nazareno kihaga vs republic 2013 tzhc 2038 15 february 2013

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (Iringa Registry) (DC) CRIMINAL APPEAL NO. 12 OF 2012 (Originating from Criminal Case No. 193 of 2011 of the District Court of Iringa District at Iringa Before F.S.K. Lwilla- P.D.M.) NAZARENO KIHAGA................ APPELLANT VERSUS THE REPUBLIC...................RESPONDENT (Date of last Order 5.12.2012 Date of Judgement 15.2.2013) JUDGMENT KIHIO, J. The appellant, Nazareno s/o Kihaga was charged with and convicted of Malicious damage to property contrary to Section 326 of the Penal Code, Cap. 16 R.E. 2002 in Iringa District Court. He was sentenced to a fine of TShs.300,000/= or twenty four months imprisonment in default of payment of fine. It was further ordered that he should compensate the complainant a sum of TShs.3,653,400/= being the value of the destroyed property. 1 Dissatisfied with both the conviction and sentence, the appellant came to this court in this appeal. The particulars of the offence in the trial court alleged that the appellant on 18.4.2011 at about 08.00 hours at Mwang’ingo area within the municipality and region of Iringa willfully and unlawfully destroyed the house of Bruno s/o Mahinya valued at TShs.3,653,400/ = Felix William Nzali (PW.l) told the trial court that he was the ten cell leader at TRM Dodoma road Mwang’ingo area and the appellant had a Pombe Club at that area. He further told the trial court that in 2009 he knew that the Pombe Club which was owned by the appellant had been sold to Bruno Mahinya as the said Bruno Mahinya started paying contributions and cess. He informed the trial court that the house sold to Bruno Mahinya was on Plot No. 392. He explained in the trial court that on 12.4.2011 at 6.00 a.m. he received a phone cess from Bruno Mahinya and when he went to the area where Bruno Mahinya was phoning he (PW.l) was told that there was a man who wanted to destroy Bruno Mahinya’s house. He went on to explain that on 8.4.2011 the appellant and two boys appeared at Bruno Mahinya’s house and he (PW.l) told the appellant that he should stop destroying the said house until he (appellant) and Bruno Mhinya met. He stated that the appellant pushed him and destroyed the small house. He further stated that he phoned to Bruno Mahinya who appeared at the Scene of crime in the companion of Policemen and arrested the appellant in his 2 , presence after he (appellant) ran away. Bruno Wilson Mahinya (PW.2) told the trial court that on 31/8/2009 the appellant sold to him his (appellant’s) house No. 392 which was used as a Pombe Club. He further told the trial court that the sale agreement was made before witnesses and the sale agreement (Exhibit P. 1) was prepared by the Village Executive Officer (VEO), Mr. David Swebe (PW.3). He explained in the trial court that some of the contributions from the said house was sent to the VEO and others to the ten cell leader (PW.l). He further explained that on 18.4.2011 he received information from PW.l that his (PW.2’s) house was destroyed and so he (PW.2) went to the Police Station to report. He said that he witnessed the appellant destroying the walls of his (PW.2’s) house and when he (PW.2) was approaching the said house the appellant started to run away but he (appellant) was arrested by the police. He went on to say that the appellant destroyed the walls of the small house at the entry of the electric power and he (appellant) caused damage of TShs.3,653,400/=. In cross-examination by the appellant he informed the trial court that he started business in house No. 392 on 1.10.2009 and he was still conducting business in the said ' house. Davis Swebe (PW.3) gave testimony in the trial court that he was the VEO at Dodoma Road TRM Street and the appellant owned a Pombe Club at house No. 392. He further gave testimony that on 31/8/2009 the appellant who was accompanied by his (appellant’s) son, Ishaka Kihaga appeared in his (PW.3’s) office and told him (PW.3) that he wanted to sell his .(appellant’s) house No. 392. He explained that they went to the house of Bruno Mahinya (PW.2), the purchaser of the said house and the appellant sold his (appellant’s) house No. 392 to PW.2 at a price of TShs.20,000,000/=. He further explained that he took a paper and prepared the Sale Agreement (Exhibit P. 1). He said that one day, after five to six months from the day the sale agreement was made, the appellant told him that he (appellant) had received a letter from Tanroads asking him (appellant) to demolish the house he (appellant) had sold to PW.l. He went on to say that he advised the appellant to contact Bruno Mahinya (PW.2), the purchaser of the said house as that house was no longer his (appellant’s) property. Regina Chaungo (PW.4) gave testimony in the trial court that the appellant sold his house on Plot No. 392 to Bruno Mahinya at a price of TShs.20,000,000/= and she signed in the Sale Agreement (Exhibit P. 1) as a witness. She further gave testimony that on one day she was informed by Bruno Mahinya that the house was demolished and when she went to the said house he witnessed that part of the said house had been demolished. No. G.8770 - D.C. Steven (PW.5) gave testimony in the trial court that on 18/4/2011 at 9.00 a.m. when he was on duty in