Naiman Abraham and Others vs Republic (Criminal Appeal No. 89 of 1994) [2005] TZCA 112 (15 July 2005)

[CORAM: RAMADHANI, J.A., NSEKELA, J.A., And MSOFFE, J.A.) CRIMINAL APPEAL NO. 89 OF 1994

1. NAIMAN ABRAHAM
2. EMMANUEL LUCAS
3. PAULO ZAKARIA .... .. ... ........... ...... ......... APPELLANTS 4~ ABRAHAM PAULO VERSUS THE REPUBLIC ........................ ~ .......................... RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Arusha) NSEKELA, J.A.: (Nchalla, J.) dated the 2 nd day of March, 1994 in Criminal Appeal No. 1 of 1994 JUDGMENT OF THE COURT The four appellants, Naiman Abraham, Emmanuel Lucas, Paulo · ".,.,.,-:; Zakaria and Abraham Paulo were convicted pf malicious damage to · · -·-·- property.and ..... sentenced ... to .. etghteen, __ (.18}. _months ... imprisonment. .. · Their appeal against both conviction and sentence was· dismissed by the High Court, hence this appeal.

( ) 2 .H Mr. Makange, learned advocate, re~resented the appellants in this appeal. He filed a single ground of appeal, namely - ''That the first appellate court erred, in law in upholding the appellants' conviction and sentence of 18 months imprisonment passed by· the trial court, whereas, on evidence available in ,record, the ownership of the piece of land.:upon which the crops were 1 alleged to have been uprooted and damaged was still in dispute between PWl and DW1." Mr. Makange submitted that the issue in the appeal was the ownership of the shamba. PW1, Daniel Urassa, claimed that he bought the shamba frOm PW2, Benjamin Pau·1. On the other hand, DW1 Rosa Benjamin, claimed that the shamba In question had been ii given to PW2 and herself as joint owners for their use. It was a family shamba which could not be disposed ofby way of sale without the consent of clan members.

,:_ ( I ( ) 3 On her part, Mrs. Lyimo, · learned' Principal State Attorney, submitted that the appellants were seen in the shamba uprooting crops and in so doing, used threatening language towards P\Nl, Daniel Urassa. This allegation of using threatening language was strongly countered by Mr. Makange who submitted that it was only . PW4 who testified to that effect, but the totality of the evidence on . record, did not point that way.·· The central issue in this appeal, as we see it, revolves around the ownership of the disputed shamba. PW2 Benjamin Paul and DWl, Rosa Benjamin, were husband and wife respectively. DWl II claimed that the disputed shamba was given to PW2 and herself by PW2's father, that is her father in law, for their joint use. The appellants as such, did· not claim· to have any interest in the farm. However, on the material day that is, the 3. 1 6.93, DWl testified that she sent the appellants to the shamba to assist·her in planting maize and tomatoes. And this is the day the offence with which the appellants were charged with was apparently committed. So the . ~: appellants went to the shamba on instructions of DWl, who claimed

( ; 4 to be a co-owner of the shamba with het' husband PW2. DW1 was claiming or rather asserting a claim of right to the shamba. The lower courts were of the view that 11 .the appellants knew that PW2 had sold the said shamba to PW1 and therefore PWl was lawfully in .. possession and the act of destroying his crops by the appellants was malicious. With respect, we do not think so. As . . . - stated before, there is evidence that the appellants were sent to the · shamba by DW1 who was asserting that she was a co-owner of that shamba. There is also evidence to the effect that, apart from DW1, · the village council had not approved of the purported sale of the shamba to PWl. Hence the lawfulness of the purported sale of the shamba. to PW1. remains an unresolved issue. The courts below did .• not give a conclusive answer to these rival contentions between PWl and OWL In the course oLhis judgment, the larned judge (Nchalla, J.) stated as follows: "I quite agree with Mr. Mwaimu's submission on this point that there was no genuine dispute_ of ownership of the land in dispute in

( I question between DWl and PWl. DWl well knew that her husband (PW2) had sold the said shamba to PW1. DWl was just behaving in anobstihate manner having been incited by her brothers in law, her co-accused, to _ oppose the sale of the said shamba by her husband (PW2) to PWl." 5 The appellants defence was that DW1 Rosa Benjamin, wife of . 1· PW2, was· a co-owner of the shamba in question since the shamba was given jointly to her and PW2 by her father in law. The core issue of ownership of the shamba is still unresolved. However, this issue is not before us and we cannot accede t0 Mr. Makange's prayer that we remit the case to the lower courts to determine the question of ownership of the shamba . • . ~ . .In.tbe.-result,:.we.:allowJhe appeaJ~ _Jh_e _con_victior:, .otmaliciq_us __ . .· ' . . damage to property is quashed and the sentence of eighteen ( 18) months imprisonment is set aside.

( \ I I ' I . DATED at ARUSHA this 15 th day of>July, 2005. A.S.L. RAMADHANI · JUSTICE OF APPEAL H.R. NSEKELA JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL i,. I certify that this is a true copy of the original. 6