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T H E JU D IC IA R Y O F T A N Z A N IA

IN T H E H IG H C O U R T O F T A N Z A N IA A T M A N Y A R A PC C R IM IN A L A P P E A L NO . 000029500 O F 2024 S IG E T E K W A Y .................................. C O M P L A IN A N T / A P P E L L A N T / A P P L IC A N T

V E R SU S SH A B A N I T E K W A Y .................................. R E S P O N D E N T / D E F E N D A N T

JU D G M E N T KAM UZORA, J 25th N ovem ber & 17th February, 2025 The respondent was charged before the prim ary court for stealing m aize from the ap p ellan t’s farm. The primary court found the respondent not guilty and acquitted him. The appellant unsuccessfully appealed to the district court and this is a second appeal. He raised five grounds o f appeal but during hearing, he dropped the 5th ground and argued jointly the 1st, 2nd and 3rd grounds w hile the 4th ground was argued separately. From the argued grounds o f appeal, two issues can be captured; 1. W hether, the district court failed to properly analyse the evidence from both parties.

2. W hether, the district court failed to consider and observe principle o f fair hearing. W hen the m atter was called for hearing, parties appeared in person and with consensus, they agreed to argue the appeal by w ay o f written subm issions. The appellant com plied to the subm issions schedule save for the respondent. In his subm ission on w hether there was proper analysis o f evidence, the appellant contended that, the trial court based its decision on unfounded and cooked evidence as well as forged docum ents. That, had the first appellant court re-assessed the evidence, it w ould have realized that error. He subm itted that, the appellant’s case was proved beyond reasonable doubt for he presented evidence proving that he w as a lessee to the land which was legally owned by the lessor. That, the respondent presented forged docum ent claim ing to be the ow ner o f the land and it was relied upon by the two low er courts arriving to erroneous decision. The appellant insisted that, the respondent never ow ned land to w hich the stolen crops were cultivated thus, he prayed for this court to order investigation on the respondent’s docum ents w hich he claim ed, it was used to escape crim inal liability. 11c m aintained that, the low er courts acquitted the respondents relying on forged and fabricated docum ents. On the second issue, the appellant subm itted that the first two

low er courts disregarded the principle o f fair hearing. He subm itted that, at all tim es before the trial court and the first appellate court, the appellant prayed for the court to order investigation o f the respondent’s docum ents for they w ere forged but the two courts below w ere reluctant to act and as a result, the forged docum ent was relied upon to acquit the respondent. He insisted that the respondent Page. 1 Hon.. DEVOTHA KAM UZORA never ow ned the land to w hich the crops w ere cultivated thus, by failure to order investigation on the validity o f the docum ent relied upon by the respondent, the court was unable to see the reality o f the m atter hence, no justice attained. I w ill start w ith the second issue based on procedural irregularity in which, the appellant is faulting the two lower courts for failure to order investigation o f the docum ents relied upon by the respondent. Having gone through the proceedings o f the trial court, there is no corresponding proceedings on the tendering or adm ission o f any docum entary exhibit from the respondent. The respondent testified in court w ithout tendering any exhibit but in her reasoning, the trial m agistrate referred the purchase contract from the respondent. On appeal, the first appellate court also referred that docum ent and concluded that there was dispute over ow nership o f land w hich was yet to

be determ ined thus, there cannot be evidence for stealing. I see m erit in this issue but not on the appellant’s argum ent that the docum ent was forged but because the referred docum ent was never m ade part o f the evidence before the trial court. The two low er courts erred in referring such docum ent in their decisions w hile it was not part o f evidence. Therefore, w hether the said docum ent was forged or not, it cannot be an issue for discussion before this court for it was w rongly referred to by the two courts below. Sim ilarly, the argum ent that there w as no fair hearing merely because the tw o low er courts failed to order investigation on the claim for forgery over the respondent’s docum ent, cannot stand. Therefore, the prayer for investigation order before this court is defunct. Turning to the first issue w hich refers to the court’s failure to analyse evidence, I agree w ith the appellant that the first appellate court was unable to re-appraise the evidence. From the judgm ent, it is clear that while the first appellate court w as called upon to re-appraise the evidence, the m agistrate suo motu raised an issue over the com petence o f the charge sheet and concluded that the charge was defective for duplicity. The basis for the alleged duplicity was extrem ely out o f the scope and 1 see no reason to w aste much tim e on that. I will rather step into the shoes

o f the first appellate court and do w hat it ought to have done by re-evaluating the evidence and make my own conclusion. It is on record that the appellant herein com plained against the respondent for stealing his maize. It w as alleged that, the respondent w as responsible for harvesting the appellant’s m aize from the farm located at Galapo village w ithin Babati district in M anyara region w hich he had rented from D odo Zuberi for seasonal farming. In his evidence, the appellant claim ed that he found people harvesting m aize in his farm and reported the matter to the police station. That, those people were arrested but the respondent w ent at the police station claim ing that he was the one who sent them into the farm. His evidence w as supported by SMII w ho upon receiving inform ation from the appellant, he also w itnessed two young men carrying maize in the cart. He also participated in sending those young men to the police station. That, the respondent adm itted to have sent those young men to harvest maize in the farm because he claim ed to be the ow ner o f the farm and the one w ho cultivated the crops. SMII1 is a police officer w ho participated in arresting two young men from the farm. She claim ed to have found the two young men carrying maize, he arrested and sent them to the police station but later, the respondent also w ent to the police station. SM IV

