FONDA SALUM FELIX

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CRIMINAL APPEAL NO. 9212 OF 2024 (Arising from the District Court ofSingida in Criminal Case No 164 of2019) SALUM FONDA FELIX.............................................. APPELLANT VERSUS THE REPUBLIC ........................................................ RESPONDENT JUDGMENT Date of Last Order. 19/06/2024 Date ofJudgment. 03/07/2024 LONGOPA, J.: This is an appeal against conviction and sentence for the offence of malicious damage to property. On 21st June 2019, the appellant stood charged for malicious damage to property C/S 326(1) of the Penal Code, Cap 16 R.E. 2002. It was asserted that Salum S/O Fonda Felix on unknown date and day of February 2018, at Mahembe Street, Kindai Ward, Mungumaji Division within the Municipal, District and Region of Singida did 1 | Page willfully and unlawfully destroy a foundation and a wall built on Plot No 300 Block AA worth TZS 4,000,000/= the properties of one Sumbo S/O Ally. On 11th August 2020, the District Court of Singida convicted the appellant for the offence of malicious damage to property as charged and sentenced to serve two (2) years conditional discharge and to compensate the victim/complainant TZS 4,000,000/=. It is this conviction and sentence in form of conditional discharge and order of compensation that made the appellant aggrieved of the whole decision of the trial court. Having been granted extension of time to file an appeal out of time, the appellant on 4th April 2024 preferred five grounds of appeal namely: 1. That the District Court erred in law and fact to convict the appellant without considering that there is a pending land dispute in the Tribunal. 2. That the District Court erred in law and fact by failure to recognise who exactly is the rightful owner of the property alleged to have been destroyed. 3. That the District Court erred in law and fact by ordering compensation without having valuation report. 4. That the District Court erred in law and fact by assuming the role ofprosecution against the appellant. 2 | Page 5. That the District Court erred in law and fact by denying the appellant his right to cross examine the prosecution witnesses. On strengths of these grounds, the appellant prayed for this Court to quash and set aside the whole decision and sentence therefrom of the trial Court. On 19th June 2024, the parties were afforded opportunity to argue their appeal viva voce. The appellant appeared in person to fend for oneself after having afforded time to obtained pro bono legal services without success and the respondent was ably represented by Mr. Francis Mwakifuna, learned State Attorney. The appellant was the first to take up the floor to argue in support of the grounds of appeal. It was appellant's submission that he had denied having destroyed the foundation of the Complainant as that area is only used for paddy cultivation. He argued that he was appealing against the decision as a result of injustices of the trial court as there was no proof that appellant destroyed the foundation of the complainant. It was argued by appellant that there was neither any direct evidence from any witness who testified to have seen the appellant destroying the 3 | Page foundation belonging to the complainant one Sumbi S/O Ally. The evidence was a fabricated one for it was impossible that none would have seen him destroying the foundation and wall of the building if at all such property exists. Moreover, the appellant further reiterated that there is no proof that there was destruction of a foundation worth TZS 4,000,000/=. There were no receipts tendered nor any witness who was engaged in bringing the materials namely the foundation stones to the site, the receipts for purchases of stones, cement, neither the masonry who was engaged to construct the foundation. The appellant argued that it was impossible that none could have seen the appellant when destroying all that foundation and wall worth all that huge amount of money. Moreover, it was argument of the appellant that he is 93 years old and unable to carry even a stone of two kilograms thus the case was a fabrication. It was appellant's submission that the complainant had continued to harass the appellant todate and always stated and texted that the complainant shall teach the appellant a lesson. In conclusion, the appellant stated that he does not remember to have cross examined any witnesses of the prosecution. It was thus submitted that the prosecution was not proved. It was his prayer that this 4| Page appeal be allowed as there was injustice on appellant's side committed by the trial Court. On the other hand, Mr. Francis Mwakifuna, State Attorney stated at the outset that the respondent objects the appeal and reiterate that the appeal has no merits. The decision of the trial court was correct. Regarding the first ground relating to existence of dispute on land before the District Land and Housing Tribunal, it was submitted that this was not part of the evidence before the