Juma Omary vs Piru Ramadhani Ipasu Draft Judment

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CRIMINAL APPEAL NO 16113 OF 2024 (From the Judgment in Criminal Appeal No 6045 of the 2024 before the District Court of Kondoa; Original from Criminal Case No 262 of the Kondoa Primary Court) BETWEEN JUMA OMARY ………..……………………..……… APPELLANT VERSUS PIRU RAMADHANI IPASU …………….………. RESPONDENT JUDGMENT Date of last Order: 13/11/ 2024 Date of Judgment: 12/02/2025 LONGOPA, J.: The appellant, Juma Omary was aggrieved by the decision of the Senior Resident Magistrate to allow an appeal against conviction and sentence for the offence of criminal trespass c/s 299(a) of the Penal Code, Cap 16 R.E. 2022 imposed against the respondent herein. Simply, facts of the case are that: the respondent one Piru Ramadhani Ipaso stood charged before the Primary Court of Kondoa at Kondoa for criminal trespass allegedly that on 18th day of November 2023 1|Page at Itaswi Village within Kondoa District in Dodoma Region intentionally and unlawfully trespassed into the respondent’s farm and cultivated therein. The respondent denied any wrong doing. Both parties called a total of three (3) witnesses each to prove their respective cases. The Primary Court of Kondoa at Kondoa entered conviction against the respondent and sentenced him to a fine to the tune of Tanzanian Shillings Five hundred thousand (TZS 500,000/=) or serve a six months’ imprisonment term in case of failure to pay fine. It was such conviction and sentence that aggrieved the respondent to challenge the findings. Upon hearing both sides, the first appellate court, the District Court of Kondoa found that there was no proof to the required standard of beyond reasonable doubts thus quashed the conviction, set aside the sentence against the respondent. The appellant herein was aggrieved of the findings of the first appellate court’s decision thus on 12th June 2024 instituted an appeal on the whole of the decision of the District Court of Kondoa dated 21st May 2024 on the following grounds of appeal, namely: 2|Page 1. The first appellate Court erred in law and in fact by raising an issue of the Exhibit Number 1 was not read over after their admission suo motto and unilaterally proceeding to make a finding without affording parties right to be heard. 2. The 1st appellate Court erred in law and fact for no taking to account Exhibit Number 1 falls among the fact which court have to take judicial notice. 3. The 1st appellate court erred in law and in fact in acquitting the respondent while the appellant proved the case beyond reasonable doubt and the evidence adduced in the hearing supporting the offence charged. On 13th November 2024 by consensus of the parties, it was agreed that disposal of this appeal be done through written submissions mode whereas both the appellant and respondent complied with the scheduling orders and filed their respective submissions timely. 3|Page The appellant argued on all the three grounds of appeal. With regard to the 1st ground of the appeal, it was submitted that there is a settled legal position that the issue of procedural irregularities can be raised at any time and even by the court suo motu. However, it was appellant’s contention that the parties were not given opportunity to address the court on the question of improper admission of the exhibits. It was reiterated that the issue of Exhibit No 1 to have not been read over after admission was raised by the court when composing the judgment and the parties were not heard on it. The appellant stated further that it is therefore plain truth that parties were not heard on the issue of Exhibit No 1 which was improperly admitted by the appellant failed to read over the said exhibit which the learned magistrate raised and unilaterally determined in his judgment. It was an observation of the appellant that this act of the learned magistrate denied the right to be heard to the parties which is a violation of the constitutional right enshrined in Article 13(6)(a) of the Constitution of the United Republic of Tanzania 1977 which states that: - “When the rights and duties of any person are being determined by the court or any 4|Page other agency, that person shall be entitled to a hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned.” It was contended that in giving effect and interpreting that article the Court, in the case of Mbeya-Rukwa Autoparts and Transport LTD v Jestina George Mwakyoma [2003] T.L.R. 251 held that “…in this country, natural justice is not merely a principle of common law; it has become a fundamental constitutional right Article 13(6)(a) includes the right to be heard among the attributes of equality before the law..." The appellant cemented this ground