GODISON NDOBHO v REPUBLIC 1993 TLR 287 (CA)

GODISON NDOBHO v REPUBLIC 1993 TLR 287 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Ramadhani JJA, Mnzavas JJA and Lubuva JJA

CRIMINAL APPEAL NO. 22 OF 1993 B

13 December, 1993

(From the decision of the High Court of Tanzania at Dar es Salaam, Mrema, PRM,

Ext. Jur.) C

Flynote

Criminal Law - Acquittal of PW1 in a charge of assault before a Primary Court in

which the appellant was the complainant - Whether a bar to P.W.1 to complain

against the appellant in a charge of assault in a District Court - Whether defence of

autrefois acquit or autrefois convict could be advanced. D

Evidence - Acquittal of P.W.1 in a charge of assault before a Primary Court in which

the appellant was the complainant - Whether a bar to P.W.1 to complain against the

appellant in a charge of assault in District Court - Section 141 of the Evidence Act,

1967. E

-Headnote

The appellant was convicted by a District Court of assault causing actual bodily harm.

His appeal to the High Court was not successful. He further appealed to the Court of

Appeal of Tanzania. The Court entertained only one ground of appeal which was on a

point of law leaving out seven grounds F which were on matters of fact. The ground

of appeal was to the effect that the complainant in the case against the appellant was

in fact an accused in a charge of assault before a Primary Court. After acquittal of the

accused the accused filed a case in the District Court against the appellant in a charge

of assault causing actual bodily harm. The appellant argued that the filing of this

second case in the District Court contravened the provisions of s 141 of the Evidence

Act. G

Held: (i) The provisions of s 141 of the Evidence Act, 1967 did not bar the

prosecution from filing a charge of assault against the appellant simply because the

complainant (P.W.1) had already been acquitted of a similar charge in which the

appellant was the H complainant. This is because the facts in support of the charge

against the appellant were different from those against the complainant and the

accused persons were different;

(ii) The appellant could not advance the defence of autrefois acquit or

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. I

1993 TLR p288

Case Information

A Appeal dismissed in its entirety.

Case referred to:

1. Philbert Loisean and Another v. R [1956] 23 EACA 566.

Sengwaji, for the respondent.

[zJDz]Judgment

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

1993 TLR p289

MNZAVA JA

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.

1993 TLR p290

A