissed the claim for wrongful termination on the

B ground that such termination was justified in the light of the appellant’s proved or admitted misconducts.

At the hearing of this appeal the appellant was represented by Mr. Lukwaro while Mr. Muccadam appeared for the respondents. Mr. Lukwaro filed a total of eight grounds of appeal challenging

C the dismissal of his client’s suit by the High Court and the failure by that Court to award him costs after dismissing the counter-claim by the second respondent.

The learned judge found that the report by the probe team did contain statements which were defamatory of the appellant. When

D dealing with that issue he said inter alia:

There is no doubt that some of the publication is defamatory. Matters like adultery imputations and fraud allegations are certainly defamatory.

EWe are satisfied that this finding was quite justified. There was ample evidence to support it. However, he misdirected himself by saying that the probe team submitted its report to the general council of JUWATA. For, there was abundant evidence of the appellant

F and the defence witness, one Mr. Mashashi, that the report by the probe team was submitted to the KUBK, not to the general council of JUWATA.

As stated earlier, the learned judge found that the first respondent had the defence of qualified privilege available to it.

G This was so because, in his view, ‘‘there was a public duty to investigate into the activities of the W.D.C. and its general manager”. He took the view that once there was that duty then in the absence ot any malice, and indeed the appellant conceded the absence of any malice on the part of members of the probe team, the occasion

H was one of qualified privilege.It was established by the evidence that the probe team was

appointed by the general council of JUWATA to probe into the affairs of the W.D.C. including those of the appellant as its general manager, and report its findings back to the general council of

I JUWATA. As already pointed out, however, the report of the probe team was submitted not to the appointing authority, the general

I.S. MSANGI v. JUWATA (Kisanga. J.A.) 263

council of JUWATA. bul to the KUBK. It is quite apparent that the A general council of JUWATA and the KUBK are two different bodies.The former has two to three hundred members while the latter comprises 20 to 30 members only. The two bodies also differ in their functions. The general council of JUWATA supervises the affairs of the W.D.C. while the KUBK is under the general council Band deals with matters of day-to-day administration.

Where a person raises the defence of qualified privilege on the ground that he had a duty to make the offending statement it must further be shown that the statement was made in good faith and that the person to whom it was made had a corresponding interest Cand duty to receive it. Admittedly in the instant case the probe team made the defamatory statements in the performance of the duty imposed on it by the general council of JUWATA, and it was common ground that these statements were made without malice.But the question is: What corresponding interest and duty did the D KUBK have to receive the report? The report was ordered by the general council and was expressly required to be submitted to that body. The circumstances leading to the KUBK receiving the report are not at all apparent. The KUBK was not shown to be the disciplining authority of the appellant, and certainly it was not the E authority vested with the power of appointing or terminating the services of the appellant; on the evidence such powers were vested in the board of directors of the W.D.C. It seems plain, therefore, that the probe report was wrongly published to members of the KUBK when they were not supposed lo receive it i.e. when they F had no corresponding interest and duty to receive it. and to that extent the defence of qualified privilege cannot succeed.

As regards the issue of te rm inating the ap p e llan t’s employment, there was clear evidence that this was done by the board of directors of W.D.C. The appellant concedes that this was G the proper authority to exercise that power, but his complaint is that he was afforded no opportunity to be heard by that body before the latter terminated him. In dismissing the appellant’s claim the trial judge took the view that the appellant’s termination was justified in the light of the appellant’s proved or admitted misconducts, such as H the loaning of money to himself without authority. With due respect to the leamedjudge. however, this did not do aw'ay with the need to afford the appellant the opportunity to be heard. For one thing, all along the appellant was protesting his innocence against the allegations which were made against him. His admission of some Iof the allegations were invariably accompanied by explanations

264 TANZANIA LAW REPORTS 11992] T.L.R

A designed to absolve him. In those circumstances if the disciplining authority was minded to impose a sanction on him, as indeed it did, it was right and proper, in accordance with the principle of natural justice, to hear him before condemning him. Indeed, even if his admissions of the allegations before the probe team were seemingly

B unequivocal, we think that it was still necessary to afford him the opportunity to put up his defence before the board of directors although it would necessarily be the same as his defence before the probe team.

Mr. M uccadam, learned counsel for the respondents, C contended before us and also in the High Court that the appellant

was duly afforded the opportunity to be heard when he was called upon to defend himself before the KUBK. With due respect to the learned counsel, however, this argument cannot be sustained. First, the KUBK was not the authority which imposed the sanction being

D complained against. The sanction was imposed by the board of directors of the W.D.C.; the appellant’s appearance therefore ought properly to have been before that body. What is more, and this seems to be even more serious, the evidence shows that the substance of the appellant’s defence was not placed before the board of

E directors. The Deputy Secretary-General of JUWATA, Mr. EliasMashashi stated in his evidence for the defence that the report of the KUBK (Ex. D1) was not submitted to the board of directors of the W.D.C. This means that the board of directors terminated the ap p ellan t’s em ploym ent purely on the strength o f a bare

F recommendation by the KUBK, and that was totally wrong.We are satisfied that the learned trial judge wrongly dismissed

the appellant’s claims for defamation and for wrongful termination of his employment.

The second respondent’s counter-claim was dismissed but G nothing further was said about. The general rule in civil cases is

that costs follow the event. That is to say the successful party is entitled to recover his costs unless there are grounds for ordering otherwise. In this case the appellant was the successful party, as far as the counter-claim was concerned, and according to the general

H rule he was entitled to recover his costs. The trial judge gave no reason, and we could find none, for departing from the general rule. On that account we find that the appellant was wrongly denied his costs following the dismissal of the counter-claim against him.

In the result we allow the appeal. The decision of the High 1 Court is set aside, and instead thereof we enter judgment for the

ALLY H. MPAPATA v. REPUBLIC (Mkude, J.) 265

appellant as prayed in the plaint. We award shillings 200,000/= A damages for the defamation and shillings 50,(XX)/= for the wrongful termination of employment. The appellant shall have his costs both in this court and in the Court below, the latter to include costs in respect of the dismissed counter-claim.

BAppeal allowed.

ALLY HASSAN MPAPATA v. REPUBLIC C[HIGH COURT OF TANZANIA (Mkude, J.)]

7 September, 1992 - DAR ES SALAAM

Criminal Practice and Procedure - Pleas - Plea o f autrefois acquit D- Whether available where previous proceedings have been declared null and void

Consent for prosecution of an economic offence was given by a person who was not authorized to do so. This point escaped the E attention of the trial court, the trial proceeded and the accused was acquitted for insufficiency of evidence. The D.P.P. appealed to the High Court. Preliminary objections were raised one of which was that he was not competent to do so. The High Court upheld this objection and declared the proceedings in the lower court null and F void. The Court did not stop there. It considered the evidence adduced at the trial, upheld the acquittal of the accused and dismissed the appeal by the D.P.P.

The D.P.P. then prepared a fresh charge whose particulars of offence alleged the same offence and was word for word similar to G the charge in the previous trial declared to be a nullity by the High Court. Consent for prosecution was duly given.

The accused persons, when required to plead, raised the plea of autrefois acquit. The trial magistrate ruled that the defence of autrefois acquit was not available to the accused. On appeal to the H High Court.

Held: The plea of autrefois acquit is not available to an accused person whose previous trial has been declared null and void.

Appeal dismissed.

266 TANZANIA LAW REPORTS 119921 T.L.R

A Matupa, for the respondent

Rutabingwa, for the appellant

Editorial Note: The proper procedure which the D.P.P. should have B followed in this matter was to appeal to the Court of Appeal and

not to re-charge the accused person as he did in this case.

M kude, J.: An interesting point of law arises in this appeal: Is the plea of autrefois acquit available to an accused person whose

C previous trial has been declared null and void? The question as framed may be an oversimplification but that is the essence of the point calling for decision in this case. The appellant. Ally Hassan Mpapata, was charged with unlawful possession of Government trophies c/s 67 (I) of the Wildlife Conservation Act, 1974 read with

D section 59 and paragraph 16 (d) of the Economic and Organized Crime Control Act. J 984 in the district court of Kilosa. The charge alleged that on 2/7/89, at Msowero Village in Kilosa district he was found in possession of 449 elephant tusks valued at Shs.28.540,000/ = the property of the Government. This is an economic offence for

E which the consent of the Director of Public Prosecutions (hereinafter the DPP) is necessary before a trial in respect of it can be commenced. This is in accordance with the provisions of section 26 (1) of the Economic and Organized Crime Control Act. Subsection (2) of the same section empowers the DPP by notice published in the Gazette

F to delegate some of his powers in this regard to State Attorney by specifying economic offenses which require his personal consent and those that can be consented to by State Attorneys. By Government Notices N. 19 1 of 1984 the DPP reserved to his own consent the prosecution of offences specified in part I of the schedule to the

G Notice and delegated to State Attorney-in-charge of the zone or region in which the economic offence took place the power to consent to the prosecution of offences specified in Part II of the Schedule. Offences under the Wildlife Conservation Act fall under Part 11 of the Schedule and hence fall under the delegated power. The problem

H arose in this case because the State Attorney who purported to consent to the prosecution of the offence was not a State Attorney- in-charge as required by the Government Notice.

This point escaped the attention of the trial court and so the trial proceeded and at the conclusion of the trial the accused was

I acquitted for insufficiency of evidence. The DPP appealed against the acquittal. In the High Court (before Lugakingira J.) arguments

ALLY H. MPAPATA v. REPUBLIC (Mkude, J.) 267

on the merits of the appeal were preceded by two preliminary A objection. The first objection question (he competence of the appeal itself. The court held that the appeal was competent and overruled the preliminary objection. The second objection challenged the regularity of the proceedings in that the prosecution commenced on the consent of a person not competent to give such consent. The B court held that (he proceedings were a nullity and issued a declaration to that effect. The court then went on to consider the evidence adduced at the trial and came to the conclusion that the learned trial magistrate was justified in acquitting the accused and dismissed the appeal by the DPP. C

The DPP then prepared a fresh charge against the appellant and two others, annexed to it his consent for the prosecution as well as his certificate conferring jurisdiction upon a district court to an economic crime case and filed it in the District Court of Kilosa.The charge and particulars of offence alleged the same offence and D was word for word similar to the charge in the previous trial declared to be a nullity by Lugakingira J. While the case was still pending at the Kilosa District Court the appellant filed an application for bail in the High Court, and when the file was pleased before Lugakingira J. for hearing he declined to hear it and gave his reasons as follows: E

Court: The arrest and re-arraignment of the applicant rises either from a misunderstanding or a disregard of the judgment in which I upheld his acquittal. I cannot embark upon hearing this application without appearing to be ajudge F in my own cause. The matter should be placed before another judge.

The authorities obliged and placed the matter before Kyando, J. who proceeded to hear the application and ordered that the matter G should be handled by the trial court since it has been given jurisdiction to try the case under the certificate issued by the DPP. Before leaving the m atter Kyando J. m ade the follow ing observations:

HThirdly it does certainly not appear to me that Lugakingira J. only nullified the first proceedings in this case. As shown above already he considered also the evidence in the case and was satisfied that even if he were to hold that the proceedings were valid he would still have upheld the acquittal on the Jevidence - which was weak and could not sustain a conviction.

268 TANZANIA LAW REPORTS f 1992] T.L.R

^ On all these above points, it is clear thal to all intents andpurposes, the appeal by the Director of Public Prosecutions in the first proceedings was dismissed on its merits. The reinstitntinn nf the case therefore amounts to an abuse of the process of the courts. However, as is clear, I am here dealing

p with a bail application. The matter whether the applicant hasalready been acquitted in the case is to be properly dealt with by the district court which is trying him. He may deem it necessary to plead autrefois acquit before that court, (emphasis supplied.)

CArmed with the observations of two judges of this court, Mr.

Rutabingwa. learned advocate, appeared before the District Court at Kilosa and pleaded autrefois acquit. The learned Resident Magistrate who presided was not impressed by this plea; he rejected

D it and said:

I totally concur with Mr. Kamba that the appeal was not heard on merit. The defence o f autrefois acquit does not arise in this case. The fact that Hon. Lugakingira J, did not order for retrial

E of the case did not mean that the Prosecution could notrecharge the accused.

It is the opinion of this court that the acquittal as entered by Hon. Lugakingira J. was if the proceedings were valid but they were not VALID AND HAD NULLIFIED them at the

F beginning of his judgment.

The appl i cat ion for defence of autrefois acquit for 1 st accused is dismissed. The case is to proceed as scheduled.

The appeal before me now is against this last order of G dismissal. Mr. Matupa, learned State Attorney who appeared for

the Respondent/Republic, raised the question whether the order rejecting the plea of autrefois acquit is appealable. He argued that if the plea is accepted by the court and upheld then it is final and appealable immediately but if it is rejected then it is merely

H interlocutory and therefore not immediately appealable. This is an interesting point very much like that covering the submission of no case to answer but 1 find it unnecessary to decide in this appeal and so I refrain from expressing any opinion on it, if only to learn a lesson or two from the observations of my two learned others.

I Mr. Rutabingwa faithfully referred to and relied on theobservations of Lugakingira J. both in his judgment and in the

REPUBLIC v. KENNETH K1ZITO (Mkude, J.) 269

note he wrote declining to hear the bail application, as well as the A observation of Kyando J. reproduced above in which he regarded the action of Ihe DPP in filing fresh charges against the appellant and his two friends as an abuse of the process of the courts. While I have every sympathy for his arguments 1 am unable to accept them. One cannot eat one’s cake and have it. Once Lugakingira J. B disagreed with Mr. Matupa, learned State Attorney, on the power of Miss Korosso to consent to the prosecution of the appellant, and declared the trial null and void then, ipso facto, there was no “acquittal” for his lordship to uphold. This is so because the purported acquittal is a necessary part of Ihe very trial that has been C declared a nullity. It could not. and. like those by Kyando J. in the ruling on the application for bail, were not at all necessary for determination of the appeal.

For the above reasons this appeal fails and I dismiss it.D

Appeal dismissed.

REPUBLIC v. KENNETH K1ZITO E[HIGH COURT OF TANZANIA (Mkude, J.)l

1 I September, 1992 - DAR ES SALAAM

Criminal Practice and Procedure - Conviction - O f robbery - F Whether in addition a conviction o f assault causing actual bodily harm is proper - Criminal Procedure Act. s. 3(MM 1)

Criminal Practice and Procedure - Sentencing - Accused below 16 years o f age - Law applicable when sentencing

GThe accused aged 15 years was charged with and convicted of robbery. The Court also found that the accused was guilty of assault causing actual bodily harm by invoking section 300(i) of the Criminal Procedure Act. The accused was sentenced to 15 years imprisonment for the offence of robbery in accordance with the H Minimum Sentences Act and six months imprisonment for the offence of assault. The case file was forwarded to the High Court for revision.

Held: (i) The offence of robbery of which the accused was convicted 1 consisted in stealing the money and the use of violence on the victim

270 TANZANIA LAW REPORTS [1992] T.L.R

A in furtherance of the theft. It was wrong for the trial court to invoke the provisions of section 300 (1) of the Criminal Procedure Act, 19S5;

(ii) since the accused was below 16 years when he was convicted the learned District Magistrate erred when he imposed a

B sentence of fifteen years imprisonment under the Minimum Sentences Act, 1972. The applicable law is the Children and Young Persons Ordinance.

Order accordingly.C

Kamba, for the republic.

M kude, J.: Keneth Soul Kizito is a young man aged fifteen in 1990 when he was arrested an charged with robbery c/s 285 of

D the Penal Code. He was found guilty as charged and sentenced to fifteen years imprisonment on 10/4/91 by the District Court of Ilala at Kisutu. The court also found the accused guilty of assault causing actual bodily harm and sentenced him to six months imprisonment. The court purported to act under section 300 (1) of the criminal

E Procedure Act in entering a conviction of assault causing actual bodily harm as there was evidence that the accused stabbed P.W.2 with a knife while committing the robbery and stealing Shs.700/= from the witness.

As the stabbing of P.W.2 was done in order to retain the sum F of Shs.7(K)/= the accused had stolen one offence only was committed

and not two. The offence of robbery of which the accused was convicted consisted in stealing the money and the use of violence on the victim in furtherance of the theft. It was therefore wrong for the trial court to invoke the provisions of section 300 ( I ) of the

G Criminal Procedure Act. That section provides as follows;

300-( 1) when a person is charged with an offence consisting of several particulars, a combination of some only o f whjch constitutes a complete minor offence and such combination is

H proved but the remaining particulars are not proved he may be convicted of the minor offence although he was not charged with it. (emphasis supplied).

It is clear from these provisions that the offence of assault causing 1 actual bodily harm could stand alone only if the evidence was not

sufficient to establish the offence of robbery, as for example, where

REPUBLIC v. P. KAANANDUM1 (Nchalla, J.) 271

the offence of theft was not proved. But in the present case there A was evidence to prove both the theft and the assault in furtherance of the theft. The combination o f these two constitutes the offence of robbery. For these reasons I quash the conviction of assault causing actual bodily harm and set aside the sentence of six months imprisonment. B

The offence of robbery was proved and the conviction is well founded. However, since the accused was below sixteen years when he was convicted the learned District Magistrate erred when he imposed a sentence of fifteen years imprisonment under the Minimum Sentences Act, 1972. The applicable law is the children C and Young Persons Ordinance. In the result the sentence of fifteen years imprisonment is hereby set aside. The accused/appellant is to be sent back to the District Court of Iiala at Kisutu for sentence is accordance with the Children and Young Persons Ordinance. It is so ordered. D

Order accordingly.

REPUBLIC v. PALANGYO KAANANDUMI [HIGH COURT OF TANZANIA (Nchalla. J.)l

14 September, 1992 - ARUSHA F

Criminal Practice and Procedure - Charges - Dismissal - Order dismissing charge and acquitting accused made before end o f prosecution case - Whether proper - Effect.

GAfter the prosecution had informed the Court that investigations of a case were complete they applied for a hearing date. When on two dates the prosecution could not go on with the hearing the magistrate ruled that the accused had no case to answer and acquitted him. On revision. H

Held: (i) Before a subordinate court can invoke the provisions of section 230 of the Criminal Procedure Act in dismissing a charge and acquitting the accused, it must first hear evidence from the prosecution side and at the close of that evidence, the court shall I make a ruling supported by legal reasons to the effect that the

272 TANZANIA LAW REPORTS 11992] T.L.R

A evidence in question has established no case sufficiently to require the accused person to enter his defence;

(ii) the order of the presiding District Magistrate in acquitting the accused under section 230 of the Criminal Procedure Act, 1985 was premature, hence quite wrong and invalid.

BOrder accordingly.

Mtambo, for the republic

C Nchalla, J.: The accused one Pallangyo s/o Kaanandumi hadbeen charged before Monduli District Court with a traffic offence in respect of reckless driving a motor vehicle on a public road c/ss 42{l)(c) and 63(1 )(b) of the Road Traffic Act No. 30/1973. The charge facing the accused was filed in the trial subordinate court on

D 5/8/91, and on the same day the said charge was read over and explained to the accused who pleaded not guilty to it. On that day the Public Prosecutor informed the court that the investigation of the case was complete, and applied for a hearing date. The presiding magistrate Mr. A.A. Ngowi, learned Senior District Magistrate, fixed

E the case for hearing on 22/8/91, and accordingly adjourned the case.The record, however, shows that the case was called up for

hearing on 16/8/91 instead of the 22/8/91 to which it had earlier been fixed. No reason was recorded for this abrupt change of the date of hearing.

F Be that as it may, on 16/8/91 the Public Prosecutor reportedto the court thus:

I have no police file as the case is not shown in the case list.

G It seems to me that the Public Prosecutor’s submission on 16/8/91 was genuine and was well founded as, indeed, the case was not scheduled for hearing on that date, and the Republic was not expected to have summoned its witnesses to appear to testify before the court on that date, which was not a hearing date for the case.

H Naturally, the Public Prosecutor did not have the police file with him on that day in respect of the case.

Mr. Ngowi, learned Senior District Magistrate, adjourned the case for hearing on 6/9/91, but did not make any order revoking his previous order which he had made to the effect that the case be

I heard on 22/8/91, This means that there were now two subsisting but conflicting orders as to the date the case was supposed to come

REPUBLIC v. P. KAANANDUMI (Nchalla, J.) 273

up for hearing. There was the order that the case be heard on 22/8/ A91, and the second order that the same case be heard on 6/9/91. This was a confusion for which the presiding District Magistrate (Mr. Ngowi) was squarely to blame.

The case was not called up for hearing on 22/8/91, but was called up on 6/9/91 in consonance with the second order of the Bcourt as follows:

P.P.: I have no police file.

Then the court made the following order which has given rise C to these revisional proceedings:

Court: The case is for hearing. No application for witness summons made to court. The witnesses are resident of Monduli. There are no good reasons as to why should the D prosecution not to proceed with the case as per section 223 C.P.A.

In this respect, the accused has no case to answer and as such he is hereby acquitted under Section 230 Criminal E Procedure Act.

Right of Appeal explained.

Sgd. Ngowi, A.A. SDM. F6/9/91.

From the above synopsis of the proceedings in this case, it is an elementary part of criminal procedure for one to realize that the Gorder of the presiding District Magistrate in acquitting the accused under section 230 of the Criminal Procedure Act, 1985 was basically premature, hence quite wrong and invalid. What the presiding magistrate did in this case was quite prejudicial, and therefore quite injudicious. The provisions of section 230 of the Criminal Procedure H Act, 1985 cannot be invoked in a situation where there has been no hearing of the case at all. The case before the trial court had not commenced hearing at all; no any evidence had been adduced from either side. Under those circumstances, the trial court could not act under section 230 of the Criminal Procedure Act, 1985 in dismissing Ithe charge and acquitting the accused. The provisions of section

274 TANZANIA LAW REPORTS [1992) T.L.R

A 230 C.P.A., are quite simple, clear, and straightforward; they require no legal qualification to interpret and understand them. They are those:

230. If at the close of the evidence in support of the charge, it B appears to the court that a case is not made out against the

accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which under the provisions of sections 312 - 321 inclusive of this Act, he is liable to be

C convicted, the court shall dismiss the charge and acquit theaccused person, (underlining mine).

It is evident from the underlined part of the above quoted section that before a subordinate court can invoke the provisions of

D that section in dismissing a charge and acquitting the accused, it must first hear evidence from the prosecution side, and at the close of that evidence, the court shall make a ruling supported by legal reasons to the effect that the evidence in question has established no case sufficiently to require the accused person to enter his defence.

E So, the presiding Senior District Magistrate in this casewrongly applied the provisions of section 230 C.P.A. that was a serious misdirection which is an error of law which involved a miscarriage of justice on the prosecution side. Consequently, the dismissal of the charge and the acquittal of the accused are wrong

F and invalid, the same are hereby quashed and set aside. It is furtherordered that the case before the subordinate court be heard de novo before another magistrate of competent jurisdiction, preferably a resident magistrate. The accused be arrested forthwith and be produced before the trial subordinate court at Monduli District Court

G to answer the charges for which he was wrongly acquitted. Therecord of the trial court be remitted back to it together with this ruling/order for it to comply with that order expeditiously.

HOrder accordingly.

E.MAREALLE v. MAREALLECLAN (Mapigano, Ag.J.A.) 275

EDWARD MAREALLE v. MAREALLE CLAN AND A AK1LEI MAREALLE

[COURT OF APPEAL OF TANZANIA (Mapigano, Ag. J.A.)]

17 September, 1992 - ARUSHAB

Court o f Appeal Rules - Service - Whether Rule 46(3) requires service o f a copy o f the order o f the High Court upon the respondent - Non-applicability o f Rule H2{2) to applications for leave - whether copy o f ruling means copy o f the order o f the High Court - Rule 46(3) C

In an application for leave to appeal to the Court of Appeal the judge of the High Court of Tanzania refused leave. On an appeal against the ruling of the judge the Acting Justice of Appeal found that the appeal was not incompetent for non-compliance with Rule D 46(3).

Held: There is no Rule that is relevant to the present matter which stipulates that an application for a copy of the order of the High Court must be sent to the respondent. It is not desirable to extend E the rigorous provisions of Rule 83(2) to applications for leave. The words “O rder’ and “ruling" carry the same meaning and are mutually interchangeable.

Order accordingly. F

M apigano, Ag. J.A .: What is before me is an application for leave to appeal to this Court against the order of the High Court at Arusha, Munuo, J. in respect of costs. A similar application to the High Court was refused by Nchalla, J. in his Ruling dated 18/10/ G 91, a copy of which is attached.

On behalf the respondents Mr. Ngalo, advocate, has raised a preliminary objection and asked that the application be dismissed with costs. His objection is based on two assertions, to wit, that the application is time - barred and that it does not conform to Rule H 46(3). Of necessity I have to consider and determine the merits of this objection at once.

Mr. Ngalo has said the obvious, that the application was filed long after the period prescribed by Rule 43(b) had elapsed. The application was filed on 16/12/91, i.e. roughly two months after the I delivery o f the Ruling by Nchalla. J. Under Rule 43(b) such

276 TANZANIA LAW REPORTS [1992] T.L.R

A application should be made within 14 days of the High Court’s refusal.

Counsel for the applicant, Mr. Zaffer AH. has argued that in computing this period of 14 days the time requisite for obtaining a copy of the Ruling of the High Court must be excluded. He has

B pointed out, correctly, that he applied in writing for the copy of the ruling with maximum despatch, though he admitted that he did not send a copy of that letter to the respondents. But there is no denying that he filed the application soon after he had obtained the copy of the Ruling.

C Mr. Ngalo’s arguments are that Rule 43(b) does not providefor such exclusion of time, and that in any case the failure to send a copy of the letter applying for the Ruling to the respondents should deprive the applicant of the advantage of such exclusion. Mr. Ngalo would have us apply Rule 83(2) mutatis mutandis.

D Mr. Ngalo has next contended that the application is notaccompanied by a copy of the order of the High Court’s refusal. In his opinion such a copy is required by Rule 46(3), in addition to the copy of the Ruling, To this contention Mr. Zaffer All has replied that the copy of the Ruling is sufficient for the purposes of this

E application.I have been unable to accept Mr. Ngalo’s submission that the

appellant is not entitled to the exclusion of the time that was requisite to obtain the Ruling. True Rule 43(b) does not make any provision to that effect. But I hold that the applicant can fall back on the

F provision of the basic limitation statue i.e. the Law of Limitation Act. 1971, section 19(2). that should make a great deal of sense and meet the instincts of justice. Otherwise how can an applicant be expected to come to this Court before he has obtained a copy of the order of the High Court refusing leave? For if he comes without

G the copy of the order he will not have complied with Rule 46(3) and his application would be adjudged incompetent.

There is no Rule that is relevant to the present matter which stipulates that an application for a copy of the order of the High Court must be sent to the respondent. And in my considered opinion

H it is not desirable to extend the rigorous provisions of Rule 83(2) to applications for leave.

There seem to be some misconception about Rule 46(3) on the parts of both counsel. That provision is in the following terms:

• (3) Every application for leave to appeal shall be accompaniedby a copy of the decision against which it is desired to appeal

REPUBLIC v. SEIF S. HAMAD (Mmila, RM (Ext. J) 277

and where application has been made to the High Court for A leave to appeal by a copy of the order of the High Court.

As far as I understand the Ruling of the High Court that is appended to this application is precisely the kind of order envisaged by that Rule. It is relevant to observe that in many legal contexts these B words “order" and “ruling” carry the same meaning and are mutually interchangeable. Nchalla, J. could, if he had preferred, perfectly used the word “order” instead of the word “ruling” as a heading for his decision. Indeed, a ruling is often enough a decision that pertains to interlocutory matters, such as the instant objection. C

In the upshot the objection is overruled.

Objection overruled.

D

REPUBLIC v. SEIF SHARRIF HAMAD [HIGH COURT OF ZANZIBAR (Mmila, RM (Ext. J)]

E18th September, 1992 - ZANZIBAR

Criminal Practice and Procedure - Bias - Disqualification on judicial bias - Grounds fo r disqualification .

Criminal Practice and Procedure - Application fo r presiding F magistrate to withdraw from the case - Duty o f the court.

In an application by the accused for an order that the presiding magistrate withdraw from presiding over the case, the learned trial Resident Magistrate with extended jurisdiction found that no G meritous grounds were established for the order to withdraw to ensue.

Held: (i) Whether or not the presiding Magistrate should disqualify himself from hearing a case on the ground of bias requires an H objective appraisal of the materials before the court, and to say that a party has a subjective (albeit firm) apprehension of bias is not of itself sufficient to warrant, or require, the disqualification of the magistrate.

(ii) the duty of the magistrate to disqualify himself for proper I reasons is matched by an equal duty not to disqualify himself save

278 TANZANIA LAW REPORTS [ 1992] T.L.R

A for proper reasons, and parties not to be encouraged to believe that, by an application for the disqualification of a magistrate, they can have their case heard by a magistrate thought to be more likely to decide a case in their favour.

B Application dismissed.

Mmila, RM (Ext. J.): On September, 8, 1992 I heard the submissions of both sides in this case which centered on whether or not I. the Regional Magistrate with extended jurisdiction should

C disqualify myself from presiding in this case on allegations made by the accused person which are as well supported by his counsels, lhai he has feelings which destine him to the conclusion that he has no confidence in me.

The defence’s submission stemmed from a letter Ref. No. D S.S.H/03/108/92 dated August 28, 1992 written by the accused

person addressed to me personally but forwarded to me by his defence counsels vide their letter Ref. No. Y.A.M/Z/92/15 of September, 1, 1992. Both these letters were to the effect that I should disqualify myself from hearing this case. To be precise, the

E learned defence counsels Ordered me to disqualify myself before September 4, 1992. Quite a strange order, is it not! The learned state counsel strongly resisted the application.

The first point taken up by the defence is that the circumstances under which the accused person was granted bail in 1991, especially

F the conditions which were imposed clearly show that the case has been deliberately dragged into political latitude which is, they argued, unfair. They argued further that the conditions which were imposed were principally intended to isolate the accused person from participating in politics. They impressed that he being a long

G time politician, and having once been the Chief Minister of Zanzibar until he was expelled by the ruling party, the accused person is entitled to benefit from political changes which have swept the whole world and this country in particular. They contended that after all these conditions were not even suggested by the prosecution side.

H They argued that to the mind of a reasonable man, this situation clearly shows that the presiding magistrate with extended jurisdiction is biased.

Counter - submitting on the point, the state counsel challenged that the conditions which were imposed by the court when the

I accused person was released on bail do not at all portray that there was any bias. Mr. Mtembei submitted that since the case facing the

REPUBLIC v. SEIF S. HAMAD (Mmila. RM (Ext. J) 279

accused person concerns matters of national security, condition (d) A for example was rightly imposed. He also argued that it was not absolutely correct to say that those conditions were imposed by the court single handedly because some of those conditions were suggested by the defence side. Similarly, Mr. Mtembei submitted that it is a known fact that those conditions were imposed by the B court before the political changes cited by the defence were in sight, and that since those conditions have never been amended, it cannot be said they were imposed intently to isolate the accused person from participating in politics, therefore it is an unfounded ground that by imposing those conditions the presiding magistrate is, to C the view of fairminded persons, biased.

It is true, as was observed by Lord Justice Denning. M.R., in Janes v. National Coal Board [1957] 2 Q.B.55 at pg. 67 that:

There is one thing to which everyone in this Country is entitled. D that is fair trial at which he can put his case properly before the judge ... No cause is lost until the judge has found it so, and he cannot find it without a fair trial, nor can we affirm it.

There is no dispute that we also subscribe to this great proposition. E Equally great is the proposition that:

The honesty and intergrity of a judge cannot be questioned, but his decision may be impugned for error either of law or fact F

see Breams Legal Maxims 9th Ed, by W.J. Byrne. Sweet & Maxwell Ltd pg. 61, Of course, there are exceptions. So that an order to withdraw from presiding in a case may be made, there must be sound reasons to the effect that it is expedient to the ends of justice G that is should be made.

Whether or not the presiding magistrate should disqualify himself from hearing a case on the ground of bias requires an objective appraisal of the materials before the Court, and to say that a party has a subjective (albeit firm) apprehension of bias is not of H itself sufficient to warrant, or require, the disqualification of the magistrate. The test to be applied, by objective standards, is whether there is material before the Court to support a conclusion of actual bias on the part of the magistrate or a reasonable apprehension either by parties, or exaction by plain, sober, simple, and stable men and I women of the society that he might not bring an impartial and

280 TANZANIA LAW REPORTS [1992] T.L.R

A unprejudiced mind to the resolution of the issues in the case. In other words, there must be keen grounds that reasonable suspicion exists, or rather there must be serious justification for the alleged mistrust.

It must be remembered however, that the duty of the magistrate B to disqualify himself for proper reasons is matched by an equal

duty not to disqualify himself save for proper reasons, and parties right not to be encouraged to believe that, by an application for the disqualification of a magistrate, they can have their case heard by a magistrate though to be more likely to decide a case in their favour.

C The question I have to pose therefore is that; to the views offaimiinded persons, can it be said that those conditions were imposed w ith in tents to isolate the accused person from political participations. Are there any grounds to show that reasonable suspicion exists?

D The accused person was granted bail in 1991 when the United Republic of Tanzania was still a single party state. Equally true is the fact that those conditions were not suggested by the prosecution side, but as properly submitted by Mr. Mtembei, most of those conditions were suggested by the defence counsels. To be particular,

E the court added only one condition out of those which weresuggested, that is condition (d). The Court had the discretion to impose any other conditions as it deemed fit, a fact which has been admitted. In that the said conditions were imposed before the cited political changes, and in as much as they remain unamended, it is

F quite absurd for the accused person to complain that their impositionwas a measure taken by the court single handedly to make sure that he was politically isolated, hence that the trial magistrate with extended jurisdiction is biased. The suspicion is thus unreasonable.

