Regent Abijan Sanga 2

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (IRINGA SUB-REGISTRY) ATIRINGA PC. CRIMINAL APPEAL NO- 11 OF 2023 REGENT ABIJAN SANGA ............. APPELLANT VERSUS BASIRI ZUBERI ILOMO ............. RESPONDENT (Being an appeal from the Judgment and Decree of the District Court of Makete at Makete) (Hon, I, Msackv (SRM)J Dated the 13th day of July 2024 ■n Criminal Appeal Case No. 07 of 2023 JUDGMENT Date of last order: 10/07/2024 Date of Judgement: 13/09/2024 S.M. KALUNDE, J,: This is a second appeal originated from the Primary Court of Lu pa I i Io, Makete District in Njornbe Region (Hereinafter "the trial court"). At the trial court, the appellant was charged with one count of malicious injury to property contrary to section 326 of the Penal Code [Cap. 16 R.E. 2022]. It was alleged that on the 19th day of April 2023 at around 1400Hrs at Malembuli Village, Mang-oto Ward, Makete District in Njornbe Region, Basiri Zuberi Homo willfully and unlawfully destroyed 372 pine trees valued at TZS. 48,360,000.00, the property of Regent Abijan Sanga. Aggrieved, the appellant unsuccessfully appealed to the District Court of Makete (Hereinafter "the first appellate court"). The appeal was dismissed for being devoid of merits. Still aggrieved, the appellant filed, to this court, a petition of appeal containing two grounds of appeal assailing the concurrent findings of the two courts below. The facts of the case leading to the appellant's conviction can be summarized as follows: on the 19th day of April 2023, at around 1400Hrs at Malembuli Village, Mang'oto Ward, Makete District in Njombe Region, the respondent willfully and unlawfully destroyed pine trees, the property of Regent Abijan Sanga. The appellant Regent Abijan Sanga (SMI) alleged that on the 19th day of April 2023, when the appellant visited his farm, at Malembuli Village, he discovered that his trees had been harvested. In his further enquiry into the matter, he was told that the person responsible for the harvest or destruction of trees was Basin Zuberi Homo (SUL), the respondent. On receipt of the report, the appellant reported the matter to the Village Government and later to the Ward Government. In all the places where the matter was reported for resolution, the respondent allegedly snubbed to attend and when he did attend, he was boastful or simply refused to cooperate. For her part, Hadija Mbilinyi (SM2) narrated that the appellant started invading the suit property in 2014. He did so again in 2017 by destroying 150 trees. She reported the matter to the village government. Parties were summoned at the village government offices, where the appellant was ordered to 2 compensate her, but he refused. SM2 version of the story was supported by Neema Abijan Sanga (SM3). In his defense, the respondent Basiri Zuberi Homo (SU1), alleged that he was arrested on the 9th day of June 2023. Thereafter, he was taken to the police station where he was locked up until the next day when he was told he was arrested for destroying the appellant's farm. He contended that he had a dispute with the appellant over a farm. The dispute was resolved by splitting the farm in half with each owning one part. However, the appellant was not happy and hence the charges at the trial court. Cosmas Zuberi Homo (SU2), testified that the appellant owns a farm and described its boundaries. The witness added that the appellant was not even a neighbor to the respondents' farm. The evidence of SU1 and SU2 was supported by Oliva Homo (SU3), who said the farm belonged to his father. In its decision delivered on the 13th day of July 2024, the trial court resolved that the prosecution did not prove the charge against the appellant beyond reasonable doubt. In accordance with rule 37 of the Primary Courts Criminal Procedure Code, Third Schedule to the Magistrates' Courts Act [CAP. 11 R.E. 2019] the respondent was acquitted and discharged. AS pointed out earlier, the appellant successfully appealed to the first appellate court. Still aggrieved, the appellant filed, to this court, a petition of appeal having two grounds of appeal assailing the concurrent 3 findings of the two courts below. The two grounds of appeal may be summarized as hereunder: (1). 