YOHANNA ERRO 222 Edited J kamuzora

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI PC CRIMINAL APPEAL NO. 20213 OF 2024 (Arising from the decision of the District Court of Hanang' in Criminal Appeal 7080 of 2024 original Criminal Case No. 465 of 2023 Katesh primary court) YOHANNA ERRO.......................................................................... APPELLANT

VERSUS JACKSON BALTAZAR.........................................................Ist RESPONDENT BALTAZARI ERRO............................................................. 2nd RESPONDENT

JUDGMENT 9th November & 12th December, 2024 KAMUZORA, J. The respondents were aligned before Katesh primary court (hereinafter referred to as the trial court) charged with one count of criminal trespass contrary to section 299(a) of the Penal Code [Cap 16 R.E 2022]. It was alleged that, on 30/10/2023 at Kitting village within Hanang district, the respondents trespassed and cultivated about 21/z acres farm, the appellant's property. Page 1 of 12 A brief factual background underlying the instant appeal as could be gathered from the record is that, on 30/10/2023 the appellant hired SM2 and SM3 to cultivate his farm by using a tractor and while working, the respondents appeared armed with stones and a sword and ordered SM3 to vacate from the farm. When SM3 left, on the same day, the respondents cultivated the farm in dispute using a tractor. In defence, the 1st respondent denied being at the scene and claimed that on 26/10/2023 he was at Benjamin Mkapa hospital taking care of his sick relative who was admitted there. The 2nd respondent claimed that on 27/10/2023 he cultivated 4 acres of farm which is the property of his parents. The trial court was satisfied that the case against the respondents was not proved to the standard required hence, acquitted them. Dissatisfied, the appellant unsuccessfully appealed before Hanang district court (the first appellate court) which confirmed

the decision of the trial court. The appellant has preferred this second appeal on three grounds but dropped one ground during submission. The remained two grounds can be conveniently reduced into one ground that; The 1st appellate court erred in law and in facts for failure to see to it that the trial court did not property evaluate the evidence hence, re­ assess the evidence on record. Page 2 of 12 This appeal was disposed of by way of written submissions. The appellant appeared in person but aided by Mr. Abdallah Kilobwa, learned advocate in drafting the documents. The respondents were represented by Mr. Nicomedi Kwahhison Qamunga, learned advocate. In his submission in support of the appeal, the appellant submitted that the first appellate court did not properly re-assess the evidence on record. To him, there were minor discrepancies in the charge sheet which do not go to the root of the case. That, it was not disputed that the appellant is the lawful owner of the parcel land which the respondents trespassed. That, the respondents did not state if the land on which they trespassed belonged to them rather they claimed that the land belonged to their father the fact which is not true. That, their father never testified before the court and his absence never explained for. The appellant was of the view that, the variance of the size of the land between the charge sheet and the

execution report does not favour the respondents as they are not entitle to the land. To him, the variance was immaterial because the case before the trial court was not a land dispute rather a criminal case. He added that the two courts below were required to assess the evidence on record as to whether the case against the respondents was proved. He pointed out that, the respondents Page 3 of 12 failed to explain if the land that was handed to the appellant by the tribunal was different from the land allegedly belonged to their father. The appellant further submitted that he had a land case against the respondents and he was adjudged the winner both by the tribunal and before the high court and the appellant was handed with the land by the broker. That, the respondents never disputed to have cultivated the appellant's farm. He challenged the 1st appellate court for not disregarding the 2nd respondent's assertion the land belonged to the 2nd respondent's parents while the land was part of estate of the appellant's late mother. He insisted that the first appellate court ought to have considered that the 1st respondent failed in land case over the same land thus it was sufficient for the trial court to find the respondents guilty of the offence they were charged with. He therefore prayed for this court to allow the appeal by finding the respondents guilty and punish them. In

