AYUBU HAMISI BARAKUSA VS MAJUTO IDDI SADIKI

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA PC CRIMINAL APPEAL NO. 35932 OF 2024 (Arising from the Judgment of the District Court of Chemba in Criminal Appeal No. 31136 of 2024; Original from the Criminal Case No. 131/ 2024 Chemba Primary Court) BETWEEN AYUBU HAMISI @BARAKUSA ….……..……..………APPELLANT VS MAJUTO IDDI SAKI ……….………………………...RESPONDENT JUDGMENT Date of the Last Order: 26/03/ 2025 Date of the Judgment: 09/04/ 2025 LONGOPA, J.: This is a second appeal for a decision of the Chemba Primary Court that convicted and sentenced the appellant for criminal trespass C/S 299(a) of the Penal Code, Cap 16 R.E. 2022 on allegations that on 27 th September 2024 appellant the did unlawful trespass the respondent’s land with intent to commit an offence therein. The appellant was sentenced to three months imprisonment or a fine of TZS 300,000/= in case of failure to pay 1|Page fine and order for compensation of TZS 100,000/= to the respondent herein. Upon being dissatisfied by the decision of the Primary Court of Chemba the appellant appealed to the District Court of Chemba which confirmed the decision of the Primary Court of Chamber thus dismissed the appeal. This aggrieved the appellant further and on 29th December 2024 instituted this appeal challenging the decision of the first appellate District Court of Chemba on the following grounds of appeal, namely: 1. That, the appellate District Court erred in law and in fact by upholding the judgment and sentence meted out by trial court while the case against the appellant was not proved beyond reasonable doubts. 2. That the appellate District Court erred in law and in fact in reconsidering the contents of Exhibit P.1 while the said Exhibit was admitted contrary to the requirements of the law. 2|Page 3. That the appellate District Court erred in law when it re-evaluated and relied on the respondent’s testimony without considering that such testimony was weak in securing conviction against the appellant. 4. That the appellate District Court erred in law when it engaged to question the legality of Exhibit D 1 on suspicious possibility of forgery without according any proof to that effect. On 26th March 2025, the parties appeared before me for viva voce hearing of the appeal. The appellant enjoyed the legal services of Mr. Moses Masami, learned advocate for appellant and respondent appeared in person fending for himself. The Counsel for the appellant commenced his submission by reiterating that the appeal is a second appeal after being dissatisfied by the decision of Chemba District Court as the first appellate court delivered on 3rd December 2024. The matter originated from the decision of the Chemba Primary Court in Criminal Case No. 131 of 2024. It was argued 3|Page that the appellant preferred four grounds of appeal which were adopted save for the third ground of appeal which was hereby abandoned thus the appeal remained with three grounds of appeal. On the first ground of appeal, it was submitted that the first appellate court failed to find out/ see that the case before the trial court was not proved to the required standard on the following limbs, namely: One, the Complaint/ charge before the Primary Court contained no name of the Complainant which violated the Third Schedule to the Magistrates Courts Act namely the Primary Courts Criminal Procedure Code, especially Regulation 21(2) that requires that a charge to contain the name of the Complainant. The name of the Complainant is lacking in the charge thus the hearing proceeded without specifying the name of the Complainant. Though the case was between the appellant and respondent but the charge sheet was not proper for the absence of name of the complainant. Two, the appellant was charged under section 299(a) of the Penal Code, Cap 16 R.E. 2022 where the allegations were that the appellant trespassed the respondent’s land on 27th September 2024 at 1400 hours at 4|Page Chemba Village in Chemba District. The charge revealed that it was prepared and signed on 7th September 2024 thus the charge was prepared well in advance before the commission of the offence. It obvious that the appellant was charged for the offence of 27th September 2024 for the charge prepared on 7th September 2024. It means that the preparation of the charge was done before the commission of the offence. It creates a reasonable doubt as the happening of the alleged crime at all. Three, time in the charge sheet and that in the evidence of the respondent herein differ. The charge stated that the offence happened on 27/09/ 2024 at 1400 hours while evidence on record stated by PW 1/ SM 1 was to the effect that offence happened on 27/09/ 2024 at 10:00 am. This implies that the charge was not proved as there was conspicuous disparities between the charge and evidence. Four, the elements/ ingredients of the offence of criminal trespass c/s 299(a) of the Penal Code were not proved. The oral evidence of the Complainant/ respondent herein and Exhibit P1 in totality has nothing indicating that location of the land trespasses nor boundaries were stated. 