20120611 TZHC Iringa

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (Iringa Registry) (PC) CRIMINAL APPEAL _NO. 6 OF 2011 (From the decision of the District Court of Njombe . . . District at Njombe in Criminal Appeal No. 5 of 2011 Original Criminal Case No. 56 of 2011 of Njombe Urban Primary Court) DAFROSIMA D/0 MTUNDU ............... APPELLANT VERSUS CYPRIAN MLELWA ............ :............. RESPONDENT (Date of last Order 18.4.2012 Date of Judgement 11.6.2012) JUDGEMENT KIHIO, J. The appellant, Dafrosina D/o Mtundu was charged with the offence of Criminal trespass contrary to Section 299 (a) of the Penal Code, Cap. 16 R.E. 2002 on the 1st count and threatening to kill contrary to Section 89 (2) of he Penal Code on the 2 nd count in Njombe Urban Primary Court. She was convicted of Criminal trespass contrary to the said Section 299 (a) of the 1. ( Penal Code and sentenced to a fine ·of shillings 200,000/= or . three months imprisonment in default or . payment of fine .. However, she was acquitted on the 2 nd count. She unsuccessfully appealed to the District Court against the conviction and sentence. The District court upheld the trial court's decision holding that at the time the appellant entered in the disputed land she knew that it was under the hands of the respondent. Dissatisfied with the District Court's decision she came to this court in this appeal. The facts of the. case as established in the evidence in the trial court are that there was a dispute over the land at Ngalangala between the respondent, Cyprian Mlelwa and the appellant's father-in-law, one Markus Rafael Mtewele and on 12/1/2011 the Village Land Council declared the respondent the rightful owner of the said land. It was in the evidence of the respondent and his witness, John Twalo (PW.3) that on 5/2/2011 the appellant and other people were in his (respondent's) land clearing grass with a machete commonly known as "Nyengo". In her defence, the appellant said that her father-in-law gave her the disputed shamba three years ago and on 2 15/12/2010 she grew maize and potatoes. She went on to say that the dispute between the respondent and her (appellant's) father-in-law was decided when her maize and potatoes were not yet harvested. She called witnesses who told the trial. court that they were clearing grass in their farm. The trial court found th_at the appellant's guilt was proved beyond reasonable doubt. The appellant filed a .Petition of Appeal containing two grounds of appeal, namely:- 1. That the District Court erred in law and fact in failing to find that the trial court erred in law in entertaining the criminal charge of crimiAal trespass without first satisfying itself as to the final decision of the land ownership dispute of the suit premises. 2. That the District Court erred in holding that the charge at the Primary Court was proved beyond reasonable doubt. The appellant is represented by Mr. - Ngafumika, learned counsel while the respondent is represented by Mr. Danda, learned· counsel. Mr. Ngafumika submitted that there was a dispute over the 3 I disputed land between the respondent and the appellant's ·father- in-law, one· Marcus Mtewele. He further submitted that there is. an appeal pending in the District Land and Housing Tribunal between· the respondent and. the said Marcus Mtewele in respect of the disputed land. He contended that there was no adjudication between the respondent and Marcus Mtewele in the Villa_gE: Land C_ouncil because what was in the village Land Council was mediation. He further contended that there was a suit between the respondent and Marcus Mtewele in Ihungiro Ward Trib·unal. He argued that the Village Land Council's decision was not ·a final determination of land dispute. He further argued that it was wrong on the part of the Primary Court to continue to entertain a criminal charge of criminal trespass without first been satisfied that there was final ·determination of land dispute. He referred this court to the case of Saidi Kassim Mtaka V. Seifu Mamba· - P.C. Criminal Appeal No. 5 of 1999, Dar-es-Salaam registry (unreported) where it is held that:- "It is now well settled position of law that a charge of criminal trespass cannot succeed where the matter involves land in dispute whose ownership has not been finally determined in a civil suit in a court of law". As regards the second ground of appeal he submitted that under Section 299 in a charge of criminal trespass the entry must be unlawful or in the alternative if the entry was lawful then the person in that land remains there