PC CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISTRICT REGISTRY) AT ARUSHA PC CRIMINAL APPEAL NO. 18 OF 2023 (C/f Criminal case 842/2022 Maji ya Chai Primary Court and Criminal Appeal No. 11 o f 2023Arumeru District Court) TUMAIN MWENDA........................................................................APPELLANT VERSUS VALERIAN SAMWEL.................................................................... RESPONDENT JUDGMENT 30th May & 04th July 2024 D. P. NDUMBARO. J, The appellant Tumain Mwenda is standing charged with the offence of Trespass contrary to Section 299 of Penal Code Cap 16 RE 2022, and convicted to four months imprisonment or pay 250,000/=. It was alleged that on 20/12/2021 around 10:00 hrs at Kiwawa area within Arumeru District Arusha Region, the appellant unlawfully entered into the property of one Valerian Samwel without his permission and with the intention to commit an offence against Valerian contrary to law. Dissatisfied with the Judgment of the trial court Maji ya Chai Primary Court Criminal Case No. 842 of 2022, appealed before the District Court of Arumeru Criminal Case No. 11 of 2023, who confirmed the decision of the trial court, therefore the appellant lodged this appeal in this Court against conviction and sentence of the trial court and first appellate court by lodging a petition of appeal with 3 grounds; - 1. That trial court erred in law and fact when held that the charge against the appellant was proved beyond reasonable doubt. 2. That the trial Magistrate erred in law and fact when convicted and sentenced the appellant without appreciating that the appellant went to the Respondent's house to collect child maintenance. 3. That the trial Magistrate erred in law and fact by failing to evaluate the evidence and consider the evidence adduced by the appellant during the trial hence reaching int erroneous decision. The appellant sought to move this court to allow his appeal, to quash and set aside the conviction and give any other relief on which deem fit to grant. Parties chose to dispose of the matter orally. The appellant was self­ represented and the respondent enjoyed the service of advocate Keneth Ochina. 2 The appellant gave attention to this court on the relationship between her and the respondent, that they are co-parents; and the reasons for her going to the appellant's house was her child was sick and she did not have money to maintain the child, therefore went seeks financial assistance from her co-parent who is respondent herein to rescue their child life. On the first ground, the appellant argued that the offence was not proved beyond reasonable doubt and that, the evidence of witnesses SM 1,2,3 and 4 on the plaintiffs side during the trial contradicts. SM3 who is the respondent testified that I entered the house without them knowing, and he was informed by his maid SM 2 by phone; While SM2 the maid testified that, I entered the gate of the house thereafter she informed SM3 and SM 1 who is an SM3 driver testified I entered the house together with a drunker who was seeking Job, and the said drunker was not given job, thereafter in cross-examination SMI testified the drunker was given job of taking wood outside the house. The appellant referred to trial court typed proceedings on pages 4,11,13,17 and 19 on those contradictions. Further, the appellant faulted that the evidence of SM 1,3 and 4 contradicts. SM3 said I was arrested by the police SM 4 was inside the fence of the house 3 and I was making a disturbance, while SM 1 testified I was arrested inside of his house and the SM4 testified to arrest me outside the house and was brought to lockup. Argued, that the claim that she disturbed the family was not proved. She faulted that, the respondent lied before the court that he doesn't know her while the truth is there are co-parents, argued this shake his credibility as a witness. On the second ground argued she went to seek maintenance of their child, and not make disturbances, The magistrate failed to analyse evidence that she is her co-parent but went on convicting her. The SMI testified to see me interred in the house together with a drunker, she questioned why she was arrested alone and not with such a drunker. Faulted further that SMI said she entered without them knowing because the gate was open this is proof that she did not make any disturbance. Argued, that the respondent intends to charge her with a criminal offence so as to create a negative image for her in society. In the third ground, the appellant argued the evidence was not evaluated, despite the Magistrate acknowledging in the judgment that, the respondent is my co-parent but went on convicting her. Further contradiction among witnesses that SM3 testified she was inside the house disturbing them, and SM4 said they arrested her outside the house. Faulted the intention as to the commission of the offence was not proved by the respondent on her entrance to the appellant's house, the respondent claimed the appellant to have caused the family problem but he never showed to what extent they suffered on the said disturbance caused. In reply Mr Ochina prayed to submit 1st and 2nd grounds together arguing the respondent did not object anything to the decision of the first appellate court Arumeru; counter-argued that, the evidence was proved beyond the doubt and that, the court order made on 22/02/2023 the appellant found guilt with the offence charged. Submitted that it is undisputed fact that the appellant entered the house without the permission of the respondent; the appellant was charged with the offence of unlawful entry contrary to section 249 of Penal Code Cap 16. Argued, on proving the offence of unlawful entry need to consider entering without permission into someone's property, to commit the offence, the offence was proved because she entered without permission, and there was no evidence available in the trial court to prove that she went to the respondent house to take maintenance of the child. Section 110 of the Law of the Evidence Act that anyone who wants the court to rule in favour must prove his case, she failed to prove that she went to take maintenance which signifies she had bad intentions. The offence of unlawful entry was proved by the trial court and cited a case of Awadh Abdulahman Wazir Vs R Appeal No. 303 of 2004 CAT which provides two grounds to be considered in the offence, that is a) unlawful entry and b) bad intention to commit a crime. In this case, the appellant entered without permission and used abusive language on pages 11,12 and 13 of the trial court proceedings. The argument that she went to take maintenance of the child should not be considered, she could go to the community development office to claim for maintenance of a child. In the trial court proceedings, the appellant was restricted from entering by MS2 but she made disturbances, and there was no dispute that SM4 found her inside the house (on page 22 of trial court proceedings). Argued, that the offence was proved beyond a reasonable doubt, in support of the argument cited in the case of Chausiku Chama Magoiga Vs R