District Court. This ground should be discarded as it was not part of the prosecution or defence evidence. There were no exhibits whatsoever relating to existence of the land case or even mentioning the case number. It was submitted that first ground deserves to be discarded. On the second ground relating to ownership of land where the destroyed foundation and wall is situated, it was submitted that ownership was proved by PW 1 who was the owner of the plot of land. PW 1 testified that he acquired the land through grant and he tendered the Granted Right of Occupancy as Exhibit P.l. Also, PW 1 produced drawing of the structure, and construction or building permits in respect of the structure on that land and both were tendered as Exhibit P.2 collectively. These demonstrate that the land where the foundation was destroyed belonged to the Complainant 5 | Page (PW 1). DW 2 stated that the land belonged to the Complainant. In cross- examination the witness stated to have reviewed the same and found that Plot No. 300 Block AA is the property of PW 1. The second ground has no merits too. On the third ground, compensation order being without the valuation report, it was submitted that it is revealed that after PW 1 obtained the building permit he did build a foundation and wall. PW 2 supported the evidence of PW 1. It is evident that in the circumstances, the costs were incurred as there was a foundation in the area/that land in question. With regard to the fourth ground relating to the District Court assuming the role of the prosecution, it was submitted that the trial court was fair as each party to the case called witnesses to establish their respective cases. PW 1 testified on the evidence of existence of a foundation in that land. PW 2 stated that the appellant admitted having taken the stones of the foundation. PW 3 also testified on the existence of the foundation. The respondent reiterated that in the trial it was indicated that the stones were found in the appellant's place/farm. The appellant admitted to have been in possession of the stones. The respondent cited the principle in Tumaini Daudi Ikela vs Republic, Criminal Appeal No. 158 of 2009 - 6 | Page where the CAT stated that oral confession of the accused leading to discovery of material things connected to the case is admissible. Also, it was submitted that failure to cross examine is an admission of the evidence that has been given. In Jaspine Daniel Sikazwe versus the DPP, Criminal Appeal No. 519 of 2019 at page 15- failure to cross examine on important aspect or matter is admission of the content of the testimony. Given the fact that appellant did not cross examine some of the witnesses whose evidence was establishing the elements of the offence bars the appellant to complain at this stage. There was adequate or sufficient evidence to prove the case on the prosecution's side. On 5th ground of appeal on cross examination denial, it was submitted that the appellant was given opportunity and used that opportunity to cross examine some of the witnesses. Thus, the opportunity was availed for the appellant to be able to challenge the prosecution testimonies. In conclusion, all the witnesses testified to the effect that there was destruction of the foundation on Plot No. 300 Block AA. All the witnesses proved that the offence was committed. They had all testified that there was a house foundation. It was thus submitted that this court be pleased 7| Page to uphold the conviction and sentence of the trial court and dismiss the instant appeal for being devoid of merits. Having heard the rival submissions by the parties to this appeal, it is pertinent for this court to analyse the available evidence on record in view of the grounds of appeal. If these five grounds are categorized into broad categories there are two main aspects. There are two grounds which seem to be pertinent in disposal of this matter namely on proof of the case in respect of absence of valuation report and the failure by the prosecution to prove their case to the required standard. These are the third and fourth grounds of appeal. The first, second and fifth grounds of appeal shall not be addressed. The reasons for discarding the second set of grounds of the appeal is that either the matter were lucidly indicated in the proceedings or in effect the same do not dispose of the matter at hand. For instance, on the first and second grounds on ownership of the plot of land in question where the malicious damage to property and existence of land dispute, there is nothing to suggest such grounds are meritorious. They are afterthought as the appellant did not adduce any tangible evidence in trial court to substantiate that there was dispute over that piece of land. 8 | Page For right to be heard in form of right to cross examination, it is lucid from the proceedings that appellant was always afforded opportunity to cross examine the prosecution's witnesses. Thus, this ground also is devoid of merits. What can be conversed from the rival arguments