image5245

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO PC. CRIMINAL APPEAL NO.40237 OF 2023 [Appeal from the decision of the District Court of Morogoro at Morogoro in Criminal Appeal No 34 of 2024; Original Criminal Case No 228 of 2023 of KisakI Primary Court] BETWEEN ISMAIL KITOSI APPELLANT VERSUS SHABANI JUMA & TWO OTHERS RESPONDENTS JUDGMENT MRUMA,J This is a second Appeal. It arises from the decision the District Court of Morogoro at Morogoro in Criminal Appeal No 34 of 2023 which originated from Kisaki Primary Court in Criminal Case No. 228 of 2023. In that case the Appellant Ismail Kitosi unsuccessfully instituted a criminal charge against the Respondent Shabani Juma,Shamte Musa and Athmani Bombwe for the offence of Malicious Damage to Property Contrary to Section 326(1) of the Penal Code [Cap 16 R.E. 2019]. After hearing evidence from both sides the trial court found that there was a dispute over ownership of the land on which the Appellant was complaining to have his crops destroyed and it proceeded to dismiss the Appellant's case. The court went further and advice parties to commence land dispute before an appropriate forum for determination of ownership of the land. The Appellant was aggrieved by that decision of the trial court and he unsuccessfully appealed to the District Court. In its judgment the District appellate court found that on the evidence on record ownership of the land was in dispute because while the first Respondent claimed that the land was their property, the third Respondent testified that the land belonged to their father. The court concluded that because ownership of the land was an issue an offence of malicious damage to crops thereon cannot stand. Once again the Appellant was aggrieved and he has appealed to this court on the following grounds:- 1. That,the Honourable District Court magistrate erred in law and facts for failure to re evaluate the evidence tendered by the appellant at the trial court to make its own findings and draw its conclusion that evidence of the appellant was heavier than that of the respondent. 2. That,the Honourable District Court Magistrate erred in law and facts by failing to consider and decision based on the land disputes whereas charges are about the destruction of properties in the farm and not land dispute. 3. That, the Honourable District Court Magistrate erred in law and in fact by delivering iilogicai and baseless judgment. On those grounds of appeal the appellant prays this court to allow. At the hearing of this appeal the Appellant was represented by Mr Kohelethi Julius learned advocate whereas Respondent was represented by Mr Jackson Liwewa also learned advocate. The appeal was argued by way of written submissions. Counsel for the Appellant abandoned ground No 3 and proceeded to argue the and 2"^^ grounds. On the first ground the learned counsel submitted that the two courts below failed to evaluate the evidence on record which would show that the Appellant was the lawful owner of a piece of land which was evaded by the Respondents. According to the counsel for the Appellant Respondents did not tender any evidence before the trial court to show that the evaded land was In dispute. He said that the agreement that was tendered by the third Respondent during the trial doesn't prove that the land belong him, rather It Is agreement which belongs to other person who was not a party to the case. The learned counsel cited the of Deem Daati and 2 others vs. Republic [2005] TLR 132 as authority. On the second ground, the learned counsel submitted that during the trial the Appellant managed to establish all ingredients of the offence of Malicious Damage to Property and referred this court to the case of Julius Malobo vs. Revocatus Msiba & Another, PC Criminal Appeal No.03 of 2020. He said that the courts below failed to apply the ingredients of the offence to the facts of the case and omitted to consider some important ingredients of the offence before arriving at the conclusion. He contended that the issue of land ownership was not important in deciding whether or not the Appellant's bananas were destroyed. He said that the defendants did hide themselves under the umbrella of land ownership to justify their illegal acts and that since they failed to prove ownership of land then the offence of malicious damage to property was proved. Replying to the Submission by the counsel for the Appellant, Mr Liwewa contended that the case Julius Maioio vs. Revocatus Msiba & Another (supra) cited by the counsel for the Appellant was actually in favour of his clients' case. The learned counsel stated that the first ingredient of offence of Malicious Damage to Property is ownership of the land and that one owns the property connected to the land. He cited the case of Joseph Makune vs. Republic [1986] TLR 44 and the case of Paskaii Joseph vs. Evarist Martha, PC Criminal Appeal No. 14 of 2023. Mr. Liwewa submitted that, the Respondents contradicted the Appellant's evidence by showing that the farm belonged to their late father by the sale agreement tendered by the Respondent which was admitted in evidence. By way of rejoinder counsel for Appellant stated that nothing was tendered to show that the Respondents owned the suit land and concluded that cases cited by the counsel for Respondent are distinguishable. Having gone through the records of