Henerico

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CRIMINAL APPEAL NO. 17071 OF 2024 (Arising from the decision of the District Court of Tabora in Criminal Appeal No. 6935 of 2024, Origin Criminal Case No. 2 of2024, Isevya Primary Court) HENERIKO THOBIAS SALEHE................................... APPELLANT VERSUS JULIUS ELIAPENDA MNZAVA.................................... RESPONDENT JUDGEMENT Last order: 4/11/2024 Judgement date: 18/12/2024 MANGO, J This is a second attempt by the Appellant to challenge the decision of Isevya Primary Court in Criminal Case No. 2 of 2024 which was instituted by the Appellant. In Criminal Case No. 2 of 2024, the Appellant accused the Respondent for unlawful damage to property. He alleged that, on 20th December 2023, the Respondent did cut down his maize plants and sprayed poison into his rice seedlings beds which contained rice seeds. The Court found the Appellant to have failed to establish the case against the Respondent beyond reasonable doubt and proceeded to acquit the Respondent. 1 Aggrieved by the decision of the trial Court, the Appellant unsuccessfully appealed to the District Court of Tabora via Criminal Appeal No. 6935 of 2024. He has now approached this Court on the following grounds of appeal: 1. That, the first Appellate Court erred in law and in facts for upholding the decision of the trial Court which infact fabricated its own case of proving ownership of a piece of land while the substance before the Court was unlawful destruction of the property 2. That, the first Appellate Court erred in law and in facts for upholding the decision of Isevya trial Court which grossly erred in law and facts for its disregard to the evidence adduced by the Appellant on the committed offence and erroneously paid into consideration on the evidence on ownership of the piece of land which indeed its dispute is pending before the Court with competent jurisdiction to entertain the same. On 4th November 2024 when the appeal was called on for hearing, both parties appeared in person without representation and informed the Court that they are ready to argue the appeal by their own. In his submission, the Appellant submitted that, the case he instituted against the Respondent before the Primary Court was for destruction of property to wit, cutting down of maize and putting poison in his rice. To his surprise, the court made up its own case which concerns ownership of the farm. According to him, such act, caused the Court to fail to determine the matter on merits. 2 On the second ground of appeal, he submitted that, the Court did not consider evidence he adduced before it. He is of the view that, he produced very strong evidence and he managed to prove that the Respondent committed the offence. He concluded that, had the trial Court considered his evidence, it would have reached into different findings. In his reply submission the Respondent supported the decisions of the Appellate Court and that of the trial Court. He submitted that, the trial Court determined the dispute as lodged by the Appellant. It determined the issue of the alleged destruction of properties and not ownership of the farm as alleged by the Appellant On the second ground of appeal, he submitted that, the Court considered evidence adduced before it and determined the dispute as lodged. As to what was the basis of the Court decision, the Respondent argued that, the Appellant did not adduce any proof of the alleged destructed properties that's why the Court couldn't hold in his favour. He insisted that, the decision of the two courts is correct as there is no evidence that was tendered to prove the alleged destruction of properties. In his brief rejoinder, the Appellant reiterated his submission in chief. I have considered submissions made by both parties and thoroughly read Court record. From the submissions and Court record it is not disputed that the Respondent was charged with the offence of damage to property contrary to section 326(1) of the Penal Code, [Cap. 16 R.E 2022]. The section reads 3 "Anyperson who wilfully and unlawfully destroys or damages any property is guilty ofan offence, and except as otherwise provided in this section, is liable to imprisonment for seven years." The section establishes the following elements for the offence of destruction to property. First, the existence of the property; second, destruction of the property; third, the destruction should be done willfully which depicts intention to destroy the property and freedom of mind when effecting the destruction and fourth, the act of destruction should be unlawful. The trial Court acquitted the Respondent after it made findings that, there is a land dispute between the Appellant and the Respondent as they all claim to be lawful owners of the land in which the alleged destructed plants were grown. With that findings, it is true that the Court required the issue of ownership to be proved before convicting the Respondent for the offence of damage to property as alleged in the first ground of appeal. Court record also establishes clearly that, the trial Court disregarded