valentino raphael swalo vs daniel paskal sanga 2023 tzhc 20960 8 september 2023

UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IRINGA DISTRICT REGISTRY AT IRINGA (P.C.) CRIMINAL APPEAL NO. 06 OF 2023 (Originating from Criminal Case No. 11 of2023 in the Primary Court of Makete District at Lupalilo, and arising from Criminal Appeal No. 04 of2023 in the District Court of Makete at Makete) VALENTINO RAPHAEL SWALO—------------ ------ ---------------APPELLANT VERSUS DANIEL PASKAL SANGA------ --------------------- ------------ -RESPONDENT JUDGMENT Date of the last Order: 23.08.2023 Date of the Judgment: 08.09.2023 A.E. Mwipopo, J. Valentino Raphael Swalo, the appellant, was charged in the Primary Court for Makete District at Lupalilo for the offence of malicious damage to property Contrary to section 326 of the Penal Code, Cap. 16 R.E. 2022. The case was instituted by Daniel Paskal @ Swalo, the respondent herein. The particulars of the offence reveal that on 05.01.2023 around 08:00 hours, at Ibaga Village, within Mang'oto Ward in Makete District, the appellant willfully i and unlawfully destroyed 1,500 pine trees valued at shillings two million shillings (Tshs. 2,000,000/=) the property of the respondent. The appellant pleaded not guilty to the offence, and both parties brought evidence to support their case. The trial Primary Court, in its judgment, convicted the appellant for the offence and discharged him on condition not to commit any crime for three months. The trial Primary Court also ordered the appellant and 2nd defense witness, Michael Edward @ Sanga (SU2), to pay the respondent's cost. It ordered further that after the crops planted in the land in dispute have been harvested, the land has to return to the respondent. The appellant was aggrieved and unsuccessfully appealed to the District Court. The appellate District Court dismissed the appeal for want of merits because the SU2 failed to prove the ownership of the land where the destroyed trees were cultivated. The District Court upheld the decision of the trial Primary Court. The appellant was not satisfied with the decision of the District Court and appealed to this court. The petition of appeal filed by the appellant contains five grounds of appeal as follows:- 1. That, the trial Court Magistrate erred in law and facts by failing to abide by the ingredients of the offence of malicious property damage. The law requires, and the complainant was unable to prove the case 2 beyond a reasonable doubt. Hence, the trial Primary Court reached a wrong decision. 2. That, the trial Court Magistrate erred in law and facts by convicting the innocent person (the appellant) who was not required to be charged with such offence as he was lawfully permitted to cultivate the land by the valid owner of thesaid piece of land in dispute. 3. That, the trial Court erred in law and facts by relying on the baseless and weak evidence adduced by the complainant (respondent), who failed to prove the ownership of the said property. 4. That, the trial Court Magistrate erred in law and facts by convicting the accused person based on the defective charge sheet as he was charged under section 326 of the Penal Code, Cap. 16 R.E. 2022, while the section is so general, the charge sheet does not show under which subsection exactly the accused (appellant) was charged to have committed the offence. 5. That, the trial Court misdirected Itself in ordering the compensation with no evaluation report of the destructed properties be paid by the accused (appellant) together with the Witness on the defense side, who was not part of the case as co - accused, hence reached to unlawful order. On the hearing date, both parties were present in person. The appellant prayed for the Court to consider all his grounds of appeal found in the petition of appeal. On his side, the respondent supported the appeal. He 3 said that the clan meeting had already settled the dispute, and he had no interest in the case. From the submissions, the issue for determination is whether the appeal before this Court has merits. In determining the appeal, the grounds of appeal found in the petition of appeal will be considered as the appellant prayed it in his submission. I will first determine the 2nd and the 3rd grounds of appeal on the trial Primary Court's jurisdiction to determine the criminal case as there was the dispute over the ownership of land where the pine trees alleged to be destroyed were cultivated. The appellant said on those grounds that the respondent failed to prove the ownership of the land, and he was lawfully permitted by the valid owner of the said piece of land to cultivate the land. The record shows that the appellant was charged in the trial Primary Court with the offence of malicious damage to property contrary to section 326 (1) of the Penal Code, Cap. 16 R.E. 2022. To prove the offence, the respondent (complainant in Primary Court) was required to prove that the appellant had destroyed or damaged the property, the said property so destroyed or damaged is the complainant's property, and the damage was 4 both willful and unlawful. This Court stated the position in the case of Typhon Jeremiah vs. Ufoo Rogate Sawe, PC. Criminal Appeal No. 13 of 20'20,. High Court at Mwanza (unreported). The evidence demonstrates that the appellant has been cultivating the land were the alleged destroyed trees were planted since August, 2022. The respondent (SMI), SM2 and SM4 testified that in November, 2022, they discovered that their land was cleared, trees were cut and crops cultivated. Upon investigation, they found that the appellant had cut the trees. They asked the appellant who agreed to cultivate the land as he was rented the land by Michael Edward