ABDON MKUCHU

IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT IJC MOROGORO PC. CRIMINAL APPEAL NO.OS OF 2023 (Arising out of Criminal Appeal No.65/ 2021 in the District Court of Kilosa, originated from Criminal Case No.88 of 2022 in the Kimamba Primary Court) ABDON JACKSON MKUCHU ...................................... APPELLANT VERSUS KUYA LEMBAGWA MUNDE ................................ lST RESPONDENT ANNA MENDERU KUYATEI ............................... 2No RESPONDENT NAOMI MTUGO ............................................... 3RD RESPONDENT MAHALANDA KOMIAMI ...................................4TH RESPONDENT KASI RIO MA KALA ...........................................sTH RESPONDENT SAMWEL DAFU .... ............................................ 6 1 H RESPONDENT JUDGEMENT 28th of June,2024. MANSOOR, J. The appellant has demonstrated supreme passion in prosecuting this case. At Kimamba Primary Court (herein 'The trial Court') where he started, the appellant preferred against the respondents, a charge of malicious damage to property under section 326 of the Penal Code, [Cap Page 1 of 20 16 R.E. 2022]. Toe respondents were alleged to maliciously graze in the appellant's paddy rice farm hence occasioning the loss to the tune of 2,200,000/= to the appellant. The trial court acquitted the respondents after being satisfied that the appellant did not lead sufficient evidence to prove the charge against them. The appellant was not pleased with the judgment of the trial Court. He therefore preferred an appeal to the District Court of Kilosa (herein 'The 1st Appellate Court') which was also unsuccessful as the court took the view that the appellant failed to prove to the trial court on how he came into conclusion that the cattle belonged to the respondents. Still adamant for his right, the appellant has appealed to this Court on four grounds as reproduced hereunder; 1. That, both lower courts erred in law and facts for holding in favour of the respondents as it did while from the evidence on record the case was proved beyond reasonable doubt. 2. That, the Hon. learned magistrate of the trial court erred in law and facts for failure to evaluate properly evidence in satisfying itself rather than taking into account weak shark and cooked evidence in relation to this matter henceforth reached into biased decision which is unmaintainable in eyes of law. 3. That, the learned trial magistrate made findings and decision was unusual and baseless. Page 2 of 20 4. That the learned trial magistrate grossly erred in law and fact by neglecting the grounds of appeal as presented and urged by the appellant. At the hearing before this court the appellant appeared in person and unrepresented whereas all the respondents were represented by Mr. Kisawani Mandela, learned advocate. The appeal was canvassed by way of written submission and all parties obediently complied with the scheduling orders. Submitting in support of the appea l, the appellant started with the first ground of appeal arguing that, the case was proved beyond reasonable doubt against the respondents as all elements establishing the offence of malicious damage to property were proved as provided under section 326 (1) of the Penal Code [Cap 16 R: E 2022]. He insisted that SMl was a credible witness who adduced the evidence which proved the offence against the respondents. To buttress his contention, he referred this court to the cases of Goodluck Kyando v. Republic [2006] nR 393 and Mohamed Seleman Kidari @ Ndwala vs Republic (Criminal Appeal No. 82 of 2022) [2024] TZCA 13 7 (23 February 20 24) which subscribed to the position of the case of Abdala Teje @ Malima Mahula v. R, Criminal Appeal No. 195 of 2005 (unreported) where it was held that; Page 3 of 20 ':4ny credible evidence has to pass the following tests; one/ the evidence must... be legally obtained; two/ it must be credible and accurate; three/ the evidence must be relevant✓ material and competent and; four/ it must meet the standard of proof requisite in a given case/ otherwise referred to as the weight of evidence or strength of believability" Basing on the provided authority, the appellant was of the view that the lower courts erred in law and facts for holding in favour of the respondents as it did while from the evidence on record the case was proved beyond reasonable doubt and there were no compelling reasons to discredit or to disregard the evidence of the appellant. The appellant consolidated the second, third and fourth grounds and argued them joint ly. He started by complaining that the 1st appellate court failed to evaluate properly the evidence before it which in turn lead it into biased decision based on weak shark and cooked evidence. He contended further that, his grounds of appea l were ignored by the 1st appellate court and expounds that the court has the duty to resolve issues raised in the grounds of appeal. He demonstrated that, he raised four (4) grounds of appeal before the first appellate court however, the judgment delivered by Hon. JOCTAN- SRM did not consider the grounds, instead the trial magistrate drew up Page 4 of 20 issues of his own for determination of the appellant's appeal. He referred this court at