5|Page This makes the land trespassed uncertain thus there cannot be a trespass to undisclosed/ unknown area/ land. Elements are that (1) existence of the land clearly described with clear boundaries (2) there should by trespass by the appellant unlawfully by entering into the land or putting something on land and (3) the appellant must have entered with intent to commit an offence, cause intimidation or annoy or insult the respondent. According to the appellant, the evidence in the trial court lacked all these aspects. The evidence of PW 1 never established anything that appellant entered/ trespassed with intent to commit offence or intimidation or annoying or insult the respondent. The only evidence in the trial Primary Court is that the respondent found the appellant clearing his land. The offence of criminal trespass was not proved. It was the appellant’s view that the offence was not proved as the ingredients of the offence were not established. Thus, the appellant prayed that the first ground of the appeal has merits and this court is urged to uphold the same as the ground is very solid to allow the appeal. 6|Page On the second ground of appeal, it is stated that Rule 11(1)(b) of the MCA (Rules of Evidence in Primary Courts) Regulations, GN No. 22 of 1964 and GN No 66 of 1972 provides for the procedure of reception of the copies of documents which entails that the same must be signed/ certified by the officer who is in custody/ possession of the original document. Exhibit P1 was not an original document thus the same ought to have been certified by the Chairman or Secretary of the Ward Tribunal that allegedly made the decision declaring the respondent as the rightful owner of the land. It was not any other person. In the instant appeal, Exhibit P.1 was certified by the Resident/ Principal Magistrate in Chemba Primary Court. the signature in the charge and the Exhibit P.1. are similar/ the same while the decision was not delivered by the Primary Court of Chemba. It was the appellant’s submission that the admissibility of Exhibit P1 violated the provisions of the law on the admissibility of documentary evidence of non- original documents as per Rule 11(1)(b) of the MCA Rules of Evidence in Primary Courts. Thus, the appellant stated that this ground was valid and strong thus urged this court to be pleased to uphold the same. 7|Page On the last ground (4th ground), it was submitted that the appellant tendered tickets of the bus that were indicating that when the alleged incident happened the appellant was outside that place as he travelled to Dodoma town to attend a case at the court. Though the Primary Court admitted the Exhibit but it stated that there were possibilities of forgery of the same as the tickets were not EFD tickets. The appellant submitted that the trial court brought in new issues without affording the parties opportunity to address the same. Also, the court became party of the complainant’s case thus lost the neutral arbiter position to the parties. The neutrality of the court was lost. There is nothing on record identifying forgery of the tickets on part of the court save for suspicion of the court, the same violated the powers of the court as an impartial organ thus court was biased against the appellant. In totality of events, the appellant urged this court to allow the appeal, quash and set aside the decision of the District Court of Chemba as the first appellate Court and the conviction and sentence of the trial court, the Primary Court of Chemba. 8|Page On the other hand, Mr. Majuto S/O Idd Saki rose up to submit that he found the appellant in his farm while he was clearing the land at around 10:00 am of the 27/09/ 2024, returned home and reported the matter to the Village authorities for assistance who directed the respondent to report the same the Ward Executive Officer office where the land question was determined. It was respondent’s submission that though the appellant was called by WEO via a mobile phone on that day the appellant refused to go the office of WEO thus there was no physical encounter at all between the appellant and respondent. The respondent insisted that in fact on 27th September 2024, the respondent did not meet, talk/ discuss anything with the appellant nor there was any conversation between the appellant and respondent that would be treated as causing annoyance or intimidation or insult. It was a further submission by the respondent that the offence happened on 27th September 2024 at around 10:00 am when he saw or found the appellant clearing the respondent’s farmland. The respondent refuted that it was not around 14:00 hours as the charge stated. 