steven ndemasi ndyendya vs alphonce aldo ndyendya 2021 tzhc 9231 10 december 2021

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (IRINGA REGISTRY) APPELLATE JURISDICTION AT IRINGA (PC) CRIMINAL APPEAL NO. 06 OF 2020 (Originating from Iringa District Court Criminal Appeal No. 03 of2020 from Urban Primary Court Criminal Case No. 388 of 2019) STEVEN NDEMASI NDYENDYA................... APPELLANT VERSUS ALPHONCE ALDO NDYENDYA................. RESPONDENT 03/11 & 10/12/2021 JUDGMENT. MATOGOLO.J, The respondent Alphonce s/o Aldo Ndendya was arraigned before Iringa Urban Primary court for an offence of injuries to property c/s 326 of the Penal Code (cap 16 R.E 2002). It was alleged in the particulars of the that, on 29/08/2019 at Udumuka Village Iringa Rural District within Iringa Region, the respondent destroyed the properties of the appellant one Steven Ndemasi Ndyendya by cutting down the trees worth Tshs. 2, 860,000/=After a full trial the respondent was found not guilty and was acquitted. The appellant appealed to the District Court of Iringa still his 1 | P a ge appeal was dismissed. Then, the appellant filed to this court his petition of appeal with a total of three (3) grounds of appeal as follows:- 1. That, the judgment of the learned appellate Court Magistrate is no judgment at all in that, it deviated from the grounds of appeal tabled before the court by the appellant for a tremendous purpose of being resolved by the appellate court. 2. That, the learned appellate court Magistrate erred both in law and fact by upholding the decision of the trial court which essentially based upon the land dispute between the parties of which basically was conclusively determined by the District Land and Housing Tribunal for Iringa. 3. That, the learned appellate court Magistrate erred both in law and fact by upholding the decision of the trial court which is an outcome of an entertainment of the land dispute between the parties. The appellant prays to this Court to quash and set aside the trial court decision and order trial de novo and/ or any other directions may deem fit and just to grant. At the hearing of this appeal Mr. Leornard Sweke represented the appellant while the respondent appeared in person (unrepresented). The matter was argued through written submissions. 2 | Pa g e Regarding the first ground of appeal that, the judgment of the learned appellate Court Magistrate is no judgment at all in that, it deviated from the grounds of appeal tabled before the court by the appellant for a tremendous purpose of being resolved by the appellate court, Mr. Sweke submitted that, the term judgment is defined under section 3 of the Civil Procedure Code (Cap 33 R.E 2019) to mean a statement given by a Judge or Magistrate of the grounds for decision or order. He said, judgment is the culmination of the trial which finally determines the rights and obligations of the parties or guilt or innocence of an accused person. He submitted that, it is undisputed fact that judgment writing is a matter of style. Every Judge or Magistrate has got his or her own style of composing a judgment, what matters is the essential ingredients of a judgment should be there, to support his argument he referred this court to the case of Mohamed versus Republic [1994] TLR 138. Mr. Sweke was of a considered view that, a good judgment is one which complies with the requirements under section 312 of the Criminal Procedure Act, [Cap 20 R.E 2019] read together with Section 230 thereto or Order XX Rule 4 of the Civil Procedure Code or Rule 16 of G.N. NO. 312 of 1964 as the case may be. He further submitted that, the judgment must contain a concise statement of the case, the points for determination as well as reasons for determination, judgment has three main purposes namely; (i) to clarify the Judge's or Magistrate's thoughts; (ii) to explain Judge's or Magistrate's decision to the parties and (iii) to communicate the reason(s) for decision to the parties and to the public. 3 | Pa g e Mr. Sweke submitted that, at the instant matter it is on the appellate records on page 8 and 9, the appellate Magistrate decided to deviate from the ground of appeal tabled by the appellant before appellate court and instead she was discussing her own issues that arose from nowhere, those were discussed by her without involving any grounds of appeal enshrined in the petition of appeal within which the appellant's goals in that appeal were those three grounds of appeal to be resolved by the appellate giving the answers as to whether the trial court was right in the entire procedure of handling the matter before it and the decision it reached. For that reason Mr. Sweke prayed for this court to quash and set aside the trial and appellate court decisions and order trial de novo. As to ground of appeal No. 2 that, the learned appellate court Magistrate erred both in law and fact by upholding the decision of the trial court which essentially is based upon the land dispute between the parties of which basically was conclusively determined by the District Land and Housing Tribunal for Iringa. Mr. Sweke submitted that, it is apparently clear from the trial court records that, before institution of Criminal Case No. 388 of 2019, the parties herein had a land dispute to wit Application No. 172 of 2016 in the District Land and Housing Tribunal for Iringa which was decided in favour of the Appellant. The Respondent did not bother himself to appeal to this Court. Then the Appellant herein after winning the case filed an application for execution in the same Tribunal in Miscellaneous Application for Execution No. 25 of 2016 within which application also the Respondent did not dispute. 