20160906 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA - [IN THE DISTRICT REGISTRY]

AT ARUSHA I PC. CRIMINAL APPEAL NO. 5 OF 2016 I I ya (Originating from Cr. Appeal No. 15/2015, Original Maji Chai P/Court, Case No. 517/2014) ' I RUBEN TOYAKO ............................................ ~ .......... APPELLANT

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VERSUS I AGNES MESEYEKI ................................... .'......•....... RESPONDENT Date of last order: 01/08/2016 Date ofJudgment: 06/09/2016

JUDGMENT MASSENGI, J. The Appellant RUBEN TOYAKO being aggrieve~ by both the decision of the District Court of Arusha at Arusha ( Baro, RM) 1n Criminal Appeal No. 15 of 2015 dated 29th January, 2016 and the decjsion of Maji ya Chai Primary Court in Criminal Case No. 517 of 2014 app·eals before this court basing on the following grounds; 1. That both the trial Primary Court and the Appell~te Court erred in law and in fact when they failed to put into consideration the decision of the Ward Tribunal which stated clearly that the suit land is the Appellant's property and that the responder:,t should be given alternative land. 1 2. That both courts, that is the Primary Court and the District Court erred in law and in fact when they failed to hold that the Appellant had bona fide claim over the suit land and that the crime of criminal trespass could not stand. In this appeal, the appellant was represented by Mr. Lawena learned Advocate while the respondent appeared in person and unrepresented. The Appellant's counsel prayed the hearing of this appeal to be conducted by way of written submissions and this court granted the prayer. The Appellant was ordered to file submissions in chief by 15/8/2016, the respondent to file reply submissions by 22/8/2016 and rejoinder if any to be filed by 29/8/2019. To date, it is only the appellant who filed his submissions as such this judgment will

base on the appellant's submission only. Arguing the appeal, the Appellant's counsel submitted that the decision of the Primary Court was based on the decision of Olturoto Ward Tribunal which declared the respondent as the lawful owner of the suit land and that the respondent should be given alternative land by Joel Meseiyeki and Johanes Meseiyeki and the Appellant remain in the suit land. He further stated that the said decision was supported by the appellate District Land and Housing Tribunal in Land Appeal No. 80 of 2010. Thus the Appellant as per that decision was legally in the suit land. If the said Joel Meseiyeki and Johanes Meseiyeki failed to give alternative land to the respondent, the Appellant cannot be held responsible. Thus, he submitted that the trial Primary Court and the Appellate District Court erred in law 2 and in fact when they failed to put into consideration the decision of the Ward Tribunal of Olturoto. He further argued that the Appellant was charged under section 299 of the Penal Code, Cap. 16 where section 299 (a) states on a person who unlawfully enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. He contended that there is ample evidence that the Appellant was in the suit land before the respondent was born. At the time when the

Appellant entered into the suit land the respondent was not in possession of the suit land; thus the Appellant could not be charged under that section. He referred this court to the case of Mbewa and Three Others vs. Republic [1971] H.C.D 310. It is his argument that there was no proof that the Appellant unlawfully entered into the suit land, thus an offence under section 299 (a) of the Penal Code, Cap. 16 R.E 2002 could not be proved against him. He contended that the Appellant was lawfully in the suit property; as he was allowed by the Ward Tribunal to remain in the suit land while Joel Meseiyeki and Johanes Meseiyeki were looking for an alternative land for the respondent. He contended that the Appellant have been in the suit land for 20 years, developed the same and his wife was buried therein as such he had to protect what was in the suit land. He argued that the Appellant had bona fide claim over the property but that issue was never considered by the court nor the first appellate court. He referred this court to the case of Republic vs. Mohamed s/ o Salehe [1975] L.R.T 32 and prayed this appeal be allowed and quash both the decision of the trial court and the first appellate court and set aside the sentence. 3 ' I have considered the appellant's submission and thoroughly examined the records of the lower courts. In regard to the first ground of appeal that the lower

