petro so mwaulezi njonga vs juma tunanje mwashiombo 2014 tzhc 2361 5 december 2014

IN THE HIGH COURT OF TANZANIA AT MBEYA PC. CRIMINAL APPEAL NO. 24 OF 2013 (From Mbozi District Court, Criminal Appeal No. 19 o f 2013 Original Criminal Case No. 8 o f 2013 o f Itaka Primary Court) PETRO S/O MWAULEZI@ NJONGA..........................APPELLANT VERSUS JUMA TUNANJE MWASHIOMBO .............................. RESPONDENT JUDGMENT Date o f Last order: 17/11/2014 Date o f Judgment: 05/12/2014 A.F. NGWALA, J. In Criminal Case No. 8 of 2013 at Itaka Primary Court in Mbozi District, the Respondent’s son one Fadhili Juma Mwashiombo was charged with and convicted of criminal trespass Contrary to Section 299 of the Penal Code Cap. 16 R. E. 2002. He was not sentenced to imprisonment. The court ordered him not to commit any other offence. The Court further ordered him to perform community service work for a period of two months. Dissatisfied with that decision, the Respondent successfully appealed to the District Court of Mbozi against both conviction and sentence. The District Court quashed the conviction and sentence imposed. The Appellant has now preferred three grounds of appeal as follows (i) That the first appellate court erred in law by determining the issue o f ownership and not trespasses as it was supposed to. (ii) That the appellate court misled itself and hence erred in law by entering judgment in favour o f the Respondent while he was not a proper party to the case (iii) That the appellate court misled itself by not considering that the Appellant was representing his son who is a minor. ” The Respondent has defaulted both appearance and hearing of this appeal. For this reason this appeal shall be determined on the basis of the Written grounds of appeal. On the first ground, the appellant argued in the first appellate court that the trial court erred in law by determining the issue of ownership and not trespass as it was expected. The judgment of the District Court makes some interpretation of exhibit Pi in the trial court records which is a copy of the Certificate of Customary Right of Occupancy no. 37 MBZ/ 13189. In the said copy the owner of the land, the subject matter of this case is Maiko Petro and not Petro son of Njonga who was the complainant in the trial court. Earlier, in its decision, the trial court observed at page 19 of the typed proceedings that, it has no doubt that the land said to have been trespassed by Fadhili son of Juma Tunanje is owned by SMi, who is the complainant one Petro Njonga. The observation was from the evidence of SMi, SM2 and the exhibits tendered in court, namely exh. Pi and P2 which were a copy of the Certificate of Customary Right of Occupancy and a copy of the Sale Agreement of the said farm respectively. Exh.P2 , which is the copy of the sale agreement, indicates that Juma s/o Tunanje sold a coffee farm to Petro Mwaulezi, on 02/01/1999 at a price of Tshs. 157,000/ = . The money was paid in cash. The trial court record further show that there was a dispute over the sold farm in the Ward Tribunal of Bara in Mbozi District. The tribunal delivered its judgment on 31/10/2012 where it ordered the Appellant to be refunded a sum of Tshs. 157,000/= by the family of Juma Tunanje Mwashiombo and return the said farm. It is not clear however in the record if the appellant was refunded or not. In this case the Vendor’s son one Fadhili Juma Tunanje initiated a land case in the ward tribunal alleging that the sale of the farm to the Appellant by his Late Father Juma Tunanje was illegal. The sale agreement was therefore nullified by the Bara Land Ward Tribunal. It is therefore not true that the farm under dispute undoubtedly belongs to the appellant. This was advanced by the trial court based on the facts on records. First, because, the said Sale Agreement was nullified by the Bara Ward Land Tribunal. Secondly the copy of the Customary Right of Occupancy relied upon by the Court as a proof of the appellant’s ownership of the farm in question does not indicate so as it bears the name Maiko Petro. Petro Tunanje and Maiko Petro are two different parties in law. It appears therefore that it was not proper for the trial court to proceed with a Charge of Criminal Trespass whose ownership of the disputed farm is not clear. This court on several occasions has held that the Charge of Criminal Trespass cannot succeed where the matter involves land in dispute whose ownership has not been finally determined by a Civil Suit in a court of law. Some of those cases in support of this