JUDGMENT SIKITU MGALLA VS OSCAR MLAGHA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA PC. CRIMINAL APPEAL NO. 7582 OF 2024 CASE REFERENCE NO. 202403202000007582 (Originating in criminal Appeal No. 40459 of 2023 in the District court of Mbozi in original Criminal Case No. 118 of 2023 in the primary court of Mbozi district at Mlowo) between SIKITU ALBERT MGALLA ..........................................................APPELLANT VERSUS OSCAR MLAGHA ......................................................................RESPONDENT JUDGMENT Date of hearing: 12/8/2024 Date of judgment: 23/9/2024 NONGWA, J. This is a second appeal against the judgment of the primary court of Mbozi district at Mlowo in Criminal Case No. 188 of 2023 in which the appellant was convicted and sentenced with the offence of trespass to land and upheld by the district court of Mbozi in Criminal Appeal No. 40459 of 2023. 1 Briefly, the parties had a dispute over a piece of land located at Shiwinga village within Mbozi district in Songwe region, the appellant claimed to have bought it from one Melina Mgalla. The appellant had a claim of ownership over the same. This ensued a dispute necessitating the appellant to institute Application No. 50 of 2022 in the District Land and Housing Tribunal for Songwe at Mbozi against the respondent and Melina Mgalla, the same was withdrawn at the instance of the appellant. The disturbances and confrontation went on, the respondent had to file Application No. 27 of 2023 in the District Land and Housing Tribunal for Songwe against the appellant and Melina Mgalla. It was decided in favour of the respondent. Upon being declared the lawful owner, the respondent cultivated the land for two days, when he went to sow beans found the appellant had made ridges and beans sowed. The matter was reported to hamlet and village leaders who issued a letter to find the appellant. Later Criminal Case No. 188 of 2023 was filed in the primary court of Mbozi district at Mlowo for criminal trespass under section 299 of the Penal Code, Cap 16. After full hearing the appellant was convicted and sentenced to ten months imprisonment and ordered to pay of compensation of Tsh. 400,000/=. The sentence was confirmed by the district court vide Criminal Confirmation Case No. 39550 of 2023. The appellant’s appeal to the 2 district court of Mbozi vide Criminal Appeal No. 450459 was unsuccessful. Hence this appeal. The petition of appeal consists of six grounds of appeal one, that the appellate court magistrate erred in both law and fact by failure to re- evaluate the chain of circumstantial evidence on record and determined it effectively, thus led to uphold erroneous decision of Mlowo primary court; two, that both the subordinate courts erred in law and facts for convicting and sentencing the appellant while the respondent failed to prove the case beyond reasonable doubt; three, that both subordinate courts erred in law and facts for failure to make analysis and evaluation of evidence hence the evidence of the appellant was strong proof that he did not commit such offence; four, that both subordinate courts erred in law and facts by holding that the sentence imposed to the appellant is discretional and not mandatory; five, that both subordinate courts erred in law and fact by trying the criminal trespass case which was instituted prematurely by respondent and his intention was malice; and six, that , the appellate court erred in both law and facts by condoning the failure of primary court to disclose its duty during the trial case. When the appeal was called on for hearing, parties appeared in person, they prayed and were granted leave to argue the appeal by filing written submission. 3 Submitting in the first ground that conviction was based on circumstantial evidence and lower court failed to evaluate it, the appellant referred to the definition of circumstantial evidence under the Black’s Law Dictionary as evidence based on inference and not on personal knowledge or observation. He also referred to Sarkar on Evidence, Fifteenth Edition, in which the author enumerates eight criteria for circumstantial evidence to ground conviction. Having laid such foundation the appellant submitted that he was not seen by any one making ridge and sowing beans, and was not found at scene committing such offence. In support cited the argument with the case of this court of Kastuli Boay @ Deewasi vs Republic, Criminal Appeal No. 139 of 2022 [2023] TZHC 20395 (24 July 2023; TanzLII). In second ground that the complainant did not prove the case beyond reasonable doubt, the appellant submitted that although the respondent went to the farm with labours to find it cultivated and laid the information to the village chairman, none of them was called to testify in support. He argued that such witnesses were important to clear some ambiguities and hearsay allegations that arose during trial