Fahamu Athumani

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [MOROGORO SUB-REGISTRY] AT MOROGORO CRIMINAL APPEAL NO. 21752 OF 2024 (Arising from Criminal Appeal No. 10109 of 2024, in the District Court of Kilosa, Originating from Criminal Case No 20 of 2024 in the Primary Court of Masanze) FAHAMU ATHUMANI APPELLANT VERSUS WAYIDA AWAMI AND THREE OTHERS RESPONDENTS JUDGEMENT 20/11/2024 & 28/11/2024 KINYAKA, J,: The appellant herein was a complainant in Criminal Case No. 20 of 2024 before the Primary Court of Kilosa at Masanza herein after the "trial court" where he prosecuted the respondents for alleged malicious damage to his crops. According to the trial court records, the appellant's complaint was that contrary to the provision of section 326(1) of the Penal Code Cap. 16 R.E. 2022 hereinafter, the "Penal Code", on 19^^ January 2024 at Nyameni area, Ulaya Ward, in the District of Kilosa, within Morogoro region, the respondents jointly destroyed the appellant's maize crops worthy TZS 129,500 which were cultivated in a piece of land measuring a quarter an acre. When the charge was read over to the respondents on the 7'^ February 2024, they all denied the appellant's accusations against them. The trial commenced on 05'^ March 2024 where the trial court recorded the testimony of the complainant, Fahamu Athumani, and his two witnesses Juma Athumani Ngechero and Akimu Ellas Kyando. At the end of their testimonies, the appellant prayed and was granted the closure of his prosecution case. Upon the closure of the prosecution case, the trial court made a ruling on 26'^ March 2024 that a prima facie case was not made against the respondents to require them to front their defence. The trial court's finding was premised on the fact that it was not established which type of crops were destroyed and the extent of damage of the same. Eventually, the trial court pointed out a gap in the prosecution's evidence for the appellant's failure to call the agricultural officer to prove the damages complained about. It was further the finding of the trial court that the appellant didn't establish his ownership over the cultivated land, and that as the respondents claimed that they were the owners of the same, it was difficult for the trial court to ascertain the respondents' malice aforethought. Reliance was put in the case of Julius Malobo v. Revocatus Msiba, Criminal Appeal No. 03 of 2020, Lawrence Mateso V, Republic, TLR 118 of 1996 and Republic v. Juma Rashid, Criminal Appeal No. 3 of 2013 to conclude that the elements of the offence of malicious damages to property were not established. They were subsequently found not guilty and acquitted under section 36 of the Primary Court Criminal Procedure Code found in the 3'''' Schedule to the Magistrate Courts Act Cap. 11 R.E. 2019 hereinafter the "PCCPC". The appellant was aggrieved by the trial court's decision. His attempt to have the decision reversed by the District court of Kilosa hereinafter "the first appellate court" proved futile as the court blessed the decision of the trial court confirming that the alleged damage to the crops was not proven and that the appellant had failed to prove that he is the rightful owner of the land in which the maize crops were planted. Disgruntled, the appellant has preferred the instant appeal. In his memorandum of appeal, three grounds were advanced as reproduced herein below: 1. That the trial court erred in law and in facts by failure to analyze the weight of the evidence appellant during trial; 2. That the trial court erred In law and fact because appellant claim for criminal case not land case; and 3. That the judgment delivered is defective. The hearing of the appeal was through oral submissions and both parties appeared in person and unrepresented. In support of his appeal, the appellant submitted that he testified at the trial court that his farm was invaded by the respondents who uprooted his crops and planted their trees. As regards to his failure to summon the agricultural officer as his witness, the appellant informed the Court that he intended for the said officer to be his third witness but he did not testify as he had travelled to Mbeya to attend his sick mother. He added that the trial court was informed of the witness's excuse but proceeded to adjourn the matter for ruling. It was his further submission that the dispute at the trial court was not a land dispute but a criminal dispute. He finally prayed for the court to allow his appeal. Against the appellant's appeal, the respondent submitted that the evidence of the appellant before the trial court was not satisfactory. He elaborated that there was no evidence of the agricultural officer or his valuation before the trial court. He denied to have uprooted the maize and instead told the Court that they went there to measure their farm. It was his further submission that the farm is not the appellant's. He contended that the allegations are not true and that the appellant had no evidence or exhibits to prove his claims. He faulted the appellant's submission that he had the third witness. He told this Court that the appellant did not mention that he had a third witness who went to Mbeya and added that when he was asked by the trial magistrate if he had another witness, the appellant said his evidence was sufficient and that he had only two witnesses. The 2"^ respondent's