akaluufoo twewli mbasha vs republic 2007 tzhc 416 20 june 2007

\ IN THE HIGH COURT OF TANZANIA AT MOSHI f (DC) CRIMINAL APPEAL NO. 56 OF 2005 (C/F DC HAI CRIMINAL CASE NO. 69/2005) AKALUUFOO TWEWLI M BASHA....... APPELLANT VERSUS THE REPUBLIC.........................................RESPONDENT JUDGMENT HON. JUNDU, J. The Appellant, in the trial court was charged with Criminal Trespass c/s 299 (a) of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that the Appellant on the 5th day of February, 2005 at about 16.00 hours at Bomang’ombe Township within Hai District in Kilimanjaro Region, the Appellant unlawfully entered into the piece o f land Plot No. 410 Block “D” LD, the property of one Lawrence s/o Martin Kimaro and built a water construction well with the intention to intimidate, insult or annoy the said Lawrence s/o Martin Kimaro. Having heard the evidence of the parties, the trial magistrate found the Appellant guilty of the offence. He convicted him and discharged him conditionally on 6/7/2005. Having been aggrieved by the conviction and sentence thereon, the Appellant has appealed to this court listing three grounds o f appeal in his Petition of Appeal filed in this court on 2/9/2005 namely that:- (1)The learned trial magistrate erred in finding that the requisite intent had been proved. (2) The learned trial magistrate erred in finding that ownership of the plot was not disputed. (3) The learned trial magistrate erred in finding that the Appellant had trespassed on the land and that he had malice in doing so. In the said Petition o f Appeal, the Appellant has prayed to this court to allow the appeal, quash and set aside the conviction and order imposed on the Appellant by the trial magistrate and substitute them for an acquittal. On 9/5/2007, by consent, this court ordered the parties to argue the appeal by way of written submissions. The parties have so done. Mr. Jonathan, learned counsel is advocating for the Appellant while Mr. Juma, learned State Attorney acted for the Respondent/Republic. The three grounds of appeal have been argued collectively by the Appellant and responded in the same manner by the Respondent. The Appellant, in his evidence on record had maintained in the trial court that he and his six brothers were the owners of the land measuring 8 acres which he was alleged to have trespassed. The said land was allegedly allocated to their grandfather on the order o f the then colonial District Commissioner. It was further alleged in the evidence o f the Appellant in or about the year 2000 the said land was surveyed by the Government and devided into plots for allocation to individuals but the Appellant contended that he had no notice o f such exercise being undertaken by the land authorities. The Appellant contends that he was charged with the offence of Criminal Trespass against the said background. He had gone to the said land only to find that sand had been offloaded thereon by a person he did not know and as the land office could not identify the said person to him, the Appellant went about cultivating the land as usual and putting up an infrastructure for permanent development. This led to him being charged with the offence in the trial court. On the other hand, the evidence of the prosecution witnesses in the trial court was that PW. 1 had been allocated the land in dispute lawfully. It is contended that the evidence o f PW.2 one Clara Lucas, an Assistant Surveyor in the Hai District Land Office corroborated the evidence of PW .l on the said point. It is further contended that PW. 1 had also produced in the trial court the letter of offer (Exhibit P .l) and Title Deed (Exhibit P.2) in respect of the land in dispute, that is Plot No. 410, Block D, Bomang’ombe area. Mr. Juma, learned State Attorney in his submission contended that the said position is a conclusive proof on the ownership of the land by P W. 1. In my considered view, the main issue for consideration and determination by this court is whether or not the Appellant had unlawfully entered into the disputed land with intent to commit an offence or intimidate, insult, annoy any person in possession of the land. This issue is the one that goes to establish whether the relevant ingredients of the offence o f Criminal Trespass c/s 299 o f the Penal Code, Cap. 16, Vol. 1 were fully established or proved by the prosecution side against the Appellant in the trial court. I have carefully considered the submission o f the parties in respect of the grounds of appeal. I have also carefully read the proceedings and the Judgment of the trial court. Mr. Juma, learned State Attorney in his submission contends that the evidence on the prosecution side in the trial court was conclusive that PW. 1 had legal ownership of the land in dispute and that the Appellant had knowledge that the land in dispute belonged to someone else by the very fact that when he went there he found that there was some development that had been carried out. Mr. Juma, therefore contends that the act o f the Appellant of proceeding to cultivate and develop the said land was intended to annoy P W. 1, the alleged legal owner of the same. He further contends that since the land in dispute was surveyed way back in 1983 but the Appellant trespassed on the same in 2005, the Appellant in any reasonable explanation could not have said that he had no knowledge that the said land had been surveyed as survey of land involves physical works on site. He further contends that the Appellant (DW .l) did not call any other person of his clan/family to corroborate his story. Though the trial magistrate in his Judgment held that the Appellant had the knowledge that the land in dispute had been surveyed hence the Appellant had maliciously trespassed over the same, I am persuaded that the Appellant had entered the suitland genuinely believing that he was still the owner o f the same. Indeed, the evidence of the prosecution side in the trial court or even the trial magistrate did not show how was the process o f surveying the said land brought to the knowledge of the Appellant or the former owners o f the said land in dispute. Therefore, in my considered view, it cannot be held that when the Appellant entered the land in dispute had done so with intent to commit an offence or intimidate insult or annoy any person in possession of the said land. Indeed, this court (Bramble, J.) in Lyanga VS Republic f 19711 HCD n. 305 in respect of the offence o f Criminal Trespass had stated - “An essential ingredient o f the offence is the intention to commit an offence or to intimidate, insult or annoy. If a person exercises what he considers to be his right, although mistakenly so, he cannot be said to have the intention necessary to bring his act within the Section.” I am of the considered view that the prosecution side in the trial court did not prove that the Appellant had entered the land in dispute with the intention o f committing an offence, intimidate, insult or annoy PW. 1 other than that he genuinely thought that he was still the lawful owner of the land in dispute. In other words, I hold that the ingredients of the offence o f criminal trespass, the offence which the Appellant had been charged with in the trial court had not been established by the prosecution side. In the premise, I find that this appeal has merit. I hereby allow the same. I hereby set aside the conviction and the conditional discharge order imposed on the Appellant by the trial magistrate. However, should the Appellant wish to contest the ownership of the land in dispute, he is advised to institute a civil suit in a competent court or tribunal to entertain the same. It is so ordered. JUDGE 20/6/2007 JUDGE 20/6/2007 20 . 6.2007 Coram: F.A.R. Jundu, J. For the Appellant: Mr. Jonathan, Advocate. For the Respondent: Miss Rugaihuruza, State Attorney C/C: Muyungi Court: Judgment delivered in the presence of Mr. Jonathan, learned counsel for the Appellant and in the presence of Miss Rugaihuruza, learned State Attorney for the ;Respondent/Republic. F.A.R. JUNDU JUDGE 20/6/2007 ATMOSflfl