As to why there had to be condition (d), the accused person, G as well as his counsels are expected to know. As was submitted by

Mr. Mtembei, the accused person is faced with a charge bearing on national security matters, which is no secret that it is a sensitive issue. Who knows what the accused had in mind by having those secret documents, should it be proved that he had them? If at all

H the court is duty bound to see that it balances the facts (materials) before it in all respects, who will therefore accept the contention that condition (d) was in the circumstances unreasonable? Is it justifiable therefore to argue that the presiding magistrate has dragged the case into political latitudes? I sincerely find that there is

I no material whatsoever to convince me that faimiinded men andwomen of the society would have said those conditions are capable

REPUBLIC v. SEIF S. HAMAD (Mmila, RM (Ext. J) 281

of attracting them to think that there has been or there is bias on the Apart of the presiding magistrate. This ground is thus spineless as it has failed to stand on the available facts.

The defence’s second ground was that their client was embraced when an accusing finger was pointed at him, and that the presiding magistrate was of the impression thal the accused Bperson was in breach of the conditions of bail even without being heard. They added that after the prosecution had cited the occasion which was reported in the Daily News o f August 20, 1992, the presiding magistrate pointed out that he also saw such news in the Express news paper, after which the .statement that the accused C person was provoking the court was echoed. They alleged therefore that by holding that the accused person was breaching bail conditions before hearing him, the presiding magistrate was wrong, hence that the accused person’s feelings that he has no confidence in the presiding magistrate holds water. D

Mr. Mtembei did not say whether or not a finger was pointed at the accused person by the presiding magistrate. However, he said that it was a serious lie that the defence were not heard, challenging that the remark came after all of them were heard, and that he was not sure if the complaint was intended to suggest that E the accused person was to speak on his own, which he said would have been unprocedural.

The general observation is that the allegations of the defence side and the accused person in particular have been wantonly exaggerated for purposes best known to them. To start with, I do F not remember to have pointed a finger at the accused person. Even, had it been so, one would have expected them to make an instant protestation so thal the matter could have found its way into the record. They did not do so. Again, they stressed that it was the most serious act the presiding magistrate did which was responsible G to erode the accused person's confidence in the said magistrate. If at all it was true and thus serious, why did they not file affidavits to that effect? Is it proper in their good minds to bring such serious allegations in a form of letters? I hastily observe that the so called serious act has been presented below the standard expected of them. H One would have expected them to have filed affidavits to show that the alleged act was actually committed and thus serious.

However, even if I were to admit that a finger was actually pointed to the accused person, which I have said I do not remember,I dare say that it would not have been fatal. It is clear that the reports 1 contained in the Daily News of August 20, 1992 as well as the

!

282 TANZANIA LAW REPORTS j 1992] T.L.R

A Express indicated that the accused person was in breach of conditions of bail. Those conditions were ordered by the court, and the court has the right to see that the orders it makes are strictly followed. At the time the court imposed those conditions, it did not venture a joke, the court meant a serious business. Since the court has inherent

B power to see that its decisions are observed and strictly followed, it has an equal right to intervene whenever breaches are evident. Wrere it not so, the existence of courts themselves would have been questionable.

The most awkward part of these allegations is their contention C that the remark was issued without giving chance to the defence to

be heard. That is a huge lie! As correctly submitted by Mr. Mtembei, the remark was made after both sides were heard, the record can tell. The remark referred to was versed as follows:

D Court: 1 am warning that pending the ruling which I will have to deliver, the accused person must abide to the conditions which were laid down. The act of contravening them is a sign of disrespect to the Court orders, indeed, an act of provocation to the Court.

EThen came the order to the effect that ruling was to be delivered on September 4, 1992. With all due respect. I candidly revolt to the submission by the defence that the remark was issued before they were heard. Seriously, basing on what I have quoted above, their

F submission on the point was a deliberate huge lie. Perhaps the question is; what did they intend to achieve by such distinguished lie. Is it not to create the non - existent bias on the part of the presiding magistrate? Is it what is expected from officials of the court of their calibre? Advocates, as officials of the Court, have a

G prima ja d e duty to help the court reach justiful decisions on the footing of the law, a task which can only be accomplished if they believe, and undertake to see that truth is the yardstick. Not otherwise.

There are a number of other untruthful allegations which the H defence counsels swallowed from the accused person without proper

evaluations. There were high - lighted by Mr. Mtembei in the course of his counter - reply.

In the first place, Mr. Mtembei argued that the accused person’s allegation in his letter that the court forced the Nairobi

1 based lawyers to withdraw from defending him was a lie, adding

REPUBLIC v. SEIF S. HAM AD (Mmila. RM (Ext. J) 283

that they did so on their own volition. The defence side did not A respond to this allegation.

I entirely agree with Mr. Mtembei that the Nairobi based lawyers withdrew from the case on lheir own volition. In essence, and as the record will support, those lawyers made several futile attempts to deliberately mislead the court by forcing it into B discussing its own decisions, something they know or, they ought to have known, was unprocedural and/or ipso facto illegal. Where on earth did they hear such a practice in respect of decisions of the kind? Not even in Kenya. Their conduct was a clear example of disrespect to decisions of the court. This is because they knew, and C were canningly adamant to appreciate that, if they felt dissatisfied with the decisions this court had delivered, their only open forum was to proceed, by way of appeal, to the Court of Appeal of Tanzania. Impatiencc could have been responsible to make them blind to the laid down procedures. So that when one o f them was stopped D from dragging the court into what would otherwise have been grave misdirection, he became suddenly vexed and decided to withdraw.The court had no other option but to endorse the withdrawal. His colleague followed suit the next day. Under such circumstances, where is the hand of the court on the stop they took? Is the defence E really justified to think that they were actually forced out by the court? It would be quite misleading were we to agree to the feelings of the defence on the point. Let us agree that a spade will always remain a spade.

Similarly. Mr. Mtembei submitted that the accused person F lied when he said in his letter that soon after Nowrojee had dropped out. he had no other counsel to defend him and was refused time to look for another lawyer, Mr. Mtembei submitted that on the day Nowrejee dropped out, Mr. Jaffar was still in the employment of the accused person, and that he was not in court for reasons which G were never disclosed. He insisted that since Mr. Jaffar was the one who had particularly suggested the hearing dates to which Mr. Mtembei himself consented, it could not be said that the case proceeded without allowing the accused to be represented. Again, there was no response from the defence on this point. H

Once again, I agree with Mr. Mtembei that the position was as he submitted. After Nowrejee had dropped out, Mr. Jaffar was still in the employment of the accused person. His failure to appear in Court on thal day was not backed by any reasons. Since he was the person who had suggested the hearing date, and il being true I that justice delayed is justice denied, the case had to proceed. Far

284 TANZANIA LAW REPORTS [1992] T.L.R

A from the fact that the accused untruthful when he said he had no counsel by that day, he was also untruthful when he said that he asked to be granted time so that he could engage another lawyer and that his request was turned down. The truth is that such a requestwas raised on the day that followed and he was granted time. It

B appears that the accused person, with due respect, is fond offabrications. Let truth prevail.

Further, Mr. Mtembei, submitted that the accused person lied when he wrote in his letter that he was favoured in that he was given seven weeks by the court in which to prepare his reply to the

C submission which was made by the defence counsels. Mr. Mtembei submitted that he had asked for two weeks time in which to prepare his reply but that the defence counsels asked the court to extend the time further on the ground that they had to attend other matters in other courts there in between. Again, the defence did not respond

D to this point.As submitted by Mr. Mtembei, the question of favouritism

here is another such connection. The truth is to be sought from the Court record. The relevant part is as follows:

E Mr. Mtembei: I pray for the time in which to prepare myselfto respond to their arguments quite clearly. I have to conduct a research. Two weeks time will do.

Mr. Mchora: We agree that the arguments we have raised are F quite serious and we feel that it will not be proper for him

to rush to reply. We also agree that delaying the rights is not proper. We have been given responsibilities of other matters for example in Dar es Salaam. The two weeks’ time he has requested will take us to 1.7.1992.1, personally

G will be on 2.7.1992 in the High Court at Mtwara and so is

my colleague. On 13.7.1992 I will be in the High Court at Tanga together with this colleague of mine. That will be

H up to 24.7.1992. We pray that more time will be required.We propose 5.8.1992 when we shall proceed on the day to day basts.

Mr. Mtembei: No objection.

Order: Hearing on 5 - 11.8.1992.

REPUBLIC v. SEIF S. HAMAD (Mmila, RM (Ext. J) 285

Having attended to what exactly transpired on that day, I resolutely A endorse the submission by Mr. Mtembei that once again, the accused person was untruthful when he alleged that he was favouredly granted seven weeks in which to prepare himself. The accused person know, or ought to have known that the hearing of the case was fixed on 5.8.1992 on the request of his own lawyers, not because B the court intended to give more time to Mr. Mtembei so that he could thoroughly prepare himself as complained. After all, the ceaseless extortion of the court has always been to do justice. It would not have been considered as something wrong even where for example, the Court would have granted him such time. It appears C that, by such numerous connections, the accused person is all set to mud sling the courts’ good image into peoples eyes. No fairminded persons are expected to say, on those allegations, that the presiding magistrate was in any way biased.

To follow suit is their allegation that the presiding magistrate D has formed sort of friendship with the state counsel. Their allegations are based on the erroneous belief that the state counsel was supplied with proceedings by the presiding magistrate. Mr. Mtembei told the court that he applied for the proceedings to the Registrar and that he was supplied the said proceedings. He also revisited the E administrative practice earlier on explained in the Court as to how a party may secure the proceedings.

With respect, this complaint is similarly baseless in that what Mr, Mtembei told the court is the truth. The presiding magistrate had no hand in supplying the said proceedings to the state counsel F as all such matters are in the hands of the Registrar. It is equally true that I thoroughly explained this in one of the many rulings 1 have so far written, but that once again, the defence is illegally questioning my decision on the point. 1 observed the other time that the accused person himself has on several occasions secured G proceedings of this case at various stages. He knows better than I do how he obtained them. In that I was not the one who supplied them to him, most probably he was supplied them by the Registrar. Then why not the prosecution side? How does the questions of friendship between the presiding magistrate and the state counsel H arise? Is the defence trying to imply that it is justice to supply the proceedings of this case to them, but that it is injustice when supplied to the state counsel? What is the supposed rationale for their allegation on the point? It is on this basis that I find it quite ridiculous to be told that because the state counsel was supplied with I proceedings, then the presiding magistrate has established sort of

286 TANZANIA LAW REPORTS [1992] T.L.R

A friendship between him and the state counsel. It is time all of us know that it costs nothing to tell truth, Reality must always be faced courageously.

Further, in his submission, Mr. Mtembei told this court that to him, the various applications which were lodged and determined

B right from the time when the case was transferred to the presiding magistrate to date are indicative that the accused persons’ feelings were pre-hatched. He said that on September, 4, 1991 one of the accused’s counsels Mr. Jaffar wanted to know if the presiding magistrate had any right to hear this case, a remark which was

C followed by an unsuccessful application to the effect that such magistrate had no jurisdiction to hear and determine this case. Mr. Mtembei added that their appeal to the Court of Appeal of Tanzania failed on technicalities.

Mr, Mtembei submitted similarly that the defence filed another D application before Dahoma, J., in which they asked for the trial

magistrate to be disqualified, the application was refused. He added that this was followed by another such application which was lodge in the High Court in Mainland Tanzania. Again, the application was refused.

E Mr. Mtembei submitted that on the basis of the trend of thoseapplications he was quite sure that the arguments currently raised by the defence are baseless, only that their interest has always been to make sure that the case does not proceed to hearing, most probably because the accused person has no reasonable defence to offer. Mr.

F Mtembei asked for the application to be dismissed.Judging from what has been taking place right from when

this case was transferred to the presiding Regional Magistrate with extended jurisdiction, one cannot avoid a thrust support to Mr. Mtembei’s submission that the accused person’s feelings were

G prehatched so that the case may keep on dragging in court. I may add that may be the accused person intends that this particular magistrate should not preside, which will connote that the accused person is after a magistrate of his own choice. This cannot be accepted. Otherwise, how does one explain the fact that the accused

H person, with the aid of his counsels, keeps on raising the samematters which had been adjudicated upon? Or rather how does one explain those applications which were based on connected facts such that which was heard and determined by his Lordship justice Dahoma as well as that one which was filed in the High Court at

I Dares Salaam? What about the various falsified allegations whichhave been discussed above? It is on this basis that 1 agree with Mr.

REPUBLIC v. SEIF S. HAMAD (Mmila, RM (Ext. J) 287

Mtembei that the intention of the accused person has always been A to frustrate the progress of the case camouflaging this intention on such false allegations. The reasons for doing so are best known to the accused person himself.

I must make two observations here. The first one is that by dictating a deadline that the presiding magistrate should beseech to B quietly divest himself of this case before the 4th September, 1992, the learned defence counsels gave an order to the presiding magistrate to disqualify himself. Had they the right to make such an order? Surely, they had no such right. That was a disrespect of the highest order to the presiding magistrate and courts of justice in C general. Literally, they meant they did not even want to receive the ruling the presiding magistrate was expected to deliver on 4th September, 1992. In fact, that was not the conduct expected from the court officials of their class.

Secondly, the learned defence counsels expressed unambigous D support to the accused person’s allegations levelled against the presiding magistrate. However, as amply demonstrated above these allegations have turned out to be false. The question is; why did the defence counsels support the allegations without conducting any inquiry as to their truth? They could have easily ascertained most E of these allegations by examining the proceedings, for which the Registrar could have been contacted by them. In that they did not so ascertain the truthfulness of those allegations, their act of supporting them places them in the same footing with the accused person that they also unjustifiably made misrepresentations which F depict hatred and preconceived and malicious attacks on the presiding magistrate. That is why they even ventured to say that the words “This is yet another application ...” appearing in one of my rulings mean I am supporting the prosecution side. Do those words really connote taking a side? Justifiably, these words mean there G have been several other applications, and this is just one of them. That is why, in my observation, their action has been a more attempt by them all to soil and/or tarnish my name and unjustifiably poison public opinion, which is indeed not to the broad interests of the fairminded men and women of the society. H

It is on this basis that I dismissed this application on September,8, 1992.

Application dismissed.

288 TANZANIA LAW REPORTS 11992J T.L.R

A HAMSON D. GHIKAS v. LUDWINA G. GHIKAS[COURT OF APPEAL OF TANZANIA

(Mfalila and Kisanga, JJ.A. and Mapigano Ag. J.A.)|

21 September 1992- ARUSHAB

Admin is! ration o f Estates - Grant o f probate - Conditions f o r grant- Necessity o f a will.

The respondent petitioned for, and was granted, probate by the High C Court in respect of the estate of her late father. The appellant, also

the child of the same deceased father applied for a revocation of the grant of the probate to the respondent but the High Court refused the application. The appellant appealed to the Court of Appeal. In the course of hearing and upon perusal of the High Court

D proceedings, the Court noted a number of irregularities whose details are found in the order of the Court.

Held: The petition for probate by the respondent was misconceived as the deceased died intestate and the purported grant of the same

E was null and void.

Order accordingly,

'/Ngalo, for appellant F Masuma, for the respondent.

Kisanga and Mfalila, JJ.A . and M apigano Ag. J.A.: Therecord in the matter before us shows that the respondent has petitioned for, and was duly granted, probate by the High Court

G (Chua, J.) in respect of the estate of her father, the late Adolf D. Ghikas. Subsequently the appellant who is also the child of the deceased, applied for a revocation of the grant to the respondent, but the High Court (Mroso, J,) refused the application.

It is from that refusal that this appeal is preferred. Before us H the appellant is represented by Mr. C.M. Ngalo, learned advocate,

while Mr. C.J. Maruma, learned advocate is for the respondent.When the appeal was called on for hearing counsel for both

sides informed us that they were applying for a consent order to provide for, inter alia, a variation of the Grant of Letters of

I Administration issued to the respondent so as to include the appellant

H. D. GHIKAS v. LG. GHIKAS (Kisanga, J.A.) 289

as a joint grantee of Letters of Administration in respect of the estate A in question.

It was at once apparent that there was a serious problem in the matter. While the learned counsel are asking us to vary the Grant of Letters of Administration issued to the respondent, the record makes it quite plain that what was issued to the respondent B was not a Grant of Letters of Administration; it was a Grant of Probate duly issued in pursuance of the respondent’s application for the same. It is therefore impossible to make the consent order as proposed by counsel for the simple reason that we cannot vary a Grant of Letters of Administration which was never issued in the C first instance.

But the matter does not end there. There is the further question of the validity of the said Grant of Probate issued to the respondent. Section 24( 1) of Probate and Administration Ordinance (Cap.445) provides that: D

24-(l) Probate may be granted only to an executor appointed* by the will.

And rule 33 of the Probate Rules requires, inter alia, that: E(a) the last will of the deceased and all codicils thereto shall

, accompany the petition for grant of probate.

The reading of both provisions makes it abundantly clear that the petition for, and grant of, probate presuppose the existence of a F will. In the instant case, however, the purported position for probe by respondent was not accompanied by any will, and going through the entire record there is no mention whatsoever of any will left by the deceased. Indeed the very fact that counsel are asking for consent order, to vary the grant of Letters of Administration so as to make G the appellant a joint grantee of Letters of Administration clearly suggests that no will of the deceased exists or has been traced.

In the circumstances, therefore, it seems plain to us that the petition for probate by the respondent was grossly misconceived and the purported grant of the same was simply null and void. When H those matters were pointed out to the learned counsel for the parties, they readily conceded.

In the result we set aside the purported grant of probate as being null and void, and as this is entirely a family matter we make no order for costs. I

Order accordingly.

TANZANIA LAW REPORTS 11992 ] T.L.R

A J.B. SHIRIMA & OTHERS EXPRESS BUS SERVICEv.

HUMPHREY MEENA t/a COMFORT BUS SERVICE [HIGH COURT OF TANZANIA (Mushi J.)]

B 29 September, 1992 - ARUSHA

Civil Practice and Procedure - Plaint - Discloses no cause o f action- Discloses relief sought - Relief is not a cause o f action - What court to do.

cA preliminary objection was raised by the defendant that the plaint did not disclose a cause of action. The Court ordered the plaintiff to amend the plaint so as, inter alia, to disclose a cause of action particularly that of malicious prosecution. The plaintiff merely added malicious prosecution in reliefs sought.

Held: (i) A relief is not a cause of action;(ii) where the plaint does not disclose a cause of action the

Court has two alternatives:E (a) to order amendment of the plaint, or

(b) to strike out the plaint.

Plaint struck out

F Jonathan. for the defendant Maruma, for the plaintiff

M ushi, J.: This is a ruling with regard to a preliminary legal point raised by Mr. Jonathan learned counsel for the defendant to

G the effect that the plaint does not disclose a cause of action and thus it should be struck out with costs to the respondent.

Earlier on the learned counsel had successfully moved this court to rule in his favour upholding two preliminary legal points. On 13/7/1990 this court ruled and ordered, I quote:

HIt is hereby ordered that the plaintiff file an amended plaint listing all the plaintiffs or alternatively omitting the word “others” from the plaint. The tort of malicious prosecution should also be pleaded in the plaint.

J.B. SHIRIMA v. HUMPHREY MHENA(Mushi, J.) 291

An amended plaint was accordingly filed by the learned counsel A Mr. Maruma for the plaintiff. The learned counsel for the defendant under paragraph No. 15 of the written statement of offence to the amended plaint stated and I quote:

The defendant at the hearing will urge and pray that the suit B be struck out with costs.

This is what the learned counsel did when the case was called up for hearing. In short the learned counsel stated that the plaintiff hjw not fully complied with the directions of the Court in the earlier C ruling. The learned counsel stated that the court directed that the tort of malicious prosecution should be specifically pleaded in the plaint but this has not been done. The learned counsel said that the fact that relief for malicious prosecution is claimed in the relief, that fact does not amount to pleading the tort of malicious D prosecution as a cause of action. Mr. Maruma, learned counsel for the plaintiff, did not directly state that he had infact fully complied with the directions of the court. The learned counsel stated, and I quote from his arguments;

EThere have been efforts to comply with the Court Order of 13/7/1990. The paragraphs containing the cause of action are contained in paragraphs 4,8,9 & 11 of the amended plaint.

- Paragraph 4 states that the complaint by the defendant was F false.

- Paragraph 8 - it is contended that had no reasonable or probable cause.

The two paragraphs read together do connote that such complaint G must have been actuated by malice.

Paras 9 & 11:Complaint led to the arrest of the plaintiff and seizure of the bus resulting to losses and injury to his person. The pleadings Hclearly indicate clear cause of action. It is not necessary to use the actual words - malicious prosecution.

Lastly the learned counsel said that courts have discretion to allow the amendment in order that the plaint may disclose a cause of action I and her implored the court and said:

292 TANZANIA LAW REPORTS 11992] T.L.R

A If however it is found that it is necessary to use the specific words - malicious prosecution in the plaint, I will readily comply with the direction.

First I respectfully agree with the learned counsel for the defendant B that the plaintiff has not complied with the direction on the court in

the earlier order with regard to none disclosure of a cause of action. The paragraphs in the amended plaint which the learned counsel for the plaintiff said can be construed to amount to pleading malicious prosecution have the same contents as in the plaint.

C Nothing has charged. The only noticeable change is the inclusion of the clause malicious prosecution in the relief paragraph -15 (e). Relief is not a cause of action. Relief must stem from cause of action. The problem which is being complained of is not the necessity or not of using the specific words malicious prosecution

D as stated by the learned counsel but whether the wrong which is the subject of the pleadings has been distinctly pointed out. In other words what would be the answer to this question:

what is the wrong which is being complained of in these E pleadings?

The answer to this question will constitute the cause of action. It could be wrongful confinement, breach of contract, defamation, and so forth. All I can read from the plaint is a set of facts which,

F though, read together may or may not amount to a specific tort. It is not for the defendant to figure out from the plaint the possible wrong complained of. It is for the plaintiff to make it absolutely clear in the plaint what the cause of action is so as to enable the defendant to file a proper defence. I am satisfied therefore that the

G plaint does not disclose a cause of action.The question is what should this court do. There are two

options which are open to the court. The first are in to strike out the plaint as prayed by the counsel for the defendant. The other option is to order an amendment to the plaint to disclose a cause of action

H if possible as prayed by the counsel for the plaintiff. The second option has already been extended to the plaintiff in a earlier ruling dealing with the same legal problem. The counsel for the plaintiff did not comply with the direction of the court and no reasons have been given for such inaction. Similarly there are no reasons for the

I court to exercise its discretion further in favour of the plaintiff for the same point for the second time. It is my considered opinion that

L.A, SALUM & OTHERS r N.H.C (Moshi, J.) 293

in the absence of exceptional circumstances, any further exercise A of discretion in favour of the plaintiffs to amend the plaint so as to disclose a cause of action will not be a judicial discretion. The only option left, therefore is to s ti^ e o u ith e plaint. The plaint is accordingly struck out for not disclosing a cause of action. The defendant will have his costs. B

Plaint struck out.

LAUSA ALFAN SALUM AND 116 OTHERS v. MINISTER FOR LANDS HOUSING AND URBAN DEVELOPMENT

AND NATIONAL HOUSING CORPORATION I HIGH COURT OF TANZANIA (Moshi, J.)J D

6 October, 1992 - MWANZA

Civil Practice and Procedure - Prerogative orders - Certiorari and prohibition - Circumstance for issue. E

This is an application for leave to apply for orders of certiorari and prohibition under section 17, 17 A and 18 of the Law Reform (Fatal Accidents and Miscellaneous provisions) Ordinance Cap 36 as amended by Act No. 55 of 1968 and Act No. 27 of 1991. The F application was intended to challenge the exemption given by the Minister for Lands, to the second respondent from all the provisions of the Rent Restriction Act relating to the restriction on the amount of rent that may be charged or collected and from the provisions of sections 12, 16, 17, 26 and 37 of the Rent Restriction Act. On the G authority of the First respondent’s order the second respondent increased rents ranging from 845.56% to 14,330.64% among applicants with effect from September 1st 1992.

Held: (i) Any action of a public official done in official capacity is H challengeable on the ground of illegality, irrationality and procedural impropriety.

(ii) from the submissions and affidavits a prima facie case has been made out for the intended application.

Application granted.

294 TANZANIA LAW REPORTS [ 1992] T.L.R

A Matata, for Applicants Magoma for respondents

Moshi, J.: This is an application for leave to apply for Orders of Certiorari and Prohibition preferred by the learned advocate for

B the applicants, Mr. Matata, under the provisions of sections 17, I7A and 18 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Cap. 360, as amended by Act No. 55 of 1968, and Act No. 27 of 1991. It is supported by the affidavit sworn by one Lansa AI fan Salum for, and on behalf of, and with the authority

C of, all the other 116 applicants, and it is resisted by a counter-affidavit sworn by William C. Magoma, learned Senior State Attorney, for, and on behalf of, the Attorney General.

The short background to the matter is as follows. The applicants are tenants in premises in which the second respondent

D is the landlord under tenancy agreements which stipulate, among other terms and conditions, the rents payable. On January 24th1992, the first respondent. Minister for Lands, Housing and Urban Development, made an Order under section 2(1 )(b) of the Rent Restriction Act 1984, published under GN No. 41 of 1992, which

E exempted the second respondent, National Housing Corporation, among other parastatals specified therein, from all the provisions of the Rend Restriction Act relating to the restriction on the amount of rent that may be charged or collected by the second respondent from any tenant occupying any part of their premises. The Order

F also exempted the second respondent from the provisions of sections12, 16. 17. 26 and 37 of the Rent Restriction Act which operate to confer-upon tenant a statutory tenancy upon the determination of iiis_cii»tcactuaj. tenancy^ This Order was made with the approval of the National Assembly signified by the Resolution passed at

G Dodoma on the Twenty third day of January 1992.Consequent upon, and on the authority of the first respondent’s

Order, the second respondent then increased rents at exorbitant rates ranging from 843.56% to 14,330.64% among the applicants effective September 1 st 1992. The percentage of the increased rent has now

H been reduced to, and it stands at, 800%.Mr. Matata’s grounds of contention are threefold: First, that

the rent increases are unreasonably exorbitant, were unilaterally made, are d isproportionate am ong the applicants, and are discriminatory in that they favour the specified parastatals against

I other parastatals and private landlords, and thus offend Article 13(1) and (2) of the Constitution of the United Republic of Tanzania.

L.A. SALUM & OTHERS v.N.H.C (Moshi, J.) 295

as well as the terms and conditions of the tenancy agreements, and A the principles of natural justice. The case of Madhwa and Others v.City Council o f Nairobi [1968) E.A. 406, was cited and relied upon. Secondly, that the Minister’s Order casts the jurisdiction of the Regional Housing Tribunal and that the caster clause offends Article 13 (3) of the Constitution, and. Thirdly, that the Minister’s Order B was ultra-vires the enabling provision of the relevant law, in that, section 2 (1 )(b) of the Rent Restriction Act empowers the Minister of exempt from all or any of the provisions of the Rent Restriction Act, premises or class of premises, and not a class of landlords. Leave is the/i hring cnnght to contest the Miriif=*f’<= the Csecond respondent’s increases of rent on these grounds in the, intended application. The learned advocate prayed for the issue of anTnterim prohibitory order to restrain the second respondent from charging the new rents, and from evicting the applicants until the intended application, in the event that leave is granted, is finalized, D on account of that the Minister’s Order confers on the second respondent powers to charge any rent and to evict tenants without recourse to Regional Housing Tribunals or to Courts of law for that matter, A passage from Halsbury's Laws o f England Volume 11, page 72, paragraph 130, was cited and relied upon. E

Mr, Magoma is resisting the application on three grounds. First, that the application is defective in that Lausa Alfan Saium has no locus standi and that her affidavit is defective in that it does not give her particulars. But there is an instrument attached to the affidavit as annexure A executed by the rest of the applicants F authorizing Lausa to appear and act for, and on behalf of, them. Mr. Magoma has slated that Annexure A was not served on him, and I am certain that had he seen it, he would have realized that his contention that Lausa has no locus standi is totally devoid of merit.I have had sight of Lausa’s affidavit. I have examined its form and G contents. With respect, it does occur to me, on proper reflection, that the affidavit is devoid of the defect complained of or of any other defect for that matter. It portrays all that a defective affidavit does not. I am satisfied, and hereby find, that Lausa has locus standi, and that her affidav it is not defecti ve. , H

Secondly, Mr. Magoma has submitted that the first respondent- the Minister was wrongly joined in these proceedings and that the second respondent would have been the only respondent. With even greater respect. I find this argument unsustainable. As rightly pointed out by Mr. Matata, the effect of the minister’s order was to I confer upon the second respondent an unrestricted power to

296 TANZANIA LAW REPORTS [ 1992) T.L.R

A determine rents by removing tenants’ right of statutory tenancy, and casting the jurisdiction of regionaJ housing tribunals. In other words, in raising the rents, the second respondent was clearly acting upon, and exercising, the power conferred upon them by the minister through his order. Viewed that way, therefore, it is impossible to

B divorce the action of the Minister from that of the second respondent. What they did, in my view, was so intermingled and interdependent that one could hardly proceed against one of them without at the same time proceeding against the other. I am satisfied, and hereby find, that the first respondent, the Minister, is properly joined in

C these proceedings.And Mr. Magoma’s third point of contention is that this

application is devoid of merit on account of that the Minister’s Order was not ultra-vires the enabling provision of the Rent Restriction Act, and that it was not in violation of any Articles of the Constitution.

D Well, quite obviously, in my view, this court cannot properly be called upon to adjudicate on these matters, one way .or the other. at this stage of the proceedings. Those are matters touching upon the iperits o^otherwisejpf the intended applTratinn All thaLthexourthas-to^ decide at this junctureis-whether or not a prima facie case has bgen

E made out for rhe intended application „Broadly speaking, prerogative orders of c e r t io r a r i and

Prohibition may be issued in certain cases, either to quash a decision made in the course of performing a public duty or to prohibit the performance of a public duty, where the injured party has a right to

F have anything done, and has no other specific means of, either having the decision quashed or the performance of the duty prohibited, when the obligation arises out of the official status of the party or public body complained against. Quite clearly, the applicants have an interest in the matter they are applying for. The first respondent,

G and the second respondent, are a public official anri_a_pnhljc hpdy respectively, who had an imperative legal duty^of pnhlic namre which they had to performJ n - their official capacity.. In my considered view, any of their actions or decisions is challengeable., firstly, if it is tainted with illegality, that is. the power exercised is

H yltra vires anrl cnntrarjrtoThe law. Secondly, if it is tainted with irrationality, that is, the action or decision is unreasonable in that it is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had rightly applied his mind to the matter to be acted upon or to be decided could have thus

I acted or decided. And thirdly if the action or decision is tainted with procedural impropriety, that is, failure to observe basic rules

KATHMI NDAKl v. REPUBLIC (Mnzavas, J.A.) 297

of natural justice or failure to act with procedural fairness towards the A person who will be affected by the action or decision.

In this matter, 1 have given due consideration to both learned counsels’ submissions, and I have perused the affidavit as well as the counter-affidavit. 1 am satisfied that a prima facie case has been made out for the intended application. Invariably, though, in fin Bapplication of this, nature, ihg grant of leave to apply for an order of certiorari or prohibition or both operates as a stay of the proceedings

~n question untjj the determination of the intended application or until the court otherwise orders There is much good sense in this and, besidesTTam buttressed in this by what is stated at page 72, Cparagraph 130, Volume 11, 3rd Edition, of Halsbury’s Laws o f England.

In the event, I allow the application, and hereby grant leave to apply for Orders of Certiorari and Mandamus. An interim Prohibitory order to issue restraining the second respondent from D charging and collecting the new rents from the applicants, and from evicting the applicants from the promises on account of their failure to pay the new rents, until the intended application is determined.

Order accordingly. E

KATEMI NDAKI v. REPUBLIC [COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas JJ.A.)|

12 October 1992 - M WANZA G

Criminal Law - Murder - Provocation - Failure to address the assessors on the issue o f provocation - Effect o f

The appellant was charged with and convicted of murder c/s 196 of H the Penal Code and sentenced to death. Apart from the evidence of PW.l who asserted to have identified the appellant at the scene of crime there was a repudiated confession of the appellant saying that he killed the deceased in the heat of passion caused by sudden provocation by the accused. The trial court did not address itself I on the issue of provocation raised in the confession.

298 TANZANIA LAW REPORTS [1992] T.L.R

A Held: The omission to address the issue of provocation raises doubts as to whether an ordinary person of the community to which the appellant lived would not have been provoked by the deceased’s outlandish behaviour. The doubt is resolved in favour of the appellant.

BAppeal allowed.

Kahangwa, for the appellant Muna, for the Republic.

CO m ar, Ram adhani and Mnzavas, J J.A.: In this appeal the

appellant was charged with and convicted of murder c/s 196 of the Penal Code and sentenced to death. Dissatisfied with the finding and the sentence of the High Court, (Moshi, J.,), he is appealing to

D this Court.Arguing the appeal on behalf of the appellant Mr. Kahangwa,

learned defence Counsel submitted that the appellant killed the deceased because of provocation offered to him by the deceased.

In the alternative, but without prejudice to the defence of E provocation, it was Mr. Kahangwa’s submission that because one

of the assessors was of the opinion that conditions for proper identification of the appellant as the person who fatally attacked the deceased with a panga on the material night were lacking the trial Court should have resolved the doubt in favour of the appellant

F and find him not guilty.The Court was invited to allow the appeal and acquit the

appellant. In rebuttal Mr. Muna, learned State Attorney, supported the conviction. The learned Counsel submitted that PW. 1, daughter of the deceased, had identified the appellant through light of a torch,

G one Silvester, shone in the room. Mr. Muna was also of the view that even if the question of identification of the appellant was resolved in his favour his confession to the justice of the peace implicated him with the murder of the deceased. It was the learned State Attorney’s submission that the trial Court was right in coming

H to the conclusion that appellant’s confession to the justice of the peace was free and voluntary. Mr. Muna argued that on the evidence tendered in the lower Court the defence of provocation was not available to the appellant.

