JUDGMENT OF ABEL GODWIN VS YOMANDA KITUMBIKA

THE UNITED REPUBLIC OF TAZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY

AT MBEYA PC. CRIMINAL APPEAL NO. 7597 OF 2024 CASE REFERENCE NO. 202403202000007597 (Originating from Criminal Appeal No. 18 of 2023 in the district court of Mbeya in original Criminal Case No. 380 of 2023 in the primary court of Mbeya district at Mwanjelwa) ABEL GODWIN .......................................................................1ST APPELLANT AMOS MHAGAMA ..................................................................2ND APPELLANT

VERSUS YOMANDA ENOS KITUMBIKA ................................................. RESPONDENT

JUDGMENT Date of hearing: 19/08/2024 Date of judgment: 30/09/2024 NONGWA, J. In the primary court of Mbeya district at Mwanjelwa, in Criminal Case No. 380 of 2023 the appellants were charged and convicted with the offence of theft contrary to section 258 and 265 of the Penal Code, Cap 16. Consequently, were sentence to pay fine of TZS. 150,000/= or imprisonment of six months in default. They unsuccessfully appealed to 1 the district court vide Criminal Appeal No. 18 of 2023. They are now before this court for the third chance battling for their innocence. It was alleged that on 5/8/2023 at 1300hrs at Manga Veta Ilemi in Mbeya region the appellant unlawfully did steal four trips of stone and three trips of sand valued at TZS. 700,000/= the property of Yomanda Amos Kitumbika the act contrary to laws of this country. It was adduced by the respondent that he was informed that door lock was changed, visited the area and found four trip of stone and three of sand have been stolen. He put a message ‘beware conman’ and on 15/8/2023 met Abel who admitted to have taken sand. He was supported by PW2 Lucas Elia Mwakalonge and PW3 Samwel Andembwisye Mwandalima. On part of the first appellant testified to have bought the land from Godfrey Hezron Mwakisyala who promised to remove all properties by instructing Amos. The respondent interrupted the process and the matter was reported to police

who advised them to refer the matter to land tribunals. The second respondent said he was sent by Mwakisyala to remove properties after selling the plot to Abel. In the process the respondent arrived, reported to police and eventually were charged. Upon full trial, the trial court found that there was no dispute that subject matter of the charge was put by the respondent and removed by the appellants while aware that it did not belong to them and without 2 involving street leaders. At the end the appellants were convicted as mentioned earlier. The decision was upheld by the first appellate court. In the petition of appeal, the appellants have raised three grounds of appeal one, that the lower courts erred in law and facts to uphold the decision of primary court which failed to consider the question of ownership of land; two, the lower courts erred in law and facts for failure to consider and analyses evidence adduced hence reached into wrong decision; and three, that the lower courts erred in law and facts to convict the appellants with offence of theft which was not proved beyond reasonable doubts. On the hearing date the appellants appeared in person, without legal representation whereas the respondent enjoyed legal service of Mrs. Joyce Kasebwa, learned counsel. The appeal was argued orally. Addressing grounds of appeal, the first appellant merged ground one and two together

and the third was argued separately. He submitted that he was the lawful owner of plot 1582 block X mwakibete area after purchasing it from Godfrey Hezron Mwakisyala. He said that the items in the area were removed by Hezron Mwakisyala. Further that there was dispute over ownership which was pending in the tribunal after being advised by the court to file the same. The first appellant continued to submit that he was convicted while not the one who removed the items 3 subject of the charge. He added that it is the law that once there is dispute on ownership, a criminal offence of trespass to land must be stayed. In third ground, the first appellant submitted that the offence of theft was not proved beyond reasonable doubt adding that the respondent was ordered to bring some witnesses but did not. On his side, the second appellant submitted generally, he said that when there is land issue, ownership has to be determined first ahead of other issue. He prayed the appeal to be allowed. Responding to the above, Mrs. Kasebwa submitted that the matter in the trial court had no ownership dispute even though parties were advised to file the same before land tribunals. On whether the case was proved, counsel supported the decision of the lower courts, she stated that the appellants admitted to have removed the subject matter of the charges from the area concerned. With regard to ground

two, counsel submitted that the same was not raised in the lower court and as a new issue, is not tenable at this stage however, she was quick to argue that this court has power to look on the evidence and come up with own conclusion. Counsel prayed the appeal to be dismissed. 4 In rejoinder the appellants had no crucial facts to be summarized here. Having considered the record of appeal and rival arguments made for and against the appeal, it all boils to one issue, whether the respondent proved the case beyond reasonable doubts. There is submission from the Mrs. Kasebwa that ground two is new not raised in the first appellate court. After going through the record of the district court, ground two in this appeal features as ground four in the petition of appeal filed in the district court. Thus, the court has jurisdiction to determine it. In the primary court the appellants were charged with the offence of theft under section 258 of the Penal Code, it provides; ‘(1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, steals that thing. (2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents, that is to say- (a) an