page 1, 2, and 3 of the trial court judgment to fortify his submission. He maintained that, failure by Hon. JOCTAN-SRM to consider grounds of appeal and drawing up his own issues for determination of appeal its render the judgment to be null. The appellant cited different decisions from the Court of Appeal to support his assertion including the cases of Malmo Montagekunsult ab Tanzania Branch vs Magret Gama, Civil Appeal No. 86 of 2021 (unre ported) where the court held that: ''In the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the role of the trial court. It is however, expected to address the ground of appeal before it. Even then, it does not consider have to deal with the ground of appeal as listed in the memorandum of appeal. It mar, if convenient, address the ground generally or address the decisive ground of appeal only or discuss each ground separately" He also referred this court to t he case of Nyakwama Ondare @ Okware versus Republic, in Criminal Appeal No. 507 of 2019 (unreported) where it was stated that: 1'Jn the instant appeal, we unreservedly note that the first appellate court did not address and determine the ground of appeal separately or general. On the contrary, as intimated above, it simply Page S of 20 framed its own points for ' the determination of the appeal which did not to the appellant ground of appeal in the petition of appeal" Again he quoted the decision of the court of appeal in the case of Amos s/o Alexander @Marwa vs The Republic, Criminal Appeal No. 513 of 2019 (unreported) where it was held that: ''It is obvious the first appellate court did not consider the ground of appeal presented before it, failed to re-evaluate the entire evidence on record in objective manner and to arrive at its own findings offact. We need not mince words, the judgment by the first appellate court is not a judgment which the law envisioned .... "At page 10 "...... That the first appellate court has an obligation to re- evaluate the evidence on record before reaching to its conclusion. The impugned judgment of the first appellate Court fell far below the mandatory standard and we find that it was not a judgment known in law, it was nullity...... " Basing on the above submission and reason stated the appellant implored this court to allow his appeal. Replying to the appellant's submission, the learned counsel for the respondents in responding to the first ground contended that the appellant failed to discharge his duty of proving before the trial court on how he identified that the apprehended catties belong to the respondents. He cited the case of Jonas Nkinze V Republic (1992) TLR 213(8.C), where it was stated that; Page 6 of 20 'the general rule in criminal procedure that the onus of proving the charge against the accused beyond reasonable doubt lie on the prosecution this is the party of/aw and for gelling or ignoring is unforgivable". The learned counsel denied to submit on the second, third and fourth grounds of appeal advanced by the appellant alleging that they were new grounds of appeal that were not raised and entertained by the first appellate court. He restated the position of the law that the grounds of appeal not raised in the first appellate court will not be entertained in the second appellate court. To add weight on his contention he quoted the decision in the case of Raphael Enea Mngazija (Administrator of the estate of the late Enea Mngazija) vs Abdallah Kalon Jurna, Civil Appeal No.240 of 2018 where the court of Appeal held as follows. "we think that this ground being a new ground for having not been raised and decided by the first appellate court, we cannot look at it and determine the same/ in other words we have no Jurisdiction to entertain it we would have entertained it if it was a point of law "(emphasis is added). Being guided by the above position the respondent's learned counsel invited this court to hold the same view and ignore the second, third and fourth grounds of appeal advanced in the present appeal underscoring that the court has no jurisdiction to entertain the same. Page 7 of 20 Mr. Kisawani concluded his submission by praying for this court to dismiss the instant appeal for being devoid of merit and uphold the concurrent findings of the lower courts. On his rejoinder the appellant reiterated his submission in chief. Having carefully considered the records of the lower courts, the appellant's grounds of appeal and submissions of both parties, I find it pertinent to determine whether the present appeal is meritorious. For easy determination of this appeal, I will deliberate on issues raised in each ground of appeal in the sequence presented in the appellant's petition of appeal. On the first ground as to whether the evidence on record proved the offence beyond reasonable doubt, at the trial Court, the respondents were charged with Malicious Damage to Property under section 326 (1) of the Penal Code Cap. 16, (R.E. 2019) which provide that: - ' A person who wilfully and unlawfully destroys or damages any property commits an offence, and except as otherwise provided in this section, is liable to imprisonment for seven years. " In order to prove the offence of Malicious Damage to