on the part of the complainant. Ground three is that the lower courts failed to analysis and evaluated the evidence of appellant, the appellant admitted to have land 4 dispute with the respondent but denied to have trespassed the land as testified by his witnesses. In ground four on sentence imposed on him, the appellant submitted that sentence was excessive and contrary to the law. He submitted that the duty of the court is to impose sentence directed by the law, according to the appellant, the law imposes the sentence of three months and there was no ambiguous on the statute. He cited the case of Republic vs Mwesige Godfrey & Another, Criminal Appeal No. 355 of 2015 [2015] TZCA 264 (19 February 2015; TanzLII) to support the argument. Ground five and six were conjointly argued that the report of crime trespass was vexation and malafide because he has no reasonable cause and evidence to prove. That, it was prematurely instituted as the respondent was supposed to wait and look for a person who would appear to do any tasks in the suit land. He said the trial court was supposed to conduct locus in quo to the land to prove the Actus reus and Mens rea. From the above the appellant prayed the appeal to be allowed. Replying the first ground on circumstantial evidence, the respondent submitted that from the circumstances of this case, it is clear that it is the appellant only who committed the offence of criminal trespass on the land. He added the appellant is the one who had the dispute with the respondent over the trespassed land, the dispute which was already 5 decided by the competent tribunal to its finality. Further submission was that it is the appellant who more than one time had entered the land of respondent, unlawfully cultivated crops and unlawfully injured animals in the respondent’s land and he was subsequently charged, convicted and sentenced of those offences. He supported the argument with the case of Republic vs Zanzibar Kalegea, Criminal Session Case No. 122 of 2020 [2023] TZHC 15958 (10 March 2023; TanzLII). On whether he proved the case beyond reasonable doubt, the respondent was in favour of the lower courts’ findings. He added that under section 143 of the Evidence Act no particular number of witnesses is required, but witnesses’ credibility. He submitted that the mentioned witnesses were not material. In ground three, the respondent submitted that he proved the case according to rule 5(1) Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulation, GN No. 22 of 1964 and the appellant’s evidence did not raise any doubts over the respondent’s evidence. On sentence imposed, the respondent submitted that the lower court applied the law correctly as was moved by previous record of the appellant who had criminal record. He added that the trial magistrate was aware of his sentencing powers, the reason he referred the matter under of Rule 7 (1) of the Primary Courts Criminal Procedure Code before the district court for confirmation of sentence. 6 In ground five and six, it was submitted that it was a new practice that after the commission of offence the respondent had to wait and see who appear without reporting to relevant authority. On locus in quo, it was argued that there was no necessity of the same. He supported the argument with the case of Bomu Mohamed vs Hamisi Amiri, Civil Appeal No. 99 of 2018 [2020] TZCA 29 (27 February 2020; TanzLII). During rejoinder, the appellant restated his earlier submission save addition of the case of Mpunzu @ Elisha Mpunzu vs Republic, Criminal Appeal No. 12 of 2002 [2004] TZCA 3 (28 June 2004; TanzLII) on circumstantial evidence and Malik George Ngendakumana vs Republic, Criminal Appeal No. 353 of 2014 [2015] TZCA 295 (24 February 2015; TanzLII) on burden of proof. Having considered the record of appeal and rival submissions for and against the appeal, I will start with ground four which is on point of law touching sentencing powers of the trial court. Then I will move to ground one while ground two, three, five and six together will be dealt conjointly. Starting with sentencing power of the primary court, the appellant has submitted that the law imposes the sentence of three months’ imprisonment for the offence of criminal trespass. The respondent argued that the trial court sent for confirmation of sentence as required by the law. 7 All courts are creature of statutes which sets out the power and limit of the court in certain matter. The primary court derives its powers under the Magistrates’ Courts Act, Cap 11. Section 7(1) sets out sentencing power of the primary court, it provides; ‘7(1) Notwithstanding the foregoing provisions of this Part, no sentence or order of a primary court- (a) of imprisonment for a term exceeding six months; (b) of corporal punishment on an adult; (c) of supervision of a habitual offender; or (d) of forfeiture in the exercise of its criminal jurisdiction, shall be carried into effect unless it has been confirmed by the district court: Provided that, nothing in this subsection shall apply in any case where a person is convicted of an offence specified in any of the Schedules to the Minimum Sentences Act and sentenced to the minimum term of imprisonment provided for by that Act.’ The above provision empowers the primary court to pass the sentence not exceeding six months imprisonment, corporal punishment to adult person, supervision of habitual offender and forfeiture in its criminal jurisdiction unless such sentence is sent for confirmation to the district court. However, when a person is charged with the offence the sentence is provided under the Minimum Sentence Act, the primary court has to pass such sentence and no confirmation is required. 8 At hand, the appellant was charged and convicted with criminal trespass under section 299 of the Penal Code, it provides; ‘299. Any person who- (a) 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 the property; or (b) having lawfully entered into or upon the property unlawfully remains there with intent thereby to intimidate, insult or annoy the person in possession of the property or with intent to commit an offence, is guilty of criminal trespass and liable to imprisonment for three months; if the property upon which the offence is committed is any building, tent or vessel used as a human dwelling or any building used as a place of worship or as a place for the custody of property, the offender is liable to imprisonment for one year. is committed in any building, tent or vessel used as a human dwelling or any building used as a place of worship or as a place for the custody of property, the offender is liable to imprisonment for one year. (emphasis supplied) The above law categories the offence of criminal trespass into two category, one normal trespass the imposed sentence is three months imprisonment and two, trespass to building used as human dwelling or a place of worship or place for the custody of property, the sentence of which is one year. 9 The appellant has argued that the sentence of three months is mandatory and the trial court had no power to sentence more than that. The respondent said the sentence was sent for confirmation. Perusing the record, the appellant was charged with normal criminal trespass, that is trespass to land used for agriculture, thus upon conviction the primary court was supposed to pass the sentence of three-month imprisonment. The phrase used is “liable” which means the court has discretion to pass sentence prescribed by the law, no more. I agree with the first appellate court that the court has discretion to pass sentence where the word used “is liable” however, the sentence passed has to be within the limit mentioned by the law not more than that. From the above, it is now clear that for the offence of trespass to land the court can only pass sentence of not more than three months. I agree with the appellant that the sentence of ten months imposed to the appellant was illegal sentence, even though it was sent for confirmation as the trial court acted without jurisdiction in passing such sentence. Thus, ground four has merit. In first ground on circumstantial evidence, I have perused the record of the district court and found this is a new ground never raised in the first appellate court. It is a settled principle that a ground which was not raised and determined by the first appellate court cannot be 10 entertained by the Court in a second appeal, unless it involves a matter of law. Thus, I decline to entertain the first ground by itself. Advancing to ground two, three, five and six together they all boils to the question whether the respondent proved the case against the appellant beyond reasonable doubt. Being criminal case it is noteworthy that in our criminal justice system like elsewhere, the burden of proving a charge against an accused person is on the prosecution including when the case is prosecuted by private prosecutor or claimant as commonly conducted in primary court. This is a universal standard in all criminal trials and the burden never shifts to the accused. In the primary court burden of proof is embodied under rule 1(1) and 5(1) of the Magistrate’s Courts Act (Rules of Evidence in Primary Courts) Regulations G.N. 22 of 1964. Rule 5(1), it provides; ‘In criminal cases, the court must be satisfied beyond reasonable doubt that the accused committed the offence.’ The term beyond reasonable doubt is not statutory defined but case law has tried to do so. In Magendo Paul & Another vs Republic [1993] TLR 219 the Court held that: ‘For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed.’ 11 I am not losing sight that there is concurrent finding of the two lower courts on conviction of the appellant. As a general principle, the second appellate court is not expected to interfere with the concurrent findings of facts made by the lower courts. Interference can only occur where there is misapprehension of evidence or a violation of some principle of law. In Jafari Mohamed vs Republic, Criminal Appeal No. 112 of 2006 [2013] TZCA 344 (15 March 2013; TanzLII) the court stated; ‘An appellate court, like this one, will only interfere with such concurrent findings of fact only if it is satisfied that they are on the face of it unreasonable or perverse" leading to a miscarriage of justice, or there have been a misapprehension of evidence or a violation of some principle of law…’ I have perused the record of the trial court and found that conviction of the appellant was based on previous land disputes they had with the respondent which were all resolved by the District Land and Housing Tribunal. That is Application No. 50 of 2022 instituted by the appellant, later withdrawn without and apparent reason and Application No 27 of 2023 instituted by the respondent against the appellant and another person decided in favour of the respondent. It was admitted in evidence as exhibit P1 and P2 respectively. Evidence in record which was accepted by lower courts is clear that nobody saw the appellant cultivating and sowing beans, he was 12 only charged for suspicion based on previous claim over the land. In this appeal the appellant has maintained that is not the one who created ridges while the respondent submitted that no person other than the appellant could have done that. It is trite principle of the law that suspicion, however strong is not enough to find the accused guilty of an offence charged, this was pronounced in the case of Hakimu Mfaume vs Republic [1984] TLR 201, in that case the appellant had quarreled with his wife, prompting her to flee to her father's house, where the dispute continued. The appellant eventually left the house, making threats that he would harm his father-in-law. Shortly after, his father-in-law's house caught fire. The appellant was later charged with and convicted of arson. The court held; ‘There may be strong suspicion against him because of the threats he uttered. But suspicion, however, strong is not sufficient evidence to convict. Anyone may have set the complainant's house on fire, and not necessarily the appellant. The previous quarrels with the complainant should not be a basis for convicting the appellant without any other evidence.’ (Emphasis supplied). I have perused the sole evidence of the respondent and found it did not irresistibly point to the appellant as the one who made ridge and sowed beans. For clarity it is reproduced 13 Baada ya kupewa ushindi kwenye kesi hii nikalima shamba tarehe 5 hadi 7/11/2023 ndipo tarehe 8/11/2023 nilienda na vibarua tukapande nikakuta mshitakiwa ametengeneza matuta anapanda maharage niliutaarifu uongozi wa kitongoji wakafika wakashuhudia tukayenda naye offisini tukamkuta mwenyekiti wa Kijiji nikapewa barua ya kumtafuta mshtakiwa hakupatikana ndipo nikamfungulia kesi huu. Literally translated to mean After winning this case I cultivate the farm from 5 to 7/11/2023, then on 8/11/2023 I went with labourers to seed I found the accused has made ridges and seeded beans I informed the hamlet leader they came and witnesses we went with him to the office we meet village chairman I was given a letter to look for the accused but he was not found then I instituted this case against him. The lower courts believed the above evidence and took it as a wholesale to base their conviction on previous claim by the appellant over the land with the respondent without taking into account that the appellant denied to have enter the respondent’s land. On my part, the respondent’s evidence was not watertight when considered with defence evidence, the appellant was not found in the farm. Making breakdown of the chain, there is evidence of the respondent that he cultivated the same farm for two days, but no evidence where now the appellant made those ridges and sowed 14 beans, was it in the cultivated farm or there was another land left. While I admit that the appellant and respondent had dispute over the land allegedly trespassed but should not be a basis for convicting the appellant without any other evidence. Anyone may have made ridges and not necessarily the appellant. The appellant’s guilty was not established beyond reasonable doubt as required by rule 1(1) and 5(1) of the Magistrate’s Courts Act (Rules of Evidence in Primary Courts) Regulations. In the end, I find merit in the appeal and allow it. I accordingly quash the conviction and set aside the sentence imposed on him together with order to pay a compensation of TZS. 400,000/=. If the appellant is still in prison, I order his immediate release unless held for some other lawful cause. V.M. NONGWA JUDGE 23/9/2024 15 Dated and Delivered at Mbeya this 23rd September 2024 in presence of the appellant and the respondent. V.M. NONGWA JUDGE 16