Sanga (SU2). On his side, the appellant said in his testimony that he cleared the land and grown potatoes after he was permitted by SU2, who owns the land. SU2's testimony shows that he owns the land as he bought it from Chelita Sanga in 2006. SU2 said he planted trees in 2010, which he harvested in 2021. He rented the farm to the appellant in 2022 to cultivate potatoes. From the evidence in the record, there is no dispute that there is no evidence at all to show that the appellant destroyed 1,500 pine trees as it was alleged by the respondent. Nobody testified to see the appellant cutting the tree. The respondent testified that after investigation, he found that the 5 appellant cut the trees. However, the respondent did not state how he knew that it was the appellant who cut the trees. SU2 said in his testimony that he harvested the trees in 2021. This shows that there is possibility that is was SU2 who harvested the trees. What was admitted by the appellant in his testimony is that he was cultivating potatoes in the land after he was permitted by SU2, who is the owner of the land. Thus, I find no evidence at all to prove that the appellant destroyed the pine trees owned by the respondent. Further, the testimony of the appellant and SU2 shows that SU2 rented to the appellant the land where the respondent claims that pine trees were destroyed. The respondent said he is the owner of the land where appellant cultivated potatoes and where the alleged trees were destroyed. His evidence Is supported by SM2 and SM4. The appellant admitted to cultivate potatoes in the land as he rented the land from SU2. The evidence from respondent, SM2 and SM4 support the appellant's assertion that the appellant told them he is not the land owner. Michael Edward Sanga (SU2) testified on oath and informed the trial Primary Court that he owns the land where it is alleged that the pine trees were destroyed. He said that he rented the land to the appellant to cultivate potatoes. From the evidence, it is clear 6 that there was a dispute between the respondent and SU2 over the ownership of the land where it is alleged that trees were destroyed. The dispute is civil in nature, and it was supposed to be resolved by the Civil Court before instituting a criminal case. The Magistrate Court's Act, Cap. 11 R.E. 2019, provides in section 18 (1) (a) (i) that the Primary Court has no jurisdiction to determine the civil case which relates to land. As there was a dispute over the Ownership of the land where the trees subject matter in this appeal were alleged to be destroyed, the same was supposed to be determined first by the Land Court. In the case of DPP vs. Malimi Sendama and 3 Others, Criminal Appeal No. 92 of 2018, Court of Appeal of Tanzania at Tabora (unreported), the Court of Appeal on page 12 of the judgment approved its decision in the case of Simon Mapulisa vs. Gasper Mahuya, Criminal Appeal No. 221 of 2006 (unreported), where it held that:- "Dispute of ownership of land is not resolved in criminal proceedings. The law on the issue is that where there is a dispute regarding boundaries ofadjacent private land or ownership of a part or whole of adjacent land, such dispute is resolved in a civil Court. From then onwards, encroachment onto the land of the other could be a trespass and a criminal charge can be brought against the offending party." 7 The Court of Appeal in the above cited case went on to hold that the trial Court's proceedings were premature and decision thereon cannot stand. The court nullified the trial Court's proceedings and judgment thereon and directed the land dispute to be referred to the Court or Tribunal of competent jurisdiction. Further, it ordered the DPP if he intends to initiate fresh criminal proceedings against the respondent, the same should be done once the land dispute has finally been resolved. This Court was in a similar position in the case of Japhet Evod Mapunda and Two Other vs. Lukresia Ciprian Mapunda, PC. Criminal Appeal No. 2 of 2021, High Court at Songea (unreported). Guided by the decision of the Court of Appeal in the DPP vs. Malimi Sendama and 3 Others (supra), it was wrong for the trial Primary Court to determine a criminal case if there is a dispute over the ownership of the land where the property alleged to be damaged is situated. Without determination of the ownership of the land by a competent civil Court, it was wrong for the trial court and appellate District Court to hold that there was a valid criminal case. Even the order given by the trial Primary Court that the appellant and SU2 have to pay for the cost of the suit to the respondent, and after harvesting the crops in the farm the appellant has to handle the 8 land to the respondent shows that the trial Primary Court Magistrate was deciding the criminal case as a civil case. The criminal case, if any, may proceed after the issue of ownership of the land has been finally resolved. The remedy in this situation is to quash the proceedings, decision and sentence of the trial court and the appellate District Court. The Court of Appeal did the same in the case of Magando Paulo and Another vs. Republic, [1993] TLR 219. Therefore, the appeal has merits and is allowed. Consequently, I quash the proceedings, and I set aside the conviction, sentence and orders of the Primary Court for Makete District at Lupalilo. The appellant is discharged in respect of the offence in said Criminal Case No. 11 of 2023 in the Primary Court for Makete District at Lupalilo. Also, the decision of the Makete District Court in Criminal Appeal No. 04 of 2023 is consequently quashed and set aside. It is so ordered accordingly. Dated and delivered at Iringa this 8th day of September, 2023. 9 A.E. MWIPOPO JUDGE 10