19860606 TZHC Dar es Salaam

BT THC HIGH COURT OF Ti,rTZ.!'ilITL AT DAR ES SALi'..tilI .APJ?ELL.ATE JURISDICTION HIGii COlffif CRII.'IHJAL LPE.;J1L .NO. 34 Ol' 1986 ORIGINAL CRI'.MIUAJ, 01:r-::;1; no. 80 Oli' 1986 (Originnl of the District Court. oi i·Iorogoro District at Tuiorogoro) Before K•.A .Kulolelo., Dintric_t ii'.'.2girst1·2te versus TII:3 UNI TED REPUBLIC ........................ .,JI ·;::JJ?OllJDENT JUDGDMENT The appellant, lVIilakwa Kijaji, '.'1as convicted by the rJ.orogoro district court of two counts: Criminal trespass nnd malicious damage to property 1 contrary to sections 299(a) I and 326 (1) of the Penal Code. He 1K1S sentenced to concurrent sentences of six months and two ye2rs imprisonment, respective- ly. He now appeals. , The prosecution evidence estabJ.ished that a paddy farm .. belonging to PW1 Abdallah LTahal:rngnde vms destroyed by some cattle, Not a single witness s2w the appellant anJ'~here near the trespassing cattle al thou{Yl some· hoof m:wks were seen be tween the shamba and the appellant's house., It nas assumed they were the appellant I s cattle Hhich had d8.ii--iaged the crops be cause of' 0 the hoof marks, But the nppellant denied the charge and even said-that there was a herdsman who w:::ed t.o grc1.ze the cattle, alth- ough the appellant some times assisted the he1·dsmm;i.. When. the court ·vfsi ted the appellant I s house, it nas observed that the cattle boma was not well built and the tri2.l court found as· a fact th.at cattle could have escaped fron the ;3tn ble without the knov,led~e of the appellant. Ho1"1ever, tlle court convicted the np~1ella-,1t and sentenced him as 2bove. Er. Mo.ssati, learned counsel fo1· the o.:ppellant, submitted tlmt thE- 1 charge was not proved .and tl1:-\t the· trial m::1gistrate misdi:cee: ted himself on the ing:..·edicnts of the offence. As nlready 3tated, none o:t' the prosecution ;~_·i tnesses saw the appe- .. llant nhere the cc.ttle v,cre dm:1agin;3; -c:10 crops, The offence of 2/ •.•••• / \ - 2 - crin\inal trespass is proved by evidence that the person charged actually 11 un+awf'ully enters·· upon the p1·operty with intention to commit an offence, to intir.:id~te, insult or annoy 11 • In this case there was no evidence c.t ~11 th2,t the appellant had i;enteredi' the complainant's pac1dy fc:,rm, let :.clone to intimj_date annoy or 1 insult. T~1.e· c.-,,ttle may have eoc::cpcd :'rorn. the ccittle boma and went to the paddy farm on .their o·:·,1.1 as to trial magistrate found in his ! judgement. It is also possible that the herdsman hnd regligently left the cattle to strny onto the paddy fs.rm~ :Jut clearly, there was no evidence whatsoever that the appellant bad entered the farm or had unlawfully let the cattle onto the fnrm~ It was alleged that after the crops were dawiged the appellant thre·atened the prosecution vii tnessoo by telling tlc.em he was the lien of the town. That could not be baaed ao evidence of intir2idation to prove the charge of criminal trespHss because the alleged intim:f.dat;i.on was after the cattle had damaged the crops. . The appe Hant himself was not found where the cattle were (1.cu:,r.gir.ig the crops so it was not proved who had sent the cattle there or whether they ,vent on their own. '.l.b.e second count, 'that of malicious dPm2ge to property contrary to section 326 (1) of the :c>ern:·,l Code, vias also not proved. To pl:'OYe that, the prosecution .should h2.ve established that the appellant 11 wilfully11 and unlawfully; 1 co.used the d2rw.ged the paddy:, or that he had "willfully" aliowed the cdtle to d2JI1age the paddy in the farm. The appellant was not ;n·eGent 8.t the scene and those cattle could have damaged the crops on their ovm. This appeal is c(lloned.. The conviction which is not supported by the Republic is quashed_, and the sentence is set aside. The appe .. llant should be released from custody forth½~th unless he is otherwise lawfully held. I~ ·. . ~l\_/..V. V• fl· ( ~.,: oJ .I-Il:IfJ/~) J;_;:::;er;. Dar es Salaam 6th June, 1986.