lomayani kitoi teveli vs oltobwai ngowel sakita 2009 tzhc 256 13 february 2009

IN THE HIGH COURT OF TANZANIA

AT ARUSHA (PC) CRIMINAL APPEAL NO. 3 OF 2007 (c/fArusha District Court Criminal Appeal No. 33 o f2005, Original Emaoi Primary Court Criminal Case No. 195/205) LOMAYANI KITOI TEVELI..................................APPELLANT

VERSUS OLTOBWAI NGOWOL SAKITA........................ RESPONDENT (Appeal from the decision of Arusha District Court (B. N. MASHABARA, RM) Dated 7th day of December, 2006 In Criminal Appeal No. 33 of 2005)

JUDGMENT N.P.Z. CHOCHA, J. A combined records from the trial primary court, the district court and this court, constitute the appeal lodged by Lomayani Kitoi Teveli against Oltobwai s/o Ngowol Sakita. The two shall hereinafter be referred to as the appellant and respondent respectively. The appeal contains six grounds. After thorough evaluation thereof I found that they substantially constitute only two grounds. I will therefore, in the course of disposing this appeal, group the 2nd - 6th grounds together. The 1st ground shall stand alone. Late me say that in the process of evaluating the totality of the records I had to go through the parties' submissions in their totality. Suffice now to pay my attributes to the valuable remarks which must necessarily be echoed in my judgment. The 1st ground which I propose to deal with in the same way the appellant did is couched as follows:- "That the honourable learned magistrate was erred in law and fact by not put into consideration and in record to his judgment preliminary objection raised by the appellant that the appeal is time bared because Emaoi Primary Court Judgment was delivered on 7/10/2007 but the appellant received a summons on 22/12/2005 that, no any notice to the appeal served to the appellant, that appeal is defective incurably by contraveining a doctrine set at a criminal case of LAURENCE MPINGA VRS. REPUBLIC H C ATMTWARA

C.R.NO. 16/1980 T.L.R. 166 OF 1983 (SAMMATTA. J) AND IN A CASE OF ALHANI & ANOTHER VS. REPUBLIC H C AT MTWARA (1990) T.L.R. No. 104 (MAINA, J.) "That no appeal shall be allowed in the any case o f an accused person convicted on his own plea"please see annexture marked (A) a judgment of resident magistrates court." I will propose to dispose off this ground before I embark on the rest. Although it was with difficult, marking lesser language used in the quotation, I managed to figure out few issues which are collateral to the ground raised by the appellant. In the first issue the appellant complains that the 1st appellate court did not conclusively determine the preliminary objection that the appeal was time barred. Going by the arguments, I find that the appellant misconceived the issue. He calculated the date of receiving a summons as the date of lodging an appeal. Actually, and as the respondent's counsel observed, the appeal was lodged on the 27th October, 2005, only 20 days from the date of judgment and 10 days ahead of the limitation period. If the 1st appellate court had not said anything on the issue, this collateral ground is demerit for reasons aforestated. The second appellant's argument which is collateral to the 1st ground is that the respondent filed an appeal without lodging in the first place a notice to appeal. Again, I align with the respondent's counsel to find

that the appellant misconceived the requirement of a notice. As correctly noted by the respondent's counsel, this matter originated from the primary court to which a notice of appeal is not required. It is true that the accused's plea determines his status. The appellant was swayed by the respondent's admission that he sent his children to grow maize seeds knowing it to belong to Andrea Lekasi who had hired it to him. Much as I agree with the appellant that no appeal shall be allowed, the appellant should have gone further that the rule applies where there is a plea of guilt. I have not seen any plea of guilt in the trial court record. In other words the respondent's admission that he sent his children to grow the seeds does not mean that he trespassed on the appellant's shamba, because after all he is disputing the appellant's allegation that the shamba belong to him. The purported plea of guilt has been misconstrued by the appellant. Eventually, the totality of the 1st ground of appeal is demerit. The question whether the alleged trespassed shamba is the same which constituted the subject matter in Civil Case No. 1/1991 where the appellant was declared the owner, was replied superficially by the Emaoi Primary Court while adjudicating Criminal Case No. 195 of 1995. Boundaries of the alleged contentious shamba were not defined in Civil Case No. 1 of 1991, which would presuppose

that both the appellant and the respondent (together with Andrea Lakasi) were all talking the same language referring to the same shamba as constituting similar subject matter. The trial Criminal Court had some job not done. It ought to either have the sketch plan of the shamba before it, or it ought to visit the locus in quo with the view to ascertain boundaries. In the absence of this piece of evidence, it was not safe for the trial court to hold that the question of ownership of the purported trespassed land had been sufficiently cleared to found enough evidence on a charge of criminal trespass. It is only until Andrea Lekasi has been proved wrong, that he is erroneously vieing on the land which is lawfully controlled by the appellant by defined boundaries, that the charge of criminal trespass can stand. As of now, the claim lacks fulcrum considering the standard of budern of proof to be discharged in criminal cases. Infact I could have dismissed the consolidated grounds summarily for want of sufficient ground of claim. I found it pertinent to take time to detail my argument, assuming that the appellant would now understand the courts' concern. The appeal is eventually entirely dismissed. Sgd. N.P.Z. CHOCHA

JUDGE 13/ 02/2009 Court: Judgment delivered this 13/02/2009. The appellant is physically present and so does the respondent. The respondent is in addition, represented by Mr. Merinyo Advocate who is also present. Order: Right of further appeal is explained. Sgd. N.P.Z. CHOCHA

JUDGE 13/ 02/2009 A