submission was that the courts below have done justice as any case is proven by evidence. He pointed out contradictions in the prosecution evidence that while the appellant testified that the farm belonged to his mother, the first witness said the farm belongs to his brother who is the appellant herein. He admitted that the appellant informed the trial court that he had another witness but he did not present him to court. According to him, the appellant had no evidence to substantiate his allegations and that is why he lost the case. The 3"' respondents also insisted that the trial court gave a correct and just decision because the appellant did not had evidence to support his case including evidence of ownership of the farm. He argued that the 4^ evidence the appellant adduced before the court Is that the farm belongs to his mother while another evidence was that he was the owner of the farm. He said, the trial court ruled out that they had no case to answer as the appellant failed to substantiate his case before the trial court and did not call agricultural officer to testify In court. The 4'^ respondent was also In support of the lower court findings. He contended that the decision of the courts below are correct. He faulted the testimony of the appellant for being nothing but a lie. He further faulted him for not presenting the agricultural officer and valuation report before the trial court. He denied the appellant's accusations as there was no evidence that they uprooted the maize and further Informed the Court that the appellant neither had the alleged maize nor the owner of the farm. The appellant rejoined that It was not correct for the trial court to hold that the respondents had no case to answer. He Insisted that the agricultural officer had an emergency and could not attend the trial court to give evidence. He reiterated that both the lower courts have not done justice to him. I have considered the appellant's complaints in his petition of appeal as well as the parties' submission for and against the same. In my view, the determination of this appeal lies in the deliberation of a sole issue as to whether the first appellate court was incorrect to uphold the decision of the trial court to acquit the respondents under section 36 of the PCCPC. For easy of reference the section provides: "At any stage ofthe proceedings, the court may, ifsatisfied that the accused person has no case to answer, dismiss the charge and acquit the accused." In the case of Director of Public Prosecutions v. Philipo Joseph Ntonda, Criminal Appeal No. 217 of 2020[2021] TZCA 707(1 December 2021), a broader view of the term prima facie caserns given by the Court of Appeal on page 14 of its decision where it referred to its previous decision in the case of The Director of Public Prosecutions v. Morgan Maliki and Another, Criminal Appeal No. 133 of 2013 (unreported) in which it was held: "So, on the principiesset outin BHA TVs and MURIMI's cases, we think thata prima facie case is made out if, uniessshaken, it is sufficient to convict an accused person with the offence with which he is charged or kindred cognate minor one. Which means that at this stage^ the prosecution is expected to have proved ail the ingredients of the offence or minor, cognate one thereto, beyond reasonable doubt. If there is any gap, it is wrong to caii upon the accused to give his defence so as to fiiiit in, as this wouid amount to shifting the burden of proof."[Emphasis added] I have read the lower court's records. This being the second appeal, my duty is limited to interfering the lower court's concurrent finding and make my own findings only when there are misdirection or nondirections of the evidence occasioning miscarriage of justice. This has been a settled position stated often in various decisions. For instance in the case of Majaliwa Ihemo v. Republic, Criminal Appeal No. 197 of 2020 [2021] TZCA 304(15 July 2021) on page 9, the Court of Appeal held: "To start with, we are five with the generai principle ofcourt practice thata second appellate court wouid not easily disturb or interfere and undo the concurrent findings of two lower courts unless the two courts completely misapprehended the substance, nature and quality of the evidence resulting in an unfair conviction or where there was misdirection and or non direction on evidence" In the present appeal, it is clear to me that the appellant's complaint is that it was improper for the trial court to acquit the respondents while there was strong evidence that they were the ones who had damaged his crops maliciously. From the available records, the respondents were arraigned before the court charged with the offence of malicious destruction or damage to property under section 326(1) of the Penal Code which provides as follows: "Any person who wilfully and unlawfully destroys or damages any property Is guilty ofan offence, and except as otherwise provided in this section, is iiabie to imprisonment for seven years. In my understanding,for the said offence to be proved, it must be brought into the satisfaction of the court that the accused person had wilfully and unlawfully destroyed or damaged a property belonging to another person. In proving the respondent's involvement in the offence, the appellant informed the trial court that he eye witnessed the respondents destroying his crops. On page 10 of the