on the effect of the failure to accord a right to be heard to the parties to be nullity of both the proceedings and decision thereon. The appellant cited the principle in Wegesa Joseph M. Nyamaisa v. Chacha Muhogo, (Civil Appeal No. 161 of 2016) (2018) TZCA 224 (28 September,2018) where the Court stated: - “In the instant appeal we are minded to re-assert the centrality of the right to be heard guaranteed to the parties where courts, while composing their decision, discover new issues with jurisdictional implications. The way the first appellate court raised two jurisdictional 5|Page matters suo motu and determined them without affording the parties an opportunity to be heard, has made the entire proceedings and the judgment of the High Court a nullity, and we hereby declare so." On the 2nd ground of appeal, it was submitted that the first appellate court failed to take judicial notice on Exhibit No 1 which was judgment of the District Land and Housing Tribunal in accordance to the Regulation 3 of the Magistrate Courts (Rules of the Evidence in Primary Courts) Regulations G.N 66 of 1972. Essentially, that Regulation enlists the court to take judicial notice the said Exhibit No 1 in composing his judgment and once judicial notice is taken the fact is considered proven for the purposes of the proceeding. A court may take judicial notice on its own accord or upon request by a party, even were not proven formally by evidence. This position was more elaborated in the case of Craven v. Smith, 1869 LR 4 Exch. 149 in which the following was observed, that: “The court is entitled to look at its own record and proceedings in any matter and take judicial notice of their contents although they may not be formally brought before the court by the parties.” 6|Page In respect of the 3rd ground of appeal, the appellant reiterated that it is a cardinal principle in criminal cases which places on the shoulders of the prosecution the burden of proving the guilt of the accused beyond all reasonable doubts. The appellant cited Regulation 5 (1) of the Magistrate Court (Rules of Evidence in Primary Courts) Regulations GN No 66 of 1972 that provides: “In Criminal cases, the Court must be satisfied beyond a reasonable doubt that the accused committed the offence.” Similarly, the High Court of Tanzania speaking through Katiti, J. (as then he was) in the case of Jonas Nkize V. R [1992] TLR 213 held that “The general rule in criminal prosecution that the onus of proving the charge against the accused beyond reasonable doubt lies on the prosecution, as part of our law and forgetting or ignoring it is unforgivable and is a peril not worth taking.” It was argued that in instant appeal the main issue was commission of the criminal trespass offence contrary to section 299(a) of the Penal Code, Cap 16 R.E. 2022 and the case of Julius Mkwashu vs. Republic, 7|Page Criminal Appeal No 44 of 2021 (TANZLII), at page 9, the Court reiterated that elements of trespass are: First, unlawfully entry into or upon property in the possession of another which is Actus reus of the offence and second, such entry must be with intent to commit an offence or to intimidate, insult, or annoy the person in possession of the property this is the Mens rea of the offence. It was contended that pages 2 and 3 of the typed judgment, revealed that the elements of the offence were proved by the appellant against the respondent whereby the respondent unlawfully entered into the land and cultivate the same while it was legally owned by the appellant. Furthermore, the appellant herein featured three witnesses to prove his case before the trial court who testified without any contradiction that the respondent herein trespassed the respondent land/premises unlawful without justifiable reasons. It was thus noted that the trial court to rule in favour of the Appellant was proper, since the appellant at the trial court adduced strong and sufficient evidence which persuaded the court and finally held in favour of the appellant within the principle in the case of Hemedi Saidi vs Mohamed Mbilu [1986] TZHC 15 1984 TRL 113 8|Page (TZHC) that it is general rule that parties to the case cannot tie but a part whose evidence is strong must win. According to the appellant, the law requires that for proving the offence of criminal trespass there must be no dispute over ownership of land or property, if there is the criminal proceeding should stop pending determination of the ownership of the disputed land by the competent jurisdiction. This was well addressed in the case of Sylivery Nkanga vs Raphael Albertho (1992) TLR 110, where it was stated that a charge of criminal trespass cannot stand where ownership of the property is dispute. It was emphasized that in