John Anne

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI PC CRIMINAL APPEAL NO. 22 OF 2023 (Arising from Criminal Appeal No. 1 1 /2023 o f the Hanang' District Court a t Katesh, Originating from Criminal Case No. 13 4/2 0 2 3 o f the Primary Court o f H anang' District a t Katesh) JOHN ANNE....................................................... APPELLANT

VERSUS PAULO ANNE...................................................... 1st RESPONDENT UMALI BOI........................................................ 2nd RESPONDENT

JUDGMENT 6th February & May, 2024 Kahyoza, .J.: John Anne instituted criminal proceedings against Paulo Anne and Umali Boi before the primarycourt of Hanang' District at Katesh for the offence of stealing, contrary to section(s) 258 (1) and 265 of the Penal Code, Cap 16 R.E 2022. They pleaded not guilty to the charge against them. Indisputably, Paulo Anne and Umali Boi are John Anne's son and wife, respectively. The primary court acquitted Paulo Anne and Umali Boi because John Anne did not prove malice on the part of the respondents as there was unsolved land dispute. l Aggrieved, John Anne, appealed to Hanang' District Court where he lost the appeal. Again, he appealed to this Court, raising three grounds of complaint, namely- 1. That, the 1st appellate court erred in law and fact for failure to properly analyse the evidence adduced and produced by the appellant, thereby arrived at an erroneous judgment.

2. That, the 1st appellate court erred in law and fact for failure to convict and sentence the accused persons while the case was proved beyond reasonable doubt.

3. That, the 1st appellate court erred in law and fact for holding that criminal case no. 134 of 2023 emanated from land matter. The appellant submitted generally that he proved the offence of theft against the respondents as there were witnesses who testified to have seen them harvesting, thus, it was wrong for them to steal his beans. Also, the trial court was wrong, in holding that there was a land dispute. The first respondent submitted briefly, that he supports the two decisions of the lower courts and prayed for this appeal be dismissed. The second respondent submitted that she was the one who cultivated and planted maize. The back ground of this matter is that, allegedly that on the 11th day of March, 2023 at 13:00 hrs at Hargushay Gendabi within Hanang' District 2 in Manyara Region, Paulo Anne and Umali Boi, jointly did steal 10 bags of beans (2 bags of Bambara Groundnuts, 7 bags of Rozi koko and 2 bags of mixed beans) by harvesting the farm, valued at 2,400,000/= (two million and four hundred thousand) the property of John Anne. As the record bears testimony, the following facts were not disputed; one, that John Anne and Umali Boi are married couple; two, Paulo Anne is an offspring of the duo; three, John Anne and Umali Boi had marital disagreements, particularly on the Gendabi farm, that rendered them to appear before the district commissioner for administrative

attention; four, Umali Boi does not dispute to harvest beans she was charged of stealing; and lastly, Umali Boi does not dispute John's contention that the district commissioner issued a letter to prohibit her from cultivating the farm. It is beyond dispute and as found by the two courts below that the appellant and Umali Boi are married although there is no little lave lost between them. There is no evidence that the two had ever referred the marriage dispute to any legal authority. The evidence shows that, they referred their squabbles regarding land, to the District Commissioner who issued exhibit P.l barring Umali Boi from using the land. As Yona Musa, Dw5, a Hamlet chairman, testified Umali Boi disobeyed the District Commissioner's order, directive or advice. This is a second appeal. It is settled as, the Court of Appeal decided in Nurdin Iddi Ndemule vrs. Republic (Criminal Appeal 410 of 2018) [2021] TZCA 99 (6 April 2021) that the [second appellate] Court will not readily disturb concurrent findings of facts by the trial Court and first appellate Court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable. It held that- "... The law is well-settled that on second appealthe Court will not readily disturb concurrent findings o f facts by the trial Court and first appellate Court unless it can be shown that they are perverse, demonstrably

wrong or clearly unreasonable or are a result o f a complete misapprehension of the substance; nature and quality o f the evidence; misdirection or non-direction on the evidence; a violation o f some principle o f law or procedure or have occasioned a miscarriage o f justice." The both, the first appellate and trial court found that there as unresolved land dispute between the appellant and Umali Boi, that for reason, the offence of stealing could not be proved. There is no disputed that the appellant and Umali Boi are married couples facing difficulties in their marriage relationship. Umali Boi claims that she had right to cultivate the farm which she referred as her farm and harvest on the other hand, the appellant claims that he is a sole owner of the farm in exclusion of the Umali Boi. I have no reason to interfere with the concurrent findings of 4 facts of two courts below. I uphold the position that there is a dispute as to whether Umali Boi has any right to the land. It is open to naked eyes that there is a matrimonial dispute and it is not resolved whether the farm under consideration is a matrimonial property or the appellant's sole owned property. I am aware of exhibit P. 1, the District Commissioner's order or direction barring Umali Boi from using the land. That direction or order did not by any means take away Umali Boi's right to the land or determine the dispute

between the married couples over the land in question. The District Commissioner's order or direction is a prove that the appellant and Umali Boi, his wife, had matrimonial difficulties which had to be resolved. It was a relief and not a cure to the couples' matrimonial squabbles. I wish to state and do so firmly that the offence of theft cannot be established when the accused person claims right to the stolen property. Section 258 of the Penal Code defines theft as follows- "A person who fraudulently and without claim of right takes anything capable o f being stolen, or fraudulently converts to the use o f any person other than the general or special owner thereof anything capable o f being stolen, steals that thing/' (Emphasis added) It is clear from the above definition that to amount to theft, the accused person should have taken anything capable of being stolen 5 fraudulently and without a claim of right. In the present case, Umali Boi claimed that to have right to the crops she is accused of stealing. She claimed that she cultivated the farm and plated the crops she harvested. Not only that but also, Umali Boi claims that she owned the farm as she is the appellant's wife. As shown above, it settled that the appellant is Umali Boi's husband and the two have unsolved matrimonial dispute. I find it not unreasonable that Umali Boi's right to the land in question has not

been resolved by the mandated authority. It is not cleared whether the property in question is not a matrimonial property. If the property is matrimonial property, Umali Boi has a bona fide claim of right to the land. I wish to add that looking at the evidence on record, the appellant did not prove beyond reasonable doubt that he planted the crops. He proved that Umali Boi and Paulo Anne, her son harvested the crops. They stole the crops. There exist doubts as to whether the appellant was the owner of the stolen crops or the crops belonged to Umali Boi, his wife, who was the second accused person. Before I conclude, I wish to sound the word of advice to the appellant and Umali Boi, his wife should not hide behind the criminal court but should have their matter resolved by the matrimonial court. It is the matrimonial court, which can determine if their marriage has broken 6 beyond repair and order distribution of their property. It is the distribution of the matrimonial property which will stop the dispute. I in the end, I find that the appellant failed to establish that Umali Boi, the appellant's wife and Paulo Anne, the appellant's son are guilty of the offence of theft contrary to section 258(1) and 265 of the Penal Code, [Cap. 16 R.E. 2022]. I uphold the findings of the two courts below and dismiss the appeal in its entirety. It is ordered accordingly. Dated at Babati, " ' 1 "“ J.R. Kahyoza

JUDGE Court: Judgment delivered in the presence of the appellant, the second respondent and in the absence of the first respondent. Right to further appeal explained. B/C Ms Fatina Haymale (RMA) present. J.R. Kahyoza

JUDGE 08/ 05/2024 7