In this case the evidence that tended to connect the appellant I with the death of the deceased is the testimony of Kweji Katwale,

KATEMt NDAK1 v. REPUBLIC (Mnzavas, J A.) 299

(PW .)), who testified that she saw the appellant through a torch A light as he was mereriessly cutting the deceased with a panga.

One of the assessors did not however believe that the witness, (PW .l), could have properly identified the appellant as the killer notwithstanding the aid of a torch; given that it was a dark night.

The other evidence which tended to implicate the appellant B with the death of the deceased was appellant’s extra-judicial statement which apparently amounted to a confession. He however in his defence in Court repudiated part of the statement which was most incriminating. This was his statement that he had visited deceased’s house at about 1 a.m. and attacked the deceased, C deceased’s wife and one of his children with a panga.

The learned trial judge examined the confession in great detail and on the basis of the decision in Tuwamoi v. Uganda [1967] E.A.91 came to the conclusion that appellant’s confession - exhibit P.3, was given freely and voluntarily; and that it could not but be true. D With respect to the learned trial judge we have no quarrel with the finding that appellant’s confession could not have been anything but true given the enmity between the deceased and the appellant based on belief of witchcraft and bearing in mind that at the material time the appellant was facing a charge of threats to murder in a E Primary Court where the deceased was the complainant.

Our only concern is whether appellant’s confession read as a whole afforded him a defence of provocation.

We hereby quote in extenso his confession to the justice of the peace; F

MAELEZO YANGU MAFUPI TULIKUWA NA KESl MAHAKAMA YA MWANZO KABLA G NA M AREH EM U K ATW ALE SAH ANI. BAA DA YA KUTUKANANA KWENYE POMBENIUWEKWA LOCK-UP. BAADA YESIKU HIYO NIL! PAT A MDHAMINI NA KUPEWA TAREHE YA KURUD1. KABLA YA TAREHE YETU MAREHEMU ALINISHITAKISUNGUSUNGU NJKADATWA H N U IELEZE . N IL U IB U KUWA K ESI YANGU IKO MA HA KAMA NL NILITOLEW A NJE I LI WAJADILI. BAADAYE NILIITWA NA KUELEZWA NAPEWA VIBOKO 16 NA SH. 20,000/=, NILIKATAA KUPIGWA KUWA WATANIUA. H IVYO N ILILIPA SHS. 10,000/= I LI INISIPIGWE, PIA N/LIUPA SHS. 20,000/=, JUMLA SHS.

300 TANZANIA LAW REPORTS [1992] T.L.R

A 30,000/= BAA PA YE NIL1ULIZA KAMA YAMEKWISHA NDIPO MAREHEMU ALIKUBALI IMEKWISHA ND1PO TUKA ONDOKA. NI LIEN DA MAHAKAMA SIKU MOJA KABLA YA SIKU YETU. SIKUKUTA MTU, KESHO YAKE SIKWENDA NIKAWA NA SAFARI. KURUDl NILIKUTA

B KUITWA SHAURIN1 NDIPO NILIKASIRIKA KUONA W ATOTO W ANGU W ANALALA NJAA NA BA DO MAREHEMU ANAENDELEZA KESI NA FEDHA ZANGU ZO TE NIM EM ALIZIA KWAKE. NILIEND A KW AKE KUPIGA HODI KAMA SAA SABA. MAREHEMU MKEWE

C NA WATOTO WAKE WA WILI WALITOKA NJE. NIUANZAKUWAKATA MAREHEMU MKEWE NA MTOTO WAO MMOJA KWA PANG A. BAA DA YE NILIKIM BIA NA KU LITUPA PANGA M TO Nl SIM IYU N IK ARU D I NYU MB A N I. LIL1POPIGW A YOWE NILIEND A

D KUJIFICHA KIJIJICHA NYAMIGAMBA BADALA YA K1JUI CHANG U CHA CHANDULU. ND IPO BA AD AYE N ILITAFU TW A NA KUKAM ATW A H AY A ND IYO MAELEZO YANGU.

E From our scrutiny of this confession its gist is that the appellant lost his temper and was provoked when he received a Court summons about the case between him and the deceased after Sungusungu had reconciled them and after he was made to cough up a total of Shs. 30,000/= and the deceased had said that the quarrel

F between them had ended.He was pained to see that his family had nothing to eat as he

had paid all the money he had in order to end the quarrel between him and the deceased but the deceased had, it would appear, taken him for a ride.

G Apparently neither in his judgment nor in his summing up tothe gentlemen assessors did the learned trial judge mention the possibility that the appellant may have been provoked by deceased’s behaviour. Had he taken this possibility into account he would no doubt have put to the assessors the question whether deceased’s

H behaviour could have provoked an ordinary person of the community to which the appellant belonged.

As it was held in the case of Chacha s/o Wamhura v. R. [19531 20 EACA 339. “The question of provocation is ordinarily one of fact and it is only in the clearest cases that it should be withdrawn

I from consideration on that basis. All elements of provocation should be considered together in assessing their effect.”

KATEM1 NDAKI v. REPUBLIC (Mnzavas, J.A.) 301

The Eastern Africa Court of Appeal had also this to say in A Festo Shirabu Musungu u R. \ 1955J 22 EACA454 - “Facts relied on as provocation do not have to be ‘strictly proved’. It is only necessary that there should be such evidence as to raise reasonable probability that they exist. If this is the effect of the evidence, the onus lying upon the prosecution is not discharged and murder is not B proved.”

The question as to whether the appellant went to deceased’s house and attacked him immediately after he came to know of the Court summons was not gone into by the trial Court and we are therefore unable to say whether or not the killing was done in the C heat of passion caused by sudden provocation.

We are also not in a position to say what would have been the opinion of the assessors on the question of provocation if the facts had been put to them.

This omission does, in our considered opinion, raise doubt as D to whether an ordinary person of the community to which the appellant lived would not have been provoked by deceased’s outlandish behaviour. The doubt is resolved in favour of the appellant and we accordingly find him not guilty of murder but guilty of the lesser offence of manslaughter c/s 195 of the Penal E Code.

The conviction for murder is quashed and the sentence of death is hereby set aside.

Taking into account that the appellant has been in remand since 1989 and his not very young age we feel that a sentence of 5 F years imprisonment commencing from the day he was convicted - ( 11/3/92) will meet the justice of the case. The appellant is so sentenced.

Appeal allowed.G

302 TANZANIA LAW REPORTS 11992] T.L.R

A CHRISTIAN s/o KALE AND RWEKAZA s/o BERNARD v.REPUBLIC

[COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas JJ.A.)]

B 12 October, 1992 - MWANZA

Evidence - Witnesses - Credibility o f witnesses.

The appellants were charged and convicted of murder in the High C Court of Tanzania. The conviction largely depended on the evidence

of PW, 1 who testified that he saw the appellants beating the deceased with a sizable stick. On appeal to the Court of Appeal the advocate for the appellants challenged the convictions on the grounds of poor identification; failure by the trial judge to address the assessors, in

D his summing up, on the question whether or not the appellants acted jointly in attacking the deceased and that the second appellant could not be said to have aided and abetted the commission of the offence.

Held: (i) PW.l was not only a reliable witness but also a witness of E truth and his evidence clearly showed that the first appellant had a

hand in the murder of the deceased;(ii) the testimony of PW.l did not incriminate the second

appellant.

F Appeal dismissed.

Omar, Ramadhani and Mnzavas, JJ.A.: A charge of murder c/s 1% of the Penal Code was laid at the doors of the appellants - Christian Kake and Rwekaza Bernard. The Republic alleged that

G on or about the 23rd day of July 1988, at Kangabusharo village within the district of Bukoba, Kagera Region, the appellants jointly and together murdered one Gervas Lukaito.

The appellants pleaded not guilty to the charge but after a full trial the High Court, (Chipeta, J.) was satisfied that the charge of

H murder had been proved against both appellants beyond reasonable doubt. They were accordingly convicted and the mandatory sentence of death was imposed.

Dissatisfied with the finding and sentence of the High Court the appellants have appealed to this Court. Arguing the appeal Mr.

I Rugarabamu, learned defence Counsel vigorously attacked the evidence of Sal vatory Tibenda. (PW, 1), who testified in the Court

C. KALE & R. BERNARD v. REPUBLIC (Mnzavas, J.A.) 303

of first instance that he saw the appellants as they were belaboring A the deceased with a sizeable stick. It was the learned Counsel’s submission that there were doubts as to whether the witness could have properly identified the appellants as the people who fatally attacked the deceased on the fateful day. In support of his argument the learned Counsel referred us to the opinion of the three assessors B (who sat with the learned judge) which was to the effect that PW.l could not have properly identified the appellants as the people who fatally attacked the deceased.

Secondly the learned defence Counsel submitted that the learned trial judge failed to address the gentlemen assessors in his C summing up on the question as to whether or not the appellants acted jointly in attacking the deceased. This crucial issue was also, it was submitted, not dealt with by the trial judge in his judgment.

Finally Mr. Rugarabamu submitted that on the evidence of PW.l the second appellant could not be said to have aided and D abetted the commission of the offence. In support of his argument the decision of this Court in Damiano Petro and Jackson Abraham v. R. [1980] TLR 260 was quoted.

The learned defence Counsel asked the Court to allow the appeal and acquit the appellants. E

The Republic on the other hand supported the conviction of both appellants. Mr. Magoma, learned Senior State Attorney, who represented the Republic, was of the view that the gentlemen asessors’ opinion that the appellants were not adequately identified was unsupportable in view of PW .l’s testimony. It was submitted F that from the evidence of PW.l he was standing only about seven paces from where the deceased was being assaulted and that as such he could not have failed to identify deceased’s assailants in broad day light. The learned Senior state Attorney submitted that PW.l was a stranger to the appellants and that there was no suggestion, G leave alone evidence, that he had reason to tell lies against them.

As for the argument that the second appellant did not participate in attacking the deceased Mr. Magoma submitted that the evidence by PW.l showed that the 2nd appellant held the deceased while the 1st appellant was belaboring him with a stick. H It was the learned Senior State Attorney’s argument that the facts in Damiano 's case (supra) were easily distinguishable from the facts in this case. The learned State Attorney argued that in Damiano’s case the second appellant was merely present at the scene of crime while the 1 st appellant was attacking the deceased. In the present I case it was argued that the second appellant aided and abetted the

3()4 TANZANIA LAW REPORTS 11992] T.L.R

A assault of the deceased by holding him while the 1st appellant attacked him. The learned Senior State Attorney asked the Court to find that the appellants were properly convicted of the offence of murder and that the appeal should be dismissed in its entirely.

After having read the evidence tendered in the High Court it B is clear that the case for the prosecution stood or fel I on the testimony

of Salvatory Tibenda. PW. 1. The witness said in his evidence, inter alia:

When we got to the hill I saw these two accused persons C assaulting a certain young man using thick sticks - about the

size of my arm. It was the first accused who was using the stick. The second accused was holding the young man and was pulling him. There were other people who just stood watching. I asked them why they were assaulting him. The

D first accused said that the young man had stolen a radio. I toldthem that it was better for them to take him to police rather than assaulting him. But they continued to assault the man so I and Faustin took our bicycles and left the scene.

E I saw the first accused hit the man on the forehead.

The witness also told the Court that it was his first time to see the two appellants and that he heard one old man who was at the scene calling the appellants by their names saying - “Christian and

F Rwekaza stop assaulting a person you know” . According to PW. 1 ’stestimony it was he who reported to the police the assault of the deceased by the appellants mentioning their names as Christian and Rwekaza.

From the evidence of B. 7971 SGT. James. (PW.4), on 2/6/ G 88 he was investigating a case in which Gervas Lukaito, the

deceased, was the complainant. He complained that the first appellant, Christian Kake. had maliciously damaged his bicycle. On being interrogated Christian Kake admitted damaging deceased bicycle and that he did so because he had seen the deceased making

H amorous advances to his wife. They were reconciled and the firstappellant promised to repair the bicycle whose damage wasestimated at Shs. 5,000/=. According to the evidence of Sergeant James he had known the 1st appellant before the bicycle incident when he (1st appellant) had a case with his father.

I In assessing the evidence of PW.I the learned trial judge said.inter alia:

C. KALE & R. BERNARD v. REPUBLIC (Mnzavas. J.A.) 305

Where the evidence of visual identification is that of a single awitness such evidence must be very narrowly examined and usually the Court will look for some corroborative evidence, be it direct or circum stantial, particu larly where the circumstances did not favour a correct identification.

In the present case, the first point to consider is the Bcredibility of PW. 1 ... I was impressed by his simplicity of manner and the straight forward manner in which he answered questions. ... I saw nothing in his demeanour to suggest that he had been tutored or was embellishing his story. This witness was a stranger to the accused persons and so he had no reason cto frame any of the accused persons.

The learned judge then concluded that he was satisfied that PW. 1 had ample opportunity to identify the two accused persons as the people who fatally attacked the deceased. £>

We would first like to deal with the evidence that tended to implicate the first appellant with the death of the deceased. As already stated above the prosecution ease wholly depended on the testimony of PW.l In his assessment of PW .I’s evidence the trial judge was, (unlike the three assessors who sat with him), satisfied E that PW, I was a credible witness. Mr. Rugarabamu. learned defence Counsel, will no doubt agree with us on reflection that the learned judge was in a better position to assess the credibility of the witness that this Court which merely reads the transcript of the record. He saw and heard the witness as he testified; an advantage which we F do not have.

Dealing with the question of credibility of witnesses the Eastern Africa Court of Appeal had this to say in R. v. Gokaldas Kanji Karia & Another, [1949J EACA 116:

GWhere a case is essentially one of fact, in the absence of any indication that the trial judge has failed to take some material point or circumstance into account it is impossible and improper for a Court of Appeal to say that he has come to an erroneous conclusion as to the respective credibility he Hattached to the evidence of the Crown witnesses and that given by the accused.

In his evidence the witness told the Court that he was standing about seven paces from where the deceased was being assaulted Iand that he saw the first appellant assaulting the deceased on the

306 TANZANIA LAW REPORTS 11992] T.L.R

A forehead. Apparently P W .l’s testimony that the 1st appellant hit the deceased on the forehead tallies with the medical report - exhibit P .l, which was to the effect that the deceased had suffered fracture of the skull on the frontal bone. Cause of death was given as intracranial and extracranial hemorrhage secondary to head injury.

B This clearly demonstrated that PW.t told the truth when hesaid that he saw the first appellant attacking the deceased on the forehead with a stick. From the evidence of the doctor exhibit P. 1, it was clear that it was the assault of the deceased on the forehead with a stick that caused deceased’s death.

C That being the position we are satisfied that the learned trialjudge was right in convicting the first appellant, Christian Kake, with the offence of murder as charged. His appeal is accordingly dismissed.

As for the second appellant. Rwekaza Bernard, the most that D PW. 1 said about him in connection with the assault of the deceased

on the material day was that he held and pulled the deceased. Nowhere in his evidence did the witness say positively, (as he did in respect of the first appellant) that the second appellant assaulted the deceased with any weapon. Apparently both in his judgment and in his summing

E up to the gentlemen assessors the learned trial judge did not deal with the crucial question as to whether the doctrine of common intention applied so as to make the second appellant also answerable in the killing of the deceased. In a somewhat similar situation two accused (E and L) and others set upon the deceased, L held him and

F others beat him. E caught hold of him, twisted his neck, dislocating it. Deceased died as a result.

The Eastern Africa Court of Appeal held that “L could only be convicted of murder if it was established not only that he was holding the deceased while accused E was twisting his neck, but that he was

G identified with E ’s purpose”. See R. v. Enok Achila and Another (1941) 8 EACA 84.

If the above decision is anything to go by the most that could be said about the second appellant is that he held the deceased while the 1st appellant dealt him the merciless fatal blow. To find the

H 2nd appellant guilty of murder it has to be proved that he was identified with first appellant’s brutal purpose - That of causing deceased’s death or causing him grievous bodily harm. After a lot of deliberation and reflection it is our considered opinion that to say the second appellant was guilty of murder because he held the

r deceased while the 1st appellant fatally attacked him would be too broad a statement of the law.

A. BRAGANZA v. F. L.BRAGANZA (Makame, J.A.) 307

Although second appellant’s defence, like that of his co- A accused, was a cock-and-bull story of what happened on the material day; and it must be conceded that he obviously has a talent for fiction; an accused ought not to be convicted on the weakness of his defence but on the strength of the prosecution case.

We are satisfied in our own minds that on the evidence it B would be dangerous to support the conviction of the 2nd appellant.The conviction for murder is accordingly quashed and the sentence of death is hereby set aside. The second appellant Rwekaza Bernard is to be released from custody forthwith unless he is otherwise lawfully held. C

Appeal dismissed.

ALBERT BRAGANZA AND ANOTHER v. MRS FLORA LOURDIN BRAGANZA

[COURT OF APPEAL OF TANZANIA (Makame, J,A.)J

14 October, 1992 - DAR ES SALAAM E

Civil Practice and Procedure - Stay o f execution - Necessity o f reasonable grounds fo r its grant.

The respondent filed an application in the Resident Magistrate’s F Court for an interim grant of letters of administration in respect of the estate of her deceased husband which was, at the time, in the mortuary. She granted her husband to be interred in Dar es Salaam but the two appellants, relatives of the deceased, granted interment to be done in Tanga, the deceased’s hometown. The Resident G Magistrate’s Court declined to entertain the matter for want of jurisdiction. The application was filed again in the High Court and it was granted by Mkude, J. There was also evidence that the respondent, on the basis of the High Court Order, had arranged to have the body buried in Dar es Salaam at 4 o ’clock on the same H afternoon. The appellants filed a notice of appeal and an application showing they fully requested, inter alia, for stay of execution of the orders of Mkude, J.

Held: (i) There was no compelling reason for ordering a stay of I execution in the circumstances of this case;

308 TANZANIA LAW REPORTS 11992] T.L.R

A (ii) it is not in public interest for a dead body to remainunburied for so long.

Application refused.

B Mbuya, for appellant.Lyimo, for the respondent.

M akame, J.A .: This application arises from a sorry situation which is not so much bizarre, but rather eerie: The deceased, a person

C called Joseph Philip Braganza set in motion rival efforts in court to have his dead body buried in Tanga or in Dar es Salaam. His widow, the respondent, wanted the burial to be here in Dar es Salaam, which she says is her intended new home with her four children, while his siblings, represented by the two applicants, wanted the interment to

D be in Tanga, his home-town. Mrs. Flora Braganza applied to the Resident Magistrate’s Court at Kisutu for an interim limited grant of Letters of Administration in respect of the estate of her deceased husband and one of the purposes of such a move was said to be to enable her “to make decisions in respect of the disposal of the body

E of the deceased”. The application was brought under a Certificate of Urgency and the present respondent was represented by Mr. Mbuya, learned counsel, whereas Mr. Lyimo learned advocate, represented the deceased’s siblings and their mother. Rugazia, learned Senior Resident Magistrate, declined to entertain the

F application for want of jurisdiction. Thereafter the present respondent made a similar application before Mkude, J. of the High Court, who on 30th September, 1992, that is some nineteen days after the death of the deceased, granted her prayer. The learned judge appointed her administratrix pendente lite, and authorized

G her “to arrange for and determine the place of burial of her deceased husband.”

On 1st October, 1992 a Notice of Motion and a Notice of Appeal were filed on behalf of the present applicants who asked for a Stay of Execution of the Orders of Mkude, J. pending the hearing.

H The matter was brought under a Certificate of Urgency and on the following day, in the afternoon the matter was placed before me and I was asked to hear the application, which was ex parte, at extremely short notice. Mr. Lyimo. learned Counsel represented the applicants. At the hearing I was informed that the deceased’s

I widow had arranged to have the body buried in Dar es Salaam at 4 o’clock the same afternoon, and that put me in an awkward position.

A, BRAGANZA v. F.L.BRAGANZA (Makame, J.A.) 309

I was clear that I was not going to grant the prayer, rolled out of the A blanket Prayer No. 3, that I should order that the burial should be in Tanga. As I said in my brief Ruling the same day, such an order would have gone well beyond the province of a Stay of Execution and would have been outside the jurisdiction of a single judge of the Court of Appeal, because it would have amounted to upsetting B Mkude J.’s decision, which only the Court of Appeal can do. What I found difficult was to consider a Stay of Execution, properly called, without having the advantage of hearing the other side and taking a closer look at the documents filed, because of the very peculiar nature of the situation. I chose what I felt was the least evil, to C order only temporary Stay until I could get a response from the other party. I accordingly ordered a temporary stay and asked that the widow should be served for the following Wednesday, 7th October, 1992. She showed up and was represented by the same advocate who had assisted her in the courts below. The applicants D continued with the service of their same lawyer, Mr. Lyimo.

At the full hearing of the appeal Mr. Mbuya first raised a preliminary objection that there was no proper Notice of Motion filed and that the court was not properly seized of the matter, among other objections. Mr. Lyimo accordingly responded. We agreed, E and proceeded by consent, to hear the substantive application for stay, because of the peculiar urgency of the matter, so as to save time. I indicated then that if at the end of the day I agreed with Mr. Mbuya, that would be the end of the matter. If on the other hand. I did not, I would then already have material on record on which to F dispose of the substantive matter.

It is indeed the law that this Court would not grant a Stay of Execution not applied for in the High Court in the first place unless there is already a valid Notice of Appeal filed. We have said so many times before. The question now is whether Mr. Mbuya has G succeeded in establishing his contentions. In my view, Mr. Lyimo’s documents might have been signed by him and it would appear to be true that “Maxie Chambers” are in fact his outfit. But I am satisfied that the Rules have not been complied with. Section 44 of the Advocates Ordinance requires strict compliance and this is H lacking in the present instance. So the application is in effect irregular.

If I were wrong in this, and it was open for me to consider the substantive matter, this is what 1 would say: From the submissions by Counsel there is no claim that there is a commonly accepted I usage among the Goan sub-community in Tanzania as to who should

310 TANZANIA LAW REPORTS ( )992| T.L.R

A decide where someone should be buried. In the present matter no party can therefore be said to have a better claim, it seems to me that the centre which holds the Goan sub-community in Tanzania is the Roman Catholic Church, which does not appeal to ordain in such a matter. I would therefore find no compelling reason for

B ordering a Stay of Execution till the intended appeal, the more so as the applicants have indicated that they would not contest the grant for the administration of the deceased estate by Mrs. Braganza, per se. Then there is the other consideration that it is revolting that a

' dead body should remain unburied for so long, in Dar es Salaam or C elsewhere in Tanzania, where dead bodies tend to spoil fast, even

in mortuary facilities when electric power is so erratic and unreliable. Public policy would require decently timely interment. I would therefore refuse to order a Stay, in the circumstances.

I hasten to add, for the avoidance of doubt, that I do not use D the term ‘sub-community’, with reference to Goans, in any derisive

sense. I employ it only in the context of ‘Community’ meaning the wider Tanzanian Community, so smaller groups being lesser than the ‘community’.

Because of the foregoing reasons I refuse to grant any further E Stay of Execution. Mrs. Flora Braganza may therefore proceed as

allowed by Judge Mkude of the High Court.

Application refused.

F

MAFUMBA JILAWAJI v. BUDU MNYAGOLYA [HIGH COURT OF TANZANIA (Korosso, J.)l

G14 October, 1992 - TABORA

Tort - Malicious prosecution - Appellant and others arrested on suspicion o f stealing respondents ’ cattle - Ward Secretary

H reported matter to police - Whether respondent prosecutedappellant and others.

Tort - Malicious prosecution - Public prosecution - Whether Government can be held vicariously liable.

Tort - Malicious prosecution - Prosecutions conducted by public I prosecutors and State A ttorneys - D ifficulty o f proving

prosecution by individual person.

M. J1LAWAJI v. B. MNYAGOLYA(Korosso, J.)

Tort - Malicious prosecution - Prosecution conducted in Primary A Courts by private citizens against other citizens - Folse imprisonment safest course o f action by aggrieved party.

The Appellant and others were arrested by the authority because they failed to respond to a theft alarm as quickly as they ought to B have done as villagers. They arrived at the scene after a lapse of 6 hours. Consequently they became the suspects of the theft of 463 head of cattle, the property of the respondent. It was the ward secretary who reported the matter to the police and the village. The trial District Magistrate dismissed with costs an action by the C appellant and the others for compensation for board, lodging, bus fare and hiring transport.

Held: (i) It is self evident that the respondent was completely unconnected with the initial arrest, detention and the decision D whether or not to formally charge the appellant before a court of law. The suit was frivolous and the appeal should be dismissed with costs;

(ii) Obiter: prosecution is one of the essentials of the sort of malicious prosecution. No plaintiff can ever satisfy this essential E in a criminal case, this is because most prosecutions before District and High Courts are conducted by public prosecutors and State Attorneys:

(iii) Obiter: in Primary Courts prosecutions are conducted by private citizens against other citizens. Where it turns out that the F complainant made a report without reasonable or prohahlp ranse_ and if malice can be proved either expressly nr im pliedly the safest course to take on the plaintiff part would be to rely on false imprisonment and incidental expenses incurred in his defence of the charge from the very outset to the time the prosecution ends in G her favour;

(iv) Obiter: whether the Government can be held vicariously liable for malicious prosecution just as much as it can be held vicariously liable for certain negligent acts of its employees is an extremely sensitive and controversial area of law. Time may one H day come when individual citizens will call upon Judges to adjudicate between them and the Government on suits based on malicious prosecutions by law enforcing officers.

Appeal dismissed. I

312 TANZANIA LAW REPORTS [1992] T.L.R

A Korosso, J.: This is an appeal lodged by the Appellant challengingthe decision of the lower Court. The appellant was one of 7 Plaintiffs who unsuccessfully sued the Respondent for malicious prosecution. The appellant and CoPlaintiffs claimed as compensation the sum of Shs.88,4(X)/= for board and lodging, the sum of Shs.29,200/= for bus

B fare and the sum of Shs. 10,000/= for hiring transport. The learned trial Magistrate dismissed the suit with costs.

In my view the suit was frivolous.According to the evidence of one Ramadhan s/o Omari

(PW.9), the village Secretary, the Appellant and his Co-Plaintiffs C were arrested by the village authority because they failed to respond

to the alarm as quickly as they ought to have done as villagers. They arrived at the scene after a lapse of 6 hours. Consequently, the Appellant and Co-Plaintiffs became the suspects of the theft of 463 heads of cattle, the property of the Respondent. According to

D PW.9 it was the Ward Secretary who reported the matter to police. It was the Ward Secretary who went to the village in company of the police.

It is selfevident that the Respondent was completely with the initial arrest, detention and the decision whether or not to formally

E charge the Appellant before a court of law.Before I bring the judgment to a close, I intend to observe

fairly briefly about the difficulty in providing a case based on malicious prosecution by one individual citizen against the other citizen. Prosecution being one of the essentials of the tort of ‘malicious

F prosecution’, no plaintiff can ever satisfy this essential because most prosecutions before District and High Courts are conducted by Public Prosecutors and State Attorneys. It is a different matter if the complainant conducts a private prosecution.

It is. however, different in Primary Courts where prosecutions G are so conducted by private citizens against other citizens. Where

it turns out that the complainant made a report without reasonable or probable cause and if malice can be proved either expressly or impliedly, the safest course to take by the plaintiff would be to rely on false imprisonment and incidental expenses incurred in his

H defence of the charge from the very outset to the time the prosecution ends in his favour.

In the course of my dealing with this appeal based on the tort of malicious prosecution, I found myself debating within myself long and seriously on whether or not the Government can be held

I vicariously liable for malicious prosecution just as much as it can

M. JILAWAJI v. B. MNYAGOLYA (Korosso, J.) 313

be held vicariously liable for certain negligent acts of its employees. A This is an extremely sensitive as well as controversial area. But it is not that impossible to impute malice especially in murder and manslaughter cases where there is profuse evidence that certain suspects are held in custodial confinement for over three or more years when there is little or mere suspicious evidence against the B suspects.

One wonders why these unnecessary incidents of custodial confinement should continue to be of frequent occurrence in our law courts particularly the High Courts when it is common knowledge that we have fairly experienced, learned lawyers manning C the Chambers in all High Court Centres. One still wonders why steps are not being taken by these learned lawyers to enter 'Nolle prosequi' in favour of suspects as soon as it comes to their attention that a certain case is a hopeless hope. Articles 13 (6) of the Constitution is couched in eloquent language touching on individual D rights before Courts of law. Most unfortunately these rights are indifferently being trampled down as if they were useless chaff w ithout the least excuse or apology to the victim s of the ‘Administrative Organ of the Government’,

I have fresh in my mind a recent Tabora Criminal Sessions E No. 99/89 RVS Maganga - case which ended with an application for a ‘Nolle Prosequi’ on 2/9/92 after the suspect had been in custody since April, 1988. When I discharged the suspect, it might have rang in his mind that he was very lucky while what I did was to sadly declare the end of his unnecessary torture and continued loss F of personal liberty for a period of about 4 years. This was a case in which there was not even strong suspicion against the suspect. Conversely, there was the statement of one witness who mentioned the Accused as having gone over to their house, awakened them and then informed then of the misfortune that had befallen the deceased G and his wife on the night. This was a case which a law undergraduate at the University of Dar es Salaam, conducting a mock trial in Nkrumah Hall, would have hastily ruled that there was no case to answer and then acquit the Accused, perhaps with a sigh of sympathy.In a case of this kind and in many other pathetic cases, courts of law H are the unfortunate scapegoats. As was in this case of Maganga, it was the District Court that first signed the warrant committing the suspect to prison. The court ordered his occasional remand in prison until on 2/9/92 when I signed a discharge to restore to him his once lost liberty, I

314 TANZANIA*LAW REPORTS [1992] T.L.R

A Another serious, adverse effect of keeping such hopeless casesuntil sessions take place is that they deny other suspects the right to be heard at such sessions because their places are being taken up by these selfevidently hopeless cases.

Time mav one day come in not a distant tomorrow when these B humble citizens of this free land will screw up their courage and

then provoke the wisdom of the Judges bv calling upon them to adjudicate between them and the Government on suits based on malicious prosecutions by law enforcing officers.

With the above observations, I come back to the issue before me C and I resolve it by dismissing the appeal.

Appeal dismissed.

D

DIDAS RWAKALILA AND 3 OTHERS v.THOMAS MATONDANE

[COURT OF APPEAL OF TANZANIA E (Omar, Ramadhani and Mnzavas, JJ.A.)

22nd October, 1992 - MWANZA

Customary Law - Bahaya Customary’ Law - Whether Musika can F be excluded from inheritance.

Customary Law - Bahaya Customary Law - Whether the redeemer o f clan shamba always becomes its owner.

This was a case over a disputed shamba filed in the Primary Court G of Nshamba in Muleba District on 5/6/1986, The parties found their

way to Muleba District Court, the High Court and finally the Court of Appeal. The history of the disputed shamha is substantially narrated in the judgment. The issues contested in the Court of Appeal are whether a person who redeems a mortgaged clan shamba becomes

H the owner of the shamba\ whether there was ad verse possession by the respondent and whether or not the disputed shamba belonged to the respondent.

Held: (i) The fact that the respondent redeemed the shamba and I the fact that he had been in continuous possession of the same

since 1966 did not make him its owner;

D. RWAKALILA v.T. MATONDANE (Ramadhani. J.A.) 3 15

(ii) the clan council’s decision to divide the shamba among A the appellants was equitable.

Order accordingly.

Rweyemamu, for appellants BAlfred Thomas, with power of attorney appeared for the respondent.

Ram adhani, O m ar and M nzavas, JJ.A .: This is another protracted litigation over inheritance of a shamba between an yn.tk, the respondent, and his four nephews, the appellants. The dispute C was filed in the Primary Coilrt of Nshamba in Muleba District on 5/6/1986. The parties found their way to the Muleba District Court, the High Court at M wanza and now in this Court, ,

It is appropriate to give a concise account of the facts leading up to this litigation. There was a man by the name of Matondane D who had siifions ancj Up0n his death his land was distributed among' * them. Four of these are known to have died by the time this dispute arose. The fifth brother, Celestin Kikugusi, has been presumed dead as nothing has been heard of him since he went to Uganda in,. 1932, So only one of the six sons is alive and this is the present E respondent, Thomas Matondane. Two of the deceased brothel's, v

''RwaKaklle'and Francis, are survived by two sons eacbh These four survivors are the present appellants. The other three brothers; Nshuli, Celestin and Karaba, died childless. The plots of land belonging to two of them, Nshuli and Celestin, have been inherited by the’ F respondent. In 1982 when K&raba died the clati council decided to divide his shamba among the appellants^ ‘

This decision aggrieved the respondent who regarded himself to be the sole heir as the remaining brother. But more particularly he founded his claim upon a will of Karaba. It was also in evidence G that he had twice redeemed the shamba in dispute for Shs. 130/= and Shs.?0/= during the lifetime of Karaba. j^gain it was not fn dispute^ that he has been m a con tinues possession of the same since 1966 when Karaba emigrated to Kome Island to the time the dispute arose. H

The reasoning of the clan council in coming to the decision they did was plain and simple. They felt that since-the respondent already had the plots of the two brothers who had died childless, then this plot in dispute beltSrging to thtTTtiird childless brother, should go to the sons of the other two dead_broiheiJs. Bui lIn- Irespondent was not moved by that philanthropy. He plucked off

316 TANZANIA LAW REPORTS [ 19921 T.L.R

A the trees planted to mark the boundaries of the plot of each and did not abandon the shamba. That sent the appellants to the Primary Court.