position are:- the case of SAUDI JUMA V. REPUBLIC [1968] HCD 158, ISMAEL BUSHAIJA V. REPUBLIC [1991] TLR, 100, SYLEVERY NKANGAA V. RAPHAEL ALBERTHO [1992] TLR, 110 and SIMON MAPULISA Vs. GASPET MAHUYA CR. APP. NO. 221 of 2006 (CAT). In all these case it was stated that the Charge of Criminal trespass will not succeed if the ownership of the disputed property has not been determined. It was therefore proper for the first appellate court to ascertain the issue of ownership of the farm before determining that there was Criminal trespass or not. With regard to the third ground of appeal that the appellate court misled itself by not considering that the appellant was representing his son who is a minor, the records are also very confusing. In the records of the trial court, Fadhili s/o Juma Mwashiombo on 23.02.2013, when the said offence was committed was 14 years old. This is as per charge sheet. However at page 9 of the trial court’s typed proceedings, the accused Fadhili s/o Juma Mwashiombo is said to be 18 years old. Age in law is of essence since it determines the proceedings as well as sentence to be imposed upon conviction. It is thus very important that before the court proceeds with hearing of any case age of the parties as well as witnesses be ascertained since it has mandatory statutory requirements and implications. In this case for instance, it is mandatory that voire dire test must be conducted if the witness is a child of a tender age below 14 years. The Appellant has argued that, at the District Court, the Appellant (Juma Tunanje Mwashiombo) for that matter was representing his son. The position of the law is very clear on this. Section 33 (2) of the Magistrates’ Court Act, Cap. 11 R. E. 2002 provides for representation of parties in Primary Courts, but that is only in civil cases. In the case at hand, one Fadhili s/o Juma Tunanje appeared in person. He was not represented on appeal. For this reason, this ground is devoid of merit. On the second ground of appeal it is clear that the Petition of Appeal filed in the District Court shows that the appellant is Fadhili s/o Juma Tunanje who was also the accused person in the trial court. However the file cover shows that the Appellant is Juma s/o Tunanje Mwashiombo, who as per records of the trial court is now the deceased. This is according to the minutes of the clan meeting that sat on 05/07/2007 to decide on the estates of the deceased. The first appellate court therefore erred to indicate that the deceased who was not in existence was appealing. On this it must be known to the parties and the courts below that the should take due diligence in court records. There must be proper citation of cases, naming of parties so as to avoid confusions and unnecessary errors in the records of the Court that ultimately affect decisions of the Court. The said Petition of Appeal which was filed in the District Court of Mbozi had also other defects. It had no signature of the Petitioner, no date of filing and the signature of the Registry Clerk. Unfortunately the Primary Courts’ Criminal Procedure Code, 3rd Schedule to the Magistrates’ Courts, Act is silent on the way the person aggrieved by the decision of the Primary Court shall appeal. Section 20 of the Magistrates Courts Act Cap. 11 clearly provision that:- “ 20 (3) - every appeal to a district court shall be by way of petition and shall be filed in the district court within 30 days after the date o f the decision or order against which the appeal is brought.” The provisions of Section 20 (3) quoted above entails limitation period upon which the appeal shall be filed. The importance of indicating the date of filing under this provision cannot be overemphasized. The rationale behind, this is on the statutory periods upon which law suits or prosecutions cannot be brought in court. The limitation of action has been provided in order to have cases or suits come to an end or finality. The signing of the document, especially a legal document entails its authenticity and genuineness. A document which is not signed does not show seriousness and commitment of the person who tendered it. The court of law conducts serious business of trial, adjudication, hearing and disposing of cases. Hence documents that are filed in court must show both the legality of action and the commitment of a litigant as well. Lack of the signature of the appellant and filing date is an incurable defect which renders the appeal in competent. The Petition of Appeal to the District Court is entitled “Kiapo". Below it there is another