DC CRIMINAL APPEAL NO

© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) DC. CRIMINAL APPEAL NO. 43 OF 2023 MOSID S/O TALIEPO @KAVUMBIKO AND JONAS S/O MALIYATABU . COMPLAINANT /APPELLANT/ APPLICANT/ PLAINTIFF VERSUS REPUBLIC RESPONDENT / DEFE1''DANT JUDGEMENT Fly Notes Facts Ratio Decidendi 13th of May 2024 Hon, RWIZ ILE.: This appeal arises from the decision of the District Court of Kigoma in criminal case No. 135 of 2022. The; · · appellants were prosecuted, convicted, and sentenced to five years imprisonment on the offence of forcible entry into the land of Halfan Amir in a violent manner by applying actual force to Jinumbu Mbiti and Shija Ngika, contrary to sections 85 and 35 of the Penal Code, and for causing grievous harm to Jinumbu Mbiti contrary to section 255 of the Penal. This offence was against the first appellant. However, the sentences were ordered to run concurrently on the first appellant. Not satisfied with both conviction and sentence, they have appeared before this court in protest. In the service of Mr. Moses Rwegoshora learned advocate, the appellants advanced five grounds of appeal coached in terms as hereunder; I. That, the learned trial magistrate erred in both law and fact in convicting appellants on the offence of forcible entry based on the prosecution case while the prosecution failed to prove the offence beyond a reasonable doubt. Page. 1 Hon. AUGUSTINE RWIZILE 2. That, the learned trial magistrate erred in both law and facts by convicting the appellants on forcible entry and not considering the appellants' defence which shows that there is an ownership dispute between the appellants and one Ha lfan Amir. 3. That, the trial Court grossly erred in law in excessively sentencing the appellants who are first-time offenders, to serve jive (5) years jail term for the 1st count of Forcible entry, while the underlying punishment falls under section 35 of the Penal Code which provides for an option ofpaying a fine. 4 . That, the learned trial magistrate erred in both law and fact in convicting and sentencing the /st appellant on the offence of doing grievous harm while the pro secution failed to prove the offence beyond a reasonable doubt. 5. Th at, the learned trial magistrate erred i11 both law andfacts by not considering the alibi defence of the first appellant. The respondent, Republic was in the service of Ms Flora Lucas learned State Attorney who contested the appeal. Mr. Rwegoshora argued the 1st and 2nd grounds together and stated that the charge was not proved beyond any reasonable doubt. He said the appellants were found gu ilty of forcible entry contrary to section 85 of the Penal Code. The prosecution had to prove two things. one, the accused to have entered the land to take possession, and second, the land must be the property of the other person. He argued that Pwl, Pw2, Pw3, and Pw4, said, the land belonged to I-Ialfani Amiri. It was Amiri Halfan who had to prove that land belonged to him. According to him, he testified as Pw5. He called himself Halfan Amir Ntahondi, a different name from that in the charge sheet. His evidence was a contract and letter of offer which did not have his name or those three others named in the deed of gift. In 'cross-examination, he said, the same admitted the offer had the names of the previous owners, not his name. Since that land is surveyed and has an offer and therefore those whose names appear in the offer are ·lawful owners of the said land, the learned counsel stated. The sale contract or deed of gift in the said land cannot be said to be good titles until the transfer is made. He asked me to refer to the case of Jane Kimaro vs Vicky Adill (Administrator of the Estate), Civil Appeal No. 212 of 2016 on pages 12 to I 4. He said ownership was not proven. In his defence, he added, Amiri said, he owns 25% of the land. He then said the 25% was trespassed into by the appellants. His evidence, according to the learned counsel is hearsay because he was not at the same place and that co-owners did not appear to prove the 25%, he claimed was trespassed into. The learned counsel went on arguing, Pwl-Pw4 said, the land belonged to Amir, but he said, he owned 25%. The deed tendered in court was prepared by the office NPS who also came to tender the same in court. He said it is believed the same was done for the case, not a true thing. Further, he said, there was no evidence to prove that the appellants aimed at taking possession. The appellants gave evidence that they were given land by Kamati ya Uzalishaji Mali of Mgambazi village. They were given a customary land (hati ya kimila) (Dl and D3) in 2001 long before the offer was given to Amir. Dw3 told the court and proved that it belonged to them. He was the Chairm an of the M gam bazi village. The appellants honestly believed they were owners of the same land. Dealing with the 3rd ground, the learned counsel argued that the offence charged had an option of a fine. The appellant, he added, were sentenced to 5 years which contradicts sentencing guideline 2023 on general Page.2 Hon. AUG'OSTINE RWIZILE principles of sentencing. 