the matter at hand the issue of ownership was already determined by the Ward Tribunal and the judgement was delivered whereby the respondent was pronounced as the real owner. The appellant invited this Court to take judicial notice of the judgment that was expunged from the proceedings and the Exhibit No 3. It was argued that the appellant managed to prove criminal trespass beyond reasonable doubts, because the respondent unlawfully entered into his land and cultivate the same while the owner was clearly pronounced by 9|Page the Ward Tribunal and the said land was handed over to the appellant. As such, the appellant urged this Court to allow the appeal. The respondent objected the appeal. It was the respondent’s view that the 1st appellant court acted within the legal requirement when raised the issue of Exhibit No. 1 which was not read over to parties after admission at the trial court. That failure to read out documentary exhibit after their admission renders the said contained evidence in that documents, improperly admitted be expunged from records, the same amplified by the Court of Appeal of Tanzania in the case of Mbaga Julius vs Republic (Criminal Appeal 131 of 2015) [20161 TZCA 2741 (25 October 2016). Equally the Court of Appeal of Tanzania in several cases including cases of Shitebo Malonja vs James Mapubu (PC Civil Appeal 40 of 2019) [2020] TZHC 117 (18 February 2020); Robinson Mwanjisi and 3 Others vs Republic (Criminal Appeal 154 of 1994) [2001] TZCA 28 (13 July 2001); Lack S/O Kilingani vs Republic (Criminal Appeal No. 40 of 2015) [2016] TZCA 388 (29 July 2016); Omary Iddi Mbezi & Others vs Republic (Criminal Appeal 214 of 2017) [2020] TZCA 207 (5 May 2020) 10 | P a g e where the Court of Appeal held that: “Documentary evidence whenever it is intended to be introduced in evidence it must be initially cleared for admission, then actually admitted before it can be read out. Failure to read the contents of the cautioned statement after it is admitted n the evidence is a fatal irregularity. In respect of the principle in Mbeya-Rukwa Autoparts and Transport Ltd vs Jestina George Mwakyoma [2003] T.L.R. 251, the respondent stated that it is distinguishable as it relates to a different aspect altogether which is not applicable to this case at hand. Regarding the 2nd ground of appeal, it was argued by the respondent that there was nothing in err for the first appellate court not to take judicial notice. This is a new issue raised by the appellant in this 2nd appellate court which is not allowed by law as reiterated by the Court of Appeal of Tanzania in several cases that have emphasized the criteria including Case of Juma Manjano vs the DPP (Criminal Appeal 211 of 2009) [2012] TZCA 52 (1 March2012), and Julius Josephat vs Republic (Criminal Appeal 3 of 2017) [2020] TZCA 1729 (18 August 2020), the Court of 11 | P a g e Appeal held that unless the new ground is based ort a point of law, the Court will not determine such ground for lack of jurisdiction. Also, in of Abdul Athuman vs Republic [2004] TLR 151 and Samwel Sawe vs Republic (Criminal Appeal No, 135 of 2004 (both unreported), just to mention some In Samweli Sawe vs. Republic, the Apex Court held on this point that as a second appellate court, we cannot adjudicate on a matter which was not raised as a ground of appeal in the first appellate. On the 3rd ground, it was submitted that respondent was charged with an offence of criminal trespass contrary to section 299(a) Of the Penal Code, [Cap. 16 R. E. 2019. That charge was not proved beyond reasonable doubt, as it was held in the case of Nkhangaa vs Raphael Albertho [1992] TLR 110 where Mwalusanya J. (as he then was) held that a charge of criminal trespass cannot succeed where the matter involves land in dispute whose ownership has not finally, determined by a civil suit in a court of law. 12 | P a g e It was observed by the Court of Appeal of Tanzania in the case of Ally Kauzeni vs Republic, [1985] TLR 79, held that “Thus, the essence of the offence is the intent in committing the trespass. The word "intent" is not to be taken as identical with “wish” or “desire.” The intention constitutes the entry criminal. Merely to trespass is not ordinarily an offence, but when the trespass is in order to the commission of an offence or when it is to intimidate, to insult, or to annoy; it is punished. Thus, the essence of the offence is the intent in committing the trespass. It is essential for the prosecution to prove the intention laid down in the section. The intention can always be gathered from the circumstances of the case, and one matter which must be considered is the consequences which naturally flow from the act, because a man is usually presumed to intend the consequences