MASHIKU JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA PC CRIMINAL APPEAL NO. 11283 OF 2024 (Arising from Criminal Appeal No. 16 of 2023 in the Magu District Court at Magu and Criminal Case No. 07 of 2023 in the Magu District Court at Ndagalu) MASHIKU SEKO……………………………………………………………APPELLANT

VERSUS MASHIKU NDATULU……………………………………………………RESPONDENT

JUDGMENT 19th August & 27th September, 2024 KAMANA, J. This is a second appeal in which Mr. Mashiku Seko, the appellant, relentlessly fights for his rights following the conviction of criminal trespass and sentence meted out against him by Ndagalu Primary Court in Criminal Case No. 07 of 2023. His efforts to overturn the trial court’s decision proved futile as the first appellate Court upheld the trial Court’s decision, hence this appeal which is premised on the following reasons: 1. That the first appellate court erred both in law and in fact for upholding the decision of the trial court, that the case was proved beyond a reasonable doubt. 1 2. That the first appellate court erred both in law and fact to hold that the appellant was a criminal trespasser, while there was a dispute over land ownership.

3. That the first appellate court erred both in law and fact to hold that the trial court was seized with jurisdiction to adjudicate a criminal charge against the appellant, arising from a land dispute without establishing the status of ownership. Succinctly, in the year 2000, Mr. Seko sold a piece of land measuring eight acres to Mr. Mashiku Ndatulu, the respondent. According to the respondent, the piece of land had four graves in which the appellant’s relatives were buried. In the year 2021, to the respondent’s surprise, the appellant’s relatives buried another corpse in the piece of land. This led to a commotion that led to a suit before the court. According to the respondent, the court ordered that the five vaults should be removed from the land belonging to the respondent. However, as per his testimony, the respondent was advised not to remove the grave on the understanding that the appellant and his relatives should not bury their dear ones in the respondent’s land. According to the respondent, in 2023 he was summoned by Kitongoji Chairman where the appellant’s relatives asked him to sell to 2 them two acres out of the eight acres, he purchased from the appellant so that they could use the same to bury their relatives. The respondent denied the offer. It was the respondent’s testimony that after refusing the offer, he was summoned to the Village Executive who told him

that he had destructed seven tombs. He stated that the Village Executive forced him to sign papers whose contents he did not know. According to him, the papers depicted his willingness to rehabilitate the graves by contributing five bags of cement, one cow and TZS 5 million. Mr. Ndatulu alleged that due to that situation, he decided to approach the Court to seek justice. The charge was denied by the applicant. In his testimony, he admitted to having sold the land for agricultural purposes. He added that the land in which there were graves was not sold to the respondent. He insisted that the land in which the graves are is still part of the clan land and it could not be sold under circumstances. Based on the evidence, the trial Court convicted and sentenced the appellant. When he appealed, one of the grounds of appeal advanced by the appellate was that the trial court had no jurisdiction to entertain the case as the case was premised on the land dispute. In this appeal, the same ground is featured again. 3 Before, I delve into the grounds for appeal, I wish to reiterate the cardinal principle that before reaching any decision, the trial court is required to analyze the evidence adduced by the parties before it. Concerning primary courts, item 37(2) of the Primary Court Criminal Procedure Code directs that a judgment must contain reasons for the decision. This entails that the

reasons for the judgment must come from the analysis of the evidence adduced. The item reads: ‘Every judgment shall contain the point or points for decision arrived at by the and assessors the, decision thereon and the reasons for such decision, and shall be dated and signed by the magistrate.’ (Emphasis Added). The Court of Appeal in the case of Amiri Mohamed v. Republic [1994] TLR 138 had the opportunity to comment on section 312(1) of the Criminal Procedure Code, Cap. 20 [RE. 2019] which in effect carries the same meaning with item 37(1). The section reads: ‘Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by, or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate, in the language of the Court and shall 4 contain the point or points for determination the decision thereon and the reasons for the decision.’ (Emphasis Added). Commenting on that, the apex Court stated: ‘Every magistrate or judge has got his or her own style of comprising a judgment, and what vitally matters is that the essential ingredients shall be there, and these include critical analysis of both the prosecution and the defence.’ (Emphasis Added). It is not uncommon for the presiding officers to consider the summarization of evidence as an analysis. Given that, the Court of Appeal in

the case of Leonard Mwanashoka v. Republic, Criminal Appeal No. 226 of 2014-CAT (Unreported) differentiated the two as follows: ‘It is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. It is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis.’ 5 I have gone critically through the judgment of the trial court. After analysing the evidence, the trial Court stated: ‘Na huo ndiyo ulikuwa mwisho wa maelezo toka oande (sic) zote. Mahakama hii ilipata muda wa kutembelea eneo la tukio na kwamba makaburi yote yalikuwa salama hakuna lililoharibiwa, hakuna aliyelima pamba hajaingia ndani ya eneo la makaburi. Pamoja na kuyajadili maelezo na Ushahidi wa pande zote mahakama hii imeweza kumkuta mshitakiwa anayo hatia kwani aliuza eneo hilo na muda mrefu umepita bila mzozo wowote kwanini tena awaambie ndugu kuwa hakuuza baadhi ya maeneo wakati waliuza wakamaliza. Kwa maoni hayo mahakama yamkuta mshitakiwa anayo hatia kwa kosa la kuingia kwa jinai k/f cha 299I1) cha kanuni ya adhabu sura 16 (sic). (Rose. Y. Mashala-Hakimu) 2/08/2023.’ In my view, the above-quoted passage is not a critical analysis of the evidence adduced by the appellant and

