20060724 TZHC Moshi 2

IN THE HIGH COURT OF TANZANIA ATMOSHI (PC) CRIMINAL APPEAL NO. 1 OF 2003 J (C/F DC MOSHI CRIMINAL APPEAL NO. 57/2002) (ORIGINAL UCHIRA P/C CR. CASE NO. 47/2002) HEMED SAIDI ------APPELLANT VERSUS SALEHE SAIDI -----------RESPONDENT JUDGMENT HON. JUNDU, J. (.) This is a second appeal against the decision of the District Court of Moshi, the first appellate court, in Criminal Appeal No. 57 of 2002 arising from Original Criminal Case No. 47/2002 of Uchira Primary Court, the trial court. In the trial court, the Appellant as the complainant charged the Respondent with Stealing els 265 of the Penal Code, Cap. 16, Vol.I of the laws. The particulars of the offence were that the Respondent on 24th June, 2006 at 9:00 hours at Mabungo Village in Moshi District within Kilimanjaro Region did steal 25 bags of maize valued at T.shs 300,000/= the property of one Hemed s/o Said, the Appellant an act which was unlawful. Having the evidence of the Appellant and his witnesses (the complainant's side) and the Respondent and his witnesses (the Accused's side), the trial court stated as follows - -' "Baada ya Mahakama kuchunguza ushahidi toka pande zote, imekubaliana kwa kauli ya pamoja ya kuwa mlalamikaji amethibitisha shtaka kwa sababu, (1) upo ushahidi kwamba aliyelima na kupalilia ni SM. I kwa hiyo kitendo cha SU. I kuingia ndani ya shamba ambalo hakulihudumia, akiwa hata kama lilikuwa lake, ni kosa na halistahili kufumbiwa macho. (2) upo ushahidi kutoka kwa mashahidi wa SU. I uliothibitisha Mahakama kwamba SU. I hajawahi kulima ndani ya hilo shamba hata maramoja, (SU.4) kwa kuwa SU.I alikiri kuvuna hayo mahindi ni wazi kwamba alifanya hivyo makusudi kwa 1 kujiamini kuwa hatafanywa chochote zaidi ya kudaiwa. Kwa hali hiyo kitendo cha mtu kutumia nguvu yake yoyote kwa kujipatia haki ni kosa lajinai. Kama SU.I anadai shamba alilovuna ni mali yake, basi afungue madai ili ukweli uonekane. Lakini akiendelea kuwaacha watu wakalima yeye akaja kuvuna ataendelea kushtakiwa namna ilivyofanyika sasa. Kwa hali hiyo basi Mahakama kwa kauli ya pamoja imemwona mshtakiwa anayo hatia, hivyo anatiwa hatiani namna alivyoshtakiwa." As far as the above finding of the trial court is concerned, it is clear to me that the said court was satisfied upon the evidence of the Appellant and his witnesses adduced before the said <ia) court that he had proved the charge against the Respondent beyond reasonable doubt hence it convicted the Respondent for the offence charged. Thereafter, the trial court sentenced the Respondent to payment of a fine of shs. 5000/= or three months imprisonment in default. It also ordered the Respondent to return to the Appellant the eight (8) bags of maize which had been allegedly stolen by the Respondent. However, the Respondent having been aggrieved by the conviction, sentence and order passed by the trial court, he appealed against them to the District Court of Moshi, the first appellate court. The latter court having considered the appeal before it and having revaluated the evidence on record and considered the dec~sion of the trial court, it quashed and set aside the conviction, sentence and the order that had been passed by the trial court on the Respondent on • _1 the ground that the charge against the Respondent had not been proved as by law required and that the main issue involved between the parties was on ownership of the land. The said position is clear from what the said first appellate court stated in its judgment, the Principal District Magistrate who heard the appeal stated - "Nimepitia kwa uangalifu mkubwa mwenendo mzima wa shauri hili pamoja na hukumu iliyotolewa. Vile vile nimepitia zile sababu za rufaa na majibu yake kama zilivyoandikwa na kujibiwa na pande zote mbili. Wadaawa wote wawili hawakuwa najambo la kuongeza wakati rufaa hii iliposikilizwa hapo tarehe 10/12/2002. 2 Kwa mujibu wa yale yote ylliyoandikwa katikajalada hilo I nimebaini kwamba tatizo lililopo sfoI wizi wa mahindi bali ni umiliki wa ardhi/shamba ambapo niahindi hayo yalipandwa na I kuvunwa. Ninasema hivyo kwa sababu mlalamikaji mwenyewe I katika ushahidi wake aliiambia Mahakama ya Mwanzo kwamba mshtakiwa nae anadai kwamba shabba hilo ni mali yake na akaongeza kwamba wakati wa pali~i watoto wake walifukuzwa na hawakurudi tena katika shamba hilo. Naye shahidi wake ' anayeitwa Ibrahim Bakari (SM.2) aliiambia mahakama hiyo . I kwamba mnamo mwezi Februari 2002 alipokuwa shambanikwake umbali wa eka moja kutoka shambla la ugomvi alimuona mlalamikaji akilima shamba hilo tkini hajui ugomvi uliopo kati ya I mlalamikaji na mshtakiwa, shahidi mwingine kwa jina la Lamla Saidi (SM.3) aliiambia mahakama!kwamba hajui habari ya I kuibiana mahindi ila anachojua ni kwamba shamba· hilo ni mali ya mlalamikaji. Hao ndio mashahidi:walioitwa na mlalamikaji. Je ushahidi