Emmanuel Simon v Matei Simon

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI PC CRIMINAL APPEAL NO. 30101 OF 2024 (Arising from the decision of the District Court of Babati at Babati in Criminal Appeal No. 20602 of 2024, Originating from Criminal Case No. 341 of 2024 in the Babati Primary Court) EMMANUEL SIMON…………………………..……….........…..…………APPELLANT

VERSUS MATEI SIMON……………….……….………………….……….………RESPONDENT

JUDGMENT 24th March 2025 & 4th April 2025 MWIHAMBI, J.: This is a criminal appeal originating from Babati Primary Court (trial court). The appellant, Emmanuel Simon was arraigned before the trial court for the offence of malicious damage to property contrary to section 326 (1) of the Penal Code [Cap. 16 R.E 2022] (the Penal Code). The respondent, Matei Simon complained against the appellant before the trial court that he destroyed thirty avocado seedlings worth TZS. 960,000/= and thirty mango seedlings worth TZS. 1,710,000/= being the properties of Matei Simon. The evidence before the trial court was that the appellant was seen by Thomas Matei (SM2) and Maria Hanee (SM3) uprooting the 1 mango and avocado seedlings in the farm allegedly to belong to the respondent. The respondent testified that the farm belongs to him as there was a land dispute before the Babati District Land Housing Tribunal where the applicant Simon Qamara who is now deceased and the father of both the appellant and respondent sued Matei Simon. Unfortunately, the case was not determined to its finality after the death of Simon Qamara and the administrator of his estate was not yet appointed. The tribunal Chairman struck out the application as follows: “Amri: Shauri linaondolewa kama alivyoomba Wakili wa mleta maombi. Na mjibu maombi aendelee kutumia shamba lake vinginevyo kama kuna mgogoro mwingine …” On his

part, the appellant strongly denied the allegations. His witness Kasilda Silvester Qorro, the administratrix of the estate of Simon Qamara testified that the land is hers as she is administering the estate of the parties’ deceased father. She tendered the letters of administration and the customary Right of Occupancy of the deceased Simon Qamara. Upon hearing of the case, the trial magistrate was satisfied with the evidence of the respondent on ownership of the land, the damage to the properties and that the properties were his and it was the appellant 2 who damaged the properties maliciously. She convicted the appellant and sentenced him to a fine of TZS. 500,000/= or five months imprisonment. Also, the appellant was ordered to pay the respondent the value of the damaged property as per the charge. The appellant unsuccessfully appealed before the District Court of Babati. The appellant is now before this Court with two grounds of appeal. First, the appellate court erred in law and fact for upholding the trial court’s decision born from improper analysis of the adduced evidence hence wrongly convicting the appellant. Second, the appellate court erred in law and in fact for upholding the trial court’s decision while the respondent failed to prove his case beyond reasonable doubt as required by law. The appeal was argued by way of written submissions with the appellant

represented by Mr. Festo Jackson, Advocate and the respondent unrepresented. As this is the second appeal, the powers of the High Court on the second appeal are provided for under section 29 (a) and (c) of the Magistrates’ Courts Act [Cap 11 R.E. 2019] that in its appellate jurisdiction, the High Court has the power to order for additional evidence, to confirm, reverse, amend or vary in any manner the decision 3 appealed against and to make any other decision or order which might have been made by the court of first instance. Also, as the second appellate Court, this Court is able to interfere on the concurrent finding of fact by two courts below as it was held by the Court of Appeal in the case of Mpemba Joseph v. Republic (Criminal Appeal 420 of 2019) [2023] TZCA 17623 at page 8 that: “It is trite law that this being a second appeal the Court can interfere on concurrent finding of fact by two courts below only where there is sufficient reason to do so. In the case of Salum Mhando v Republic [1993] TLR 170 the principle was stated as follows: “where there are mis-directions and non- directions on the evidence, a court of second appeal is entitled to look at the relevant evidence and makes its own finding of fact.” In the light of the provisions and the cited case, this Court will proceed to re-hear the case. On the first ground, Mr. Festo Jackson submitted that the trial court

