MASUDI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA PC CRIMINAL APPEAL NO. 5080 OF 2024 (Arising from Criminal Appeal No. 19 of2023 District Court of Bukoba; Originating from Katerero Primary Court in Criminal Case No. 88 of2023) AMINI MASUDI........................................................................... APPELLANT

VERSUS JUDITH RWECHUNGULA............................................................ RESPONDENT

JUDGMENT 6th and 14th March, 2025 BANZI, J.: The appellant has appealed to this Court against the decision of Bukoba District Court (the first appellate court) which upheld the decision of Katerero Primary Court (the trial court), where the appellant was arraigned and charged with the offence of Criminal Trespass contrary to section 299 of the Penal Code [Cap. 16 R.E. 2022] (the Penal Code). Before the trial court, it was alleged that, on 20/07/2023 at Kambale, Bujugo area, within Bukoba District in Kagera Region, the appellant trespassed into the respondent's land and sold 70 pine trees valued at TZS 700,000.00 to one Yassin. The appellant denied the charge levelled against him. In her evidence, the respondent stated that, she owns the land which Page 1 of 8 is neighbouring to the land of the appellant, but in 2017 the appellant exceeded boundaries, entered into her land and planted pine trees therein. She sued him at Bujugo Ward Tribunal where she was declared the owner and the appellant was ordered to remove his trees within three months. No appeal was preferred. However, the appellant did not abide to the orders of the tribunal. On 20/07/2023, the respondent went to her farm and found the said Yassin cutting those trees and he alleged to have purchased them from the appellant. Her evidence was supported by Leticia Benjamini (SM2) who stated that, the appellant's land is

neighbouring the land of the respondent but he exceeded his boundaries and planted trees in the respondent's land. In his defence, the appellant contended that, the said land was owned by his grandfather who bequeathed the same to his mother. When his mother died, the clan members appointed him to administer her estate and he was handed over that land by the clan members. According to him, that land belongs to him and it is the respondent who exceeded her boundaries to his land. His evidence was supported by Dawson Petro (SU2) and Paulo Kyamani (SU4) who stated that, the suit land was bequeathed to the appellant by his mother. On his side, Charles Petro (SU3) contended that the appellant planted trees in 2007 and the respondent had never claimed to own that land. Page 2 of 8 At the end of the trial, the trial court was satisfied that, the case was proved to the required standard, whereby, it convicted and sentenced the appellant to pay fine of TZS 40,000.00 or to serve imprisonment of one month. He was also ordered to return those 70 trees within sixty days. Aggrieved with such decision, the appellant appealed to Bukoba District Court but his appeal was unsuccessfully. Still aggrieved, the appellant came to this Court with four grounds of appeal, thus: 1. The trial Magistrate grossly erred in law and fact by upholding the decision of the Primary Court which erred by determining the matter before it in favour of the respondent while there was no justification on the face of recordas to who is the owner of the land claimed to be trespassed.

2. The trial Magistrate grossly erred in law and fact by upholding the decision of the Primary Court which erred by failure to note that the case was not proved beyond reasonable doubt 3. The trial Magistrate grossly erred in law and fact by upholding the decision of the Primary Court which misconceived the issues before it and did not evaluate the evidence adduced by the parties.

4. Trial Magistrate grossly erred in law and fact by upholding the decision of the Primary Court which erred Page 3 of 8 in law and fact by determining the matter against the weight of evidence. At the hearing of the appeal, both parties appeared in person, unrepresented. The appellant began his submission by adopting his grounds of appeal as part of his submission and went on contending that, the land in dispute belongs to him and the trees he harvested belonged to him. Thus, it was wrong to charge him over his own land. In her brief reply, the respondent contended that, those trees were planted by the appellant who exceeded the border and planted them in her land. Concerning ownership of suit land, she submitted that, the suit land belongs to her after being declared so by Bujugo Ward Tribunal in 2017 and the appellant did not appeal against that decision. She further submitted that, she applied for execution but the application was dismissed for non- appearance as she was in Dar es Salaam attending her brother. In his brief rejoinder, the appellant argued that, the suit land was handed over to him in 2004 as the administrator of the estate of his mother though he has not distributed those estates to the lawful heirs. He contended that, he had appealed against the decision of the ward tribunal. Page 4 of 8 Having carefully perused the records of lower courts and

