Director of Public Prosecutions vs Edward Benjash and 2 Others (Criminal Appeal No. 63 of 1999) [2000] TZHC 560 (8 September 2000)

lN THE HIGH COURT OF TANZANIA. AT A...-qUsHA IC=-<~ .... - ... ,~~-----~ . . . ORIMlN.AL .APP.t!lAL NO. 63 OF 1999 · t 0 ~~g_i..Il~~~--,tr:?rjf![tI§1I.[)rL-Q.t£f.nalJ;?i?i='? !'~~~~2flV.. DICTOR OF:'FUBLIC PCSECUTIONS ••• -· Versus - APPELLANT /""' /" .. . / EDWARD LBNJASHT,& Ti/0 OTHERS •eo ,.oo o•i RESPONDENTS

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 MSOFFE Jo 
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 In the Distric~ Court of Arusha 9 the th:cee resp.o-,,- 
 ndents were cha,rge,q.. with 
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and acquitte<l o.;t: 
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two counts 
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 i 0 e~ Cr.irnin:c3-l tresp3:ss and threatening vi9lence e/ss · 299 
 and 85(1) respectively of the Penal Code, Cap 16. The· 
 Director of Public ..i?rosecutions is disatisfied ,by th_~ · 
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 acquittal an4 hence this appeal. Mro Massara learned . ·:. · 
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 - State Attorney ha.s appea.red end filed wri tteh submissions 
in support of the appealo Likewise., Ms. Bigeye learned 
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 advocate has appeared and filed written submissions in 
 opposition to the appeal. 
The facts as fc·LJ.nd. by the t.t·ial_ District Qgurt esta- 
 blished that on 1/2/1997 the respondents entered into a 
plot belong~ng to the complainant one Anthony Bazil and 
built a house and .fenced .the area without the consE;nt of 
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 the said owner., In t·ae p:roce.ss ~ it was alleged _that· the 
three respondents uttered. tt-~·e8.ten~ng words to the ,omplai..;,. 
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 na.nt = words which were likely to cause a brea•h of t.he 
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 peaceo The complainant was supported by his three witnesses 
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 that mucho The prosecution case was further that, 
earlier,the complainant haq. :fi-l·ed and won in a Civil 
 Case at the Primary Court in a claim of' ownership' of the 
piece o.f land th8 subject o.f the two criminal chargeso 
 In their de.fences, the respong.ents generally denied 
criminal responsihi}it;y':(i-·:·j:~ .. ·the. defence o.f the 1st res~ 
 pondent,the charge against him was framed against him 
 iibecause my plot is far-,,from' t·tat of complainant I'm not 
concerned with the quareir bEttween the 2nd accused and 
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 the complainant 
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o Likewise, the det'ence of the second 
 respo.ndent was basically that he never trespassed onto 
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 "Ptf.t' s land nor did I sold the· pLQt to Pwl rr o In the tes- 
 timony o.f the 3rd respondent 
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the charges against him were 
frame 
a ·'.. L' Ups:, Also; in what appl~ars . to; be contradictory 
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 statements~ this reepondent at one. time· said that 
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th~- 
 area' C:onc'erne.:d wj_th the dispute .. between' 2nd accused and 
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 PWl was my property which I sold to Fwl and SU2 
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an_d yet 
at a later s-tage i;1 cross examinati.on by the 2nd accus°ed 
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 (now second respondent) said "The area is not the one con- 
 cernetl 'u the case:in exho Pl 
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 In acquitting the respondents, the learned Disti:_:ict 
 Magistrate was of the view~ inter alia, that irthe issue 
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 concerning the lruid was not a criminal charge but a civil 
 matter ·1,1hi~h was late:r. determined" and hence that 
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the 
 · fi'rst• offen~-e c)f criminal trespas1 cannot stand because 
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 the saiii~ wts.determincd in a civil suit 
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second count~ the learned District Magistrate was satis.fied 
 ,.. that the respondents were at the scene on the day and time 
in que:.~tion, but lo.ter reasoned as .follmr-rs; ~- 
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 " As I have said above the area had a dispute 
between the complainant and the a.ccused persons o 
 In such circumstances the complaincmt might have 
.feared or suspected a breach o.f peace at the 
 area but all was about the area which eoch was 
 claiming to be his property 
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 After making this statement the learned District Magistrate 
 then proceeded to acquit the respondents on this and the 
first counto 
In the' ·15eti tion of appeal, there are three grounds of 
complaint which read as follows:- 
 lo That the trial Magistrate glc~ingly erred in 
acquitting the respondents despite of the ovorwhelminf,.' 