4 1 P a ge Mr. Sweke submitted further that, following such an application, the Respondent was forcefully evicted from the aforesaid disputed land by court brokers Majembe Auction Mart Limited, the Respondent signed all the documents without any dispute, which is conspicuously clear that the moment of speaking, the Appellant is the lawful owner of the aforesaid suit premises. The appellant before the trial Court tendered documentary evidence which were admitted by the trial Magistrate and Marked exhibit A, B, C, D, E, F, G and H though the trial Magistrate did not bother herself to consider the same in her decision. He went on submitting further that, the trial Court Magistrate was required by the Law to entertain and determine the matter before her in accordance with Criminal Procedural Requirements enshrined under the Third Schedule to Magistrate's Act (Cap 11 R.E 2019) which is a Primary Court Criminal Procedure Code. He also bolstered his argument by referring to this court the case of Joseph John Makune versus Republic[1986] TLR 44 and the case of Seieman THwiiizayo versus The Republic [1983] TLR 402. He argued that, the trial Magistrate turned the court into the District Land Housing Tribunal having in contemplation that the land dispute was rightly resolved by the District Land and Housing Tribunal for Iringa. Basing on his argument on ground of appeal No. 02 he prayed for this court to allow this appeal and nullify the proceedings of both the trial and appellate Courts and order a trial denovo. 5 ] P a ge With regard to ground of appeal No. 3 that, the learned appellate court Magistrate erred both in law and fact by upholding the decision of the trial court which is an outcome of an entertainment of the land dispute between the parties. He submitted that, the Honourable appellate Magistrate was required to hear and determine upon the appellant's grounds of appeal in deciding as to which circumstances the trial court erred in law and fact and which procedures is to be rectified as the appellate court is vested with power under section 21 (1) (c) and (d) of The Magistrate's Courts Act [Cap 11 R.E 2019. He cemented his argument by referring this court to the case of S (Infant) versus Manchester City Recorder (1969) 3 ALL ER 92 in which it was held that:- " The desire of any court must be to ensure so far as possible that only those are punished who are in fact guilty. The duty of the court to dear the innocent must be equal or superior in importance to Its duty to convict and punish the guilty" Mr. Sweke submitted that, the appellant in Criminal case No. 388 of 2019 proved his case before the trial court beyond reasonable doubt through his witnesses and documentary evidence which were admitted by the trial Magistrate and marked Exhibits A,B,C,D,E,F,G and H though the trial Magistrate did not bother herself to consider the same in her decision. 6 1 P a ge He concluded his submission by praying to this court to quash and set aside the trial and appellate court decisions and order trial de novo and/or any other directions it may deem fit and just to grant In reply the respondent resisted the appeal. With regard to ground No. 01 he submitted that, the judgment at hand clearly contains concise statement of the case, it analyzed points for determination and it has good reason for the decision to fit the requirements mentioned in the case of Mohamed versus Republic (supra). He submitted that, he does not see any reason for the matter to be tried de novo and he prayed for this ground to be dismissed as it lacks merit. With regard to ground No. 02, he submitted that, it is not clear as to whether the land which was in dispute over trespass determination is the same land in dispute dealt with in Land Application No. 172 of 2016 by the District Land and Housing Tribunal for Iringa as the same is not well identified as required, he supported his argument by referring this court to the case of Daniel Dagaia Kanuda versus Masaka Ibeho & 4 Others Land Appeal No. 26 of 2015 (unreported) in which it was held that:- " The description of the land in the matter at hand was thus not sufficient enough for identifying it so that the tribunal could effectively resolve the controversy between the parties.......the matters was thus 7 | P a ge incompetent before the tribunal for uncertainty of the subject matter" He went on submitting that, considering the above in relation to this case, while complaining for trespass it was mandatory for the appellant to state clearly which land he refers to by mentioning its clear location and boundaries too in order to allow other part defend or respond it while knowing specific land referred to, but failure to identify it renders the respondent fail to understand whether it is the same land which was in dispute before the District Land and Housing Tribunal or