the respondent during the 6 trial. Further, since there was no analysis, the decision was premised on no reason. However, it is settled that the first appellate court is bound to step into the shoes of the trial court by analyzing the evidence adduced and coming to its conclusion. This position was enunciated in a plethora of authorities including the case of R.D. Pandya v. Republic [1957] EA 336 where the defunct East African Court of Appeal had this to state: ‘It is a salutary principle of law that a first appeal is in the form re- hearing where the court is duty bound to re- evaluate the entire evidence on record by reading together and subjecting the same to a critical scrutiny and if warranted arrive to its own conclusion.’ In his appeal to the first appellate Court, the appellant advanced the following grounds: 1. That the trial court erred in law and fact for failure to consider that the respondent failed to prove his case beyond a reasonable doubt.

2. That the trial court erred in law and fact for failure to consider the evidence adduced by the appellant and instead consider the false evidence adduced by the respondent. 7 3. That the trial court erred in law and fact for entertaining the case without jurisdiction since the dispute was on land matters between the appellant and the respondent.

4. That the trial court erred in law and fact for failure to consider that the graves that were in the disputed land did not belong to the respondent and was not supposed to destruct them. From the four grounds, the first appellate Court came out with a three-page judgment. In reaching its decision, the first appellate court had this to state: ‘Katika kuangalia kama ni mgogoro wa ardhi jibu ni Hapana kwa sababu hakuna mvutano wa umiliki wa ardhi ambao unaonekana zaidi ya kwamba ni mgogoro wa makaburi ambayo yapo kwenye ardhi ambayo mtu mwingine ameshauziwa na ni mmiliki halali wa eneo hilo. Kigezo kikubwa kwenye shtaka la kuingia kwa jinai ni umiliki wa eneo husika linalodaiwa kuingiliwa kwa jinai. Hakuna ubishi kuhusu kwamba mjibu rufaa ndiye mmiliki wa eneo husika na hakuna ubishani juu ya hilo. Mahakama hii imejiridhisha ya kwamba shtaka katika Mahakama ya 8 mwanzo lilithibitishwa bila ya kuacha shaka lolote. Mahakama ya mwanzo ilikuwa na mamlaka ya kisheria kusikiliza shauri hili. Kufikia hapo, Mahakama hii inatupilia mbali rufaa hii na maamuzi ya Mahakama ya mwanzo yaendelee. Kila upande ubebe gharama zake. (E.J. Kimaro-SRM) 09/01/2024.’ With respect, from the above passage, the first appellate court abdicated its duty to analyze the evidence and come to its findings. What it did was to state its position without stating why it came to that conclusion. In essence, the

first appellate court did not resolve the complaints of the appellant which are reflected in the four grounds for the appeal. One may argue that the parties’ submissions were not useful as they did not make long submissions to expound their stances. However, when the Court is faced with that situation, it must thoroughly go through the grounds of appeal and do justice. Courts of law are for doing justice regardless of the quality of the submissions. I understand that sitting as the second appellate court, this Court may step into the shoes of the first appellate Court and reassess the 9 evidence adduced in the trial court and form its opinion. I am further of the understanding that reassessment of the evidence is not automatic in circumstances where there is a concurrent finding of the facts by the trial and the first appellate courts. In such circumstances, the second appellate may step into the shoes of the first appellate court if there is a misapprehension of the evidence and the law. Likewise, I am aware that the second appellate court has the discretion to either step into the shoes of the first appellate court and analyze the evidence or remit the matter to the first appellate court for rehearing of the appeal. See: Hassan Mzee Mfaume v. Republic [1981] T.L.R.

167. As I hinted, the trial court did not analyze the evidence adduced by the parties. Likewise, the first appellate court did not reevaluate the evidence adduced during the trial. They only came to concurrent findings without evaluating the evidence. Further, the grounds advanced by the appellant were not resolved clearly by the first appellate court. In such circumstances, I am of the view that I cannot step into the shoes of the first appellate court to re-evaluate the evidence that was not evaluated by the two lower courts. In the same spirit, I distanced myself from dealing with a second appeal that arose from the first appeal which was not fully determined. In my opinion, what was done by the two lower courts was fatal and cannot be saved at this stage. 10 Intrinsically, the impugned judgment cannot be stomached. Hence, without going into the merits of the instant appeal, I have no option, but to quash the first appellate court's proceedings and set aside the judgment. Consequently, I order that the record in respect of Criminal Appeal No. 11283 of 2024 be placed before the Magu District Court for its fresh expedited disposal before another Magistrate. No order as to costs. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 27th of September, 2024.

KS KAMANA

JUDGE 11