RUKIA MOHAMED for tanzlii

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA PC. CRIMINAL APPEAL NO. 1022 OF 2024 (Arising from Criminal Appeal No. 01 of2024 in the District Court of Iramba; Originating from Criminal Case No. 158 of2023 in Nduguti Primary Court) RUKIA MOHAMED............................................................. APPELLANT VERSUS JUMANNE MANGI.............................................................. RESPONDENT JUDGMENT 3CD August & 2CP September 2024 MUSOKWA, J. In the present appeal, the appellant herein, challenges the decision of the District Court of Iramba in respect of Criminal Appeal No. 01 of 2024; which upheld the decision of Nduguti Primary Court (trial court) in Criminal Case No. 158 of 2023. At the trial court, the appellant was charged with the offence of malicious damage to property contrary to section 326 of the Penal Code, Cap. 16, R.E. 2022 (Penal Code). Upon conducting a full trial, the trial court convicted the appellant and entered a custodial sentence of three months' imprisonment or the payment of a fine to the tune of TZS 100,000/- i in lieu thereof. In addition, the appellant was ordered to pay a compensation of TZS 5,250,000/- to the respondent. Being aggrieved, the appellant preferred this appeal comprising of two grounds of appeal. Essentially, the appellant's grounds of appeal intend to challenge the jurisdiction of the trial court. At the hearing, Mr. Bonaventura Njelu, learned advocate appeared for the appellant while the respondent appeared in person without any legal representation. Arguing in support of the appeal, the appellant's counsel started to address the 1st ground of appeal. Mr. Njelu submitted that the trial court had no jurisdiction to entertain the matter as it related to a land dispute. Further that, there are other specific forums that are available for the handling of land disputes. In emphasizing his argument that the dispute was in relation to land, the learned counsel referred to the records of the trial court, whereby the appellant testified that she was clearing her farm. The said testimony is further reflected on page 5 of the judgment of the District Court. 2 Mr. Njelu submitted that, the records of the District Court clearly indicate the nature of this dispute. For instance, on page 3, second paragraph of the judgment of the District Court, it is stated as follows; "kwenye utetezi wa mjibu rufaa... kwenye shamba lake tarehe..." According to the learned counsel, the aforementioned statement was an admission by the respondent, that this dispute was in fact a land dispute. The counsel for the appellant, averred that the same is also reflected at page 4 of the judgment of the District Court; whereby the last paragraph provides that; " Kwenye ushahidi wa mjibu rufaa...wakiia mbaazi zake kwenye shamba lake" The appellant's counsel further argued that, in any dispute which concerns ownership of land as well as criminal allegations, the law requires parties to resolve the issue of ownership of land first, before proceeding to the determination of criminal allegations. The cases of Zabron Ngailo vs Felista Kalinga, PC. Criminal Appeal No. 3 of 2022; Honoratha d/o Alfred Mdichey vs R, Criminal Appeal No. 72/2022 and the case of Asha Ramadhani vs Salum Saidi, PC. Criminal Appeal No. 4 of 2013 (all unreported), were preferred in support of his position. 3 Submitting in respect of the 2nd ground of appeal, the appellant's counsel asserted that, the District Court erred to uphold the decision of the trial court on malicious damage to property as the trial court had no jurisdiction to order for the compensation of TZS 5,250,000/-. This was contrary to the Primary Courts Criminal Procedure Code, found at the Third Schedule of the Magistrates Courts Act, Cap. 11, R.E 2019 (MCA). Under section 5 (1) (b) of the said Schedule, the law provides that the Primary Court has jurisdiction to order the compensation of an amount not exceeding TZS 100,000/-. The only exception is when the offence to which the accused is charged, is provided for under the Schedule to the Minimum Sentences Act, Cap. 90 R.E 2002. Thus, the appellant prayed that this appeal be allowed and consequently, the decisions of both, the trial court and the District Court be quashed and set aside for being contrary to the law. In his brief reply, the respondent prayed that his reply to the amended petition of appeal be adopted. The prayer was granted and the respondent proceeded to submit that the decisions of the trial court and the District Court resulted from the evidence given by parties, which sufficed to move the trial court and the District Court to rule in his favor. Accordingly, the 4 respondent prayed that this appeal be dismissed for want