1.1 (i) provides that the first offender has to be given an option of a fine. Mr. Moses argued ground 4, that the 1st appellant was convicted for causing grievous harm to Pw3. The PF- was shown the complaint was injured in an armed robbery incident but the charge leveled against him is grievous harm. He further said Pw3 did not say where he was injured. Pwl and Pw2 said, Pw3 was wounded in his head. Pw4 said, said he was wounded in the face and did not specify the specific part. The evidence is not clear on identification because there were many people in his view, all this affected the case. Pw4, Mr. Moses added, It was testified that the first appellant-was wearing a red shirt, while Pw2 and Pw3 said the 1st appellant was wearing a white shirt. This is doubtful. The instrument used was alleged seized but, in the certificate, there were many things seized. According to him, there was no evidence proving it was the same panga that was used to cause harm. Still, he said, when cross-examined, he said, the panga used had a red handle. He said, the offence was committed in 2021 and witnesses testified in 2023, which is difficult for Pw8 to remember this incident clearly. The learned counsel argued further that, Pw9 testified but did not say where was Pw3 wounded. Pw9 is the medical doctor. He said he attended them. His evidence was like that of Pw8. There is no· evidence whatsoever according to him, showing that the 2nd appellant wounded Shija Ngika. He said the PF-3 shows he sustained harm but was convicted of grievous harm. On the last ground, it was the view of Mr. Moses that, the defence of alibi was not considered, even though the prosecution said it was not raised in time. He submitted, the evidence of Pw8 arresting officer was that there was nobody at the crime scene. He said, he arrested some people at the dispensary. The trial magistrate, he further cemented bad to consider all this in the judgement. The learned counsel finally asked this court to allow this appeal In the view of Flora Lucas learned state attorney, the evidence proved three elements of the offence which are, one there must be entry, two that it was by force and three, that he ought not to prove they are owners or unless they are his servants. According to her, Pwl , Pw2, and Pw3 were cultivating the sharnba of Alfan Amir and were attacked by the appellants. The 2nd appellant testified that he was in the shamba cultivating, he proved so. Pwl-Pw3 said they were attacked by the appellants with pangas and sticks. The 1st appellant chased Pw3 and . wounded him and then he left after being wounded. The 2nd appellant wounded Pw2 for similar goals. The learned counsel went on to say, the prosecution proved that Pwl to Pw3 were not employed by the appellants. She further said, the offence charged was not trespass and there was no need to prove ownership. The case cited, in the view of the learned counsel is distinguishable. The charge was proved beyond doubt, she said On the 3rd ground, the learned counsel argued that the sentence imposed is under section 35 of the Penal Code. In his view, sentencing is the domain of the trial court, and it may be interfered with if there are reasons to do so as held in the case of. Swalehc v R [1994] TLR on page 94. The reasons may be if the punishment is excessive, inadequate, made under a wrong principle of sentencing, or where it over\ooked a material factor. According to the learned Attorney, the sentence imposed was adequate and did not mitigate that they were first offenders. Ms. Lucas argued ground 4, in terms that, Pw3 was a victim, he was attacked, and it was done during the daytime. Pw3 said, according to her, was chased by the 1st appellant and was attacked. He was injured and lost P ag e. 3 Hon. AUGUSTINE RWIZILE h is c on s c iou s n e s s a n d b ec am e s o b er w h e n in th e h o sp ita l. P w 9 s a id , he wa s s erio u s ly w o und e d a nd w as inj ur e d b y u s ing a sh arp o bj e c t. Pw 3, sh e ad d e d , m ent