Tuwaha Samson Muze & Another vs Republic (Criminal Appeal No. 689 of 2023) [2025] TZCA 1158 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LEVIRA, 3.A.. MGONYA. 3.A And MDEMU, J.A.) CRIMNAL APPEAL NO. 689 OF 2023 TUWAHA SAMSON MUZE.................................................. 1 st APPELLANT SAMSON TUWAHA MUZE................................................ 2 nd APPELLANT VERSUS THE REPUBLIC .................... . ...........................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Dar es Salaam) (Kakolaki. 3 .^ dated the 23r d day of 3une, 2023 in Criminal Appeal No. 198 of 2022 JUDGMENT OF THE COURT 3rd & 17th October, 2025 MDEMU. 3.A.: The appellants, who are father and son, were arraigned before the Resident Magistrate's Court of Dar es Salaam at Kisutu for two counts, that is, forgery contrary to sections-333, 335(a) and 337 in the first count and uttering false document contrary to section 342 all of the Penal Code, Cap. 16 R.E 2002 (the Penal Code). It was alleged in the particulars of the offence that, on or about and between November, 2011 and December, 2017 within the city of Dar es Salaam, the appellants, jointly and together and with intent to defraud or deceive, forged an agreement dated 9th November, 2011 purporting to show that the 2n d appellant is the owner l of a house situated at Mbezi Luis thereby letting the 1s t appellant to temporally reside on it, a fact which is known to the duo to be false. It was alleged further in the particulars of the second count that, the duo falsely uttered the alleged forged agreement in Matrimonial Cause No. 66 of 2017 of Kinondoni District Court. Briefly, the 1s t appellant and Maimuna Rajabu Soka (PW1) contracted a civil marriage in 2009 and were blessed with two issues. They further purchased a plot and constructed a residential house. Somewhere down the road, their matrimonial life became unhappy, thus leading to the initiation of Matrimonial Cause No. 66 of 2017 by the 1 s t appellant. The decree of divorce and equal division of matrimonial properties was then ordered and further affirmed by the High Court in Civil Appeal No. 10 of 2019. At this point, the record is not much clear if, either the 1s t appellant or PW1 intimated to challenge the decree in Civil Appeal No. 10 of 2019. Nonetheless, PW1 firmly believed that exhibit P6 (Hati ya Makubaliano ya Kumkabidhi Mwanangu Nyumba ya Kuishi kwa Muda) was fraudulently obtained, making the matrimonial home the sole property of the 2n d appellant. PW1 thus reported the matter to the police station, a fact which resulted in the commencement of Criminal Case No. 186 of 2019 for two counts of forgery and uttering false documents as 2 stated earlier on. The trial court (Mbuya, PRM) found the prosecution case proven, hence, the following findings: "Looking at exhibit P6 properly, it is dear that the accused person knew that they were preparing false documents. I f they were genuine, there is no i way that the complainant being a member o f the family would not been involved. The 1st accused knew for sure that they went to purchase the plot in dispute while together with the complainant. He was also aware that the purchase agreement was in his name and not the name o fhis father the 2n d accused person. He is further aware how much they have injected to develop that plot including the costs o fbuilding the house in question and the amount injected in drilling the underground water well on that plot. Any document to the contrary must be calculated to cheat and defraud the complainant." Having that in mind and having taken judicial notice that exhibit P.6 was attached to the petition in Matrimonial Cause No. 66 of 2017 and was tendered as exhibit DE9, the learned PRM proceeded to convict the 1s t appellant for forgery and uttering false document and sentenced him to a custodial sentence of three years and six months. The second appellant was convicted of the offence of forgery alone and a one-year conditional discharge sentence was prescribed in that behalf. The appellants appealed to the High Court, in which, at the conclusion of the appeal, the offence of uttering false document was found unproven thus the conviction was quashed and the sentence was accordingly set aside in respect of the 1 s t appellant. The appellants' appeal in respect of the 1s t count of forgery was accordingly dismissed. The appellants are now before the Court armed with 6 grounds in a memorandum of appeal filed on 26th September, 2023 and other 5 additional grounds filed on 28th March, 2024. In all the raised grounds of appeal, the main contentions are; one, that, the offence of forgery was unproven. Two, that, the successor trial magistrate contravened section 214 (1) of the CPA, Cap. 20 R.E 2022. Three, that, the matter before the two courts below was a civil dispute and not criminal in nature as meted out