B Mnzava, J.A., delivered the following considered judgment of the court:
The appellant Godson Ndobho was convicted by the Ilala District Court of assault causing actual C bodily harm c/s 241 of the Penal Code and sentenced to two years imprisonment. Dissatisfied with the finding of the District Court he appealed to the High Court.
The High Court dismissed the appeal against conviction but reduced the sentence to six months D imprisonment. Still dissatisfied he has appealed to this Court. In his prolific memorandum of appeal to this court the appellant raised eight grounds of appeal which, in our view, all except ground one, relate to matters of fact which this court is, in view of Rule 65(2) of the Court of Appeal Rules and s E 6(7)(a) of the Appellate Jurisdiction Act, precluded from entertaining.
In ground one which concerned matters of law all the appellant stated in his memorandum of appeal is that `The Principal Resident Magistrate (Extended Jurisdiction) as he then was F misdirected himself when he joined to believe the trial resident magistrate in contravention of the provision of s 141 of the Evidence Act 1967.' Elaborating on ground one the appellant who appeared in person argued that all the prosecution witnesses told lies against him. He said that he was the G complainant and that he testified in court how he was assaulted by PW1 and his son and that after PW1 was acquitted it was wrong and contrary to s 141 of the Law of Evidence Act for the prosecution to file criminal proceedings against him and that Mrema PRM (extended jurisdiction) H erred in adopting the finding of the District Court. The court was asked to allow the appeal.
Mr Sengwaji, learned State Attorney on the other hand argued that the provisions of s 141 of the Evidence Act, 1967, could not be invoked in aid of the appellant because, it was submitted, the acquittal of PW1 in a charge of assault before a Primary Court in which the appellant was the I complainant did not bar PW1 to complain against the appellant in a charge of assault in Kivukoni
Criminal Case No 99952/887 in which the appellant was, as already mentioned, above convicted of A assault causing actual bodily harm. It was argued that the two cases were different and the accused persons were also different.
We have seriously considered the argument by the appellant that he should not have been prosecuted after the complainant had been acquitted of the offence of assaulting him (appellant). In B our view we agree with the learned State Attorney that the provisions of s 141 of the Law of Evidence Act, 1967 did not bar the prosecution from filing a charge of assault against the appellant simply because the complainant, (PW1), had already been acquitted of a similar charge in which the appellant was the complainant. This is because the facts in support of the charge against the C appellant were different from those against the complainant and the accused persons were different.
This is also not a case where the appellant could advance the defence of autrefois acquit or D autrefois convict as the appellant had not been convicted or acquitted of the same offence before he was convicted of the offence he is now appealing against - see the decision in Phibert Loisean and Another v R (1).
As for the sentence of six months imprisonment imposed by the High Court (Mrema PRM extended E jurisdiction) we are of the view that the sentence erred on the low side in view of the unprovoked attack of the complainant by the appellant. The appellant should consider himself lucky that this Court has not decided to enhance it.
In the event we agree with Mr Sengwaji, learned State Attorney, that this appeal has no merit and it F is hereby dismissed in its entirety.