claim ed that the respondent rented a cart (m kokoteni) from him to carry maize from his farm. That, he w ent to the farm w ith two other young men and w hile loading maize, the police appeared claim ing that the m aize w ere stolen thus, they were sent to the police station. SMV and SMVI claim ed to witness the lease agreem ent for the farm betw een the appellant and one Dodo Zuberi. SMV added that, the farm belonged to neither o f the parties to this case. Dodo Zuberi (SM VII) adm itted to have leased his farm to the appellant. He Page. 2 Hon.. DEVOTHA KAM UZORA basically claim ed to be the ow ner o f the farm after he had purchased the sam e from Shaban Nasoro Hintay in 2012. In his defence, the respondent denied stealing maize but adm itted to have harvested m aize from the alleged farm with the help o f the laborers. He how ever claim ed that, he was the one w ho planted that m aize for the farm belongs to him. That, he has been in use o f the same for 12 years w ithout any dispute. He w as supported by SU1I who claim ed to be the neighbour to the said farm w ho confirm ed that the respondent has been in occupation and use o f the said farm for a long tim e. SUIII and SUIV claim ed that they have been assisting the respondent in ploughing and planting crops in that farm. The trial co u rt’s conclusion that the respondent did not com m it the offence w as based on two

aspects; first, that, the respondent presented a contract dated 13/08/2012 and two, that, his w itnesses supported the fact that the respondent planted m aize thus, the respondent could not steal his own property. The trial court further held that, the appellant was unable to present w itnesses who planted maize in that farm thus, he w as unable to prove the offence against the respondent. On the first aspect, 1 reiterate my discussion in the first issue that the trial court and the first appellate court wrongly referred the docum ent w hich was not made part for the respondent’s evidence. A part from that, ow nership o f farm is not the only p ro o f for the offence o f stealing crops unless proved that a party charged for the offence proved to be the one w ho cultivated the alleged stolen crops. I say so because, in som e cases, ow ners o f the farm allow other people to use or rent their farms. In such circum stances, they cannot be considered ow ners o f crops cultivated during the period to w hen that other person was allow ed to use the farm or during leasing period. On the second aspect, 1 agree w ith the trial cou rt’s conclusion that the appellant w as unable to prove that he was responsible for cultivating the said maize. There is no dispute that the respondent harvested m aize from that farm but both the appellant and respondent claim ed to cultivate maize in the

said farm thus, each raising a claim o f right over the alleged stolen maize. From the evidence on record, I agree that there w as an issue over ow nership o f land because, the appellant claim ed to be the one who cultivated crops in the farm w hich he leased from the ow ner o f the farm one D odo Zuberi while the respondent claim ed to be the ow ner o f the sam e farm and the one w ho cultivated the crops. In sim ple words, the respondent claim ed right over the farm and crops allegedly stolen by him. In the case o f John Anne Vs Paulo Anne and Umali Boi, C rim inal A ppeal No. 22 o f 2023, HC at M anyara, this court w as faced w ith akin situation in which both the appellant and the 2nd respondent claim ed right over the land and crops w hich the respondents were accused o f stealing. This court found that, since they both had claim o f right over the alleged stolen property, the offence o f stealing under section 258 o f the Penal Code was not proved. At page 5, this court held: - “ I wish to state and do so firm ly that the offence o f theft cannot be established when the accused person claim s right to the stolen property. Section 258 o f the Penal C ode defines theft as follows- A person who fraudulently and w ithout claim o f right takes anything capable o f being stolen, or fraudulently converts to the use o f any person other than the general or special ow ner th ereo

f anything capable o f being stolen, steals that thing” (Em phasis added). Based on the provision o f section 258 and subscribing to the holding o f this court, it is clear that the offence o f theft in this m atter was not established for there w as a claim o f right over the stolen property by the accused person. Page. 3 Hon.. DEVOTHA KAM UZORA Based on the principle that the prosecution is bound to prove a crim inal case beyond reasonable doubt, the appellant herein being the com plainant before the trial court was duty bound to prove beyond reasonable doubt that he planted m aize in that farm and the same was illegally harvested by the respondent to am ount to the offence o f stealing. H aving re-assessed the evidence in totality, I find that the appellant never presented any w itness to justify that he w as the one who planted the said maize. As sum m arized above, all his w itnesses referred the harvest incident and others referred leasing transaction but neither o f them confirm ed that it was the appellant who planted the said m aize. Since both the appellant and the respondent claim ed to have planted m aize and the respondent presented w itnesses w ho claim ed to have participated in ploughing and planting maize in the farm, such evidence raised reasonable defence w hich needed strong evidence from the appellant to prove that it was not the respondent who planted

maize. Since there is no such evidence, the trial court rightly acquitted the respondent. I therefore find.no m erit in this issue. In the final analysis, I find the appeal devoid o f merit and proceed to dism iss it. D espite few errors noted above, the conclusion reached by the two low er courts o f acquitting the respondent, is hereby sustained. D ated a t T H E H IG H C O U R T O F T A N Z A N IA A T M A N Y A R A this 17th o f February 2025

JU D G E O F T H E H IG H C O U R T Page. 4 Hon.. DEVOTHA KAM UZORA