JOSHUA JAMES KASIGARA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA PC. CRIMINAL APPEAL NO. 15552 OF 2024 (Arising from Criminal Appeal No. 68 of2023 in the District Court of Dodoma; Originating from Criminal Case No. 348 of2023 in the Primary Court of Dodoma Urban) JOSHUA JAMES KASIGARA........................... ............... APPELLANT VERSUS FELIX LEON.................................................................. RESPONDENT JUDGMENT 3&h September & 13h December, 2024 MUSOKWA, J, The appellant herein was charged with the offence of malicious damage to property contrary to section 326 of the Penal Code, Cap.16 R.E 2022 (Penal Code). Upon hearing of both parties, the Primary Court of Dodoma Urban, being the trial court, was satisfied that the offence was proven beyond reasonable doubt. As a result, the trial court convicted and sentenced the appellant to serve six months imprisonment or pay a fine to the tune of TZS 400,000/-. In addition, the appellant was also ordered to pay compensation of TZS 5,700,000/- to the respondent, allegedly being the value of the damaged properties. i Aggrieved by the conviction, sentence and the order of compensation, the appellant lodged an appeal to the District Court of Dodoma (District Court) vide Criminal Appeal No. 68 of 2023, Upon consideration of the matter, the District Court upheld the decision of the trial court. Still aggrieved, the appellant preferred the second appeal to this court having the below grounds of appeal: - 7. That, the trial and appellate court erred In law to convict and sentence the appellant and order to pay 5,700,000/- as compensation while knowing that the respondent failed to prove his case beyond reasonable doubt 2. That, the trial and appellate court erred in iaw and fact by failure to consider the strong evidence adduced by appellant and his witnesses. 3. That, the whole proceedings was marred by procedural irregularities which led to un-wanted judgement and order of the court. By the order of this court, this appeal was disposed by way of written submissions. Both the appellant and respondent enjoyed the legal services of learned advocates. To be precise, Mr. Majaliwa Wiga learned advocate represented the appellant while Mr. Mohamed Chondo, learned advocate represented the respondent. 2 Notably, Mr. Majaliwa prayed to abandon the 3rd ground of appeal and the same was not resisted by the respondent. Thus, the appellant's prayer in that respect was granted. Arguing in support of the appeal, Mr. Majaliwa submitted on the 1st ground of appeal. The appellant's counsel asserted that; the law is clear under the 3rd Schedule of the Magistrates Courts Act, Cap.ll R.E. 2019 (MCA) on the powers of primary courts in sentencing. According to the appellant, the imposed fine of TZS 400,000/- or six months imprisonment violated paragraph 2(4) of the Primary Courts Criminal Procedure Code (PC-CPC). The said PC-CPC has set a scale of fine and imprisonment of four months and not six months. Also, it was submitted that the compensation order of TZS 5,700,00/- was contrary to paragraph 5(1) (b) of the PC-CPC. The trial court has power to order payments of compensation not exceeding TZS 100,000/- for offences not provided under the Minimum Sentences Act, Cap. 90 R.E. 2002 (Minimum Sentences Act). The learned counsel stated further that, since the offence of malicious damage to property is not among the offences under the Minimum Sentences Act, the trial court had jurisdiction to order compensation of TZS 100,000/- only. The case of Patrick Madeje vs Christopher Malamala & 3 Others, 3 PC. Criminal Appeal No. 10 of 2021, (unreported) deliberated by this court, was cited in support this position. Regarding the issue that the respondent failed to prove the case beyond reasonable doubt, it was submitted that in order to prove the offence of malicious damage to property, the respondent ought to have established that the appellant acted willfully and with malice. It was the submission of the appellant that in the case at hand, the appellant denied the offence and no evidence was adduced by the respondent to prove that the appellant acted willfully, and unlawfully did damage the door and the television. Similarly, the appellant submitted that no valuation report whether from the police or ward executive officer was tendered to prove the alleged damage of the properties. Further, it was added that, SM3 was a key witness and alleged to have witnessed the commission of the said offence by the appellant on 18/09/2023. This witness testified that the appellant damaged the door only and not the television. However, the respondent at page 8 of the trial court proceedings stated that the appellant damaged both the door and the television. According to the appellant, this amounts to contradictory evidence and creates doubts. The learned counsel stated that, failure to 4 tender a damaged door or television as exhibits before the trial court, further created serious doubts. On the question of proof of ownership of the damaged property, it was the submission of the learned counsel that before the person is convicted, it is important to establish that the property alleged to have been damaged belongs to the complainant. In this case, the respondent did not prove that the said door and television belong to him. Further that section 326(1) of the Penal Code provides for several conditions which must be fulfilled, for the said offence to be established; as expounded in the case of Dodo Tekway vs Republic, Criminal Appeal No. 20 of 2021 (unreported). The appellant added that, while SM2 