john jeremia ndaru vs biliuda said another 2016 tzhc 2099 31 august 2016

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLANT JURISDICTION) (PC) CRIMINAL APPEAL NO. 10 OF 2016 (From Criminal Appeal No. 28 o f 2015 o f the District Court o f Singida District at Singida Original Criminal Case No. 173 o f 2015 Singida Urban Primary Court) JOHN JEREMIA NDARU....................... APPELLANT VERSUS 1. BILIUDA SAID................................ 2. HUMBE ANDREW............................ RESPONDENTS JUDGMENT 21/7/ & 31/8/2016 KWARIKO, J. Appellant herein filed criminal charge against the respondents herein before the Primary Court of Singida Urban of the offence of Malicious damage to property contrary to section 326 (1) of the Penal Code [Cap. 16 R.E. 2002] where it was alleged that on the 19th day of February, 2015 at about 2.30 pm at Mkhola village, Mgori Ward within Singida District the two respondents destroyed maize plants at appellant's farm property of the appellant and planted their own seeds thereat. Respondents denied the charge and evidence was led that on the material day appellant was i informed that respondents were cutting down maize plants in his farm and when he went to inquire they insulted him. He thus reported to sub­ village Chairman and to Agricultural officer who valuated the destruction as per his report exhibit PI. On their part the respondents evidenced that on the material date appellant's son, their neighbour, found them planting seedlings in their farm and assaulted them. People came to their rescue where the matter was referred to Ward Tribunal for reconciliation. It was found thereat that the source of quarrel was farm boundary hence it was decided that the same would be rectified after harvest of their crops but appellant preferred criminal charge against them. The trial court found that the quarrel was only farm boundary and appellant did not prove that there were any destroyed maize as stalks were very old. The respondents were acquitted. While the first appellate court where appellant preferred appeal against the decision of trial court upheld that decision it went further to hold that the destruction ought to have been proved by the Agricultural officer who prepared exhibit PI. Having been further aggrieved by the decision of the first appellate court the appellant filed this second appeal. This appeal was heard where appellant insisted that his evidence proved that maize had been destroyed and it was the trial court that delayed to visit the locus in quo that is why it found only dry maize stalks. And that land dispute is pending in land court between him and first respondent's mother. That, the land in dispute is the same where the destroyed crops were grown. That, he filed charge of malicious damage to property and not dispute over boundaries. The respondents were of the view that the two courts finding was proper that there was boundary dispute between them. Following parties submissions the issue to decide is whether this appeal has merit. It is evident that there is land dispute between the parties. The appellant said in evidence that respondents destroyed maize plants in his farm and planted their seedlings. Whereas, respondents said the appellant's son found them in their farm planting seedlings and dispute arose. Clearly, the two sides are confronting over the farm where each said they were planting or planted seedlings/plants. DW3 JUMA RAMADHAN village mate to both parties said upon reconciliation of the parties it was found that there was farm boundary dispute and was decided that they would verify it after plants were harvested. Also, the trial court which visited locus in quo said there was farm boundary dispute between the parties. Now, if the evidence on record says that there is land dispute between the parties the same ought to be resolved before any criminal 3 charge is preferred against any party; (see also SYLIVERY NKANGAA V R RAPHAEL ALBERTHO [1992] T.L.R 110). The appellant said that he preferred criminal charge in relation to malicious damages to property since land case in relation to land where the said crops were grown against the first respondent's mother is pending in land court. Be it known to the appellant that, naturally, the crops cannot be separated from the land upon which they are grown. Hence, until the land dispute is resolved no criminal charge in respect of that land or property thereto can be entertained. Therefore, the charge of malicious damage to property was unfounded and the proceedings thereto were incompetent and through this court's revision powers under section 31 (1) of the Magistrates Courts Act [Cap 11 R.E. 2002] the same are hereby quashed and all orders thereto set aside. Consequently, the parties are advised to resolve land dispute before anyone prefers criminal charge against another. This appeal lacks base upon which to stand and it is hereby dismissed. Order accordingly. M.A.KWARIKO JUDGE 31/08/2016 Judgment delivered in court today in the presence of both Parties and Mr. Nyembe Court Clerk. d I JUDGE 31/08/2016 Court: Right of Appeal Explained. 31/08/2016 5