19940223 TZHC Dar es Salaam 1

IN THE HIGH CQURT OF TANZANIA AT DAR ES SALAAM ------~--------- AFlELLATE JURISDICTION HIGH COURT CRIMINAL AU":-EAL NO. 38 OF 1993 . OF THE DISTRICT COUi~T OF ILALA D+STRICT AT KIVUKONI Before: C. WEJJA Esq., Resident/District M3.gistro.te APOLO LUSA, TO DHISEKO o o All ELLANT o o o • • o o VERSUS THE UNITED RE1UDLIC o •• 0 • • 1 ROSECUTOR. .· --~---------------- JUDMENT _____ ,.. ____ J. __ MACKANJA J. . .. The facts are brief' nnd concis~. It WQS esto.blished before the trinl court that Apolo s/o Lu.snto w::.i.s guilty of malicious damage to ·property contr::.,ry to s~ction 32 6 (5) of the i-enal Code. I will talk about the law under -which he w.J.s ·charged later. At the moment ~uf£ice it.·to ~- that the appellant, who was prior to this incident renti~g premises in a house belonging to the compl2innnt, found his persono.l effects strewn outside when he returned home on the evinln,s of 18th October 1992. His lnndlbrd hnd done so after hnving secured an eviction order. Tne appellant did not get deterred; according to him he use~ the b~ckyard to gain ingress into another room also within the SG.ine ·premises. The co4rt found that the appellant h.J.d tc: breClk ::.i. padlock before occupying the disputed 1~-:·,·:;r.1. It is the alleged destruction of the padlock whi~h ho.s l.Junded the offence charged. The appellnnt has denied h:J.ving broJ,cen nny padlock before entering the room. Insteo.d now in his first ground of appeal 3.lleges that the le:irn.:?d trial m:1gistr3.te erred in law and infact in findL1.es the ::ippellant guilty. In his• written submissions 0n this point he argues thCl.t the evidence led by the prosecution is contradictory on the issue. . ' For whereas the complnino.nt, Alh:1ji Musa Ngakonda, testified that he took the broken pndlo~k to the Police station who declined to kee-ff'jo.s an exhibit, D/Copl. Elibariki (PW .2) claimed to have found the padlock CJ.bandoned at the alleged scene of crime two days later wn.en he -visited it. These contradictions are compounded by lack of direct evidence ~s whether indeed the ~ppellant broke the pqdlock· because the complainant never saw hi □ do so. As there were ') other people livin1s in ti~e house at the time of the nlleged incident, •••/ 2 t I 2 I find a lot of merit in the .::i.ppell(mt 1.s -ccncern for the prosecution's failure ·co swJmon thelii. . I ca1 only sny tho.t the Prosecution f.::i.ilcd t-:-.i d,J so because these other tencmts would have given evidence which is prejudicio.l to the prosecution's case. The 0:th2r [sT.Junds -~f .J.ppenl,. although couched in different words they anwunt t.J tiJ.e .sn.rne allegations contained in the first 3r:mnd. After re-ev2,.lu.::i.ting evidence I am not at all persuo.ded thnt the offence Jf lil.:J.licious damag·e to property ho.s be?en proved., In order to prove this offence the prosecution must prove malice on the part -:>f the a.ccus2d which nctuated hira · to destroy the complainant Is property" None of -· 1~1e~ti;; been proved. It is for these rec.sons I feel that the-Republic has acted correctly in declinin;J to support the conviction. Mr,. Masaju, learned 8t1te Attorney, has correctly· conceded that there wo.s no evidence upon which n conviction could be founded.. I will now turn to consider the law~-· The appellant is not s3.tisfied with the trial court's finding that he is guilty of the offence of, malicious d:::unage to property contrary to s~~tion 326 (5) of the i· en3l Code~ · ~sem;.cy . As I have shown quite/the offence cDurced is not borne out by the evidence •. Now, wns the lnw correctly applied? I will reproprodue the 12..w under which the 3.ppellant was charged,prosecuted and ,ultimately vns. found gu.il ty and was convicted accordin:.;ly. ' It provides:- 11Section 326 (5J If the property in question . is vessel in distress or wrecked or stro.nded, or anythin 5 which belongs to such .vessel, the offender ·is guilty of a fellony. ~.ii. The L::mguaee of the law is clear and unambiguous •.. The appellant could only 1~Je found 8U,il ty as cha.rged if the alleged malicious da.mete;e w:J.s in :..~es.peo,:t: o~ a vessel in distress or wrecked or str~nded or anything which.belongs to such vessel. Wholly unconnected with the offence witiJ.which the ap_pellant was charged the particulars of offence allege that the appellant"••• did wilfully destroy door lock v.::i.lued at Shs.300/ =• •• rt.. The particulars of offen_ce o~ly go to show that the learned tri:::i.l i11':lgistrate assumed that the charge was correct,. anq as a result, ended up finding the appellnnt gu'il ty of an offence whJ.ch was neyer :proved by the evidence •·· . . /3 . r· I :., 3 on record. In order to avoid such errors public ·prosecutors, and trial courts alike·, sh,::uld ex:unine cha.rtse sheets carefully before accused p,::,rs-:-:,ns ::tre called upon to plead whi.bh ·are al together unrel'.l.ted to the evidence which is intended to proye theru!J A short gl.J.nce .J.t 1he :i. enal Code would hetve alerted the ~ uYLic 1 rosecut..--Jr that .the appropriate law is sGcti-m 326 (1) of the i enal Code which provides~-, • "Any person who wil)'ully :md unlo.wfully destroys or damages property is suil ty of an offence •.•• 11 It would appear, however,· that the wronc; citation of the law did not projudice the ~ppell.J.nto I fact, all the defence evidence is directed towards the charge of malicious damage to property as cre~ted by subsection (1). of section 326 of the i-enal Code., In these circumstances/would not. find that the error in citing the 1;n-ong section of the law did embarrass the· a:~-';.1ell:::1.11t in ma.kine; his· defence~- Indeed, I would not-say th::.t it caused only prejudice which resulted in the appellant beine denied justice~ All along the prosecution the ap:(~ell:mt and the court conducted their business under the muTua.l misapprehension that the charee and ·the law were in order~ Fro,11 these observations I am I quited satisfied that in the circumst:-i.nces of this case the irregularity did not t:;o to the root of the prosecution. case. It was not fatal to the proeeedinesr l~~~~.(!2-~~4J!~!~12~.~~~ ~£I>~ra~. l};ld,. o~!!~E.§ .(1939) EACA 118). Upon the foregoine rensons the appeal is allowed~ Consequently conviction is quashed und sentence is ~et aside~ The appellant is to be refunded Shs-.,5-~~oqf/111;. if. he paid the fine which was imposed. Delivered on 23rd Februci.ry, 1994 •. I \ /~!(...--•-,~•-L------·--1 ,~_.... ~ - . e;.. \. ,' J. M. MACKANJA --...· JUDGE . ' I \ .4 AT DAR ES SALA.Al'Vl 23RD.FEBRUARY, 1994 Mr. Masaju, S~ A.,'For Republic· Mr. Ntimbwa, SA Ap,_;ellant: In person.