of the parties is the main question whether the case against the appellant was proved to the required standard as per available evidence on record. To be able to state whether an instant appeal has merits, there are few legal principles that guide the determination of the appeal. The guiding principle is standard and burden of proof in criminal cases. In so doing the first aspect relates to ingredients of the offence. It is crucial that a charge must address aspects related to who, when, where, what and how questions and answers to these must be provided. With regard to who aspect, it answers the question relating to the doer of the offence, whereas when addresses time in terms of hours, date and month that must be specified regarding the occurrence of the events complained of. Where aspect addresses the place i.e. locality of the occurrence event and what answers the aspect of action or omission complained against i.e. actus reus and how addresses the modality of commission or omission of the complained events i.e. mens rea. Failure to establish these aspects would make a charge stand unproved. 9 | Page /I The important ingredients of the offence were described in the case of Isidori Patrice vs Republic (Criminal Appeal 224 of 2007) [2007] TZCA 2 (30 October 2007) (TANZLII), at page 14 where the Court of Appeal stated as follows: It is a mandatory statutory requirement that every charge in a subordinate court shall contain not only a statement of the specific offence with which the accused is charged but such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. See section 132 of the Act. It is now trite law that the particulars of die charge shall disclose the essentia! elements or ingredients of the offence. This requirement hinges on the basic rules of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence charged with the necessary mens rea. Accordingly the particulars,, in order to give the accused a fair trial in enabling him to prepare his defence, must allege the essential facts of the offence and any intent specifically required by law. We take it as settled law also that where the definition of the offence charged specifies factual circumstances without 10 | P a g e which the offence cannot be committed, they must be included in the particulars of the offence. In the instant appeal, the charge reveals that appellant is allegedly committed the offence in February 2018. The action complained of is damage to the foundation and a wall worth TZS 4,000,000/=properties of Sumbo Ally. The incident is allegedly committed at Mahembe Street, Kindai Ward, Mungumaji Division within the District and Region of Singida. It was allegedly that such action was done by the appellant willfully and unlawfully. Indeed, the charge was sufficient to describe all important ingredients of the offence and information relating to the offence of malicious damage to property. This is in accordance with the provisions of Section 326(1) of the Penal Code, Cap 16 R.E. 2022. It provides that: 326.-(l) 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. It appears that the ingredients of the offence are three mainly. First, there must be damage or destruction of a property. Second, that damage 11 | P a g e or destruction should be wilfully and unlawfully. Third, it is the accused who destroyed or damaged that property. At this juncture it is pertinent to state categorically that on record there is nothing that establishes two elements above namely that the appellant is the one who damaged the foundation and wall of the complainant one Sumbo S/O Ally. There is conspicuous absence of the direct evidence from all the four witnesses of the prosecution that anyone saw the appellant destroying the same. Also, there is no iota of evidence on maliciously and willfully aspect being tendered before the trial court. The mens rea which is important ingredient of the offence in question is absent. The only aspect that seems to have been established is existence of the property namely a Plot of land with a foundation. However, the same is not conclusive. The charge indicates that appellant destroyed the foundation and wall which presupposes that the structure had a completed foundation on which the wall was built. That was evidence of PW 1. However, PW 3 stated that he does not know the Plot number belonging to the Complainant. She was only informed by the Complainant that where she had built the house the existing foundation in the neighbourhood belonged to the Complainant. PW 3 never stated when she found that foundation in existence nor when was the same vanished as PW 3 stated that recently 12 | P a g e she had not seen the foundation. This evidence of PW 3 has three aspects. First, only foundation without a wall existed. Second, PW 3 never saw a person who constructed the foundation, but she was only informed by the complainant. Third, PW 3 is not aware of who destroyed the foundation. In the case of Charles Mwinami vs The Republic (Criminal Appeal No. 451 of 2021) [2024] TZCA 231 (22 