of merit, and the decisions of the trial court and the District Court be upheld. In rejoinder, the learned counsel for the appellant reiterated his earlier submissions in chief. Having carefully considered the records of the trial court and the District Court, as well as the submissions of the parties, the issue for the determination by this court is whether or not the charge of malicious damage to property was proper before the trial court. I will start by citing the provision of section 326 (1) of the Penal Code, under which the charge against the appellant was preferred, resulting to her conviction and sentence. The section reads as hereunder: - 326 (1); "Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, and except as otherwise provided in this section, is liable to imprisonment for seven years." According to the provision of the law above, the ingredients of the offence of malicious damage to property is the wilfull (mensrea); and the destruction or damage to property (actus reus). In order to prove the actus reused the offence of malicious damage to property, evidence must be adduced to prove unlawful entry into property that is in possession of another person. 5 However, unlawful entry cannot be claimed by a complainant whose lawful possession of the said property has not been ascertained. Thus, the trial court before proceeding to determine whether or not there was malicious damage to property, should have satisfied itself that there was no dispute as to the ownership or possession of the property in question. Clearly, and as correctly submitted by the counsel for the appellant, the trial court records indicate that the issue of ownership of the land was not resolved before the commencement of the said criminal proceedings against the appellant. The records reveal that each party claims ownership to the property. Thus, in light of the records, it is uncertain to whom the destroyed properties belong. For the purposes of emphasis, on 30th November 2023, during the defence hearing, the trial court sought clarification from the appellant who responded as follows: "M/a/amikaji amepanda kwenye shamba la kwangu ambalo Una mgogoro" Truly, this is a land dispute which ought to have been resolved in a civil court before invoking the jurisdiction of the criminal court. In the case of Director of Public Prosecutions vs Malimi Sendama and 3 Others, Criminal Appeal No.92 of 2018, (unreported) the Court of Appeal 6 of Tanzania (CAT) cited the case of, Simon Mapurisa vs Gasper Mahuya, Criminal Appeal No. 221 of 2006 (unreported), which on pages 1213 observed 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 of 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 trespass and a criminal charge can be brought against the offending party." [emphasis added] According to the authority above, the instant appeal concerns malicious damage to property. However, each party claims bona fide right to the suit property. In the circumstances, the trial court erred to proceed with determination of the offence of malicious damage to property and to enter a conviction thereto. The issue of ownership of the suit land should first have been resolved, prior to the determination of the alleged destruction of the properties. This was observed in the CAT case of Kusekwa Nyanza vs Christopher Mkangala, Criminal Appeal No. 233 of 2016 (unreported), whereby on page 9, it was observed that: - 7 "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 trespass nor of malicious damage to property could stand against the appellant before the issue of ownership over the disputed plot of land had been resolved, "[emphasis added] Further, in the case of Sylivery Nkangaa vs Raphael Albetho [1992] TLR 110, it was stated that: - '/I charge of criminal trespass cannot succeed where the matter involves land dispute whose ownership has not been finally determined by a civil suit in a court of law...A criminal court is not a proper forum for determining the rights of those claiming ownership of land. Only a civil court via a civil suit can determine matters of land ownership, "[emphasis added] In the premises, and being guided by the authorities cited above, this appeal is hereby allowed. The entire proceedings and judgment of the trial court and the District Court are hereby quashed and set aside for want of jurisdiction. Similarly, the sentence, fine, and compensation order imposed against the appellant are set aside. Again, the fine imposed against the appellant should be refunded forthwith, if it was paid. 8 Order accordingly. Right of appeal explained. DATED at DODOMA this 20th day of September, 2024. I.D. MUSOKWA JUDGE Judgment delivered in the presence of the respondent; and in the absence of the appellant. 9