Ferdinand Tinka

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA PC CRIMINAL APPEAL NO. 26 OF 2023 (Arising from Criminal Appeal No, 25 of2023 District Court of Muieba; Originating from Muieba Urban Primary Court in Criminal Case No. 278/2022) FERDINAND TIRWEHOZIBWA TINKAMWESIGILE....... ....... 1st APPELLANT VICENT MSILIKALI............... ....... .................................... . 2NB APPELLANT VERSUS ADRIANA AUDAX.......... ........................................... .......... . RESPONDENT JUDGMENT 25th July and 1st August, 2024 BANZI, J.: Before Muieba Urban Primary Court (the trial court) the appellants were charged with the offence of theft contrary to section 265 of the Penal Code [Cap. 16 R.E. 2022]. It was alleged thatz on 10th October, 2022 at Gwanseli village, within Muieba District in Kagera Region, without any colour of right, the appellants stole seven (7) trees valued at Tshs.342,000/-. After a full trial, the appellants were convicted and discharged under the condition that, they shall not commit any offence within three (3) months. In addition, they were ordered to pay the respondent Tshs.342,000/= as compensation for the trees they cut. Page 1 of 10 Before going further, I find it apposite to give the factual background leading to the conviction of the appellants as reflected from the evidence of both sides. The respondent (SMI) is claiming to be the chairperson of Tweyambe Group which consists 70 members. In 1999, the village council of Gwanseli allocated the said group a piece of land measuring six acres. In that land, they planted Mihumula trees. On the fateful date, around 4:00 PM, SMI heard a sound of chain saw machine cutting trees, whereby, she went there and found the appellants and another person namely, Adhifu had already cut down one tree and they were in the process of cutting other six trees. Also, they had panga and two cans; one for oil and the other for petrol. She raised alarm which was positively responded by another member, Hilda Mwombeki (SM2). Thereafter, they called the village executive officer who arrested the appellants and took them to the police station. Police officer, E.5219 D/SGT Ally (SM3) requested the agricultural officer to evaluate the trees alleged to be stolen. In his report (Exhibit P4), the agricultural officer found that the stolen trees valued Tshs.342z000/=. The evidence of SMI was supported by SM2 who insisted that, the group has been owning that land measuring six acres since 10/04/1999. However, in cross examination, SMI and SM2 admitted about existence of land dispute between their group and their former chairman, Hawa Amada Page 2 of 10 who had another group by the name of Rwangudu. The dispute was determined by Gwanseli ward tribunal in favour of Rwangudu group. Nevertheless, at the District Land and Housing Tribunal for Muleba (DLHT), the decision of the ward tribunal was quashed and the proceedings was nullified for want of jurisdiction. SM2 further admitted that, it was Hawa Amada who sold the trees to the appellants. The respondent tendered the decision of the District Land and Housing Tribunal (Exhibit Pl) as a proof that, the land dispute was finally determined. In his defence, the first appellant (SU1) denied the allegation claiming that, the land belongs to his family which was bought by his brother Nikolaus Tinkamwesigile from Hawa Amada in collaboration with the Tweyambe group members for Tshs.10,000,000/= and he was the one who paid the money on behalf of his brother. The sale agreement was witnessed by the hamlet leader and Charles Jeremiah. When the land was bought, there were trees and on the fateful date they had gone to cut them under permission of his brother. He tendered the sale agreement, which was, however, rejected by the trial court. He further contended that, at the time they were arrested, they had already cut only one tree. The second appellant in his defence, denied to have stolen the alleged trees contending that, on that day, while on the way to his brother-in-law, he met the first appellant who gave him a Page 3 of 10 lift, When they reached at the scene ofcrime, a fracas ensued whereby, he was accused of stealing trees. Their evidence was supported by Hawa Amada (SU2), who claimed that, the farm in question was lawfully sold to Nikolaus Tshs. 10,000,000/= ahd the sale was witnessed by members of the group. According to her, the land in dispute was allocated to Tweyambe group by village government in 1999 and by then, the group had 25 members. To establish the allocation, she tendered a receipt which was admitted as Exhibit Bl. It was also her testimony that, the respondent is not the member of Tweyambe group. SU3, Edward Miigo supported the evidence of SU2 that, as the village chairman between 1984 to 1999, the suit land was allocated to Tweyambe group which comprised 25 members under leadership of SU2 and the respondent Was not a member of that group. Apart from that, Hajala Swarehe (SU4) who claimed to be a member of Tweyambe group, supported the evidence of SU2 that, the land in dispute was sold by the group members to Nikolaus for Tshs. 10,000,000/=. She further claimed that, SMI and her fellows were not among the members who were allocated that land. Also, Gratian Christian (SU5), stated that, as the village chairman, he witnessed the sale of the land between Tweyambe group and Nikolaus whereby the land was sold for Tshs. 10,000,000/=. Page 4 of 10 According to him, the respondent is a member of Rwangundu group and when Tweyambe group sold its land, she did not participate. At the end of the trial, the appellants were convicted and sentenced as alluded above. Their appeal to the district court of Muleba (first appellate court) bore no fruits, hence, the lodged this appeal which contains the following grounds: 1, THA 7; both subordinate Courts erred in law by dealing with criminal charges over the land while the question of ownership was not yet settled by the competent court/tribunal; 2. THAT, both subordinate Courts erred in law by convicting the appellant over the offence that was hot proved to the standard required in law to wit beyond reasonable doubts. At the hearing, the appellants were represented by Mr. Raymond Laurent, learned Advocate whereas, the respondent was represented by Mr. Fumbuka Ngotolwa learned Advocate. Having perused the record of the two courts below, I find it prudent to start with the first ground, which in my view, it suffices to dispose of the appeal. On his side, Mr. Laurent submitted that, the trial court erred to entertain the criminal charge