'wiThat the first appellate court rigorously evaluate the evidence presented and thereby arrived at a wrong decision; and (2), &£The first appellate court erred in entertaining and resolving the matter without first resolving the question of ownership. By consent of the parties, the appeal was argued in writing. Neither of the parties were legally represented, thus, each prepared and filed their written submissions which I shall not reproduce but I shall refer them as I resolve the appeal. At the outset, I wa nt to state-:that the two courts below made concurrent findings of facts that the appellant committed the offences charged. It is trite law that, unless there has been a misdirection or non-direction of the evidence occasioning miscarriage of justice, the second appellate court as in this case, is not entitled to interfere with such findings. Some of the Court's pronouncements in respect of this settled principle are in the cases of Mbaga Julius vs Republic (Criminal Appeal No. 131 of 2015) [2016] TZCA 274 (25 October 2016) TANZLII and Nchangwa Marwa Wambura vs Republic (Criminal Appeal No. 44 of 2017) [2019] TZCA 459 (11 December 2019) TANZLII. In Mbaga Julius vs Republic (supra) the Court of Appeal (Levira, J.A) at page 9 said: "We are alive to the principle that in the second appeal like the present one, the Court should 4 rarely interfere with concurrent findings of fact by the lower courts based on credibility. This is so because we have not had the opportunity of seeing, hearing and assessing the demeanour of the witnesses. (See SEIF MOHAMED E.L ABADAN vs REPUBLIC, Criminal Appeal No. 320 of 2009 (unreported). However, the Court will interfere with concurrent findings if there has been misapprehension of the nature, and quality of the evidence and other recognized factors occasioning miscarriage of justice." In light of the above authorities, I shall continue to examine whether the courts below rightly concurred in their findings. To start with, I shall begin my determination by examining the provisions of section 326 (1) of the Penal Code which provide for a punishment for malicious injuries to property. The section reads: "326. - (1) Any person who wilfully and unlawfully destroys of damages any property is guilty of an offence, and except as otherwise provided in this section, is liable to imprisonment for seven years." To establish the offence under the above section the appellant had to prove establishes beyond reasonable doubt that first, a property, owned by the complainant, was destroyed; second, that the accused person destroyed the property; third, that the destruction was willful and therefore there must be proof of intent on the accused part; and fourth, the court must also be satisfied that the destruction was unlawful. s: It is also worth noting that in accordance with regulation 1(1) of the Magistrates' Courts (Rules of Evidence in Primary Courts) Regulations G.N, No. 22 of 1964 and 66 of 1972 (Henceforth "the Evidence Rules"), the prosecution bears the burden of proof in all criminal cases in Primary Courts. That rule provides inter alia that; "Where a person is accused of an offence, the complainant must prove ail the facts which constitute the offence, unless the accused admits the offence and pleads guilty. " Further, regulation 5 (1) of the Evidence Rules provides that the standard of proof in criminal cases in proceedings before primary courts is beyond reasonable doubt. The next question then is whether the appellant proved the four elements of malicious injury to property under section 326 (1) of the Penal Code. The: first element is whether the appellant was the lawful owner of the trees destroyed. To prove ownership of the trees the appellant had to prove that he was the lawful owner of the piece of land where the trees were destroyed. It is glaring from the testimonies of the appellant and respondent that there was a dispute of ownership over the plot of land where the trees were allegedly destroyed. The appellant, on page 3 of typed proceeding said on the 28 th day of March 2023 he took a leave to go visit his properties at Mang'oto village and Malembuli village. He claimed that upon arrival at Malembuli village, he was told that the respondent destroyed his farm. The 6 appellant believes that the farm belongs to his family. The appellant's testimony was supported by SM2 and SM3 who both said that the two families have been in dispute over the suit property since 2014 and 2017. The defendant on the other side narrated that the dispute over the suit property was initially presented before the village government where it was agreed that the farm be divided in half between the appellant and respondent. However, the deal did not materialize. As was with the appellant, the testimony of the appellant was supported by SU2 and SU3, Despite the above disagreement of the over ownership of the suit property the appellant instituted criminal charges for malicious injury to property. The question I ask myself is whether a charge of malicious prosecution could stand considering the above evidence? It is trite that, in criminal proceedings, where the court could not ascertain as to who is telling the truth in regard to the ownership over the plot of land, a civil suit must be instituted in a court of competent jurisdiction