subtitle “Sababu za Rufaa”. Under oath the Petitioner has written paragraphs which contain the grounds of appeal. In essence this irregularity is not in conformity with the provisions of Section 22 of the Magistrate’s Courts Acts Cap. 11 R. E. 2002 which requires that appeals from Primary Courts to the District Courts should be by way of Petition. The Appellant ought not have indicated “Kiapo” in the “Sababu za RufacF. In his Petition of Appeal to the High Court, the Appellant has named the Respondent to be Juma Tunanje Mwashiombo who was not a Respondent in the records of the Lower Courts. The records indicate that the Respondent was one Fadhili Juma Tunanje Mwashiombo, the son of Juma Tunanje who is the deceased as per the records of the trial Court. The Petition of Appeal to the High Court is therefore incurably defective because it carries a Respondent who is not in existence. The Petition of Appeal to the High Court was filed on 06/11/2013. On 29/06/2014 one Fadhili Juma Tunanje wrote to the High Court informing the Court that he never appealed to the District Court as it appeared to be. He averred that he is surprised to hear that he is summoned to the High Court as the Respondent. Two observations are made here. One that even though the Petition of Appeal shows that the respondent is one Juma Tunanje, but Juma Tunanje is a deceased person. The summons of this court had been served to 7 Fadhili Juma Tunanje. Secondly it is a clear fact that the appeal to the District Court was not preferred by Fadhili Juma Tunanje. This explains why the said appeal had no signature or date of filing. This is a very serious defect which is incurable. This has occassioned a failure of justice or miscarriage of Justice. Furthermore, as I have already pointed out, This is in regard and with the way the Petition of Appeal was filed. The filing of this Appeal was in contravention of Section 34 (1) (b) of the Magistrates’ Courts Act, Cap. 11 R.E. 2002 which requires that in appeals originating from Primary Courts, the Republic be involved. Failure for the Appellant to comply with the above mandatory provision of the law makes the Appeal incompetent before this Court. Section 29 (a) of the Magistrates’ Courts Act, Cap. 11 R. E. 2002, confers upon this Court the power to vary, quash, confirm, acquit or even to order retrial where the circumstances of the case so demand. Section 37 (2) of the same Act which is in consonant with Section 388 of the Criminal Procedure Act, Cap. 20 R. E. 2002 provides for the limitations of the application of powers by the High Court where it states:- “ 37 (2) no decision or order o f a Primary Court or a District Court under this part shall be reversed or altered on appeal or revision on account o f any error, omission or irregularity in the complaint or any process or charge in the proceedings before or during the hearing or in such decision or order or an account o f the improper admission or rejection o f any evidence, unless such error, omission or irregularity or improper admission or rejection o f evidence has in fact occasioned a failure o f justice The irregularities and or errors and omissions that have occured in this case, especially non - compliance with the provisions of Section 34 (1) (b) of the Magistrates Courts Act, Cap. 11 R. E. 2002 have occasioned a failure of justice. The failure by the trial Court to properly establish if the complainant was actually the owner of the land alleged to have been trespassed into before it proceeded to hear the Criminal Case and the alleged “Forged Appeal” before the District Court, in my view form those errors, omissions and or irregularities that have occasioned a failure of Justice. For the foregoing reasons, I invoke the powers vested upon this court under the provisions of Section 29 (a) of the Magistrates’ Courts’ Act Cap 11 R.E. 2002 to quash the proceedings, conviction and sentence of both the lower courts. It is further ordered that if the parties so desire, a case must be instituted in a court of competent jurisdiction for determination of the issue of ownership of the farm before indulging into criminal proceedings over this land dispute. If the parties so wish as aforesaid the case should be tried denovo before a different or different Magistrates. .... . Date: 05/12/2014 Coram: Hon. A. F. Ngwala, J. Appellant - Present Respondent - Absent, c/c Gibson Court: Judgment delivered in court in the presence of the Appellant. Court: right of appeal to the Court of Appeal of Tanzania explainedr A.F. Ngwala Judge 05/12/2014