Criminal Appeal No. 297 of 2020, and the punishment was right as per section 299 of Penal code Cap 16 RE 2022 that the applicant was to be punished so as to give the lessons. On the second ground faulted that the evidence was evaluated by the court as was clearly shown on pages 12 and 13 of a trial court judgment. There are neither contradictions of the evidence of witness nor lies. Therefore, pray this court to confirm the trial and first appellate court decision. In rejoinder, the appellant retaliated her submission in chief and argued whenever there were contradictions of witness on the prosecution side should benefit the accused, in support of her argument cited the case of Peter William Vs R TLR 327. The appellant argued further that, the first appellant decision was faulted on the issue of contradiction of 3rd and 4th witnesses that, SM3 testified she was inside the house making a disturbance while SM4 testified that she was sitting. Considering the submission of both parties and evidence from the court records, this court find that the 1st and 3rd grounds of appeal look similar therefore will be analyzed together, and the 2nd ground will be treated separately. However, the analysis shall be based on proving the ingredients of the offence charged that, whether there was unlawful entry and whether there was intention for the commission of the offence. 7 On the first grounds, the appellant did not dispute to have entered the respondent's house without his permission. Going through lower court proceedings page 6 the appellant testified she entered the house peacefully, she went to claim for child maintenance from her co-parent who is the respondent herein. On entering she was asked by maid SM2 what she wanted, she informed her that want to talk with the owner of the house, SM2 gave her a chair and sat and she was told to wait. Waited for a while to meet the respondent but in vain. The SM2 testified there after the appellant wanted to open the door to enter the house, she was stopped by SM2 and exchanged words between them. SM3 testified to having seen the appellant from the window while he was inside and decided to call the police who came and arrested her. Respondent faulted that appellant entered the house without permission and used abusive language that is sufficient ground for conviction in support cited a case of Awadh Abdulahman Wazir Vs R Appeal No. 303 of 2004 CAT which provides two grounds to be considered in the offence, that is an unlawful entry with bad intention to commit a crime. The question to be asked from the above evidence is, whether the offence of criminal trespass was proved on the required standard. This can 8 be answered with Section 299 of Penal Code Cap 16 Re 2022 which provides; - Sec 299. Any person who:- (a) unlawfully enters into or upon property in the possession o f another (b) with intent to commit an offence or to intimidate, insult or annoy any person in possession o f the property; commit an offence For the offence of trespass to be proved there must be unlawful entry, and such entry must be with intention to commit offence or to intimidate, insult or annoy the person in possession of the property. There was no dispute that the appellant entered the respondent's house without permission, however, the doubt is whether there was intention to commit an offence or intimidate or insult or annoy the respondent on entering the house. SM4 the police officer who arrested the appellant in page 23 of trial court proceedings, and page 4 of the first appellate court proceeding, testified to have found the appellant inside the house seated and arrested her. SM2 and SMI testified the appellant entered without permission but was given a chair to sit and she sat. 9 It is my view that there is a need to prove intention for the conviction of trespass to be established. The intention can be proved based on the circumstances surrounding the case, the respondent claims to have not known the appellant, while the appellant claimed the respondent is a parent. The fact that a mere visitor came to his house not known to the respondent and the respondent refused to attend her, after seeing her from the window of her house, raises doubt that there was something wrong between them. Circumstances of the case speak louder than, the respondent knew her before. This shook the credibility of the respondent evidence, see the case of Elisha Edward Vs Republic Criminal Appeal No. 33 of 2018 unreported on pages 6 &7, that, the credibility of the witness is measured by his evidence. The fact that the appellant's wife insulted the respondent via mobile message the evidence which was not objected to by the respondent in trial court also speaks louder that the respondent and appellant had a relationship. Based on the circumstances surrounding this case it is my view that at the time when the appellant entered the house did not intend to commit a crime, as it was testified by the prosecution side she entered peacefully and was given a chair to sit and told to wait, she sat and waited for while 10 unattended, thereafter she quarrelled with SM2 the maid, while the respondent was inside the house. No evidence showing the guilty mind of the appellant at the time of entering the house. Mere actus reus in trespass without mens reus cannot constitute an offence. This is supported by the case of Ally Kauzeni vs Republic, [1985] TLR 79, which was stated: - 'The word" "intent" is not to be taken as identical with "wish " or "desire". The intention constitutes the entry criminal. Mere trespass is not ordinarily such an offence; but when the trespass is in order to the commission of an offence or when it is to intimidate, to insult, or to annoy, it is punishable. It is my finding that, despite the actus reus in commission of the offence was proved but mens reus of criminal trespass was not proved to the required standard. On the third ground, the appellant argued she went to the respondent's house to claim for maintenance, the respondent faulted to have not known her before. The trial and appellate court on their decision had no doubt that the respondent and appellant were co-parents, they were faulted for having entered without permission. It is my view that if the trial and first appellate court could consider the circumstances 11 surrounding the case, could not reach into decision to convict the appellant herein. In the instant appeal, despite the fact that the appellant entered without permission but the intention to commit the offence was not established to the required standards as I previously stated. Having so said and for the reasons advanced herein above, I am satisfied, that the evidence was not analyzed and mens reus was not proved to the required standard to convict the appellant herein. I, therefore, set aside the sentence and conviction of the Criminal case 842/2022 Maji ya Chai Primary Court and Criminal Appeal No. 11 of 2023 Arumeru District Court imposed against the appellant unless lawful held for any other lawful course. It is ordered accordingly. DATED at ARUSHA this 4th day of July 2024. D. D. NDUMBARO JUDGE 4/07/2024 12