Property under the cited provision, the appellant was required to prove that: - Page 8 of 20 (i) He is the owner of the property/properties alleged to be destroyed; (ii) The said property(ies) has/have been destroyed or damaged; (iii) The alleged damage or destruction was caused by the accused persons/ respondents herein; (iv) The alleged damage must have been actuated by malice. From the evidence on record, it was not disputed that the appellant was the owner of the farm in which the damaged agricultural products to wit, paddy rice, maize and beans, onions, tomatoes and green pepper were planted. It was also confirmed through the testimony of the appellant himself, SM2, the Village Chairperson and SM3, a local police officer commonly known as polisi jamii to the effect that, the crops belonging to the appellant were damaged by herds of catties that entered and grazed on the farm and that the damaged crops belonged to the appellant who is also the owner of the land in which the same were planted. That said, the first and second ingredients of the offence of maliciously damage to property is sufficiently established. The central question for determination is centred on the third and fourth ingredients of the offence as to who caused the alleged damage and whether the damage was actuated by malice. Page 9 of 20 The lower courts found out that, there were no evidence to prove that the catties caused damage to the appellant's farm were exclusively owned by the respondents. Looking at the evidence on record the appellant in his testimony as SMl informed the trial Court that the alleged damage was caused by the cattle which were being grazed by the 3rd Respondent, Naomi Mtugo. He said, he identified the cows with a burn charter on the right thigh, the cows with a charter of S.L.K. and those with a II charter on the waist to be owned by Mahalanda Komani (the fourth Respondent), Samwel Dafu (The sixth Respondent) and Kasirio Makala (the fifth Respondent) respectively. He also, testified before the trial court that, one Letuko among the cattle herdsmen who was not found at the crime scene, named the respondents to be the owners of the cows when he was interrogated by SM2, Innocent Sosti, the village chairman. The sad thing is, there is no evidence to support these allegations. There is no proof that the cows with the charter described by the Appellant were exclusively owned by the 4th ,5th and 6th Respondent. The cows were not brought before the trial court. The appellant did not tell the court that the described marks on the cows are the marks placed by the respondents respectively or are the charters used to identify the fourth, fifth and sixth Page 10 of 20 respondents' cows. There is also, no proof that, the rest of the cows belongs to the remaining respondents, as no proof of ownership was given. The appellant relied only on the words of Letuko who was not called as a witness. The appellant called two witnesses Innocent Sosti, who testified as PW2 and Amosi Emil as PW3.They both had nothing significant to add in relation to the identification of the cows that destructed the appellant's crops, as they both admitted to not knowing the cows found at the appellant's farm and they also relied on the words by Lutuko that the cows belonged to the respondents, the words which has no legal basis in this court as they are merely hearsay evidence. It is an elementary principle of law that the person who asserts the existence of certain facts has to prove the existence of such facts, pursuant to sections 110 and 111 of the Law of Evidence Act, Cap. 6, [R.E.2019]. Which state as follows; '110. Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence offacts which he asserts must prove those facts exist 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side.' Page 11 of 20 This being the criminal case the standard of proof is beyond reasonable doubt, this position was also held in the case of Jonas Nkinze Vs Republic [1992] T.L.R 213, that; '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 it is unforgivable, and is a peril not worth taking~ The appellant was mandated to prove to the trial court that the catties that damaged his crops were owned by none else but the respondents. A mere description of the charter/mark of the cows by the appellant and mentioning the respondents to be the owners of the cows without explaining as to how he came into knowledge of the mark/charter of the respondents' cow is not enough to prove that the respondents were the exclusive owners of the cows that caused damage to his farm. The appellant and his witness have failed to establish the fact. In the absence such proof by the appellant, the third and fourth ingredients were not proved as to whether the said crops were maliciously destroyed by the respondents. Under the circumstances, I see no reason to fault the decision of the lower courts that the evidence on record didn't prove the offence against the respondents on the required standard. As such this ground fails. Page 12 of 20 Given the circu mstances, I will not waste time discussing the second ground and third ground of appeal due to reason that the Appellant's complaint on the grounds is not different