19961218 TZHC Dar es Salaam2

IN ·THE iIIGE COURT OF TANZAmA I . AT DAR ES SALM.Mo • q • ANORD MGALUSI O O O O O O O O O O O O O O ~ O C G .,APPEW.NT VERSUS • 4 WILSON SEMHENDA o • • • • • ·~ •• ~ • • • • o o oRESPONDENT. JUDGEMENT .. . ... BUBESHI 2 .J. The appellant original complainent a~ the trial•court was aggrieved by the '\-, J / decision of the first appellate court when it reversed the decision of the trial court where had been co:iavicted of offences of Crimina:J- trespass and melicious damage to property O .. The subject of complaint being that the responde: Wilson s/o Semwenda had on 29/2/95 onte_red into the appellant's lm;d and cut the down two orange trees \~Orth Tsh 30,000 the property ofjMorogoro diocese. Ty.e 1st appellate court reversed the findings of the trial court mainly because tho appellant had not established.from •• fl ~ whom did he acquire that piece " , ._ • - "- .f".' "' of land., That the 6hurch had failed toJ,proi::luce documentary evidence as to , •l ' • ownership .. Again added the District Court 'that th6 destroyed orange trees v,er.s ' ~ not tendered in court. It was the opinion of the 1st appellate court thnt th~ ,, , '· (- respondent being heir to his fathers land could not be blamed for developing his fathers lande In othor words, it wf5 the -~istrict Co~rt 's /vi 0 'ihat the respondent hnd not committed the offence - that the prosecution had not proved .. <It.- •.~ ~ :...a.- 1' its case beyond reasonable doubt. At the hearing of this second appeal, the respondent could not make appearanc-e, despite court efforts to trace him. The afisa mtendaoi wa Kij~ji at Ikwamba wro·te on the summons that n~a~po toka 1995, mpaka sasa sijuwi alikoooo••· This court was stisfied that the respondent could not be traced, aasily. The appeal therefore proceeded without his presence. -~ ' . After reviewing the evidence ::i_t was established by the trial court that ~<::, :'espondent had invaded the Chu:i;-ch .area 1 and the u~rooted orange tre~s · ....,r,tg to the Church garden. This evidence was given by §ijali Kaunda SM2 who ~...,,__that only one orange tree had been cutdownt . Similarly SM3 stanly ~~.d to have been arou~d t<{he:q. the respondent was summoned at the y--- . f , (1 1/ asked about the :~~egations. Evidence of SM IV Stephen •• 2/ •• - 2 - Mgalus was on similar lines. ~ j The issue of ::··rnership of the area in dispute was not discussed in court but .on cross examination by the court assessor'~ SM III Yakobo told court that I the church land is adjacent to the resp6ndcnt 1 s land. In his defence the respondent said his land is adjacent to thot of the chm-ch arid that the crm,r~h was built first before· he built his house nine years ago. The respondent added that he was offered that piece of land by one Godani now• deceased. ),I" ,;, Again on cross examination by trial court the respondent said the bo~ary between the two,ar~as is a pathway and he admitted that the churdh land is planted with orange t'rees and that that the land he had cleared is adjacent to the orange tree gard_erl, When one analyses this appeal, it is bas~cally a boundary problem. However I do not see on record whether the trial court visited the land in dispute to determine the bbundaries . before' ohe could come to the question of criminal trespass or not. The trial court had·also the evidence of one Philimor. I Mbaruk was the Chairman of the Kitongoji 0 \·!hen • • Mbaruk SU III to go by. crossexamined by the appellant, this witnes$ said. I 99 ni kweli mshtakiwa ameharibu mali ya kruiisa, ka haribu miti miwili ya michungwa pia mshtakiwa ameingia eneo.oo la uwanja wa kanisaeoon The issues that were raised by the 1st appellate court, in particular the sub \ subject mathr of tho Church producing title deed, is to my view irrelcvan-~ I in this appe_al. I think the first appellate court erred to bring into the case matters that were irrelevant in this ragard. The issue hOG was simply this: whether the respondent had trespassed into the church area and cudown twc orange b:eeeso After a review of the evidence, I ar.i satisfied that the trial court had come to a sound decision on the evidence 'before it. On the second court hm-,e- d ver I agree with evidence tendered that only one orange tree was cutdot-m .t•· and not two. In: ·.the final event I allow the appeal, the decision of the District Court is hereby reversed and con:viction and sentence by the trial court upheld. Appeal succeeds with costs. before H A~~JJL·\_-~· A.Go l3ubeshi 1 and JUDGE the Resporjdent • ,· 18/12/96