not. He went on contending that, the land which the appellant claimed that the respondent had trespassed had never been in dispute with the appellant and there is no execution which was done to that effect. He argued that, since the execution was not done then the appellant would have gone to the District Land and Housing Tribunal for completion of execution which was incomplete and therefore those exhibits were not mean for the disputed land in this appeal at hand. He prayed for this ground of appeal be dismissed for lack of merit. With regard to ground of appeal no. 03, he submitted that, the Magistrate was right to instruct the parties to deal with probate which is estate of their late father as those were facts which were before the court and not land dispute as so claimed by the appellant's counsel. He contended that, there is no way you can deal with the deceased's property without involving his administrator of estate if exists but in facts of this case at hand it was revealed that, the initial owner of the farm in dispute 8 [ Page was dead and no administrator of estate was appointed, so the first appellate was right by instructing the parties to go and appoint an administrator of the estate of the late Ndemasi Ndendya who is the father of the appellant and grand father of the respondent as it was held in the Primary court at page 6 of the last paragraph the decision which was uphold by the first appellate court. The respondent went on submitting that, the appellant had never in his life time occupied or used the land in dispute so as to term the respondent as a trespasser as the respondent himself and his father and relatives have been in use and occupation of the land in dispute more than 30 years undisturbed by any person including the appellant himself up to now and no any execution order from anywhere and from any court have been made against the land in dispute. The respondent concluded by praying to this court to dismiss this appeal with costs and any other relief this court will deem fit and just to grant. In rejoinder Mr. Sweke reiterated what he submitted in chief and he added that, the respondent at this juncture cannot nock the rear doors of this Court by raising the issue of absence of clearness as to whether the land which was in dispute over trespass determination was the same land in dispute dealt by the District Land and Housing Tribunal for Iringa at Iringa in Land Application No. 172 of 2016 as the same is not well identified. He argued that, as the issue was not canvassed and pleaded at the lower court contrary to the law, and supported his argument by referring this court to the case of Yazidi Rajabu Aka Byamungu and 2 9 | Page Others versus Nakuroi Investment Co. Ltd, Land Appeal No. 118 of 2016 HC of Tanzania at Dar es Salaam (unreported). With regard to the third ground of appeal Mr. Sweke submitted that, the respondent has tried to bring new fact that have even never been discussed in his written submission in chief. Mr. Sweke insisted for this court to quash and set aside the trial and appellate court decisions and order trial de novo and/ or any directions it may deem fit and just to grant. Having read the respective submissions by the parties and having carefully read the grounds of appeal as well as having carefully examining the courts record the only issue for determination here is whether this appeal has merit. Starting with the first ground of appeal the min complaint is that, the appellate court judgment is no judgment at all in that, as it deviated from the grounds of appeal tabled before the court by the appellant for a purpose of being resolved by the appellate court. Mr. Sweke argued that, every Judge or Magistrate has got his or her own style of composing a judgment, and cited provisions and case laws which direct to preparation of good judgment. On his part the respondent supported the judgment by the first appellate court to be valid judgment prepared according to the law as it contains all ingredient of Judgment. Upon carefully read the appellate court judgment, I agree with the learned counsel for the appellant that, the judgment to be a judgment in law must contain all essential elements of a judgment. I am also glad to 10 ] P a g e hear from Mr. Sweke that every Judge or Magistrate has his/her own style of composing the judgment but what matters is that, a judgment must contain all essential ingredients of a judgment. Upon reading the appellate court judgment it is true that, the appellate court did not discuss or determined the grounds of appeal presented before it, but raised an issue to see if the charged offence was adequately proved against the accused (respondent). I think the appellate Magistrate dealt with the appeal generally and at the end she found the appeal has no merit as the appellant at the trial court failed to prove beyond reasonable doubt that, it is the respondent who cut his trees. In my view the judgment of the appellate court qualify to be a judgment despite minor shortcomings. But provided that the essential ingredient of the charged offence was not proved, the appellant had that burden of proof which could not shift to the respondent. For that case the first ground of appeal has no merit the same is dismissed. Regarding