by both courts. The appeal was before the Court for hearing on 3r d October, 2025. The two appellants had the joint services of Messrs. Silvester Eusebi Shayo and Peter Kibatala, learned advocates. On the side of the respondent, Mr. Michael Lucas Ng'hoboko, learned Senior State Attorney assisted by Ms. Winfrida Ouko, learned State Attorney appeared to represent it. Arguing in support of the appeal, Mr. Shayo is the one who commenced. He first stood by the contents of the grounds of appeal and written submissions filed in that behalf and then amplified that, both the charge and the evidence on record, exhibit P6 inclusive, was in respect of the ownership of a house/plot at Mbezi Luis. It was further added by Mr. Kibatala that, the plot/house in dispute was the subject of litigation in matrimonial proceedings at Kinondoni District Court and in absence of those proceedings, the offence of forgery was unproven. The two counsel thus referred us to sections 2 and 167 of the Land Act, Cap. 113 that, the magistrate's court sitting as a criminal court has no jurisdiction to entertain land disputes. They unanimously argued that, both courts below analysed the evidence and came to a finding that, the matter involves ownership and matrimonial issues, thus nothing like criminality was involved in exhibit P6. The case of James Duru @ Nade v. Republic (Criminal Appeal No. 100 of 2020) [2023] TZCA 17622 (22 September 2023; TanzLII) was cited by the counsel arguing that, the trial court wrongly assumed criminal jurisdiction to entertain civil matters. In their respective argument, the proper forum to test admissibility of exhibit P6 was in Matrimonial Cause No. 66 of 2017 and Civil Appeal No. 10 of 2019 and not in the criminal court as was in the instant appeal. Specific on this assertion, Mr. Kibatala added that, the two courts below should have taken cognizance of the matrimonial dispute and indeed, given that awareness, PW1 testified to have commenced an appeal to the Court to challenge the civil appeal which ordered equal distribution of the matrimonial property. Regarding compliance with section 214 (1) of the CPA, Mr. Kibatala submitted that, the appellants were denied their right to be heard for failure by the successor magistrate to inform the appellants their right to recall witnesses. He thus argued that, the said misgivings ousted jurisdiction of the learned successor magistrate to entertain the matter before him. On the respondent's side, Mr. Ng'hoboko replied that, the contentious exhibit P6 was forged because in terms of section 333 of the Penal Code, it was proved beyond reasonable doubt that; one, the appellant prepared the agreement (exhibit P6), two, that, the said agreement was a false (forged) one and three, that, the act of preparing and forging was with intent to defraud. He argued so because, in the agreement, the appellants indicated that the house belonged to the 2n d appellant and was entrusted to 1 s t appellant to reside temporarily, an act which was known to them to be untrue. It was his further submission that, the said agreement was attested by a non-practicing advocate being another evidence showing that exhibit P6 cannot be sparred with forgery. He cited to us the case of The Director of Public Prosecutions v. Shida Manyama @ Selemani Mabuba (Criminal Appeal No. 285 of 2012 [2013] TZCA 168 (26 September 2013; TanzUI) arguing that, all the ingredients of the offence of forgery as provided for in section 333 of the Penal Code, were proven. Replying to the complained non-compliance with section 214 of the CPA, Mr. Ng'hoboko submitted that, the said section which is now section 230(1) in the 2023 Revised Edition, was duly complied with because the successor magistrate recorded the reasons for reassignment. In that regard, his argument was that, the appellants were able to defend themselves, as such, the argument that they were not heard, remain unfounded. The learned Senior State Attorney, in the end, cited the case of Stephano Victor @ Mlelwa v. Republic (Criminal Appeal No. 257 of 2021) [2023] TZCA 152 (29 March 2023; TanzLII) to bolster his argument. His final remarks on the alleged non-compliance were that, the appellants have not indicated on how they were prejudiced by failure of the learned successor magistrate to inform them their right of recalling witnesses. He urged us, on that account, to hold that, the appeal before hand is unmeritorious, thus eligible for dismissal. Mr. Shayo and Mr. Kibatala in their rejoinder had reiterated what they essentially submitted in chief with the latter's two additions, one that, the prosecution abdicated their prime function in the administration of criminal justice by filing in a criminal court, matters amenable for civil 7 courts and two, that the discretion under section 214 of the CPA was not exercised judiciously. On our part, we have