It was decided thaLhoth-oarties were entitled to inherit the shanilmjindjhat thejespondent should have a larger share because,

B not only was he a jigncipaJ heir, he had redeemed the shamba and had soCTT to its upkeep. It was ordered that the matter sfiould go back to the clan council for a proper distribution. The respondent was dissatisfied with that iiri8 appealed.

The District Court upheld the decision of the Primary Court C and added thal as the respondent had not been given a hearing at lhet

clan council he should be allowed to participate in its deliberations. That again did not appease the respondent.and he went to the High Court.

M watusanya, J. found that the^iiambiLiielonged to ihe D respondent. The learned judge concurred wilh the findings of the

two lower courts thatthe will produced by the respondent was but a sham. It violated the requirements of a will as prescribed by G.N. 436 of 20/9/1963. As Karaba was undisputedly illiterate his will had to be attested to by two clan_members and two non-clan persons.

E This was not dyne. However, the court found that the property in the shamba vested on the respondent because he had redeemed it. That finding was come upon on the authority of paragraph 574 of Cory and Hartnoll. The learned judge decided that the shamba belonged to the respondent since 1/12/1966. From that finding

F Mwalusanya, J. went on to declare the suit by the appellants to have been time barred under the provisions of item 6 of the schedule to the Customary Law (Limitation of Proceedi ngs ) Rules. G.N. 311/ 1964 since 12^ears had elapsed.

The appellants are contesting that judgment on three points of G law which were argued before us by Mr. Rweyemamu, learned

advocate.First, Mr. Rweyemamu said ihat_a person who redeems a

mortgaged shamba does not alwaysjjecom e the owner of that shamBa. He pjopounded that there are two types of mortgages in

H Haya customary law. One type gives rise to the ownership by the redeemer of the morgaged property but the other does not. He argued that the two mortgages in this case were of the second type and therefore the shamba remained to be the property of Karaba until his death in 1982.

I As his second point, an ^ arising from the first, Mr.Rweyemamu contended that thfc possession of the respondent

D. RWAKALILA v. T. MATONDANE (Ramadhani, J.A.) 317

became adverse from 1982 and so, he continued, when the suit was A filed in 1986 the limitation period had not expired. Lastly, Mr. Rweyemamu submitted that as the shamba did not belong to the respondent and as Karaba died intestate then the clan council was the proper authority to dispute it.

The respondent was represented by one of his four sons, Alfred B Thomas, who had a power of attorney. In all fairness he could not come to grips with the points of law raised. He merely repeated points of fact.

We agree with Mr. Rweyemamu that there are two types of mortgages in Haya customary law. That paragraph 574 which C Mwalusanya, J. relied upon from Cory and Hartnoll provides as follows:

If the plantation has been pledged on the condition that it will become the property of the creditor failing the repayment of Dthe debt within an agreed time, a relative has the right to redeem it, even after the time has expired, as an invalid sale; in which case it follows that the plantation becomes the property of the man who redeems it.

EThere are two conditions here. First, there must be a time stipulated for the repayment of the loan. Second, upon failure to repay, it must be stipulated that the property becomes that of the creditor. If the two conditions are missing then the plantation falls under the provisions of paragraphs 572jmd 573 which say: F

572. A plantation under family tenure may be pledged, butany relative may at any time, even in the absence of the owner, redeem it.

G573. If a relative does so, the payment of the money does

not give him possession of the plantation. The redemption money is due to him as a common debt by the owner.

HTo us the rationale is very clear. Under paragraph 574 the

relative who redeems the plantation steps into the shoes of the creditor. If the creditor could become the owner of the shamba then the relative could be so too. But under the second type of mortgage where the creditor can never become the owner of the I

318 TANZANIA LAW REPORTS %

(1992J T.L.R

A plantation but is merely entitled to his debt, then a relative who redeems cannot have a title but a debt.

In the present case the two mortgage deeds, that of 26/9/1966 Exh.D5 and that of I/I2/1966 - Exh.D.6, do not have the two conditions stipulated under paragraph 574. Exhibit D.5 says:

BMimi Karabe naweka rehani migotnba yangu kwa Venant sehemu ya migotnba kwa sh ilingi mia maja thelathini f 130/-). Nitakapopata pesa nitamrudishia aondoke.

C Then Exhibit D.6 is couched in these terms:

Mimi Karaba naweka rehani sehemu ya migomba kwa Laurent Rutotoza akate ndizi za kula na ndizi kali. Amenipa Shs.70/= (sabini) siku yeyole nikipata nimrudishie zake lu na aondoke

D kwenye shamba langu.

It is evident from the two deeds that none of them contain the two terms which would entitle one who redeems to be the owner of the pledged plantation as provided by paragraph 574. It is most

E unfortunate that none of the lower courts, not even the High Court, bothered to have the deeds translated from Kihaya.

The learned judge cited Marlin s/o Bikonyoro v. Celestin s/o Kaikola [19681 H.C.D. n, 87 by Cross, J. and Gabriel s/o Nzizula v. Rooza d/o Muyungi [1968] H.C.D. n. 126 by Mustafa, J. (as he then

F was). Those decisions are sound because the facts fell squarely on paragraph 574.

Thus the respondent did not become the owner of the shamba ] in dispute because he had redeemed it twice as evidenced by Exh.D.5 • and 6. The shamba remained thal of Karaba and upon his death

G reverted to family tenure to be inherited. For the sake o f completeness the shamba did not even become of the respondent because he has been in continuous possession from 1966 when Karaba left for Kome Island. Paragraph 511 of Cory and Hartnoll provides:

HActual occupation of land confers no title, no matter how long it has been occupied.

It follows from the above exposition, and as properly 1 submitted by Mr. Rweyemamu, that there was no question* of

D. RWAKALILAv, T. MATONDANE (Ramadhani, J.A.) 319- - - - - ‘ - —

limitation. The occupation by the respondent became adverse to A the interests of the family when Karaba died in 1982 and the suit was filed in 1986.

It is also evident from the above holding that the respondent cannot and is not entitled to any extra claim on the shamba because of having redeemed it or of long possession. For redemption he is B entitled to a refund o f the moneys he had paid and for possession and therefore the upkeep of the shamba, he enjoyed the proceeds from the same as was properly held by the clan council.

We come now to the crucial matter for determination. As Karaba died childless and intestate who as between the parties has C a better claim of inheritance?

Cory and Hartnoll give three grades of heirs. Paragraph 2 of Cory and Hartnoll say:

Three grades of heirs proper are recognised:A. THE MUSIKA - primary heir DB. THE MAINUKA - secondary heirC. THE KYAGATI - minor heirs

Paragraph 3 provides who are the MUSIKA. What is relevant to the present case reads as follows: E

... The Musika of a man who leaves no descendants in direct line is one of his brothers ...

So, here the respondent is definitely the Musika of Karaba. F

Was the clan council wrong to come to the decision they did?We cannot answer that in the affirmative. There is a NOTE to paragraph 3 which is very eloquent and operates as equity to soften ' the vigours of law. The NOTE goes: G

Unless a man has sons his immovable property is inherited by one of his relatives who is chosen by family council. Therefore, if he has brothers, the oldest need not necessarily inherit. For example: If there is a brother who has none or Honly a small plantation he may be chosen to inherit. If the plantation is capable of providing two families with livelihood it may be divided between the two relatives.

On this chosen relative’s death the plantation is inherited Iby his heirs in the usual way.

1

320 TANZANIA LAW REPORTS [1992] T.L.R

A In the present case the respondent already has his own plotout of the six into which the shamba of the old Matondane was divided. He also has the two parts which had belonged to his two deceased childless brothers. Thus he has three parts out of six which he will pass on to his four sons. On the other hand the four appellants,

B who are the heirs of the other two brothers of the respondent, have only a plot for each pair. So as between the respondent, and the appellants the latter have smaller plantations than the former and this NOTE to paragraph 3 was meant for them. No wonder the clan council decided the way it did.

C In fact that principle of equity transcends the Haya customarylaw. For example, in the division of land paragraph 75 provides that “the Musika shall inherit enough land to provide him and his family with a livelihood. The interests of the other heirs are a. very secondary consideration” . However, there is a NOTE again

D ameliorating the hardships which could be caused:

In practice distribution is affected by many different circumstances, for instance in the case of one of the lesser heirs having a large family, he may be granted a larger share than is

E really his just due;...

We are of the firm opinion that the clan council was justified in arriving at the decision they did and did not contravene the Haya customary law and its equity.

F But was the respondent condemned unheard? That was theconcurrent finding of the High Court and the District Court. As such, and as this is a third appeal, we cannot make a factual finding though that fact could be argued one way of the other. Be it as it may, we take it as proved that the respondent was absent

G from the clan council of 17/10/1982. What is the effect of that?We can say two things here. One both the Primary Court and

the District Court gave orders that this matter be returned to the clan council. The District Court was explicit “that appellant [the respondent now] be given an opportunity to defend him self’. But

H on both occasions the respondent did not favour that and decided to appeal. In fact in his ground five of appeal to the High Court he said in relevant parts:

... iiibainika jinsi wanaukoo walivyojipotosha kutoa mgao wa I shamba la marehemu bila kunishirikisha... mahakama za chini

B.P. LTD v. G.S.L. ESTERIO s.p.a.(Mnzavas, J.A.) 321

zisingeagiza tena kifanyike kikao kingine cha ukoo wakati A hawapo wengine tofauti na hao ...

So the respondent wanted the matter to be settled by the courts where he has been given a hearing. This is what we intend to do.

The second matter is that we are also of the opinion that it is a B futile exercise to return this dispute to the clan council to let them observe that cardinal principle of natural justice^. As the respondent has been given a hearing in four different forums and as the decision of the clan council is equitable following the Haya law, we adopt it as our own.The shamba of Karaba to be inhfltfedby1 the appellants. We order C that the clan council in conjunction with the Primary Court Magistrate of Nshamba to petition the shamba as between the first and the second appellants on the one hand, and the third and the fourth appellants on the other.

It is in evidence, as already said, that the respondent had redeemed D the shamba by paying Shs.200/=. It has been claimed that he was refunded Shs. 100/=. But that was at the clan council. If we take it as settled that the respondent was not at that Council, then it follows that he could not have been repaid. So we order that he be paid his Shs.200/=. Everyone of the appellants to pay Shs.50/=. E

Appeal allowed.

B.P. TANZANIA LIMITED v. GRUPPO SOGESCA LANAR1ESTERIO s.p.a.

[COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas, JJ.A)

G22 October, 1992 - MWANZA

Contract - Agency - Claim fo r price offuel - Attachment o f truck as security pending determination o f suit - Whether reasonable cause fo r attachment. H

Civil Practice and Procedure - Security - Damages fo r attachment o f property as security - No reasonable cause fo r filing suit.

The appellant acted as agent of a company based in London, England. There arose a dispute between the appellant and the I respondent, a party to the contract with the London based company.

322 TANZANIA LAW REPORTS 11992J T.L.R

A Because of the dispute the appellant applied for attachment of the respondent’s property to serve as security. Consequently the respondents truck was attached for 538 days. In the High Court the respondent won the case. On the attached truck the Court awarded the respondents Shs. 35,866,666/= for non user.

B On appeal the Court of Appeal considered, infer alia, whetherthe award for non-user of the truck was justified.

Held: (i) There were, in our view, good reasons calling for theappellant to apply for attachment of respondents property pending

C judgment;(ii) had the plaintiff/appellant properly and carefully

weighed his case before filing the suit against the respondent the chances are that he would not have gone to Court and the respondent would have been saved from all the bother o f having his truck

D attached and having to defend the case;(iii) the award of Shs. 35,866,666/= for non user of the truck

was not only far too exorbitant but also missuported by evidence.

Order accordingly.E

Rugarabamu and Mkatte, for the appellant.Rweyemamu, for the respondent

Omar, Ramadhani and Mnzavas, JJ.A.: In this case the F respondent company, Gruppo Sogesca Lanari Esterio s,p,a. (to which

we will hereinafter, for the sake of brevity, be referring to as the respondent) entered into a contract with a company registered in London by the name of Tecofi Ltd whereby the later company was to supply the respondent fuel. The terms of the contract are contained

G in a letter of intent - exhibit D.2.It would appear that Tecofi Ltd was to buy the fuel to be

supplied to the respondent from another company, B.P. Africa, based in London which company was to ship the fuel to the appellant company at Dar es Salaam for onward transmission to their depot

H in Mwanza which was to deliver the fuel to the respondent.The arrangement for payment for fuel sold and delivered was

that B.P. Africa wuld invoice Tecofi Limited for fuel supplied to the appellant company and Tecofi Limited would likewise invoice the respondent who would effect payment directly to Tecofi Limited.

I Sometime in October there arose a dispute between the appellant company (B.P. Tanzania Limited) and the respondent company

B.P LTD v. G.S.L. ESTERIO s.p.a.(Mnzavas, J.A.) 323

whereby the former company alleged that the latter company had A failed to pay for fuel sold and delivered to it despite repeated demands. The value of the fuel delivered was said to be in the tune of Shs.9,562,725/=. Eventually the appellant company filed a suit in the High Court against the respondent company on 25/10/89 claiming the amount. B

After the respondent company had filed a W.S.D. and later an amended W.S.D. and the appellant company had filed amended reply to the amended W.S.D. containing a counter claim the appellant company reduced the claim of Shs.9,562,725/= to one of Shs.3,758,952/15. C

The following issues were agreed upon:

1. Whether the supply of fuel by the plaintiff/appellant to the defendant/respondent was governed by any contractual relationship between them or just motivated by contractual D relationship between Tecofi Ltd and B.P. Africa Ltd of London.

2. W hether Tecofi Ltd did buy and consign fuel to the defendant through the plaintiff, and if so, how/much and E in which measurements.

3. Whether the defendant/respondent did exhaust stock as consigned through the plaintiff/appellant, and if not, whatis the balance due to the defendant/respondent. F

4. Whether the defendant/respondent did overdraw fuel from the plaintiff/appellant exceeding his stock at the time claimed by the plaintiff/appellant, and if so, how much.

G5. Whether the plain tiff/appellant had any justification to seek

for the attachment of the defendant’s truck, and if not, what damages is the defendant/respondent entitled to.

6. Relief - (Here it may have meant to what reliefs are the H parties entitled to).

After hearing evidence from both sides the High Court, (Moshi, J.), was satisfied that the respondent company had neither overdrawn gas oil nor petrol from his stock with the appellant I company. On the contrary the learned trial judge hold that the

324 TANZANIA LAW REPORTS [1992] T.L.R

A defendant/respondent had still 518.287 litres of gas oil and 54,4411 litres of petrol in his stock held by the plaintiff/appellant and ordered that the plaintiff/appellant delivers this fuel or its money equivalent to the defendant/respondent. The Court also ordered that the plaintiff/ appellant pays coss.

B As for the attachement o f defendant’s/respondent’s truck itwas the learned judge’s opinion that there was no sufficient cause to make the plaintiff company apprehensive that the defendant company was disposing its working tools so as to leave the jursidiction of the Court to the detriment of plaintiff’s interest. For this reason it was

C the trial Court’s conclusion that there was no need for the plaintiff company to apply for attachment of defendant’s truck pending hearing of the suit.

The Court therefore concluded that the defendant company was entitled to be compensated by the plaintiff company for non-user of his

D truck for the whole period it remained attached.It agreed with the defendant/respondent that the truck used to

fetch Shs. 100,000/= per day according to Ministry of Works scale. As the attachment of the truck lasted for 538 days (From 8/11 /89 to 30/4/91 when attachment was raised) the Court found that the

E amount due for the defendant for non-user o f the truck was Shs. 100,000 x 538 days which came to 53,800,000/=. The trial Court however took into account that there were Sundays, public holidays, days when the truck went for maintenance etc. when the truck would not be in use. The Court therefore deducted one third

F from the am ount o f S h s .5 3 ,8 0 0 ,0 0 0 /= w hich cam e to S h s .17 ,933,333/= and aw arded the defendan t/responden t Shs.35,866,666/= for non-user of the truck.

The Court then proceeded and dismissed plaintiff’s case withcosts.

G Dissatisfied with the whole judgment of the lower Court the plaintiffhas appealed to this Court.

Mr. Rugarabamu and Mr. Mkatte, learned Counsel, appeared for the appellant company. In his submission Mr. Rugarabamu argued that the learned judge’s finding that supply of oil to the

H respondent was in metric tons only was erroneous.It was the learned Counsel’s submission that DW.l agreed in

his evidence that he received from the appellant 6,321,417 litres of gas oil. In support of his argument the Court was referred to page 37 of the proceedings. It was also argued that the respondent

I conceded in his defence in the High Court that he had received 203389 litres of petrol; and that in all the appellant had supplied a

B.P. LTD v. G.S.L. ESTERIO s.p.a.{Mnzavas, J.A.) 325

total of 559,589 litres of petrol to the respondent without payment. A In support of his argument the Court was referred to the evidence of PW.l at page 31.

The Court was also referred to exhibit P.4 which was said to be a summary of oil the respondent had withdrawn.

It was the learned Counsel for the appellant’s argument that B some of the fuel was supplied to the respondent in cubic metres and some in metric tons.

As for the award of damages to the respondent for non-user of his truck as a result of the attachment of the truck pending determination of the suit, the learned Counsel submitted that the C appellant was entitled to file an application for attachment of the truck as there was evidence that the respondent was disposing his property; some of which had left the country. In support of his submission the Court was referred to page 21A of the proceedings.

It was also argued that later the appellant and the respondent D agreed before the judge that the respondent offers only two trucks as security. The Court was referred to the same page - 21 A.

At a later date the respondent applied to the Court seeking variation of the terms of security, the application was granted and only one truck was offered as security. E

As for the argument that the truck earned Shs.100,000/= per day Mr. Rugarabamu argued that there was no officer from the Ministry of Works who testified that the truck earned such amount per day. The Court was asked to allow the appeal with costs.

In rebuttal Mr. Rweyemamu for the respondent argued that F exhibit D. 1 was a letter of intent and not a contract. He argued that 5900 metric tons of gas oil was bought in eight separate contracts.To fortify his argument the evidence of DW.l at page 37 of the proceedings was referred to us. Mr. Rweyemamu submitted that the letter of intent exhibit D.2 and the invoices in respect of the gas G oil supplied showed that the fuel was all the time supplied in metric tons.

It was the learned Counsel’s argument that B.P. African was not called to testify that some of the fuel was supplied in cubic metres nor, it was argued, one, Muro. Mr. Rweyemamu submitted H that the appellant had problems in safe-keeping their documents and that this accasioned the confusion in their evidence regarding the manner the fuel was supplied. Mr. Rweyemamu further argued that had the appellant, communicated with his principal in London the confusion as to whether or not some of the fuel was delivered in I cubic metres would have been resolved. In support of his argument

326 TANZANIA LAW REPORTS [19921 T.L.R

A the provisions of section 166 of the Law of Contract Act were quotted:

Section 166 of the Law of Contract says:

It is the duty of an agent, in cases of difficulty, to use all B reasonable diligence in communicating with his principal, and

in seeking to obtain his instructions.

The Court was also told that the respondent always purchased fuel from the appellant whenever their stock was exhausted. To

C fortify his argument the Court was referred to the evidence of Mamforo Lema, (PW.3) on page 34.

It was the defence case that the appellant refused to produce bills of lading because if they did it would have prejudiced their case.

D In this case the claim by the plaintiff/appellant stood or fellon the evidence of PW .l, PW.2, PW.3 and PW.4.

From the testimony of DW.l the respondent used to get his supply of fuel from the appellant as supplied to them by Tecofi Limited through B.P. Africa Limited. The Letter of Intent v exhibit

E D.2 between the defendant/respondent and Tecofi Limited clearly stipulated that fuel would be supplied to the defendant/respondent in metric tons.

From the evidence the appellant claimed that between the month of June 1986 and October 1988 the respondent had drawn

F 6321417 litres of gas oil and that from July 1988 to July 1989 had drawn 205,589 litres of petrol. This, according to the appellant company amounted to an overdraw of 5,509 litres worth a total sum of Shs. 3,758,952.15 the subject matter of the suit filed in the High Court.

G The respondent company did not dispute receipt of 6321417 litre of gas oil from the appellant company but countered that it was supposed to receive 5,900 metric tons of gas oil and 200 metric tons of petrol from Tecofi Limited through the appellant company. Each metric ton was, according to the respondent, equal to 1159

H litres. This formula was the one agreed between the appellant and Tecofi Limited and, according to the respondent, it is an international formula. According to DW. 1 ’s evidence the fuel was supplied to the respondent through the appellant in eight separate contracts as shown in the invoices - exhibit D. 1. Apparently even

I PW. 1 conceded in his evidence that the invoices showed that the fuel was supplied in metric tons.

B.P. LTD v. G.S.L. ESTERIO s.p.a.(Mnzavas, J.A.) 327

It was argued by the respondent that using the agreed A conversion formula (he 5900 metric tons of gas oil came to 6,839,704 litres of gas oil and the 200 metric tons of petrol came to 231,800 litres. These were the litres of fuel the respondent was to receive from the appellant company. The defendant/respondent argued that having received 6,321,417 litres of gas oil from the plaintiff/ B appellant as per exhibit P. 1 there remained 518,287 litres of gas oil the respondent had to collect from the appellant. It was argued that using the same conversion formula the respondent had under collected 26,944 litres of petrol. This gave rise to the counter-claim by the respondent in his amended W.S.D. The respondent denied C having taken fuel on loan from the appellant. According to his defence he used to buy fuel by cash whenever his supply from Tecofi Limited had exhausted. In support of his argument that he used to pay cash for fuel the respondent produced cash payment receipt - exhibit D.3. D

Mr. Rugarabamu learned Counsel for the plaintiff/appellant on the other hand argued that the purchase and consignment of the fuel was supplied in both metric tons and cubic meters.

Our observation in this case and especially taking into account the Letter of Intent between Tecofi Limited and the defendant/ E respondent - exhibit D.2, it is clear that the purchase and consignment of fuel to the respondent by Tecofi Limited was to be in metric tons. That was the agreement. With respect to Mr. Rugarabamu learned Counsel for the appellant, there was no cogent primary evidence to counter the argument by Mr. Rweyemamu, learned Counsel for F respondent, that the fuel was supplied in metric tons as stipulated in the Letter of Intent.

It is also evident from the invoices from Tecofi Limited - ExhibitD. 1 that all the consignments were in metric tons.

Bearing in mind that there was no dispute that the respondent G received from the appellant 6,321,417 litres of gas oil and 205.589 litres of petrol this amount is to be deducted from 5900 metric tons of gas oil and 200 metric tons of petrol the appellant received from Tecofi Limited for the respondent.

Using the conversation formula supplied by Tecofi Limited H 5900 metric tons of gas oil comes to 6,839,704 litres of gas oil (One metric ton being 1159.27 litres)and the 200 metric tons come to 231800 (approximately) litres of petrol.

If the amount of 6,321,417 litres of gas oil and 205,589 litres of petrol already received by the respondent is deducted from the Iamount held by the appellant as shown above, it follows, as night

328 TANZANIA LAW REPORTS [1992] T.L.R

A follows day, that The appellant still has 518,287 litres of gas oil and 54,411 litres of petrol belonging to the respondent.

As for the argument that the respondent used to take fuel on credit when his stock had exhausted this is countered by no lesser a person than the appellant com pany’s own stocks and sales

B accountant - PW.3.He said on page 34 of the proceedings inter alia:

The defendant bought on cash basis and cash sale was raised. They had paid cheque No. F, 113115 ... they requested us to

C deduct the 8,000 litres earlier purchased from us. We issuedthem B.P. cheque No. 39317 of 22.2.89 - amount Shs. 420,876.80.

On page 35 on cross-examination by Mr. Rweyemamu he D said inter alia:

As on 10/5/89 there were 76,507 litres of motor gasoline and 813051 litres of gas oil due to the defendant company. We concede we had defendant’s stock of motor gasoline during

E the same period when the defendant company was supposedto have withdrawn the same ... When the defendant company did not have stock with us they used to buy products from us by cash.

F That being the evidence from plaintiffs accountant and takinginto account that we have, we hope amply demonstrated above, we are fully satisfied that the preponderance of probabilities weighed heavily against the plaintiff/appellant.

We see no good reason to differ with the learned judge’s G finding that the apple!lant still owes the respondent a total of 518,287

litres of gas oil and 54,411 litres of petrol or their money value.As for the award of dam ages for the a ttachm ent o f

respondent’s truck we, with respect to the learned trial judge, do not agree with his reasoning that the appellant had no reasonable cause

H to apply for attachm ent o f responden t’s property pending determination of the suit. If Mr. Rugarabamu’s submission before Munyera, J. (as he then was), is anything to go by the respondent was in the process of disposing his property. A trailer TZ 1274 with a cement mixer on it and one caterpillar earth mover had already

I crossed the border to Kenya. There were in our view good reasons calling for the appellant to apply for attachment of respondent’s

B.P. LTD v. G.S.L. ESTERIO s.p.a.(Mnzavas, J.A.) 329

property pending judgment. May be it is also not irrelevant to mention A that later the parties recorded a consent agreement that only two of respondent’s trucks should be attached.

Finally the respondent applied for variation of order of attachment and the Court ordered that only one vehicle should be attached. The second truck was released to him. B

As for the argument that the truck earned Shs. 100,000/= per day there was only the bare word of the respondent that this was in accordance with the Ministry of Works scale. It would have shed more light if an officer from the Ministry of Works was called as a witness in connection with the claim of Shs. 100,000/= per day C which was not a small amount.

However we agree that had the plaintiff/appellant properly and carefully weighed his case before filing the suit against the respondent the chances are that he would not have gone to Court and the respondent would have been saved from all the bother of D having his truck attached and having to defend the case.

We have no doubt in our m inds that the aw ard of Shs.35,866,666/= for non-user of the truck was not only far too exorbitant but also unsupported by evidence. The award of Shs.35,866,666/= is accordingly hereby set aside. E

After a lot of deliberation and reflection we are of the opinion that if the respondent had decided to pay cash as security, instead of his truck being attached, he would have been required to pay not less than Shs.3,758,952/15 the amount the appellant was claiming.The amount of 3,758,952/15 paid as security would fetch an interest F of 30% per year in a fixed deposit. This will mean that the respondent would be entitled to about Shs. 1,691,527/= interest for the 538 days his money remained in Court.

We are of the considered opinion that justice will be served if the respondent is paid Shs. 1,691,527/= for non-user of his truck. It G is so ordered.

Order accordingly.

H

330 TANZANIA LAW REPORTS [1992) T.L.R

A * SHIHOBE SENI AND ANOTHER v. REPUBLIC[COURT OF APPEAL OF TANZANIA (Omar, Ramadhani and Mnzavas, JJ.A.)]

22 October, 1992 - MWANZAB

Evidence - Confession - Whether a village chairman is a person in authority - Section 27(3) Evidence Act.

Evidence - Discrepancy with respect to dates - Witnesses illiterate- Whether to take them literally on the dates they mention.

C Evidence - Confession - Repudiated Confession - Repudiation during defence stage - What court to do.

The appellants were convicted of murder and sentenced to suffer death by hanging. They appealed against both conviction and

D sentence attacking the evidence on the basis of which they were convicted. The appellants were said to have made confessions which they later repudiated. Some of the confessions were made to the village chairman. >

E Held: (i) A village chairman is a person in authority under section 27(3) of the Evidence Act and so a confession made to him is involuntary if the Court believes that it was induced by any threat, promise or other prejudice. There is not a thread of doubt that the confessions to the village chairman were not induced by threat,

F promise or other prejudice;(ii) As the confessions were repudiated then there was a need

for ascertaining their reliability and/or seek corroboration but the learned trial judge did not even warn himself of that requirement;

(iii) on the evidence, the repudiated confessions cannot be G anything but true and a conviction can be grounded on them -

Tuwamoi v, Uganda |1967] E.A. 84;(iv) in case of illiterate witnesses, it is not fair or desirable to

tie them down too closely to estimates of lime. On a careful review of the whole of the evidence the discrepancies relied upon by the

H defence were apparent rather than real.

Appeal dismissed.

Matata, for the appellant.I Boaz, for the respondent.

S. SENI & ANOTHER v. REPUBLIC (Ramadhani, J.A.) 331

Ram adhani, O m ar and M nzavas, JJ.A .: The appellants, A Shihobe Seni and Jisinza Samwel, were convicted of the murder of Kasanga Kabadi at Nsana Village in Kahama District, Shinyanga Region, The killing was on 19/4/1987. They have been aggrieved by that decision of Korosso, J. and the punishment of death passed on them and so have come with this appeal before us. B

The deceased disappeared as from 19/4/1987 and on 23/4/ 1987 his wife reported that to appellant 2, their ten cell leaders, who, in the company of the deceased’s son," contacted thevillage Chairman, Mabala Dali (PW .l). A search was mounted involving villagem ates among whom were the appellants; P W .l; the C commandor of Sungusungu. Robert Nonga (PW. 1) and one Lusuka Salama (PW.4).- After three days the putrid corpse was located some two miles away at Mulidobo Village in Urambo District, Tabora Region.

i PWs 1, 2 and 4 ascribed the discovery to the confessions of D the appellants who then led the villagers to that location. Indeed the appellants are also said to have confessed to D/Sg. David (PW.3) to the fact of killing and.that of being ushers to the search party. These statements were produced as Exh. P.l and P.2.

The appellants, however, at the trial repudiated the statements E as well as the confessions to PWs. 1 and 2. They denied having taken the searchers to the dead body. In fact they claimed that there were two search parties and that the one which stumbled on the corpse did so because of birds which flocked over the spot and a dog of the deceased’s son which was attracted by the foul smell. F

Mr. Matata. learned Counsel, represented both appellants while Mr. Boaz, learned State Attorney appeared for the respondent/ Republic. Mr. Matata had four grounds of appeal which were: first, that the verbal confessions to PWs. 1 and 2 were involuntary and should not have been relied on; second, that the discovery of the G dead body was a result of the combing of the area by the villagers and not because o f the action of the appellants; third, that the confessions to PW.3 were also not voluntary; and lastly, that the repudiated confessions required corroboration which was wanting.

As for the first ground Mr. Matata said that the confessions to H PWs. 1 and 2 were extracted by torture. He lamented that though the learned trial judge acknowledge the notoriety of the Sungusungu on the question of torture, yet accepted them hook, line and sinker.The learned advoate pointed out that PW .l testified that the confessions were given at 2 a.m. He submitted that this fact was I pregnant with significance. However, Mr. Boaz countered that by

332 TANZANIA LAW REPORTS [1992] T.L.R

A saying that il did not mean that the interrogation was conducted throughout the night.

All we can say is that the evidence of PW. 1 is not clear on whether the interrogation was continuous or not. In any case PW.2 said that it was adjourned to the next morning when the appellants

B let the cat out of the bag. Be it as it may, PWs. I and 2 were resolute that torture was not administered and they were not controverted. Tort lie was only alleged by the appellants in their defence.

Then Mr. Matata argued that those confessions were not C admissable for another reason. He pointed out that PW.2 was a

member of the Sungusungu and as such under the provisions of section 3 ( I > of People’s Militia Laws (Miscellaneous Amendments Act, 1989 No. 9 of T989) he was equated to a Police Constable, then, Mr. Matata added, under section 27 (1) of [he Evidence Act,

D 1967 a confession voluntarily made to a police officer is admissable. However, he cautioned, a police officer is defined in section 3 of the Evidence Act to be a member of the Police Force of or above the rank of Corporal. The learned Counsel then submitted that PW.2 was not a Police Officer under the Evidence Act and hence a

E confession made to him. even if voluntarily, could not be proved against the appellants under section 27. We agree with Mr. Matata in this contention. However, Mr. Boaz replied that the confession was made to the village assembly and not to PW.2.

That is not clear from the record. PW.2 kept referring to “we” F throughout and also admitted that the members of Sungusungu were

around in their attire. There is no evidence that there was a village assembly. There were just villagers who had responded to the alarm and were participating in the search of their colleague. In any case if there is reasonable doubt then it is resolved in favour of the

G appellants.Mr. Matata also argued that PW. 1 as the village Chairman

was a person in authority and so under section 27 (3) of the Evidence Act a confession made to him is involuntary if the Court believes that it was induced by any threat, promise or other prejudice. In this

H case, he argued, they were induced by threats and tortures. Mr. Boaz submitted that a village Chairman is not a person in authority under section 27. He referred us to Masasila Mtobci v. R [1982] T.L.R. 131.

Again we agree with Mr. Matata that PW.2, as the village 1 Chairman, was a person in authority. In Mtoba’s case the High

Court of Tanzania (Katiti, J.) held that a Ward Secretary was not

S. SENI & ANOTHER u REPUBLIC (Ramadhani, J.A.) 333

such a person in authority. But as properly pointed out by Mr. A Matata in the case of Mayaya Ngolela v. H Cr. A pp. 130 of 1990 (CAT) (unreported) we held that a village Secretary was such a person in authority. So PW .l, the village Chairman, was even more so. However, there is not a shred of doubt that the confessions were not induced by threat, promise or other prejudice. Therefore B we cannot fault the learned trial judge for not holding them involuntary.

In the second ground Mr. Matata contended that the corpse was found because of the perseverance of the searchers and not the work of the appellants. He said that PW. I had deposed that the C dead body was come upon on 25/4/87 whereas PW.2 said that the confessions were obtained on 28/4/87. He submitted then that the body could not have been found because of the confession. He beefed up this submission by pointing out that appellant 2 in his defence was very emphatic that the interrogations were after the discovery. D In any case, Mr. Matata argued, if the appellants had volunteered to take the villagers to the corpse then there was no need of there being two search parties.

Mr. Boaz, on the other hand remarked that PWs. 1,2 and 4 were mere peasants who would ordinarily not be in a position to refer to dates E with precision and so the discrepancy was to be expected.

