Haji Shame & Another vs Republic [1987] TZHC 26 (17 August 1987)


Sisya, J.: This is a second appeal.  It is a criminal appeal originating from the Dochi Primary Court of Lushoto District.  Without prejudice, as is now notoriously the case with most of the proceedings which pass through the hands of the presiding Magistrate (H.K. Shellimoh Esq. Primary Court Magistrate)  this present one too is fraught with G irregularities and deviations from the laid down and recognised practice and procedure.  In dealing with this matter I will, nevertheless, be guided by the principle that substantial justice must be done without undue regard to technicalities which is applicable to all H matters originating from Primary Courts, see Section 37, Magistrate' Courts Act, No. 2 of 1984.
Be it as it may, mention is hereby made of the fact that in his complaint to the Dochi Primary Court the complainant in the case mentioned three persons, namely Haji Shame I Mukai, Ahmad Kaniki and Issa Kaniki, as accused persons.  The record of proceedings of

the trial court, on its face cover, too, shows these three names as being the names of the A accused persons.  It is only the order of appearance which differs:  According to the complaint the first accused was shown to be Haji Shame Mukai and Issa Kaniki the third accused.  This order was reversed on the face of the court record wherein the first accused is shown to be Issa Kaniki and Haji Shame Mukai, the third accused.  In either B case Ahmad Kaniki was shown as second accused.  Perhaps this is of no significance at all because its effect, if any, must be negligible.  The point to note, however, is that the arraignment and the subsequent hearing proceeded against only two of the original three C accused persons.  These were Haji Shame Mukai and Issa Kaniki who, incidentally, are the appellants in this instant appeal.  The record of proceedings is completely silent as to the fate of the third person, that is Ahamadi Kaniki.  He was neither arraigned nor tried.  The complaint against him was, as it were, merely left hanging in the air.  I will also leave it there. D
These two appellants were tried jointly on three counts charging them with the offences of criminal trespass, malicious damage to property and threatening violence.  These are offences contrary to section 299, 326 and 89, respectively, all of the Penal code. E Immediately after pleas were taken and before hearing commenced both appellants raised objection to Mr. Shellimoh presiding over the trial.  Both appellants specifically expressed confidence in the Primary Court as an institution but they demanded another magistrate to preside over their case and not Mr. Shellimoh. F
When asked to advance reasons in support of their application (or was it a demand?) both of them stated that they would do so to the magistrate who would preside over the hearing of their case.  Neither of them, therefore, advanced any reasons before the court constituting Mr. Shellimoh, as the presiding Primary Court Magistrate, and two G assessors, Messrs Shemase and Kipande.  The learned Primary Court Magistrate, quite correctly, placed the matter before the assessors for their decision.  The two assessors were, unanimously, of the view that the appellants' application for another magistrate was baseless because no reasons had been advanced for disqualifying Mr. Shellimoh H from presiding at the trial such as being induced by a bribe or promises thereof or fear of bias originating from a clash over some female.  The assessors' was, in fact, the decision of the court as they were already in the majority Mr. Shallimoh, even then, concurred. I
The appellant's application for another magistrate was,

therefore, accordingly refused and it was, further, ordered that trial was to proceed as A scheduled.  This was done.
The complainant gave his evidence and he was duly cross-examined by both appellants.  Thereafter, the complainant informed the court that his witnesses were present and/or available.  For unknown reasons the record of proceedings is completely silent on the B point - hearing was adjourned to the following day.  Both accused were granted cash bail in the sum of Shs. 8,500/=, each, with one surety failing which the appellants were to be held in custody.  It is not known whether or not the appellants met the terms and conditions of bail which, to me, appear unduly harsh.  However, since this is not subject C of any complaint I do not propose to dwell on the same any longer.
On resumption on the following day one more witness gave evidence on the complainant's side.  When the appellants were called upon to cross-examine him they, D one after another, refused to do so and intimated that they wanted to engage an advocate.  The presiding magistrate took this as an application to stay the proceeding so that the appellants may engage legal counsel and he put the matter to the assessors for their decision.  Both assessors were of the unanimous view that the application had been E made belatedly.  They,  therefore, decided that hearing should proceed as scheduled, adding that the appellants could, if need be, still engage a lawyer but later and, presumably, in a high tribunal on appeal.  The presiding magistrate, again, concurred with the assessors' view on this point.  When the decision of the court was known to the F appellants each one stuck to his guns:  The appellants stated that they had no question to ask the witness and they added, one after the other, that they had looked for an advocate.  The evidence of the said witness and (subsequently, after the assessors had put across a few questions to him)  the case for the complainant was, eventually, closed. G The appellants were then called upon to defend themselves in terms of Section 30 (1) (c) of the Third Schedule to the Magistrates' Courts Act, 1984.  Both appellants refused to say anything, adding that they had decided to engage an advocate.  The trial court took this as an election by the appellants not to say anything and after recording the H opinions of the assessors proceeded to judgement.  Both accused were by unanimous decision, found guilty and they were convicted accordingly on all the three counts.  They were each sentenced to pay a fine of shs.1,000/= or, in default of payment, go to jail for I three months on each of counts one and two, and on count three they were each sentenced to six months imprisonment, without