ione d l s t app e ll an t by hi s n am e an d kn ow s h im b eca u s e th ey liv e in th e s a m e v ill a ge . O n the qu e stio n o f a rm e d r obb e ry s ta te d in th e PF ~ 3 , the le a rn e d c ouns e l argu e d fu rt h e r , it w a s th e du ty o f p ro s ec u tio n to c on s ider ch ar ge s p rop erly a nd is no t li m ite d to w h a t is s t ate d in th e PF -3 do n e b y th e p o li ce . O n th e s e iz u r e ce rt ifi c a te , s he s a id, it ge n e r a ll y r ec o r d s s e iz e d ar tic le s , an d th e u s e fulne s s o f th e s am e in th e ca s e is don e by e v ide n c e in c ou rt a s th e pr o s e c u t ion d id . La s tl y, s h e s a id , th e d e fe n c e o f a li b i is gu id e d b y s e c t ion 1 94 o f C P A w h ic h p ro v id e s th a t a n o t ic e m u s t b e g iv e n b e fo r e th e p ro s e cutio n c lo s e s its c a s e . T h e la w wa s no t c o m p lie d w ith , th a t is w hy th e tria l c ourt d is rega r d th e s a m e . T h e le arn e d A t to rn e y a s k e d th is c o u rt t o d ism is s th is app e a l. O n a r ej o in d e r , M r . R w e g os h o r a s ub m itte d th a t t h e p r o s ec u tio n tende r e d th e d o c u m e nts fo r th e cou rt to rule o n th e is s u e o f o wn ers h ip . T h e p ro s ec u tio n , h e adde d , t e n d e re d th e a g ree m e n t th at w a s d raw n by its o ffi ce a nd u s e d a s e v id e n c e in c ourt . It was therefore material in the view of the learned counsel to have it considered by the court. On the seizure certificate, he argued, Pw8 seized the panga and does not indicate in the certificate the panga itself, and on the question of alibi, the prosecution evidence showed, there was nobody at the crime scene and that is why the defence was to be considered as it corroborates the case. It was his prayer that the appeal be allowed. Having heard the parties' submissions, it is important to note that the trial court convicted the appellants on two counts. The forcible entry being the first count under section 85 of the Penal Code. To begin with, the same law states as hereunder; section 85. Any person who, in order to take possession thereof. enters on any land or tenements in a violent manner, whether the violence consists in actual force applied to any other person or in threats or in breaking open any house or in collecting an 111111.mal number of people, is guilty offorcible entry and, for the purposes of this section it is immaterial whether he is entitled to enter on the land or not: Provided that, a person who enters upon lands or tenements, of his own but which are in the custody of his servant or bailiff does not commit the offence offorcible entry. It is explicit from the section that for the offence of forcible entry to occur one must have violently entered the land to take possession. The evidence available from the prosecution is that there was chaos between two sides competing for that land. Nearly all prosecution witnesses had it so. The defence as well was clear that land belongs to them. It is therefore clear to me that there were acts of violence to Jinumbu Mbiti and Shija Ngika whose evidence is clear and supported by their PF-3 exhibits P7 and P8 respectively. The 2nd appellant tendered exhibit DI to prove he owned the land. It is not in dispute either that the appellants have been in conflict with Halfan Amir in respect of the same land. As submitted by Mr. Moses for the appellants, it is true there is a land dispute between them. There is proof of two things, one that indeed, the appellants entered in the land in a violent manner-the prosecution evidence of Pwl, Pw2, Pw3, and Pw4 is good to that effect. Second, they did so, with the aim of taking possession of the same land. It was submitted by Mr. Moses that they Page.4 Hon. AUGUSTINE RWIZILE b e li ev ed honestl y tha t la n d b elo n g ed to th em . Acc o rd ing to th e ch arg e sh e et, th e lan d b elo n gs to H a lfan Am ir w h ich as it h as b een sh o wn th a t fac t is in d isp u te. To su m it up , th e tw o n ece ss ary in gre d ie n ts o f th e offence of forcible entry have been proved. Had the appellants entered the land peacefully, the issue of criminal trespass could have been invoked. Still, criminal trespass was not the offence charged and I think it is because of the dispute of land itself and the element of violence involved. Therefore, the first and second grounds of appeal have no merit. Before dealing with the 3rd ground of appeal, justices of this case in my view demand to deal with the 4th and 5th grounds