JACOB QAMBALALI VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA PC. CRIMINAL APPEAL NO. 10791 OF 2024 (C/F Criminal Appeal No. 29 of 2023, originating from the Proceedings and decision in Criminal Case No. 272 of 2023 before Primary Court of Karatu at Karatu) JACOB QAMBALALI.................. ..................................1st APPELLANT MARY MOSHI............. ................................................2nd APPELLANT VERSUS KWASLEMA BAHA.......................................................... RESPONDENT JUDGMENT 19th August & 2nd September,2024 KAINDA, J.: The appellants, Jacob Qambalali and Mary Moshi, were jointly and together charged before the Primary Court of Karatu at Karatu in Criminal Case No. 272 of 2023. They were arraigned on two counts of criminal trespass and malicious damage to property. According to the charge presented at the trial court, by i committing the offences, the appellants contravened the provisions of Section 299 (a) and 326 (1) both of the Penal Code, (Cap 16 R. E 2022). Naturally, the appellants denied the charges, so the complainant had to call witnesses to prove it. At the end, the trial Primary Court found the duo guilty on both counts and convicted them as charged. They were accordingly sentenced to conditional discharge for first count and a fine of Tanzanian Shillings One hundred thousand (TZS. 100,000/=) or an imprisonment to a term of six months on default of paying fine in the second count. The appellants paid the fine. However, it appears that decision aggrieved them so they filed an appeal to the District Court of Karatu, Criminal Appeal No. 29 of 2023. Their effort did not succeed as their appeal was dismissed on 20th December, 2023. Before I proceed any further, I find it deserving to revisit material facts of the case which led to the appellant's conviction and ultimately this appeal. At the trial, the complainant's case comprised of four witnesses and some documentary exhibits while five witnesses testified on defense case. It was alleged by the respondent that on 16th day of April, 2023 at about 09:00am at Naray hamlet, within Karatu District in the Region of Arusha, willfully and unlawfully, the appellants entered into the farm of the respondent without his permit. It was further alleged that on the same date, time and place and having 2 entered into the farm of the respondent, willfully and unlawfully, the appellants did spray a poison into the respondents7 farm and the entire crops such as Maize, beans went dry causing a loss of at TZS. 1,291,000/=. This appeal is challenging the decision of the first appellate court based on the petition of appeal containing two grounds; One that, the first appellate District Court erred in law in misapprehending the facts on record in holding that dispute of ownership was properly settled with competent court; two that, the first appellate District Court erred in law in escaping to adequately discuss and deliberate on ground two and three of appeal. When this appeal was called on for hearing the appellants appeared in person unrepresented whereas, the respondent had the services of Mr. Patrick Maligana, learned counsel. The first appellant had nothing to submit, he merely left it to the court to consider the grounds of appeal. On her party, the second appellant submitted that the matter in the lower courts related to ownership of land. So, the two courts below erred to find that the dispute over land ownership was already determined and prayed for this court to decide on the land dispute between the parties. In reply, Mr. Maligana submitted that the matter before this court as it was in the lower courts below, is not about land dispute. He argued that, the dispute over ownership of land were decided way back before the present 3 criminal charges. He referred this Court to the testimony of the respondent in the trial court and the decision in Land Case No. 39 of 2021 which were tendered, admitted and marked exhibit. He further submitted that even execution of the said decision was complete on which the respondent was handled the suit land by Court Broker. As to second ground, he submitted that the offences charged was proved to the tilt. He prayed the appeal to be found without merit. In establishing the charges, the complainant's case consisted of four witnesses, the respondent, Kwaslema Baha Tarimo, Faustine Masha, Herman Paul Akonaay and Any Tlatla. The defense case consisted of the appellants, Kassian Emmanuel, Joseph Amenay, and Enock Paulo. The trial Primary Court evaluated the evidence from both sides and decided that the case against the appellants was established to the hilt. In the light of the grounds of appeal and all what has been highlighted above. The issue that stands for my determination is whether the two courts below failed to observe that, there was a land dispute between the parties. It is trite law that neither the Criminal charges of trespass nor of malicious damage to property can stand before the issue of ownership over the disputed plot of land is resolved. See Kusekwa Nyanza Vs. Christopher Mkangala, Criminal Appeal No. 233 of 2016. In this case, the evidence on record clearly shows that there was no dispute over any land between the parties, in fact, even the appellants did not 4 allege and prove if there was any dispute over any land. First appellant in his defense denied to have committed the charged offences. He distanced himself from all what happened claiming that he only escorted the second appellant by a motorcycle to the alleged farm. He stated at page 16 of the typed proceedings, I quote; "Jina Yakob Qambalali, miaka 32, mwiraq, mkristo, nmc, mfanya biashara mdogomdogo, anaapa na kue/eza kwamba; mimi sina maneno yoyote na sehemu anayosema sina dawa niliyopiga". On cross examination by the respondent the first appellant stated; "Mimi niiikuwa dereva wa pikipiki nilimpeleka mteja mshtakiwa namba mbiH na niiimuacha maeneo ya barabara nikarudi". On her part, the second appellant alleged that there was a land dispute pending in the Karatu Ward Tribunal. However, she did not led any evidence to that effect. To this end, I subscribe with the finding of the first appellate court at page 8 of the typed judgment that; "It is on record that ownership ofdisputedpaddy field (land) was already determined by the Karatu District Land and Housing Tribunal in Land Cause No. 39 of2021 which declared the respondent as lawful owner and he was handed through Execution Cause No. 18 of 2022. The said document was tendered in the trial court and admitted as exhibit K4M and K5M. The trial court was satisfied that there was no land dispute at 5 alias per testimonies and upon visiting the locus in quo, and bad enough, the part of farm which was destroyed has never been in disputed". The court went on; "These are trial court findings, and I subscribe that the destroyed farm is not in dispute, therefore the court was right and justifiable to find the accused persons guilty of the offences charged. Even if the farm would have been in dispute, the dispute cannot be used as a sword to destroy someone's property, such unlawful act cannot justify or legalize or legitimize the illegal destruction ofsomeone property and in fact it cannot be entertained in any way. Such evil act jeopardizes a country and individual efforts in cause ofalleviating and fight against poverty. To destroy crops cannot decide ultimatum of land ownership the better way is to follow proper procedure of fighting for one's right not to cause a disaster which may necessitate breach of piece and violence among the community". I find the two complaints in this appeal, one that, the first appellate court erred not to find that there was a pending land dispute between the parties; two that, ground two and three were not adequately decided, baseless and vexatious. Accordingly, I find the two grounds of appeal without merit and proceed to dismiss it. It is so ordered. S. J. KAINDA JUDGE 02/09/2024 Judgment is Delivered in Chambers under my hand and seal of this court this 2nd day of September, 2024 in the presence of the appellants in person unpresented and Mr. Patrick Maligana, learned counsel for the respondent. Right of appeal to the court of appeal fully explained. S. J. KAINDA JUDGE 02/09/2024 7