option of paying a fine.  The terms of imprisonment in default of payment of a fine A imposed in counts 1 and 2 were to run consecutively with the term of imprisonment imposed in count three.  The appellants paid the fines in counts 1 and  2.  The appellants together with "the village", (I presume the Village Government) were ordered to pay to the complainant shs. 17,000/= by the way of compensation. B
Aggrieved, the appellants appealed to the District Court, Lushoto, against conviction, sentence and order of compensation.  Save for the sentence in count three which was reduced to such term as resulted in the appellants' immediate release from prison - the C appellants had by then already been in jail for seven days - the appellants' appeal to the District Court was dismissed.  Hence this present appeal to this court.
The first four grounds of appeal in the appellant's joint petition of appeal are in respect of the way the proceeding was conducted in the trial court.  In the main, the appellants D complain that they were  not given the opportunity of being heard at the trial.
I think it all started when the appellants, for reasons which to-date still remain undisclosed, expressed their dislike of the presiding magistrate continuing with the hearing of their case.  Every magistrate is duty - bound to hear and determine or in other E words to deal with any matter over which he is vested with the requisite jurisdiction.  Failing which he will be guilty of abdicating from duty.  The only exception to this general rule is laid down in section 65 (1) of the Magistrate's Courts Act, 1984, and it is that no F magistrate should act in his judicial office in any proceeding in which he has any pecuniary or personal interest.  To my mind, the basis of this provision of the law is to guarantee impartiality in the determination of judicial proceedings which is a primary element in the administration of justice and fair play.  The judge here, however, is, G principally, the magistrate himself and it is only in proceeding in which the magistrate has pecuniary or personal interest.  What, one may then ask, of a case or proceeding in which an interested party for a reason or reasons, known or unknown to the magistrate, apprehends that there may be no impartiality in the proceeding?  The adage that Justice H should not only be done but it must manifestly be seen to be done is applicable to our judicial system.  The answer to the question posed above would thus appear obvious and it is that the party concerned is perfectly entitled to raise his objection in open court.  The judge this time is not the magistrate concerned but the person on the receiving end. I The

important point to note here, however, is that the said objection of the presiding A magistrate was, however, not enough.  They should have gone further to give reasons for their objection.  As it turned out, they gave no reasons.  As a result there were absolutely no grounds, let alone reasonable grounds, for their objection.  For this reason B it was open to the court to proceed hearing the case as scheduled and, indeed, the Court's decision on this point cannot legitimately be assailed.  It was proper and it is hereby so declared.
Next came the appellant's belated intimation that they were engaging learned counsel to defend them.  It is conceded, which, indeed, I must, that every accused person or litigant C has a constitutional right to defend his/her cause fully and to the best of his/her ability, and this includes availing oneself service of legal counsel.  At the same time I am  fully aware that as a matter of law, advocates are not permitted to appear in Primary Courts.  As aforesaid, the trial court ruled that the matter had been brought up by the appellants, D so to say, too late in the day, and the court was somewhat sceptical about the proposition put forward by the appellants.  At the hearing of  this appeal before me learned State Attorney, Mr. Magohe, was equally sceptical about the appellant's proposition on this point.  Mr. Magohe pointed out that this matter has now passed E through two judicial tribunals in both of which advocates can and do appear but none has appeared for the appellants.  Without beating about the bush, I cannot help sharing Mr. Magohe's views on this point.  If, indeed, the appellants were serious on the issue of F engaging an advocate then perhaps we would not  have failed to see one at some stage in these proceedings, that is to say in the District Court on first appeal or in this court on second appeal.  I repeat that no advocate has over appeared for the appellants or either of them in the instant proceedings.  It seems to me, in all the circumstances of G the case, that the proposition in question was no more than a mere attempt to ridicule the due process of the law.  No court of justice, worth the title will be prepared to stomach such acts.  The refusal by the trial court to be hoodwinked by the appellants was proper and I so hold.
I now turn to the crux of the complaints on this aspect of the matter.  I do not hesitate to H point out, straightaway, that there is no truth whatsoever in the appellants' allegation that they were not given the opportunity of being heard.  From the brief account of events in the trial court already narrated hereinabove - and I see no cause to reiterate the I same - it is clear that the appellants were given opportunity not merely to cross - examine PW 2 but actually to