to resolve as to who was the rightful owner of the plot of land between the appellant and respondent. Once ownership is resolved, the complainant may consider going ahead with criminal proceedings. This is what was articulated by the Court of Appeal in the case of Kusekwa Nyanza vs Christopher Mkangala (Criminal Appeal No 233 of 2016) [2018] TZCA 491 (7 December 2018) TANZLII, where the Court (Mwangesi, J.A.) relied in Its previous decision in the case of Simon Mapurisa vs Gasper Mahuya, Criminal Appeal No. 221 of 2006 (unreported) where it relied in the case of Sy livery 7 Nkanga vs Raphael Alberto [1992] TLR 110 and Ismail Bushaija vs Republic [1991] TLR 100, to hold inter alia that: "Disputed ownership of land is not resolved in criminal proceedings. The law on that issue is that where there is a dispute regarding boundaries of adjacent private land or the ownership of a part or the whole of adjacent land, such dispute is resolved in a civil court. 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." The Court observed further that this court, as second appellate court, had erred in not finding that there was an issue of ownership over the plot of land alleged and that the issue ought to have been resolved in a civil suit. The court reversed the decision of this court and restored the first appellate court's decision. In the present case, the trial court correctly noted that there was a dispute over ownership of the suit property. However, it dealt with it in quite an unconventional way. I say unconventional because in its decision the trial magistrate observed that upon finding that there was a dispute over the suit property, the matter was forwarded to the "Baraza la Ardhi la Kijiji", that is the Village Land Council for it to resolve the question of ownership over the suit property. The issue here is whether the Village Land Council, to which parties were referred, had jurisdiction to entertain and resolve the dispute over ownership of land. 8 The answer to the above question is obviously in the negative. I say so because in accordance with section 61 of the Village Land Act [CAP. 114 R.E. 2019] the role of the Village Land Council is to mediate the parties. Further, under 62(1) of the same Act, where mediation fails, the matter must be referred to a court having jurisdiction over the subject matter of the dispute. It is also common knowledge that following the amendments to section 13(2) of the Land Disputes Courts Act [CAP. 216 R.E. 2019] brought about by the Written Laws (Miscellaneous Amendments) (No. 3), Act 2021, the Ward Tribunals have no jurisdiction to resolve a dispute of ownership of land. In accordance with the present section 12(3) and (4) the Ward tribunal's role is to mediate the parties and when it fails it must refer the matter to the District Land and Housing Tribunal. However, in the present case, the above institutional framework for dispute settlement in land matters was not followed. Instead, the matter was referred to the Village Land Council. And upon receipt of the opinion of the Village Land Council the trial court went ahead on an assumption that ownership of the land was resolved. Apparently, the Village Land Council had opined that the respondent was the lawful owner of the piece of land where the trees were allegedly destroyed. The question of ownership of the piece of land was therefore not resolved. It is calamitous that, despite having been raised as a ground of appeal before the first appellate court, the learned first appellate magistrate did not even address his mind on the matter. 9 He hurriedly concluded that the appellant focused on proving a trespass than a charge of malicious damage to property. I am confident that, had the learned first appellate magistrate tried to resolve the appeal's grounds raised, he would not have concluded that the appeal was without merits. Had the two lower courts considered this evidence gap, they could not have concurrently grounded their acquittal relying on the ownership of the disputed land which was not proved. For the foregoing reasons, I agree with the appellant's second ground of appeal that the trial court and first appellate court erred in not finding that there was an issue of ownership over the plot of land on which the trees were allegedly destroyed. The findings of the trial court and first appellate court on the case's merits are quashed and set aside because the question of ownership was not resolved. Either way, the success of the appeal does not really help the appellant much because the charge against the respondent is still unproved. Thus, though for distinct reasons, the respondent is still entitled to an acquittal. Order accordingly. DATED at IRINGA this 13th day of SEPTEMBER, 2024. / MX S.M. KALUNDE JUDGE 10