Elias Abdallah Horo

IN THE HIGG COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO PC CRIMINAL APPEAL No 11501 OF 2024 (Appeal from the decision of the District Court of Kiiombero at Ifakara in Criminal Appeal No 4063 of 2024) BETWEEN ELIAS ABDALLAH HORO APPELLANT Versus NTUBI KASHINJE NDEKEIA RESPONDENT JUDGMENT MRUMA J, The Appellant Ellas Abdallah Horo instituted criminal case against the Respondent Ntubi Kashinje Ndekeja at Mgeta Primary Court for the offence of malicious damage to property contrary to section 326 (1) of the Penal Code [Cap 16 R.E. 2019], it being alleged that on 27^^^ & 29^'' June 2023 at around 01:00 hours at night, the Respondent's cattle entered into and graze onto Appellant's rice paddy. The Respondent pleaded not guilty to the charged offence but after a full trial, the trial court found that the case was proved beyond reasonable doubt and convicted the Respondent as charged and sentenced to three months community services and to a compensation of Shillings 5,000,000/=. Aggrieved with both the conviction and sentence meted the Respondent successfully appealed to the district court. In Its judgment the district appellate court found that on the evidence on record It was not established that the cattle which were alleged to have destroyed the Appellant's farm belonged to the Respondent and also that since the Incident Is alleged to have had taken place past midnight, there was no evidence that the said cattle were Identified. The District appellate court also found that the evidence adduced was at variance with the particulars stated In the charge regarding the dates the alleged offence was committed. The Appellant was aggrieved by the judgment of the District court and has appealed to this court on the following grounds: 1. That the District appellate court erroneously ruled out that there was variance between the charge and the evidence adduced as to the date the offence the Respondent stood charged with was committed; 2. That the first appellate court magistrate himself to have reversed the trial court decision allegedly that the Appellant did not prove ownership of the destroyed farm despite that fact was not disputed by the Respondent; 3. That the first appellate court erred in law and in fact to have ruled out that the cattle did not belong to the Respondent despite ample evidence to the contrary; 4. That the first appellate court failed to appreciate that the Appellant proved the case beyond reasonable doubt, thereby wrongly reserved the trial court's decision in favour of the Respondent; 5. That as to the compensation awarded by trial court, the first appellate court failed to appreciate that the Respondent himself admitted during mitigations to be capable of paying the awarded Shillings 5 million instead of Shillings 8 million. At the hearing of this appeal the Appellant appeared in person while the Respondent was represented by Ms Donatila Teendwa, learned advocate. The appeal was argued by way of written submissions. I took liberty to carefully peruse the records of both courts below and gave ample time to go through the parties submissions. All contentions in this matter boils down to one issue and that is; ''whether on the evidence adduced the Appellant proved the case against the Respondent beyond reasonable doubt"? From the record of the trial court the following facts are not in dispute. One; that the Appellant Ellas Abdallah Horo owns a rice paddy at Kipingu area, two, that on the date and time the offence is said to have been committed the Appellant was not at the scene but he was informed of the incident by his neighbour one Ramadhani Mkindi, three that apparently the Respondent too was not at the crime scene on the material date and time and four that the Respondent was arrested by the police and was consequently charged with the offence of malicious damage to property (i.e. crops) contrary to section 326(1)of the Penal Code which he denied. At the hearing the Appellant called three witnesses including himself. He testified as PWl while one Saidi Mkindi testified as PW2 and Kevin Godwin testified as PW3. His evidence and that of his two witnesses (i.e. PW2 and PW3)as regards to the dates of the incident is at variance with the dates stated in the charge sheet. While the charge sheet shows that the offence was committed on 27^^^ and 29^"^ June 2023 at 01:00hours, Saidi Mkindi (PW2) and Kevin Godwin Simba (PW3) testified to the effect that the offence was committed on 27^"^ May 2023. On his part the Appellant told the trial court that he was Informed on phone by PW2 of the commission of the alleged offence on 27^^ May, 2023 at around 01:21hours. This means that he was so informed about 20 minutes after the commission of the offence. Going by particulars of the offence as stated in the charge sheet, PW2 and PW3 saw the Respondent's cattle in the Appellant's farm about one month before the offence was committed! As regards to the identification of the cattle, PW2 simply testified that he identified them to belong to the Respondent without explaining how he managed to recognize them. From the evidence of PW2, PW3 and the Respondent(DW2) it cannot be in dispute that neither the Appellant nor the Respondent was in crime scene at the time of the commission of the alleged crime and given the fact that the charge sheet and the testimonies of both PW2 and PW3 who were at the scene shows that the incident took at around 01:00hours at night, description of how the cattle were identified to belong to the Respondent ought to have been given. No such descriptions were offered. The learned District Appellate Magistrate after re-evaluating the evidence adduced during the trial found that there was no cogent evidence to prove that the cattle which destroyed the Appellant's farm belonged to the Respondent. The court further found that there was inconsistency and contradictions in the evidence regarding the date(s) the alleged offence was committed. On my part, I agree with the learned first appellate court magistrate that the evidence of the prosecution was not sufficient to prove the case against the Respondent beyond reasonable doubt as required by section 3(2)of the Evidence Act[Cap 6 R.E. 2019], which provides that:- factis said to be proved when- (a) In criminal matters except where any statute or other iaw provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists" In the present case the facts which needed to be proved that they exist were:- I. That the Appellant's rice paddy was trespassed onto by a herd of cattle II. That the herds of cattle which destroyed the Appellant's rice paddy belonged to the Respondent; Those facts were not proved to the tilt. As stated hereinbefore, apart from the fact that charge sheet Is at variance with the testimonies of prosecution's witnesses, there was no evidence regarding Identification of the cattle particularly so because according to the charge sheet the Incident took place past midnight. PW2 and PW3 who testified to have drove the cattle out of the Appellant's cattle did not explain how they were able to identify them and know that they belonged to the Respondent and not any other person(s). Moreover, it is questionable whether the Respondent could be charged with criminal offence with criminal offence which was committed in his absence. Criminal offence under section 326 (1) of the Penal Code requires proof of malice aforethought hence the word wilfully used in the said section. Finally, on the issue of compensation awarded,the trial court did not have any basis for awarding compensation of Shillings Five Million as it did. Compensation simply means monetary payment given to a person to replace the loss suffered. An award of compensation must be accompanied with explanations of how it was arrived at. In the case at hand there was no evidence suggesting the value of the rice paddy destroyed even if we assume that it was destroyed by the Respondent's cattle. For these reasons, the Respondent's conviction could not be allowed to stand. This appeal is accordingly dismissed in its entirety. The Appellant may seek redress in a civil court. Order accordingly. OF >5 A. R. MRUMA O G 7' JUDGE X 2/^ 5 .11. 2024 vvA. -5^