reply, the learned advocate for the respondents submitted that, the 2nd respondent and the appellant are siblings as they are children of the late Umbe Erro who married two wives. That, the late Erro Umbe and his two wives had never lived at Gallapo rather they were living at Giting and they were buried there. That, the act of the appellant to file the probate case at Page 4 of 12 Gallapo primary court which is at Babati district while the deceased's place of abode was at Hanang district stirred up the conflict. That, the probate matter and the handing over were conducted without the knowledge of the 2nd respondent but he was the one in possession of the disputed land since 2013. That, when the 2nd respondent became aware of the probate matter, he filed a caveat but his objection did not succeed. That, the trial court's record shows that, the 2nd respondent cultivated the land which is four acres belonging to his deceased father thus, the offence of criminal trespass cannot stand since there is no intention to commit a crime. The learned advocate argued that, in order to prove the offence of criminal trespass, two essential elements must be proved namely; one, unlawful entry into or upon property in the possession of another and two, such entry must be with intent to commit offence, to intimidate, insult or annoy the person in possession of the property. He pointed out that,

on 27/10/2023 the 2nd respondent cultivated the farm belonging to his late father Umbe Erro and he was not aware of the 2 acres farm claimed by the appellant. That, on 26/10/2023 1st respondent had left his home to attend a sick relative at Benjamini Mkapa hospital at Dodoma. He therefore prayed Page 5 of 12 for the court to find that, the respondents did not intend to commit the offence. The respondents' counsel added that the 1st appellate court properly evaluated the evidence on record and found that the appellant failed to prove her case. That, the appellant's evidence contradictory as the charge sheet shows that the respondents trespassed on 21/2 acres while in her evidence, the appellant claimed that she gave evidence regarding l1/2 acres. He referred the case of Method Kulwa Chengula vs Republic Criminal Appeal No. 92 of 2021 (unreported), in which it was observed that where there is a variation between the charge and the evidence in the absence of any amendments of the charge, it is tantamount to the prosecution having failed to prove its case on the standard required in criminal cases. He added that since there is unsettled land dispute, it cannot be established that the respondent intentionally trespassed into the appellant's land. Reference was made to the cases of Juma Mkwashu Vs Republic, Criminal Appeal No. 44 of 2021 to which the court referred the decision

in Ally Kauzeni Vs Republic [1985], TLR 79 and the book by Ratanal and Thakore, on the Law of Crimes, 14th Edition at pages 1083 to 1084. Page 6 of 12 He insisted that, in order to prove the offence of criminal trespass, there must be no dispute over ownership of the land or property. To buttress his arguments, he referred the case of Ismail Bushaija vs Republic [1991] TLR 100. He maintained the appellant was unable to prove criminal charge against the respondents beyond reasonable doubt as it was held in the case of Magendo Paul Vs. Republic, [1993] TLR 219 hence no convicted could be secured. He therefore urged this court to dismiss the appeal with costs for lack of merits. Having gone through the parties' rival submissions and the record of two lower courts, the issue for my determination is whether the trial court properly evaluated the evidence and the 1st appellate court re-appraised the evidence on record. The learned trial magistrate observed that there was variation between the charge sheet and the appellant's evidence regarding the size of the land allegedly trespassed by the respondent. That, while in the charge sheet shows that the respondents trespassed into 21/z acres farm, the appellant claimed in her evidence that, the farm was l1/2 acres. The trial court also held that there was unresolved conflict based on probate matter as the respondents were not involved in

the probate case making the court to believe that there was unresolved dispute between the parties. This made Page 7 of 12 the trial court to hesitate from convicting the respondents. The trial court directed for the parties to pursue their right through probate matter by involving their families and not through the land tribunal for there was no evidence proving that probate matter was closed. The holding of the trial court was blessed by the first appellate court which agreed that the variation in charge was based on substantial particulars off the offence hence, could not result into conviction. However, the first appellant court did not discuss the relevance of the trial court holding based on the fact that there was a pending dispute resulting from unconcluded probate matter. On the argument that there was contradiction between the charge and evidence, it is true that while the charge shows that the respondents trespassed into a farm measuring 21/2 acres, the appellant testified that they were allocated l1/2 acres land meaning that the respondents trespassed into that land. However, while I agree that the size of the land was important facts, I do not find it material facts in proving the offence of criminal trespass. I say so because, the offence of criminal trespass can be proved even without trespassing the whole farm what is necessary is a proof that the respondents

