Kiginga Isambe

IN THE HIGH COURT OF TANZANIA

MUSOMA SUB REGISTRY

AT MUSOMA PC CRIMINAL APPEAL NO. 000027812 OF 2024 REFERENCE NO. 202409302000027812 (Arising from the Criminal Appeal No. 000009092 of2024 of District court of Tarime Originating from Tarime Urban Primary Court in Criminal Case Number 43 of2024) KIGINGA ISAMBE........................................................................ APPELLANT

VERSUS BHOKE GIKAO.............................................................................. RESPONDENT

JUDGMENT 05th & 11th March, 2025 M, L KOMBA, J,: This is the decision against an appeal by the above-named appellant who was dissatisfied by the decision of the Tarime District Court (the 1st appellate court) in Criminal Appeal No. 000009092 of 2024. Briefly back ground to this appeal goes like this, it was alleged that on 07/12/2023 at 10:00 hours at Ntagacha village in Nyamisese ward within the Tarime district the appellant without justification, unlawful cut respondents' crops (maize and banana tree) worth TZS 3,342,000/. Page 1 of 10 Appellant was arraigned before Tarime Urban Primary court at Tarime charged for malicious damage to property contrary to section 326 (1) of the Penal Code, Cap 16 R.E 2022 the offence which alleged to have been committed on the date mentioned. The property which was maliciously damaged are the property of the respondent herein. After the determination of the whole case, the trial court was satisfied that the prosecution case was proved beyond reasonable doubt and went on to convict the accused person and subjected him to conditional discharge for six months (6) and ordered him to pay compensation of Tanzania shillings 3,342,000/= to the respondent within six months. Being aggrieved by the decision of the trial court, appellant appealed to the 1st trial court armed with five grounds which may be summarized that the offence was not proved, the

1st appellate court had no jurisdiction and did not visit the locus in quo and complained for the punishment. The 1st appellant court noted the offence which was charged the appellant was not force entry as he claims and no land case was filed against him but the records shows that appellant was charged for malicious damage to property in which appellant was executing his decree but respondent had no land dispute with appellant and she was not party to any land case. Page 2 of 10 After analyzing the grounds of appeal. The 1st appellate court Magistrate dismissed the appeal after analysed evidence in record found the appeal with less merit. For the second time he was dissatisfied and at this appeal he has four (4) grounds which may be summarised as follows; 1. That, the appellate court erred in law and in fact by upholding the trial court decision while respondent did not prove his case against the appellant beyond reasonable doubt.

2. That, the appellate court erred in law and in fact by disregarding the fact that the trial court had no jurisdiction to entertain the matter as it was land dispute.

3. That, the appellate court erred in law and in fact by holding that execution cannot be carried out in undisputed land without visiting the locus in quo.

4. That, the appellate court erred in law and in fact by failure to consider the appellant's ground of appeal on the extent of the alleged destruction and its valuation which was not proved beyond reasonable doubts. When the appeal was scheduled for hearing, appellant stood solo without representation while respondent had a legal service of Advocate Paulo Obwana. It was appellant who started to address this court on his appeal and submitted that, he was wrongly convicted on malicious damage to property Page 3 of 10 as trial court did not consider evidence of respondent who, according to him respondent evidence was tinted with contradictions that it was court broker who slashed the said crops. Submitting for the Second ground he said two lower courts entertain the matter which had no jurisdiction because the complaint has connection with land and the appellant was in execution of the order of the District Land and Housing Tribunal (DLHR) and went on submitting that if there was problem, respondent was supposed to report to DLHT. On the 3rd ground he submitted that both lower courts arrived at wrong decision when found respondent to be lawful owner of land while both Magistrates never visited to locus in quo and so they lack jurisdiction. Appellant went on submitting on the 4th ground by blaming two lower court for failure to visit locus in quo and therefore he complained he was

wrongly convicted while insisting that he is lawful owner of land and what was done was execution which was conducted by court brokers. He insisted further on wrong conviction basing on submission that two lower courts were not allowed to entertain land maters and cited the case of Kiginga Isambe vs Paulo Rossana and Mwita Rossana, Criminal Appeal No. 29 of 2016. Page 4 of 10 He elaborated further that initially he had a land case with some body called Bale who was judgment debtor. Resisting the appeal Mr. Obwana reminds this court that before me is the second appeal in which this court must direct its analysis on points of law and not evidence unless circumstances compel. Appellant has submitted on new issues and facts which was not raised in 1st appeal. Arguing for grounds filed, he submitted that appellant admitted commission of the offence when he insisted it was court broker who slashes crops while it was him who pointed the farm of the respondent to be cleared. That was a proof of unlawful damage to properties of the respondent. He went on submitting that appellant has never file a case against respondent and therefore he was not supposed to execute his decree on the property of the respondent who tendered Agriculture officer report which show crops were affected. On the validity of execution, Mr. Obwana complained of none adherence to court directives on importance of