magistrate failed to analyze the evidence as it was adduced at the hearing. Mr. Jackson argued that the trial magistrate failed to note important facts; the date of the commission of the offence was never mentioned throughout the case, the eye witnesses never mentioned seeing each other at the crime scene, the contradicting evidence between the respondent and his witnesses on what was damaged whether it were seedlings or trees, exhibit A1 4 (Mwenendo wa Shauri katika Baraza la Ardhi na Nyumba la Wilaya Babati) was an order granting withdrawal and not a decision on who is the lawful owner of the disputed land, the exhibits (D1, D2, D3, D4) and the evidence of DW2 (Kasilda Silivester Qorro) were never considered, the contradictions in the evidence of the eye witnesses and the respondent being released from jail in 2022 only to report the matter in 2024. In his reply, the respondent contended and stated that the issue of the absence of the date on the commission of the offence is not relevant as it cannot render the charge defective and that, the issue of ownership was already determined by the Babati District Land and Housing Tribunal through exhibit A1. On the second ground, Mr. Jackson submitted that the matter before the trial court was not proved beyond reasonable doubt. He cited the case of Julius Malobo v. Revocatus Msiba & Another (PC Criminal Appeal No. 03 of 2020) [2020]

TZHC 923 which has underlined the elements of the offence of malicious damage to property, to cement his argument. That, the respondent failed to prove the ownership of the land whose seedlings were damaged, there is variation between the charge and the evidence on the damaged properties, the date of the 5 commission of the offence was never mentioned and the reporting of the offence was delayed hence, the offence was not proved. On his part, the respondent argued that he managed to prove that he is the owner of the land, he submitted the evaluation report of the damaged properties to prove that his properties were damaged and his witnesses proved that it is the appellant who damaged the properties thus he proved his case beyond reasonable doubt. From the submission of the parties and the grounds of appeal, it is apparent that the complaints of the appellant lie on the weight of the evidence adduced before the trial court. While this Court proceeds to re- evaluate the evidence on record the issue of whether the case was proved beyond reasonable doubt will also be responded to. The principle of burden and standard of proving criminal cases in the primary courts is as provided for under Regulation 1 (1) of the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations G.N. No. 22 of 1964 and 66 of 1972 that: “Where a person is accused of an offence, the complainant

must prove all the facts which constitute the offence, unless the accused admits the offence and pleads guilty.” Regulation 5 (1) provides that: 6 “In criminal cases, the court must be satisfied beyond reasonable doubt that the accused committed the offence.” Being guided by the cited provisions, this Court proceeds to examine the elements of the offence of malicious damage to property as they were propounded in the case of Julius Malobo v. Revocatus Msiba & Another (PC Criminal Appeal No. 3 of 2020) [2020] TZHC 923 as cited by the advocate for the appellant. The elements outlined are: first, the complainant must own the property or properties in question, second, the said property or properties must have been destroyed or damaged, third, the destruction or damage must have been caused by the accused person and fourth, the act of destruction of damage must have been motivated by malice. Starting with the first element; the complainant must own the property or properties in question, the respondent stated that he owns the farm, the mango and avocado seedlings. That the ownership of the land was already determined to be his by the Babati District Land and Housing Tribunal and the decision thereof was tendered and admitted by the trial court as exhibit A1. Thomas Matei (SM2), Maria Hanee (SM3) and Alex George (SM4) gave hearsay evidence that the land and the damaged properties

belong to the respondent. 7 This Court has had its time to go through exhibit A1 and reached to the conclusion that the respondent has failed to prove ownership of the property in question. This is because Application No. 31 of 2019 before the Babati District Land and Housing Tribunal was not determined to its finality to grant the respondent the ownership of the farm. The application was struck out on 22/7/2022 as the administrator of the estate of the deceased Simon Qamara was not yet to be appointed. This Court is of the firm view that the trial magistrate misled herself on this matter. Page 6 of the trial court’s judgment reads: “Kwa kuongeza pia sheria inataka mlalamikaji athibitishe eneo hilo ni lake na mlalamikaji ameweza kuthibitisha eneo ni lake tazama Uamuzi wa Baraza la Ardhi nyumba na Wilaya kielezo A1, upande wa utetezi umetoa hati za kimila na zilipatikana 2010 wakati mlalamikaji alikuwa na kesi na baba yake juu ya eneo hilo na Baraza limetoa maamuzi mwaka 2022 na hakuna aliyekata rufaa mpaka sasa.” Exhibit D4 shows that on 25/8/2022, Kasilda Sylvester Qorro (SU2) was appointed as an administratrix of the estate of the deceased Simon Qamara. The fact that the Customary Right of Occupancy bearing the name of the deceased as the owner does not prove ownership of the 8 property by the deceased because it is dated 2010 is unfounded. This is not a land tribunal to