stated that she witnessed the damaged door and television, she did not name the appellant as the offender thereto. The appellant averred further that the evidence relating to the injury of SM3 is irrelevant to the offence of malicious damage to properties. On this point, the learned counsel for the appellant cited the case of Ali Ahmed Salehe Amgara vs Republic, (1959) E.A 654. By way of conclusion, the appellant submitted that the respondent failed to prove the case beyond reasonable doubt. In this regard, the conviction, fine and compensation order that was issued against the appellant was against the law. Therefore, the appellant 5 prayed that the proceedings of the trial court, and the District Court, be quashed, set aside and this appeal be allowed. In reply, the respondent submitted that, the trial court was right to convict the appellant due to the fact that the evidence adduced by the respondent and his witnesses was credible and to the required legal standard. Submitting further, the respondent stated that section 326(1) of the Penal Code, provides for the definition of intent and willful acts which means conscious, intentional, and malicious acts. According to the respondent, the evidence established that the appellant had the intent; and was prepared for any outcome of his acts. On the issue of damage to property, the respondent submitted that the appellant damaged the property, specifically the door, to gain entry into the premises and a 65-inch flat screen television. As to the issue of compensation and damages, the learned counsel for the respondent submitted that the decision of the trial court to order compensation of TZS 5,700,00/- was justified based on the extent of damage caused by the appellant to the said properties. 6 The respondent further submitted that it was successfully proven at the trial, that the appellant committed the offence. This was in accordance with the provision of section 114 (1) of the Evidence Act, Cap. 6 R.E. 2019 (Evidence Act), on burden of proof. Thus, the trial court reached its decision after careful scrutiny of the evidence that was presented. Likewise, sufficient reasons for the decision were provided by the trial court as required under paragraph 37(1) and (2) of the PC-CPC. Responding further on the grounds of appeal, it was the argument of the learned counsel for the respondent that the sentence was passed according to paragraph 28 of the PC-CPC. The trial court also considered the evidence of both sides as well as Article 13(6) (a) of the Constitution of the United Republic of Tanzania. Similarly, section 3(2)(a) of the Evidence Act was considered and it was found that the offence was proved beyond reasonable doubt. Finally, the respondent prayed for dismissal of the appeal. Equally important, the appellant had no rejoinder thereof. Having gone through the records of both the trial court and the District Court, the grounds of appeal as well as the submissions of the parties; the issue to be determined by this court is whether or not the offence was proved beyond reasonable doubt. 7 Notably, in a second appeal such as the present one, it is settled law that the appellate court is discouraged to interfere with the concurrent findings of facts by the two courts below. However, in rare occasions where it is shown that there has been a misapprehension of the evidence or misdirection causing a miscarriage of justice, such interference is deemed justifiable. This position was deliberated in the cases of Nchangwa Marwa Warn bura vs Republic, Criminal Appeal No. 44 of 2017 (unreported); Musa Hassan vs Barnabas Yohanna Shedafa (Legal Representative of the late Yohana Shedafa), Civil Appeal No. 101 of 2018 (unreported); and Amratlal Damodar and Another vs H. Lariwalla [1980] TLR. 31. For instance, in the case Amratlal Damodar (supra), it was held as follows: "Where there are concurrent findings of fact by two courts, the court of appeal, as a wise rule of practice, should not disturb them unless it is clearly shown that there has been misapprehension of evidence, a miscarriage of justice or violation of some principle of law or procedure. "[Emphasis added] As indicated earlier, the appellant was charged with the offence of malicious damage to property. Section 326 (1) of the Penal Code relates to the said offence and provides as follows: - 8 "Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, and except as otherwise provided in this section, is liable to imprisonment for seven years. "[Emphasis added] The section quoted above stipulates the elements of the offence of malicious damage to the property. Fortunately, this court (Robert J.) in the case of Gidbanghe Layda vs Emanuel Barie and Two Others, PC. Criminal Appeal No. 21 of 2020 (unreported) deliberated several cumulative elements of the offence in question and held that: - "In order to prove the offence of malicious damage to property under the cited provision, the appellant was required to prove that: - (i)He is the owner of the property/properties alleged to be destroyed; (ii)The said property(ies) has/have been destroyed or damaged; (iii)The alleged damage or destruction was caused by the accused persons/respondents herein; (iv)The alleged damage must have been actuated by malice." In this appeal, the appellant alleges that the conviction and sentence were not proper because the said damaged properties were not tendered before the trial court as exhibits. On this point, the respondent submitted that the appellant damaged the property specifically the door, to gain entry into the 9 premises and a 65-inch flat screen