 cvidence of the: prosecution to the contraryo 
 2o 
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I1i1e trial mo.gistrate equally erred in law in. 
 holding that because n case has been decided in a 
 civil suit., tbe wrongdoers cannot oe proceeded against 
 in a criminal caseo 
 3o Thnt tb.e triaJ_ mc.i.gist:ate crred in not e,ccording 
 weight the prosecution evidence which proved beyond 
 reasonable dcubt the two charges preferred against 
 all the respon<lentso 
 In advancing a.rgnn:cmt.s for and against the appeal J.0.."~-- 
 ned counsel hav0. submitted genorallyo I too propose to dis- 
 pose of the appeaJ. generally as follows:= 
 !~3:-~h there? is no serious dispute that the respondents were 
at the scene on . day in questiono Indced 
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none 
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 amongst.the respondents ca.t~gorico.lly denied prescni-e 
 as alleged by tho prosecution witnesses. 
 ~~~2Esh., 
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 all the prosecution witnesses were positive that 
the respondents were not_ only present as 3fo~estntcd, but 
they committ0d the two ciffGnces., 
 1Jli~~J,. elthough the parties do not appear to soy so in 
 clec.r and specific words~ 
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lnnd. 
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was a subject matter which 
 gave rise to commission of the offences in issueo A lock 
at the evidence and some of the documents that were pro- 
 ddnccd and admitted in evidence will confirm this pointo 
 , ~cm;rt.h-. learned counsel are very much alive to the principle 
 that wh0re a criminal offence J_s committed in circumstances 
where parties c1aim ownership of property,spccifically land 
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 it is always_~s3..fC? to advise them to rc::sort to a civil cour·t 
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 in order th:at the iseue of owneT·ship may first be determined 
 before criminal ,)h·.1.T.·g,:s could. lie ~ ~aiq.,=h~.1.~~v ~R~:t9~?8 _}-IQ]l 
 J..2§.. In the submission of Mr., 1'bssrJra 
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· the issue of owner- 
 ship bad since been determined vide civil case noo 51/98 of 
the Arusha Urban Primary Court o.nd hence that there was no 
 way the respondents cou.].".9. ec;•;ape ';T.'iminal responsibility in 
the circumstances., On the other hand, Mso Bigcye he.s mainta- 
 ined that the principle in §Qi..1,~. 
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~~ case could not apply 
retrospectively in that the offences were committed on 1/2/97 
 wt1en it was not until 9/7/98 tbat the issue of ownership - 
 W8.S dot2rminGcl as por the aforeatnted civil suito In my 
 vie:w'1 the point being convassed herein is no doubt an inter= 
 C?sting onoo In m;y opinion, though~ th0 principle could apply 
retrospectively in the following sense:= It is true that at 
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 time of thG offences Fwl had, at lbest, only very strong 
evidence that the land was his after he had bought the same. 
