20160905 TZHC Mbeya

THE HIGH COURT OF TANZANIA

AT MBEYA CRIMINAL APPEAL NO 12 OF 2016 (From Criminal Case No 190 of 2013 of the Resident Magistrate Court of Mbeya) JACKSON HEZRON MBOMA ....................................APPELLANT

VERSUS THE REPUBLIC ................................................. RESPONDENT

JUDGMENT Date of last Order: 27.06.2016 Date of Judgment: 05.09.2016 Dr. Mambi, J. In the Resident Magistrate Court of Mbeya, the appellant was found guilty and convicted for obtaining money by false pretence Contrary to Section 302 of the Penal Code Cap 16 [R.E. 20021 and Perjury c/s 102 (1) (2) of the Penal Code Cap 16 [R.E. 20021. He was sentenced for five (5) years imprisonment for the 1st count and five (5) years imprisonment for the 2nd count. Aggrieved, the appellant filed a memorandum of appeal containing five grounds as follows:- 1. The learned trial Senior Resident Magistrate made a grave error on his refusal to examine and evaluate the defence case holding it was wrong for the accused person in his defence, to p.oint out 1 or make reference to inconsistencies and contradictions in the prosecution's case. The learned trial Senior Resident Magistrate having held the Appellant sold his coffee farm to PW1 Dickson s/o Mbena at a purchase price of Tshs 1 1,000,000/= was wrong to convict him with the offence of obtaining the same amount of Tshs I 1,000,000/= from the same Dickson s/o Mbena(PW1) by false pretence c/s 302 of the Penal Code, (Cap 16 R.E.2002). The learned trial Senior Resident Magistrate erred in this Construction of Section 302 of the Penal Code. (Can.16 R.E.2002) in the course of his judgment. The trial Court did not have jurisdiction to deal with the

issue of contract of sale of Land which was already before the District Land and Housing Tribunal for Mbeya District. The learned trial Senior Resident Magistrate made a serious error on holding that giving false information to a Police Officer is an offence of perjury c/ss 102 (1) (c) and (4) of the Penal Code, (Cap. 16 R.E. 2002). The learned trial Senior Resident Magistrate erred on convicting the Appellant on the offences charged when they were not all proved to the standards set by law. The learned trial Senior Resident Magistrate erred in his assessment of sentence he imposed on the Appellant. Parties prayed to argue this mater by way of written submissions and this court ordered parties to do so. The Appellant through his learned Counsel Mr.Mbise in his first ground of Appeal submitted that it was 2 El ng for the trial Court to refuse to examine and evaluate the fence case on grounds that in his defence, He submitted that the cused person pointed out contradictions and inconsistencies in the osecution case, relying of provisions of Section 231 (a) of The iminal Procedure Act. The learned Counsel argued that the Law is ttled that a failure to consider the defence case is fatal irregularity Judgment. He referred this court to Section 312 (1) of the iminal Procedure Act, Cap.20 R.E.

2002. Mr Mbise also referred decision of the Court of Appeal of Tanzania in Hussein Idd and tother Versus Republic [1986] TLR 166. his view, Mr Mbise argued that since the trial Court .iberately refused to take into account the defence case, it is safe to sustain conviction. Mr Mbise argued also raised other point by submitting that the trial Court did not have risdiction to deal with the issue of Contract of Sale of Land, ich is purely a matter for Land Courts to decide. He wondered to why the Resident Magistrate Court went on dealing with criminal trespass on the disputed land whose ownership s yet to be determined by the District Land and Housing bunal?. He argued that the law is clear where the Land •putes Courts Act, Cap.216 [R.E. 2002] vests Jurisdiction on d Disputes to Land Disputes Courts listed in that statute. In view, the Court of Resident Magistrate is not one of the Land irts. The appellant Counsel submitted that it is a matter of elementary that where there is a Criminal Charge against an used and accused say the Land is his property or Ownership LI that land is questionable, the Criminal Proceedings should stayed, to pave way for conclusion of Civil Case as to who is htfu1 owner of that land first. response, the republic though the learned State Attorney Ms &nrose briefly submitted that the Magistrate rightly convicted .d sentenced the appellant. She argued that

the evidence at e trial court was clear that the appellant unlawful sold the ffee farm to PW1 Dickson s/o Mbena and committed an ence of false pretence by obtaining the money amounted to hs 11,000,000/= c/s 302 of the Penal Code, Cap 16 E.2002]. ave thoroughly gone through the grounds of appeal raised and the bmissions of both parties. In my considered view the main issue whether the trial court erred in law in entertaining this case as a minal while the property involved was yet to he determined by the strict Land and Housing Tribunal. The other issues that need to be ninded is the question of considering the defence evidence and duating evidence before making a decision or judgment. I have used the records and it is clear the source of the criminal case in ich the appellant was charged with emanated from the land that lisputed at the District Land and Housing Tribunal. The records ws that there is a pending land dispute at the District Land and using Tribunal in Mbeya. This means that the ownership of that .d is yet to be determined. The question is if the ownership of that d has not yet been determined how can it be said that the )ellant has trespassed the land by illegally selling it to someone btain money by false pretense from the that is the defence or the it yet been determined by the Land? In lecision of the court (which remature to institute a criminal case Hussein

Idd and Another matter related to the land before the re the Court of Appeal of rribunal (Mbeya) has determined the ily be charged with criminal offence of the trial Judge to deal ad, if the District Land and Housing own and arrive at the ainst him. This means that if the land 'ithout considering the else and the appellant has committed :icular land, then the appellant can be judgment must show how )sons. The record such as )f evaluating evidence and h the submission by the learned State r from the records that the the Resident Magistrate Court rightly dence to any evaluation to appellant. I entirely agree with the iat it was premature for the appellant ence while there was still pending land determining whether the -lousing Tribunal in Mbeya. was clearly discussed by emweta versus Republic determined is the question of defence ace of both parties. It is a well settled ?vidence adduced without makes its decision and judgment the eptable as true or correct, )e considered, evaluated and reasoned with the requirements of emphasized in various authorities by ode Section 312 (1) of the dgment it is clear that the Magistrate ires a trial court to single rmination, evaluate the vidence apart from just basing on the ,, :cording to the law is fatal as it can to determine the ownership pf the land which has relation on the criminal case against the appellant. In the event as I reasoned above, this appeal is meritorious hence allowed. The decision of the Mbeya Resident Magistrate Court is set aside and the appellant should be immediately released from the prison unless held for other legal purposes. Order accordingly. Right of appeal explained. \1i 4 ,) Ii JUDGE 05.09.2016 Judgment delivered in Chambers this 5th day of September 2016 in presence of both parties. DR. A. J. MAMBI

JUDGE 05.09.2016