mashaka mangunda vs republic 2016 tzhc 2249 21 march 2016

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT PAR ES SALAAM CRIMINAL APPEAL NO. 91 OF 2014 [Originating from Kilosa District Court Criminal Case No. 4 of 2009] MASHAKA MANG’U N D A ............................. APPELLANT VERSUS THE REPUBLIC..................................... RESPONDENT Date of last order - 4/12/2015 Date o f Judgm ent - 21/3/2016 JUDGMENT Kitusi, J.: MANG’UNDA PALILO and MASHAKA MANG’UNDA were originally charged at Kilosa District Court, with malicious damage to property c/s 326 (1) of the Penal Code Cap 16 Vol. I of the laws. At the end of the trial Mang’unda Palilo was acquitted while Mashaka Mang’unda was found guilty, convicted and sentenced to two years imprisonment. The court further ordered Mashaka Mang’unda to pay to the complainant shs.5,196,000/= as compensation. Mashaka Mang’unda, hereinafter the appellant, appeals to this Court by a memorandum that contains four grounds. It was alleged at the trial that the appellant jointly with Mang’unda Palilo, on 22/12/2008 at around 13.00 hours at Mabwerebwere Village within Kilosa District in Morogoro Region, they “did graze twelve acres o f maize and damage o f value at Tshs.5,196,000/= the property o f Mohamed Chaubwa”. The appellant and his co-accused denied the charge which the prosecution sought to prove by calling five witnesses. From these witnesses the following story is built. On 22/12/2008 Mohamed Chaubwa (PW1) was at his farm which is estimated as 12 acres big. It is a maize farm. At 13 hours, a big head of cattle entered upon the farm and consumed the growing maize. On seeing this and on seeing that only one man (the appellant) was unsuccessfully trying to drive out the large stock, PW1 decided to help. Joseph Mbaule (PW2) arrived at the area and saw PW1 driving out a big head of cattle from his shamba. He saw the appellant too, and he joined in the efforts. PW1 and PW2 testified that the cows bore the marks “A” and “C” on their skin, which mark, according to the village arrangement testified to by Rashid Ally Mlongozi (PW4) the village Executive Officer, belonged to Mr Palilo - the appellant’s father. According to Mang’unda Palilo (DW1) he owns 270 heads of cattle which bear marks “A” and “C”. He testified that it is his son the appellant who was responsible for taking the stock to the field for grazing. He however said he could not believe that the stock could have been taken as far as Mabwerebwere village where PW1 farm is said to be. On his part the appellant flatly denied going to Mabwerebwere village for grazing. He said he spent the whole date at Ngaire village. The District Court found the appellant guilty of malicious damage to property and convicted him accordingly but acquitted Mang’unda Palilo who had been jointly charged with him. The appellant has appealed in a four ground memorandum of appeal which, I am satisfied boil down to only the following; That the District Court erred in holding that the appellant was responsible for grazing the cattle into P W l’s farm and maliciously caused the damage estimated at Shs. 5,196,000/=. At the hearing of this appeal the appellant was represented by Mr Magayane learned advocate while the respondent republic was represented by Ms Paulina Fungameza learned State Attorney. The latter was quick to declare her support for the appeal especially on the ground that there was no proof of malice on the part of the appellant. In submitting in support of the appeal Mr Magayane said there was no proof of malice nor was there sufficient proof that the cows involved in the destruction of the crops could not have belonged to any person other than the appellant. He submitted so in reference to grounds No. 1 and 4 of appeal. He abandoned ground No.2. Ms Paulina Fungameza supported the submission that there was no proof of malice on the part of the appellant. She however sought to differ with Mr Magayane on his submission that there was no proof that the head of cattle responsible for the destruction couldnot have belonged to any otherperson. She referred to the evidence of appellant’s father who associated himself with the marks that had been engraved on the cows. It is convenient to start with the point I consider the easiest to dispose of. There is the evidence of PW1 and PW2 who saw the large head of cattle swarm in the former’s maize shamba and that the appellant was the only helpless man in control of the large stock. They had to give hand so as to drive the stock off the shamba to mitigate destruction of the crop. The trial court was satisfied that the stock belonged to the appellant’s father. On the evidence on record I have no different view. As regarding proof of malice it is neither apparent nor can it be inferred from anything done or omitted to be done by the appellant. In order to prove malicious damage to property under S. 326 of the Penal Code, it is not enough to prove damage to property. In the case of JOHN CHIZB BAHINGANYI V. REPUBLIC [1988] T.L.R. 234 this Court (Chipeta J. as he then was) held, inter alia; “In order to prove a charge o f malicious damage to property, therefore, it must be proved that the accused willfully and unlawfully caused the damage.” In this case not only were the key words willfully and unlawfully omitted from the charge which would have rendered it defective under S. 234 the Criminal Procedure Act [Cap 20 R.E. 2002]. (See also the case of LUCAS VICENT LWIZA V. REPUBLIC, CRIMINAL APPEAL NO. 13 OF 2015 (H.C) DSM District Registry (unreported). But there was totally no proof that the appellant willfully drove the cattle into the maize farm. If this proof had been available it would have suggested malice on the part of the appellant. In the absence of proof of malice, an essential element in the offence of malicious damage to property, the finding of guilty by the trial District Court was lacking in justification. I accordingly uphold the first ground of appeal. Since this ground is sufficient to deal with this appeal, there is no point of discussing the rest. Thus I quash the conviction entered against the appellant and set aside the sentence imposed on him. I understand that my order regarding the sentence serves no practical purpose save for records, because the appellant has finished serving his jail term. The order as to compensation follows suit, therefore the same is set aside. I.P. Kitusi JUDGE 16/2/2016 21/3/2016 Coram: Hon. Kitusi, J. For the Appellant: Present in person For the Respondent: Ms Paulina Fungameza, SA C.C.: Banza Court: Judgment delivered in court in the presence of the appellant in person and Ms Paulina Fungameza, State Attorney. I.P. Kitusi JUDGE 21/3/2016