PETER KAUSA SAMWELI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY

AT DODOMA PC. CRIMINAL APPEAL NO. 11196 OF 2024 (Arising from Criminal Appeal No. 33 o f2023 Dodoma District Court, originating from Criminal Case No. 104 o f2023 at Makang'wa Primary Court) PETER KAUSA SAMWELI............................................ APPELLANT

VERSUS DAVID MDONONDO................................................ RESPONDENT

JUDGMENT 9 hJuly & 2nd August, 2024 MUSOKWA, J. In the District Court of Dodoma, in Criminal Appeal No. 33 of 2023; the respondent herein, challenged the decision of Makang'wa Primary Court in Criminal Case No. 104 of 2023. Before Makang'wa Primary Court (trial court), the appellant was charged with the offence of criminal trespass contrary to section 299(a); and theft contrary to section 258 (1) and 265 of the Penal Code, Cap. 16 R.E 2022 (Penal Code). It was alleged by the respondent herein, that on 9th May 2023, in Mvumi Village within Chamwino District, the appellant, entered onto his farm and stole eight sacks of sunflower valued at TZS. 480,000/-. During the trial, the appellant pleaded not guilty and after conducting a full trial, the trial court acquitted the appellant and ordered the matter to be referred to the civil forum first. Aggrieved, the respondent lodged an appeal before the District Court of Dodoma. The District Court reversed the acquittal order of the trial court, having found the appellant guilty of the charges against him. Thus, the appellant was convicted and sentenced to pay a fine to the tune of TZS 200,000/- or to serve six months imprisonment for the offence of criminal trespass. Further, the appellant was sentenced to pay a fine of TZS 150,000/- or to serve three months imprisonment for the offence of theft. Additionally, the appellant was ordered to pay the compensation of TZS. 480,000/- being the value of the stolen crops. Dissatisfied, the appellant preferred this appeal raising four grounds of appeal as follows: - 1. That, the Honorable Magistrate erred in law by convicting the Appellant while knowingly she is not vested with powers to do so.

2. That, the appellant was convicted to serve prison sentence without sufficient evidence.

3. That, the whole suit is marred by procedural irregularities.

4. That, the appellate Magistrate ought to refer the matter to Trial Magistrate instead of granting conviction. When this appeal came for hearing, the appellant was represented by Mr. Wasonga, learned counsel and the respondent was represented by Mr. Mselingwa, learned advocate. Before submitting in support of the appeal, Mr. Wasonga prayed to drop the 3rd ground of appeal. Further, he prayed to argue the 1st and 4th grounds of appeal collectively and to argue the 2nd ground of appeal separately. The prayers were granted by this court. Submitting in respect of the 1st and 4th grounds of appeal, the learned counsel for the appellant stated that the District Court, convicted the appellant for the offences of criminal trespass contrary to sections 299 (a); and theft contrary to section 258 (1) and 265 of the Penal Code. Mr. Wasonga referred to pages 8 to 9 of the judgment of the District Court. The counsel for the appellant asserted that the District Court had no jurisdiction to convict the appellant on the said offences. In support of his argument, he referred to section 21 of the Magistrates Courts Act, Cap. 11, R.E. 2019 (MCA). The appellant's counsel proceeded to state that according to the aforementioned provision, the District Court should have directed the trial court to take additional evidence as provided for under section 21 (1) (a) (b) (c) (d) and (e) of the MCA.

Further, it was added that, in such circumstances, where the District Court finds the existence of an error on the records, the remedy is either to quash the proceedings of the trial court or to take additional evidence. The appellant's counsel challenged the decision of the District Court, on the basis of lack of sufficient evidence to prove the guilt of the appellant. The learned counsel stated further that, on page 5 of the judgment of the District Court, it is recorded that the said copies of the judgment on the matrimonial dispute between the appellant and his wife were not tendered in the trial court. Mr. Wasonga further distinguished the case of Rweyemamu Thomas vs R, Criminal Appeal No. 370 of 2008 (unreported) which was cited by the District Court at page 7 of the judgment. The said case held that the court can only interfere with the sentence of the trial court, if the trial court has passed an illegal sentence; or if the trial court has acted upon a wrong principle. It was his submission that the District Court did not adhere to the aforementioned principles, hence resulting in the unlawful conviction of the appellant. In respect of the 2nd ground of appeal, Mr. Wasonga submitted that, there is nowhere in the judgment whereby the District Court mentioned the location and size of the suit land, the owner, or the type of crops, quantity of the crops in dispute, date of

