abdulhamani ally vs republic 2000 tzhc 21 11 january 2000

IN THE HIGH COURT OF TANZANIA (DAE ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM CRIMINAL APPEAL NO. 6k OF 1999 ( ORffGdiNAL CRIMINAL CASE NO. 170 OF 1998 OF THE DISTRICT COURT OF KISARAWE DISTRICT AT KISARAWE) ABDULHAMANI .ALLY ...................... APPELLANT Versus THE REPUBLIC ..„ ..................................... o . . . i RESPONDENT J U D G B M B f T IH5MA J: This is an appeal by Abdulhaman /illy against conviction and sentence by the Kisarawe D istrict Court. The appellant who was charged and c-on.vipted o f two o f arson c/s 3^1 and 319 respecticely, on 17/6/99 ’••■'as sentenced to three years imprisonment on each count and the sentences were to run concurrentlyt The prosecution’ s case is that the appellant on 6th October, 1998 a-t Chamungu, Vikindu V illage w illfu lly and unlawfully Set fir e on the farm and house o f Shaban Fupi Alias Makoye (PW1). Five prosecution witnesses t e s tifie d including PW1 the complainant 5 however the evidende o f PW3 the only eye Witness is o f great significance to the appellant’ s case as w ill be seen in the course o f the judgment. The t r ia l D istrict Magistrate was s a tis fie d on the strength o f the prosecution witnesses that the appellant wa^- g u ilt y as • •. charged and further that the land in dispute in c i v i l case No. 6/97 at Mkuranga Primary Court is not one and the same in the criminal case. The appellant in his defence admitted to have set fir e to his farm (shamba) in the course o f preparing for cu ltivation . He demiedp setting fir e to any one’ s house in the process. In proof o f his claim o f right over the fsrm (shamba) the appellant tendered as evidence copy o f the judgment in c i v i l case No. 6/1997 in Mkuranga Primary Court dated 29/12/98. The appellant h d seccessfully sued Juma A lly (FW2) over the f-rm which is one and the same boiog'fce^eztred to in .case, 3h this appeal he is represented by Mr. Rutabingwa learned advo#a%e and has preferred fiv e grounds as following: — that the t r ia l Magistrate erred in law and fact on relying on the evidence o f FW1 and R>/2 without caastioning himself in view o f th eir role m C iv il Case No. 6/97 at Mkuranga Primary Court, ~ that the t r ia l Magistrate erred in finding that the act o f the appellant was w ilfu l' and unlawful* - that the t r ia l Magistrate erred in holding that the land in dispute and the subject matter in c i v i l case No. 6/97 was d ifferen t from the one in this criminal case. - that i t was wrong for the t r ia l Magistrate to refuse to give weight on the judgment by the Mkuranga Primary court confirming appellant's claim o f right over the dispated land. - that appellant’ s conviction under Section 319 o f the Penal code was without cogent proof on the existence o f the house. Mr. Rutabingwa submitting for the appellant has that there was no evidence by the prosecution that appellant w illfu lly and unlawfull set f i f e to the farm and house. On. the contrary there is evidence that the land in dispute being one and the same as that in C iv il Case No. 6/9? belongs to the appellant in terms o f PW3» Further there v/as no cogent evidence on the existence o f a h*use alleged to have been set on fiv e by the appellant. Mr. Rutabingwa has also contended that the evidence o f the appellant is corroborated by P\rf3 on IfrMsfc the ounership o f the Shamba set on fir e in preparation for cu ltivation , a common practice in the area; Mr. Ntwina, who advocated for the Republic, supported the t r ia l court's finding and conviction following appellant own admission to setting fiv e to the shamba in question. Curiously Mr. Ntwina conceded to existence o f a cloud and or confusion with regard to the ownership o f the shamba /lend in question* Whereby he ui*ged for a t r ia l in the interest o f ju stice. ♦n examination and cons id e a tio n o f the evidence on record I agree v/ith Mr. Rutabingwa learned advocate that the lsne3 in dispute is one and the same in the c i v i l case as well as the criminal case and thrt the appellant is the ovn&r o f the land. The evidence is abound both from the judgment o f the Mkuranga Primary Court and FW? Selemani Saidi, who claims • paternity to both Juma A lly FW2 and the appellant. I t is undoubtedly the °ame shamba which appellant set on fiv e on 5/10/98. I also find no evidence in support o f the second count under Section 319 o f the Penal code to the extent that no hause existed in the shamba. The question which ca lls for determination is whether the appellant w ill­ fu lly andU?ll^yv-l l y set fir e on the shamba as charged in the fi r s t court:, in other words was the appellant's action without lawful In my considered view in the lig h t o f the evidence I do not think so. Appellant claim o f right over the shamba is beyond question, while the setting on o f shambae is in keeping with the practice while preparing for cu ltivation , not withstanding the fact that the alleged offence took place before the judgment in c i v i l cose No, 6/97 was pronounced* It was held by this court ( Duff. J ) in the case o f R V /JOS MV/AKI3ITU ( Crim, Rev, 59-B-67) 1967 HCD 185 that i t would be unlawful for a person to set fir e to his own properly i f another person is in the premises or other buildings v/ere endangered. In txiat case i t appeared that only the home o f the accused wa" damaged and that cannot constitute arson within the meaning o f Section 319 o f the Penal code. Furthermore courts have held that where Evidence establishes an accused' careless or negligent conduct but does not establish w ilfu l or unlawful behaviour a conviction o f arson w ill not strnd, I have found no w ilfu l or unlawful behaviour on the part o f the appellant from the evidence on record. In the circumstances I allow the appeal, qua^h the conviction and set aside the sentence o f three years imprisonment by the t r ia l court. Appellant to be set free forth with unless otherwise law fully held, ■/X:! / ' s " ' 'S.IHSMA JUDGE 11/ 1/2000