20100316 TZHC Dar es Salaam

{ .. . \' ~- -, . ,.,.,·. . . ~ . ' -.· . . ,. IN.THE HIGH COlt'RT OF TANZANIA •

AT DAR ES SALAAM PC. CRIMINAL APPEAL NO. 128 OF 2009 (Originating rrom Kilombero District Court Cr. Appeal No. 36 of 2009) CHARLES KILIPASI ......................... APPELLANT

VERSUS REPUBLIC ............................... RESPONDENT Dote of lost order - 10/3/2010 Dote of Ruling 16/3/2010 :· . .

JUDGMENT MGAYA, J_.: The appellant Charles Kiliposi was charged before Mngeto Prin1ory Court wi1h thef1 Contrary 1o Section 265 of the P~nol Code in· . . Crii11inol Cose No .. 170/2008. At the end of tl1e trial. the appellant. was acquitted ofter the trial Court found that there was no offence of theft comn1itted by the appellant, and that· the problem that .existed betv-ieen the appellant and the r~spondent was land dispute over the ownership of a shombo that the appellant and respondent claimed ownership. ,. / The respondent Anthony Mwambana was dissatisfied and appealed to Kilombero District Court in Criminal Appeal No. 36/2009 against the decision of the primary court. On appeal, the decision of the primary court was reversed. The appellant was found guilty of the offence of theft, convicted and Sentenced to one year imprisonment. He was further ordered to pay bock the value of the stolen paddy shillings 4,47 5,000/= ofter the jail sentence. The appellant Charles Kilipasi was dissatisfied with the conviction and sentence and hence this appeal. The appellant hod the services of Mr. Mofwere the learned Counsel and the respondent Republic was represented by Mr. Mougo the learned State Attorney. The appellants appeal consisted of four grounds of appeal but principally there ore only two main grounds of appeal. In ground No. one and three the appellant faults the

District Magistrate for foiling to evaluate the evidence on record properly leading him to wrongly convict the appellant, ofter having been satisfied that there was a land ownership dispute. As for gr?und No. two and four the appellant criticizes the District Magistrate for failing to find as a fact that in the totality of the 2 .- . , evidence on record the Charge was not proved against the appellant beyond reasonable doubt; and acquit the appellant. Briefly the facts as it unfolded at the trial was that the respondent hod a paddy farm five acres which he cultivated in 2007 /2008 Season, but left for lringa with his wife, and children. PW2 in his testimony at the trial court said ohe day he saw the appellant harvesting paddy in the respondent's shamba on a day he did not remember, and he was not sure whether the respondents children harvested the paddy and that he was not informed of the land dispute that existed between the respondent and the appellant. It is on record that the appellant in his defence maintained that the shomba he harvested paddy was his property allocated to him by the land committee and called one Beford Mwomhanga and Leonard Mwamwezi (Word executive Officer) whose evidence was to the effect that the shamba which the appellant harvested belonged to him and not the respondent. The District Magistrate appreciated the existence of a land dispute over the

shamba in question between the appellant and the respondent, on boundaries. Following the harvesting of the paddy by the appellant, the respondent filed a criminal charge of theft against the appellant at Mngeto P1·in1ory Court as explained supra, and following the 3 sequence of events the appellant was of acquitted by Mngeta Primary Court. The appellants defence at the trial was that of claim of right over the farm in dispute in that it was his property the same having been allocated to him by the village land committee and not to the respondent. Mr. Mafwere advocate - vehemently submitted that the proceedings and the entire evidence adduced at the trial court indicate that there was a land dispute between the appellant and the respondent. The dispute was resolved in favour of the appellant, giving him the right to cultivate the paddy. Mr. Mafwere, learned advocate submitted that the District Court failed to evaluate the evidence on record properly and grasp the fact that the appellant had already been given the shamba by the Village Land Committee and the issue was not disputed. Mr. Mafwere contended that the paddy in was cultivated by the appellant after the land was allocated to him, and that the respondent was a trespasse. Mr. Mafwere further submitted that the trial magistrate failed to evaluate the evidence on record and as a result he reached unjust decision. 4 Further,