the investigation office he was called by his, boss and ordered to go and arrest the culprit who broke Bruno Mahinya’s house. He further gave testimony that he (PW.6), PC. Omary, PC. Fales, DC. Wambura 4 » ' and Bruno Mahinya (PW.2) went to the Scene of crime at Mwang’ingo area Kihesa. He explained that on approaching the Scene of crime he saw the appellant and other people demolishing the wall of PW.2’s house and the appellant and the other people ran away. He further explained that the appellant was arrested when he was at a distance of 70 paces from the Scene of crime and he (appellant) was taken to the Police Station. The appellant gave testimony in his defence that in 2009 he sold his house situated at Plot No. 392 Mwang’ingo area to Bruno Mahinya (PW.2) and the Sale Agreement was put in writing. He further gave testimony that the Club was in house No. 392 which he sold to Bruno Mahinya (PW.2). He explained that on 18.4.2011 he went to demolish his house and he was arrested while demolishing his house. In Cross-examination, he .told the trial court that there was truth that he sold house No. 392 to Bruno Mahinya (PW.2) and the house was a Pombe Club. He went on to say that the demolished part of the building was used as a Pombe Club by Bruno Mahinya (PW.2). Leonard Anania Mdeka (DW.2) told the trial court that in 1996 he went to the appellant and seek a chance to conduct pombe business in his house no. 392 and he built a hut for his business. He further told the trial court that in 2009 the appellant told him that house No. 392 had been sold. He explained that in 2011 they got a notice from TANROADS to demolish the huts and on 1/4/2011 he decided to demolish his hut. In cross-examination by 5 the Prosecutor he said that the owners of the house was receiving house rent. He went on to say that the huts were within the plot of house No. 392. Isikaka Nazareno Kihaga (DW.3) told the trial court that in .2009 the appellant sold house No. 392 to Bruno Mahinya (PW.2) and he (DW.3) witnessed the Sale Agreement. He further told the trial court that the hut was destroyed by the appellant. Rahel Ng’amilu (DW.4) told the trial court that the appellant sold house No. 392 to Bruno Mahinya (PW.2). She further told the trial court that the appellant received a letter from TANROADS and started to demolish the huts outside the sold house. In Cross- examination by the Prosecutor she stated that the appellant ran away after seeing the Police the fact which showed that the house did not belong to him. The trial Principal District Magistrate found that the appellant’s act of demolishing the house which did not belong to him was willfully and unlawfully. The appellant raised four grounds of appeal in his Petition of Appeal. The grounds of appeal are:- 1. That the trial court erred in law and fact in holding that the appellant willfully and unlawfully destroyed house No. 392 Mwang’ingo area Iringa municipality; 6 \ 2. That the trial court erred in fact for failure to hold that on 18.4.201 the appellant was demolishing the huts standing on road reserve pursuant to the NOTICE from TANROADS; 3. That the trial court erred in law and fact in sentencing the appellant to pay a fine of Tshs.300,000/ = or 24 months imprisonment in default while the offence charged was not proved beyond reasonable doubts; and 4. That the trial court erred in fact to order the appellant to pay the complainant compensation at a total of TShs.3,653,400/= while the property destroyed did not belong to the complainant. The appellant is represented by Mr. Onesmo Francis, learned Counsel while the respondent, Republic is represented by Mr. Matitu, learned State Attorney. In support of the first ground of appeal, Mr. Onesmo Francis argued that the property allegedly destroyed was in the road reserve and it was a house whereby the appellant had a Demolition Order from TANROADS. He further argued that the destroyed hut was not part of house No. 392 which was bought by the complainant. He contended that on 18.4.2011 the appellant acted as per Demolition Order and so the appellant did not willfully and unlawfully damaged the property. He referred this court to the cases of 7 $ Hassan Mabena V. Zakaria Sengo, (PC) Criminal Appeal No. 3 of 2011, H.C. Iringa registry (unreported) and Lawrent Mateso V. Republic (1996) T.L.R. 118. In support of the second ground of appeal he submitted that the appellant destroyed the hut standing on the road reserve on 18.4.2011 as directed by the TANROADS. In support of the third ground of appeal he argued that the elements of willfully and unlawfully damage to property were not proved beyond reasonable doubt. In support of the fourth ground of appeal he argued that the property damaged was not belonging to the complainant. On the other hand, Mr. Matitu supports the conviction and the sentence imposed on the appellant. As regards the first ground of appeal, Mr. Matitu argued that the prosecution side proved beyond reasonable doubt the two elements on the offence of malicious damage to property, that is willfully and unlawfully damage to property. He further argued that PW.2 told the trial court that he had bought house No. 392 from the appellant and he (PW.2) produced in court the Sale Agreement (Exhibit P. 1). He contended that the appellant