Judg

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO: 23188 OF 2024 Ref NO 202408162000023188 (Originating from the Decision of District Court of Kinondoni at Kinondoni in Criminal Case No. 236 of 2023 delivered on 15th August 2024 Hon. F.R Mhina SRM) HENRICK RAYMOND SWAI------------------------------------------APPELLANT VERSUS REPUBLIC-------------------------------------------------------------RESPONDENT JUDGEMENT: 13th Dec 2024 & 27th Feb.2025 KIREKIANO J: Hendrick Raymond Swai was charged before the District Court of Kinondoni with the offences of stealing contrary to Section 258(1) and 265, Criminal trespass contrary to Section 299, and malicious damage to property contrary to Section 326(1) of the Penal Code, Cap 16 R.E 2022. A brief background of this charge is that the accused on 22nd March 2023 at the Kijitonyama Mpakani area unlawfully entered the property of Hellen Aimrini Mremi, and wilfully and unlawfully damaged food products valued at Tshs. 5,037,080/=, non-food products valued at Tshs. 5,108,200/=, soft 1 drinks valued at Tshs. 16,584,100/= all total valued at Tshs. 26,129,380/= which were supermarket item properties of one HELLEN AIMRINI MREMI. It was further alleged that the accused person on the same place and date stole Air conditional, make gree valued at 1,500,000/=, Deep freezer with two top doors valued at Tshs. 1,700,000/=, two ceiling fans make Evono valued at Tshs. 180,000/=, two big shelves valued at Tshs. 3,000,000/=, one stabilizer make V/AZ000AM valued at Tshs. 300,000/= and cash money Tshs. 300,000/= all properties valued at Tshs. 6,980,000/= the properties of Hellen Aimrini Mremi. The appellant pleaded not guilty to the charge. The prosecution called four witnesses: PW1. Hellen Mrema, PW2 David Godwin Urio, PW3 Mariam Boniphace and PW5 E.7846/D SGT Ernest. On his party the appellant had four witnesses as well, himself as DW1, Joseph Abapeter Shalo as DW2, Josephine Charles Hillary as DW3 and Jane Joram Ackechi as DW4. After full trial, the trial Court found the charge was proved to the required standard and proceeded to convict and sentence the accused person (now the appellant) to perform community services for 240 hours and placed him under a good conduct bond for one year. The substance of the facts leading to the appellant’s arrest is as follows. 2 PW1 Hellen Mrema owns a supermarket at Kijitonyama Mpakani. She said that there is an agreement between her husband David Urio and Jane Joram Akechi who is the owner of the frame. According to her, she was called and told that things are taken out in her supermarket. She called Sarah John, who sells in the supermarket but never picked up the phone. After reaching the supermarket, it was closed and Sarah was there who told her that the accused took her phone and ordered people to remove the things from the supermarket. She informed the local government officer and together noticed that food and non-stuff were destroyed, other properties were locked up within the supermarket, of which the total value is Tshs. 6,980,000. PW2 David Godwin Urio testified that his wife, PW1 runs a supermarket at Sinza. He had a lease agreement with Alex Magome, who told him that the area was under the control of Jenny Akeche. So, after the end of the contract with Mr. Alex, Miss Jenny Akeche informed him for an extension, who told him that Josephine Hillary owns it, as she is the one who has the right to rent for her school fees. He entered into lease agreement with Jenny whereby on 05/03/2021 his bar, club, hall and shops were destroyed by fire. He later extended the contract for five years up to 2026 and built three shops 3 with the consideration that the building will be for Jenny after five years. According to him, he was called on 22/03/2023 that there is a person called Hendrick Swai who took the properties from his wife’s supermarket with the condition that they would pay their money. He said that he had a contract with Jane Joram and not the accused, but Jane Joram informed him that he was not his tenant nor knew him The misunderstanding reached PW3 Mariam Boniphace Mgasa a street executive officer. According to her, on 22/03/2023, she received a complaint from PW1 that someone had taken the properties in her supermarket. After reaching the scene, they found Court Broker. She called the accused who informed her that the victim had not paid rent, so he sent men to remove things from the shop. According to her, all removable things were removed outside, and at the scene, a girl sold in the shop. The complaint reached the police was investigated by PW4 E.7846 D/SGT Ernest, According to him, PW1 