duly considered the grounds of complaint, written and oral submissions by the counsel and the entire record of appeal. We feel to begin with the ground of complaint regarding non- compliance with section 214 (1) of the CPA. The section, as interpreted in various decisions of the Court, among others, require the successor magistrate to perform two main duties. First is to record reasons for taking over from the predecessor magistrate and second is to inform the accused persons their right of recalling witnesses. Both counsel are at one that, the successor magistrate recorded reasons for taking over from the predecessor and again, they are in agreement that, the record is silent to the effect that the appellants were informed by the succeeding magistrate of their right to have the witnesses who had their evidence recorded, resummoned. The oniy point of departure, in our view, is the consequences regarding failure to inform the appellants of the right to recall witnesses. The appellants' counsel argued that, the appellants' right to be heard was violated, the argument which Mr. Ng'hoboko refuted on the ground that, the appellants were able to defend themselves. We, on our part, agree with Mr. Ng'hoboko that, it is not indicated on the part of the appellants on how they were prejudiced by failure of 8 the learned successor magistrate, who duly recorded reasons for taking over but did not inform the appellants their right to recall witnesses. On the question of prejudicial, we are fortified by the decision of the Court in Stephano Victor ©Mlelwa v. Republic (supra) that: "...notwithstanding that requirement, each case must be determined according to its peculiar facts and circumstances. For instance, in the case o f Charles Yona v. Republic (CriminalAppeal No. 79 o f 2019 [2021] TZCA 339 (2 August 2021; TanzLII) where the Court was faced with almost a similar situation, stressed for the conviction to be quashed on account o f non-compliance o f section 214 (1) o f the CPA, two conditions must be satisfied; one, the appellant's conviction was vitiated by non-compliance o f section 214 (1) o f the CPA and two, the appellant must have been materially prejudiced by the conviction by reason o f the evidence not wholly recorded by the successor magistrate, for instance, where the successor magistrate wrongfully assumed jurisdiction or there was unauthorized takeover o f the file on the part o f the successor magistrate In the appeal before us, the appellants did not demonstrate how the infraction prejudiced them. Moreover, the record is clear that, they were again able to defend themselves. In the circumstances of this case, 9 we hold that, the appellants were not prejudiced by non-compliance of section 214 (1) of the CPA. We accordingly proceed to dismiss this ground of appeal. We now turn to the complaint on forgery. The question which we are indebted to clear is whether the appellants forged exhibit P6, that is, Makuba/iano ya Kumkabidhi Mwanangu Nyumba ya Kuishikwa Muda. For ease of reference, we feel obliged to reproduce the said exhibit as hereunder: "MAKUBALIANO YA KUMKABIDHI MWANANGU NYUMBA YA KUISHIKWA MUDA Mimi Samson Tuwaha Muze nikiwa na akifi timamu, dini Mkristo naishi Dar es Salaam nathibitisha haya yafuatayo; 1. Kwamba mimi na mke wangu tumekubafiana kumpatia kijana wetu nyumba ya kuishi kwa muda baada ya kufunga ndoa na mke wake ambayo ipo Mbezi Luis Shina No. 26 Hi waweze kuishi kwa kipindi ambacho wanaendelea kutafuta maisha yao. 2. Kwamba nyumba hiyo sio maiiyao na inabaki kuwa chini ya umiiiki wangu kama mzazi wake baadaye atakavyoweza kujenga sehemu yake ya kuishi atarejesha nyumba hiyo kwetu kama wazazi wake au famiiia. 3. Tumeamua kufanya hivyo kwa kijana wetu Hiaweze kuishi hapo kwa kuwa amefunga ndoa hivi karibuni. 4. Nyumba hiyo ni ya ghorofa moja na ina vyumba vinne (4) ikiwa ni dinning, sitting, store, kitchen na exercise room. 10 Nyumba imekamilika na inafaa kwa kuishi isipokuwa inahitaji marekebisho madogo sana kwa kadri watakavyopenda wenyewe ikiwa ni pamoja na kupaka rangi ukuta na kumafizia kibanda cha nje kupaka rangiya mwisho (servant quarter/small house). 