9|Page In respect of the document tendered, the respondent argued that he tendered a copy that was availed to him by the Secretary of the Ward Tribunal who informed him original copies are retained by the decision maker only. As a result, the document that was tendered was a copy made from the original but the original was not given to him by the Ward Tribunal nor the Primary Court saw the original copy of the decision. With regard to Exhibit D 1 which was tickets that were tendered by respondent in trial court/ the appellant herein were admitted by the Primary Court but were not used as the court gave little evidential value to the same allegedly on possibility of fraud. The respondent concluded that this appeal has no merits thus he prayed this Court to agree with the decision of the trial court and that of the first appellate court as they decided the matter properly between the parties. According to the respondent, there is no need to quash the same or setting aside the conviction and sentence. That being totality of the submission by the parties, this Court has an obligation to analyse the grounds of appeal in context of the available 10 | P a g e records to establish validity or otherwise of the appeal. To address such validity, the analysis of the proceedings and judgments of both lower courts, the law, applicable legal principles and oral submissions of parties. This is the second appellate Court to determine this appeal. Before this Court there are concurrent decisions on conviction and sentence entered against the appellant. It is settled law that powers of the second appellate court are limited from interfering with concurrent findings of the two lower courts. In the case of Nurdin Iddi Ndemule vs Republic (Criminal Appeal 410 of 2018) [2021] TZCA 99 (6 April 2021) (TANZLII), at pages 4-5, the Court laid the principles that: …we are alive to the principle that in the second appeal like the present one, the Court should rarely interfere with concurrent findings of fact by the lower courts based on credibility. This is so because being a second appellate court, we have not had the opportunity of seeing, hearing and assessing the demeanour of the witnesses - see Seif Mohamed E.L Abadan vs Republic, Criminal Appeal No. 11 | P a g e 320 of 2009 (unreported). However, the Court will interfere with concurrent findings if there has been misapprehension of the nature, and quality of the evidence and other recognized factors occasioning miscarriage of justice. This position was emphasized in the case of WANKURU MWITA VS REPUBLIC., Criminal Appeal No. 219 of 2012 (unreported) where the Court said: “... The law is well-settled that on second appeal, the Court will not readily disturb concurrent findings of facts by the trial Court and first appellate Court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature and quality of the evidence; misdirection or non-direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice." Having considered the seriousness of the grounds of appeal preferred by the appellant, it is in the opinion of this Court that this is a fit case for 12 | P a g e the second appellate court to interfere with the concurrent findings of the two subordinate courts if the grounds of appeal which go to the root of the case are proved to be valid. Failure to prove the case beyond reasonable doubts is one of the grounds of appeal. It is premised on various limbs. One, the charge contained no name of the Complainant. Two, the charge was prepared way back prior to the commission of the offence. Three, there were disparities between the evidence of the prosecution and charge. Four, ingredients of the offence were not proved. As this ground touches much on the charge it is important to have a thorough review of the charge. The charge available on record is therefore quoted in verbatim as follows: JINA NA ANUANI YA WASHITAKIWA: MSHITAKIWA JINA: AYUB S/O HAMIS@BARAKUSA KAB: MRANGI KAZ: MKULIMA DIN: MUISLAMU 13 | P a g e UMRI: 59 YRS MAK: CHEMBA KOSA NA KIFUNGU CHA SHERIA: Kuingia kwa Jinai Kifungu cha 299(a) cha Sheria ya Kanuni ya Adhabu Sura ya 16 kama ilivyofanyiwa Marekebisho Mwaka 2022. MAELEZO YA KOSA: Wewe Ayubu S/O Hamisi @Barakusa unashitakiwa kuwa mnamo tarehe 27.09.2024 majira ya saa 14:00 hrs huko katika Kijiji cha Chemba Wilaya ya Chemba Mkoa wa Dodoma, kwa makusudi na bila halali uliingia katika Shamba la Majuto S/O Idd Saki na kufyeka miti pori eneo lenye ukubwa wa ekari mbili bila kuwa na Kibali au idhini ya mwenye eneo hilo, huku ukijua kuwa kuifanya hivyo ni kinyume cha Sheria. MAHALI: POLISI CHEMBA SIGNED COURT ORDERLY TAREHE: 07.09. 2024. 