some pieces of evidence tendered by the Appellant on the reason that they were not reliable. Among the Appellant's evidence that was disregarded by the trial Court is the valuation report which was disregarded because its contents are contrary to the real situation at the scene of crime, the farm in which the alleged damage to property was done. According to the judgement of the trial Court what is contained in the report is contrary to the courts observation during visit to the scene of crime and it also contradicts the testimony of the Appellant during trial. According to Court record, the visit to the scene of crime was done on 8th February 2024 while the incident is alleged to have taken place on 20th December 2023. With simple calculations, 4 49 days lapsed before the Court visited the scene of crime. It is not clear as to what necessitated the Court to visit the scene of crime 49 days after the alleged destruction of the crops. The first Appellate Court upheld the decision of the trial Court on a different ground. The District Court considered the Appellant's failure to tender the maize that was cut down, and the poisoned rice seeds to have caused doubts in the Appellant's case. I noted that hearing of the case before the trial Court commenced on 11th January 2024 which is 20 days after the alleged destruction of crops took place. I am of the view that production of the remains of the destroyed plants was not feasible. Moreover and with due respect to Hon. Magistrate, production of damaged crops is not the only way of proving that the crops were damaged. I will start with the requirement to prove ownership as an element for the offence of damage to property which is the basis of the first ground of appeal. Section 326(1) does not provide for express requirement of proof of ownership to the damaged property. Despite that, I am of a considered view that, the requirement to prove ownership of the damaged property is inferred in the sense that, a person cannot be successfully charged under the provisions of section 326(1) of the Penal Code for destroying his own property. In the case of Lawrence Mateso Versus Republic [1996] TLR 118, the Court considered the possibility that the Applicant destroyed his own property to be among the issues that establishes chances of success of the appeal against conviction for the offence of malicious damage to property. 5 In Scolastica Paul versus Republic [1984] TLR 187, the Court held that:- "70 constitute the offence of malicious damage or destruction to property, there must be evidence of damage of the property and the ownership of the property" In the same vein, I am of the view that, the Appellant ought to have established that the property alleged to have been damaged belongs to him. Proof of ownership in this matter serves two purposes, to establish that the Respondent has no legal right to destroy the property thus, the damage allegedly caused by him is unlawful and second, that Appellant's right to institute charges against the Respondent. Court record indicates that, the property alleged to have been destroyed are crops of two types, maize and rice seeds in a seedling bed. The important issue in this appeal is whether the Appellant was to prove ownership of the crops or the land onto which the crops were allegedly grown. I am of a considered view that, the Appellant was required to establish his ownership of the allegedly destroyed crops. I am alert of the legal principle contained in the latin maxim Quicquid plantatur solo, solo cedit which means whatever is affixed to land forms part of the land but the facts in this case are a bit different. Ordinarily, not all persons who grow crops in farms they also own the farms, some they merely own the crops grown therein. It should be noted also that existence of a land dispute does not vest in either of the disputants powers to destroy properties in the land subject of the dispute unless there exists a court order to that effect. Land disputes have their own procedure of addressing them as provided by the Land Disputes Courts Act 6 and other laws, gladly unlawful destruction of properties is not among the procedures of dealing with land disputes. Unfortunately, the Trial Court required the Appellant to prove ownership of the land in which the crops were planted and not the crops which were allegedly destroyed. I would have proceeded to re-evaluate evidence in record and assess if the Appellant established ownership of the disputed crops and other elements of the offence as provided under section 321(1) and highlighted in this judgement but this being a second appellate Court is not vested with such powers. In such circumstances, I find it to be in the interest of justice to have the matter returned to the trial Court for retrial. For that reason, I hereby employ revisionary powers of this Court to nullify proceedings of the trial Court and that of its subsequent appeal before the District Court. The matter is returned to the Primary Court for retrial preferably before a different Magistrate. Dated at Tabora this 18th day of December 2024 Z.D.MANGO JUDGE 7