March 2024) (TANZLII), at page 8, the Court stated that: We take it to be settled law that it is the cardinal principle of law in criminal trials that onus is always on the prosecution to prove the charge. The burden of proof never shifts to the accused and the standard of proof is always beyond reasonable doubt. (See, for instance, Mohamed Said Mtula v. R, (1995) T.L.R.3.) In this case, the prosecution was required to prove that the offence was committed as alleged in the charge. We see no such evidence coming from the prosecution as rightly argued by the learned State Attorney. Neither of the prosecution witnesses attempted to explain when the offence was committed. All that is on record is the dates PW4 heard of the rumors and took legal action. Even the medical examination and the resultant findings are not reliable the victim having been examined seven days after the 13 | P a g e appellant's arrest. In the absence of a clear date when the victim was allegedly penetrated, the findings of PW4 becomes unreliable. It is my view that similar circumstances prevail in the instant appeal. There is no evidence whatsoever that establishes with certainty that it is the appellant who committed the offence of malicious damage to property alleged belonging to the victim/complainant. The only basis of the conviction according to the respondent is that proof of the case based on confession/admission of the appellant. This was the testimonies of PW 1 (the Complainant), PW 2 (Street Chairman) and PW 4 (Investigation Officer). In case confession of the appellant established, it can form basis of the conviction and sentence. This is the legal position in our jurisdiction. There is a plethora of authorities to that effect. In Rashid Yusuph @ Martin & Others vs Republic (Criminal Appeal No. 407 of 2022) [2024] TZCA 333 (8 May 2024) (TANZLII), at page 13 the Court stated that: We wish to stress that, in any judicial proceedings, the effect of the accused's confession cannot be overstated enough than what has been articulated in a number of the 14 | P a g e Court's decisions, including in Ibrahima Ibrahima Dawa v. R, Criminal Appeal No. 260 of 2016 (unreported). In this case, while following our decision in Mohamed Haruna @ Mtupeni and Another v. R (Criminal Appeal 259 of 2007) [2010] TZCA 141 (4 June 2010; TanzLII) we held that: 'The very best of witnesses in any criminal trial is an accused person who freely confesses his gui/t." It is worth noting that, such freely made confessions of the appellants is an expression that they knew the case better than anybody else. It was submission of the respondent that given the confession made by the appellant to have taken the stones from the foundation before a police officer who was investigating the offence against the appellant. It was reiterated also that appellant did admit before the Mtaa Chairman to have taken the stones from the foundation as he did not know the owner of the stone purportedly believing the same belonged to Tanzania Railway Authority/Corporation (TRC). I have carefully perused the record of trial court on aspect of existence of confession or admission. It is settled view that for a confession/admission to exist there must be stated categorically when did the confession/admission made, description of circumstances of confession 15 | P a g e and whether such confessional statement admits to all the ingredients of the offence. It is on record that PW 1 and PW2 stated that the appellant did admit having collected the stones of the foundation. Also, PW 4 who was investigation officer reiterated that the appellant denied having committed the offence of malicious damage to property namely foundation and wall belonging to PW 1 one Sumbu S/O Ally but admitted having taken the stones belonging to the Tanzania Railway Authority/Corporation. Though trial court stated that observed that the appellant agreed in the cautioned statement taken in the police as submitted by PW4 , that he destroyed the foundation and that he was ready to refund the owner, it is my view that such evidence does not exist. I must state that according to the proceedings the only tendered exhibits were Exhibit P.l that is the Offer of Granted Right of Occupancy and Exhibit R2 collectively was the building permit and drawings of the proposed structure of the building. There is no documentary testimony tendered regarding cautioned statement. The nature of alleged confession is oral. Ordinarily, oral confession is admissible. In the case of Gerson Geteni vs Republic (Criminal Appeal 16 | P a g e No. 73 of 2021) [2024] TZCA 52 (19 February 2024) (TANZLII), at page 11 -12, the Court emphasized that: Section 3 (1) (a), (b) and (c) of the Evidence Act provides to the effect that oral confessions are recognized, and in reality an accused may be convicted based solely on such evidence see, the case of DPP v. Nuru Mohamed Gulamrasul [1988] T.L.R. 82. On the same aspect, this Court in Posolo Wilson Mwalyego v. R, Criminal Appeal Alo. 613 of 2015 [unreported), stated