It is true that there is discrepancy with respect to dates. We, however, agree with Mr. Boaz that the witnesses should not be taken literally on their dates. Indeed PW.2 himself proved this. He said:“I got the report of his death on 24/4/87 ... We set about looking for F the deceased, but in vain. On the following day we again went about searching for the body of the deceased. That was on 27/4/ 87”. If PW.2 got the information on 24/4/ then the next day must have been 25/4 and never 27/4, It is unfair to take such a person literally on his dates. The case of Mohamed Shah s/o Lai Shah v. R. G [19391 6 EACA 97 has relevance here. The Court held that “in case of African and Asiatic witnesses it is not fair or desirable to tie them down too closely to estimates of tim e... on a careful review of the whole of the evidence the discrepancies relied upon by the defence were apparent rather than real". H

We do not subscribe to the blanket and racist generalization of “African and Asiatic”, We agree with the preposition but would correct it and refer to illiterate people of whatever race. Thus PWs.1 and 2 being illiterate peasants the discrepancies relied upon by Mr. Matata were apparent rather than real. I

334 TANZANIA LAW REPORTS 11992] T.L.R

A We again agree with Mr. Boaz that what was vital was theinformation by all the three witnesses that the search took three days and that it was after the confessions that the appellants took the villagers to their discovery. This was not controverted.

Admittedly, the question of Mr. Matata that if the appellants B had volunteered to act as guides, then there was no need to have

two search parties, is very valid. However, the existence of two groups was the story of the appellants only. It must be pointed out, though, that they were not contradicted on that just as they had not also cross-examined PWs. 1, 2 nd 4 on that point. However, there

C are their confessions to PW. I and PW.3. We shall discuss their reliability later on.

Mr. Matata then attacked the confessions to PW.3 to have been involuntary. He contended that the record does not show that the defence was given an opportunity to object to the production of

D Exhs.P .1 and 2. Here again Mr. Boaz is right. PW.3 gave his evidence, offered to tender the statements as exhibits and the learned trial judge recorded “Admitted and market Exh. P . T h a t was the time for objection and from the record it is abundantly clear that the defence did not raise a finger.

E However, the observation of Mr. M atata that once thestatements were repudiated, albeit during the defence stage, the learned trial judge should have suo moto checked on the voluntariness, is valid and we shall deal with it in due course.

The last ground was that as the confessions were repudiated F then there was a need for ascertaining their reliability and/or seek

corroboration but the learned trial judge did not even wam himself of that requirement. Mr. Boaz conceded that but added that as this is a first appeal then we could step into the shoes of the learned trial judge. That is so.

G Could the confession have been false? We fail to answerthat in the affirmative. The details are such that they could not have been concocted. Mr. Matata cautioned that the sort of details were obtainable even from the villagers and that they were not privy to the appellants alone. Let us have a look at them.

H Appellant 1 stated that the deceased was a local medicinemanto whom he had sent his wife to be treated for infertility but then the deceased befriended the wife. One day, appellant 1 continued, he found them inflagranto delicto. That was the genesis o f appellant1 ’s hatred against the deceased. Soon 18/4/87 appellant 1 disclosed

I the plot to kill the deceased to appellant 2 and his father. Appellant2 gave a very similar account. That information cannot be the

S. SENI & ANOTHER v. REPUBLIC (Ramadhani, J.A.) 335

property of every Tom. Dick and Harry. Then both appellants talked A of the use of a “gobore”. That was supported by PW.4 who heard an explosion that very day from the direction of the paddy plot of the deceased.

We are of the firm opinion and we entertain no flicker of doubt in our minds that the confusions cannot be anything but true and under B the authority of Tuwamoi v. Uganda 11967J EA 84 a conviction can be grounded on them. We so find.

For the avoidance of doubt we must say that their reliability is in addition to our conviction that the confessions were voluntarily given. Appellant 2 had this to say in cross examination "The members C of the ‘’Wasalama assaulted us by means of sticks. I was injured all over the body. I cannot show the injuries on my body because it was 1987 ... I didn’t complain to PW.3 because I was confused and also because 1 knew I would be acquitted in the long run (sic)...” This explanation is unintelligable and it only confirms that D the confessions were voluntary but as an afterthought they sought to repudiate them.

In fact to he fair to the learned trial judge, he had this to say “I don’t believe, however, that the accuseds were subjected to physical torture or else one of the accuseds or all of them would have told E the Court how each of them was hurt, injured or in any way harmed’7. That in our opinion was an appropriate observation.

We have one comment before we finish. The defence Counsel at the trial, one Mr. Ruta. did not impress us to have been diligent enough in the execution of his duties. He very superficially cross- F examined PW .l, one of the crucial witnesses. But worse still, he let other key witnesses like PW.2 and 3 go unsearched. For those two and also for PW.4 the record shows simply “XXD Mr. Ruta: NIL”,We feel duty bound to remark that advocates on dock briefs would see the importance to the Courts of the benefits of their full G assistance. We therefore dismiss the appeals in their entirety.

Appeal dismissed.

H

336 TANZANIA LAW REPORTS [ 1992] T.L.R

A CHARLES LALA v. ABDALLAH MANGI[HIGH COURT OF TANZANIA (Mwalusanya, J.)]

10 November, 1992 - SINGIDA

B Tort - Customary law tort - Law applicable.Customary law - Tort - Jurisdiction o f courts.

The appellant filed a suit for a claim of damages for malicious prosecution at the Singida District Court. The Court applied English

C Common Law. He lost the suit and appealed to the High Court. The appellate Court considered, inter alia, whether the District Court had jurisdiction to entertain the case and the proper law to apply.

Held: (i) Under section 63( 1) of the Magistrates’ Courts Act, No. 2 D o f 1984 for custom ary law torts o f m alicious prosecution,

defamation, destruction of crops by cattle, negligence etc. both the District Courts and Primary Courts have concurrent jurisdiction;

(ii) since the parties belonged to the same customary law community of the Wanyaturu the trial magistrate should have

E inquired into two matters:(a) Whether among the Wanyaturu there are rules of customary

law regarding malicious prosecution which are establishedand accepted;

(b)W hether from the nature of the wrong of maliciousF prosecution, it was apparent to the parties that they would

not be governed by customary law of the Wanyaturu;(iii) in the case at hand the trial magistrate did injustice to the

parties by not making an inquiry as to whether customary law was applicable in the circumstances. He just assumed that English

G common law was applicable;(iv) in the case at hand, both under English common law and

under Wanyaturu customary law, the appellant had failed to prove his case on a balance of probabilities.

H Appeal dismissed.

M walusanya, J .: This was a suit for a claim of damages for malicious prosecution filed at Singida District Court by the appellant Charles s/o Lala against the respondent Abdallah s/o Mangi. He

I claimed Shs.200,000/= as damages and he lost the suit and hence this appeal to this court.

CHARLES LALA v. A.MANGI (Mwalusanya, J.) 337

The practice to the suit are both Wanyaturu by tribe, of Singida A District. The learned trial magistrate assured that the English common law of malicious prosecution was applicable without conducting any inquiry if that law was applicable. According to s.9 (1) of the Judicature and Application of Laws Ordinance Cap. 453: B

Customary law shall be applicable to and courts shall exercise jurisdiction in accordance therewith in matters of a civil nature, between members of a community in which rules of customary law relevant to the matter are established and accepted - except Cin any case where it is apparent, from the nature of any relevant act or transaction, manner of life or business, that the matter is or was to be regulated otherwise than by customary law.

In the case at hand it was common ground that parties belonged to the D same customary law community of the Wanyaturu. So what remained for the trial registrar to enquire were two matters:

1. First whether among the Wanyaturu there are rules ofcustomary law regarding malicious persecution which are Eestablished and accepted.

2. Secondly, whether from the nature of the wrong ofmalicious prosecution, it was apparent to the parties that they would not be governed by customary law of the Wanyaturu. F

Failure to make an inquiry on these two matters was fatal. This is because if these two matters are not, then the court (including the District Court) is obliged to apply customary law as s.9 (1) of Cap.453 directs. G

Under s. 63 (1) o f the M agistrate’s Court Act No. 2 of the 1984 for customary law torts of malicious prosecution, defamation, destruction of crops by cattle, negligence etc. both the Primary Courts and District Courts have concurrent jurisdiction. It is only civil suits under customary law involving marriage, guardianship or H inheritence and immovable property, that the Primary Court has been given exclusive jurisdiction - see s.63(1) of the M.C.A. No. 2 of 1984. Section 13 of the Civil Procedure Code No. 49 of 1966 requires all suits to be instituted “in the court of the lowest grade competent to try it” but s. 63 (2) of the MCA provides that s. 13 I shall not be read to require any proceedings of a civil nature to be

338 TANZANIA LAW REPORTS [1992] T.L.R

A commenced in a Primary Court. So far a customary law tort of say malicious prosecution where both the Primary Court and District Court have concurrent jurisdiction, it is quite proper for the District Court to hear such a suit. And that is what is envisaged by s. 7 (3) of the M agistrate’s Court Act No. 2 of 1984 and see the decision of

B Georges C.P. in the case of Kulthum Ally Kara v. Yassin Osman [1969] E.A. 34 (T) and the decision of Seaton J. in the case of Francis s/o Mwijage v. Boniface s/o Kabalemeza [1968] H.C.D. n. 341. I have made that extensive exposition only to array any fears that the trial magistrate might harbour that he has no jurisdiction to

C hear a suit involving a customary law tort. In fact he is obliged to use the customary law where it is applicable as indicted in s.9 (1) of Cap. 453; and the Tanzania Court of Appeal has emphasized that point with all the command at disposal in the case of Maagwi s/o Kimito v. Gibano s/o Werema: Mwanza Civil Appeal No. 20 of 1984

D (unreported).In the case at hand the trial magistrate did injustice to the parties

by not making an inquiry as to whether customary law was applicable to the circumstances or not. He just assumed that English common law was applicable. The trial magistrate should note that English

E common law is not always applicable, but as s. 2 (2) of Cap. 453 provides, it is only applicable “in so far as the circumstances of Tanganyika and its inhabitants permit and subject to such qualifications as local circumstances may render necessary. Thus where customary law is applicable the English common law should

F not be invoked as the inhabitants do not permit it.There is a vast difference between the ingredients of the tort

of malicious prosecution under English common law the ingredients are:

G (a)That the criminal proceedings have been terminated in theplaintiffs favour;

(b)That the defendant acted without reasonable and probable cause;

(c)That the defendant acted maliciously ie. with improperH motive;

(d)That the plaintiff has suffered some damages.

These ingredients were expounded by the House of Lords in the case of Herniman v. Smith [1938] A.C. 305.

I In contrast, in almost all our customary laws, ingredient (c)and (d) above are not essential ingredients. Under most customary

CHARLES LALA v. A.MANGI (Mwalusanya, J.) 339

laws it is enough if the criminal proceedings terminated in the A plaintiff s favour and the defendant noted without reasonable and probable cause. The difference comes about because under customary law, the foremost consideration in tortious liability is to reconcile the litigants so as to maintain the equilibrium between the two parties and their clans - see T.O. Elias in his book. The Nature o f B African Customary Law pp. 130 - 131. Therefore proof of malice is not necessary and proof of damage is not necessary. The position under English common law is different because under that system of law the object of tortious liability is to compensate the victim for the harm suffered. Thus substantial compensation is paid if damage C is proved including vindictive damages. Under English law judges are not concerned with what goes on between the parties after the verdict. That is why they insist that malice should be proved and damages be proved. Our own traditional African system of delivering justice was a vestibule system of justice D concerned more with the end result of doing justice both to the individual and the community, which is a system of common-sense justice.

I recently had occasion to hear an appeal involving the tort of malicious prosecution under Nyaturu customary law. The case is E Marcel Kisiu v. Timoth s/o Msuta Dodoma (PC) Civil Appeal No. 23/1991, judgment delivered on 30/7/1995. The case shows that there are rules of customary law for malicious prosecution under the Wanyaturu, and that the ingredients of that tort are less stringent than the English common law and that the aim is reconciliation with F payment of a token compensation called Mbio Goya Mghongo.

Of course I am aware of the decisions of this court which have decided to engraft the ingredients of the tort of malicious prosecution under English common law into our customary law.See for example El-Kindy J. in the case of Waisirikare v. Baraki G 11971 ] HCD n. 112. And in cases like Festo v. Mwakabana [ 1971 ] HCD n. 417 and Moris Sasawata v. Mattias Malieko [1980] TLR. 158, the District Courts merely assumed that English common law of malicious prosecution was applicable without holding an inquiry as to its applicability. The High Court did not question such an H irregularity. Therefore those decisions are of doubtful authority.

Be that as it may, in the case at hand, both under English common law and under Wanyaturu customary law, the appellant had failed to prove his case on a balance of probabilities. The respondent had every reasonable and probable cause for reporting the appellant I to the Police as a suspect who had stolen his cattle. There was the

340 TANZANIA LAW REPORTS [1992] T.L.R

A evidence of the village Chairman Abel s/o Buko (DW.2) who testified that one Juma was found with the stolen cow of the respondent. When questioned Juma stated that he had bought the same from the appellant. That is why respondent reported the matter to the Ward Secretary and the police. The appellant did not disclose

B any malice or improper motive on the part of the respondent in reporting the matter to the proper authorities. All that respondent wanted is a proper investigation by the appropriate authorities.

In the event this appeal fails. I dismiss the appeal with costs.

C Order accordingly.

CHRISTOMOO NGOWI v. WILLIAM LUSITO AND ANOTHER

(COURT OF APPEAL OF TANZANIA (Mnzavas, J.A.)]

E 16 November, 1992 - DAR ES SALAAM

Civil Practice and Procedure - Court o f Appeal Rules - Application fo r stay o f execution - Notice o f appeal not lodged.

F The applicant was seeking for stay of execution of the orders of the High Court pending determination of an intended appeal to the Court of Appeal by the applicant. There was no evidence to show that the applicant had lodged notice of appeal against the decision of the High Court.

GHeld: As there is no evidence to show that the applicant has lodged notice of appeal against the decision of the High Court the application seeking stay of execution is incompetent.

H Order accordingly.

Ballonzi, for the applicant Marandu, for the respondent

I M nzavas, J.A .: This is an application seeking for stay ofexecution of the orders of Dar es Salaam High Court Miscellaneous

C. NGOWI V. W. LUSITO & ANOTHER (Mnzavas, J.A.) 341

Civil Case No. 30/1991 pending determination of an intended appeal A to this Court by the applicant.

In support of the application Mr. Ballonzi, learned counsel for the applicant, argued that the learned judge who ordered execution in Misc. Civil Case No. 38/1991 erred. It was submitted that the High Court had no jurisdiction to entertain an application B for execution in a matter which had already been decided by the district court. In support of his argument the court was referred to s.38 and 13 of the Civil Procedure Code. It was his argument that the pending appeal has reasonable chances of a success.

In rebuttal Mr. Marandu, learned counsel for the respondent C argued that an application to this Court seeking stay of execution can only be entertained when there is an existing appeal before this Court against the decision against which stay of execution is sought.

It was Mr. Marandu’s submission that the applicant has not served the respondent with notice of intention to appeal to this Court, D if the applicant has in fact given notice of intention to appeal to this Court.

In reply Mr. Ballonzi argued that the applicant has already lodged a notice of appeal against the decision of the High Court.The learned counsel continued - “We have no objection to serve E the advocate (meaning Mr. Marandu, advocate for the respondent) with notice of appeal. We served the party himself with notice.”

The question of notice of appeal featured in respondent’s counter affidavit in which the respondent said he was not aware of any notice of appeal by the applicant. The counter affidavit was F apparently not replied to by the applicant.

Rule 76(1) o f the Court of Appeal Rules is clear and unambiguous. It says:

Any person who desires to appeal to the Court shall lodge a G written notice in duplicate with the Registrar of the High Court.

The applicant has not proved to this Court that he has filed notice of appeal as provided under Rule 76( 1) quoted above. He did not even bother to reply applicant’s counter affidavit in which a question was H posed as to whether notice of appeal against the decision of the High Court had been filed by the applicant.

Faced with this question Mr. Ballonzi merely told the Court - “We have already lodged a notice of appeal against the decision of the High Court.” I

342 TANZANIA LAW REPORTS [1992] T.L.R

A There is no indication in the record to support Mr. Ballonzi’sargument that the applicant has in fact filed a notice of appeal against the decision of the High Court before lodging his application to this Court seeking for stay of execution. Nor is there evidence to show that the mandatory provisions under Rule 77 which requires the

B applicant to serve the respondent with copy of notice of appeal have been complied with.

Rule 9(2)(b) of the Court of Appeal Rules quoted by Mr. Bailonzi only allows this Court to use its discretionary powers and stay execution “where a notice of appeal has been lodged.”

C As there is no evidence to show that the applicant has lodgednotice of appeal against the decision of the High Court I agree with Mr. Marandu, learned counsel for the respondent, that the application seeking stay of execution is incompetent and it is accordingly struck out.

D Application incompetent.

E

MOHAMED S. AMIRI v. SAIDI NGAPWELA [HIGH COURT OF TANZANIA (Mkude, J.)]

F 18 November, 1992 - DAR ES SALAAM

Civil Practice and Procedure - Assessors - Magistrate summing up to assessors - Judgment signed by magistrate but not by assessors- Magistrates ’ Courts (Primary Courts) (Judgment o f Court) Rules'

G 1987, G.N. 2 o f 1988.

After hearing a case the Primary Court magistrate summed up to assessors. Each assessor signed after giving his opinions. After writing the judgm ent the magistrate signed it. No assessor signed the

H judgment. On appeal counsel for the appellant attacked the, magistrates failure to comply with the rules.

Held: The trial magistrate erred when he purported to sum up to the assessors in what he called Hukumu and also erred when he

I failed to record the unanimous decision of the court and call upon the assessors to sign it with him.

MOHAMED S. AMIRI u S. NGAPWELA (Mkude, J.) 343

Trial a nullity. A

Mdamo/Marando, for the appellant

M kude, J.: This is a second appeal. The appellant Mohamed Saidi Amiri had sued the respondent. Said Ngapwela, in the Primary B Court of Temeke in Temeke District. The suit was dismissed by the Primary Court and so the appellant appealed to the District Court of Temeke where the appeal was also dismissed. He is now appealing to this court. The case involves rival claims to a piece of land. C

Mr. Marando, learned counsel for the appellant cited the Magistrates’ Courts (Primary Courts) Judgment of Court) Rules, 1987 contained in GN 2/88 and submitted that the presiding magistrate in the Primary Court had summed up to the assessors and the said assessors did not sign the judgment of the court as required by rule D 4( 1) of the said Rules. He submitted therefore that the trial was a nullity and urged the court to order a new trial.

These two points were raised on appeal to the District Court of Temeke but the learned District Magistrate who heard the appeal dismissed them. As regards the point relating to summing up, this E is how the first appellate court dealt with it:

Having made a sober sorting through the contents of the so called summing up to assessors which the trial Magistrate titled them “Hukumu” which means judgment, I have come to the Fview that the portion is not really summing up to asessessors but it is actually the judgment itself because it contains the summary of the evidence of both sides of the case, the issues of the case and the reasoning of the magistrate. In that form I take the same to be the judgment of the court because the gist in it is what the court Ghas found in the case.

I have examined the original record of proceedings in the Primary Court and found that what the presiding magistrate titled Hukumu comes immediately after the last defence witness, one Zaina HMlola. The order of the court appear in immediately before Hukumu reads:

Amri: Shauri hadi tarehe 21/12/90 kwa kwenda kukagua sehemu ya tukio gharama zitagharamiwa na wote wawili. I

344 TANZANIA LAW REPORTS [1992] T.L.R

A It is true that the said “Hukumu" contains the summary of the evidence of both sides of the case, the issues of the case and the reasoning of the magistrate but it cannot be said that the magistrate had intended this to be the judgment of the court. Reading through it one gets the impression quite clearly that it was intended to be a

B summing up to the assessors. He starts with a summary of the facts and the case for the plaintiff, then the case for the defendant, after which he frames the issues for determination. Then the next paragraph reads:

C Kwa hiyo waheshimiwa Wazee wa Buraza tuangalie matukio yaliyothibitishwa na kukanushwa tukianzia na tukio la kwanza kuwa (I) Je Kiwanja anachodai mdai ni halali kukidai? Kwa kweli ushahidi uliotolewa na mdai ni kuwa Kiwanja hicho aliuziwa 1985...

DThis shows that he was addressing the assessors after hearing the evidence of both sides and visiting the land in dispute. In fact this point is put beyond doubt in the last two sentences in which he says:

EKwa hiyo waheshimiwa wazee wa baraza nafikiri matukio mmeyaelewa jinsi yalivyothibitishwa na kukanushwa. Kwa hiyo ni juu yenu kunipa maoni yenu kama mdai amethibitisha dai lake.

FAfter this follows “Maoni ya Washauri” under which there is the opinion of the first assessor, Rashidi Abdara Lamani followed by the opinion of the second assessor, Salum. Below the opinion of each assessor there is the signature of the assessor concerned. Then

G follows the following:

Hakimu: Kutokana na matukio jinsi yalivyothibitishwa na kukanushwa naungana na washauri wangu kuwa mdai am eshindw a kum leta shah id i a liyem uuzia kuja

H kuthibitisha kuwa kweli mali aliyouza ni halali kwakena vile vile hata mashahidi walioshuhudia mauziano hayo pia ameshindwa kuwaleta ....

Mahakama: Kwa kauli moja mahakama inaamua kuwa mdai I ameshindwa kuthibitisha dai lake mdaiwa ameshinda.

Mdai amepoteza gharama za shauri.

MOHAMED S. AMIRI v. S. NGAPWELA (Mkude, J.) 345

Below this there is only the signature of the magistrate. Thus the A assessors have their signatures appearing only once each, below their respective opinions.

Nowhere in the record of proceedings can you find the two signatures and that of the magistrate together.

In dealing with the question whether the two assessors had B jointly signed the judgment of the court or not the learned District Magistrate who sat on appeal said:

With reference to the lower court’s records, I should not, at this juncture, hesitate to dismiss the appellant’s second ground C of appeal that the trial court assessors did not sign the judgment, as the records show clearly that there are signatures of the two assessors namely Rashid and Salum, which they had signed after their respective opinions.

DIn my considered view those signatures are enough to serve

the purpose intended by the rules cited by the learned. Advocate for the appellant.

With due respect to the learned District Magistrate, those signatures E are not enough for the purpose intended by the rules. Rule 3 provides as follows:

3-(l) Where in any proceedings the court has heard all the evidence or matters pertaining to the issue to be determined Fby the court, the magistrate shall proceed to consult with the assessors present, with the view of reaching a decision of the court.

(2) If all the members of the court agree on one decision, the G magistrate shall proceed to record the decision or judgment o fthe court which shall be signed by all the members.

(3) For the avoidance of doubt a magistrate shall not, in lieuof or in addition to, the consultations referred to in sub rule H(1) of this Rule, be entitled to sum up to the other members of the court. (Emphasis supplied)

These are mandatory provisions intended to emphasize the role of assessors in Primary Courts as members of the court and not just Isimple assessors assisting the court. The magistrate has to consult

346 TANZANIA LAW REPORTS [1992] T.L.R

A the assessors and if there is a unanimous decision his duty is to reduce the decision to writing and call upon the assessors to sign it with him so that it then becomes the decision or judgment of the court. Where there is a dissent then the majority must sign the majority judgment, which becomes the judgment of the court, and

B the magistrate must record the dissent and have it signed by the dissenting member. In the present case as all the members of the court had agreed on dismissing the suit then they ought to have signed one decision jointly.

In the final result I agree with Mr. Marando, learned counsel C for the appellant, that the trial magistrate erred when he purported

to sum up to the assessors in what he called “Hukumu” and also erred when he failed to record the unanimous decision of the court and call upon the assessors to sign it with him, for these reasons I declare the trial a nullity and order that the case be tried de novo

D before another magistrate sitting with different assessors. Costs will abide the outcome of the said new trial.

Trial nullity.

E

ANDREA CHILENA v. KENI MASAKA [HIGH COURT OF TANZANIA (Mwalusanya. J.)]

F 26 November, 1992 - DODOM A

Customary law - Brideprice - Refund o f - Principles.

The appellant’s marriage with his wife lasted for three years. Then G the parties divorced. By then they had no child of the marriage. The

appellant sought to recover 9 head of cattle and Shs. 3(XX)/= he had paid as brideprice. The respondent resisted refunding the bride price on the ground that the appellant was responsible for the breakdown of the marriage.

H The appellate court considered the principles governing refundof brideprice.

Held: Under para 52A and B of the Declaration of Customary Law (Law of Persons) G.N. 279 of 1963 if there are many children to the

I marriage and the marriage has subsisted for a long time, no brideprice is refundable;

A. CHILENA v. K. MASAKA (Mwalusanya, J.) 347

(ii) even though the appellant was the guilty party responsible A for the breakdown of the marriage, since there were no children to the marriage and the marriage lasted for a very short period (about three years) the appellant should have a partial refund of brideprice.

Appeal allowed in part. B

Mr. Mpoki for the appellant

M walusanya, J: The appellant Andrea s/o Chilewa lost in the suit he filed at the Dodoma Urban Primary Court in which he C claimed a refund of brideprice of 9 head of cattle and shs.3,(XX)/= from the respondent Keni s/o Masaka. The trial court held that the appellant had paid 6 head of cattle and shs. 3,000/= only as brideprice on the ground that the appellant was the guilty party responsible for the break down of the marriage. Appellant made his first appeal to D Dodoma District Court and he again lost and hence this second appeal. Appellant was represented at the hearing of the appeal by an advocate Mr. Mpoki.

The first point taken by the appellant’s counsel Mr. Mpoki was that the first appellate court misdirect itself on not considering E the likelihood of bias by the same magistrate trying the case which he had earlier on tried and determined against the appellant. What happened was that in the divorce suit, the trial magistrate had granted divorce and then proceeded to order in the same case file that appellant was not entitled to a refund of brideprice because he was F the guilty party responsible for the breakdown of marriage. On appeal the learned District Magistrate quashed that part of the proceedings which denied the appellant the right to refund of brideprice on the ground that the question of refund of brideprice has to be adjudicated in a separate suit and not in the divorce suit. G And so a retrial was ordered for the question of refund of brideprice.

In my judgment 1 find that the question of bias could not arise because the irregularity that was committed in the first place was simply because the trial magistrate had combined two suits in one - the divorce suit and the suit for the refund of brideprice. All H what the learned District Magistrate had ordered was that they should be two separate suits. There was nothing wrong for the trial magistrate and his assessors to give the same views that they had given in the first suit. In fact the trial court would have been guilty of inconsistency if they had come to a different conclusion in the I second suit for the same set of facts. On my part I view them as

348 TANZANIA LAW REPORTS 11992] T.L.R

A principled adjudicators who do not decide a case according to the whims of the hour.

Now what amount of brideprice had been paid by the appellant? The appellant had two witnesses namely Zubeti s/o Ismail (PW.2), and Charles s/o Chilewa (PW.3) who supported him that

B he had paid 9 heads of cattle and cash shs. 3,000/=. On the other hand respondent had two witnesses to support him namely the ten cell leader Paulo s/o Chipagala (DW.2) and the appellant’s ex-wife Mwajuma d/o Masaka (DW.3). Those said appellant had paid only six heads of cattle and cash shs. 3,000/=. It will be seen that the

C matter depended on the assessment of the credibility of the witnesses. As the trial court had the opportunity to assess the demeanour of the witnesses in the witness-box, it will be wrong for this court to disturb the finding of the trial court. Like the District Court I find that only six heads of cattle and cash shs. 3,000/= had been paid as

D brideprice.The final question is, is the appellant entitled to a refund of

the whole or any part of the brideprice? Counsel for the appellant Mr. Mpoki has submitted that both courts below were wrong to think that the sole consideration for ordering a refund or not, was

E the question as to who was the guilty party responsible for the break­down of marriage. He said that the question of whether to order a refund or not was discretionary, among other matters to consider are the presence of children in the marriage and the duration of the marriage. On my part I find that Mr. Mpoki is right and the case of

F Murange s/o Mahende u Maricha s/o Malosi [1981] T.L.R. 295 supports him.

Under para 52A and B of the Declaration of Customary Law (Law of Persons) G.N. 279/1963, if there are any children to the marriage and the marriage has subsited for a long time, no brideprice

G is refundable. Then comes para 54 which provides:

It is the court’s discretion to vary the provisions contained in para 52A and B and to assess the amount of brideprice which should be returned, and the degree of guilt is the determining

H factor.

In the case at hand, there were no children to the marriage, and the marriage lasted for a very short period, about three years only. That being the case, even though the appellant was the guilty party

I responsible for the break down of marriage, at least the appellant should have got a partial refund of brideprice. Both courts below

SALUM A. KIHONY1LE v. REPUBLIC (Mfalila, J.A.) 349

did nol exercise their discretion judicially. In the circumstances of this A case at least the appellant should have been refunded two heads of cattle only. I so hold.

In the event, the appeal is partly allowed. I order that the appellant be refunded two head of cattle only. Each party to bear its own costs. B

Order accordingly.

C

SALUM ABDALLAH KIHONY1LE v. REPUBLIC [COURT OF APPEAL OF TANZANIA

(Makame, Ramadhani and Mfalila, JJ.A.)] D

27 November 1992 - DAR ES SALAAM

Criminal Law - Murder - Provocation - Provocative incidents taken together - Whether defence o f provocation available. E

Criminal law - Murder - Self defence - Spearing deceased from the back while pursuing him - Whether defence o f se lf defence available.

The appellant who was convicted of murder appealed against both F conviction and sentence of death. In his appeal he argued that the learned trial judge did not consider a number of provocative incidents which, when taken together availed him of the defence of provocation. The appellant also argued that although he speared the deceased from behind while pursuing him the defence of self G defence should have been accepted by the Court.

H eld: (i) Having in mind all the background incidents, the continuous almost deliberate trespassing of their farms by the Masai cattle, the aggressive approach by the Masai and the subsequent H attack on the appellant which resulted in his being injured on the forehead, convince us that at the time the appellant speared the deceased, he was still affected by this provocation;

(ii) when the appellant speared the deceased from behind while pursuing him he was not then defending himself against anything I as the deceased was no longer aggressive.

350 TANZANIA LAW REPORTS 11992] T.L.R

A Murder reduced u> manslaughter.

Shayo. for the appellant

Mfalila. M akame and Ram adhani, JJ.A .: The appellant B Salum Abdullah Kihonyile was charged with and convicted of

murder. Upon being so convicted, he was sentenced to death. This appeal before us is against that conviction and sentence.

According to the version given by the prosecution at the trial, the killing of the deceased Hassan Maranda. followed an incident

C in which the appellant had cut the muscles of the hind legs of a Masais cow. This was on 14/11/88. The detailed story was told by one of the Masai herdboys Njai Kisongela (P.W.4). At the time he was giving evidence, this boy was estimated to be about 12 years old. The learned trial judge allowed him to give evidence but not

D on oath because he found that the boy did not understand the nature of an oath. This boy told the trial court that on the day in question he and his colleagues were herding cattle when the appellant approached their herd and cut the hind legs of one of the cows. The said cow was immobilized. The boy ran home to tell his parents

E and other adult Masai, that the appellant whom he knew had immobilized one of the cows by cutting the muscles of its hind legs. On hearing this, the elders asked the boy Njai Kisongela to lead them to the scene where the cow had been cut and was lying. The boy took them there and on seeing the striken animal, one of

F these adults, namely the deceased asked him to take him to the man who had done this to one of their cows. Despite being advised by his colleagues that he should not do that until it was established whether or not the culprit was just a thief, the deceased insisted on meeting the man immediately. The boy Njai led him to the

G appellant’s hut where they found the appellant lying down outside. According to this boy, when the appellant saw them he started shaking in fear. The deceased asked the appellant to accompany them to the place where the cow which he had cut was lying. The appellant responded by saying that he did not cut any cow, but he

H added that he would ask his colleague who was inside the hut to see whether it was he who had cut the cow. He ran inside, the deceased tried to stop him without success. When the appellant came out. he was armed with a spear and threatened to teach the two a severe lesson. The two then started running with the appellant in hot persuit

I of the deceased. When after some distance (65 metres according to the estimated distance), the deceased tripped and fell, the appellant

SALUM A. KIHONYILE v. REPUBLIC (Mfalila. J.A.) 351

stabbed him with a spear at the back. The blade went so deep that A only the handle came out. the steel blade remained in the body until it was removed during the post mortem examination. After stabbing the deceased, the appellant turned on the boy Njai, but he abandoned the chase when he saw people coming.

At the trial, the appellant denied cutting the cow as alleged, B but admitted spearing the decased to death, saying that he did so after being provoked by the deceased and his colleagues. According to his version, the background to the killing of the deceased was as follows: Prior to this incident, the Masai cattle had been a menace to farms in the area, and consequently he decided of late to guard C his shamba. On the day in question at about 5 p.m. he saw a group of cattle moving towards his shamba. He went out of the hut to go and chase away the cattle from his shamba. As he was doing this, he saw four Masais emerge from the grass where the cattle had originally come from. The Masai started driving the cattle back to D his shamba. They confronted him and asked him why he was driving their cattle away from the grass. When he asked the Masai where the grass was, they started assaulting him. The deceased in particular look out his hunting knife and a stick. He advanced on him and attempted to cut him with it. In the course of this confrontation, the E deceased cut him on the forehead. At this stage, the appellant ran into his hut, followed by the deceased. He collected his spear and confronted the deceased. While they were in this position, the appellant said, he stabbed the deceased with the spear. After being stabbed the deceased retreated, but another Masai followed him. F Fortunately he managed to get out of the hut and ran very fast to the local cell leader for safety.

