CRIMINAL APPEAL CASE NO 51 of 2023CRISPINI GABRIEL MSOSA NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 51 OF 2023 (Originating from Criminal Case No 58 of 2022 in the District Court of Masasi at Masasi) CHRISPIN GABRIEL MSOSA ...................... APPELLANT -ft'. *-•- VERSUS ; '?•- -if, J*’ THE REPUBLIC ........... ......................... RESPONDENT JUDGMENT Date of last Order: 20^ October2023 '" ' Date ofJudgement: 27’’ November2023 The appellant herein CHRISPIN GABRIEL MSOSA was arraigned in the District’Court of Masasi at Masasi charged with Criminal Trespass contrary>to section 299 (a) and (b) of the Penal Code Cap 16 RE 2019. It was the prosecution's story that the appellant (then accused) on the 20th day of December 2021 at unknown time at Mtandi Area within Masasi District in Mtwara Region unlawfully did enter into the farm of one BINA d/o SHANTIDAS ©SINAI without permission of the owner. Page .1 of 9 When the charge was read and explained to the appellant (then accused) he pleaded not guilty. This necessitated conducting of a full trial. After the trials the learned trial Magistrate was convinced that the prosecution had proved its case at the required standard. She proceeded to convict the appellant as charged and sentenced him to a noncustodial sentence of six months. The appellant is dissatisfied with the conviction and sentence hence XX this appeal based on five grounds. I choose not to reproduce the grounds here as they have been adequately expounded on by the learned State Attorney. X" - When the appeal was called for hearing on the 20th of October 2023 the appellant appeared in person, unrepresented. The respondent Republic, on the other hand,appeared through Mr. Steven Aron Kondoro, learned £ <:W!” State Attorney. "The appellant, not being learned in law, indicated that he had nothing to add to his expounded grounds of appeal accompanying the memorandum of appeal. He, however, reserved his right to a rejoinder. Page 2 of 9 Taking up the podium, Mr. Kondoro conveyed that before narrating the prosecution's account, it had been challenging for him to ascertain whether the case qualified as a criminal matter. Upon reviewing the judgment, he became convinced that it -was not intended to be a criminal case but rather a civil one. This conclusion was drawn from the fact that the dispute involved the appellant and another '■%s. party concerning a plot of land situated in Masasi District, known as "Shamba la Somji." V 4 Mr. Kondoro highlighted that, based on the evidence presented by X' PW1, it became apparent that the individual was not just a complainant but also a party to the suit, acting under a power of attorney on behalf of ASGARALI MOHEMEDAL-JAFFER, also known as Somji (deceased). '•'#k -'$V, He pointed out that, according to the evidence of PW1, the appellant was identified as a mere trespasser, accompanied by 56 others. Referring to A v I. page 2 of the trial court's judgment, it was noted that the complaint was taken to the MTANDI village authority, and when the dispute remained unresolved, PW1 escalated the matter to the DLHT for Mtwara, where a decision in favor of PW1 was made and remained valid. Page 3 of 9 Mr. Kondoro argued that, since the court had ruled in favor of PW1, the appellant was obligated to vacate the premises according to the court's order, "HATI YA MAKABIDHIANO." He explained that the current issue arose from allegations that the appellant had sold the same premises to l^/ijaRd PW3, who provided their accounts in court. , % Emphasizing the civil nature of the matter, Mr. Kondoro asserted that K it was inappropriate for the court to treat it as a criminal case. He reasoned A that doing so would leave the controversyoinresolved. Consequently, he requested the court to adhere to the procedure outlined under section 4(3) of the Criminal Procedure Act Cap20RE 2022. 5/ ■ ■■ The Appellant, a thoughtful looking 56-year-oid man, stated that he ■ts Ji had been a resident of Masasi on a street called JIDA. He identified himself as a peasant anddescribed his family, which consisted of one wife, three 'I children, and three grandchildren. Additionally, he mentioned having elderly \ * parents; including a paralyzed mother who depended on him for support. In 1991, the Appellant recounted that his grandfather from his mother's side, who had only one child, had taken him to show him his land. At that time, the Appellant was working as a civil servant at Shirika la Posta Page 4 of 9 na Simu from 1987 to 1994. He mentioned asking for leave from his job and returning to his grandfather's place, where he started farming. Problems arose in 2012 when the complainant claimed ownership of the land, alleging it had been given to