of his own act. The respondent stated vehemently that the appellant is trying to convince the court that Exhibit PE 1 which was expunged from the proceedings by first appellate Court be accorded as a judicial notice by this Court. This is a new issue being raised by the appellant in this 2nd appellate court as it was not raised nor deliberated in the first appellate Court. That 13 | P a g e contravenes the principle that such issue not raised at first appellate court cannot have merit to be discussed at the 2nd appellate court as per emphasis in the decision of the Court of Appeal of Tanzania in the case of Julius Josephat vs Republic (Criminal Appeal 3 of 2017) [2020] TZCA 1729 (18 August 2020). The respondent reiterated that as it was amplified in the case of Jonas Nkinze vs Republic [1992] TLR at page 214 where it was held that: Whenever a person is charged with an offence, it is the duty of the trial court to analyze and ascertain each element of the alleged particular offence so as to satisfy itself that such person has committed such offence beyond reasonable doubt. It is also the duty of the prosecution to prove their case beyond reasonable doubt. It was respondent’s view that having expunged the Exhibit No 1 then the prosecution’s case was weak thus not proved beyond reasonable doubt. Finally, it was stated that equally as stipulated by Regulation (2) of the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations, GN No. 22 of 1964 and 66 of 1972 (2) that provide that if at the end of the case, the court is not satisfied that the facts in issue have been proved the 14 | P a g e court must acquit the accused. Thus, the respondent urged this court to dismiss the appeal for lack of merits. Having heard both sides, it is pertinent for this court to determine on validity of the appeal in light of the available records. I have earnestly reviewed the grounds of appeal, the proceedings and decisions of both 1st and trial court respectively to establish validity of the appeal or otherwise. It is on record that the appeal before the first appellate Court was determined by way of written submissions. On page 5 of the proceedings, it is revealed that the first appellate court ordered that the then appellant should have filed the written submission by 16th April 2024, the reply submission was to be filed by 30th April 2024 and the rejoinder if any by 7th May 2024. Further, pages 2 to 3 of the Judgment of 1st appellant court summed up all the submissions by the parties in support or objection to the appeal. There were five grounds of appeal at the first appellate court preferred by the respondent herein. It is lucid that four out of five grounds of appeal touched on the evidence before the trial court. It is only the first ground of 15 | P a g e appeal that touched on the incompleteness of judgment. The rest touched on insufficient evidence that could not prove the case beyond reasonable doubt, failure to analyse the defence evidence, as well as entering judgment erroneously on weak and contradictory evidence. Further, the appellant was the respondent submitted that the case against the respondent in trial court was proved beyond reasonable doubts as evidenced by the Exhibits 1 and 3. This was resisted by the appellant, who is the respondent herein. It is trite law that right to be heard is fundamental and decision made without adhering to such principle is a nullity. For instance, in the case of Anthony M. Masanga vs Penina (mama Mgesi) and Another (Civil Appeal 118 of 2014) [2015] TZCA 556 (18 March 2015) (TANZLII), the Court of Appeal emphasized that: It appears therefore that the respondents were not afforded the right to be heard (audi alteram partem) on that aspect. In fact, nowadays, courts demand not only that a person should be given a right to be heard, but that 16 | P a g e he be given an “adequate opportunity” to be heard so as to achieve the quest for a fair trial. See the case of The Judge i/c High Court Arusha & Another v. N.I.N. Munuo Ng'uni [2006] T.L.R. 44 This court is of the settled view that given that both parties addressed the grounds of appeal through written submissions, the appellant cannot be heard that he was not availed the right to be heard. As noted above, the parties were fully heard on the appeal where the question of exhibit PE 1 was part of the submissions by the parties. Both parties addressed on the sufficiency of the evidence on record, the Exhibit No 1 being part of the evidence. It was appellant’s version of story that prosecution tendered sufficient evidence to warrant the conviction and sentence of the respondent. It was contended that Exhibit No 1 and Exhibit No 3 were among crucial evidence in proving the criminal liability of the