JOSEPH MZIBAZI V DAHIR ISSA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC CRIMINAL APPEAL NO. 39075 OF 2023 JOSEPH MZIBAZI............................................................................ APPELLANT VERSUS DAHIR OMAR ISSA.................................................................... RESPONDENT JUDGMENT 16/7/2024 & 9/8/2024 ROBERT, J:- The appellant, Joseph Mzibazi, being dissatisfied with the decision of the District Court of Sengerema in Criminal Appeal No. 12 of 2023, has lodged an appeal before this Court challenging the said decision. The appellant was initially charged with two counts at the Urban Primary Court of Sengerema: (1) Criminal trespass contrary to section 299(a) of the Penal Code, Cap. 16 R.E. 2022, and (2) Malicious damage to property contrary to section 326(1) of the Penal Code. After a full trial, the appellant was found guilty of the first count, sentenced to twelve months of conditional discharge, and ordered to vacate the land within 30 days and to restore the boundary markers. Dissatisfied, the appellant appealed to the District Court, which i upheld the Primary Court's decision. Still aggrieved, the appellant has now brought this appeal before this Court. The facts, as gathered from the trial and appeal records, reveal that the appellant and the respondent own adjacent plots of land. The dispute arose when the respondent accused the appellant of encroaching on his land, removing boundary markers, and cultivating the disputed area. The appellant, however, contended that he was the lawful owner of the disputed plot and denied any alleged encroachment based on a bona fide belief that he was within his own boundaries. The trial court found the appellant guilty of criminal trespass but dismissed the second count of malicious damage to property. The appellant's appeal is predicated on three grounds of appeal as follows: 1. The first appellate Court erred in law and fact by failing to find that the charge of criminal trespass was not adequately proved. The appellant contends that the dispute over land ownership should have been resolved in a civil court before criminal charges could be sustained, especially given the conflicting survey maps presented. 2. The first appellate Court erred in law and fact by upholding the Primary Court's orders, which effectively determined land rights. The appellant 2 argues that the Primary Court lacked jurisdiction to adjudicate land matters and issue orders affecting land ownership. 3. The first appellate Court erred in law and fact by accepting evidence that was allegedly fabricated and unreliable. The appellant asserts that the evidence presented by the prosecution did not meet the standard ofproof required in criminal cases. In support of the first ground of appeal, the appellant's counsel, Mr. Yonna G. Shekifu, argued that the charge of criminal trespass cannot succeed where the ownership of the land is in dispute. He submitted that the appellant had a bona fide claim to the land, supported by a sale agreement, a letter of transfer of the right of occupancy, and a survey map, all of which were admitted as exhibits in the trial court. The appellant's position was that the conflicting survey maps created uncertainty regarding the true boundaries, and therefore, the criminal charge was premature. Mr. Shekifu further cited the case of Kibwana Mohamed v. Republic (1980) TLR 321, which established the principle that criminal charges related to trespass should not be entertained until the ownership of the disputed land is conclusively determined by a civil court. He also referenced Sylvery Nkangaa v. Raphael Albertho (1992), which reinforced the necessity of resolving land disputes in civil forums before pursuing criminal charges. 3 On the second ground of appeal, Mr. Shekifu argued that the trial court overstepped its jurisdiction by issuing orders that effectively determined the ownership of the land and directed the appellant to vacate the premises and rectify the boundaries. He submitted that such orders are within the exclusive jurisdiction of land tribunals as per section 4 of the Land Dispute Courts (Settlement) Act, Cap. 216 R.E. 2019. He also noted that the trial court compounded its error by entertaining a case initiated by a party (Dahir Omar Issa) who was not the rightful complainant, as the name of the donor of the power of attorney (Adam Hussein Hersi) should have been used instead of the appellant's name. On the third ground, Mr. Shekifu contended that the evidence presented by the prosecution was not credible. He argued that the testimony of the prosecution witnesses, particularly the land officer (SM3), was inconsistent and uncorroborated. He maintained that the appellant's documentary evidence, which included official land documents, was more reliable and should have been given greater weight by the court. In response to the first ground of appeal, the respondent's submissions as drawn and filed by Janeth Hubert Kishamba, advocate argued that the charge of criminal trespass was properly sustained. He submitted that the 4 mediation process at the Nyampulukano Ward Tribunal effectively resolved the land dispute and that the appellant's subsequent actions of entering the respondent's land constituted criminal trespass. He emphasized that the certificate of mediation (Exhibit SM3) indicated a settlement, and the appellant's actions were a clear violation of this settlement. Regarding the second ground, the respondent argued that the trial court acted within its powers under section 25(h) of the Penal Code, which allows the court to impose orders necessary to prevent further offences. He maintained that the order to vacate the land and rectify the boundaries was appropriate and proportionate to the offence of criminal trespass. On the third ground, the Respondent defended the credibility of the prosecution's evidence, arguing that the testimony of the respondent and the land officer (SM3) was consistent and corroborated by the certificate of mediation. He submitted that the appellant's evidence did not raise any reasonable doubt about the prosecution's case and that the conviction was therefore sound. Starting with the first ground of appeal, the crux of the matter is whether the prosecution proved the charge of criminal trespass beyond a 5 reasonable doubt, considering the unresolved dispute over land ownership. It is a well-established principle that where land ownership is in dispute, a criminal charge of trespass should not be entertained until the ownership issue is resolved by a civil court. The Court of Appeal in Kibwana Mohamed v. Republic (supra) and the High Court in Sylvery Nkangaa v. Raphael Albertho (supra) have both affirmed this principle. In the present case, the evidence presented by the appellant, including a sale agreement, a letter of transfer, and a survey map, indicates a legitimate and bona fide claim to the disputed land. The conflicting survey maps presented by both parties further complicate the matter. The certificate of mediation from the Nyampulukano Ward Tribunal, which purported to settle the dispute, does not conclusively resolve the issue of ownership, as