the theft, or manner in which the theft was committed. The appellant further averred that it is not clear how the value of crops (TZS 480,000/-) as stated at page 9 of the judgment of the District Court, was ascertained. According to the appellant, there was no proof of the aforementioned facts before the District Court that would have established criminal trespass; as the appellant claimed bona fide claim of right. Mr. Wasonga prayed that the proceedings of the District Court be quashed and the decision of the trial court be upheld based on the foregoing reasons. In reply, Mr. Mselingwa, learned counsel for the respondent submitted that in the trial court, the respondent was the complainant after his crops were stolen at Mvumi Mission. The respondent's counsel averred that the District Court reached the decision upon proving the offences of theft and criminal trespass, against the appellant. Further, the respondent added that, the appellant harvested the crops which were farmed by the respondent with ill-motive. In the District Court, the appellant admitted that he harvested the crops which were not his property. Mr. Mselingwa argued that even the witnesses who testified at the trial court for the complainant, the respondent in this appeal, were the same persons who went to carry the crops at night. The respondent contended that, the appellant failed to cross-examine the said

witnesses, and this is proof of the fact that the testimonies of the witnesses were true. The evidence that was adduced at the trial court proved the case to the required legal standard resulting in the proper judgment issued by the District Court. The respondent further argued that the charge sheet in the trial court indicated the value of the stolen crops. Therefore, the District Court was vested with the requisite jurisdiction to enter conviction against the appellant. Mr. Mselingwa averred that there was no evidence at the trial court to prove that the appellant was the rightful owner of the suit land. Contending further, he argued that the issue before the trial court was not on ownership to land, rather it was theft and criminal trespass. In conclusion, Mr. Mselingwa re-stated that the decision of the District Court was correct. In rejoinder, Mr. Wasonga counsel for the appellant stated that, throughout the proceedings in the trial court, in the District Court, and even in the submissions before this court, the type, quantity of crops, and date of theft was not indicated. With regard to the value of the crops, he argued that the information in the charge sheet cannot be relied upon as what is stated in the charge sheet require proof. Further, that in criminal litigation, the accused is only required to raise doubt. In addition, there is no requirement on the

cross- examination of witnesses. Therefore, the issue on failure to cross-examine the witnesses is immaterial. The appellant's counsel prayed that the appeal be allowed. 6 After a thorough consideration of the submissions by the learned counsels for the parties, the trial court records and the decisions of both the trial court and the District Court, the issue for determination is whether there is a dispute of ownership of land between the parties herein. In this case, the appellant was convicted for criminal trespass and theft. Section 299 (a) - (b) of the Penal Code provides that:- 299. Any person who- (a) unlawfully enters into or upon property in the possession o f another with intent to commit an offence or to intimidate, insult or annoy any person in possession o f the property; or (b) having lawfully entered into or upon the property unlawfully remains there with intent thereby to intimidate, insult or annoy the person in possession o f the property or with intent to commit an offence, is guilty o f criminal trespass and liable to imprisonment for three months; if the property upon which the offence is committed is any building, tent or vessel used as a human dwelling or any building used as a place o f worship or as a place for the custody o f property, the offender is liable to imprisonment for one year, [emphasis added] According to the provision of the law above, the

first essential ingredient constituting the offence of criminal trespass is entry, thus, the actus reus of the offence. In order to prove the actus reus of the offence of trespass; evidence must be adduced to prove unlawful entry into or upon the property 7 « in the possession of another person. Unlawful entry cannot be established if the complainant was not in possession of the property. However, it is a trite law that in criminal trespass, the proof of ownership is the key element. Further, the issue of ownership must be resolved by a civil court or tribunal vested with the requisite jurisdiction. The charge of criminal trespass cannot be brought against the offending party if parties are in dispute over the ownership of the land alleged to be trespassed. In the case of Director of Public Prosecutions vs Malimi Sendama and 3 Others, Criminal Appeal No.92 of 2018, the Court of Appeal of Tanzania (CAT) cited the case of, Simon Mapurisa vs Gasper Mahuya, Criminal Appeal No. 221 of 2006, which partly held at pages 12-13 as follows: - " .. .disputed ownership of land is not resolved in criminal proceedings. The law on that issue is that where there is a dispute regarding boundaries o f adjacent private land or the ownership o f a part o f the whole of adjacent land, such dispute is resolved in a civil court. From then onwards, encroachment onto the land o f the other could be

