benson kabaka vs republic 2007 tzhc 253 31 august 2007

IN THE HIGH COURT OF TANZANIA . ATTABORA

APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 16 OF 2004 (Original Criminal Case No. 39 of 2002 of the District Court of Kasulu District at Kasulu) Before: N.B. KURWIJIRA Esq. SENIOR DISTRICT MAGISTRATE BENSON KABAKA.......................................................... APPELLANT (Original Accused) Versus THE REPUBLIC.............................................................. RESPONDENT (Original Prosecutor)

IUDGMENT 20/7/2007 & 31/8/2007 CHINGUWILE, I. On 25/7/2003 the appellant was convicted in absentia of an offence of Criminal Trespass contrary to section 199(b) of the Penal Code Cap 16 R.E.

2002. He was sentenced to serve twelve months in prison. At the trial Court, it was alleged that in July 1999 the appellant unlawfully entered into Plot 269 Block P situated at Kumnyika Area in Kasulu District with intent to annoy one Himid s/o Issa who was PW1. According to the proceedings when trial began on 4/2/2002 the appellant appeared in person and pleaded not guilty to the offence. He also appeared on 19/2/2002 the date set for hearing. He was present when a preliminary hearing was conducted on 29/5/2002. However, from 2/7/2002 to the date of judgment which is 20/2/2003 the appellant failed to appear in court. Initially it was reported that he was sick. As the appellant failed to appear before the court to defend himself, conviction was entered in his absence. It seems that upon getting information regarding his conviction the appellant sought to set aside his. conviction in absentia -through Miscellaneous Criminal Application No. 2/2003. According to the. affidavit in support of his application deponed by one Jeremiah Lima his son in4aw, the .appellant had for a long time been suffering from mental disease. He also attached a letter from the District Mental Health Coordinator of Kasulu District Hospital which supported his statement. The letter stated that the appellant had been under medical care since 1990. The Court rejected this reason hence it dismissed the

application. This in a nutshell is the cause of this appeal. The appellant who did not wish to appear is appealing against the decision in Criminal Case No. 39/2002 and Miscellaneous Criminal Application No. 2 of 2003. In the appeal he has raised four grounds of appeal. In the first ground of appeal, he is challenging the court’s decision to proceed under section 226(1) of the Criminal Procedure Act Cap 20 R.E. 2002, while there was a report that he had been sick. Secondly he is arguing that the District Magistrate erred in entering conviction for an offence of Criminal Trespass contrary to section 299(b) of the Penal Code while there was no proof. Thirdly he is challenging the excessive sentence meted out. Lastly he is complaining about the dismissal of his application which sought to set aside conviction entered in his absence. Mr. Rweyongeza learned State Attorney who appeared on behalf of the Republic supported conviction against the appellant. With regard to a sentence of twelve months imprisonment,’ the learned State Attorney submitted that it was excessive hence contravening section 299(b) of the Penal Code which provides for a sentence of three months. However on further reflection, the learned State Attorney submitted that there was no evidence that the appellant wanted to annoy or intimidate the complainant. He also submitted that as the appellant claimed that the

disputed piece of land was his, the matter should have been transferred to the lands triBunal. In order to prove an offence of criminal trespass one has to go back to the ingredients of the offence. Section 299(b) provides;- “Anyperson who - (b) having law fully entered into or upon the property unlawfully rem ains there with intent thereby to intim idatey insult or annoy the person in possession o f the property or with intent to commit t dn offence; is guilty o f an offence and liable to imprisonment for three months; i f the property upon which the offence is committed is any building; tent or vessel used as a human dw elling or any building used as a place for worship or as a place for the custody o f property ; the offender is liable to imprisonment for one year. ” According to the particulars of the offence, the appellant unlawfully entered into the Plot and remained there with intent to intimidate the owner. Section 299(b) presupposes that a person who is guilty under this provision must have entered into the property lawfully and it is the act of remaining there with intent to intimidate or insult or annoy which is unlawful. In the instant case, the particulars of the offence does not support the offence charged. It is stated that the appellant unlawfully entered into Plot 269 Block P and remained there. This is a mix up of ingredients of section 299(a) and 299(b). The

charge therefore is bad in law. According to the record, during preliminary hearing the appellant pleaded not guilty and stated that, “the plot belongs to me as such I did not trespass.” In my view the trial court ought to have advised the complainant to proceed by way of a civil action in order to enable the court to determine the issue of ownership. I therefore find that the trial court misdirected itself in determining a criminal matter while there was no proof as to who is the lawful owner of such property. In the instant case we only have the evidence of PW1 that the property is his. It is trite law that charges of criminal trespass cannot stand where the issue of ownership of disputed land has not first been resolved. It is impossible to establish the elements of the offence of criminal trespass when the issue of ownership of the disputed land is still at stake. I therefore find that the ingredients of the offence were not satisfied. Even if there was proof that the appellant trespassed into the plot allocated to PW1, the trial Magistrate should not have sentenced the appellant to twelve months imprisonment. No evidence was adduced to show that it was a dwelling house or vessel or a building used as a place of worship or a place for the custody of property. This being the case if proved, proper sentence would have been up to three months imprisonment. I now revert to the appellant’s complaint that the learned trial magistrate erred in law and fact in proceeding under section 226(1) of the Criminal Procedure Act Cap 20 R'.E.

2002. A trial court can proceed to dispose of a case in the absence of the accused only when such absence can not be explained at all or his whereabouts are unknown. In the instant case, it was once reported that he was sick. Furthermore after his conviction his son in-law on Jeremiah Lima applied before the trial court for an order that the conviction and sentence against the appellant be set aside as he was mentally sick. He also attached a medical report from Kasulu District hospital .which indicated that the appellant was under mental care since 1990. This does show that the appellant did not abscond deliberately; therefore the trial court should have accorded him opportunity to defend himself. For the foregoing reasons, I find that the case against the appellant was not proved. Accordingly I quash his conviction and set aside a sentence of 12 months imprisonment. Any party who wish to pursue this matter should resort to civil litigation. A.F. CHINGUWILE

JUDGE 31/ 8/2007 Judgment delivered in the presence of Mr. Manyanda State Attorney. A.F. CHINGUWILE

TUDGE 31/ 8/2007