CRIMINAL APPEAL MAGORI MWEYA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY

AT MUSOMA CRIMINAL APPEAL NO. 000030629 OF 2024 REF NO. 202410282000030629 {Arising from Criminal Appeal No 22161 of2024 Butiama District Court, Originating from Criminal Case No. 120 of2024 at Primary Court of Butiama at Kukirango)

BETWEEN MAGORI MWEYA................................................... APPELLANT

VERSUS JULIUS MASAN A.................. RESPONDENT

JUDGMENT 14th & 25th November, 2024 M, L. KOMBArJ, This is the second appeal. Appellant lost in both two lower courts, still in determination of searching for justice he knocked the door of this court hopping for the best. The appellant was charged at Kukirango Primary Court on malicious prosecution to property. It was alleged that on 28/12/2023 at 09:00 hours at Nyamika village within Butiama District in Mara region the appellant demolished two graves of the respondent's relatives. The respondent who was complainant reported the matter to police, later, policeman (SM2) visited the scene and witnessed the damage. Appellant was arrested when refused to honor the police call. Page 1 of 5 She was charged at the Primary court, convicted for the offence charged and was ordered to compensate respondent TZS 100,000/ after she was given a conditional discharge not to commit any crime within the community. Appellant was dissatisfied and appealed to District court where she lost. She decided to approach this court with three grounds of appeal; 1. That both subordinate court erred in law and facts when believed that the appellant had demolished the said graves in the disputed land.

2. That the first appellate court erred in law and facts to bless the lies of F.4507 a police officer D/Sgt Simon who visited the locus in quo who then didn't tender a sketch map to that he drew at the scene ofcrime.

3. That the first appellate court erred in law and facts to bless a judgment of the lower court that dealt with a case based on land litigation while it had no jurisdiction to hear and determine the same. When the appeal was scheduled for hearing, both parties appeared in person without any legal representation. It was appellant who started to address this court on her appeal and submitted that the trial court declared respondent to be lawful owner while she was the owner of the land in which graves were found and she denied to destroy the graves Page 2 of 5 although she acknowledges she build the house in that land and seven graves are safe. In oral submission respondent argued over the grounds of appeal that the 1st appellate court noted that police testified in court that graves were destroyed and therefore Magistrate ruled that there was no need of map. Due to the fact that at primary court the case was filed as criminal case, he submitted that each lower court was vested with jurisdiction and he prayed this court to do justice. In this appeal my duty is to determine whether the appeal is meritorious. I am aware that this is the second appeal and the practice is that, the Court should, in a very exceptional circumstances interfere the finding of the lower courts 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, Felix s/o Kichele & Another vs Republic, Criminal Appeal No. 159 of 2005 and Julius Josephat vs Republic, Criminal Appeal No. 03 of 2007. At this stage, court is not accepting any evidence rather, it analyses what was transpired during trail in order to find if there is misapprehension of evidence or violation of principles of law form the grounds of appeal. It Page 3 of 5 has to be noted that appeal is rooted from the petition filed by appellant and appellate court has to address all grounds of appeal filed. See Firmon MIowe vs Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694. Further, it is settled that not only parties are bound by their own pleading but also the court. See Saulo Malima vs Petro Kingoni (Civil Appeal No. 154 of 2022) [2024] TZCA 436. Appellant had three grounds in her petition. During hearing she submitted on different Issued not found in her petition of appeal. This judgment will address grounds as filed. On the 1st ground about demolition of ground this is a matter of evidence and it is misplaced. The second ground is about tendering of exhibit, this was analysed in the first appeal. This court has once ruled that a case cannot be defeated because a sketch map of the crime scene was not tendered. See Ayubu Michael and 2

Others vs Republic, Criminal Appeal No 146 of 2020.1 shall maintain this position that failure to tender exhibit alone did not vitiate the respondent case as the officer who was supposed to tender the said exhibit actually testified in court. I find this ground lacks merit. On the third ground appellant complained that the matter was land litigation and it was not right for the 1st appellate court to uphold the Page 4 of 5 decision of the trial court as it lacks jurisdiction. As submitted by the respondent, at the trial court the matter was criminal as the appellant was charged for malicious damage to property contrary to section 326 of Penal Code Cap 16 R.E 2022. From the charge sheet that was criminal case and basing on section 326 of Cap 16 and section 18(1) of the Magistrate Courts Act, Cap 11 read together with part 1 of the first schedule, the trial court which was the primary court had jurisdiction to entertain criminal case as Penal code has offences of criminal nature. I find the third ground lacks merit. Oral submission made by the appellant was on ownership of land. I find that was off-point as the case which resulted to present appeal was criminal where the appellant was charged for malicious destruction of property and was convicted. In the upshot, the appeal is devoid of merit as all three grounds are fruitless and I hereby dismissed it. u M. L. KOMBA

JUDGE 25th November, 2024 Page 5 of 5