was no longer lawful owner of the said house. He further contended that the submission that the appellant was acting as ordered by TANROADS has no basis. He submitted that the allegation that the appellant was destroying a property which was on road reserve has no basis and the appellant damaged the property which was not belonging to him. He further submitted that the witnesses testified that the destroyed hut was part of house No. 392 belonging to the complainant (PW.2). As regards the second ground of appeal he submitted that as already shown the damaged property was part of house No. 392. He further submitted that there was no evidence from TANROADS that the destroyed property was TANROADS’ property. As regards the third ground of appeal he submitted that there was sufficient evidence that the appellant willfully and unlawfully destroyed the complainant’s property. He argued that the evidence of PW.l to PW.6 proved that the appellant willfully and unlawfully destroyed the complainant’s property and so he (appellant) committed the offence of malicious damage to property. He further argued that the evidence of DW.2 and DW.3 showed that the appellant destroyed the hut belonging to the complainant (PW.2). As regards the fourth ground of appeal he submitted that the trial court was satisfied that the appellant destroyed the complainant’s property. The first issue for determination in this appeal is whether the appellant demolished the house standing in the road reserve 9 pursuant to the notice from TANROADS or not. It was in the evidence of the prosecution witnesses, Exhibit P.l, the evidence of the appellant, DW.2, DW.3 and DW.4 that house No. 392 was sold to PW.2 by the appellant. The appellant did not adduce evidence to establish that the house he (appellant) destroyed was in the road reserve. Neither did he produce in the trial court as an exhibit any notice allegedly issued by TANROADS for the demolition of PW.2’s house. From the evidence adduced in the trial court, the appellant did not raise any reasonable doubt that the house he destroyed was not belonging to PW.2 and that the said house was in the road reserve and so he demolished it pursuant to the Notice from TANROADS. I, therefore, do not agree with Mr. Onesmo Francis that the property allegedly destroyed was in the road reserve and the appellant had a demolition order from TANROADS. The second issue for determination is whether the guilt of the appellant was proved beyond reasonable doubt or not. It is the law that in order for the accused to be convicted of malicious damage to property the prosecution side has to prove that the accused had willfully and unlawfully damaged the property (See the case of Yusuph Hussein V. R. (1969) H.C.D. 36). In the case of Hassan Mabena V. Zakaria Sengo, (PC) Criminal Appeal No. 3 of 2011, High Court Iringa registry 10 (unreported), referred to this court by Mr. Onesmo Francis, this court held-that:- aunless it is shown that the appellant willfully and unlawfully destroyed or damaged the respondent's property, the mere evidence that the respondent's property was destroyed by the appellant's cattle, goats and sheeps is not enough to prove malicious damage to property *. In the instant case, there is strong evidence, as evidenced in the evidence on the prosecution side witnesses, Exhibit P. 1 and the appellant’s side witnesses that house No. 392 was sold to PW.2 by the appellant. The evidence of PW. 1, PW.2 and PW.5 is strongly supported by the appellant’s evidence and the evidence of DW.3 that the appellant destroyed PW.2’s house. It was in the prosecution case that when PW. 1 requested the appellant to stop from destroying PW.2’s house he (appellant) pushed him (PW.2) and he (appellant) proceeded to destroy the said house. It was also in the prosecution case that the appellant ran away as he saw PW.2 and the Police coming to the scene of crime when he (appellant) was destroying the said house. As already stated, the appellant did not produce in court as an exhibit any Notice from TANROADS which permitted him to demolish PW.2’s house and he (appellant) did not adduce evidence that the 11 destroyed house was in road reserve. From the evidence available the appellant had no claim of right to the destroyed house and therefore he willfully and unlawfully destroyed PW.2’s house. The case of Lawrent Mateso V. Republic (above), referred to this court by Mr. Onesmo Francis, is distinguishable here. In the case of Mateso V. Republic (above), the applicant was armed with an official document which supported his claim of ownership of the disputed plot while in the present case the appellant has no claim of right on the destroyed property. Accordingly, I am satisfied that the appellant was correctly convicted. With regard to the sentence, it was by no means excessive for the offence attracts a maximum sentence of seven years imprisonment. For the foregoing reasons, this appeal fails and is accordingly dismissed in its entirety. S.S.S. KIHIO JUDGE 15.2.2013 12 fcCourt:- Judgment delivered in the presence of Mr. Onesmo Francis, learned Counsel for the appellant and holding brief for Mr. Matitu, learned State Attorney. N ‘A S.S.S. KIHIO % \*'\ *v < V-£.'\ JUDGE *!u,i t>u v- , « ^ ,t ivj} 15.2.2013 v: \ x ' , ...... V. .... x 13