while there is evidence establishing existence of land dispute between parties which is not finally determined. He added Page 5 of 10 that, at the trial court, the respondent produced the decision showing existence of land dispute between Tweyambe group and other members of the same group. The record show that, the respondent is alleging Tweyambe group to have sold the land in dispute to the brother of the first appellant. It was further his submission that, the first appellant in his defence admitted to cut down the tree claiming that, the land is owned by his brother. He insisted that, under those circumstances, the trial court was not supposed to proceed with criminal charge. He supported his submission by the case of Sylivery Nkangaa vs Raphael Albertho [1992] TLR 110. In that regard, he prayed for this appeal to be allowed by quashing the decision of the trial court and that of the first appellate court which upheld the conviction. In response, Mr. Ngotolwa was adamant that, that there is no land dispute between the parties to this case. However, the existed dispute which was finally determined was between the respondent and the Chairman of Tweyambe group, and therefore, the trial court was right to proceed with criminal charges. Besides, the brother of the first appellant was supposed to come to court and testify himself about existence of the dispute and if he was the one who permitted the appellants to enter into that land. Finally, he prayed for the appeal to be dismissed. Page 6 of 10 In his brief rejoinder, Mr. Laurent insisted that, there is land dispute over the subject matter, which was admitted by SMI, regardless parties were not part to the said dispute. He reiterated his prayers for the appeal to be allowed. Having carefully perused the records of lower courts and having considered the submissions of learned counsel for the parties, the issue of determination is whether particular circumstances of this case, the lower courts acted properly to entertain the criminal charges. I have carefully examined the evidence before the trial court. According to the evidence on record, it is undisputed that, on the date of incident, the appellants were found harvesting trees in the farm which, as per testimony of the respondent, it is legally owned by Kweyamba group. She also claimed to be charman of that group. On the other, the first appellant who admitted to cut down one tree, claimed that, the farm in question is the property of his brother which he bought from Tweyambe group. His evidence was supported by SU2, SU3, SU4 and SU5 who confirmed that, the farm in question was the property of Tweyambe group which was sold to the brother of the first appellant. According to them, the respondent is not a member of the Tweyambe group. The evidence also reveals that, there was land case between chairperson of Tweyambe group Page 7 of10 (Hawa Amada) against chairperson of Rwangudu group and Adriana Audax (chairperson of Tweyambe group) at Gwanseli ward tribunal in respect of the farm in question which ended in favour of Hawa Amada. However, the respondent, Adriana Audax filed revision before the DLHT where the proceedings and judgment of the ward tribunal were nullified for want of jurisdiction. Besides, parties were advised to file the matter afresh. From the evidence of both sides, it is apparent that, each side claimed to be the owner of the suit land where the trees were alleged to be stolen by the appellants. Their evidence reveals that, there is dispute within Tweyambe group between its members because Hawa Amada is alleging that, the respondent is not a member to their group. The same allegation was raised by the respondent against Hawa Amada. Apart from that, there is another dispute in respect of land which according to Hawa Amada, the same was sold to the brother of the first appellant by members of Tweyambe group while the respondent claimed otherwise. Despite these glaring disputes, the trial court proceeded to convict the appellants because they failed to call Nikolaus Tiiikamwesigile who was alleged to purchase the farm in question from Tweyambe group in order to prove how he bought that farm. According to the learned magistrate, there was no land dispute between the parties as the existed dispute did not involve the appellants. On Page 8 of 10 her side, the learned magistrate of the first appellate court, upheld the conviction and sentence of the appellants by relying on the decision of the DLHT which according to her, it determined the dispute between parties to its finality. I had opportunity of perusing the ruling of the DLHT which concerns revision filed by the respondent. In that matter, the chairman of the DLHT nullified the proceedings and judgment of the ward tribunal for want of jurisdiction. In addition, he advised party with interest to file fresh case. With due respect, the ruling in question did not finally determine the dispute as suggested by the learned magistrate of the first appellate court. In my view, for land dispute to be finally determined, there must be a decision declaring one party to the suit as the lawful owner of the land in dispute. Besides, the evidence before the trial court established existence of dispute of ownership over the land where the trees in question were harvested. Although the appellants were not parties to that dispute, yet still, a criminal charge cannot stand as the trees alleged to be stolen are within the same land whose owner was not finally declared by a court of competent jurisdiction. Therefore, under the prevailing circumstances, it was not proper to open the criminal charge against the appellants while there was still unresolved dispute Over ownership of land where the trees were alleged to be stolen. Page 9 of 10 For the reasons stated above, I allow the appeal by quashing the proceedings and judgments of both courts below. I also quash the conviction and set aside the sentence meted against the appellants. The respondent and Hawa Amada are advised to resolve their dispute of membership of Tweyambe group through proper forum. Equally, the respondent, Hawa Amada and Nikolaus Tinkamwesigile are also advised to resolve the issue of ownership of the farm in question before the competent court. It is so ordered. I. K. BANZI JUDGE 01/08/2024 Delivered this 1st day of August, 2024 in the presence of the first appellant, the respondent, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Peace Musasa, RMA and in the absence of the second appellant. Right of appeal duly explained. I. K. BANZI JUDGE 01/08/2024 Page 10 of 10