determine who is the lawful owner of the landed property but it is apparent that this element fails as the respondent has failed to prove it. Going to the second element; the said property or properties must have been destroyed or damaged, the testimony of the respondent and the charge states that the damaged properties are avocado and mango seedlings. The eye witnesses testified that they found the respondent damaging the mango and avocado trees by uprooting them. The evaluation report stated that the properties damaged are the mango and avocado trees. This Court has failed to understand if the damaged properties were mango and avocado seedlings, how comes the evaluation reported on the trees? The appellant strongly disputed the allegations that he damaged the properties. His witness testified that there is no property which has been damaged as the farm is under her supervision as the administratrix. Neither the respondent’s evidence nor the evaluation report gave a clear and undoubted explanation on the damaged properties; where were they located, what kind of properties and when 9 did the damage happen. What is hanging around is the contradiction between the charge and the evidence of the respondent’s witnesses. Moreover, what raises more doubts is the delay in reporting the crime if at all it was committed by the appellant. It is the testimony of the respondent that he was

informed by his son on the alleged act by the appellant but he could do nothing as he was in prison. Immediately after he got out of prison is when he took steps to report the matter to the police and the evaluation was done on the damaged properties. Prison release certificate which was admitted as exhibit A2 shows that the respondent was released from prison on 14/4/2022 and the case commenced before the primary court on 21/5/2024. In the circumstances of this case the date of the commission of the offence is an important fact to prove whether the appellant committed the offence. The charge sheet states “wewe Emmanueli Simon unashitakiwa kuwa mnamo tarehe asiyoikumbuka mwaka 2019…” If the damage happened in 2019, why was the matter reported in 2024? If that is not enough, the evaluation is recorded to be conducted on 08/03/2024 which is five years later; were the damaged properties still at the scene? The evaluation officer Mr. Alex George who introduced himself as the forest 10 officer, has not recorded to have seen the damaged trees as he has named them. In his testimony, he is recorded to say: “…tarehe 08/03 nilifikia kwenye eneo hilo ambapo nilibaini miti 50 ya miembe na miparachichi iliharibiwa na mshtakiwa baada ya kukagua eneo hilo nilirudi ofisini kuandaa taarifa…” Furthermore, the report contained in the evaluation report is hearsay as it has just described the

number of trees that were destroyed and has reported nothing on the damage itself. Briefly it reports: “Tarehe 08/03/2024 nikiwa nimeongozana na ndugu MATEI SIMON (mlalamikaji), HERODE STEPHEN (Kaimu Mtendaji wa Kijiji cha Hayesamu) tulifika eneo ambalo mmiliki alipanda miti 30 ya maembe na 20 ya mparachichi, baada ya mlalamikiwa kuona mmiliki halali hayupo aling’oa miti yote 50 na baadhi ya mashimo akapanda migomba na mengine kuyafukia na kulima mazao mengine.” This Court is of the considered view that the respondent failed to establish whether the alleged properties were damaged. For these reasons, this element also fails. This Court needs not go further to discuss on the remaining elements otherwise it will be an academic exercise hence, in the failure of the first and second elements, the third and fourth elements cannot have legs to stand. 11 It is apparent on the records of the trial court that the respondent failed to prove his case beyond reasonable doubt before the Babati Primary Court. From what I have stated, I allow the appeal and set aside the concurrent findings by both Babati Primary Court and Babati District Court. DATED at BABATI this 4th Day of April, 2025. N. J. MWIHAMBI

JUDGE COURT: Judgment delivered today in presence of the appellant’s advocate Mr. Festo Jackson and the respondent. B/C: Ms. Anna Mathayo (RMA) is present. Right of appeal explained. N. J. MWIHAMBI

JUDGE 12