14 | P a g e SIGNED MKUU WA KITUO POLISI CHEMBA. In respect of the first limb is absence of the name of the complainant on the charge which is violative of the law governing criminal procedure in the Primary Court, it is my view that such aspect may not have significantly affected the proceedings in the trial and first appellate court. Rule 21(2) of the Primary Courts Criminal Procedure Code which is a Third Schedule to the Magistrates Courts Act, Cap 11 R.E. 2019 explicitly states that: (2) Every charge shall be brought in the name of the Republic acting on the complaint of the complainant who shall also be named. I have perused thoroughly the case file and the charge preferred against the appellant in the trial court. There are two instances where the name of the appellant appears. First, the details of the parties in the first page of the case file reveals that Complainant to be the respondent who is 15 | P a g e a resident of Chemba Village in Chemba District within Dodoma region. Second, the particulars of the offence in the charge reveals that trespassed land is belonging to one Majuto S/O Idd Saki. In this court’s view the anomaly is not serious to warrant the proceedings to be declared a nullity as such error is curable. The second limb on the date when the charge was prepared raised a lot of doubts on the occurrence of the offence. The charge is dated 7th September 2024 which is twenty days before the allegedly occurrence of the offence. Dating the charge on 7th September 2024 while the offence happened on 27th September 2024 ought to have awakened the first appellate court seriously scrutinize the matter. It brings a sense that the alleged crime never happened but it was pre-planned by the respondent’s side. This limb has a merit on it. On variance between charge and evidence, it is settled law that such disparities amount to failure to establish the offence. In the case of Matera Simango @ Masana vs Republic (Criminal Appeal No. 517 of 16 | P a g e 2019) [2021] TZCA 621 (29 October 2021) (TANZLII), pages 9-10, the Court noted that: We therefore find that the prosecution case was shaken to its root as the variance between the particulars of the offence in the charge sheet and the evidence in the record was not remedied by amendment of the charge as provided for under section 234 of the CPA. There is therefore, no doubt that the evidence in the record was not brought in line with the particulars in the charge. The Court dealt with a similar situation in Sylvester Albogast v. The Republic, Criminal Appeal No. 309 of 2015 (unreported) where reference was also made to its previous decision in Leonard Raphael and Another, Criminal Appeal No. 4 of 1992 (unreported) and stated as follows: “This, is not however to say that prosecutors cannot make mistakes in drafting charges. But where there are such mistakes, the law has also provided a solution. The remedy, as suggested by this Court in Leonard Raphael and Another v. The Republic, Criminal Appeal No. 4 of 1992 (unreported) is that: - "Prosecutors and those who preside over 17 | P a g e criminal trials are reminded that when, as in this case, in the cause of trial the evidence is at variance with the charge and discloses an offence not laid in the charge, they should invoke the provisions of section 234 of the CPA 1985 and have the charge amended in order to bring it in line with the evidence. It is on record that throughout the trial the respondent had testified that he found the appellant clearing his land at around 10:00 am of 27 th September 2024 while the Charge stated that the time of the commission of the offence was at 14:00 hours of 27th September 2024. It does not need any legal interpolation to note that there is lucid difference in terms of timing of the commission of the offence. Simply, the evidence on record is not in support of the charge. There was no offence committed at 14:00 hours for which the appellant stood charged. Thus, the finding of the two subordinate courts was erroneous to that extent. This limb is meritorious. On ingredients of the offence of criminal trespass, there must exist both actus reus and mens rea for the conviction to subsists. In absence of 18 | P a g e proof of the intent to commit an offence, criminal trespass offence cannot stand. It is different from a civil trespass where a mere entry into another person’s land, building or property amounts to trespass. In criminal trespass the threshold is higher by requiring a proof of mens rea which is in form of intent to commit an offence or annoy, or insult or intimidate the person in possession of the land or property alleged to have been intruded/ interfered. Illustratively this point was underscored in the case of Grace Olotu Martin vs Ami Ramadhani Mpungwe (Civil Appeal 91 of 2020) [2023] TZCA 193 (20 April 2023) (TANZLII), at page 13, where the Court of Appeal stated that: In law, the developments made by the appellant on the respondent's land caused discomfort or inconvenience on the part of the respondent. Trespass in civil law differs from that in criminal law on this point. The offence of criminal trespass consists in entering or remaining on the land of another person with an intent to 19 | P a g e commit an offence or intimidate, insult or annoy any person in