the appeal, the grounds of appeal and the rival submissions of the parties the question for determination is whether the two courts below District Court were right in holding that the offence of malicious damage to property was not proved beyond reasonable doubt. This being the second appeal, this court may only interfere with the findings of the facts of the two lower courts if it is satisfied that there was misapprehension of the evidence or if there is violation of some principles of law or procedure [See Wankuru Mwita vs. Republic, Criminal Appeal No. 19 of 2012] where the Court of appeal held that; The law is wellsettled that on second appeal, the court will not readily disturb the concurrentfindings by the trial court and the first appellate court unless It can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a resultofcomplete misapprehension ofthe substance, nature and quality of the evidence; misdirection or non direction on the evidence: a violation ofsome principle oflaw or procedure or have occasioned a miscarriage ofjustice. This court therefore is called to scrutinise the record of the two lower courts to see if here was any non-direction or mis-direction of the evidence or violation of some principles of law that has occasioned miscarriage of justice. Before the trial court, the Respondents were charged with the offence of Malicious Damage to Property contrary to section 326 (1) of the Penal Code Cap. 16,(R.E. 2019) which provide that; Any person who wilfully and unlawfully destroys or damages any property Is guHty ofan offence, and except as otherwise provided In this section. Is liable to Imprisonmentfor seven years. I is now trite law that for the offence of Malicious Damage to Property to be stand under the cited provision, the complainant must prove that:- (i) He is the owner of the property/properties alleged to be destroyed; (ii) The said property has been destroyed or damaged; (iii) The alleged damage or destruction was caused by the accused person; (iv) The alleged damage must have been triggered by malice. The gist of this appeal lies on whether or not there is a land dispute between the parties. While I agree with the counsel for the Appellant that the complaint before the trial court was destruction of properties to wit bananas plants and that in view of the evidence of Hawa Yakubu (PW2) the plants were actually destroyed by the Respondents, yet in view of the principle laid down in Julius Malolo's case (supra), for conviction for the offence of malicious damages to property to stand ownership of the land over which crops were planted must be proved. Section 326(1) of the Penal Code [Cap 16 R.E. 2019) under which the Respondents were charged provides that:- "Anyperson who wilfully and unlawfully destroys or damages any property Is guilty ofan offence and except otherwise provided In this section Is liable to Imprisonmentfor seven years'' Under the above quoted provision of the law the offence of malicious damage to property is committed by any person who wilfully and unlawfully destroys and damages any property belonging to another. In view of the provision of the law quoted the prosecution has a burden to prove beyond reasonable doubt that the property belongs to the complainant and that the accused person wilfully and unlawfully destroyed the property in issue. Wilfully within the context of Section 326(1)of the Penal Code means"intentionally" as opposed to "accidentally" that is by an exercise of one's free will. In Ugandan case of Byekwaso Mayanja Seballija Versus Uganda (1991) HCB 15 which I find persuasive it was held inter alia that:- '7/7 a case under section 315(1)of the Penal Code Act, honest belief whether justifiable or not that the property Is the Appellant's own, would negative the element of mens rea. The Appellant's claim negative the element of mens rea requisite under the section" In the case at hand the Respondent denied the allegations that they wilfully and unlawfully destroyed the Appellant's crops and claimed that they don't even know the farm which Is said to be destroyed and the third Respondent testified that the land belonged to his late father. This evidence shows that there Is a dispute over ownership of the said land and therefore until the same Is resolved through appropriate forum a criminal case of malicious damage to property cannot stand. This so because the element of wilfully will miss. In the case of Sylvester Nkangaa vs. Raphael Albertho [1992] TLR 110, In the Court of Appeal held that:-; (i) A charge of criminal trespass cannot succeed where the matter involved iand in dispute whose ownership has not finally determined by a civiisuit via civii court ofiaw. (ii) A criminal courtis nota proper forum for determining the rights of those claiming ownership ofiand. Oniy a civii court via civii suit can determine matters ofiand ownership. That being the position of the law, I find that both courts below were correct In holding that In view of dispute over ownership of the land over which the crops stand no charge of malicious damage to property can stand. In the upshot, I uphold the decision of District Court and dismiss this appeal in its entirety. Parties are at liberty to pursue a land dispute and establish their respective rights over the land and the crops therein. It is so ordered. A.R. MRUMA y. y- JUDGE > j'.W, 07. 10. 2024 10