unlawfully. He further 4 submitted that it was not proved in the trial court that the appE:!llant had an inten~ to commit an offence or to intimidate, insult or annoy any person in possession of the suit land. He argued that in the Primary Court neither mens rea nor ac~us reus was proved. He further argued that the District Court was wrong, therefore, to hold that the charge in the trial court was proved to the required standard. On the other hand, Mr. Danda submitted that the District Court did not err in law and fact in entertaining the criminal charge of criminal trespass as the Primary Court did after satisfying itself that the land ownership dispute had been determined by Ngalangala Village Land Council. and Ihungiro Ward Tribunal which delivered it's judgement on 12.1.2011 in. favour of the respondent. He further submitted that at page 2 of the District Court Judgement it is shown that the appellant entered the disputed land on 5/2/2011. He contended that the judgement of the ward Tribunal delivered on 12/1/2011 was tendered in the Primary Court and the Primary Court was satisfied that the ownership on the disputed land had been determined. He argued that when the criminal trespass case was filed in the Primary Court the issue of ownership on the disputed land had been determined in the Village Land Council and the Ward Tribunal. As regards the second ground of appeal, he submitted that the Prosecution side in the trial court had established all ingredients of criminal trespass. He further submitted that the 5 f. appellant's acts of entering the disputed land, occupying it and claiming that it belonged ·to her showed that she had. intention of excluding the respondent to own his (respondent's) land. He argued that the case of Saidi Kassim Mtaka V .. Seifu Mamba (above) referred to this court by his learned ·friend, · Mr. Ngafumika is not relevant here. In reply, Mr. Ngafumika argued that the Ward Tribunal's decision was given on 12/4/2011 and there is an appeal pending in Njombe District Land ·and Housing Tribunal against the Ward Tribunal's decision. As already indicated, the appellant's defence in the trial court was that she was given the disputed land by her father-in- law and had cultivated it for three years. It was also in her defence that on 15/12/2010. she grew maize and potatoes and that the case between the respondent and her:- (appellant's) i'• father-in-law was decided when her maize and potatoes were not yet harvested. In my view, this is a defence of bonafide claim of right. It seems to me that the ownership of disputed land between the appellant and respondent was never determined. The dispute on ownership of the disputed land decided- on 12/1/2011 was between the respondent and the appellant's father-in-law, Markus Rafael Mtewele and not between the respondent and the appellant. With due respect, the learned . Principal Magistrate's finding that at the time the appellant entered in the dispute land she knew that it was under the hands of the respondent has no evidential backing. 6 It is wrong to· convict a person for criminal trespass when ownership of t~e property alleged to have been trespassed upon is clearly in dispute between the complainant and accused (See Ismail Bushaija V. Republic (1991) T.L.R. 100}. The case of Ismail Bushaija (above) also held that:- "When in a case of criminal trespass a dispute arises as to the ownership of the land the court should not proceed with the criminal charge and· should advise the complainant to bring a civil action to determine the question of ownership". As was pointed out by this court, Ihema, J. (as he then was) in the case of Saidi Kassim Mtaka V. Seifu Mamba (above) referred to this court by Mr. Ngafumika :- · "It is now well settled position of the law that a charge of criminal trespass cannot succeed where the matter involves land in dispute whose ownership has not been finally determined in a civil suit in a court of law". In the present case, before the trial court proceeded with criminal charge it should have advised the respondent to file a civil action against the appellant so that the question of ownership was determined. 7 For the foregoing reasons, the appeal is allowed. The conviction is hereby quashed and sentence is set aside. The fine paid to be refu.nded to the appellant . .} ~ 5. 5. 5. KlHIO JUDGE 11/6/2012 ,Court:- Judgment delivered in the presence of Mr. Danda, learne.d Counsel for the respondent and holding brief for M.r~ Ngafumika, learned Counsel for the appellant. j~ S. 5. 5. KIHIO JUDGE 11/6/2012' 8