20150525 TZHC Mwanza

( . II\;! THE HIGH COURT OF TANZANIA AT MWAINZA C~IMINAl APPPEAl N0~134/ 2014 (Originating from Criminal case no.14/2014 at Tarime District Court) . . ST 1. NYERERE SAN GAYA @ MARWA ..•••.••••.•..••••••...•• 1 APPELLANT 2. CHACHA NYAMAKOMU @ MARWA .•.•.. ~ •.••••••••••• 2No APPELLANT VERSUS THE REPUBLIC ■ Il ■■ I: ■ ■ 1!11111111111 ■ I ■ 11 Dlltl ■ 111111111 DIDB ■ ll 11 ■ 1111 ~ I I • • • I i • • 11 ■ I ■■■ 11 ■ 11RESPONDENT JUDGMENT Of THIE COURT 28/4/2015 & 25/5/2015 GWAE, J.: The· District Court of Tari me tried a criminal charge· of malicious damage of property c/s 326 (1) of the penal code cap 16 of RE 2002 . . ' '"'-'c against the accused persons now appellants. The appellants patently .denied havihg involved in the· commission. Having been satisfied with the prosecution evidence, the trial court convicted both appellants and subsequently sentenced them to two years imprisonment and in addition to 2 years imprisonment payment t o ~ 1 complainant (Mwera Mwita) as compensation in the tune of ·( 1,155,000/=each was ordered. The -appellants, dissatisfied ·with trial court decision preferred this appeal by filing a joint petition of appeal which contained eight (8) grounds of appeal, the appellants' grounds of appeal can basically be summarized to form three grounds as herein below: 1. That the trial court erred in law· and fact by finding that the charge was proved beyond reasonable doubt. 2. That the trial court erred in law and fact by overlooking the fact that the appellants were on the material date not identified. 3. That the trial court erred when failed to draw an adverse inference against the prosecution case following contradictions of evidence adduced PWl and ·PW3 in regard to alleged · demarcations. During hearing of this appeal, the appellants who appeared in person added nothing to their petition of appeal while Ms. Mwaseba, the learned state attorney, who appeared for the Republic submitted that the trial court decision was legally founded as the appellants were identified at the scene of crime adding that the appellants willfully and unlawfully damaged o r ~ 2 destroyed the complainant's plaints as charged as they were aware of the Ward tribunal decision. Befo~e responding to the complaints advanced. by to appellants, it is found prudent to briefly venture on the facts of the case before the trial court. Facts are to the effect that on 29 th December 2013 at Mrito village within Tarime _District, the appellants not arraigned to the trial court willfully and unlawfully cut various sisal trees, forest and trees euca trees all valued at Tshs. 2,310, 000/= That the appellants and complainant (PWl) had a land dispute before Kemambo Ward tribunal registered as 'shauri no. 28/ 2011' and the decision of the ward tribunal was delivered on 1/11/2012. That copy of the decision by the tribunal was attached in the petition which was not opposed by the respondent's representative and it shows that the 1st appellant was a party to the proceeding pursued by the tribunal was a 3rd respondent the same was received by this court by virtue of section· 369 of CPA however it is evident from the tribunal decision that the 1st appellant won the case unlike others (1 st and 2nd respondent) while the 2nd appellant was not a party to the proceeding at the ward tribunal. ) ~ 3 Now turning to the 1st appellants' ground of appeal, it is undoubtedly . C. true that in our. law there is a higher standard of proof in criminal cases than in civtl cases, but this .is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt (see Saasita Mwanamaganga v.R Criminal appeal No. 65 of 2005, Court of Appeal (unreported), but there may be degrees of proof within that standard but each degree requiring that standard is to meet proof beyond reasonable doubt, · In Mamulobn IHlasadi v.Uganda, Criminal appeal no.16 of 1997, the ·Supreme Court of Uganda among other things held inter alia that: "No offence -is so grave as to require a higher degree of proof and none is as minor as to require a lower degree of proof, than the we/I-established standard ofproof beyond reasonable doubt'~ Standard of proof being as rightly stressed in various judicial decisions, essence of legal requirement is to avoid convicting an innocent person. Evidence on the record in respect of the offence of malicious damage of property is that the appellants were seen by PW2 destroying the PWl's plants and that there was land dispute between 1st appellant and the PWl ) ~ 4 which was resolved by declaring that the PWl was the owner of disputed (· land however unusual tribunal decision was also made to the effect that . the_ 1st appellant was a lawful owner of the disputed land, for clarity I wish . . to quote part of the ward tribunal decision . . ''Mdai Mwera Mwita (complainant in criminal case) linalomilikiwa kinyume na Mdaiwa Kichere Maseja (1 st respondent in land dispute) na eneo linguine linalomilikiwa na mdaiwa Rabi Sagaya (Z1d respondent) mdaaiwa no.3 {1 st appellant) Nyerere Sangaya pia kulingana na maoni ya wajumbe watatu wamefuta dai la mdai kwake na kuamuamuru mdaiwa kuendelea kutumia eneo lake (under bracket supplied)'~ Looking at the nature of the charge and nature of the tribunal decision, I am compelled to find at least there was a need of other proof that the trees allegedly damaged were not ·at the land declared to be of the 1st appellant, here clear demarcation was necessary, if the tribunal visited the locus in quo which is not the case here as it is clear that the decision of tribunal was not conclusive in respect of the Complainant and the 1st ~ appellant. 5 PW1 Xx by 1st appellant. I won the case on that C ve,y· land at the ward tribunal PWl. Re=exam by PP. ... there was land dispute but I won the case I won even ·the land appeal ·no. 9/2013 Xx :!'d appellant ... I did no see you uprooting PW2 xx bylst appellant. I am not aware whether you claim over that land. With the evidence on record I am quite unable to hold that the case was proved beyond reasonable doubt as there is a lot left by the prosecution to be desired for instance a piece of land the 1st ·appellant was declared lawful owner ought to have been established, thus the trial court holding that the appellants were guilty even if the land disputed was not yet determined, to my view, and in respect of the circumstances . surrounding the matter, was wrong since subject matter was sisal trees ordinarily used for demarcation, it was therefore necessary to establish if the trees alleged destroyed were in the formerly disputed land or not as the tribunal awarded . both the 1st appellant and the complainant. . Since the accused persons are always not found guilty on the basis of their defence weakness but indeed on the strength of the prosecution evidence and since the prosecution is found to have not sufficiently ~ 6 . established the fact that the damage alleged caused by the appellants was (.·-. _committed at different place (s) other than one· given to the 1~ appellant ·by the w~rd tribunal in order that he could proceed quietly using it or the same piece of land that was initially in dispute. The PWl (complainant) is found stating that there was an land appeal no. 9/2013 but even though the aggrieved parties in land case no.28/2011 preferred an appeal to the District Land and Housing Tribunal as it could also follo'w that not necessarily the 1st appellant to· be aware of such appeal and its decision since the lower tribunal had already decided in his favour. In view of reasons stated above, i unhesitatingly, find that the appellants' guilty was not proved beyond reasonable doubt, consequently, the trial court decision and. imposed sentence are hereby quashed and set aside respectively, the appellants are now to be released from prison forthwith unless withheld therein with different indictment. It is ordered accordingly. ~ G , 25/05/2015 7 25/05/2015 8