M r. Mafwere contended that since no evidence was led to concerning the value of the paddy the Order for compensation given was illegal and referred to the case of LAMEK MASAWE VR 1998 TLR 72, Mr. Maugo State Attorney joined issues with the learned advocate regarding the 1si, 3 rd and fourth grounds of appeal. He conceded that the issue at hand is a land ownership dispute and the jurisdiction of the Court ousted. Mr. Maugo the learned State Attorney was of the opinion that the respondent ought to have sought remedies by institution of a civil suit to determine ownership of the suit land. Mr. Maugo further submitted that both the appellant and the respondent were given the land in dispute at different times by different village land Committees therefore each of them at the material time believed he owned the land in dispute. Then Mr. Maugo referred to the case of Kibwana Mohamed VR TLR 1986 32 l, where it was held that "from the facts there could be no doubt that at the time of the appellants entrance to the land he honestly believed that he was a lawful owner of the land and such belief absorbed him from blame." 5 Mr Mango the learned State Attorney submitted further that as there was a bonofide claim of ownership on the appellant and the respondent, that each party owned the land, the proper ownership of the land in dispute could hove been established through a civil suit in

the land tribunals. With the above submission, the learned State Attorney did support the conviction and the sentence imposed. The issue for determination before me is whether the trial Court hod jurisdiction to try the matter and if the answer is in the affirmative, the issue is whether the char·ge was proved against the appellant beyond reasonable doubt. With due respect to the District Magistrate, once he appreciated the fact that there was a land dispute over ownership of the land between the appellant and the respondent, he ought to have known that the trial Court as well as the District Court had no jurisdiction to try the matter. Section l 67 ( l) of the Land Act provides in clear terms as follows:- 16 7 ( l) "The following Courts are here by vested with exclusive jurisdiction subject to the provisions of this part to hear and determine all manner of disputes, actions and proceedings concerning land, that is to say:- 6 \.. (a) The Court of Appeal (b) The land division of the High Court established in accordance with law . .. (c) The District Land and housing Tribunals (d) Ward TRIBUNALS ( e) Village Land Councils" In view of the foregoing, it is only the above listed Courts which ore vested with exclusive jurisdiction to try land disputes such as the above mentioned land dispute between the appellant and the respondent. The next issue for determination is whether

the proceedings of the trial and the District Court ore valid. As pointed above, the trial Court and the District Court ore not Courts of competent jurisdiction within the meaning of Section l 67 ( l ) (a - b) of the land Act Cop l 13. In the circumstances of this case, as the legislature hos enacted the low which explicitly excludes Courts of law from exercising jurisdiction in a given dispute· the enactment is final and cannot be compromised. In view of the above, the proceedings of the trial court as well as that of the District Court is a nullity. I entirely agree with the learned counsel Mr. Mofwere and Mr. Mougo on the point in support of ground No. one, three and four. 7 Coming to ground No. two, as correctly argued by Mr. Mafwere counsel for the appellant, regarding the order of refunding the respondent shillings 4,475,000/= being the value of the paddy alleged to have been stolen by the appellant is unjustified, and illegal. I say to because no evidence on the value of the paddy alleged to have been stolen and or harvested by the appellant was led. On the circumstances of this matter, the District Court was not justified in ordering the appellant to refund Shillings 4,47 5,000/= as the value of the said stolen paddy was ,not proved by evidence. If anything, it could be subject of an Independent civil suit to be filed by "the respondent, and the value would therefore be