indicating location, size and boundaries in suits involving land as its importance is to protect other people property and pray this curt to read Martin Fredrick Rajab vs Ilemela Municipal Council and Another, Civil Appeal 197 of 2019. He prayed me to find the 1st ground devoid of merit. Page 5 of 10 He went on submitting that the first schedule of the Magistrate Courts Act, Cap 11 allow primary court to entertain offence found in section 326(1) of Penal Code, Cap 16 R.E 2022 among them is malicious damage to property. To him the trial court had jurisdiction to entertain the matter. That was the second ground. Arguing for the 3rd ground he said it is not requirement of the law that each court has to visit locus in quo before deliver the judgment, the visit done by Agriculture officer was enough. On the last ground, (4th) about compensation he was of the submission that Primary Court has powers to order compensation in addition to any punishment. He said the cited case is distinguished to the case at hand as it deal with criminal trace pass and there was no declaration who was the rightful owner. In the case at hand he insisted that appellant had a case with other parties and he execute in different land. However, he insisted that it was not forbidden for the primary court to mention the word Land while analysing a case. So far as the first appellate court analysed criminal case

which was filed at the Primary court, he prayed the decision of the 1st appellate court to be maintained so far as there was not demarcation of the land which was subject to execution. Page 6 of 10 During rejoinder appellant insisted he did not admit the offence and prayed me to read proceedings while insisted on his submission in chief. I am called upon to decide if the appeal has merit. On the first place it has to be known that this is the second appeal as submitted by counsel for respondent, the principle is that the second appellate court very sparingly depart from concurrent findings of fact by the trial and first appellate court. Only in exceptional circumstances, that any interference may be warranted and it is when it is clearly shown that there was misapprehension of the evidence, miscarriage of justice or violation of some principles of law or procedure by the courts below. See. Joseph Safari Massay vs Republic, Criminal Appeal No. 125 of 2012 and Wankuru Mwita vs Republic, Criminal Appeal No. 219 of 2012. In the latter case, the position was emphasized by the Court having said as follows: '... The law is well-settled that on second appeal' the 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 or are a result of a complete

misapprehension of the substance, nature and quality of the evidence; misdirection or non- Page 7 of 10 direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage ofjustice' I find prudent to set position of the law before I analyse this appeal. On the first, third and fourth grounds of appeal, appellant is complaining of proving the offence beyond reasonable doubt, visitation to the locus in quo and analysis of destruction done in the said farm respectively. All these are matter of evidence and it is the trial court and 1st appellate court who has monopoly of evidence. This court may analyse evidence only when there is miscarriage of justice which I don't find any. As indicated previously, it is the trial court which is best mandated with evaluation of evidence as was in the case of Silas Sendaiyebuye Msagabago vs The D.P.P, Criminal Appeal No. 184 of 2017 and Raphael Ideje @ Mwanahapa vs The Director of Public Prosecutions (Criminal Appeal 230 of 2019) [2022] TZCA 71 (25 February 2022). Further it is settled that the first appellate court is final court of evidence as it is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision. See also Mwita Cornel Philimon @ Gaucho vs Republic (Criminal Appeal No. 306 of 2020) [2023] TZCA 17822. Page 8 of

10 In the case at hand, appellant is complaining of failure of both lower courts in analysing evidence which, as per appellant submission, if evidence was properly analysed, he could not be convicted. As indicated, at the second appeal, courts deal with question of law alone. I am aware of the exception that this approach rests on the premise that the findings of fact are based on a correct appreciation of the evidence. If it happens both courts completely misapprehend the substance, nature and quality of the evidence, then the second appellate court may re-evaluate evidence for the interests of justice intervene. On the three grounds there is no need or re­ evaluating the evidence. The second ground the appellant is complaining of the jurisdiction of both lower courts at the matter was concerning the land and he finds it was District Land and House tribunal which had jurisdiction. I have read the proceedings and judgment of the 1st appellate court and find the appellant was convicted of Malicious damage to property and the charge reads the offence was committed contrary to section 326 (1) of Cap 16. Just as submitted by Mr. Obwana, Cap 11 allow primary courts to entertain cases of this nature and I find the offence was purely criminal, there was destruction of property and it has nothing to do with ownership of land. Page 9 of 10 The cited case of Kiginga Isambe vs Paulo

Rossana and Mwita Rossana, is noted however, it is distinguishable as destruction of property need not to prove ownership as in criminal trespass. I therefore find both lower courts had jurisdiction for trial and appeal. From that analysis I find the second ground lacks merit and makes the whole appeal to be non- meritorious. Without further ado, I hereby dismissed the appeal. DATED in MUSOMA this 11th March, 2025. M. L. KOMBA Judge Judgment delivered before appellant who was connected from his residency while respondent was represented by Advocate Paul Obwana. M. L. KOMBA Judge 11th March, 2025 Page 10 of 10