illegally entered into the appellant's land. In other words, whether the size of the land was 21/2 or l1/2 acres, it is immaterial if there is Page 8 of 12 evidence proving that the respondents illegally entered into the appellant's land. I therefore find the contradiction not fatal in the circumstance of this case. On the argument that there was unresolved dispute resulting from probate matter this court finds that, what was before the trial court was a criminal case, the charge of criminal trespass. The first appellant court ought to have seen that the trial court misdirected itself in discussing a dispute in probate matter which was not an issue before the trial court. Since the matter before it was criminal trespass, the trial court was bound to assess element of the offence of criminal trespass and assess the appellant's evidence to see if it proved criminal trespass against the respondent. Therefore, whether the probate matter was legally filed and finalized, it was not an issue before the trial court in a criminal case. Going through the evidence on record, the appellant tendered several court's decision evidencing that apart from probate matter, ownership dispute was conclusively determined in the appellant's favour by the DLHT and the High court and no appeal has been preferred therefrom. From those documents, there is a decision of the DLHT Land Application No. 3 of

2019 in which, the appellant and one Basilisa Erro were declared owners of the Page 9 of 12 land located at Bagara B, Giting Village within Hanang' district. The DLHT acknowledged their ownership based on the uncontested distribution of the estate of their late father. Such decision was blessed by this court in Land Appeal No. 5 of 2022for it approved that Yohana Erro and Basilisa Erro as lawful owner of the land in dispute in its decision dated 23rd May, 2023. That was followed with execution in which the execution report tendered before the trial court shows that the land was handled to the appellant and her fellow on 3rd August, 2023. No evidence proving that there was an appeal that was preferred from that decision. Thus, by the time this dispute arose on 30th October, 2023, there was uncontested evidence proving that the appellant and her fellow were declared owners of the land in question. Therefore, the argument that there was a dispute based on probate matter was a misconception by the trial court which the first appellate court never bothered to address. From her evidence and that of her two witnesses, the appellant was able to prove that despite existence of court decisions giving right to the appellant and her fellow, the respondents entered into her farm, threatened the people she had hired to cultivate the farm and instead, cultivate the farm. That was done at the

time the decision was made in favour of the Page 10 of 12 appellant and the respondents were much aware of such decision. Although the respondents disputed such allegation, they were unable to counter such evidence for they were seen by two witnesses who verified before the trial court for the incident took place during day light. It is in evidence that when the respondent invaded the farm and threw SM2 and SM3 out, SM3 phoned the appellant informing him of the invasion. They went later to the farm only to find that the respondents engaged a tractor to cultivate the farm. Although the 1st respondent claimed that he was not at the scene for he went to attend sick relative at Benjamin Mkapa hospital, he was unable to support his alibi hence unable to challenge strong evidence of the appellant's witness proving that he was seen at the scene of crime. Likewise, the 2nd respondent agreed that he was cultivating his father's farm but was unable to challenge the strong evidence of the appellant proving that he was seen threating the appellant's witnesses and later cultivate the appellant's land. By entering and threatening the appellant's witnesses who were working under instruction of the appellant and by cultivating the appellant's land, the respondents committed the offence of criminal trespass. Thus, while I am aware that this second appellate court could not interfere with the

finding of the lower Page 11 of 12 courts, the circumstance of this case attract interference for there was improper application of evidence in determining the rights of the parties. I therefore find merit in this appeal and proceed to allow the appeal. The respondents are hereby found guilty of the offence of criminal trespass hence, convicted under section 299(a) of the Penal Code [Cap 16 R.E 2022]. DATED at BABATI this 12th day of December, 2024.

KAMUZORA

JUDGE Page 12 of 12