respondent. It is a clear afterthought on part of the appellant at this juncture to contend that such evidence he submitted to be proper and sufficient, it 17 | P a g e was the first appellate court’s mandate to analyse appropriateness of admission of such evidence. The first appellate court exercised such mandate diligently. Indeed, there is nothing to complain on part of the appellant as both parties were availed opportunities to address on the grounds of appeal before the first appellate court thus falling within the principle of fair hearing. It is a considered view of this court that the right to be heard was adhered to by the first appellate court by according both parties the right to fair hearing by addressing the court before determination of the appeal. Thus, first ground of appeal is devoid of merits. With regard to taking judicial notice of the judgment of the Ward Tribunal, there is no doubt that records of the trial and first appellate courts do not reflect that the same was raised, deliberated and determined as an issue in the first appellate court. It is settled law that matters not raised and determined in the first appellate Court cannot be raised and determined in the second appellate court. In the case of Simon Godson Macha vs Mary Kimambo (Civil Appeal 393 of 2019) [2020] TZCA 36 (28 February 2020) (TANZLII), at pages 8-10, the Court stated that: 18 | P a g e There is a long chain of authorities which have taken the stance that matters not canvassed by the lower courts cannot be raised in this Court. See for instance cases of Juma Manjano v. Republic, Criminal Appeal No. 211 of 2009, Sadick Marwa Kisase v. Republic, Criminal Appeal No. 83 of 2012 and George Mwanyingili v. Republic, Criminal Appeal No. 335 of 2016 (all unreported). In Juma Manjano (supra) the Court held that:-“As a second appellate court, we cannot adjudicate on a matter which was not raised as a ground of appeal in the first appellate court. The record of appeal at page 21 to 23 shows that this ground of appeal by the appellant was not among the appellant's ten grounds of appeal which he filed in the High Court. In the case of Abdul Athumani v. R. [20041 TLR 151 the issue on whether the Court of Appeal may decide on a matter not raised in and decided by the High Court on the first appeal was raised. 19 | P a g e The Court held that the Court of Appeal has no such jurisdiction. This ground of appeal is therefore struck out. "The Court has repeatedly held that matters not raised at the first appellate court cannot be raised in a second appellate court." [Emphasis added). There is also a second reason that it will be unpalatable for this court to reinvigorate the contents of Exhibit No 1 which was the expunged from record by the District Court as the first appellate court. The first appellate court expunged the said exhibit on ground that it did not adhere to admission of documentary evidence. The reasons for expunging of the exhibit was violation of the settled procedural requirements of tendering documentary evidence thus bad in law. Such decision of the first appellate court was in line with well- established principles of law. In the cases of Jumanne Mondelo vs Republic (Criminal Appeal 10 of 2018) [2020] TZCA 1798 (6 October 2020); and Geophrey Jonathan @ Kitomari vs Republic (Criminal Appeal 237 of 2017) [2021] TZCA 17 (16 February 2021), the Court of Appeal emphasized that: 20 | P a g e It is trite principle that when a document is sought to be introduced in evidence three important functions must be performed by the court, clearing the document for admission, actual admission and finally, to ensure that the same is read out in court. Further, in Zheng Zhi Chao vs Director of Public Prosecutions (Criminal Appeal 506 of 2019) TZCA 240 (8 June 2021) at page 20, the Court of Appeal stated that: It is settled position that failure to read out the contents of an exhibit after its admission in evidence is a fatal irregularity as it violates the accused's right to a fair trial - see the cases of Robinson Mwanjisi and 3 Others v. Republic [2003] T.L.R 218 and Anania Clavery Betela v. Republic, Criminal Appeal No. 355 of 2017. In the latter case the Court emphasized that failure to read over the contents of exhibit after being cleared for admission and actually admitted in evidence is wrong and prejudicial. 