defend themselves as well.  Both of them  refused to say anything in defence thereby A forfeiting their right to defend themselves.  Surely they cannot now properly be heard to complain.  I dismiss the appellants' complaints on this point as being without substance in law.
In the fifth ground of appeal, the appellants aver that nothing was destroyed in the B complaint's shamba.  This is a matter of evidence which the appellants ought to have adduced at the trial but they failed to do so.  The end result is that the evidence of the complaint and  his witness, PW 2, was neither challenged nor contradicted and it stands unshaken.  The duty of the court was to decide the case on the evidence adduced before C it.  In the absence of any other evidence to the contrary the trial court had no other evidence to go by and, further, it had no cause to reject the evidence before it, the same being credible and admissible.  In other words, it was legal evidence. D
The salient facts of the case which both courts found established and proceeded to act upon show that the complainant on one hand and the appellants and other villagers of Msale village on the other hand had dispute over a shamba.  The matter was referred to court (see Dochi Primary Court Civil Case No. 89 of 1985).  Judgement was given in E favour of the complainant who was also to be paid shs. 20,000/= as compensation.  The complainant was not satisfied with the amount of compensation, he wanted more whereupon he appealed to the District Court, Lushoto.  On 12.9.85 while the District Court was yet to give its decision in the matter these two appellants led other villagers F and entered the complainant's shamba without the complainant's consent.  They uprooted some banana trees and set fire to some of the stalks.  They also dug out some potatoes and carried them away together with some bunches of banana.  On seeing this G the complainant rushed to the Police Station, Lushoto, and reported the matter.  He was told that there was no transport available, apparently, to take the Police to the  scene.  The complainant then went and complained to the District Magistrate who then set the 17  September, 1985, as the date of judgement.  According to the complainant judgement was again in his favour.  Nevertheless, the appellants and other villagers H continued to cut and eat bananas from his shamba with impunity.  Eventually, the complainant went and complained to the law enforcing agents.  It seems as a follow up of his complaint the District Commissioner, Lushoto, visited the area.  The village chairman then urged the DC to rusticate the complainant.  The said chairman also I threatened to

do acts of hooliganism and lawlessness if their demand was not met.  He cited the A incident at Garo as being their precedent.  The DC reminded the said chairman and others that lawbreakers would be dealt with.  That was commendable.  I think whenever opportunity arises the people of this country must be told or reminded (whatever the case may be), not merely of their constitutional right but also of their duties and B obligations under the constitution.  Section 26 of the constitution of the United Republic of Tanzania, the mother of all the laws of this country, lays down as follows, and I quote:
   26. -(1)Kila mtu ana wajibu wa kufuata na kutii katiba hii na sheria za Jamhuri ya Muungano. C
   (ii) Kila mtu ana haki, kwa kufuata utaratibu uliowekwa na sheria, kuchukua hatua za kisheria kuhakikisha hifadhi ya katiba na Sheria za nchi. D
Going back to the facts of the case, the evidence adduced by the complainant shows that on the night of 20/21st September the two appellants went to the house of the complainant and while raising an alarm they said that they had been told by one E Makamba and one Mbega, assistant to the Executive Secretary of CCM, to get hold of the complainant, kill him, and decapitate him, put the complainant's torso in a gunny bag and send his head to Lushoto.  On hearing this the complainant got out of his house using the back door and he escaped to Lushoto.  Up to the time the complainant gave F evidence in the case, three days later, he had not yet returned to his house because he feared for his life.
As aforesaid, this evidence stands unshaken and I hasten to say that it does establish all the three counts charged.  The convictions were thus sound in law and the same are hereby upheld. G
Regarding the sentences, in all the circumstances of the case I cannot say that the same were manifestly excessive or that they offended some settlement principle.  I, accordingly, therefore, propose to leave them undisturbed.
Now turning to the order of compensation, I am at a loss to comprehend the basis upon H which the same was made.  As aforesaid, the order of compensation also affects the village which, incidentally, was not even a party to the proceeding.  The order against it, therefore, offends one of the basic principles of justice, namely that a party should not be I condemned without being heard.  Further, there is the third person who was to be tried jointly with these

appellants but somehow he was not so tried.  Had he been tried he too may have had his A own share to make good the loss.  On the whole, it is not possible to apportion the amount of compensation, nor do I consider it fair and just, on the evidence available, to rest it wholly and squarely on the shoulders of these two appellants.  For these reasons, I will set aside the order of compensation.  Subject to the law governing limitation of B actions I leave it to the complainant, should he feel disposed to do so, to follow up the matter in a Civil Court of competent jurisdiction.
All in all, save for the order of compensation which has been set aside, this appeal fails and it is hereby dismissed. C
Appeal dismissed.


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