told him that her husband David Urio had a contract with Jane Joram who resides in Zanzibar. He later went to the crime scene and met with PW3, the street executive officer, who informed him of what PW1 had told her. He met Jane Joram Akech who 4 said that the owner of the land in dispute. According to him, he took the caution statement of the accused who confessed to the offence. In his defence, the appellant, DW1, disputed whether Hellen had any contract in the disputed shop and whether Hellen had any business relations in the said land. He denied having anything stolen and was not present at the place in question on the date and time the offence is alleged to have been committed. He admitted to be the supervisor of the frame in dispute, which, according to his defence, is rented by Dotto and Mariam up to the present. DW2 Joseph Abapeter Shalo said that he knows DW1 as he is the supervisor of the place he works at, Sinza Mori. According to him, he saw someone taking shop materials from the shop and loading them into the car, but he did not know what was going on. He said that he did not see the accused when the incident occurred. DW3, Josephine Charles Hillary confirmed the appellant's alibi defence. She said that the appellant accused was in Mbeya for a funeral when the incident is alleged to have occurred 5 DW4, Jane Joram Akech. She said that the area in dispute is under the control of DW3 and his husband, and she owns a bar there . According to her, Mr. David Urion PW2, previously rented the area in dispute, but later the accused and DW3 acquired the same from a family meeting, so they rented the same. She disputed renting the place to Mr. David Urio, but he rented only the bar area, which ended in 2021. She said that she did not know PW1, Hellen Mrema. Upon hearing the evidence from both parties, the trial Court (District Court of Kinondoni) found the prosecution side to have proved the charge beyond reasonable doubt. It proceeded to convict and sentence the accused person (now the appellant) to perform community services for 240 hours and place him under a good conduct bond for one year. The accused (now appellant) being aggrieved by the trial Court decision has appealed to this Court on five grounds of appeal as follows: - i) Whether a charge of Criminal Trespass under Section 299(a) of the Penal Code Cap 16 R.E 2019 involving a land dispute between the complainant and accused can succeed in Criminal Court before resolving the Land Dispute of finality. 6 ii) That, the trial Court erred in both law and facts for convicting and sentencing the appellant for Criminal Trespass basing on the weak prosecution evidence which did not prove the case beyond reasonable doubts. iii) That, the trial Court erred in both law and facts for convicting and sentencing the appellant for malicious damage to property basing on the weak prosecution evidence which did not prove the case beyond reasonable doubts. iv) That, the trial Magistrate unfairly disallowed the defence od ALIBI to the (accused) appellant, who was not at the scene of the crime at the time the alleged offence was committed. v) That, the trial magistrate erred in law and fact by convicting the accused person basing on the caution statement which was obtained and recorded contrary to the law. The appeal was heard by written submission. Mr Anandumi Jonas Semu, a learned advocate, represented the appellant. Miss Jackline Werema, a learned Senior State Attorney, represented the respondent. It is noted here that; the respondent supported the appeal on the second ground of appeal. 7 Submitting on the first ground of appeal, Mr. Semu referred this Court to the case of Kusekwa Nyanza Christopher Mkangala, Criminal Appeal No. 233 of 2016 and the case of Ismail Bushaija vs Republic (1991) TLR. On the conflict between a case of Criminal trespass where there is a conflict of property ownership. He submitted that the ownership of the landed property on which the trespass is said to have been committed was in dispute as PW2, where it was claimed that there is a pending case at the District Land and Housing Tribunal. It was his submission that as the issue of ownership and tenancy was at the centre of the dispute, the same was to be disposed of first before preferring the charges of Criminal trespass. Regarding the second issue, Mr. Semu referred this Court to the case of Paschal Elikana vs Samson Kisinza (PC)Criminal Appeal No. 3 of 2023 which provided the elements to be proved for the offence of Criminal trespass. He submitted that an act of entering the property has to be proved to have been done by the accused person. He argued that all testimony of five prosecution witnesses was hearsay as none of the witnesses were at the crime scene as per the proceedings. 