wa kuthibitisha kwamba mshtakiwa aliiba mahindi ya mlalamikaj i uko wapi? I Hii ndiyo sababu iliyonifahya nitamke toka awali kwamba I tatizo katika shauri zima ni umiliki (ownership) wa shamba hilo I . . zaidi kuliko wizi wa mahindi au kitu kingine chochote kile. Utetezi wa mshtakiwa katika Mailakama hiyo ya Mwanzo ni 0 kwamba shamba hilo ni mali yakJ toka mwaka 1964 alipopewa na Utawala wa Wachili. Mshtakiwa!amedai kwamba amekuwa I akilima shamba hilo toka wakati ~uo mpaka sasa na kwamba mahindi yaliyovunwa ni mali ya.lJe halali na ndiyo sababu uongozi I wa Kijiji umemkabidhi ayatunze wakati kesi hii ikiendelea I kusikilizwa mahakamni. Shahidi, wake anayeitwa Marystela (SU.2) aliiambia mahakama kwabiba shamba hilo ni mali ya j mshtakiwa na kwamba mwaka 2Q01 yeye ndiye alilima shamba I hilo kwa kulikodisha lakini mwaka huu (2002) mshtakiwa I ' . .' alimkataza na akalima yeye mwenyewe. Shahidi wa mshtakiwa kwajina la Miraji Rashidi Madegesho (SU.3) aliiambia mahakama kwamba mnamo mwaka 1972 alirithi shambajirani nahilo la mshtakiwa na anashangaa mwaka huu kusikia eti mshtakiwa ameiba mahindi katika shamba la mlalamikaji. Shahidi mwingine kwajina la Saidi Senzota (SU.4) yeye alisema kwamba shamba lake la urithi linapakana na hilo la ugomvi lakini hajui ni la nani kati ya mlalamikaji na mshtakiwa. Shahidi huyu alisema kwamba huwa anamwona mtu mmoja aitwaye Saidi akilima shamba hilo. Huo ndio ushahidi uliotolewa na mshtakiwa katika Mahakama hiyo ya Mwanzo." 0 Further, the said first appellate court directed its attention to the requirement of the law that a complainant to prove the charge against an accused person beyond reasonable doubt and that in its view the complainant (the Appellant) in the trial court had failed to discharge the said burden. The said first appellate court stated - " Ni muhimu izingatiwe kwamba kwa mujibu wa sheria ya ushahidi katika Mahakama za Mwanzo ya 1964 ni jukumu la mlalamikaji kuthibitisha shtaka alilofikisha mbele ya mahakama bila kuacha wasiwasi au shaka yoyote. Katika hukumu ya Mahakama ya Mwanzo inadaiwa kwamba mlalamikaji amethibitisha shtaka kwa sababu mbili zifuatazo:- ·' (1) Upo ushahidi kwamba aliyetuma na kupalilia ni SM (Mlalamikaji) (2) Upo ushahidi kwamba aliyetuma na kupalilia ni SM. I (Mlalamikaji), (3) Upo ushahidi kutoka kwa mashahidi wa SU. I (Mshtakiwa) kwamba mshtakiwa hajawahi kulima ndani ya hilo shamba hata maramoja (SU.4). Ninashindwa kuelewa jinsi mahakama hiyo ilivyofikia uamuzi huo. Hakuna ushahidi uliothibitisha kwamba mlalamikaji ndiye aliyelima na kupalilia shamba hilo. Kinyume chake ushahidi wa mlalamikaji mwenyewe ni kwamba watoto wake walifukuzwa kutoka katika shamba hilo na hawakurudi tena. 4 .. Watoto hao hawakuitwa kutoa ushahidi mahakamani. Kuhusu sababu ya pili ni kweli kwamba SU.4 alisema kwamba hajawahi kumwona mshtakiwa akilima shamba hilo hata mara J moja. Lakini ikumbukwe kwamba shahidi hakusema kwamba alikwishamuona mlalamikaji akilima shamba hilo. Yeye alisema kwamba ameona mtu mmoja aitwaye Saidi akilima · shamba hilo. Vile vile shahidi huyo hakusema ni nani aliyelima shamba hilo. Kutokana na ushahidi uliotolewa na pande zote mbili katika shauri hili ni msimamo na uamuzi wa mahakama hii kwamba shtaka hili halikuthibitishwa kwa kiwango kinachotakiwa na sheria. K wa sababu hiyo rufaa hii inakubaliwa na uamuzi wa mahakama ya mwanzo unabatilishwa na kuwekwa kando. Kama faini hiyo ya shilingi elfu tano (shs.5,000/=) imelipwa inaamriwa kwamba fedha hizo zirudishwe kwa mrufani mara moja. Inaamriwa vile vile kwamba mahindi yaliyovunjwa na mrufani na kukabidhiwa ayatunze na uongozi wa Kijiji yabakie ni mali ya mrufani. Mahakama hii inatoa ushauri kwamba badala ya kuhangaika na kesi ya jinai mmoja wa hawa wahusika afungue shauri la madai kuthibitisha umiliki (Ownership) halali wa shamba hilo. ·' Rufaa imekubaliwa. Mahindi yaliyovunwa ni halali ya mshtakiwa/mrufani." In short, the above findings of the first appellate court were that the Appellant, that is the complainant in the trial court did not prove the charge (stealing of maize) against the Respondent beyond reasonable doubt as required by law. Further, the said court found that the issue between the Appellant and the Respondent was on the ownership of the piece of land upon which the Respondent had allegedly stolen the maize. It advised the parties to institute a suit in a civil court to resolve the issue of ownership of the said land between them. It allowed the Respondent's appeal and ordered that he be refunded shs. 5,000/= fine ifhe had already paid the 5 same. It also ordered that the eight (8) bags of maize allegedly to have been stolen by him to be returned to him. , The Appellant having been aggrieved by the decision of the first appellate court has appealed to this court listing seven (7) grounds of appeal