intent permanently to deprive the general or special owner of the thing of it; (b) an intent to use the thing as a pledge or security; 5 (c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; (d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or (e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner, (3) For purpose of this section “special owner” means any person who has lawful possession or custody of, or any proprietary interest in, the thing in question. (4) When a thing stolen is converted, it is immaterial whether it is taken for the purposes of conversion or whether it is at the time of the conversion in the possession of the person who converts it or whether the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of it. (5) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner and believes on reasonable grounds that

the owner cannot be discovered. 6 (6) A person shall not be deemed to take a thing unless he moves the thing or causes it to move.’ [Emphasis supplied.] The bolded phrases above are relevant to the case at hand as it hinges on the basic rules of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence with the necessary mens rea. The act, that is to say, actus reus, is the actual deprivation or conversion of the thing, while the intent, mens rea, resides in the offender's intention to fraudulently convert the stolen thing and deprive the owner of its use. It is an elementary rule of law that in order to convict an accused of theft, the prosecution must prove the existence of actus reus which is specifically termed as asportation and animus furandi. My task in this appeal is to see if the above elements were proved, I am aware that there is concurrent finding of the two lower courts on issue of fact. As a general principle, the second appellate court is not expected to interfere with the concurrent findings of facts made by the lower courts. Interference can only occur, where there is misapprehension of evidence or a violation of some principle of law. This was stated in the case of Jafari Mohamed vs Republic, Criminal Appeal No. 112 of 2006 [2013] TZCA 344 (15 March 2013; TanzLII) the court stated; 7 ‘An

appellate court, like this one, will only interfere with such concurrent findings of fact only if it is satisfied that they are on the face of it unreasonable or perverse" leading to a miscarriage of justice, or there have been a misapprehension of evidence or a violation of some principle of law…’ I have read records of appeal and I am confident that there is justifiable reason to interfere with the findings of the lower courts. For start, I agree that the asportation of items was proved but in relation to the second appellant, who categorically said he removed sands and stones upon instruction from Godfrey Hezron Mwakisyala, however its quantum was not. In the charge it was alleged that four trips of stones and three of sands were stolen but there is no evidence from the respondent or any of his witness proving that the respondent put the alleged trips of stones and sands. It was mere allegation without proof. I expected to find evidence how the alleged trips got its way to the area. This is more complicated by the fact that even its value which was stated in the charge was not proved. It was stated by the trial court that the second appellant admitted to have removed items but that cannot be said to be admission as it was too general and incompatible with the allegation found in the charge. It is the law that admission to the offence must be to ingredients stated in the

particulars of offence. Even if it is assumed that the 8 appellants admitted in their evidence, they did not say it belonged to the respondent but Hezron Mwakisyala who sold the plot and instructed the items to be removed. The other necessary ingredient of the offence of theft is intention to deprive the true owner. The first appellant throughout his evidence stated after purchasing, the seller promised to remove properties and directed Amos to remove, on 12/8/2023 it was already removed except bricks. This evidence tells that the first appellant is not the one who removed the subject matter of the charge, and in fact there is no evidence from the respondent to show that they saw the first appellant removing stones and sands. For the second appellant he testified that he was instructed by Mzee Mwakisyala to remove the properties after selling the plot to the first appellant. Going by evidence of the appellants they had no any guilty mind, they acted under believe that they were removing the item of Hezron Mwakisyala who had instructed them. And because there was claim of ownership by the first appellant, it can legally be said removing the items was justifiable under belief that it belonged to Godfery Hezron Mwakisyala. Even though the appellants did not call the said Hezron Mwakisyala as there was no dispute that is the one who sold the plot to the first appellant who now

wanted a vacant area, only the respondent to 9 emerge and claim ownership of the same. In my considered view any act by the appellants of removing items in the plot cannot amount to theft because they had honest belief that the stones and sands belonged to Hezron Mwakisyala. Absence of intent of committing crime absolves the appellants from the offence of theft they were charged with. In that regard, guilty of the appellants embodied under rule 1(1) and 5(1) of the Magistrate’s Courts Act (Rules of Evidence in Primary Courts) Regulations G.N. 22 of 1964 was not established to beyond reasonable doubts. In the event I allow the appeal, quash the conviction and sentence imposed upon the appellants. It is so ordered. V.M. NONGWA

JUDGE 30/09/2024 Dated and Delivered at Mbeya this 30th September 2024 in presence of the appellants and Ms. Joyce Kasebwa advocate for the Respondent. 10 V.M. NONGWA

JUDGE 11