8 He further argued that the person named PW3 Sarah John on page three of the trial court judgment doesn’t appear anywhere in the proceedings supplied to the appellant on page. 25 of the proceedings and the one seen is Mariam Mugasa, the street executive officer, who testified that she got information from PW1. On the third issue, Mr. Semu referred the case of Juluis Malobo vs Revocatus Msiba and Another (PC. Criminal Appeal no. 3 of 2020) 3 of 2020 on the ingredient to be established in the offence of malicious damage or injury to property. He argued that there was no evidence tendered to prove that the complaint was the one who owned the supermarket as no any documentary evidence was tendered on that, there was no evidence tendered to prove the availability of goods in the premises, and lastly there was no eye witness(es) to prove the presence of the accused in the crime scene. On the fourth issue, he made reference to the decisions in Charles Samson vs Republic (1990) TLR 39 and Ludovick Sebastian vs Republic Criminal Appeal 318 of 2007 on the effects of an accused person's defence of Alibi. He submitted that the trial Court should have taken cognisance of the defence due to the circumstances of the case. 9 On the last ground of appeal, Mr. Semu referred to Section 50(1)(a) of the Criminal Procedure Act, Cap 20 R.E 2022, which provides that if the time lapses before the completion of the interview, it should be extended, which was not done in this case. He cited the case of Fikiri Kalamji and Another vs Republic, Criminal Appeal 163 of 202, CAT at pg. 13 on the absence of any other evidence tendered contrary to Section 51 of the CPA. He finally prayed that the appellant's conviction and sentence be quashed and set aside. In her reply submission, the counsel for the respondent, Miss Werema, supported the appeal on the ground that there was not enough evidence from the prosecution side linking the appellant with the offences of criminal trespass and malicious damage to property. It was her submission that the evidence from the prosecution side did not include an eye witness who saw what transpired. She submitted that PW1, the shop owner, was not present when the shop was invaded, and PW1 mentioned the so-called Sarah John as the one who was there. The 10 said Sarah John was never called to testify that it was the appellant who invaded the supermarket, as stated in the charge sheet. Miss Werema submitted further that the law requires the prosecution to call witnesses to prove the case against the accused person, failure of which entitles the Court to draw an inference adverse to the prosecution. To emphasise this, she cited the case of Aziz Abdallah vs Republic (1991) TLR. 71, and the case of Wambura Marwa Wambura vs Republic Criminal Appeal No. 115 of 2019 on the importance of calling witnesses by the prosecution able to testify on material facts. She finally prayed that this Court allow this appeal and that the conviction and sentence meted out against the accused be quashed. On my party, having gone through the submissions of both parties and the decision of the lower Court, I wish to start with the first issue: proving a charge of Criminal trespass. It is a well-established principle that where land ownership is in dispute, a criminal charge of trespass should not be entertained until the ownership of a particular land is resolved. The Court of Appeal in the case of Kibwana Mohamed v. Republic (1980) TLR 321, established the 11 principle that criminal charges related to trespass should not be entertained until the ownership of the disputed land is conclusively determined by a civil court. See also the case of Ismail Bushaija vs Republic (supra) where it was held that “It is wrong to convict a person for criminal trespass when ownership of the property alleged to have been trespassed upon is clearly in dispute between the complainant and the accused. As was pointed out by this court in the case of Saidi Juma v. Republic [1968] H.C.D. 158 ... in a case of criminal trespass, a dispute arises as to the ownership of the land, the court should not proceed with the criminal charge and should advise the complainant to bring a civil action to determine the question of ownership.” In the present case, the evidence presented by the prosecution, which includes rent agreement – P1, lease agreement dated 1/7/2014 - D1, Lease agreement dated 1/3/2020 D2, Lease agreement dated 1/7/2014 D3, and Lease agreement D4, indicates that there is