having considered the submissions of learned counsel for the parties, the issue of determination is whether the lower courts acted properly to determine the criminal case to its finality in the presence of pending dispute over ownership of land. it is settled law that, where the dispute arises as to the ownership of land, a criminal court is not the proper forum to determine the dispute of that nature, instead, the matter has to be first resolved in civil courts before criminal charges can be instituted. This position is stated in various cases including the cited cases of Ismail Bushaija vs Republic [1991] TLR 100 and Kusekwa Nyanza vs Christopher Mkangala (Criminal Appeal No 233 of 2016) [2018] TZCA 491 (7 December 2018). In this case, the respondent contended that, the land where one Yassin was found cutting down the trees is hers after she had won the case and declared so by Bujugo Ward Tribunal. The appellant on the other hand, claimed that, the land belongs to him as he inherited it from his mother. The respondent further tendered the copy of the decision of the tribunal (Exhibit Pl) which shows that, the appellant was ordered to remove the trees he planted on the suit land and vacate from that land within three months from Page 5 of 8 04/10/2017. However, the appellant did not abide to that order. In his grounds of appeal before this Court, the appellant claimed that,

there was no proof of ownership. However, a thorough perusal of Exhibit Pl reveals that, in its decision, the ward tribunal declared the respondent as the lawful owner of the suit land and there was no appeal that was preferred by the appellant. This goes without saying that, the appellant was satisfied with the findings of the ward, tribunal that the land belongs to the respondent. With that decision he was obliged to remove his trees within given period but he did not do so. Consequently, according to her, she applied for execution before the District Land and Housing Tribunal for Bukoba which was however, dismissed for non-appearance. She contended that, she failed to proceed with execution processes because she was at Dar es Salaam attending her sick brother. In the circumstance, considering that the appellant was ordered to remove the trees and vacate the suit land, I find that, by cutting down the trees which he was ordered to remove, there was no criminal offence that was committed by the appellant. Notably, the respondent was declared the owner of the land but not owner of the trees planted on that land. Therefore, even if the appellant failed to remove them from that period to that particular moment, did not turn ownership of those trees to the respondent. In that Page 6 of 8 regard, as there was lapse of more than five years from when the appellant was ordered to

remove those trees, if the respondent wished to own those trees, she was required to apply for execution of the decision of the ward tribunal instead of pursuing criminal charge. The position would be different if the respondent was declared owner of the land and whatever attached to it that is when her criminal allegation would stand. But from nature of the decision of tribunal, the respondent was barred from fully enjoyment of the suit land until the trees are removed. In the circumstance, it is my finding that, a civil case was not yet determined to its finality before the respondent had resorted to criminal charges. This Court in the case of John Mwombeki Byombalirwa vs Regional Commissioner & Regional Police Commander Bukoba [1986] TLR 73 held that: "a charge of criminal trespass cannot arise until the ownership of the land is clearly established in a civil court." That being the case, the respondent has to execute the order of the ward tribunal for the appellant to remove his trees and vacate from her land. Without such order, failure to vacate the land, did not turn the respondent as the owner of the trees planted on that land. Since the execution process is not yet completed, it cannot be said that, the dispute between the parties was determined to its finality. Page 7 of 8 For these reasons, the appellant's conviction cannot be allowed to stand. Thus, I allow the appeal invoking the revisional powers and nullify the proceedings, quash the conviction, and set aside the sentence and compensation order meted against the appellant. Also, the proceedings and judgment of Bukoba District Court are quashed. The respondent if still interested, has to apply for execution of decision of Bujugo Ward Tribunal. It is so ordered. I. K. BANZI

JUDGE 14/03/2025 Delivered this 14th day of March, 2025 in the presence of the appellant, respondent, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. I. K. BANZI

JUDGE 14/03/2025 Page 8 of 8