5. Mambo mengine watarekebisha wenyewe na kunipa taarifa pindi watakapofanikisha matarajio yao. Makabidhiano yamefanyika /eo tarehe 09 mwezi wa 11 mwaka 2011." The task before us is to test that document if it falls squarely within the definition of the term forgery as defined under section 333 of the Penal Code in the following words: "Forgery is the making o f a false document with intent to defraud." In the first place, the first appellant does not deny the existence of forged document. At page 93 of the record of appeal, the first appellant "It is not true that I forged any document particularly exhibit P6. The document prepared was genuine for the purpose o f handling over the said house to the second accused person my father who is the owner o f it." From this point, it is not in dispute that exhibit P6 exists. Whereas we agree with Mr. Ng'hoboko that the document was prepared, we are li not prepared to accept the view that there was any intent to defraud or deceive. There is no indication that the title of exhibit P6 passed to the first appellant as found by the two courts below and also believed by Mr. Ng'hoboko. Again, our close reading of the contents of section 336 of the Penal Code, have failed to underscore exactly who was actually defrauded. We are saying so because in matrimonial Cause No. 66 of 2017 and Civil Appeal No. 10 of 2019, exhibit P6 was decreed to be a matrimonial asset subject for equal distribution between the first appellant and PW1. If anything to be contested in exhibit P6, then is the question of ownership which, as argued by Mr. Shayo and Mr. Kibatala, there is nothing like criminality within the purview of the criminal jurisdiction of the Resident Magistrate's Court of Dar es Salaam at Kisutu. We are of the further view that, forgery in the instant case, cannot exist merely because exhibit P6 was attested by an advocate who was not allowed to practice or that it named the 2n d appellant the owner of the property in dispute. It simply contains contents of letting the undersigned to temporarily reside in that house and later in the course, return it to the family. There is no more than that. The foregoing takes us to another area of concern, which we have already stated, but worth repeating that, the matter before the Resident Magistrate's Court of Dar es Salaam at Kisutu was not criminal in nature. 12 According to the record, things went amiss following the decree of the High Court which decreed exhibit P6 a matrimonial property subject for equal division. Page 530 of the record of appeal is a revelation as hereunder: "However, upon disposal o f the said Matrimonial proceedings, the said house was declared to be a matrimonialproperty hence subjected to an order o f equally division amongst the couple, the decision which was unsuccessfully challenged by the 1st appellant to the High Court in Civil Appeal No. 10 o f 2019 (exhibit P6). Unhappy with exhibit P6 which allegedly was tainted with fraud, PW1 reported it at police hence institution o f the Criminal Case No. 186 o f2019 upon completion o f investigation, where the appellants faced two counts as alluded to above." With the foregoing excerpt, it is quite in order that, PW1 was not happy with the decree which divided exhibit P6 equally to the 1s t appellant and PW1. Again, it seems even the 1s t appellant was unhappywith the said decree and attempted to challenge it to the Court. Page93 of the record of appeal in this regard reads: "It is true that the Judgment on appeal to High Court on the said Matrimonial appeal decided that the house in question here is a Matrimonial property and was supposed to be divided equally 13 between me and PW1. It is true that I appealed to Court ofAppealbut I don't ha ve evidence to that appeal.” (Emphasis added) What we therefore note in this saga is as precisely argued by the appellants' counsel that, exhibit P6 was to be tested in matrimonial cause instead of allowing a court with criminal jurisdiction to determine ownership. It was a matrimonial cause and indeed, both courts below being vested with matrimonial jurisdiction, made a finding that exhibit P6 was a matrimonial asset. Mr. Kibatala argued, and indeed we are with him that, the two courts below vested with criminal jurisdiction should have taken cognizance of the existence of matrimonial proceedings over the said property in Matrimonial Cause No. 66 of 2017 of Kinondoni District Court and Civil Appeal No. 10 of 2019 of the High Court of Tanzania. Importantly perhaps is the evidence of DW1 that he has taken a step ahead to challenge the High Court decree to the apex court. In the final analysis, we hold that all what transpired in Criminal Case No. 186 of 2019 and further in Criminal Appeal No. 199 of 2022, would not have proceeded in absence of proof of ownership of the property named in exhibit P6. For that matter, the offence of forgery was not proved to the hilt. 14 We take note that the appellants have already completed serving their sentence and that, the appeal before us is against both conviction and sentence. On that account, we proceed to allow the appeal, the conviction is thus quashed and the sentence meted out to the appellants is accordingly set aside. DATED at DAR ES SALAAM this 17t h day of October, 2025. M. C. LEVIRA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in presence of Mr. Peter Kibatala, Mrs. Bernadetha Shayo, learned counsel for the Appellants, Ms. Judith Kyamba, learned State Attorney for the Respondent/Republic via virtual court from Dar es Salaam and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the