trespass and a criminal charge can be brought against the offending party, "[emphasis added] While submitting in reply, Mr. Mselingwa, respondent's counsel, stated that, the issue before the court was not on ownership of land, rather it was theft and criminal trespass. However, I am of the firm view that there is a clear 8 dispute of ownership of the land between the appellant and the respondent which cannot be resolved by criminal proceedings. Looking at the records before the trial court, at page 3, it is recorded as follows: - SMI stated that: "Siku ya alhamisi 10/5/2023 nilipewa taarifa za wizi kwenye eneo langu na ni/ianza kufuatilia kisha niligundua a/iyeiba n iS U l... In cross examination by the trial court also the respondent stated that: - "Shamba ni mali yangu tangu zamani, wewe ni mume wa dada, wewe ndie uliyeiba aiizeti zangu.. Sina umi/iki wa maandishi juu ya hilo eneo nilipewa na Rosemary." However, the appellant at the trial court testified that: - "Niiikua nina mke wangu ambae aitwaye Rosemary Semuaiy. Lakini tuiiachana kwa taiaka na hizo maii tuiigawana.Hivyo hilo shamba linalodaiwa kuwa nimeiba ni shamba langu linalotokana na mgawanyo wa mali za ndoa." In cross examination, at page 10 to 11 of the proceedings of the trial court, the appellant stated that: - "Shamba hilo Una ekari 1, shamba hilo ni mali yangu mimi ndiye niliyelima alizeti." Based on the

aforementioned testimonies from the witnesses who are also parties to this case, undoubtedly, there exists a dispute of ownership of land involving the appellant and the respondent which has to be resolved through a civil forum. In principle, the criminal charges of tress pass or of malicious damage to property cannot stand against the offending party before conclusive resolution on the issue of ownership over the said property. In the case of Kusekwa Nyanza vs Christopher Mkangala, Criminal Appeal No. 233 of 2016, the CAT at page 9 observed that: - "In that regard, they had no good title over the plot which they could pass over to the respondent With such situation; as it was correctly held by the District Court on first appeal, neither the criminal charges of tress pass nor of malicious damage to property could stand against the appellant before the issue o f ownership over the disputed plot of land had been resolved." [emphasis added] Furthermore, in the case of Sylivery Nkangaa vs Raphael Albetho (1992) TLR 110 it was held that: - "A charge o f criminal trespass cannot succeed where the matter involves land dispute whose ownership has not been finally determined by a civil suit in a court o f law... A criminal court is not proper forum for determining the rights o f those claiming ownership o f land. Only a civil court via a civil suit can determine matters of land

ownership." [emphasis added] 10 According to the cited authorities, the requirement to resort to civil law where the matter is of a civil and administrative nature is mandatory. In the instant case, it is clear that the evidence of the parties relates to the ownership of disputed land and the law is clear that, a criminal court cannot determine the criminal trespass before the fate of the land ownership is finally and conclusively resolved. From the foregoing observation, I am of the firm view that the decision of the District Court is not appropriate. As the result, the conviction, sentences and orders for compensation meted by the District Court are hereby quashed and set aside. As such, the appeal is hereby allowed and the decision of the trial court is upheld accordingly. For the purpose of emphasis, the parties are at liberty to refer the land dispute to the competent civil forum for conclusive determination on the question of ownership. From then onwards, encroachment onto the land of the other could be a trespass and a criminal charge can be brought against the offending party. 11 It is accordingly ordered. Right of appeal explained. DATED at DODOMA this 2nd day of August, 2024. Judgment delivered in the presence of the appellant; and in the presence of the respondent. 12