that: "It is settled law that an oral confession made by a suspect before or in the presence of reliable witnesses, be they civilian or not; may be sufficient by itself to found conviction against the suspect" From that set of evidence, it can be noted that neither of the three prosecution witnesses have stated timing i.e. at what date or month did the appellant confess/admit having committed the offence. PW 1 stated to have been informed by neighbour that his foundation was destroyed in February 2017. On visit to the area, PW 1 found water pipes belonging to Singida Urban Water Supply and Sanitation Authority (SUWASA) pass on the place where a foundation was previously situated. Further, when PW 1 approached SUWASA, they informed him that it was the appellant who 17 | P a g e broke the foundation and took stones to build appellant's toilet. PW 1 testified to have reported to the Street Chairman where the appellant admitted. Second, the version of story of PW 1 and PW 2 contradicts that of PW 4. The contradiction is that while PW 1 and PW 2 asserted that appellant admitted, the testimony of PW 4 stated that he denied the offence but admitted having taken the stone belonging to TRC. Such contradictory statements of the prosecution case have impacts of the validity of proof of the case. Third, there is nowhere in the record that categorically indicates that appellant did confess to elements of the offence. Confession means the willingness admission of the appellant/accused person to all elements of the offence. In Daniel Thomas @ Yusuph @ Ngeni & Another vs Republic (Criminal Appeal No. 120 of 2022) [2024] TZCA 103 (23 February 2024) (TANZLII), at pages 28-29, the Court noted that: We need to state that, in law, oral confession of guilt is as good as any other form of confession and is admissible. It can also be solely acted upon as the basis for conviction provided that it carries sufficient weight, and courts exercise great care before they rely on it. Like other forms of confession, its reliance must be preceded by putting the testimony under the test of voluntariness, consistent with 18 | P a g e section 27 (3) of the Evidence Act - see: Boniface Mathew Maiyango & Another v. Republic, Criminal Appeal No. 358 of 2018 (unreported). It must also have the quality of confession defined in section 3 (1) (a), (b), (c) and (d) of the Evidence Act, in that it must contain an admission by the maker of the culpable role he played in the offence he is accused of - see: Emmanuel Lohay and Udagene Yalooha v. Republic, Criminal Appeal No. 278 of 2010 (unreported). It is my settled view that evidence on record does not support the finding that appellant confessed/admitted to the offence of malicious damage to property. There is no cogent evidence that appellant did confess to warrant conviction. There is nowhere in the record that reveal that when did the appellant confess. PW 1 only mentioned February 2017 when PW 1 allegedly visited the scene of crime. PW 2 never stated when appellant was approached by both PW 1 and PW 2 where allegedly appellant admitted. PW 3 stated to have taken the statement of accused person on 9th May 2019. Thus, there was no confession whether oral or written on record to substantiate conviction as in cross examination, the appellant only stated to have taken some stones belonging to the Tanzania Railway Corporation. 19 | P a g e Appellant never admitted to any aspect relating to the ingredients of the offence he stood charged. To conclude this aspect, I thought it is important to restate the guidance of the Court of Appeal on the ingredients of the offence. In the case of Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) (TANZLII), at page 3, the Court of Appeal reiterated on the crucial role of the charge. It stated that: In the circumstance of this appeal, we want to sound a note on the propriety ofproving the contents of the charge sheet. We presuppose, it is an elementary knowledge of criminalJustice that, the cornerstone of any criminal trial is the charge sheet. The charge sheet is a heart, brain and blood of criminaljustice and fair trial. It plays a duo role of informing the accused person on the nature of his accusation and allow him to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its Jurisdiction and prepare the proper procedure to be applied during trial. Therefore, the charge sheet is the most important document in any criminal trial. 20 | P a g e It is pertinent that this crucial document in administration of justice must be supported by cogent evidence that tally squarely with the particulars of the charge. Disparities between the charge and the evidence have insurmountable effect on the case. To apply the words of the Court of Appeal in Francis Fabian @ Emmanuel vs Republic (supra), at pages 4-5, the Court noted that: Moreover, it is a duty of the prosecution to produce all necessary evidence to each and every allegation made therein. In the case of Abdel Masikiti vs. Republic, Criminal Appeal No. 24 of 2015 (unreported) at page 8 thereof, this Court insisted that, it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates or month, then the charge must be amended in terms of section 234 of the CPA. If this is not done as in this appeal, the preferred charge will remain unproved, and the accused shall be entitled to an acquittal. Short of that a failure ofjustice will occur. 