21 | P a g e Being guided by the above authorities, the said exhibits deserve to be expunged from the record as we accordingly, hereby do. Also, the Court of Appeal of Tanzania has categorically established as a rule of the thumb that any disclosure of the contents of an exhibit before it is admitted in evidence constitute a serious anomaly that warrants such exhibit to be discarded from the record of the Court. This principle was stated in the case of Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024) (TANZLII), at page 12, the Court stated that: Divulging or reading out the contents of an exhibit before it is admitted in evidence is a fatal irregularity. In the case of Manje Yohana & Another v. Republic (Criminal Appeal No. 147 of 2016) [2018] TZCA 547 (7 March 2018, TANZLII), wherein the Court was confronted with a similar situation, it was observed thus: “It is apparent in the quoted proceedings of the case on 10.06.2011 that the Extra Judicial Statement of the first appellant was read out 22 | P a g e in court before it was admitted in evidence. That was patently wrong. It is wrong to read out a document before it is admitted in evidence.” As the Exhibit No 1 before the trial Court was read out before the same was admitted in Court, it is obvious that it fell within the web of the enunciated principle that such divulgence is fatal and warrants nothing than expunging of the same from record for being improperly procured. It would be improper for this court to clandestinely revive the properly expunged documentary evidence on pretext of the same being a matter of taking judicial notice. This attempt by the appellant need to be put to halt to prevent abuse of court processes for which the appellant is trying to do. The court should not countenance serious violation of the set out principles of law which are intended to ensure proper administration of justice to parties. Condoning violation by the court is to set a bad precedent in the administration of justice which this court should not attempt to do. 23 | P a g e After all, the provisions of Section 58 and 59 of the Evidence Act, Cap 6 R.E. 2019 do not appear to provide in explicit terms that quasi-judicial decision may be taken as a matter of judicial notice. I am not oblivious of the contents of section 59(1) (d) of the Evidence Act which provides for taking judicial notice of all seals of courts in United Republic of Tanzania. The document in question was a decision of the Ward Tribunal, which is not a court, rather a quasi-judicial body. In the case of Sisty Reuben vs Republic (Criminal Appeal No. 280 of 2022) [2024] TZCA 1083 (8 November 2024) (TANZLII), at pages 9-10, the Court of Appeal stated that: We find it pertinent to define what is judicial notice. According to LAW LEXICON, the Encyclopedia Law Dictionary, 1997 Edition at page 1015, Judicial notice is defined to mean: “notice which a judge will take of a fact without proof. Acceptance by Court for the purpose of a case, of the truth of certain notorious facts without requiring proof.” 24 | P a g e In this regard, in the case of the Attorney General and the Advocate Committee v. Fatma Amani Karume (Civil Application No. 694/01 of 2021) [2023] TZCA 17611 (11 September 2023, TanzLII), the Court defined Judicial notice as follows: “Simply means to presume a fact as though proved without pursuing the routine procedure of admitting documents in evidence. Thus, all documents listed at section 59 (1) of the Evidence Act are supposed to be admitted in evidence without subjecting them to normal processes of clearance before formal tendering and admission into evidence”. In the light of the above analysis it is clear that the error complained on failure by the first appellate court to take judicial notice of the Exhibit No. 1 is not merited at all. It is unprocedural approach that appellant invited this court to reinvigorate expunged evidence. In essence, appellant wished this court to condone procedural irregularities committed by the trial court on admissibility of documentary evidence. Conceding to such invitation would be doing injustice by allowing illegalities to prevail. At this 25 | P a g e juncture, the second ground of appeal is bound to crumble for lack of cogent merits. The last issue is that first appellate court erred to dismiss the conviction and sentence as the appellant managed to prove the case to the required standard. This ground of appeal is not difficult to determine as it revolves of the standard and burden of proof. Few principles are relevant to address the question. First, it is the duty of the prosecution to prove the case against the accused person. Second, the standard of proof is that of proof beyond all reasonable doubts. Third, the accused is found guilty on the strengths of the prosecution case and not the weakness of defence. In Shagi Mang'oma vs Republic (Criminal Appeal No.356 of 2020) [2023] TZCA 17396 (12 July 2023) (TANZLII), at page 10, the Court of Appeal stated that: In Mohamed Haruna @ Mtupeni and Another v. Republic, Criminal Appeal No. 259 of 2007 (unreported) the Court stated the following on that principle:-“Of 