television. There is no dispute that the damaged properties were not tendered before the trial court. Looking at the judgement of the trial court, specifically pages 12 and 14, it was clearly stated that there was no proof of the damaged door and television. For clarity, the trial court recorded as follows: - "Mlalamikaji hakuviwasiiisha vielelezo vya milango iiiyovunjwa pamoja na TV.Jngawa hakuleta chochote kuthibitisha uvunjwaji huo... ingawa mlalamikaji hakuwasiiisha miiango pamoja na TV Hi kuonesha uharibifu huo... "[Emphasis added] I Additionally, on pages 3 and 4 of the District Court's judgement, and in relation to the proof of the damaged properties, it is stated that: - "Admittedly, I have had an opportunity to go through the proceedingsandjudgment of the trial court and noted one flaw of procedure and failure by the trial court to control proceedings especial when it failed to guide the parties especially the respondent who needed to tender the damaged television and door and admitted them for identification purpose...! am of that view because the trial primary court did appreciate and in reality, acknowledge the complained issues by the appellant like the fact that the door and television not being tendered in evidence and yet was able to connect the appellant to the destruction done. "[Emphasis added] io Undoubtedly, and basing on the holdings above, among the elements of the charged offence is proof of the damaged property. Essentially, this was not established beyond reasonable doubt. The holding by the District Court that the trial court was able to connect the appellant to the destruction or damage of the property is, with due respect, incorrect. Relevant to this point, this court (Kadilu J.) in the case of Semeni Issa vs the Republic, Criminal Appeal Case No. 185 of 2018 (unreported), held as follows: - "In the present case, a wooden table and the umbrella which the appellant was alleged to have destroyed were nowhere to be found during the trial... that said, the second and third grounds of appeai have succeeded which aiso ieads to the conclusion that the case against the appellant was not proved beyond reasonable doubt"[Emphasis added] Similarly, the cardinal rule in criminal matters is that proof should be beyond reasonable doubt. Otherwise, the doubts, if any, will benefit the accused person; or the appellant, for the purpose of this appeal. For instance, in the case of Emmanuel Kibona & Others vs Republic [1995] TLR 241, this position was underscored by the Court of Appeal of Tanzania (CAT) and it was held that: - ii "Evidence of a parent is better than that of medicai doctor as regards that parent's child's age. Where age can't be assessed accurately the benefit of doubt must be given to the accused. "[Emphasis added] Furthermore, there is another aspect of contradictory evidence indicated in the trial court proceedings and the trial judgement thereof. To start with, at page 2 of the trial court's judgement, SMI testified that the appellant damaged three doors "miango wa jikoni, sebuleni, uani"avd the television. However, this witness later testified further that "miiango miwiii iiiyovunjwa ina thamani ya TZS 400,000/-"which is contradictory to the previous statement, regarding the number of damaged doors. Additionally, at page 4 of the trial court's judgement, SM2 is recorded to have testified that "sauti za miango wa mbao na ni kelele tu za miango na sio kuvunjwa". The contradictions herein bring in the question of credibility and reliability of the respondent's witnesses. Therefore, the contradictions go to the root of the case because the damaged properties were not tendered before the trial court. 12 In the CAT case of Solea Mdadija and Another vs the Republic, Criminal Appeal No. 580 of 2022 (unreported), the issue of contradictory evidence was deliberated and it was held as follows: - ’We further agree with the learned State Attorney on contradictory evidence of the prosecution witnesses. It is a rule that in evaluating discrepancies or contradictions the court has to decide whether that contradictions or discrepancies are only minor or if they go to the root of the matter. Looking closely on these contradictions, it is dear to us that they are not minor and also, they bring up question on credibility and reliability of those witnesses. In those circumstances, the contradictions go to the root of the case. "[Emphasis added] In the instant matter, and based on the deliberations herein, I find a clear misapprehension of evidence, miscarriage of justice and violation of principles of law to warrant interference with the concurrent findings of the two subordinate courts. Finally, and based on the authorities cited herein, I am satisfied as correctly intimated by the appellant that the offence of malicious damage to property was not proved beyond reasonable doubt against the appellant. Indeed, the finding above renders the consideration of other grounds of appeal unnecessary. 13 For that reason, I hereby allow the appeal. The entire proceedings and judgments of the trial court and the District Court are quashed. Again, the conviction, sentence and the fine imposed by the trial court are set aside thereof. I also quash the order of compensation issued by the trial court. Finally, the fine imposed against the appellant should be refunded forthwith, if it was paid. It is so ordered. Right of appeal fully explained. DATED at DODOMA this 13th day of December, 2024. I.D. MUSOKWA JUDGE Judgment delivered in the presence of counsel for the appellant, Mr. Majaliwa Wiga; and in the absence of the respondent. 14