first. The 4th ground is that the offence of grievous harm was not proved. According to the charge sheet, the 3rd count was against the first appellant who is alleged to have caused grievous harm to Jinumbu Mbiti on 2nd November 2021, the evidence on record has it that the offence was committed on l st November 2021 in terms of evidence of Pwl, Pw2, Pw3, and Pw4 who were all present at the scene of the. crime and exhibit P8, his PF-3 as the evidence of Pw9. But on 18th January 2023, there was a prayer to amend the charge sheet by the prosecution in the following terms; " ... As per section 234(1) of the CPA, I pray to make an amendment to the charge, especially on the date of the 1st and Znd counts and names ... " The court made such an amendment on the charge and seemingly, there is no such an amended chargeshcet in the record. What is clearly seen is an annotation on it made by hand on the 1st and 2nd counts. The charge sheet, which is a key pleading that commences a criminal trial should be clean without annotations to protect the sanctity of criminal trials. The best and most practical way to deal with a charge with defects is to substitute with it a clear an d clean one. But all in all, the prosecution did not amend the charge on the 3rd count, and therefore all evidence procured in respect of the 3rd count is at variance with the charge in terms of the date the offence was committed. I think, based on the nature of the case, section 234(3) of the CPA cures the mischief in the circumstances of this case. Pw9 the medical doctor who examined Jinumbu Mbiti testified that, " ...Jinumbu and Shija were injured in different parts of the bodies. I attended both of them and gave them medications according to their injuries. After their treatments Ifill the PF3 they came with at the hospital the J;'F3 states exactly what happened ... (see pages 34 to 35 of the typed proceeding) From this evidence, it can be gathered that the PF3 of Jinumbu -P8, does not show the extend of harm caused. It was only concluded that it was grievous harm , 1 ponder, there is a difference between grievous harm and hann. The difference can be stated based on the nature of the wound and its extent. The evidence of Pw9 docs not show the extent of harm it simply shows there were bruises in the forehead and stains of blood. I therefore agree that the offence charged of grievous has not been proved. One can only say there was proven an assault causing actual bodily harm. Although not charged with it this court finds, it has been proven and ought to be charged under section 241 of the Penal Code which states that any person who commits an assault occasioning actual bodily harm is guilty of an offence and liable to imprisonment for five years. I substitute the same under section 300 of the CPA. Page.5 li on. AUGUSTINE RWIZILE On the fo urth gr ound, the defence of alibi w as not con sidered as subm itted by the learn ed pro secutor, the tri al court w as justified not to do so because, the appellant d id not issue the notice as stated under section 19 4(6) of ihe CPA . I do not fi nd m erit in this groun d of appeal. It is dismi ssed. Lastly, it is the questio n of sentence on the first count. Th e first count is charg ed w ith sections 85 and 35. Section 35 creates the penalty . For cl ar ity , section 35 states as hereun der; When in this Code 110 punishment is expressly provided for any offence, it shall be punishable with imprisonment for a term not exceedtngfive years or with a fine or with both. It goes w ith out saying th erefo re that the sentence of five years im posed on the appellants is ill egal. It is cardinal that w hen the law prov ides an option of fine, the court has the duty to impose it, unless fo r the reason s recorded in the pro ceedings, it considers it not appro priate. T he tr ial court did not record any reason and so the sentence w as ill egal. Fro m the fo re going, I find th e 3rd gro und of appeal w ith meri t. T hat being the case, therefo re, since th is is th e firs t appellate court , I have th erefo re to quash the sentences im posed on the appell ants . I set.aside th e conviction on the 3rd count. B ut in term s of section 300 of CPA , l impose a fi ne of TZ S 10 0 ,000 .00 or serv e a senten ce of 12 m onths im prisonment in defa ult. O n the 3rd count, the first appellant is to pay a 'fine of T Z S 150,000.00 or serv e a sentence of 16 m onths im pri sonm ent in defa ult. Dated at KIGOMA ZONE this 13th of M ay 2024 . AUGUSTINE RWIZILE JUD GE OF THE lflGH COURT Page.6 Hon. AUGUSTINE RWIZILE