in his Petition of Appeal namely:- (1) That the Appellate District Court failed to take into consideration that the Appellant proved the case of theft beyond all reasonable doubts hence wrongly reversed the sentence. (2) That the lower District Court erred both in law and infact that the lower Primary Court correctly evaluated the whole evidence adduced before the court and then correctly ,., · convicted the Respondent to that effect. (3) That the subordinate District Court failed to take into account that the trial court correctly f{f) found that the farm is the property of the Appellant who cultivated the farm, planted, weeded, supplied fertilizers and the Respondent without having cultivated or plant them or even attended them at all. · (4) That the lower Appellate District Court erred both in the law and infact that if the suit land was the property of the Respondent then would have taken any legal steps when the Appellant was cultivating the shamba, planting, weeding and fertilizing it fill when the crops raped and harvested them therefore wrongly reversed the sentence imposed on the Respondent. (5) That the Appellate District Court wrongly implemented the issue of ownership of the suit land which did not arise during the hearing of the case and as a results wrongly reversed ·' the sentence and acquitted the Respondent. (_J (6) That the subordinate Appellate District Court erred both in law and infact when it failed to take into consideration that the Appellant acquired the suit land way back in 1964 and from there he was peacefully using it fill in the year 21002 the Respondent harvested the Appellant's crops state them and panted with then without Appellant's crops. (7) That the Appellant's District Court erred both in law and infant when it failed to take note that there was overwhelming evidence adduced in court by PW.2 during cross examination that he was the one who cultivated the suit land after employed by the Appellant and the Respondent stole the crops and had no any farms adjacent to the Appellants shamba hence was guilty to the charge of stealing the crops. 6 Based on the aforesaid grounds of appeal, the Appellant, in his Petition of Appeal prayed to this court to allow the appeal, set aside the decision of the first appellate court and restore the ..·. conviction '. . . . ··. ~ ... ahd the sentence imposed on the Respondent by the tijal court. " : On the other hand, the Respondent made a written Reply to the Petition of Appeal opposing the appeal and praying the same to be dismissed. He stated:- (1) That in respect of Para 1 of the appeal the Respondent state that the case was not proved beyond all reasonable doubts as required by the law hence correctly reversed the lower court findings. (2) That in respect of the contents in Para 2 of the Appeal the Respondent state that the Appellate District Court found that the Primary court failed to evaluate the evidence adduced in court and correctly ordered the acquittal of the Respondent and ordered the refund of the fine paid. (3) That as regard to the contents in para 3 of the Petition of Appeal the Respondent state that the District Court correctly pointed out that the major issue in the case was about ownership of the suitland and not otherwise. (4) That as regard to the contents in para 4 of the Appeal the Respondent state that no legal steps taken as the Appellant had not at any time encroached into the suit land from 1964. (5) That in respect of the contents in Para of the Appeal the Respondent state that the .-~-. Appellate District correctly pointed out that the issue of ownership of the suit land raised when the Appellant and the Respondent claimed that the suit land in question is his property on which can not be determined by the criminal court hence ordered civil case -' be filed so that the issue of ownership be determined. <i9 (6) That as regards to the contents in Para 6 of the Petition of Appeal, the Respondent state that the Appellate District Court correctly found that there was ample evidence that the Respondent was all the times cultivating the suit land and no credible evidence from the prosecution Appellate side to have seen him using the suit land therefore correctly reversed the judgment of the trial court. · (7) That in respect of Para 7 of the Appeal the Respondent state that he is the one cultivated the maize which he harvested and this was witnessed and confirmed by the village authority ordered that they be given to him the Respondent and this proves that there was no issue of theft proved by the Appellant as claimed. '7 The Appellant made a rejoinder to the Reply to the Petition of Appeal. However, he mostly emphasized what he had already stated earlier in the Petition of Appeal. I heed not · reproduced the said rejoinder. As I have earlier