26 | P a g e course, in cases of this nature the burden of proof is always on the prosecution. The standard has always been proof beyond reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence.” In the instant appeal, the offence against the respondent was that of criminal trespass. It was pertinent for the prosecution to establish that the appellant was the owner/occupier of the land prior to trial court finding against the respondent for trespass to land. In the case of Kusekwa Nyanza vs Christopher Mkangala (Criminal Appeal No 233 of 2016) [2018] TZCA 491 (7 December 2018) (TANZLII), at pages 9-10, the Court of Appeal reiterated that: A scenario of the like was encountered by the Court in the case of Simon Mapurisa Vs Gasper Mahuya, Criminal Appeal No. 221 of 2006 (unreported). In the same, the appellant was charged with trespass at the instance of the 27 | P a g e respondent, who was his neighbor while the boundary between their plots of land had not been ascertained. In allowing the appeal, the Court after considering various decisions of the High Court including Sylivery Nkanga Vs Raphael Alberto [1992] TLR 110 and Ismail Bushaija Vs Republic [1991] TLR 100, held that: “Disputed ownership of land is not resolved in criminal proceedings. The law on that issue is that where there is a dispute regarding boundaries of adjacent private land or the ownership of a part or the whole of adjacent land, such dispute is resolved in a civil court. From then onwards, encroachment onto the land of the other could be a trespass and a criminal charge can be brought against the offending party.” Back to the appeal before us, as it was apparently evidenced by the contradicting testimonies of the appellant on the one hand and his daughter Elizabeth Kasekwa on the other hand, the court could not ascertain as to who 28 | P a g e was telling the truth in regard to the ownership over the plot of land that was sold to the respondent. Under the circumstances, the law required a civil suit to be instituted to resolve as to who was the rightful owner of the plot of land between the appellant and his children. And once that was resolved, it would be cleared as to whether the sale of the plot of land to the respondent by the children of the appellant was lawful or not. From then, the respondent would be certain as to whether he was to institute criminal proceedings against the appellant or not. Indeed, this guidance of the Court of Appeal of Tanzania is categorically relevant and vital in addressing this appeal. Having expunged from record Exhibit No 1, which was the Ward Tribunal’s judgment, the first appellate court remained with nothing on record that could certainly establish that the appellant was the owner of the land in question. This was explicitly on page 5 of the Judgment of the first appellate court that the only evidence on ownership was the expunged Exhibit No. 1, in whose absence nothing on record could reveal that appellant was the rightful 29 | P a g e owner of the land in question for the offence of criminal trespass to be established. It is on record that before the trial Tribunal all the three witnesses of the respondent herein testified that the land belonged to the respondent since 2001 as she witnessed the respondent clearing virgin forest land and cultivate the same. In absence of decision from civil courts, the Primary Court of Kondoa at Kondoa as well as the first appellate court in criminal case/ appeal could not have ably in law determined the guilty of the respondent for the offence of trespass to land c/s 299(a) of the Penal Code, Cap 16 R.E. 2022. Absence of documentary evidence to prove existence of determination by a civil court that the land in question belonged to the appellant made the evidence against the respondent weak thus incapable of proving the case against the respondent beyond all reasonable doubts. I am in concurrence with the submission of the respondent that the matter involving ownership of land cannot sustain the charge of criminal trespass unless a civil court has determined the ownership. In the instant 30 | P a g e appeal, such determination by a civil suit was not in existence. As such, the first appellate court acted properly within bounds of law to quash and set aside the conviction and sentence as there was no proof of the case beyond reasonable doubts against the respondent. At this juncture, the 3rd ground of appeal must fail for being void of any merits. In the upshot, this appeal lacks merits on its entirety. I shall proceed to dismiss it for want of merits. The decision of the first appellate court, the District Court of Kondoa is hereby upheld. DATED at DODOMA this 12th day of February 2025. E.E. LONGOPA JUDGE 12/02/2025. 31 | P a g e