it merely reflects a mediated agreement without the force of a final judicial determination. Given these circumstances, this Court finds that the charge of criminal trespass was premature. The unresolved land ownership dispute should have been addressed in a civil suit before any criminal liability could be established. The respondent's failure to establish the appellant's lack of a 6 bona fide claim to the land introduces a reasonable doubt that should have been resolved in the appellant's favor. The second ground raises the issue of jurisdiction. The appellant contends that the Primary Court exceeded its jurisdiction by issuing orders that affected land rights. Section 4 of the Courts (Land Dispute Settlement) Act, explicitly removes civil jurisdiction of magistrate courts in land matters. The orders issued by the trial court, which directed the appellant to vacate the land and rectify the boundaries, clearly pertain to land rights and are outside the scope of a criminal court's jurisdiction. The respondent's reliance on section 25(h) of the Penal Code to justify these orders is misplaced. While section 25(h) does provide for additional orders to prevent further offences, such orders must be within the court's jurisdiction. In this case, the orders issued by the trial court effectively determined the ownership of the land, a matter reserved for land tribunals. This Court therefore finds that the Primary Court acted ultra vires in issuing such orders, and the District Court erred in upholding them. The third ground of appeal challenges the credibility of the prosecution's evidence. In criminal cases, the burden of proof lies with the prosecution to 7 establish the guilt of the accused beyond a reasonable doubt. The appellant has raised serious concerns about the reliability of the evidence presented by the prosecution, particularly the testimony of the land officer (SM3). This Court notes that the appellant's evidence, including the sale agreement, the letter of transfer, and the survey map, was documentary in nature and directly supported his claim of ownership. In contrast, the prosecution's case relied heavily on oral testimony and a certificate of mediation that did not resolve the underlying land dispute. The conflicting evidence and unresolved land ownership issue create a reasonable doubt that the appellant had the requisite criminal intent to commit trespass. The lower courts failed to adequately address this doubt, leading to an erroneous conviction. In light of the foregoing analysis, this Court finds that the appellant's appeal is meritorious. The conviction and sentence imposed by the Urban Primary Court of Sengerema and upheld by the District Court of Sengerema are hereby quashed and set aside. The appellant is acquitted of the charge of criminal trespass. 8 Before reaching a conclusion on this judgment, I find it necessary to address the issue of locus standi raised by the appellant during the course of arguments. The appellant contended that the trial court erred in entertaining a case filed by the respondent in his own name, rather than in the name of the donor of the power of attorney, Mr. Adam Hussein Hersi. The appellant argued that the respondent, as the donee of the power of attorney, lacked the legal standing to initiate proceedings in his own name. However, the respondent chose not to submit arguments on this issue, as it was not explicitly included among the grounds of appeal. This Court finds that it was not entirely proper for the respondent to decline from submitting on the issue of locus standi solely because it was not explicitly covered in the grounds of appeal. In legal practice, when a significant issue of law, such as locus standi, arises during arguments, the respondent should have addressed it on its merits. Even if the issue was not initially raised by the appellant, the respondent had the opportunity to present the legal position and allow the Court to determine whether the issue was properly raised and how it should impact the case. The Court possesses the discretion to entertain matters of law, even if they are raised late. Generally, courts prioritize the determination of 9 substantive issues of law over procedural technicalities, particularly when such issues pertain to jurisdiction or the legal standing of parties. The principle is that justice should not be sacrificed for procedural rigidity, especially where a significant legal question is at stake. Locus standi is a fundamental question of law that concerns the legal capacity of a party to bring a suit. Since this issue relates to the legal propriety of the proceedings and the jurisdiction of the court, it is a matter that can and should be addressed whenever it arises, regardless of whether it was raised in the grounds of appeal. It is a well-established principle that when a person is acting on behalf of another under the authority of a power of attorney, the legal proceedings must be instituted in the name of the donor of the power, not in the name of the donee. This principle is rooted in the doctrine of representation, where the donee acts as an agent of the donor and therefore must bring the action in the donor's name. The position was clearly articulated in the case of Rashid Salum Kisaluni v. Onary Salum & 3 Others, PC Criminal Appeal No. 4 of 2021 (unreported), where the High Court held that a donee of a power of attorney must file a case in the name of the donor and not in his own name. io In the present case, the power of attorney was granted to the respondent, Dahir Omar Issa, by the donor, Adam Hussein Hersi. The respondent, however, initiated the proceedings in his own name. This was an error, as the proper legal procedure requires that the action be brought in the name of the donor of the power of attorney. The failure to follow this procedure raises a significant question about the respondent's legal standing (locus standi) to bring the case. As the donee of the power of attorney, the respondent was merely an agent acting on behalf of the donor. Therefore, any legal proceedings should have been filed in the name of the donor, not in the respondent's name. Given the established legal principles and the facts of the case, this Court finds that the respondent lacked the requisite locus standi to institute the proceedings in his own name. The trial court erred in proceeding with the case under these circumstances. While the issue of locus standi could have been sufficient to dispose of the case, the Court has also considered the merits of the appeal as argued on the substantive grounds. As noted in the previous sections of this 11 judgment, the appeal is allowed on the grounds of improper conviction and lack of jurisdiction. In light of the foregoing analysis, this Court finds that the appellant's appeal is meritorious. The conviction and sentence imposed by the Urban Primary Court of Sengerema and upheld by the District Court of Sengerema are hereby quashed and set aside. The appellant is acquitted of the charge of criminal trespass. Furthermore, the orders issued by the Primary Court affecting the land rights of the parties are quashed and set aside. 12