possession of such property. (See section 299 of the Penal Code, Cap. 16). There is no flicker of doubt that on record there is nothing establishing the intent to commit an offence or annoy, or intimate or insult the person in possession of the property alleged to have been interfered with. It was the respondent’s evidence that on 27th September 2024 he found the appellant clearing his land. The duo never talked to one another nor the appellant was aware that respondent was in the alleged area/place. It was the respondent’s version of evidence that having only seen the appellant clearing his land he ran to the Village Executive Officer and Chairman of the Village Council for assistance where he was informed to report to the Ward Executive Officer as the land dispute between the appellant and respondent was handled by the Ward Tribunal. Thus, there was no proof the mens rea of the offence of criminal trespass in the circumstances of the matter. 20 | P a g e I am in concurrence with the submission of the appellant that proof the case of criminal trespass beyond reasonable doubts was not established by the prosecution in three limbs out of four limbs that were preferred to explain this failure to prove the case to the required standard. It is correct that the case was not proved beyond reasonable doubt. As a result, the proof of the case beyond reasonable doubts as required by law was not met. I proceed to find the first ground of appeal in its totality has merits. It should be upheld. The second ground is on irregular admissibility of the documentary evidence, namely Exhibit P.1. The appellant vehemently argued that Exhibit P.1 was admitted irregularly as the law would require secondary document to be certified by the officer who is in possession of the original document. Regulation 11(1) (b) of the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations, GN No 22 of 1964 and GN No 66 of 1972 provides on the modality of admission of the documentary evidence when original documents is not there. It is exception to the general rule for the Primary court to admit secondary evidence. However, such admission 21 | P a g e should be compliant with the law governing admissibility of documentary evidence. The Magistrates Courts (Rules of Evidence in Primary Courts) Regulations state that: 11. Documentary evidence (1) The original document must always be produced. Exceptions: (a) A copy of the original document may be proved if the original has been lost or destroyed or if it is in the hands of the opposing party and he will not produce it, but (unless paragraph (b) of this exception applies) oral evidence must be given that it is a true copy of the original; (b) a copy of a court or official document may be proved if it contains a certificate, signed by a registrar, magistrate or the official who has the original document, that it is a true copy. 22 | P a g e (2) Where documentary evidence is produced, oral evidence must be given to connect it with the case. Perusal of record reveals that Exhibit P.1. is a copy of the document purporting to be a decision of the Ward Tribunal that declared the respondent to be owner of the land that gave rise to the criminal trespass hence this second appeal. The document is purportedly certified to be a true copy of the original by the Resident Magistrate in the Chemba Primary Court. The decision was made by the Ward Tribunal for Chemba and it is the one that availed a copy to the respondent. According to the law governing the secondary documentary evidence in primary court, it was the Chairman of the respective Ward Tribunal or Secretary of the Ward Tribunal who is in possession of the original judgment/decision who should have certified such document to be true copy of the original. As Exhibit P.1 was certified by the Magistrate of Chemba Primary Court who was not in possession of the original document, the admissibility of the same was contrary to the law governing the admissibility of 23 | P a g e documentary evidence. The document was improperly admitted before the Court. The effect of document admitted irregularly in evidence is to be expunged from the record of the court. I hereby proceed to expunge from record Exhibit P.1. was being admitted improperly and irregularly thus contravening the explicit provisions of the law which are of mandatory nature. This was the principle in the case of Julius Patson Mwampashi vs Republic (Criminal Appeal No. 537 of 2021) [2024] TZCA 1175 (3 December 2024) (TANZLII), at page 12, where the Court of Appeal observed that: As submitted by the learned advocate for the appellant and supported by Mr. Peres, the receipt of the evidence of PW2, PW4, PW5 and PW7 together with exhibits PI, P2, P3 and P4 was irregular on the ground that, the same were not listed during committal proceedings and preliminary hearing, and thus, contravened the requirement under the provisions of section 246 (2) of the