from his complaint on the first ground. This is revealed in his submission in support of this appeal, he is faulting the trial court evaluation of prosecution evidence which is well discussed and determined on the 1st ground. As such, the deliberations made on the first ground will be as well the position of this court in regard to these grounds. In that regard, the second and third grounds fails too. At this point I feel compelled to resolve the complaint by Mr Mandela, the respondents' learned counsel that the foregoing grounds are new as they were not raised at the trial court. I am aware that the law requires Courts not consider new grounds raised in a second appeal which were not raised in the subordinate courts. I have carefully revisited the grounds raised by the appellant at the first appellate court. The records reveal that, the appellant raised four grounds of appeal in the Petition of Appeal, almost identical grounds of appeal which I paraphrase herein below; Page 13 of 20 (1) the trial magistrate failed to find the respondents guilty of the offences charged while the case was proved beyond reasonable doubt against them; (2) The trial court failed to consider, appreciate and analyse evidence on record and thereby caused prejudice to appellant; (3) The trial court did not afford the appellant a right of cross examination; (4) The trial court failed to enter conviction against the respondent while the prosecution proved the case beyond reasonable doubt. Certainly, the grounds essentially address two complaints; improper evaluation of evidence by the trial court and two, the omission by the trial court to afford the appellant a right to cross examination. It is clear that, the complaint as regards to improper evaluation of prosecution evidence by the trial court has not been raised for the first time in this Court. It had already been raised on the first appellate court. The only differences in these grounds are the words used to present them but they are both centred on faulting trial court's evaluation of evidence. In saying that, I don't see the truth on the respondents' complaint. In relation to the fourth ground of appeal the appellant attacks the 1st appellate court's omission to determine the grounds of appeal as raised in his petition of appeal. However before divulging into the merit of the ground, I find it apt to determine Mr Mandela's raised concern that this is Page 14 of 20 a new ground that was not raised and canvassed by the first appellate court. Undoubtedly, it true as rightly submitted by the respondents' learned counsel that this ground was not raised at the first appellate court. It is being raised for the first time in this court sitting as the second appellate court. However, in my understanding of the law, the principle that prohibit introduction of new grounds of appeal not raised at the first appellate court was not intended to restricts the grounds of similar to the instant ground. I am saying so because, the appellant's complaint on this ground is premised on the decision of the first appellate court that it failed to determine his grounds of appeal as presented in the petition of appeal thus the appel lant couldn't raise this complaint in the first appellate court, as in doing so, the appellant would be imploring the first appellate court to sit as an appellate court on its own decision which is strictly prohibited by law. Undeniably, this court is the proper court to sit as the appellate court for the 1st appellate court's decision, no wonders that the appellant has raised this ground for the first time in this court. And thus under the circumstances it cannot be considered as a new ground. Therefore, the claims by the respondent's learned counsel are misplaced. Page 15 of 20 Reverting to the appellant complaint on the fourth ground, that the first appellate court omitted to consider the grounds of appeal as presented in the petition of appeal. As observed above, the appellant raised four grounds of appeal at the first appellate court. My reading of the records of the first appellate court records specifically the last two pages of the judgement where the learned magistrate was making his deliberation to the appeal reveal that, after he summarised the fronted grievances before him, he prepared one issue for his determination, which was; whether that appeal has got merit. He thereafter proceeded to make his deliberation as follow; 'It is undisputed facts that the law of evidence in Tanzania embarks the burden of proof in criminal case to the prosecution and the standard of proving beyond reasonable doubt. In the case ofJonas Nkinze v. Republic (1992) TLR 213 it was stated that the general rule in criminal procedure that the onus ofproving the charge against the accused beyond reasonable doubt lie on the prosecution, this is the party of the law and forgetting or ignoring it is unforgivable~ With regard to the appellant's evidence he stated; 'the evidence of the appellant and his witness was merely hearsay and hence not admissible in the court of law. Page 16 of 20 The appellant said that he found the cattle in his shamba then he had no prove to the trial court that how he realised that the cattle