typed trial court proceedings he is recorded to have testified that: "siku ya 19 mwezi wa kwanza siku ya ijumaa, nikiwa shamba mulemule mdogo wangu akanitumia meseji kuwa kuna watu wapo kwenye mahindi yangu wanazunguka zunguka chini na kukanyaga mahindi na kukata na kupanda mitiki, nikashuka nikakuta kweii wana zoezi hiio ia kupanda miti yao na kupanda mahindi.../' The appellant further paraded two witnesses apart from him in which one of them, one Juma Athumani Ngochero also eye witnessed the respondents damaging the appellant's crops. According to his testimony as reflected on page 13 of the trial court typed proceedings, the witness testified that he saw the respondents destroying the crops and thereafter chose to inform the appellant. In view of the above testimony, irrespective of the fact that the agriculture officer was not called to testify before the trial court, I find that the prosecution was able to establish the respondents' destruction of the maize crops. The presence of an agricultural officer would only confirm the value of the damaged crops. I opine that the absence of the officer's testimony did not corrode the prosecution case as the evidence of PWl and PW2 who were at the crime scene, was cogent to establish the alleged destruction. In that regard, I find that the allegations that the agricultural officer was not called to substantiate the appellant's claim as unfounded in the bid to prove that the appellant's crops were damaged by the respondents. I hold that the evidence of the eyewitnesses, PWl and PW2, proved the respondent's destruction of the crops. 10 Upon establishing the actus reus, the prosecution was duty bound to present evidence that the said act was wilfully and unlawfully committed. Incidentally, the lower courts were of the opinion that the ownership of the land in which the crops were damaged was in dispute, and thus the offence could not be proved to the hilt. In other words, the two courts intimated that the respondents couid not be held to be guilty of malicious damage to the crops in the absence of the appeiiant's proof of ownership of the land as well as the existing dispute as to who is the lawful owner of the same. I have revisited the trial court's records in line with the foregoing lower court reasoning. I have noted through the evidence of the prosecution witnesses that there was a dispute regarding the ownership of both the crops and the land in which the same were cultivated. It is clear from the cross examination questions posed to the appellant and his answers thereto that there was a serious question of ownership of the land. In his own words, the appellant and his witnesses informed the court that the appellants were planting teak trees in the disputed land. To me, that could also imply that the respondents entered into the land, uprooted the maize crops and planted the said trees believing to have a «rW- 11 bonafide claim over the same as provided for under section 9 of the Penal Code which provides: "/J person is notcriminally responsible in respect ofan offence relating to property if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim ofright and withoutintention to defraud." In the circumstance, it was therefore the duty of the appellant to prove that not only that the crops were his, but also the land In which the crops were planted belongs to him and thus, there was no dispute as regards to the land in which the crops were cultivated. Unfortunately, apart from informing the trial court that the maize crops were his, and that the land in which the same was cultivated belongs to him, there was no evidence produced to substantiate his claims. Nothing on record indicated that indeed the appellant owned the land. It is a common knowledge that in property related offences, proof of ownership of the property cannot be overemphasized. Even in the matter at hand, the offence of malicious damage to property cannot stand without resolving first the question of ownership of the land. [See the case of Kusekwa Nyanza v. Christopher Mkangala, Criminal Appeal No. 233 of 2016[2018]TZCA 491(7 December 2018)on page 9]. I say so because in fact, the proof that the respondent exclusively owned the land was 12 crucial In ascertaining as to whether the respondents' destruction of the crops was lawful or not. It follows that as the appellant's evidence as to his ownership of the land and the respondent's mens rea in the destruction of the crops has been shaken, it cannot be held that a prime facie case was made out against the respondents. In totality of my observation and analysis of the trial court's records, I am satisfied that though the evidence of PWl and PW2 proved damage to the crops, the ingredients of the offence of malicious damages to property were not established against the respondents. That said, I find no reason to disturb the concurrent findings of the lower courts. I hold that the first appellate court trial court was correct to uphold the decision of the trial court in discharging the respondents upon being satisfied that the prosecution case was insufficient to require them to enter their defence. In the upshot, I find no substance in the instant appeal. In consequence, the appeal is dismissed in its entirety. It is so ordered. Right of appeal fully explained. 13 DATED at MOROGORO this 28*^ day of November 2024. H.A. KINYfKA JUDGE V' M ' 28/11/2024 14