proved in a civil suit. See Lamek Massawe VR 1998 TLR2. For this reason, I quash the order of compensation of 4,475,000 that was imposed on the appellant and in the nutshell, I entirely agree with the Counsel for the appellant and the learned State Attorney Mr. Maugo that the offence was not proved beyond reasonable doubt against the appellant. The above notwithstanding, as correctly argued by Mr. Mafwere Counsel for the appellant in ground No. l, 3 and four, it has been agreed that this matter being a land dispute neither the District · Court nor the trial Court had jurisdiction to entertain and determine this matter, as ownership had not been determined by a civil suit. The trial Court correctly found on this matter that it was a land dispute and could not be dealt with by the trial court, and the error 8 vitiates the entire proceedings of the primary court as well as that of the District Court. In addition, I have noted with concern that the trial magistrate neglected to comply with the mandatory provisions of GN No.2 of 1988 S 3 ( l) of the Magistrates Courts, (Primary Courts, Judgment of Court) and it is a fatal irregularity to the proceedings as its effect is that there was no decision reached. The Primary Court Proceedings shows that the trial magistrate did not consu.lt with the gentlemen assessors, and acted in violation of the Magistrates Courts (Primary Courts,

Judgment of Court) Rules, GN 2 of 1988 which provide as follows:- "3 - (1) Where in any proceedings the Court has heard all the evidence or matters pertaining to the issue to be determined by the Court, the magistrate shall proceed to consult with the assessors: present, with the view of reaching a decision of the Court" (2) If all the members agree on the decision, the magistrate shall proceed to record the decision or judgment of the Court which shall be signed by all the members." (3) For avoidance of doubt ... (4) Where after consultation in accordance 9 with Rule 3 the issue is determined by the vote of the majority, the magistrate shall proceed to record the decision or judgment of the majority which shall be signed by the assenting members of the Court." The trial magistrate totally foiled to comply with the Mandatory provisions of S 3 ( l) (2) and 4 of The Magistrate Courts, (Primary Courts) Judgment of Court) Rules, GN 2 of 1988) and non compliance with the above requirement has nullified the trial before the Primary Court. The court was faced with a similar situation in SOSPETER POLEPOLE V MASHAURI SANGITA PC CIVIL APPEAL NO. 225 OF 2004 unreported HC Mwonzo in which Hon. Mockonjo J. (as he then was) nullified the trial courts proceedings for noncompliance with the requirements of Section 3 ( l) 2 of the Magistrates Courts (Primary Courts) Judgment of Court) Rules, GN

2 OF 1988. The procedure as prescribed in GN.2 of 1988 is mandatory and failure to comply with it renders all the trial to be a nullity as in this case where the trial· magistrate did not involve the assessors in the entire proceedings and did not consult with the assessors before reaching the decision. In this connection, I cite with approval of the decisions of my late brothers as they then were, namely Mr. Justice Mkude in the case of MOHAMED S. AMRI V SAIDI NGAPWELA ( 1992) TLR, 342, and Hon. Mr. Justice Lugakingiro in the case of SUSANA JOSEPH V W. IHEMBE [1992] TLR 375 respectively on the same issue. 10 ..... . By reason of the foregoing considerations, I hold that the proceedings before the Primary Court are a nullity. In the event I hereby quash those proceedings Criminal Cose No. 1 70 of 2008 of Mngeta Primary Court. In addition, because the appeal before the District Court in criminal Appeal No. 36/09 was founded on void proceedings they are equally unsustainable, and consequently they are likewise quashed. In up shot, the appeal is allowed, the appellant is to be released from prison forthwith unless otherwise lawfully held for other purposes.

JUDGE 15/3/2010 16/03/2010 Coram: Mgayo, J. For Appellant: Present For Respondent: Present C.C.: Doris Mr. Mafwere for the Appellant and Miss Mloki SI A for the Respondent. 11 Miss Mlaki S/ A: Madame Judge, the matter is coming for judgment. F. Mgoya

JUDGE 16/3/2010 Court: Juclgment delivered before me the 16 th day of Morch I 2010. I I ~l~· F.~b~o ~ , '

JUDGE 16/3/2010 J (_;. .~ .' . - { I I '12 .J ·r