21 | P a g e Though the charge stated that the offence was committed in February 2018, there is no evidence to support that there was any commission of the offence in February 2018. Neither PW 1, PW 2 or PW 3 testified to that effect. Also, neither of all prosecution witnesses testified regarding costs incurred in construction of alleged foundation and wall destroyed. Evidence of PW 4 (Investigation officer) tallies with that of DW 1 in one common theme. The appellant denied having committed the offence of malicious damage to property. That suffices to show that there was no confession with certain despite trial court having so determined. Proof of the case to the required standard and burden of proof is the next aspect to be addressed. It is settled law that prosecution has an obligation to prove the case beyond reasonable doubt. In the case of Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024) (TANZLII), at page 23, the Court of Appeal stated that: Settled, are the principles that reasonable doubts in the prosecution case should be resolved to the benefit of an accused person and also that it is the duty of the prosecution to prove the case against the accused beyond reasonable doubt. The importance for the prosecution to 22 | P a g e prove the case against an accused person beyond reasonable doubts cannot be overemphasised. As to what is a proof beyond reasonable doubts, the Court in Magendo Paul & Another v. Republic [1993] T.L.R. 219, stated that: "For a case to be taken to have been proved beyond reasonable doubts, its evidence must be strong against the accused person as to /eave remote possibility in his favour which can easily be dismissib/e." As I have demonstrated in foregoing analysis, there was no strong evidence against the appellant to substantiate proof of the case beyond reasonable doubt. The evidence of the prosecution was so scanty to establish all ingredients of the offence of malicious damage to property. Indeed, the order of compensation of TZS 4,000,000/= was never proved at all as no witness of the prosecution did testify on this aspect. The judgment of the trial court in pages 4, 5 and 6 contains a serious error. This is the analysis of evidence by the trial court where lucidly the court stated to have based on the contradiction and unreliability of the defence case to convict. The trial court basis to find the conviction and sentence of the appellant based on weaknesses of the defence case is an anomaly that is violative of criminal law principles. The decision shifted the burden of proof from the prosecution to the defence. It is contrary to the 23 | P a g e law. For instance, in the case of Maganga s/o Udugali vs Republic (Criminal Appeal No. 144 of 2017) [2021] TZCA 639 (3 November 2021) (TANZLII), at page 24, the Court observed that: After all, all what an accused Is required to do in his defence is to raise doubts on the evidence of the prosecution side. We think that the appellant managed to raise such doubts which ought to have gone to his benefit. There was no evidence tendered in court to support assertion that appellant promised to refund the complainant on the stones. There was no evidence that it is the appellant who damaged the foundation of the complainant. After all, it was the evidence of PW 1 who is the Complainant stated that he found water pipes of the SUWASA laid in the place where the foundation previously existed. This raises reasonable doubts on the participation of the appellant in commission of the offence. The reason is simple if there are water pipes of SUWASA laid in the place where foundation was situated how could the same be attributed to the appellant in absence of any witness from SUWASA to prove that it is appellant who destroyed the foundation to facilitate them laying water pipes. The third and fourth grounds of appeal are meritorious as the same indicates that evidence on record does not support conviction given the 24 | P a g e weakness of the prosecution's case. As a result of insufficiency of the evidence of the prosecution to establish the case of malicious damage to property. In the upshot, I find this appeal has merits. I quash the conviction of the appellant by the District Court of Singida for the offence of malicious damage to property as the case against the appellant was not proved. I set aside both the sentence entered and the order of compensation for being violative of the law as it is not based on any cogent evidence on record. The appellant is hereby set free unless there is any other lawful cause to the contrary. It is so ordered. DATED at DODOMA this 3rd day of July 2024. E.E. LONGOPA JUDGE 03/07/2024 25 | P a g e A