courts failed to put into consideration the decision of the Ward Tribunal which stated that the suit land is the appellant's property and that the respondent should be given alternative land; the trial court records specifically from page 3 - 5 of the typed judgment, explained in extenso about the finding of the Ward Tribunal. In the course of its judgment, the trial Magistrate quoted part of the observation of the Ward Tribunal which stated that; (i) Baraza tuliona shamba linalogombaniwa ni la mlalamikaji Agness. (ii) Mlalamikiwa Joel alimdhulumu mdogo wake shamba na kuuza kwa ndugu Reuben Toyako miaka 20 iliyopita. (iii) ........... kwa kuwa ndugu Reuben Toyako alimiliki shamba hi/o kwa muda mrefu wa miaka 20 bi/a kulalamikiwa. Tunamwagiza ndugu Joel atoe shamba linguine mbadala ya shamba alilouza amkabidhi mlalamikaji ndugu Agness." ; After quoting the above observation of the Ward Tribunal, the Trial court went further and stated a follows in page 4; "Kwa maelezo hayo ya baraza la ardhi la kata hakuna ubishi wowote kuwa aliyepewa ushindi si mwingine bali ni Agness Meiseyeki uamuzi huu ndiyo u/iochukuliwa rufaa Mahakama ya Wi/aya na katika hukumu hiyo ya Baraza la Ardhi na Nyumba la Wilaya ambalo nalo lilitoa hukumu na kumpatia ushindi (SM 1J Agness Maiseyeki katika hukumu hiyo No. 80/2010 (rufaa)." 4 The records further show that the respondent executed the decision of the

District Land and Housing Tribunal which declared her as the lawful owner of the suit land. The trial court elaborated further in its judgment under page 6 - 7 that; ''Maamuzi haya ya baraza la ardhi na nyumba la wilaya yalibaki kusimama mpaka leo kwa kuwa Joel Meseiyeki alishindwa kuchomoza hata mahakama kuu baada ya kukutana na kikwazo cha kisheria katika uamuzi Na. 78/2013 na Hukumu Na. 80/2013 kwa kuwa rufaa yake ilitupiliwa mbali kwa kuwa Joel alikata rufaa nje ya muda ndiyo maana Agnes Meseiyeki alikabidhiwa eneo hilo na Movie Co. Ltd kwa amri ya Baraza la Ardhi na Nyumba la Wilaya No. 67/2014 amri ambayo ilitekelezwa na Novic Co. Ltd mnamo tarehe 11/07/2014. Kuanzia hapo ardhi hiyo ikawa mikononi mwa SM 1 na yeyote ambaye anaingia bi/a idhini yake anakuwa ameingia kwa Jinai. " (emphasis supplied) Basing on the explanations of the trial court as indicated above, it is very clear that the trial court considered the decision of the Ward Tribunal only that the decision of the Ward Tribunal was not final. The final decision was that of the District Land and Housing Tribunal which declared the respondent to be the lawful owner of the suit land and thereupon execution order was granted. As rightly observed by the trial tribunal, from 11/07/2014 when execution took place, the suit land became the property of the respondent and any person who entered therein without her

consent 5 ., became a trespasser. On that regards,:! I therefore find that the first ground " of appeal lack merits and accordingly qismissed. •• ft st Considering the findings above, it is evident that the Appellant had no bona fide claim over the suit land thus the trial couh properly convicted him with the offence of criminal trespass. Thus also t~e second ground of appeal fails and accordingly dismissed.:: Basing . on the • above,·. I therefore . . • I, 1 find that this. appeal . ' •. , lack merits • . .. and I , , . accordingly dismissed. ~he_ decisio~ of the lowe~ courts is hereby sustained. Order accordingly. SGD: F.H. MASSENGl I :I

JUDGE ! 06/09/2016 Judgment delivered in Court this 6th day of Sept, 2016 in the presence of John Lawena, Advocate holding brief for Severine Lawena for· appellant and Mr. Ngeseya, Advocate for respondent. ' SGD: F.H. ~ASSENGI

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JUDGE 06/09/2016 I hereby certify this to be a true copy of the original.

DEPUTY REGISTRAR Words 1,383 ARUSHA