After being addressed and directed by the learned trial judge, all the three assessors were of the opinion that throughout this incident, the appellant was acting in self-defence against a group of G Masai who had attacked him. In the circumstances, they advised that he should be acquitted.

However, the learned trial judge differed and held that both the defences of provocation and self defence were not available to the appellant. The learned judge had very high regard lor the boy H Njai (P.W.4) as a witness who he said, told nothing but the truth, and that on the version as told by P.W.4, there was no room for provocation or self defence. He rejected as lies the appellant’s version of the confrontation between him and the Masai during which he was stabbed on his forehead. He gave a number of reasons. I First, the learned judge said that if the appellant and the deceased

352 TANZANIA LAW REPORTS [1992] T.L.R

A were facing each other as described by the appellant, it would not have been possible to stab the deceased on the part of the body shown in the report. Secondly, he said that the deceased’s knife was found in its sheath thereby eliminating the possibility that the deceased used or attempted to use it on the appellant. Thirdly, he

B said that the injury on the appellant’s forehead was so superficial that it could only have been self inflicted to match the story he prepared.

At the hearing of this appeal, Mr. Shayo learned counsel who advocated for the appellant, stressed the availability to the appellant

C of the twin defences of provocation and self defence. He argued that the fact that everybody agrees that at the time the appellant was shaking with fear, indicates the existence of an intimidating atmosphere and that since on the evidence there was a fight, the appellant must have been acting in self-defence.

D On our part, we think with respect that the learned judge’sgreat trust on the credibility of the boy witness (P.W.4), blinded him to other equally relevant and important considerations. Take the question of the appellant cutting the legs of one of the cows in the Masai herd. The appellant denied doing anything of the sort,

E but we are satisfied that his denial cannot be true. The boy P.W.4 saw him do it and the afflicted cow was physically seen and later slaughtered. But this incident should not have been so lightly dismissed by the learned judge. It was a pointer or indicator that all was not well between the “Waswahili” agriculturists and their

F pastoral Masai neighbours. It cannot be possible that a man in hisright senses, as we think the appellant is, could just get up and start cutting the limbs of his neighbour’s animals. There must be something or some occurence which provoked him to act that way. In this case we are told, and this was not seriously challenged, that

G Masai cattle were a menace to the cultivated and planted farms inthe area. On the day in question, the appellant must have seen these cows arriving to invade his shamba and reactcd accordingly. So this was the first provocation. Then he was confronted by the deceased whose approach was far from friendly. This is borne out

H by the fact that the deceased insisted on meeting the man who had cut the legs of their cow despite being advised to the contrary, to wait until the position was thoroughly established. On arrival at the appellant’s hut. and on seeing them, the appellant was visibly trembling with fear. What then made him tremble in fear? It must

I have been the menacing approach by the deceased, indicating that he was armed and ready to use his weapon. We think this explains

SALUM A. KIHONYILE v. REPUBLIC (Mfalila, J.A.) 353

the need felt by the appellant to go into his hut to similarly arm A himself for a possible confrontation. In this kind of atmosphere, saturated with aggressiveness on both sides, where one party ends up dead and the other with an injury described by D. Sgt. Saidi Rashidi (P.W.3) as one which must have been occasioned by a sharp weapon, we do not think it was correct and safe to dismiss it as self B inflicted to match the prepared story. At one time during the confrontation, the appellant could have acted in self defence but this cannot apply to the final stabbing with a spear because we are satisfied from the position and nature of the injury that the appellant speared the deceased from the back while pursuing him. He was C not then defending himself against anything. The deceased was no longer aggressive. Bui having in mind all the background incidents, the continuous almost deliberate trespassing of their farms by the Masai cattle, the aggressive approach by the Masai and the subsequent attack on the appellant which resulted in his being injured D on the forehead, convince us that at the time the appellant speared the deceased, he was still affected by this provocation which is sufficient to reduce the offence to the lesser one of manslaughter.The gentlemen assessors at the trial, were of the opinion that the appellant acted in self defence, but for the reasons we have given, E this defence was not available to the appellant at the time he speared the deceased in hot pursuit. But as indicated he was still under the influence of provocation.

For those reasons we set aside the conviction for murder and the sentence of death. Instead we substitute a conviction for F manslaughter and taking all the relevant factors into account, we sentence the appellant to 10 years imprisonment effective from the 25th April, 1989 the date he was convicted and sentenced in the High Court.

Order accordingly.

354 TANZANIA LAW RHPORTS 11992] T.L.R

A JOSEPH HUGO LIGANGA v. REPUBLIC(COURT OF APPEAL OF TANZANIA (Makame. Ramadhani and Mfalila. JJ.A)]

27 November, 1992 - DAR ES SALAAMB

Criminal law - Murder - Provocation - Stopping appellant from taking rice and throwing an axe at him - Whether defence o f provocation available.

Criminal law - Murder - Self defence - Whether available where C deceased not armed.

The appel lant was convicted of murder and sentenced to suffer death. He appealed challenging both the conviction and sentence. He argued that the defences of provocation and self-defence were

D available to him. The appellant told the Court that when the deceased told him to stop taking rice and threw an axe at him that provoked him. He further argued that the throwing of the axe at him forced him to defend himself.

E Held: (i) The version which the appellant gave in his evidence at the trial would give rise to a defence of self defence and provocation. But since the deceased was no longer armed at the time the appellant lashed her head there was nothing against which the appellant was defending himself;

F (ii) as to provocation, merely to tell the appellant to desistfrom taking the rice and even throwing the axe would not have deprived the appellant the power of self control particularly when he himself says that he had in the past ignored the deceased’s previous irritations because he had to act responsibly as the male

G head of the household.

Appeal dismissed.

Mfalila, M akame and Ram adhani, JJ.A .: The appellant H Joseph Hugo Liganga was convicted of murder and sentenced to

death by the High Court sitting at Morogoro (Lugakingira. J.). The High Court found the allegation that he had with malice aforethought caused the death of his sister-in-law Konsolata Likupila proved beyond reasonable doubt. He lodged this appeal against both

I conviction and sentence.

JOSEPH H.LIGANGA v. REPUBLIC (Mfalila. J.A) 355

The only eye witness to the killing who gave evidence at the A trial was the appellant himself. The only other person who was in the room at the time, the young girl Salima Selemani could not be found to give evidence. On 12/8/88 at 11 p.m. Nikodemu Liganga (P. W. 1) received particularly bad news of the death of the w ife of his younger brother. This witness told the trial court (hat at that B hour he was visited by the late Rashid Katepa who was accompanied by the appellant and the young girl Salima. They informed him of the killing of his sister-in-law Konsolata. On receipt of this information, he proceeded to the scene where he found a particularly gruesome sight. In Konsolata's room, he found a lot of blood C splattered everywhere. They saw the deceased lying on the bed, she had a cut wound on the throat extending from below the left ear to below the right ear. She had another wound on the head which appeared to have been inflicted by a heavy instrument like a hammer.The gruesome sight was also w itnessed by a neighbour Iddi Mbonde D (P.W.2) who arrived at the scene in response to an alarm as well as the village chairman Selemani Rajabu (P.W.3) who arrived at the scene after being sent for. The appellant was arrested, tied with ropes and placed in the custody of the chairman who also took under his possession Ihe suspected murder weapons namely, the axe and E the panga. When later police arrived at the scene, he handed to them both the appellant and the murder weapons.

At his trial, the appellant did not dispute the allegation that he killed his sister in law Konsolata. He freely admitted killing the deceased to the point of describing in detail how he had killed the F unfortunate woman. Both from his evidence in court, and his extra judicial statement, it can be gathered that he claimed that he killed the deceased either in self defence or on grave provocation or both.He explained that on the day in question, he could not eat his dinner properly because of a bad stomach. But later in the night about 9 G p.m. when the two women, the deceased and Salima had gone to sleep, he felt hungry and looked for food in the house. He found none as the whole amount had been consumed. He therefore decided to do the cooking, but the rice was kept in the deceased’s room. He went into the deceased's room to take the rice. As he prepared to Htake the rice from under the deceased’s bed, the deceased who had been asleep woke up and ordered him to stop. The appellant said he ignored her and continued to take the rice. But as he was doing so, he suddenly heard an axe strike the wall behind him. This he said irritated him, and so he picked up the axe and struck back at Iher head. After striking this blow, the axe slipped from his grip and

356 TANZANIA LAW REPORTS [1992) T.L.R

A fell to the floor. But at hand was a panga which he had taken with him into the deceased’s room. He picked this panga and gave her another blow with it. However in his extrajudicial statement, the appellant suggested that the deceased only threatened him with the axe if he continued to ignore her order to stop taking the rice. As

B she said this while pointing the axe at him, he snatched it and struck her with it. When he lost grip and it fell on the floor, he produced a panga which was nearby and slashed her throat with it.

On this evidence the learned trial judge directed the assessors on two defence: Self defence and provocation. Although the

C assessors did not say so in so many words, perhaps on account of the manner in which they were directed, they seem to have rejected these defences and advised that the appellant was guilty of murder. The learned trial judge accepted this advice and in his judgment gave detailed reasons why the two defences were not available to the appellant

D and convicted him.In this appeal, the appellant raised only one issue namely that

“the learned trial judge erred in law and evidence in not giving the necessary weight to several incidences prior to the death of the deceased such as accusations of sexual demands, caning of the

E appellant by the deceased and the refusal by the deceased to allow appellant take some rice for cooking on the material date triggering the appellant to kill the deceased. Such incidents if properly considered would have reduced the conviction to a lesser offence of manslaughter.”

F Reading through the judgment of the trial court, it becomesabundantly clear that the learned judge treated the two defences of self defence and provocation in great detail. In our view it is not easy to fault the learned judge’s reasoning. When he went in to collect the rice from the deceased’s room, the appellant armed

G himself with a panga. Indeed the learned judge thought it more likely than not that the appellant was also armed with the axe for he could not see how the axe got into the deceased’s room, given the manner in which it was ordinarily kept in his room. If he was going merely to collect rice for cooking, why arm himself so heavily?

H The appellant explained that it was his habit to walk about with his panga wherever he went “even in the toilet”. We ask ourselves, why? of course we do not know what kind of toilet facilities he had. But would this necessitate his walking into his sister-in-law’s room at night armed with the panga? The learned trial judge rejected

I this and found that the appellant went into the deceased’s room with criminal intentions. We agree. The version which the appellant

LUBAGA SENGA v. REPUBLIC (Katiti, J.) 357

gave in his evidence at the trial would give rise to a defence of self A defence and provocation. But since the deceased was no longer armed at the time the appellant bashed her head, we agree with the learned judge that there was nothing against which the appellant was defending himself. He was in his own words just revenging. As to provocation, we agree with the trial court that merely to tell the B appellant to desist from taking the rice and even throwing the axe, would not have deprived the appellant the power of self control particularly when he himself says that he had in the past ignored the deceased’s previous irritations because he had to act responsibly as the male head of the household. The act of pointing an axe at the C appellant as explained in the extrajudicial statement could not amount to provocation capable of creating the kind of reaction the appellant unleashed on the deceased. This is the only explanation why the appellant chose to go into the deceased’s room armed to the teeth.The manner and brutality with which he killed the deceased is proof D that the appellant on that particular day, had decided to provide or execute the last solution to his long standing problems with the deceased. He bashed the deceased’s head and in his own words finished the business by cutting her throat from end to end. Such a killing cannot be anything but murder. E

For those reasons we are satisfied that this appeal has no merit and we dismiss it in its entirety.

Appeal dismissed.F

LUBAGA SENGA v. REPUBLIC [HIGH COURT OF TANZANIA (Katiti, J.)] G

4 December, 1992 - TABORA

Criminal Practice and Procedure - Sentencing - Mitigating factors- Plea o f guilty, first offender, showing deep sorrow, promise to H compensate.

Lubaga Senga the appellant, was charged under section 269(c) of the Penal C ode, Cap 16. He was condem ned to 5 y ears’ imprisonment on his own plea of guilty. He appealed against the I sentence contending that it was excessive.

358 TANZANIA LAW REPORTS [1992] T.L.R

A The Appellant was a first offender and in mitigation he showeddeep sorrow for the offence, apart from promising to refund the complainant the loss caused to him by the appellant’s wrong acts. On appeal.

B Held: (i) Every sentencing process cannot and should not. unless a statu tory minimum sentence is being adm inistered, avoid individualization of the offence, and the circumstances of the offender, otherwise the whole exercise becomes mechanical;

(ii) the appellant was, in the circumstances, entitled to more C lenient treatment than he was accorded.

Appeal allowed.

Katiti, J.: On the 29/1/1990, one Katiba Umege the D complainant, was expecting a consignment of beer from Arusha,

by use of Scania lorry TZ 5 1559. When it finally arrived, the count of crates of beer revealed that two crates of beer, worth Shs. 13,000/= had been consumed to finish, the empty bottles bearing witness to the said same consumption. Guarding the said beer crates

E from Arusha was Lubaga Senga. the appellant herein. This Lubaga Senga. admited to have drank some of the same to quench his thirst, and to have charitably dished some to some passengers.

The appellant was therefore charged, under section 269 (c) of the Penal Code Cap. 16. He pleaded unequivocally guilty, and hence

F the conviction on his own plea of guilty. He was sentenced to fiveyears imprisonment, subject to confirmation. The appellant is now appealing against sentence, contending that the sentence was excessive.

The learned Senior State Attorney Mr. Kaduri. appearing for G the Republic, did concede that considering the circumstances of

this case, the sentence of five years imprisonment, was on the high side. It has to be recalled, that the offence carries, the maximum sentence of ten years im prisonm ent, and that if five years imprisonment is imposed the hue and cry against the same, would

H expectedly be less. But every sentencing process cannot and shouldnot, unless a statutory minimum sentence is being administered avoid individualization of the offence, and the circumstances of the offender, otherwise the whole exercise, becomes mechanical. In this case, the appellant admitted guilt, a factor speaking mitigatingly in

I favour of him. He was a first offender, a factor eloquently praying for lenience in favour of the appellant, and to still add. the appellant

MARTHA DANIEL r. PETER T. NKO (Mroso, J.) 359

contritely begging pardon, and promising to pay, could not have left A mercy without a smile. The appellant said in mitigation:

I only pray for pardon, some people fooled me in dishing out the beer. I promise to pay back the value of the beer. I stolei.e. Shs. 13.(HK)/=. I will raise it. B

If the sense of mercy, can still stand smile - less, as a statue of granite, in the face of such a plea. I do not know, under what circumstances, would mercy be moved in favour of the pleader. I am of the considered view, that the appellant was in the C circumstances entitled to more lenient treatment, than he was accorded. In the circumstances. I am allowing his appeal, and making such order as will result in his immediate release, unless, he is otherwise legaly held.

DAppeal allowed.

MARTHA DANIEL v. PETER THOMAS NKO [HIGH COURT OF TANZANIA (Mroso, J.)|

4th December, 1992 - ARUSHA F

Civil Practice and Procedure - Appeals - Application fo r extension o f time to institute appeal - Appeal filed within time but in a wrong court - Ignorance o f rules by a lay person - Whether sufficient reason - Section 25 Magistrates' Courts Act, 1984. G

The applicant lost an appeal in the District Court. Instead of tiling her petition of appeal in the District Court the applicant, filed the petition of appeal directly in the High Court in contravention of the procedure stipulated in section 25(3) of the Magistrates’ Courts Act, H 1984. The High Court struck out the appeal which was not properly before it. When the applicant wanted to file the appeal according to the laid down procedure it was discovered that time for so filing had ended. It was, thus, necessary to apply for extension of time to file the appeal. One of the reasons advanced was that the applicant I was a lay person who did not know the rules.

360 TANZANIA LAW REPORTS 11992] T.L.R

A Held: A plea by a lay person that he be allowed to file an appeal out of time in an appropriate court an appeal which was struck out or is voluntarily withdrawn from the High Court because it had been wrongly filed there, but timely, constitutes a sufficient reason.

B Application allowed.

Musei, for the applicant.Umhulla, for the respondent.

C Mroso, J.: The applicant was the losing party in an appealfrom the Primary Court of Maji ya Chai to the District Court of Arusha. She filed (PC) Civil Appeal No. 47 of 1985 to this court. But in doing so she contravened the procedure stipulated in section 25(3) of the Magistrates Courts Act, 1984 by filing the petition of

D appeal directly in the High Court instead of filing it in the District Court of Arusha. Because of that this court was moved by Mr. Umbulla, learned advocate for the respondent, to strike out the appeal which was not properly before it. Following that order, the applicant through her advocate, Mr. Musei, wishes to file the appeal afresh,

E in the correct procedure. But since the time for appeal has long run out, she has filed this application for leave to appeal out of time. In the Chamber Application Mr. Musei has cited Section 25(l)(b) of the Magistrates’ Courts Act, 1984 and Section 4(1) of the Law of Limitation Act. The application is supported by the affidavit of the

F applicant.The main reasons given in the applicant’s affidavit for the

enlargement of time are that she is an illiterate woman who was ignorant of the provisions of section 25(3) of the Magistrates’ Courts Act, 1984 and that the High Court registry staff did not inform her

G at the time she presented her petition of appeal that it ought to have been presented in the District Court from the judgment of which the appeal was preferred.

During the hearing of the application Mr. Musei elaborated that even lawyers had been overlooking the requirements of section

H 25(3) of the Magistrates’ Courts Act, 1984 and, therefore, that this court should show special consideration for a lay and illiterate person like the applicant. Mr. Musei further submitted that the applicants appeal to this Court which was struck out for not being properly before the court had in fact been filed in time and that the applicant’s

I intended appeal is meritorious.

MARTHA DANIEL v. PETER T. NKO (Mroso, J.) 361

Mr. Umbulla for the respondent vehemently resisted the A application and asked the court to dismiss it. He submitted that there have not been shown special and adequate grounds for the delay in filing the appeal and that ignorance of the law is not an excuse. In support of that submission, he cited the case of Rozendo Ayres Ribeiro v. Olivia Daritta Siqueira E. Fachao and Lilia Ozlinda B Pia Daritta Siqueira \ 1934] Vol. I EACA I where it was held that if an appeal is not filed in time, special circumstances have to be shown for extension of time to appeal. Examples of special circumstances were given as whprp thprq has been any misleading through any conduct of the other party or where some mistake had C Been made in the office itself, and the party was misled by an officer of the Court or where some sudden accident which could not have been foreseen accounted for the delay. But a mere misunderstanding of the provisions of appeal rules will not amount to special circumstances. D

Mr. Umbulla also cited a Ruling of this Court in Miscellaneous Civil Application No. 97 of 1992 Martin Paul v. Gerald Valery: unreported, in which it was held that filing an appeal in the wrong court is not a sufficient ground for extension of time to appeal. It was further argued by Mr. Umbulla citing the Court of Appeal of E Tanzania Miscellaneous Civil Application No. 20 of 1988 -Maulidi Hussein v. Abdallah Junta as authority, that mistake of counsel or applicant or even prospects of the intended appeal succeeding is not a sufficient ground for granting leave to appeal out of time.

In response to the arguments and the authorities cited by Mr. F Umbulla, Mr. Musei said that those authorities were not relevant to the application under consideration. He said the applicant who was not represented by counsel when she filed her appeal, had in fact acted with due diligence in filing it in time, albeit in the wrong court. G

An appeal to the High Court from the decision or order of the District Court in proceedings originating from the Primary Court has to be filed within 30 days of such decision or order, according to section 25(1) of the Magistrates’ Courts Act, 1984. There is a proviso however, that the High Court may extend the time for filing H such appeal. Even so, there must be sufficient reason to make the High Court exercise its discretion to extend the time, for the High Court in exercising its discretion it must act judicially. To act judicially implies acting for good or sufficient reason.

The applicant who admittedly is a lay person, and it is claimed I she is illiterate, acted in time in preparing her petition of appeal to

362 TANZANIA LAW REPORTS | 1992] T.L.R

A the High Court against a decision of the District Court of Arusha sitting as a first appellate Court. The question is whether her ignorance of the procedure as contained in section 25(3) of the Magistrates' Courts Act. 19X4 can amount to sufficient reason to give her enlarged time to refile the appeal, this lime in the correct

B court.I have had the advantage of reading through the cases which

were cited to me by Mr. Umbulla.In the Ribeiro v. Siqueira case Counsel for the applicant for

extension of time under Rule X of the Eastern Africa Court of Appeal C Rules, 1925 had claimed that a misinterpretation of the judgment of

the Supreme Court of Kenya had been the cause for failure to appeal in time against that judgment. The Court of Appeal said in that connection:

D Now before the applicant can succeed he must show that therehave been special grounds for his delay in presenting his appeal, and here we would observe. That it is settled law that a mistake made by him or by his counsel as to the effect of the judgment could not perse constitute a good ground for granting

E his application.

Citing the case of in Re Coles and Ravenshear [ 19071 I KB 8 where Farewell, L.J. said:

F A mere slip or blunder on the part of the litigant's legal advisercannot, in my view, entitle him to anything at all the Court of Appeal for Eastern Africa refused to grant leave.

In CAT Civil Application No. 20 of 1988 - Maididi Hussein G v. Abdallah Junta case (unreported), it was held that negligence or

want of diligence by counsel for a party is not a sufficient reason for granting leave to appeal out of time. A similar view was held in CAT Civil Application No. 13 of 1987 - Institute o f Finance Management r. Simon Manyaki (also unreported). However, in

H both the Simon Manyaki case and in the case of Shah Hemras Bharmal and Brothers v. Santosh Kumari w/o J.N. Bhola \ 1961J E.A. 679 a significant departure appears to have been made from the Ribeiro r. Sequeira case in that mistakes of legal advisers, within limits, may amount to sufficient reason for extending time to appeal.

I In the Simon Manyaki case Kisanga. J.A. said:

MARTHA DANIEL u PETER T. NKO (Mroso, J.) 363

The decision in each case must depend on the facts and A circumstances of the individual case ... The point to stress here is that counsel's mistake may amount to sufficient reason only where the mistake involves a minor or slight lapse, but not where it involves a lapse of a fundamental nature.

BThat was also the view which was expressed by the Court of Appeal of Tanzania in the case of Kighoma Alii Malima i\ Abas Yusufu Mwingamno, Civil Application No. 5 of 1987 (also unreported).The Ruling of this court in the Martin Paul v. Gerald Vallery was based solely on the EACA decision in Ribeiro v. Siqueira case. C

Apart from the Ribeira v. Siqueira and Martin Paul r. General Vallery cases which said that mistakes by applicants (as distinct from those made by their counsel) cannot be considered (whatever they may be?) as providing sufficient reason for extending time for appeal, the other cases to which I have referred centred on D mistakes or negligence or lack of diligence on the part of counsel for parties. I think where a mistake relates to a procedure as set out by law but otherwise there is no negligence or want of diligence, a distinction should be drawn between a lawyer and a lay person.

A lawyer is trained on how and where to look for the law. It is E easy for a court to reject his plea that he did not realise that a certain legal procedure for filing an appeal existed. But a lay person who has been acting with due diligence may easily be misled by a wrong practice. For example, it is a fact that until I put a stop to it and issued firm directions, it had been the practice in this court for a long F time for appeals in proceedings originating from the Primary Court to be filed directly in the High Court, in complete oblivion of the provisions of section 2 5(3) of the Magistrates’ Courts Act, 1984. There are scores of decisions of this court in appeals which were tiled in contravention of section 25(3) referred to, and which remain G “valid” because no one as yet has appealed to the Court of Appeal to have them overturned on that ground. For my part, therefore, I shall be inclined to accept as a sufficient reason a plea by a lay person that he be allowed to file out of time in the appropriate court an appeal which has been struck out or is voluntarily withdrawn from H the High Court, because it had been wrongly filed there, but timeously.

The last point I have to consider in this application is whether I should allow it. Mr. Musei said the intended appeal stands a gcxxi chance of success. Mr. Umbulla disputes that argument and said that in fact it I stands no such chance.

364 TANZANIA LAW REPORTS [I992| T.L.R

A In the case of Mugo and Another v. Wanjiru and Another[I970J E.A. 481, leave to appeal out of time was sought on the ground that proceedings in the Supreme Court of Kenya were conducted in breach of the principles of natural justice, suggesting thereby that the intended appeal had a high likelihood of succeeding.

B The Court said:

I would agree to this extent, that I do not think the fact that an appeal appears likely to succeed can of itself amount to a “sufficient reason”. Normally, I think, the sufficient reason

C must relate to the inability to take the particular step in time,but I am not prepared to say that no other consideration may be invoked.

The court granted the extension of time sought because there had D been a distinct possibility that the proceedings in the Supreme Court

had been conducted in breach of principles of natural justice, in that the parties had not been given opportunity to be heard.

In the application before me, although, it is stated in the applicant’s affidavit that the appeal was “meritorious” no copy of the

E judgment against which the appeal is intended was annexed to the application. So, this court has no means to verify the claim that the appeal is or is not "meritorious”.

Mr. Umbulla for the respondent, however, has submitted that the respondent has been on the disputed land since 1980, after buying

F it. The applicant was aware of that fact and did not take any steps to challenge the respondent’s occupation until four years later, in 1984. For those reasons Mr. Umbulla prayed that the application be dismissed with costs.

As I have already said I am not in a position to know the merits of G the intended appeal but since I have found for the reasons discussed

earlier that the applicant has shown sufficient cause, leave is hereby granted to the applicant to file the intended appeal out of time. The period is extended to 14th December, 1992.

H Application allowed.

MKUBWA SAID OMAR v. S.M.Z. (Kisanga, J.A.) 365

MKUBWA SAID OMAR v. S.M.Z. A[COURT OF APPEAL OF TANZANIA

(Nyalaii, C.J., Kisanga and Ramadhani. JJ.A.)]

4 December, 1992 - ZANZIBARB

Evidence - C orroboration - E vidence which needs to be corroborated cannot corroborate.

The appellant, with others, were charged with and convicted of the offence of burglary and stealing. On first appeal the others were C acquitted. Aggrieved, the appellant appealed further to the Court of Appeal of Tanzania. The main argument put forward on appeal was that the first appellate court accepted the evidence of P.W.4 which required close scrutiny before it could be acted upon to uphold the conviction of the appellant. The evidence of P.W.4 was used as D corroborative evidence to that of accomplices to found the conviction of the appellant.

Held: P.W.4 was a witness whose evidence needed corroboration before it could be accepted and acted upon. Such evidence which E requires corroboration could not itself corroborate accomplice evidence.

Appeal allowed.F

Mbwezeleni, for the appellant.

Kisanga, J.A., Nyalaii, C J . and Ramadhani J.A.: The appellant and three others were jointly charged in the Regional Magistrate’s Court Zanzibar with the offences of burglary and stealing contrary G to sections 267( 1 )(a), and 248( 1) respectively of the Penal Decree. Two of them were acquitted but the appellant and one other were convicted on both counts and were each sentenced to 4 years’ imprisonment on each count; the sentences to run concurrently. On first appeal the High Court (Hamid. C.J.) upheld the conviction and H sentence of the appellant but allowed the appeal of his co-appellant.The appellant is now appealing further to this Court.

The facts of the case may be summarized very briefly as follows: The complainant’s house was broken into at night and a video and a radio were stolen from there. Only a few days later the I video was traced into the hands of one Haji Daudi Suleiman who

366 TANZANIA LAW REPORTS [I992|T.L.R

A was made a co-accused at the trial; the radio was never traced. Haji’s explanation was that the video was deposited with him by the appellant to secure a loan of Shs. 20,000/= he gave to the appellant. His defence was duly supported by the evidence of Nuru Abdulla Khamis, his wife who testified for the prosecution as P.W.4. The

B appellant denied sending anything to Haji. his co-accused, as claimed by Haji himself and his wife. As intimated before both courts below disbelieved the appellant’s story and found him guilty of the burglary of the complainant’s house and of stealing from there the video in question.

C In this appeal the appellant was represented by the learnedadvocate Mr. H.A.S. Mbwezeleni who raised two grounds of appeal, namely, that the video in question was not identified adequately and that the appellant’s conviction was based on accomplice evidence which was not sufficiently corroborated.

D We have to state at once that there is merit in both grounds ofcomplaint. The complainant (P.W .l) identified the video merely by pointing at it in the court room and saying that it was his and that his wife also identified it. His wife (P.W.2) slightly improved on this by stating that she identified the video because when it was

E stolen the thief or thieves left behind its cover and wires or cable. No attempt was made, however, to show whether the cover which was left behind fitted this particular video. Mr. Mbwezeleni submitted that the evidence of identification so far adduced was not sufficient to distinguish the video in question from any other

F video.Indeed the investigation officer (P.W.5) testified that he

recovered from the house of the accused Haji video No. 8100233, but this does not establish that this is the very video which was stolen from the complainant’s house. The difficulty would have

G been removed if the complainant and/or his wife were able to saythat their video bore this number, but they did not. As things stand now, however, we agree with Mr. Mbwezeleni that the evidence of the investigating officer (P.W.5) as to the number found on the video seized by him is of little or no value in relation to this case. We also

H agree that on the evidence before the court the video in question was not adequately identified as the one which was stolen from the burgled house of P.W. 1 and P.W.2.

On the issue of corroboration, the learned Chief Justice properly directed himself by saying that the evidence of Haji Daudi

I Suleiman, an accomplice, required corroboration when Haji said that the video in question was deposited with him by the appellant

MKUBWA SAID OMAR v. S.M.Z. (Kisanga, J.A.) 367

as a security for a loan. Mr. Mbwezeleni submitted, rightly in our A view, that the learned Chief Justice, however, erred in finding that Haji’s evidence was duly corroborated. The Chief Justice found that the evidence of Haji was duly corroborated by that of his own wife Nuru (P.W.4). He took the view that although P.W.4 was the wife of the accomplice Haji, he was satisfied that there was nothing B wrong with her evidence, it was all right and that he was entitled to accept and act on it. With due respect, however, the learned Chief Justice erred here. Upon her own evidence, P.W.4 is the one who received the video when it was brought to their house in the absence of her husband. She kept it and then handed it to her husband when C the latter returned home. On this score alone P.W.4 is clearly a person with an interest of her own to serve. For, in the event her husband and the appellant are acquitted, she would obviously be the next suspect. As such it would be in her interest to try to shift the blame on others to save her own skin. D

In addition, P.W.4 is the wife of Haji. the accomplice. Given such relationship she could be tempted to give false testimony in favour of her husband and against the appellant. Her evidence, therefore, would require close scrutiny before it could be accepted and be acted upon. The learned Chief Justice did not do this, he E appears to have accepted her evidence on its face value.

The view we take is that for the reasons we have stated above, P.W.4 was a witness whose evidence needed corroboration before it could be accepted and acted upon. Such evidence which requires corroboration could not itself corroborate accomplice evidence; and F that was another ground for saying that the appellant’s conviction was unsupportable.

In the result we allow the appeal, quash the conviction and set aside the sentence with an order that the appellant be released from prison forthwith unless he is otherwise lawfully held. G

The record shows that during the continuance of the trial the court ordered that the video in question be handed to the complainant. Muhamed Mbarak Salum (P.W. 1) and his wife Zakia Saleh Ajmy (P.W.2) for safe keeping. Since the appellant has laid no claim over the video, it is directed that the complainant and his H wife shall continue to keep and have the video so long as nobody turns up and establishes before a court of law that he has a better claim over the video than the complainant and his wife have.

Appeal allowed. I

368 TANZANIA LAW REPORTS 119921 T.L.R

A SAUMU MOHAMED KASSIM v. MOHAMED HAJI DAU [COURT OF APPEAL OF TANZANIA

(Nyalaii, C.J., Kisanga and Ramadhani, JJ.A)]

4 December, 1992 - ZANZIBARB

Evidence - Documentary - Document not registered as required by law - Right in immovable property indisputably established between the parties - Whether Court may look at this otherwise inadmissible document.

CThe appellant, former wife of the respondent, was claiming for a share (50%) in a house which the two had jointly built. To her plaint she annexed a document which was made and signed by the parties embodying the contract between them. The document was

D not registered as required by section 4( 1) of the Registration of Documents Decree Cap. 99 of the Laws of Zanzibar. The respondent admitted joint ownership of the house. The Court considered whether in the circumstances it could look at the otherwise inadmissible document.

EH eld: Where a right in immovable properly is indisputably established between the parties, a document which is otherwise inadmissible to prove the existence of such a right may be looked at by the court for purposes of clarification of the established right.

FAppeal allowed.

Nyalaii, C .J., Kisanga and R am adhani, JJ.A .: Saumu Mohamed Kassim, hereinafter called, the appellant, instituted a suit

G in the High Court of Zanzibar at Vuga against Mohamed Haji Dau. hereinafter called the respondent, for a declaration that house No. T situated at Kidongochekundu in Mjini District within the region of Mjini Magharibi, Zanzibar, is jointly owned by both the Appellant and Respondent, and for an order that, that house be sold by public

H auction and the proceeds thereof be divided between the parties according to their respective entitlement; or in the alternative, for an order that the Respondent pay the appellant the sum of shillings 500,000/= being half the value of the house in question. The High Court. Dahoma. J. dismissed the suit in its entirety and ordered

I each party to bear his or her costs. The Appellant was aggrieved by

S. M. KASS1M V. M.H. DAU (Nyalali, C.J.) 369

that decision, hence this appeal to this Court. At the hearing of this A appeal before us, each party appeared and argued the case in person.

From the proceedings both in this Court and the court below, it is apparent that much of the primary facts in this case are not in dispute between the parties. It is common ground that the Appellant and the Respondent were married as husband and wife early in the B 1970s, and their marriage was blessed with two children that is, Mohamoud Mohamed Haji Dau (a son) and Asha Mohamed Haji Dau (a daughter). During the subsistence of their marriage, they jointly built the house now in dispute at Kidongochekundu, and agreed to own and enjoy it jointly, and they also agreed on other C terms concerning its use and disposition while they continued to be married or to be alive and also in the case of death of either or both.It is also common ground that subsequently the marriage between the parties come to an end. and that currently, the Respondent is living in the house at Kidongochekundu together with one child of D the marriage, while the Appellant is living in another house at Kikwajuni, Zanzibar. It is common ground that the Appellant got this other house at Kikwajuni from the Respondent during the subsistence of iheir marriage.