by their mark then he had a duty to prove to the court beyond reasonable doubt that such mark identifies the respondent cattle~ The first appellate court then reached into its decision; 'Basing on that alone I uphold the trial court decision the appellant appeal dismissed for lack of merit. ' Looking at the above extract, it is apparent that the first appellate Court silently consolidated and dealt with appellant's first, second and fourth grounds of Appeal that were boiling on a sole complaint as to the trial court's improper evaluation of prosecution's evidence leading to the acquittal of the respondents. However, it unfortunately made no deliberation in relation to the appellant's third complaint on the trial court's alleged infringement of the appellant's right to cross examination. It is settled law that, the appellate court is bound to address and resolve the complaints of the appellant in the grounds of appeal either separately or jointly depending on the circumstances of each appeal. This position was restated by the Court of Appeal in the case of Malmo Montage Konsult AB Tanzania Branch v. Margret Gama(supra). In the instant appeal, I have unreservedly note that the first appellate court did not address and determine all the grounds as raised by the Page 17 of 20 appellant. On the contrary, as intimated above, it simply silently determined one of the appellant's complaint and ignored the other. It is my considered view that, although the appellate court is not obliged to consider all grounds of appeal, it is supposed to resolve all complaints raised in the appeal, separately or jointly as it will deem just. I find support in this respect in the decision of the Court of Appeal in the case of Simon Edson @ Makundi v. R, Criminal Appeal No. 5 of 2017; See also the decision in Nyakwama s/o Ondare@ Okware v. R, Criminal Appeal No. 507 of 2019 (both unreported). In that regard, I find misdirection on part of the presiding magistrate who sat at the first appellate court to dispose the whole appeal while leaving unresolved pure point of law narrated on the fourth ground which touches the right of the appellant to cross examination of the prosecution witness. This ground ought to have been determined first for the District Court to satisfy itself as to whether the appellant was fairly tried. The Court of Appeal was once confronted with a much similar situation where the first appellate court partly disposed the whole appeal without considering all appellant's complaints in his petition of Appeal in the case of Firmon Mlowe v The Republic, Criminal Appeal No. 504 of 2020. The Apex Court categorically stated as follow; Page 18 of 20 'In our view., the Judgment which briefly disposed of the whole appeal without considering the substantial part of the appellant's complaints is., with respect., unsatisfactory and falls short of considerations which are expected from the first appellate court. It is plain that the first appellate court did not deal with all the complaints contained in the petition of appeal in relation to the evidence led by the parties., the applicable law and the contending submissions before it came to the concurrent findings with the trial court ' Relying on the above authority, it is thus without doubt that the first appellate court judgement become unsatisfactory for failure to decide the third ground of appeal which raised a point of law. It is a settled law that the second appellate court is enjoined not to interfere with concurrent findings of subordinates courts unless there has been a misapprehension of evidence or a misdirection occasioning miscarriage of justice to the appellant or violation of some principles of law [See the case of Joel Ngailo Vs Republic, Criminal Appeal No 344 of 2017, CAT-Iringa (Unreported]. As such, in order to satisfy myself as to whether there was a trial court's violation of the appellant's right to fair trial as alleged by the appellant, I find my self-duty bound to determine the abandoned appellant's claim which was on trial court's transgression of the appellant's right to cross Page 19 of 20 examination of the witness. I went through the records of the trial and could not find the truthfulness of the appellant's allegation. What is seen in the records, the appellant was afforded with the right to cross examine each defence witness immediately after they completed to adduce their evidences. The records reveal further that, the appellant exercised the right and he asked all the six defence witness the questions and the answers to the appellant's question were properly recorded. Whatever is submitted by the appellant in regard to this complaint is not supported by the trial court's records. Therefore, I find the complaint was misplaced, and henceforth dismissed as there were no any transgression of the appellant's right to cross examine the witnesses. Having considered and determined all the grounds of appeals from the petition of appeal and having found that all the grounds lacks merits, the appeal is hereby dismissed and the decision of the lower court is upheld. DATED AND DELIVERED AT MOROGORO THIS 28th DAY OF JUNE, 2024 rt(Jl~~ LATIFA MANSOOR JUDGE 28.06.2024 Page 20 of 20