stated this is a second appeal instituted by the Appellant before this court. This court as a second appellate court is only concerned with consideration and determination of · .... points of law in the appeal arising from the decision of the first appellate court. I have carefully considered the grounds of appeal in the Petition of Appeal filed by the Appellant and the Reply to the Petition of Appeal filed by the Respondent as well as the rejoinder to the Reply of Appeal filed by the Appellant. I have carefully read the records of the two courts below as well as their judgments therein. The record and the judgments of the two courts below are quite clear that the :0 Appellant in the trial court had charged the Respondent with stealing of maize els 265 of the Penal Code, Cap.16, Vol. 1 of the laws. Upon adduction of evidence of both parties in the trial court, the latter held that the Appellant had proved the charge against the Respondent beyond reasonable doubt. The said court found the Respondent guilty, convicted him and sentence him accordingly. However, the trial court in passing stated that if the Respondent did so on the ground that the ownership of the shamba was his then he was required to institute civil suit to determine and resolve the issue of ownership of the shamba. The Respondent appealed to the District Court of Moshi, the first appellate court against the conviction, sentence and the order of the trial court. The Principal District Magistrate who heard the appeal in the first appellate _court in his decision found that the trial court had erred in its decision as in his considered view the Appellant as the complaint in the ·' trial court did not prove the charge against the Respondent beyond reasonable doubts. In actual fact, \ ,) . ) in his considered view, the main issue between the Appellant and the Respondent was on the ownership of the shamba. So in his decision advised the parties to institute a civil suit in a court of law so that the said issue of ownership between them can be resolved. He quashed the conviction, sentence and the order of the trial court imposed on the Respondent by the trial court and ordered that if fine (shs.5000/=) had been by the Respondent be refunded and the eight (8) bags of maize be returned to him. In my considered view, it is true judging from the evidence on record and as revaluated by the first appellate court, the main issue between the parties centres on the ownership of the shamba. This is vividly clear even looking at the grounds of appeal filed by the Appellant before this court 8 • · ·.. ~<lthe reply of the Respondent therein. Therefore, I join hands with the decision of the first appellate court in this respect. Like the first appellate court, this court also advises the parties or any of them to institute a civil suit in a civil court with competent jurisdiction so that the issue of ownership of the shamba can be considered and determined legally. However, in my considered view, the determination of the criminal responsibility of the ·· · · Respondent could not be fully resolved without first resolving the issue of ownership of the shamba between the Appellant and the Respondent. Having quashed and set aside the conviction, sentence and the order imposed on the Respondent by the trial court, the order by the first appellate court for refund of the fine of shs. 5,000/= fine paid was in order, but the issue of the eight (8) bags of maize should have been left to be resolved by a civil court when the issue of ownership of the shamba by the,p~ies is placed before such a court for consideration and determination. Therefore, it will be up (~' to the parties when contesting the issue of ownership of the shamba in a civil court of competent jurisdiction to contest the issue of the eight (8) bags of maize as well. It may be done by way of specific performance or by claim of damages whichever will be convenient to the party claiming ownership of the said eight (8) bags of maize. In the final result with the slight direction that I have made in respect of the eight (8) bags of "'""'•"i''••---· maize, that it should also be a subject of a civil claim by the parties in a civil court of competent jurisdiction in addition to the determination of the issue of ownership of shamba in such a court, the appeal is hereby dismissed. I uphold the decision of the first appellate court subject to what I have stated herein. It is so ordered. ~·~ F.A.R. .JUNDU, JUDGE, 24.7.2006 Right of Appeal Explained. ~~~//' F.A.R. JUNDU, JUDGE, 24.7.2006 9 24/7/2006 Coram:- F.A.R. Jundu, J. For the Appellant: present ) For the Respondent: present , C/C:._ Matiku Court:- Judgment delivered in the presence of the Appellant and in the presence of the Respondent. ~v~ F.A.R. JUNDU, JUDGE, 24/7/2006 ATMOSHI • :l • ·' 10