With regard to matters that are in dispute between the parties, E it is the appellant’s case that ever since the termination of the marriage of the parties, the Respondent has denied the appellant of her right to enjoy or benefit from the house at Kidongochekundu contrary to the terms of their contract, and that under those circumstances she is discharged from the contract concerning the F house, and consequently she is entitled to have her share in the house paid to her in monetary terms.

The Respondent on the other hand contends that the Appellant is no longer en titled to claim a share in the house at Kidongochekundu for two reasons. First, it is the Respondent’s G contention that the house in which the Appellant currently lives at Kikwajuni was given to her by the Respondent as compensation for her share in the house at Kidongochekundu. This is of course denied by the Appellant who contends to have got that house by buying it from the Respondent. Secondly the Respondent contends H apparently in the alternative, that the Appellant is fully compensated for her share in the Kidongochekundu house through the use of that house enjoyed by her children living there with the Respondent.

The first issue for consideration and decision in this case is whether the Appellant was given the house at Kikwajuni by the 1Respondent as compensation for her share in Kidongochekundu

370 TANZANIA LAW REPORTS [ 1992] T.L.R

A house or whethershe bought it from the Respondent. The Appellant produced a registered Sale Deed at the trial, and she showed it to us on appeal. The Respondent confirmed this by showing us his own photostat copy of the same Sale Deed made on the 20th March, 1984. The Deed clearly states to the effect that the Respondent had

B agreed to sell the house situated at Kikwajuni to the Appellant for a sum of shillings fourteen thousand only. How can anyone in his or her right mind, let alone this Court, construe the Sale Deed to be anything else. We are satisfied that the house at Kikwajuni has been sold by the Respondent to the Appellant and that it is a blatant

C lie to assert otherwise.The second issue for consideration and decision in this case is

whether the Appellant is sufficiently compensated for her share in the Kidongochekundu house through the use and enjoyment of that house by the children of her marriage to the Respondent. We do not

D think that this contention is tenable. This is because the Appellant’s share in that house is distinct and separate from the children’s right to use and enjoy the house in question. This is so because the childrens’ right arises from their father’s (that is, the respondent’s) obligation to provide accommodation for them, whereas the

E appellant’s right in that house arises from the joint ownership of the house in accordance with the contract made between the parties when they jointly built that house. We thus find that the Appellant's share in the house is not compensated for by the use and enjoyment of the house by the children.

F The third issue for consideration and decision in the case iswhether the Appellant is entitled to be treated as discharged from the contract as a result of the Respondent’s conduct. Obviously, since the Respondent no longer recognised the Appellant’s share in the house in question, he is no longer minded to continue to honour

G the contract. Under section 39 of the Contract Decree of Zanzibar, Cap. 149 the Appellant is entitled to terminate that contract. Section 39 states:

39. When a party to a contract has refused to perform, or H disabled himself from performing, his promise in its entirety,

the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.

I The fourth and last issue for consideration and decision inthis case is whether the Appellant is entitled to be paid or otherwise

S. M. KASSIM v. M.H. DAU (Nyalali, C.J.) 371

compensated for her share in the Kidongochekundu house, and if A so how much. Clearly, the termination of the contract between the parties removes the basis upon which the house in question is jointly owned by the parties and consequently each party is entitled to recover his or her own share. What then is the extent of the Appellant’s share in the house? The Appellant annexed to her plaint B a document made and signed by the parties embodying the contract between them. However, this document was not registered as required by sections 4( 1) of the Registration of Documents Decree Cap. 99 of the Laws of Zanzibar and it cannot therefore be relied upon to create a right or interest in immovable property. Fortunately C for the Appellant joint ownership of the house is admitted by the Respondent. We are of the considered opinion that where a right in immovable property is indisputably established between the parties, as is the case here, a document which is otherwise inadmissible to prove the existence of such a right may be looked at by the Court D for purposes of clarification of the established right. An analogous, though not a similar situation was dealt with in the case of Ali Bin Khatibu v. Khamis Bin Omar 1 Z.L.R. 113 where it was held that the court could look at an unregistered document relating to a transfer of land not as evidence of title to land but as evidence that the E transferee had entered into the disputed land under colour of a claim adverse to ownership of the transferer.

An examination of the document annexed to the plaint of the Appellant leads one to the conclusion that the parties made equal contributions to the building of the house. This is apparent from F the opening sentence of the document which reads:

Mimi Mohamed Haji Dan, nathibitisha kwarnba, kuhusu nuida ya hapo juu imejengwa kwa mashirikiano na bibi Saumu Mohamed Kassirn kwa gharaza zote ( We have underlined the Grelevant portion).

In the light of this evidence we are satisfied and find as a fact that each party is en titled to half share o f the house at Kidongochekundu. H

The Appellant prays for an order for the sale of the house by public auction. She puts the current value of the house at shillings 1.000.000/=. It is in that light that she claims in the alternative to be compensated by the Respondent paying her a sum of 500,000/= for her share. I

372 TANZANIA LAW REPORTS [1992] T.L.R

A On the basis of the facts established in this case, there can beno doubt that the trial High Court erred in dismissing the Appellant’s claim. We therefore allow the appeal with costs, and order that the Respondent pays the Appellant the sum of shs. 5()(),()()()/= or half the value of the house to be assessed or determined by the

B Government Valuer within a period of three months from today, and in default, the house to be sold by public auction and the proceeds thereof be divided equally between the parties.

Appeal allowed.C

HAJI ATHUMANI ISSA v. RWE1TAMA MUTATU D [HIGH COURT OF TANZANIA (Masanche, J.)]

10 December, 1992 - MWANZA

Taxation o f Costs - Bill o f costs - Omnibus award - Whether E supportable.

The taxing master entertained an application for the Bill of Costs in the absence of the applicants and awarded what appears to be an omnibus figure of shs. 1 (X),450/=. On appeal against such an award.

FHeld: (i) Although judges will in most cases not interfere with questions of quantum the court could interfere if the taxing master clearly acted unjudicially;

(ii) costs which were incurred well after the case had been G finalized should not be the concern of the applicant;

(iii) since the case ended up ex parte and not much research went into the hearing, the award for advocates fees was on the high side.

H Order accordingly.

Katabalwa, for the applicant.

M asanche, J.: This is an appeal by one Haji Athuman Issa, I who is represented by Mr. Katabalwa. the learned advocate, against

an award of Bill of costs to one Rweitama Mutatu. The respondent

HAJI A. ISSA v. RWEITAMA MUTATU (Masanche, J.) 373

was awarded what appears to be an omnibus figure of Shs. A 100,450/=. The respondent had asked to be awarded a figure of shs. 131,450/= plus shs. 7,120/= as costs.

It is common knowledge that the applicants had wrongly filed a case, against the respondents, in the High Court. Counsel, Mr. Katabalwa, and Mr. Rweyemamu, appeared before the High Court. B In the end, the case got dismissed and the present applicant was condemned in costs.

The Bill of costs had been filed by the respondent himself, and not an advocate, which has surprised me. Anyhow, it appears Mr. Rweyemamu had or has abandoned the respondent. C

But then, can the respondent come back and claim costs for the appearance of his advocate? This he cannot do, especially where the record does not show whether the respondent appeared or not.

Can, again, the respondent apply to be paid costs for anything that might have happened after the conclusion of the case, which D we are told was on 16/10/89? I agree with Mr. Katabalwa that the respondent cannot so claim.

A dm ittedly, the application for the Bill of Costs was entertained by the taxing master in the absence of the applicants. But. even then, the taxing master was bound, to my mind, to consider E the reply of the respondent, which was in the file. A person who prosecutes a case alone, in the absence of the other party on the other side, does not have an easy ride to the case. He has, still, to prove the case on a balance of probability. The court does not have to take everything that is thrown in: My brother Bahati, J, has F remarked in the case of Felix M. Shirima v. Mohamed Farahani and another, (Civil Case No. 23 of 1981 of High Court Dar es Salaam Registry unreported) that:

There must be proof of the case on the standard required by G law, which is on the balance of probabilities even where a case proceeds ex parte.

Respondent, in this case, while acting ex parte, only threw in figures on the table of the taxing master, and the taxing master Hendorsed them. He slashed some shs.30,000/= only.

The law about taxation is this: That judges will in most cases not interfere with questions of quantum, because these are regarded as matters with which the taxing master is particularly fitted to deal with. But, and that is a big ‘but’, the court could interefere if the Itaxing master clearly acted unjudicially. (See the case of Haidan

374 TANZANIA LAW REPORTS [1992] T.L.R

A Bin Mohamed Elmandrv and others v. Khadija Binti Ali Bin Salen [1956] 23 E.A.C.A. 313).

The Bill of costs shows that shs. 40,00()/= was paid out for Advocates fees. That, to my mind was on the high side. The case ended up ex parte. Not much research went into the hearing. The law

B provides as follows:

1. That briefing should be based on the amount of work involved; in preparing for hearing, the difficulties and im portance of the case, and the amount of money

C involved;

2. Time occupied in the hearing and the amount of research required to examine the issues, is also considered (see the cases of George Mbugus and Another v A. S. Maskini

D [1980] T.L.R., at page 53 Premchant v. Quarry Services[1972] E.A. 1962; and Haidari’s case quoted Supra).

I slash shilling 20,000/= from item No. 1. I award Shs. 20,000/= only, on that item.

E The items on disbursements have caused me concern.It is true that the respondent has inflated some of them, I,

again, doubt of the authenticity of many of the food receipts. They all seem to be in the handwriting of the respondent himself. I have also been unable to verify on the lodging receipts. They also seem

F to be in the handwriting of the respondent himself.There are also costs which were incurred well after the case

had been finalised. I agree with Mr. Katabalwa that those costs should not be the concern of the applicant. They are therefore struck out. On the whole, on disbursements, I would award Shs.20,000/=.

G This should also include travel.The Bill of costs is taxed at Shs. 40,000/=

Order accordingly.

H

SUSANA JOSEPH u W. IHEMBE (Lugakingira, J.) 375

SUSANA JOSEPH v. WAMBURA IHEMBE A[HIGH COURT OF TANZANIA (Lugakingira, J.)]

11 December, 1992 - MUSOMA

Civil Practice and Procedure - Assessors - Summing up to assessors B- Magistrates Courts (Primarx Courts) {Judgment o f Court) Rules, G.N. No. 2, 1988.

The trial Primary Court magistrate summed up the case to assessors.On appeal the District Magistrate seemed not to be aware of the C existence of G.N.No. 2 of 1988 which requires Primary Court Magistrates not to sum up to assessors. On a second appeal to the High Court.

Held: It seems that neither the trial magistrate nor the appellate D magistrate is aware of the Magistrates Courts (Primary Courts) (Judgment of Court) Rules, Government Notice No. 2 of 1988. I would particularly draw their attention to Rule 3 thereof which puts an end to the practice of summing up to the assessors. The assessors are to be consulted for their opinions after the conclusion of the E evidence without preliminaries.

Appeal allowed.

Lugakingira, J .: The appellant brought action in the Primary F Court at Zanaki for compensation of 16,000/= alleging that the respondent’s cattle had destroyed her shamba of millet and potatoes.The claim was unsuccessful, the court holding that the evidence did not establish the identity of the offending animals. It reached that view after observing that neither the respondent nor his ten cell G leader was taken to the shamba to confirm the destruction and to satisfy themselves on the identity of the cattle. Additionally, the court criticized the evidence of the field officer in his estimate of the damage occasioned and said the evidence was vague. There was an appeal to the Di^irict Court of Musoma which was dismissed on H the same grounds, hence this second appeal.

There might be justification in the lower courts’ criticism of the field officer’s evidence but the rest of their remarks were outrageous having regard to the facts of the case. Apart from the appellant, there was evidence from PW2 Jeremiah Mwandika, the I village chairman, and PW3 Mussa Kello, a neighbour of the parties’.

376 TANZANIA LAW REPORTS [ 1992] T.L.R

A All three knew the respondent’s cattle; all three saw the destruction; all three drove the cattle to the respondent’s home. They called out the respondent but at first he ignored them. Finally he came out. As the appellant made to explain their mission he assaulted her so badly that she had to receive medical treatment. She informed me

B at the hearing of the appeal that she sustained a permanent incapacity as a result of the beating and that she was pursuing that matter separately following the respondent’s conviction for the assault. The respondent admitted the conviction. It is astonishing, to say the least, that it is this very man whom the lower courts expected

C the appellant to take to the shamba and blamed her for not doing so. It is equally amusing that the two courts would have preferred evidence from a ten cell leader but not the village chairman. Furthermore, neither the respondent nor the two courts below had any word of where the respondent sent the cattle delivered at his

D premises. Of course the respondent denied that any cattle were ever delivered at his home and in fact denied over seeing the appellant, PW2 or PW3 on the material day. His “evidence” was nothing but arrogance at its worst, and it is amusing how he carried the lower courts with him.

E The decision of the primary court was also not free fromcontradictions. Take the advice of the first assessor, Nyambiriti Wikama, for instance. He started off by saying:

Kwa maoni yangu na kufuatana na ushahidi uliotolewa F upande wa madai unaonyesha kuwa n g ’ombe wa tndaiwa

walikula shamba la m da i...,

but ended up saying:

G ... sioni kama kweli mifugoya tndaiwa ndiyo ilifanya uharibifu huo.

This problem could partly be accounted for by the summing up factor which found itself in this case. It seems that neither the trial

H magistrate (J.M. Waigama) nor the appellate magistrate (N.M. Kaserero) is aware of the Magistrate’s Courts (Primary Courts) Judgment of Court) Rules, Government Notice No.2 of 1988. I would particularly draw their attention to Rule 3 thereof which puts an end to the practice of summing up to the assessors. The assessors

I are to be consulted for their opinions after the conclusion of the evidence without any preliminaries. If I were convinced that the

JOHN MGINDI v. REPUBLIC (Mapigano, Ag. J.A.) 377

summing up in this case was solely or substantially responsible for A the decision reached, I would have felt compelled to quash the proceedings on the ground that the indulgence occasioned a failure of justice. I feel, however, that with or without the summing up, the trial court was under the spell of the respondent as shown by its prejudiced remarks following its visit to the shamba. I do not know how they B did not expect to find bush almost four months after the destruction complained of.

The field officer’s evidence was certainly vague. It did not particularise how he reached the figure of 16,000/=. But this did not absolve at the trial court from forming its own opinion and C making a reward it considered reasonable. It would be futile to refer this matter back to that court as the position on the ground must have changed even more drastically and also since the court cannot have got over its prejudices in the case. I will take the risk of adjudicating in the matter and reduce the claim by 6,000/= as an D adjustment for the field officer’s vagueness.

The appeal is accordingly allowed and the decisions of the lower courts are set aside. Judgment is entered for the appellant in the sum of 10,000/= with costs here and below.

EAppeal allowed.

JOHN MGINDI v. REPUBLIC [COURT OF APPEAL OF TANZANIA

(Makame and Kisanga, JJ.A. and Mapigano, Ag. J.A.)]

14 December, 1992 - ARUSHA G

Criminal law - Theft - Appellant not having exclusive access to stolen items - Whether grave suspicion against appellant can ground a conviction.

Evidence - Theft - Appellant not having exclusive access to stolen H items - Grave suspicion against appellant - Whether such suspicion can found a conviction.

The appellant was acquitted by the trial court of the offence of theft,On appeal to the High Court by the D.P.P. the decision of the trial Icourt was reversed and the appellant was convicted and sentenced

378 TANZANIA LAW REPORTS [1992] T.L.R

A accordingly. The appellant had one set of keys to the stolen items. On appeal to the Court of Appeal it was considered whether the evidence as a whole left no vestige of doubt as to the appellant's complicity.

B Held: (i) It was essential for the Court to consider the fact that the appellant did not have exclusive access to the stolen items which is almost always a material and critical factor in this type of cases;

(ii) while we agree that the grave suspicions that the appellant was the culprit or a party to the crime were not altogether unfounded,

C we consider that the evidence as a whole left a vestige of doubt as to his complicity.

Appeal allowed.

D M apigano, Ag. J.A ., M akam e and K isanga, JJ .A .: TheDirector of Public Prosecutions was dissatisfied with the acquittal of the appellant John Ngindi made by the district court of Moshi on a charge of breaking into a building and committing theft therein contrary to section 296( 1) of the Penal Code. On appeal to the High

E Court at Arusha the finding of the district court was reversed and the appellant was convicted of the offence and consequently sent to prison for a 5 - year term. The appellant came to us on appeal against the judgment of the High Court and we heard it at Arusha in September, 1992. We then announced that the appeal would be

F allowed and the conviction quashed, and we set aside the sentence and ordered the immediate discharge of the appellant from custody. We promised to give our reasons for the decision at a later date.

The evidence established that at the material time P.W.6 James M ichael Shao operated a public-house in the Moshi

G Municipality and had several barhands in his employment such as the appellant. P.W.l Stephen Joseph Kandi and P.W.4 Jasper Athumani. On 25/5/89 at night when the day’s business was coming to an end the appellant handed over the bar proceeds to P.W.l and the la tter locked the money into a cash-box

H and put the cash-box in a store inside the building and then left the prem ises w ith the key for the cash-box. It was adm itted that one set o f the keys for the store and the building was in the custody of the appellant, and that it was the duty of the appellant to keep the drinks that remained

I over back in to the store and to lock up the store and

JOHN MGINDI v. REPUBLIC (Mapigano, Ag. J.A.) 379

the building before he knocked off. It was further admitted by the A appellant that he left some of the unsold drinks at the counter, which we consider curious.

Came the following morning, and some of the drinks the appellant had left at the counter were missing. Likewise the money in the cash-box, and according to P.W.5 Paul, the cash-box had B been tampered with.

The appellant was a prime suspect but none of the stolen items was traced into his possession. P.W.4, a cook, testified very briefly that he had slept outside the public-house inside a motor vehicle and that he did not see any person coming to the building after the C closure of the business. We are of the view that P.W.4 should also have been a principal suspect in the crime. The point is that his evidence did not disclose why he stayed the night at the building, and we are surprised that he was not closely examined on that point.

The High Court found that there was no breaking anywhere D in the building and that the circumstances tied the appellant to the offence irresistibly. We have been unable to sustain these findings.

There was independent evidence from P.W.4 on which the court could properly find that there was a breaking of the store in which the cash-box was kept. In any case we think it was essential E for the Court to consider the fact that the appellant did not have exclusive access to the stolen items, which is almost always a material and critical factor in this type of cases. As indicated already, it was common ground that another set of keys to the building and the store was in the custody of another person. Accordingly, while F we agree that the grave suspicions that the appellant was the culprit or a party to the crime were not altogether unfounded, we consider that the evidence as a whole left a vestige of doubt as to his complicity.

It is for these reasons that we came to the conclusion that the G conviction should be quashed.

Appeal allowed.

380 TANZANIA LAW REPORTS [1992] T.L.R

A CHRISTOPHER MWAKABURA v. REPUBLIC[COURT OF APPEAL OF TANZANIA

(Mnzavas and Mfalila JJ.A. and Mapigano Ag. J.A.)]

17 December, 1992 - DAR ES SALAAMB

Statutory interpretation - Offence committed before a new law came into force - Whether offence punishable under the new law - S.49 Interpretation o f Laws arul General Clauses Act, 1972.

C On 14th September 1989 in the District Court of Ilala at Kivukoni. the appellant, Christopher Mwakabura was sentenced to 32 years’ imprisonment and 6 strokes on a conviction of robbery with violence c/s 285 and 286 of the Penal Code.

The offence was com m itted before the W ritten Laws D (Miscellaneous Amendments) Act, 1989, Act No. 10 of 1989, came

into operation. At the time of the commission of the offence the minimum sentence for the offence was 7 years’ imprisonment as it used to be provided in the Minimum Sentences Act, 1972. In terms of sentencing the power of subordinate courts was limited to 8 years’

E imprisonment in line with section 170(1) of the Criminal Procedure Act 1985.

On 26th May 1989, Act No. 10 of 1989 came into operation. Among other things, the Act amended section 5 of the Minimum Sentences Act 1972 by raising the minimum punishment for armed

F robbery to 30 years’ imprisonment; a punishment which was metted on the appellant by the Ilala District Court. The appellant appealed to the High Court which confirmed his condemnation under Act No. 10 of 1989. On further appeal;

G Held: (i) The appellant was, under section 49 of the Interpretation of Laws and General Clauses Act 1972, not liable to the penalty prescribed by Act No. 10 of 1989.

Appeal against conviction dismissed, sentence substituted.H

M apigano, Ag. J.A., M nzavas and Mfalila, JJ.A .: On 14/9/89 in the district court of Ilala at Kivukoni the appellant Christopher Mwakabura was sentenced to suffer imprisonment for 32 years and 6 strokes, consequent to his conviction for robbery

I with violence contrary to sections 285 and 286 of the Penal Code. The trial magistrate found that the appellant and another person

C. MWAKABURA v. REPUBLIC (Mapigano, Ag. J.A.) 381

had actually stolen a motor vehicle belonging to the Ministry of A Home Affairs on 19/5/88 and that the vehicle was taken at pistolpoint from the driver. And the magistrate proceeded to punish him in terms of the Minimum Sentences Act, 1972, as amended by the Written Laws (Miscellaneous Amendments) Act, 1989, to which we will refer hereafter as “Act No. 10 of 1989”. B

The appellant went to the High Court on appeal challenging the validity of the conviction and propriety of the sentence. The appeal went before Bahati, J. who upheld the conviction upon being satisfied that there was enough evidence to support it. With regard to the sentence, the judge had this to say: C

The appellant was sentenced to 32 years’ imprisonment. I am unable to see where the learned magistrate got the extra 2 years in view of the fact that the district court has got power to impose a sentence of only 30 years for such offence with or D without corporal punishment. I therefore find the sentence of 32 years to be illegal as it contravenes section 5 (bb) of the Minimum Sentences Act as amended by Act No. 10 of 1989 in that the minimum term of imprisonment for armed robbery is 30 years. The maximum is of course life imprisonment, but E then section 170 of the Criminal Procedure Act does not give the district court power to pass a sentence above 30 years. I will reduce the sentence to 30 years imprisonment.

It is evident that Bahati, J. decided the matter on the basis F that Act No. 10 of 1989 is applicable to the offences specified in that Act, regardless of whether such offences were committed before or after the Act came into operation, and as we shall have occasion to see later herein, the learned judge has firmly held to that view.

The appellant has brought a second appeal to us urging five G grounds. However there is only one ground among them that bears consideration and that is the fifth. The rest pertain to concurrent factual findings of the courts below and are thus misconceived as under the law we are, on such second appeal, obliged to confined ourselves to matters of law. H

The burden of the fifth ground is a technical one. Rephrased, it is this: The District Court had no power to award a jail sentence in excess of 8 years. That court went into error when it invoked the jurisdiction vested in it by Act No. 10 of 1989, since the offence was committed before that Act came into force. The authorities for I that contention are section 49 of the Interpretation of Laws and

382 TANZANIA LAW REPORTS [1992] T.L.R

A General Clauses Act. 1972, Article 13 (6) (c) of the Constitution of the United Republic, and the decision of this Court in Mashaka Shabani v. R., Criminal Appeal No. 85 of 1990 (unreported).

It is true the offence was committed before Act No. 10 of 1989 came into operation. It is also true that at the time of the

B commission of the offence the minimum sentence for the offence was 7 years’ imprisonment, vide section 5 (b) of the Minimum Sentences Act, 1972, and that the power of a subordinate court in relation thereto was limited to an award of a term of 8 years, vide section 170 (1) (a) of the Criminal Procedure Act, 1985.

C Act No. 10 of 1989 came into operation on 26/5/89. amongother things that Act amended section 5 of the Minimum Sentences Act. 1972, as well as the First Schedule to that Act. It added a new paragraph to section 5, i.e. (bb), by which the minimum punishment for armed robbery was raised to the long stretch of 30 years; and

D deleted paragraph 4 of the First Schedule which related to robbery.We turn to the authorities that the appellant has cited to us.

We have noticed that Mashaka Shabani v. R. was similar to the present case in all material particulars. The first appeal in that case also went before Bahati, J. who in his judgment considered the

E applicability of Act No. 10 of 1989 to armed robbery committed before the commencement of that Act, in the context of Article 13 (6) (c) of the Constitution. That Constitutional provision reads:

For the purposes of ensuring equality before the law, the state F shall make provisions:

No person shall be punished for any act which before its commission was not defined as such offence, and no penalty imposed for any criminal offence shall be Heavier than

G the penalty in force at the time the offence was committed.

The view taken by Bahati, J. was that the sentence of imprisonment for 30 years handed out by the trial court in that case was not offensive to the above provision, inasmuch as long before Act No.

H 10 of 1989 was enacted a competent court could pass a maximum sentence of life imprisonment for the offence. The judge went on to observe:

What has changed now after the enactment of Act No. 10 of I 1989 is not the sentence which could be passed by a competent

court for armed robbery, but that the subordinate court has

C. MWAKABURA v. REPUBLIC (Mapigano, Ag. J.A.) 383

been given power to pass sentence of 30 years for armed A robbery.

And he regarded that change as of no consequence.When the matter came to this Court on a second appeal we

differed with Bahati, J. and held: (a) that Act No. 10 of 1989 has B substantially changed the punishment for armed robbery, since the minimum has been raised drastically, and “the situation is not that a court may at its discretion impose a sentence of 30 years’ imprisonment but that a court must impose a minimum of 30 years” and (b) that there was nothing in the provisions of Act No. 10 of C 1989 which indicates that the appellant was not liable to the penalty prescribed at the time he committed the offence. We accepted the submission that the terms of section 49 of the Interpretation of Laws and General Clauses Act, 1972. debarred a court from applying Act No. 10 of 1989 to offences which were committed before that Act D came into force. The end-result was that we substituted the sentence with one of 8 years.

Section 49 of the Interpretation of Laws and General Clauses Act provides: •

EWhere an act constitutes an offence, and the penalty for such offence is amended between the time of the commission of such offence and the conviction therefore, the offender shall, unless the contrary intention appears, be liable to the penalty prescribed at the time of the commission of such offence. F

It is plain that this section is couched in qualified terms: the prohibition of retroaction of penalities is conditional to a contrary intention being absent. In relation to this provision we have paid due attention to section 4 of the Minimum Sentences Act, which Greads:

Where any person is, after the date on which this Act comes into operation, convicted by a court of a scheduled offence, whether such offence was committed before or after such date, Hthe court shall sentence such person to a term of imprisonment which shall not be less than ...

Then the section goes on to lay down the minimum penalties of imprisonment for the scheduled offences. I

384 TANZANIA LAW REPORTS [ 1992] T.L.R

A This section strikes us as probably the most singular featureof the Act. It is hardly deniable, however, that the section stipulates the sort of “contrary intention” envisaged by section 49 of the Interpretation of Laws and General Clauses Act, and has, therefore, the effect of making the minimum penalty prescribed by any future

B enactm ent am ending the M inim um Sentences Act apply retrospectively to any of the offences specified in the three Schedules thereto, regard being had to the rule restated in section 17 of the Interpretation of Laws and General Clauses Act that an amending Act should be construed as one with the amended Act.

C Just the same, we are of the considered and firm view thatsection 4 above does not make Act No. 10 of 1989 operate retrospectively in relation to robbery. The reason is to be found in Act No. 10 of 1989 itself. As we have already pointed out, this Act amended the First Schedule by deleting the offence of robbery. We

D think that this deletion provides a distinct basis for attributing to the legilature an intention to display the provisions of section 4 to the offence, given the meaning attaching to the term “scheduled offence” by section 3 of the Minimum Sentence Act, namely “an offence specified in any of the schedules to the act”. The interesting

E if odd aspect of all this is that robbery is now set apart from the other offences within the ambit of the Act, in the sense that it is the only unscheduled offence and wherefore the only one that escapes the grim grasp of section 4.

We held, therefore, that the appellant was, under section 49 F of the Interpretation of Laws and General Clauses Act, not liable to

the penalty prescribed by Act No. 10 of 1989. With that it becomes unnecessary for us to advert to Article 13 (6) (c) of the Constitution, and this precludes the more serious exercise of looking into the constitutionality of section 4 of the Minimum Sentences Act and

G our jurisdiction to do so.Accordingly, we dismiss the appeal against the conviction

and we substitute a sentence of seven years’ imprisonment which is to run from the date of the trial judgment.

H Appeal dismissed.

MILLEN RICHARD v. AYUB B. HOZA (Omar, J.A.) 385

MILLEN RICHARD v. AYUB BAKARI HOZA A[COURT OF APPEAL OF TANZANIA

(Kisanga, Omar and Mnzavas, JJ.A)]

18 December, 1992 . DAR ES SALAAMB

Land Law - Disposition o f land - Failure to comply with Regulation 3(1) o f the Land Regulations, 1948 - Effect.

Contract - Delay in payment o f balance ofprice - Repeated demand letters - Whether right to be paid as per contract thereby waived- Whether breach o f contract - Whether right to rescind contract C accrues.

This case involved the disposition of land. Part of the price was paid. The balance of the price was not paid within the contract time. Consequently reminder letters were sent in which dates of D payment were extended. The appellate court considered the legal effect of the reminder letters on the contract and also the effect of failure to get statutory consent from the Commissioner for Lands as required by the Land Regulations, 1948.

EHeld: (i) Failure to pay the balance of the price within the two months stipulated in the agreement constituted breach;

(ii) extension of time through the letters of the appellant tothe respondent did not constitute waiver and as such did not alter the terms of the agreement; F

(iii) the contract was inoperative because the disposition lacked consent of the Commissioner for Lands. The agreement was, therefore, unenforceable.

Appeal allowed. G

Om ar, Kisanga and Mnzavas, JJ.A .: The appellant Millen Richard entered into a sale agreement with the respondent Ayub Bakari Hoza whereby the semi detached house erected on plot No.239 Block “B” in Sinze Area belonging to the appellant would pass H to the respondent as the latter’s property. Among the terms of agreement was the one concerning the sale price of Shs.550,000/= to be paid by the respondent. The parties agreed that first payment of Shs.400,000/= would be paid on the date of the signing of the agreement on 9/7/86, and it was paid by the purchaser, Ayub Hoza, I on that date. The balance of Shs. 150,000/= was mutually agreed to

386 TANZANIA-LAW REPORTS [1992| T.L.R

A be paid after a period of two months, that is on 9/9/86, this was not paid, till 1991, even after repeated letters of demand and the filing of the suit in the High Court. The High Court (Rubama. J.) did not rescind the contract as argued by the appellant because it was considered that the letters qf demand by the appellant altered the

B terms of agreement by extending the time for payment of the balance of 150,000/=. In one letter dated 17/6/87 the respondent was givett a period of 10 days in which to pay this balance. In a subsequent letter the respondent was given four more days from the date of this other letter in which to pay. Then there was the last letter by the

C appellant’s advocate to the respondent dated 11/2/88 informing him that the agreement had been rescinded and the down payment of Shs. 400,000/= was ready for collection by the respondent.

At the end of the trial in the High Court the defendant was ordered to pay Shs. 150,000/= and he did pay to the Court on 26/3/

D 92. The trial judge forgot to award general damages, which the Court felt it should be paid. All in all what we consider crucial in this matter is the consent by Commissioner for Lands to the transfer of this building to the respondent. This requirement is contained in Land regulations of 1948, regulation 3(1). It is also in Clause 7 of

E the sale agreement which states that lack of consent to the disposition Clause 2 (b) vitiates the agreement which stipulates the two months for payment of the remainder of the Sale Price, also has been contravened. Nor do we think that the extension of time through the letters of the appeljant to the respondent in anyway alters the

F terms of agreement. Extension of time was merely to facilitate payment. The conduct of the respondent in this deal with tjie appellant leaves much to be desired. The respondent himself admitted in this Court thus “I was not replying to her letters (of demand) nor did I engage any advocate because I had done no wrong

G (in connection with this contract)” .We have reached the following decision, (a) The contract was in­

operative because the disposition lacked consent of the Commissioner for Lands. The agreement was therefore unenforceable. The breaking of Clause 2 (b) of the Sale Agreement also is a factor which justifies

H rescission of the agreement.We therefore allow the appeal with costs. We also make the

following orders, (a) general damages at the bank rate of 30% on 150,000/= for six years i.e. 1986 to 1992 amounting to Shs.270,000/ = to be paid to the appellant. Costs of improvements to the house

I effected by the respondent to be paid to the respondent by the appellant. High Court to appoint a Valuer agreeable to both parties

MINISTRY OF DEFENCE v. VALAMBHIA (Kisanga, J.A.) 387

who would assess costs of improvements of the house in dispute A and to do so any time between 15/1/93 and 15/2/93. (b) Respondent to give vacant possession of the premises to the appellant within the period of three months from 15th February, 1993. (c) The Appellant to return 40(),(K)0/= to the respondent within one month from the date of judgment, (d) Shs. 150,000/= received by the High B Court to be returned to the respondent.

Appeal allowed.

THE PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE v. DURAM P. VALAMBHIA

[COURT OF APPEAL OF TANZANIA (Kisanga, Omar and Mnzavas, JJ.A.)] D

18 December, 1992 - DAR ES SALAAM

Civil Practice and Procedure - Court o f Appeal Rules - Letter to Registrar applying fo r copy o f proceedings - Copy o f letter not E sensed on respondent - Whether applicant is duty bound to serve copy o f letter to Registrar to respondents - Whether there is a time limit within which to serve copy o f the letter - Rule 83 (i) o f the Court o f Appeal Rules construed.