CPA, the consequence of which 24 | P a g e is to expunge them as a remedy. We agree with the learned counsel considering the dictates of section 246 (2) of the Criminal Procedure Act. Indeed, having found that Exhibit P.1 was irregularly admitted in evidence and thus befell the consequences of being expunged from the record, the second ground of appeal is therefore valid and solid enough to warrant upholding it. The entire submission of the appellant on this aspect has demonstrated that certainly the admissibility of the only evidence relied by the first appellate court to uphold the decision has iota of merits beyond circumspection. I therefore uphold this ground of appeal. On the last ground of appeal, the appellant has challenged the decision of the first appellate court entertaining doubts on the evidence of the appellant with regard to bus tickets from Chemba to Dodoma and return. It is on record that the bus tickets were admitted collectively as Exhibit D. 1 by the trial Court. However, this was not subject of 25 | P a g e determination by the first appellate court. My perusal of the Judgment of the first appellate court reveals that the basis of upholding the conviction and sentence of the appellant was existence of Exhibit P.1. The first appellate court never went on to analysis if the both the actus reus and mens rea of offence existed before it confirmed the decision of the trial court. As the first appellate court did not hear and determine the question of validity of the trial Primary Court to disregard the contents of Exhibit D1 collectively, it is considered view of this case that it is inappropriate for this court to determine a matter that was not addressed by the first appellate court. I am guided by the decisions of the Court of Appeal of Tanzania that the second appellate court’s jurisdiction to entertain matter not determine by first appellate court is limited. The second appellate is precluded to do so. This principle was illustrated in the case of Justine Bruno @ Mkandamambwe vs The Director of Public Prosecutions (Criminal Appeal 323 of 2018) [2021] TZCA 490 (17 September 2021) (TANZLII), at pages 12-13, where the Court stated that: 26 | P a g e Aside from the case of Emmanuel Japhet (supra) cited to us, there are a plethora of decisions on the subject. For instance, in the case of Sadick Marwa Kisase v R, Criminal Appeal No. 83 of 2012 (unreported), the Court stressed that: “The Court has repeatedly held that matters not raised in the first appellate court cannot be raised in a second appellate court.” Therefore, this Court has no jurisdiction to entertain those new grounds, even though according to section 6 (1) of the Appellate Jurisdiction Act, Cap.141 R.E. 2019, this Court is empowered to hear appeals from the High Court. Thus, the third ground is bound to fail as I have not found any justification to raise it at the second appellate stage while the same did not form part and parcel of issues before the first appellate court. Having considered the appeal in its totality, this court finds that the first appellate court erred serious to rely on existence of the decision of the 27 | P a g e Ward Tribunal for Chemba Ward declaring the respondent to be rightful owner to dismiss the appeal. Reasons are two folded. First, criminal trespass being a crime, the first appellate court ought to have considered whether ingredients of the offence were proved. Existence of a decision forming exhibit P.1 could only prove the act. There was a need to prove mental element of the offence which under section 299 (a) is dubbed as “intent to commit an offence or annoy, or insult or intimidate the person in possession of the property/land…”. This was never discussed, analysed or determined by the first appellate court. Second, the first appellate court ought to have established whether the admissibility of Exhibit P.1 was in accordance with applicable legal procedures. A more serious anomaly is the apparent failure by the first appellate court to consider the possibility of the adverse claim over the land in which the criminal trespass is alleged to have committed. At pages 5-6 of the Judgment of the first appellate court, the learned Magistrate analysed that the appellant herein had a judgment in his favour against a third party who instituted a claim against the appellant. That decision of the District Land 28 | P a g e and Housing Tribunal for Kondoa had declared the appellant the owner according to learned magistrate. Similarly, there exists a decision of Ward Tribunal for Chemba stating that the respondent is the owner of the land. Having observed to that extent, the learned magistrate ought to have stated categorically if the land in which the appellant was allegedly trespassed is not the same land he was declared the owner by the District Land and Housing Tribunal for Kondoa between Hadija Mbasa and Ayub Hamis Barakusa. The absence of the analysis in