the second ground of appeal, the main complaint is that, the appellate court erred to uphold the decision of the trial court which essentially based upon the land dispute between the parties of which it was conclusively determined by the District Land and Housing Tribunal for Iringa. Mr. Sweke submitted that, before institution of this case the parties herein had a land dispute in application No. 172 of 2016 before the District Land and Housing Tribunal and the case ended in favour of the appellant and the respondent did not bother himself to appeal. Thereafter the 111 P a g e appellant filed an application for execution as application Miscellaneous Application for Execution No. 25 of 2016 and the respondent did not dispute it. The respondent herein was forcefully evicted from the aforesaid disputed land by court brokers Majembe auction Mart Limited. The respondent on his part submitted that, it is not clear as to whether the land which was in dispute over trespass determination is the same land in dispute dealt by in Land Application No. 172 of 2016. He argued that, since the execution was not done then the appellant would have gone to the District Land and Housing Tribunal for completion of execution which was incomplete and therefore those exhibits were not meant for the disputed land in this appeal. He concluded by submitting that, the land which the appellant claimed that the respondent has trespassed has never been in dispute with the appellant and there is no execution which was done in that effect. Having carefully examined the court records it is clear that, the parties herein had a land dispute in application No. 172 of 2016 before the District Land and Housing Tribunal and the case which ended in favour of the appellant and the respondent did not appeal against the said decision, this can be proved through documentary evidence which were tendered at the trial court as exhibits A,B,C,D,E,F,G and H and the same were admitted without being objected as can be seen at page 6 of the trial court typed proceedings. The respondent neither cross-examined the appellant regarding the said exhibits. It is principle of law that, failure to cross- examine a witness on an important witness signifies that, a party is 12 | P a g e admitting to what the witness has told the court, for that reason the respondent cannot be heard at this stage contending that, it is not clear whether the land which was in dispute over trespass determination is the same land in dispute dealt in Land Application No. 172 of 2016 by the District Land and Housing Tribunal for Iringa. His failure to cross-examine PW1 when tendered in court the exhibits signifies that, he agreed that the tendered exhibits were concerned with the land in dispute. In the case of Nyerere Nyague is Repubtig Criminal Appeal No.67 of 2010 (unreported), the court held:- "As a matter of principle, a part who fails to cross- examine a witness on a certain matter is deemed to have accepted that matter and will be stopped from asking the trial court to disbelieve" Thus, I am fully satisfied that, the land in dispute between the parties was fully determined by the DLHT for Iringa, thus the trial Magistrate erred to order the parties to go and institute the land dispute in the Land tribunals, hence this ground of appeal has merit. As the third ground of appeal is interrelated with the second ground I need not discuss it. This being a second appeal, it is an established principle of law that, a second appellate court can only interfere with the concurrent findings of 13 | P a g e the two courts or tribunals below where, it is satisfied that the courts or tribunals below have misapprehended the evidence in such a manner to make it clear that their conclusions are based on incorrect premises. The same position was held in the case of Amratlarl Damodar Maitaser and Another t/a Zanzibar Silk Stores vs. A.H Jariwaiia t/a Zanzibar Hotel[1980] TLR 31, where at page 32 it was held that:- "where there are concurrent findings of facts by two courts, the court of Appeal, as a wise rule of practicing should not disturb them unless it is clearly shown that there has been a misapprehension of evidencing a miscarriage of Justice or violation of some principle of law or procedure". Having scrutinized the evidence on record and findings of the two courts below, I am of the view that, there is misapprehension of evidence by the trial court, thus, there is a need for this court to interfere with the findings by the two courts below. As the land dispute between the parties were already determined by the DLHT, the trial court was supposed to deal with the case before it as it was instituted. That said, I find merit in this appeal is partly allowed, the decisions and order by the two courts are quashed and set aside, It is hereby ordered that the case be tried de novo but before another magistrate with competent jurisdiction and a new set of assessors. 14 | P a g e It is so ordered. JUDGE 10/12/2021. Date: 10/12/2021 Coram: Hon. F. N. Matogolo - Judge Appellant: Absent Respondent: Present C/C: Charles COURT; Judgment delivered today the 10th day of December, 2021 in the presence of the Respondent but in the absence of the appellant and his advocate. JUDGE 10/12/2021 15 | P a g e