Civil Practice and Procedure - Court o f Appeal Rules - Notice o f F motion does not specify relief sought - Accompanying affidavit specifies relief sought - Oral address specifies relief sought - Whether the affidavit and/or the oral address specifying relief sought can take care o f the inadequacy in notice o f motion.

Civil Practice and Procedure - Court o f Appeal Rules - Application G fo r extension o f time to serve respondents with copy o f letter to Registrar applying fo r copy o f proceedings not mentioned in notice o f motion - Relief sought specified in affidavit and m entioned when orally addressing the Court - Whether application fo r extension o f time properly before the court. H

-Ciyil Practice and Procedure - Court o f Appeal Rules - Payment o f court fees and security fo r costs by Government - Government expressly exempted from paying court fees in respect o f criminal applications and criminal appeals before the Court o f Appeal - Rules are silent on payment o f court fees and security fo r costs I by Government in respect o f civil matters before Court o f Appeal

388 TANZANIA LAW REPORTS f 1992) T.L.R

A - Whether Government to pay court fees and security fo r costs inrespect o f civil matters before the Court o f Appeal.

Civil Practice and Procedure - Court o f Appeal Rules - Long established tradition that Government does not pay court fees and security fo r costs - Whether such tradition can be a basis

B fo r exempting Government from paying court fees and securityfo r costs in respect o f civil matters before the Court o f Appeal.

Civil Practice and Procedure - Court o f Appeal Rules - Application fo r extension o f time to pay court fees and security fo r costs - Illegality o f decision being challenged - Whether sufficient reason

C to allow the application.

Mr. D.P. Valambhia won a case in the High Court which was filed by M/s Transport Equipment Ltd. (TEL). In awarding relief to Mr. Valam bhia the High Court made certain orders against the

D Government of Tanzania (The Ministry of Defence and National Service) which was creditor to TEL. The High Court ordered the Principal Secretary Ministry of Defence and National Service to comply with a garnishee order which, inter alia, required the Government to pay the sum of approximately US $ 39,823,543.25

E to Mr. Valambhia’s overseas bank account and that such payment was to be effected within three weeks of the order.

The appellant sought to challenge the order of the High Court on the grounds, among others, that no opportunity was afforded to the Government to be heard and that there was some illegality

F involved in respect of the order.At the hearing of the appeal, counsel for the respondent took

a preliminary objection to the appeal based on non-compliance with rules 76,77 and 83 of the Court of Appeal Rules. Counsel contended that the appeal was time-barred. It was argued that the Rules were

G not complied with in that a copy of the letter to the Registrar applying for the proceedings was not served on the respondent. It was further pointed out that a notice of motion by the appellant before a single Judge of the Court of Appeal did not specify the relief sought, i.e, extension of time within which to serve the respondents with a copy

H of the letter to the Registrar. A number of other aspects wereconsidered including whether or not the Government has to pay court fees and security for costs in respect of civil matters before the court of Appeal and if so whether there was sufficient reason to extend time to allow the Government pay court fees and security

I for costs.

MINISTRY OF DEFENCE v.VALAMBHIA (Kisanga, J.A.) 389

Held: (i) There must be a time limit within which the appellant is A to serve the respondent with a copy of the letter to the Registrar.We think that the period of 30 days within which the appellant is required under rule 83( I ) to apply to the Registrar for a copy of the proceedings should be construed to be co-extensive with the period within which the appellant has to send a copy of that letter to the B respondent;

(ii) a notice of motion and the accompanying affidavit are in the very nature of things complementary to each other, and it would be wrong and indeed unrealistic to look at them in isolation. The proper thing to do is to look at both of them and if on the basis of C that it is clear what relief is being sought then the Court should proceed to consider and determine the matter, regard being had to the objection, if any, raised by the opposite party;

(iii) an oral address can take care of the inadequacy in the notice of motion by referring specifically to the relief being sought; D

(iv) the appellant’s application for extension of time to servethe respondent with a copy of the letter to the Registrar applying for a copy of the proceedings was both before the single judge and also before the full court upon the reference from the decision of the single judge; E

(v) the silence in the Court of Appeal Rules on whether or not Government has to pay court fees in respect of civil matters before the Court of Appeal can only be construed to mean that the framers of the Rules intended that the Government should pay court fees in civil cases. Likewise the Government is obliged to pay security for F costs there being no express or implied exemption;

(vi) since the long established practice that the Government does not pay court fees is not sanctioned in law it can never acquire legal legitimacy however long it might be;

(vii) where the point of law at issue is the illegality or otherwise G of the decision being challenged, that is a point of law of sufficient importance to constitute a sufficient reason within rule 8 of the Courtof Appeal Rules to overlook non-compliance with the requirements of the Rules and to enlarge the time for such compliance. The same applies here. H

Preliminary objection overruled.

Mrema, for the appellant.Maira and Marando, for the respondent. *

388 TANZANIALAW REPORTS [1992] T.L.R

A - Whether Government to pay court fees and security fo r costs in respect o f civil matters before the Court o f Appeal.

Civil Practice and Procedure - Court o f Appeal Rules - Long established tradition that Government does not pay court fees and security fo r costs - Whether such tradition can be a basis

B fo r exempting Government from paying court fees and securityfo r costs in respect o f civil matters before the Court o f Appeal.

Civil Practice and Procedure - Court o f Appeal Rules - Application fo r extension o f time to pay court fees and security fo r costs - Illegality o f decision being challenged - Whether sufficient reason

C to allow the application.

Mr. D.P. Valambhia won a case in the High Court which was filed by M/s Transport Equipment Ltd. (TEL). In awarding relief to Mr. Valambhia the High Court made certain orders against the

D Government of Tanzania (The Ministry of Defence and National Service) which was creditor to TEL. The High Court ordered the Principal Secretary Ministry of Defence and National Service to comply with a garnishee order which, inter alia , required the Government to pay the sum of approximately US $ 39,823.543.25

E to Mr. Valambhia’s overseas bank account and that such payment was to be effected within three weeks of the order.

The appellant sought to challenge the order of the High Court on the grounds, among others, that no opportunity was afforded to the Government to be heard and that there was some illegality

F involved in respect of the order.At the hearing of the appeal, counsel for the respondent took

a preliminary objection to the appeal based on non-compliance with rules 76,77 and 83 of the Court of Appeal Rules. Counsel contended that the appeal was time-barred. It was argued that the Rules were

G not compl ied with in that a copy of the letter to the Registrar applying for the proceedings was not served on the respondent. It was further pointed out that a notice of motion by the appellant before a single Judge of the Court of Appeal did not specify the relief sought, i.e, extension of time within which to serve the respondents with a copy

H of the letter to the Registrar. A number of other aspects were considered including whether or not the Government has to pay court fees and security for costs in respect of civil matters before the court of Appeal and if so whether there was sufficient reason to extend time to allow the Government pay court fees and security

I for costs.

MINISTRY OF DEFENCE v.VALAMBHIA (Kisanga, J.A.) 389

Held: (i) There must be a time limit within which the appellant is A to serve the respondent with a copy of the letter to the Registrar.We think that the period of 30 days within which the appellant is required under rule 83( 1) to apply to the Registrar for a copy of the proceedings should be construed to be co-extensive with the period within which the appellant has to send a copy of that letter to the B respondent;

(ii) a notice of motion and the accompanying affidavit are in the very nature of things complementary to each other, and it would be wrong and indeed unrealistic to look at them in isolation. The proper thing to do is to look at both of them and if on the basis of C that it is clear what relief is being sought then the Court should proceed to consider and determine the matter, regard being had to the objection, if any, raised by the opposite party;

(iii) an oral address can take care of the inadequacy in the notice of motion by referring specifically to the relief being sought; D

(iv) the appellant’s application for extension of time to servethe respondent with a copy of the letter to the Registrar applying for a copy of the proceedings was both before the single judge and also before the full court upon the reference from the decision of the single judge; E

(v) the silence in the Court of Appeal Rules on whether or not Government has to pay court fees in respect of civil matters before the Court of Appeal can only be construed to mean that the framers of the Rules intended that the Government should pay court fees in civil cases. Likewise the Government is obliged to pay security for F costs there being no express or implied exemption;

(vi) since the long established practice that the Government does not pay court fees is not sanctioned in law it can never acquire legal legitimacy however long it might be;

(vii) where the point of law at issue is the illegality or otherwise G of the decision being challenged, that is a point of law of sufficient importance to constitute a sufficient reason within rule 8 of the Courtof Appeal Rules to overlook non-compliance with the requirements of the Rules and to enlarge the time for such compliance. The same applies here. H

Preliminary objection overruled.

Mrema, for the appellant.Maira and Marando, for the respondent. *

390 TANZANIA LAW REPORTS [1992] T.L.R

A Kisanga, O m ar and Mnzavas, JJ.A .: In Dares Salaam HighCourt Civil Case No. 210 of 1989 the plaintiff, Messrs. Transport Equipment Ltd. (TEL) filed a suit against the defendnat Mr. D.P. Valambhia. In answer to the plaint Mr. Valambhia filed a written statement of defence in which he denied the claim and, in addition,

B raised a counter-claim against TEL. TEL did not file a reply to the written statement of defence, nor a written statement of defence to the counter-claim. Furthermore, on the date fixed for hearing, the plaintiff s side could not adduce evidence in support of its case either. Whereupon the High Court (Rubama, J.) upon application

C by Mr. Valambhia’s Counsel, gave judgment for Mr. Valambhia, dismissing the p la in tiffs claim and allowing the defendant’s counter-claim. In allowing Mr. Valambhia’s counter-claim against TEL, the learned judge also ordered the Government of Tanzania to pay to Mr. Valambhia and his family, certain monies owing from

D the Government of Tanzania to TEL. The monies to be thus paid to Mr. Valambhia were part of the proceeds of a contract between the said Government of Tanzania and TEL. The Government was further ordered to pay these monies to Mr. Valambhia’s designated overseas bank account.

E Upon application by Mr. Valambhia for execution of thejudgment, the High Court (Msumi, J.) granted a garnishee order requiring, inter alia, the Government of Tanzania to pay the sum of approximately US Dollars 39,823,543.25 to Mr. Valambhia’s overseas bank account. Upon further application by Mr. Valambhia

F the High Court (Rubama, J.) ordered the Principal Secretary, Ministry of Defence and National Service to comply with the garnishee order within three weeks. That is to say, the High Court ordered the Principal Secretary to comply with the garnishee order which, inter alia, required the Government to pay the sum of

G approximately US Dollars 39,823,543.25 to Mr. Valambia’s overseas bank account, and that he should effect such payment within three weeks of the order. It is from that order that this appeal now arises.

At the hearing of the appeal the appellant, the Principal Secretary, H Ministry of Defence and National Service, was represented by Mr. F.

Mrema. Director, Civil and International Department in the Attomey- General’s Chambers assisted by Mr. S. Salula, State Attorney. Mr. H. Maira and Mr. M. Marando, learned advocates, appeared for the respondent, Mr. Valambhia.

I Counsel for the respondent took a preliminary objection tothe appeal which objection is based on non-compliance with rules

MINISTRY OF DEFENCE v.VALAMBHIA (Kisanga, J.A.) 391

76, 77 and 83 of the Court of Appeal Rules. Mr. Maira submitted A in effect that the appeal was time barred in that it was not instituted within 60 days of the date of the notice of appeal as required by rule 83 (1) of the Rules. In order to appreciate fully this submission by Counsel, it is necessary to give a brief account of the background to this matter. B

The ruling being appealed from was delivered on 10.5.91.The notice of appeal was given in time on 17.5.91, and the letter to the Registrar applying for a copy of the proceedings was also sent in time on 11.5.91. However, copies of the said notice of appeal and of that said letter to the Registrar were not sent to the respondent. C and after the prescribed time for serving these documents on him had expired, the respondent applied to a single judge of this Court to strike out the appellant’s notice of appeal on the grounds of failure to serve copies of these two documents on him.

In a counter-application, however, the appellant asked for D extension of time in order to serve the said documents on the respondent. The single judge allowed the application to strike out the notice of appeal, and rejected the counter-application for extension of time. Upon a reference from the decision of the single judge, however, the notice of appeal was restored and the appellant E was granted extension of time during which to serve the documents on the respondent, which he did.

According to Mr. Maira, the appellant so far, has only sought and obtained extension of time to serve on the respondent a copy of the notice of appeal. No extension of time has been obtained or Fsought by the appellant to serve the respondent with a copy of the letter to the Registrar applying for a copy of the proceedings. In these circumstances therefore. Counsel contended that although the Registrar did issue a certificate in terms of rule 83 (1) of the Rules, that certificate was issued in error, and the appellant was not entitled to Grely on the proviso thereto to exclude the time which was necessary for the preparation and supply of a copy of the proceedings to him.If the Registrar’s certificate is excluded. Counsel went on, the institution of the appeal is long time barred because it was not instituted within 60 days of the date of the notice of appeal, and the appellant H has not taken the necessary steps to avail himself of the protection under the proviso to rule 83 (1).

Mr. Mrema’s reply to this submission was twofold. First, he submitted that there was no fixed period within which he was bound to serve the respondent with a copy of the letter to the Registrar. I Contrasting this position with that under rule 77 of the rules whereby

392 TANZANIA LAW REPORTSA

(1992] T.L.R

A the appellant is required to serve the respondent with a copy of the notice of appeal within seven days of the date of the notice of appeal, the learned Counsel submitted that there is no comparable rule requiring the appellant to serve a copy of the letter to the Registrar on the respondent within specified time. In his view, the time to

B serve the respondent with this document was open and he could serve it on him at any time.

In the alternative Mr. Mrema contended that if there was any fixed time for such service, then he did apply for extension of such time and that his application, though rejected by the single judge of

C this Court, was granted by the full Court upon a reference from the decision of the single judge.

In response to the first limb of Mr. Mrema’s submission, Mr. Maira submitted that upon construction of rule 83 (2) of the Rules, a copy of the letter to the Registrar applying for copy of proceedings

D must be served on the respondent within 30 days of the date of the decision being appealed from. The relevant part of Rule 83 of the Court of Appeal Rules provides that:

H

83 - (1) subject to the provisions of Rule 122, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged -

(a) a memorandum of appeal, in quintuplicate;(b) the record of appeal, in quintuplicate;(c) the prescribed fee; and(d) security for the costs of the appeal,

save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery of that copy to the appellant.

(2) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and a copy of it was sent to the respondent.

I We think that Mr. Mrema’s view is untenable when he says that there is no specified period within which to serve the respondent

MINISTRY OF DEFENCE v.VALAMBHIA (Kisanga, J.A.) 393

with a copy of the letter to the Registrar. To uphold this submission A would make it difficult or impossible to determine when a respondent to an intended appeal can seek remedy against the appellant for non-compliance with this requirement. Indeed it might render this requirement meaningless in so far as the respondent is concerned.For instance, where the respondent seeks to have the notice of appeal B struck out for failure by the appellant to institute the appeal within 60 days of the date of the notice of appeal, the appellant can always get away with it by saying that he has not received a copy of the proceedings from the Registrar even though the letter to the Registrar applying for such proceedings has not been sent to the respondent, C and he could go on relying on such a defence indefinitely. In our view, that cannot have been the aim of the proviso to rule 83 (1). There must be a time limit within which the appellant is to serve the respondent with a copy of the letter to the Registrar. We think that the period of 30 days within which the appellant is required D under rule 83 (1) to apply to the Registrar for a copy of the proceedings should be construed to be co-extensive with the period within which the appellant has to send a copy of that letter to the respondent. That serves to ascertain the period after which the respondent to an intended appeal can apply to have the notice of E appeal struck out for failure to institute the appeal. What is, he can do so after 60 days of the notice of appeal, and the appellant can raise the defence that he has not yet received such proceedings, only if he had sent to the respondent a copy of his letter to the Registrar applying for those proceedings, and that a copy of that F letter was so sent within 30 days of the date of the decision being appealed from.

Having said that, it is necessary to point out here, however, that Mr. Maira cannot be right when he submitted that the Registrar issued to the present appellant the certificate under rule 83 (1) in G error because the appellant had not served the respondent with a copy of the letter to the Registrar. It is undisputed that the appellant’s application to the Registrar was made within 30 days of the date of the decision being appealed from as required by rule 83 (1). Therefore, the Registrar was perfectly entitled to issue the certificate H as he did, and we could find nothing wrong with that. The issue whether or not the appellant can rely on the certificate, as he was trying to do in this case, is quite a different matter. As amply demonstrated above that issue depends on whether a copy of the appellant’s letter to the Registrar applying for a copy of the I

394 TANZANIA LAW REPORTS [1992] T.L.R

A proceedings was sent to the respondent within 30 days of the date of the decision being appealed from.

In answer to Mr. Mrema’s alternative submission that the application for extension of time to serve the document in question on the respondent was before the single judge and that it was part

B of the subject matter of the reference from the single judge to the full Court, Mr. Maira strongly contended that such application was neither before the single judge nor before the full Court.

The record shows that the matter was brought before the single judge in Civil Application No. 18 of 1991 by a notice of motion the

C relevant part of which reads:

NOTICE OF MOTION

(Under Rule 8 and 77 (i) of the Tanzania Court of Appeal D Rules 1979)

TAKE NOTICE that on th e .................day o f ....... 1991 at9.00 o’clock in the morning or soon thereafter as he can be heard the Applicant will move the court for an order that an

E Extension of time be granted to enable the intended Appellantserve copies of the Notice of Appeal on the Respondent.

This Application will be supported by the Affidavit of Felix C. Mrema sworn on the 28th day of May, 1991.

FIn the accompanying affidavit of Mr. Mrema it is disclosed in paragraphs 5 and 6 that the appellant’s Counsel had instructed his junior staff to serve copies of the notice of appeal and of the application for a copy of proceedings in this matter on the respondent

G through his advocates, but that such instructions were never carried out. And in paragraph 9 the deponent says:

9. THAT I pray in the interest of Justice that this appliction for an Extension of time to serve the Respondents with a copy

H of the Notice of Appeal and a copy of the Application for a certified Copy of the order. Ruling and Proceedings in the High Court Civil Case No. 210 of 1989 be granted.

Mr. Maira contended that there was no application for extension of I time to serve the respondent with a copy of the letter to the Registrar

because the notice of motion makes no reference to such application;

MINISTRY OF DEFENCE v.VALAMBHIA (Kisanga, J.A.) 395

it refers only to the application for extension of time to serve the A respondent with a copy of the notice of appeal. Conceding that Mr. Mrema’s affidavit makes it plain that the appellant was applying for extension of time to serve a copy of the said letter on the respondent, learned Counsel strongly maintained that that was immaterial. In his view, the relief sought must be set out in the B notice of motion, while the affidavit merely provides the evidence in support o f the application. Thus, he concluded, since the application for extension of time to serve copy of the letter to the Registrar on the respondent was not set out or averred in the notice of motion, such application was not before the single judge in Civil CApplication No. 18 of 1991, and therefore any reference from the decision of the single judge to the full Court in this application cannot have involved that issue.

We agree with Mr. Maira that a notice of motion should make reference to the relief which it is proposed to ask the Court to grant. D Mr. Mrema’s notice of motion in Civil Application No. 18 of 1991 complied with this requirement only as regards the application for extension of time to serve the respondent with a copy of the notice of appeal. It does so by citing rules 8 and 77 (1) of the Rules and by mentioning specifically the relief which it is proposed to apply for. EAdmittedfy, however, this was not quite the case as regards the copy of the letter to the Registrar. The notice of motion cites rule 8 which relates to extension of time but without indicating the purpose for which extension of time would be sought. The question now is whether this omission was fatal. Mr. Maira strenuously contended F that it was fatal notwithstanding that the accompanying affidavit made it clear that the appellant was seeking that relief. Mr. Maira. however did not refer us to any authority for this proposition. We think that in a situation like this one it would not be right to look at either the notice of motion or the accompanying affidavit in isolation. G A notice of motion and the accompanying affidavit are in the very nature of things complementary to each other, and it would be wrong and indeed unrealistic to look at them in isolation. The proper thing to do is to look at both of them and if on the basis of that it is clear what relief is being sought then the Court should proceed to consider H and determine the matter, regard being had to the objection, if any, raised by the opposite party.

With that approach in mind then it was open to the single judge in the present case to do either of the two things: He might have required the appellant to amend the notice of motion so as to I include reference to the proposed relief, i.e. extension of time to

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A serve the respondent with a copy of the letter to the Registrar, and thereby bring it in line with the contents of paragraphs 5 ,6 and 9 of the accompanying affidavit alluded to earlier. We should add that if the respondent’s Counsel had noticed this inconsistency between the notice of motion and the accompanying affidavit, he had a duty

B as an officer of the Court to point it out so that the Court might require the appellant to effect the desired amendment.

Altenatively the judge could consider the notice of motion and the accompanying affidavit, in the light of any opposition by the other party, and proceed to determine the application. We think

C that this is exactly what the learned single judge did. and we held that view for the following reasons:- First, upon reading through the notice of motion together with paragraphs 5, 6 and 9 of thje accompanying affidavit above cited, one can be left in no doubt whatsoever that the appellant was seeking extension of time to serve

D the respondent with not only a copy of the notice of appeal but also with a copy of the letter to the Registrar applying for a copy of proceedings. For, the notice of motion cites rule 8 of the Rules, which deals with extension of time fixed for the doing of various things under the Rules, and the affidavit specifically requests for extension

E of time to serve on the respondent a copy of the letter to the Registrar. The two documents read together make it abundantly clear what relief the appellant was seeking.

Secondly, in granting the respondent’s application to strike out the appellant’s notice of appeal, the learned single judge specifically

F referred to the appellant’s application for extension of time to serve on the respondent a copy of the letter to the Registrar. The relevant part of the Ruling of the learned single judge reads:

Mr. Valambhia seeks to have the notice of appeal lodged by G Mr. Kejo struck out on the ground that Mr. Kejo has failed to

take some essential steps in the proceedings i.e. that he has not served a copy of the notice of appeal and a copy of the letter applying for a copy of the record of the proceedings in the High Court on him. And in Civil application No. 18 of

H 1991, filed on 29/5/91, Mr. Kejo, through, the AttorneyGeneral, admits that he has so failed. But Mr. Mrema, a Principal State Attorney in the Attorney General’s Chambers, contends on his behalf that the failure is excusable and applies, under Rule 8 of the Court of Appeal Rules. 1979, for extension

I of time to effect the service, which application is stronglyopposed by Mr. Valambhia.

MINISTRY OF DEFENCE v. VALAMBHIA (Kisanga, J.A.) 397

Mr. Mrema added that in his oral address before the single judge he A also made it clear that he was seeking extension of time to serve the respondent with a copy of the letter to the Registrar, and this is been out by the learned single judge when in the above extract taken from his Ruling he said:

BBut Mr. Mrema, a Principal State Attorney in the Attorney General’s Chambers contends on his behalf that the failure is excusable and applies, under rule 8 of the Court of Appeal Rules, 1979 for extension of time to effect the service, which application is strongly opposed by Mr. Valambhia. C

In the case of Osongo and Another v. R. [1972J E.A. 170 a notice of motion was filed in the Court of Appeal for Eastern Africa for extension of time to file notice of appeal. Before this was heard, an application for the same relief was made in the High Court but was D dismissed. Like in our own set up today both the High Court and the then Court of Appeal had concurrent jurisdiction over the matter but the applicant must go to the High Court first. When the motion came up for hearing in the Court of Appeal the question was whether the application was incompetent because it had been filed there E before the application to the High Court. The Court held:

We think that a motion is an oral application and therefore that it is made at the time when the applicant addresses the Court or judge, not when the notice of motion is filed. F

That decision can be taken to support the view that Mr. Mrema’s oral address took care of the inadequacy that was in his notice of motion by referring specifically to the relief being sought. Otherwise the decision is equally consistent with the broader view we have G taken that both the notice of motion and the accompanying affidavit have to be taken together in considering and determining the application.

In the light of all this therefore, we can find no merit in Mr. Maira’s contention that the appellant’s application for extension of H time to serve the respondent with a copy of the letter to the Registrar was never before the single judge. The pleadings and the Ruling thereon make it plain that that appliction was before the single judge who specifically considered it but rejected it.

Equally devoid of merit is Mr. Maira’s assertion that likewise Ithe matter was never before the full Court which considered the

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A reference from the single judge. Indeed in urging that point Mr. Maira had strongly maintained that although the full Court granted the extension of time to serve the respondent with a copy of the letter to the Registrar, there was no request for such relief and that the full Court simply went out of its way to grant a relief that was

B never asked for. The learned Counsel claimed that what was done here was akin to what was done by the High Court and strongly criticized by this Court in the case of The Attorney General v. W. K. Butambala Criminal Appeal No. 37 of 1991 (Unreported).

There can hardly be any substance in Mr. Maira’s allegations. C The following extract which is taken from the Ruling of the full

Court upon reference from the single judge would serve to put the matter beyond all doubt:

This is a reference arising from the ruling of a single judge of D this Court granting an application to strike out a notice of

appeal for failure to take essential steps in the proceedings, and at the same time refusing a counter application for extension of time to take such essential steps.

E It was common ground that the Principal Secretary Ministryof Defence and National service, failed to serve on Mr. D. P. Valambhia a copy of his notice of appeal and a copy of his appliction to the Registrar, High Court, for copy of proceedings in respect of an intended appeal against the ruling of the High

F Court requiring him to comply with a garnishee order of that Court within three weeks.

And after considering the merits of the application the Court allowed the reference in the following terms:

GIn the result the reference is allowed. The notice of appeal is restored, and the Principal Secretary Ministry of Defence and National Service is to serve the opposite party with copies of the documents in question within four days of his receipt of

H this ruling.

It seems clear from these quotations that the full Court upon a reference from the single judge dealt with, inter alia, the appellant’s application for extension of time to serve the respondent with a

1 copy of the letter to the Registrar and, overturning the single judge, duly granted it. Mr. Maira’s claim that this Court, upon a reference

MINISTRY OF DEFENCE v.VALAMBHIA (Kisanga. J.A.) 399

from the single judge granted the appellant an extension of time A gratuitously was gravely misconceived and wholly unjustified. For, to say the least, Mr. Mrema having been aggrieved by the decision of the single judge, one would naturally expect him on reference to ask the full Court to reverse the refusal of his application by the single judge and to proceed to grant him extension of time to serve B on the respondent not only a copy of the notice of appeal but also a copy of the letter to the Registrar. In other words, knowing that he was specifically being charged with failure to serve the two documents on the respondent, it is inconceivable that he would have asked the full Court for extension of time to serve on the respondent C only one document and not both of them. His request for extension of time was in respect of both documents, and the full Court granted the request accordingly.

To sum up on this point, therefore, we are satisfied that the appellant’s application for extension of time to serve the respondent D with a copy of the letter to the Registrar applying for a copy of the proceedings was both before the single judge and also before the full Court upon the reference from the decision of the single judge.

The other ground of the preliminary objection, also based on rule 83 ( I ), turned on non-payment of Court fees and security for E costs of the appeal by the appellant. It was conceded that none of these payments had been made, and so Mr. Maira charged that there was no excuse or justification for such non-payment. He stated that the Government was exempted from paying Court fees in specific situations. For instance, under rule 10 of the Court Fees F Rules 1964 G.Ns. 308 and 411 the Government is exempted from paying Court fees in Civil and Criminal matters in the lower Courts, while under rule 112(b) of the Court of Appeal Rules the Government is expressly exempted from paying Court fees in respect of any criminal application or criminal appeal in the Court of Appeal. The G Court of Appeal Rules, however, are silent on the payment of Court fees by the Government in civil matters. Mr. Maira strongly submitted that the necessary conclusion to be drawn is that the Government is not exempted from paying court fees or security for costs in civil matters in the Court of Appeal. And since the H Government has not made these payments, and has not applied for extension of time to do so, then the appeal is in terms of rule 84 (a) deemed to be withdrawn.

As stated earlier, it was conceded for the appellant that no payment of fees or security for costs had been made. Mr. Mrema I conceded further that he was unable to cite any legal provision which

400 TANZANIA LAW REPORTS [1992] T.L.R

A exempted the Government from such payments. We should add that we too have not succeeded to find one so far. But Mr. Mrema contended that there has been established in this country a long tradition now whereby the Government has not been required to pay court fees or security for costs in such matters in the Court of

B Appeal. This, he said, was in keeping with the practice in some Commonwealth jurisdictions including England, whereby the Government is exempted from such payments. He concluded by saying in effect that if there was non-compliance by the Government here, this necessarily resulted from the long practice of not requiring

C the Government to make such payment. In the circumstances, he went on. it would be unjust to penalize the Government on this occasion for following an established practice which for a long time has never been questioned.

As noted before, rule 10 of the Court Fees Rules 1964 G. Ns. D 308 and 411 exempts the Government from paying court fees in

both criminal and civil matters in the lower courts, while under rule 112 (b) of the Court of Appeal Rules the Government is expressly exempted from paying court fees in criminal applications and criminal appeals, but nothing is said about payment of fees in civil

E matters. We are unable to construe such silence to mean exemption from payment of fees in civil matters. Since the framers of the Rules obviously had in mind the issue of exemption, and indeed expressly granted exemption in criminal matters, than if they were so minded they would have equally granted exemption in civil

F matters. We are inclined to agree with Mr. Maira that such silence can only be construed to mean that the framers of the rules intended that the Government should pay court fees in civil cases. Likewise the Government is obliged to pay security for costs as we could find no basis for express or implied exemption.

G It is true that this view is not in harmony with the totalexemption which the Government enjoys in the lower Courts, but for reasons given above we could not construe rule 112 (b) of the Court of Appeal Rules to come to any different conclusion. If the omission to grant total exemption was really not intended, then it is

H suggested that the appropriate authority might consider amending rule 112 (b) of the Court of Appeal Rules to harmonize the position with that of total exemption accorded to the Government in the lower Courts.

We have given due consideration to Mr. Mrema’s submission I that to threw out the appeal on this ground would amount to

penalizing the Government on this occasion for having followed a

MINISTRY OF DEFENCE v. VALAMBHIA (Kisanga, J.A.) 401

practice which for a long time has never been questioned. It could A very well be that the Registry staff concerned either consciously or through inadvertence failed to require the Government to pay court fees and security for costs in the past. It may also be that this practice has gone on for a long time. But a practice which is not sanctioned in law can never acquire legal legitimacy however long it might be. B Indeed if there was nothing else to this matter we would have been inclined to uphold the preliminary objection on this ground, but there are other matters to be considered along-side this omission.We shall come back to this point later on but meantime we prepare to deal with the respondent’s last ground of objection. C

This ground was argued on behalf of the respondent by the learned advocate, Mr. Marando. He pointed out that grounds 5 to 8 of the memorandum of appeal relate to appeal against the judgment in the main suit i.e. Civil Case No. 210 of 1989. He contended that to that extent this appeal is incompetent because the appellant has not D given any notice of appeal in respect thereof and has not sent any copy of such notice to the respondent as required by rules 76 and77, respectively, of the Rules. Pressing the point further, he charged that the appellant has not even bothered to seek extension of time to take these steps. On these grounds Counsel submitted that the appeal Eas contained in grounds 5 to 8 relating to the main suit should be struck out as being incompetent.

Our own view of the matter is that the order of 10.5.91 which is the subject matter of this appeal is so closely interwoven with the judgment in the main suit that it would be unrealistic to consider the Fpropriety or otherwise of the said order in isolation. In other words one cannot effectively question the order without reference to the judgment in the main suit from which that order springs. In practical terms the said order is an amplification of the relief granted to Mr. Valambhia in the main suit. It is, if you wish, a culmination of the G relief granted in the main suit. So that a notice of appeal against the order of 10.5.91 by necessary implication means that the decision in the main suit, in so far as it extends to the order, is also being challenged. Therefore, in our view it was not strictly necessary to give a separate notice in respect of the main suit. H

As intimated earlier, we now revert to the matters which have to be considered along-side the omission by the Government to pay court fees and security for costs in this intended appeal. Glancing through the memorandum of appeal and upon hearing Mr. Mrema in answer to this preliminary objection, it becomes evident that the I main grievance of the appellant is that he was not given the

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A opportunity to be heard against the garnishee order. He was condemned unheard. That. Mr. Mrema submitted, offended against the principle of natural justice.

Mr. Mrema submitted further that had the appellant been afforded the opportunity of being heard, he or his Counsel would

B have raised the issue of the illegality of the proceedings leading to the granting of the garnishee order in that they violated the provisions of the Government Proceedings Act 1967 which lays down the procedure of bringing suits against the Government. Under the same Act he would have challenged the legality of the garnishee

C order as a m ethod of executing court decrees against the Government. He would also have questioned the validity of the order of 10.5.91 requiring the appellant to comply with the garnishee order within three weeks which compliance would be in violation of Exchange Control Regulations.

D While avoiding the risk of going into the merits of the case,we think that the points raised are sufficiently weighty. They are such that if proved they go to the root of the matter. For instance, they allege illegality of the order or orders of the Court. That is obviously a point of law. In Civil Reference No. 9 of 1991 involving

E the same parties as in this case, we took the view that where the point of law at issue is the illegality or otherwise of the decision being challenged, that is a point of law of sufficient importance to constitute sufficient reason within rule 8 of the Court of Appeal Rules to overlook non-compliance with the requirements of the

F Rules and to enlarge the time for such compliance. The same applies here. So that although we would have upheld the preliminary objection on the grounds of failure by the Government to pay court fees and security for costs in this appeal, there ought to be afforded opportunity for the Court to ascertain on the issues raised and. if the

G allegations are established, take appropriate measures.In the result the preliminary objection is overruled. It is further

directed that the Government is to pay the Requisite Court fees and security for costs within 7 days of the receipt of this Ruling by the parties. Although the general rule is that in civil cases he who wins

H has his costs, we think that in the unusual circumstances of this case each party is to bear his own costs. It is ordered accordingly.

Ordered accordingly.

I