this aspect on different ownership over the land makes the whole analysis of first appellate inadequate to certainly find the appellant guilty if the question of the ownership has two different decisions. In the case of Sylivester Nkangaa v. Raphael Alberto (1992) TLR 110, at page 112 where it was held inter alia:- A charge of criminal trespass cannot succeed where the matter involved land in dispute whose ownership has not 29 | P a g e finally determined by a civil suit via court of law. A Criminal Court is not a proper forum for determining the rights of those claiming ownership of Land. Only a Civil Court via Civil Suit can determine matters of Land ownership. That being the case, the charge of criminal trespass is not maintainable as the ownership of the land in dispute has not been resolved by a court of law in a civil suit. The rationale behind that doctrine is that under section 9 of the Penal Code Cap. 16 the alleged trespasser is protected because he has an honest (bona fide) claim to the land in dispute, even though the claim may be mistaken. The honest claim of right can only be destroyed after a court of law in a civil suit determines who is the owner of the land in dispute. Given the fact that first appellate court raised the possibilities of contending claims over the same land in pages 5 and 6 of the judgment which are essentially the only pages for analysis of the appeal, it was of 30 | P a g e paramountcy importance for the first appellate court to state the reasons for disregarding the ownership of the land declared by the District Land and Housing Tribunal for Kondoa in favour of the appellant. Absence of clarity and analysis to distinguish if the land referred in two decisions is the same or different leave only one conclusion that the ownership of the land was in question. Thus, the first appellate court could not in law find the appellant guilty of the offence of criminal trespass in land whose ownership is contested. Generally, in this appeal there was no iota of proof of criminal trespass contrary to section 299(a) of the Penal Code, Cap 16 R.E. 2022 as I have observed that neither the trial nor first appellate court bothered to analyse existence of mens rea in form of ‘intent to commit a crime or cause annoyance, or insulting or intimidating the person in possession of the property. The principles governing proof of criminal cases are clear that it is the prosecution that is duty bound to prove the case and that the standard 31 | P a g e of proof is that of beyond reasonable doubts. These were illustratively stated in the case of Daimu Daimu Rashid @ Double D vs Republic (Criminal Appeal No. 5 of 2018) [2019] TZCA 366 (4 November 2019) (TANZLII), at pages 7-8, where the Court emphasized that: In disposing this appeal, we wish to take off by asserting the cardinal principle of criminal justice system in Tanzania that the prosecution bears the burden of proving its case beyond reasonable doubt. This is clearly provided under Section 3 (2) (a) of the Evidence Act, Cap. 6 R.E 2002. As to what it means by proof beyond reasonable doubt, the Court in the case of Samson Matiga v. R, Criminal Appeal No. 205 of 2007(unreported) at page 5, had this to say:- ...prosecution case, as the law provides, must be proved beyond reasonable doubt. What this means, to put it simply, is that the prosecution evidence must be so strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who 32 | P a g e committed the offence. (See also Yusuf Abdallah Ally v. Republic, Criminal Appeal No. 300 of 2009, (unreported)). The said proof does not depend on the number of witnesses but rather, to their credibility (See section 143 of the Tanzania Evidence Act Cap 6 R. E 2002 and the case of Goodluck Kyando v. Republic, Criminal Appeal No. 118 of 2003/ and Majaliwa Guze v. Republic, Criminal Appeal No. 213 of 2004 (both unreported)." This Court having found that mens rea was never established in this appeal and that admission of Exhibit P. 1 was marred by irregularities hence expunged from record there is nothing valuable whatsoever on record to warrant conviction and sentence of the appellant in the circumstances. This appeal is therefore meritorious and it deserve to be allowed in its entirety. That said and done, I hereby quash the whole of the proceedings of both trial and first appellate court for being a nullity and set aside judgments of both trial and first appellate court. The subordinate courts 33 | P a g e erred seriously to enter the conviction and sentence thereto as well as upholding the same at the appellate level. There was no any serious, tangible and cogent evidence to reach to such conviction and sentence. The conviction of the appellant is quashed and the sentence is set aside. The compensation order resulting from this decision is also set aside. It is so ordered. DATED at DODOMA this 9th day of April 2025 E.E. LONGOPA JUDGE 09/04/2025. 34 | P a g e