19990804 TZHC Mtwara

IN TlfE HIGH COURT OF TANZA~lIA . AT .. MTti/ARA (PC) CRIMINAL APPEAL No. 4//)6 (From the decision of Kilwa District Court in Criminal appeal No. 11/96) Affl'HONY PETER MOOWETQ,.. :'."' - - - - - ... - - - APPELLANT Vers~ ,IBaA.IIDdlJ..ALIJ@ KONOOI - - - - • ·~· ··.;;. ·- - .RESPONDENT . ·-- - - JUDGMENT: J KAJi I J =-·" .' . This i.s a second ~ppeal. ~ IBRAJ:ffi(ALL'J KOil1GOI ~f9'l'e iCil~ l ? r ~ ~ ~1. ~tis11 . "., ' : ' • • ,! for setting fire to his .crops IJ/s 321 of the fel:lal Code Cap 16. He 1.ost •. ~ was, agg.c:1eved. His appoa.1.to l{i1wa Dis~ict .Court was He Wai? aggrieved. ~~ thi-G ~... At the trial the app,e~t. ~ e d . evidence to the effect that OIi ..- ~ 2/111/9'3 he- ~~ived inforrnat.i,oa t~t hi,1;. ..$hanwd } t a l i ~ -aet 011 fire by the resPondent.When ht went there be found his -Ct'Ops ~ ,been gutted by fir&. This include..t 5 coco:mtf; tre~, 10 ooange t r ~ and Banana plantation.· He took the ma!ter to.the village authority wher~,he said the respondent admitted to have caused the fire but he denied that Shamba to be the property of the appellant, Instead he said the said Shamba was his. No compromise was reached at. He decided to take the matter to Kilwa Primary Court at Kipatimu. The trial Court held the disputed Shamba to be the property of the respondent. He was aggrieved. He appealed to Kilwa District Court. The first appellate Court concurred with-the trial Court that the Sharnba in dispute belonged to the respondent. The appellant was aggrieved. Hence this appeal~ In his grounds of appeal he repeated mo:roo.rl.ess,.w.bat·he hadsta:ted before the Lower Courts. 2 I have carefully considered the evidenee on record, the decisions of the Lower Courts, the appellant •s grounds of appeal toge.th.er with the overall circumstances surrounding this case.• There is no dispute that there is a dispute over the ownership of the Sharnba in issue. While the appellant is maintaining that the -said Shamba is his, the respondent is also maintaining the same to be his. A dispute of ownership of this nature cannot be dealt with in a Criminal Case. This can conveniently be dealt with in a Civil Case. It was therefore wrong for the Lower Courts to decide this issue of ownership in a Criminal Case where the Courts were called upon to decide whether the respondent was guilty or not. After finding that the 0~8f:1:>,hip of the Shamba in dispute was in dispute, the trial Court should have made a finding on whether the respandent was guilty or not. The par~ies should have been left free to deal with the question of ownership in a Civil li tisation. ·· The Lower Courts' finding that t:b.e Sharnba' in dispute belongs to the respondent is hereby qua.s~. The parties are free to take this issue in a Civil case subject to time limitation. As far as the acquittal of the respondent: is concerned, this was proper. The appellant did not see the respondent ;setting fire to the said crops; nor was there anybody who saw him doing so. Secondly, a charge against s. 321 PC canriot succeed where o~mership of the Shamba is in dispute. The Case of SYLIVESTER NKANGAA Vs RAPHAEL ALBER'IO (1992) TLR 110 is very much relevant on this~ Save for the quashing of the finding on ownership of the Shamba in dispute, the appeal is otherwise dismissed. A / ! / f ,I ·,_" l s.N. KA.JI, JUDGE. 4/8/1999.; 3 ... Date 4/8/99 Coram: Kaji, J. For Appellant For Respondent B/C I,.3.dda - Court: Judgment has beeri'tlel:ivered in the absence of both parties who have indicated they ca:nnot attend this 4th day of August, 1999, /\ I ! /, \ •.,..- /· s. jff'~ •; KAJI , JUDGE. 4/8/99.