a claim of existence of lease in the disputed land/property. Both the appellant and PW2, Mr. David Urio, the husband of PW1, claim to have rights over the property in dispute. It is in record that the matter is before the District Land and Housing Tribunal between PW2 and the so- 12 called Jane Joram, who, according to the evidence from both sides, has rights over the area. It is quoted from the proceedings on both prosecution witnesses and the accused person (now the appellant) saying: - PW2 said that: - “I know Hendrick as Josephine's Husband. Jane Joram was the one having the rights over the area and not this accused who was not part to our agreement. Then I received notice from Jane Joram that I am not her tenant and she does not know me. My Lawyer replied and we went to the Ward Land Tribunal where we were told to take the matter to District Land Tribunal where the case is still ongoing. PW5 is quoted saying:- “....I continued with my investigation and went to Zanzibar. I met with Jame Joram Akech, who told me that she is the owner of the land in dispute, i.e., Plot No. 1 Block 47 Kijitonyama D Mpakani. She also said she entered into an agreement with David Urio. It is further quoted from DW1, the appellant 13 I entered into a lease agreement with David Urio in 2014. From that, we entered into another from 2016-2019 and 2020- 2021. Your honor I have two contracts between me and Godwin Orio in the suit Frames. I have them with me they are of 2014-2014 and 2020-2021. I can identify them using my name and my signatures. They also contain the accused’s names and signatures. They are from 2014-2026. There are also the witnesses' names, the advocate who attested it, and his office stamp. Based on this evidence as quoted from the proceedings at the trial Court, it is found that there was an issue of ownership of the disputed land/property/frame which could be entertained in a civil suit before addressing the offence of criminal trespass. Therefore, it is correct to say that the charge of criminal trespass was premature as the ownership issue was not determined to its finality. Regarding the second ground on evaluating the evidence, this being the first appellate Court, it has to reevaluate the evidence adduced in the trial Court and test whether the decision should stand or may come up with its conclusion. This position has been stated in numerous decisions, including the case of Kaimu Said v. Republic, Criminal Appeal No 391 of 2019 where the Court of Appeal pronounced: 14 ‘We understand that it is settled law that a first appeal is in the form of a re-hearing. As such, the first appeal court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own finding of fact if necessary. Principally, in a criminal case, the prosecution must prove the case to the required standards by adducing evidence that meets appropriate standards of credibility and weight. It is not based on the number of witnesses but instead on the quality of testimony provided by the witnesses. See Section 143 of the Evidence Act, Cap 6 R.E 2022 and the cited case of Aziz Abdallah vs Republic (supra) where it was held that it is the duty of the prosecution to call material witnesses to prove their case. It was submitted by the appellant the point which was also supported by the counsel for the respondent that the prosecution side failed to bring an eye witness leading the whole evidences to remain hearsay evidence. Going through the record of the trial Court it is submitted by both counsels that PW1 who is the shop's owner was not present when the shop was invaded. It was PW1 who said that she was told by the so-called Sarah John who was present at the time of committing the offence. It is also true, as per the records from the lower court, the said Sarah John evidence, who 15 is the only witness purported to be at the scene, her evidence does not appear on the record Apart from the so-called Sara being mentioned in the trial Court judgment, there is no record of her testimony. Going with the principal that a Court record is always presumed to accurately represent what actually transpired in Court. See the case of Alex Ndendya vs The Republic, Criminal Appeal No. 207 of 2018, pg. 12 CAT (Tanzlii). Based on this, I agree with the learned advocate for the appellant and the State Attorney that in the absence of such evidence from the key witness, the prosecution case remains weak in finding a conviction against the appellant. This appeal is allowed, the conviction and sentence meted against the appellant are set aside. Dated at Dar es Salaam this 27th February 2025 16 A. J. KIREKIANO JUDGE 27. 02. 2025. 17