him by a fellow Indian who had moved to Masasi&he Appellant contested these claims, insisting that the complainant call the alleged owner, which was not done in 2012. Wj, V In the same year, the complainant presented a letter mentioning a different place, MKUTI BONDENI, and statingt-that it covered 55 hectares. The Appellant found the area to be too large and questioned why the complainant hadn't contacted the5 supposed owner. Subsequently, a police officer was brought in, leadihg the Appellant to seek assistance from the District Commissloner^DC), who directed him to the Ward Leaders. The leaders insisted oh summoning the owner of the farm. ij: The Appellant highlighted the main issue as being the border dispute, assertingThat the District Land and Housing Tribunal (DLHT) had failed to ascertain the boundary. When the judgment was delivered, there was no clarity on the boundaries and discrepancies were noted compared to the power of attorney. Frustrated by this, the Appellant informed the Regional Page 5 of 9 Commissioner (RC) that he was already on his way to the High Court for the same case. He maintained his innocence, stating that he had not trespassed on any land, and highlighted that none of the witnesses testified againsUhim. In conclusion, the Appellant prayed for the court to set asid^nsrimposed punishment of a six-month conditional sentence. Upon a thorough review of the triayc^irts proceedings and the submissions of both the appellant and thd respondent, it is evident that zt Vv' re the dispute in question centres on the-ownership and possession of land, specifically the plot known as "Shamba la Somji." The learned State Attorney, Mr. Steven Aron Kondoro,/ig|py highlighted that the nature of the dispute J?” is civil rather than criminal. This is underscored by the fact that the issue has been previously^adj indicated by the District Land and Housing Tribunal I (DLHT) for Mtwara, which ruled in favour of the complainant, PW1. %%The appellant and the complainant have been embroiled in a land dispute since 2012. The DLHT had issued a decision regarding the land, but the boundaries remained unclear and unresolved. Page 6 of 9 In my considered view, criminal trespass charges are predicated on the unlawful entry into the property of another with the intent to commit an offense or to intimidate, insult, or annoy. In this case, the appellant's entry onto the land was inextricably linked to the unresolved civil dispute overland ownership. As such, it was improper for the trial court to entertain the matter aW as a criminal case. The principle that justice must not only be done but must also be seen to be done is paramount here. Pursuing criminal charges in the context of a civil land dispute undermines ^isXprindple and risks the appearance of injustice. -Si of the landmark case of R v Sussex The above scenario reminds rhe J#*'-. Justices, Ex parte McCarthyJ1924] 1 K.B. 256, at p. 259 where the then • J) ' Lord Chief Justice of England, Lord Hewart famously stated: "It is not merely of some importance but is of Jr" fundamental importance, thatjustice should not only be done but should manifestly and undoubtedly be seen to be done." Emphasis added. Additionally, the trial court's decision failed to consider the adequacy of civil remedies available to the complainant. The proper recourse for resolving the dispute was through civil litigation and the enforcement of the Page 7 of 9 DLHT's decision, not through criminal prosecution. It should be emphasized that the appropriate avenue for resolving the dispute between the parties lies in the civil courts, where the ownership and boundaries of the land can be definitively determined. Accordingly, the conviction sentence of the <l5 appellant are hereby quashed and set aside. Having done so, I am inclined to suggest that for justice to manifestly and undoubtedly be seen to be done, this case falls squarely on such cases where the appellant (and his fellow villagers) qualify for legal aid. The learned Deputy Registrar is advised to consider the matter in the light of the Legal Aid Act and if possible, encouraging law firms and legal practitioners /X, \ to offer pro bono services to indigent clients, particularly in cases involving (y land disputes and other civil matters. Delays in the appealing against the decision of the DLHT may also be considered from a humanitarian Page 8 of 9 Court This judgement is delivered under my hand and the seal of this court this 27th day of November 2023 in the presence of Mr. Melchiori Hurubano learned State Attorney for the respondent and the appellant who has The right to appeal to the Court of Appeal of Tanzania is fully explained. ✓x E.I. LALTAIKA JUDGE 27.11.2023 Page 9 of 9