 from the 3:i:>d respondent= a point which wo.s not seriously 
 contradicted,, Now that the issue of ownership had since 
been dGtermincd,; 2,s per the decision of the Primary Court, 
I do not think there was n.ny harm in convicting the responde- 
 nts (if the District Court hnd,minded to do so)_ on 1/9/99 
 when the issue of owne:pship had since been finally detcrminedo 
 I mention 1/9/99 because this was the date when the decision 
 of the District Court in the criminal charges was giveno 
 In other words, on the date of the respondents' acquittal 
 the issue of oi-mership of the land ho..d since been dcterminedg 
 ;ftf.t}li I appreciate that Msg Bigeye has tried, at some great 
 length, to sa~r that th12 issue· of ownorship was still very 
much at ste;ko i:n the eJ:-iminal trial .. This may be fineo 
 However 
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sinc8 no appeal or revision wo.s ever preferred and 
 allowed on the aforesaid civil suit, it will be too late in 
the d2y to canvass the point in this criminal matter~ more 
so since there was no serious disuute in the criminal trial 
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 that the land mentioned in tho cr-iminal chnrges wns the very 
one that wns the·subject of cdjudication in the civil suit., 
To be specific, at the time of the responc'Lents' acquittal 
 the complainont had. since be<?.I! adjudged the lawful owner of 
· the disputed. lnrnL 
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 §?_dfthJ.. in the ::.;u.bmio.3ion of Ms o Bigeye, there were mntcrial 
 contradictions by th.c prosecution witnesses~ specifically on 
 eoooooo·o/6 
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the aspect of b.me(,s) · of cotfrnission of the offonce:s ioco 
 one wi tncss saying the offences were commi·~tccl. in the nftcr= 
 noon and others putting the tirn0(s) botvJc:en 10000 0.0D1e1 and 
 10.,45 G.offio In my onswer to this point, the contradictions 
 were not mnterial beco.usc ·the witnesses were, e.t the very 
 least, positive that the: offGnces w0re committed on thnt 
 day by the respondentso· The contradictions on time could 
 ensily bG explained 2,way by the f2_ct that it was not expected 
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 th0t the witnesses would be a~.curate. with 
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mathematicnl prc.·- 
 cisionn on hours, minutes, seconds etco If I mcy repeat, it 
 was sufficient that the withess<?s did not differ that the 
offences were committed on that dny by the respondents with 
 rnor<? than two witn<2sses putting the time(s) of commission of 
the offences between l0c00 ao1rf,,-. and 10.,45 aomo In fact, while 
 it is not sefe to speculo.te, but given the totality and flow 
of the. evidence it v{D.S still possible that in putting· the time 
as being in the 
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afternoon 
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Pv/2 w-as probably misquoted or 
there wo.s a slip of the tongue ·on his partc 
 S3.~e_ntll,.. I agr0e with Mr" Massara that it was wrong for the 
 learned District Mo.gistro.tr:: t'J inf('r that since civil. liobi= 
 lity .had been dete:rmine:d then no criminal action could lie 
 against the rospondcnts., The learned District Mngistrnto w·ill, 
 hopefully, approciate. that the fact that a person can succor:. 
 in a civil matter is no b2I· for pursuing a C::t:'.inrinal ·matter, 
 ond vice ve:csoa llt:tG two nction.s a:.:G not only different but 
 the s.tandi::trds of proof ar0 also different o It is elenientary 
 that in a criminal mo.ttcr thG standard is o.lwo.ys beyond 
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 reasonable: doubt wherees in o. civil. action it ison a balance 
 .of probabilitieso A typical example is ·where, for instance, 
 a complainar..t may ,suc,~eed to secure a conviction criminally 
in a charge of assault and later sue in a civil court for 
 compensation for the?. n,3snulta Proof in the criminal action 
of assault will be· beyond ransonable doubt ·wherens in the 
civil action for compensation or damages for the assault the 
 stendard of proof will be on a balance of probabilitiesa 
 ~gtg,.,_ likewise I agree with Mro Mnssara that in acquitting 
 tl:ie respondents on the second C,)unt the learned District 
 f~cts . 
 Magistrate was assuming (.. and forgetting that tber(; was 
 sufficient evidence before her upon which she could reach 
 a definite findingo She assumed facts by s$ing 
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inter alia 
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 as follows:.:.. ·' 
 iiit was n~t dis1,-uted that on that do.y the 2nd and 
 3rd accused. we:re 2.t the area on that daYaaooooooothe 
 area hau a dispute be-tween tb.e complaino.nt and the 
 accused pcrsonsQ In such circumstfu~ccs 
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jJl,£_J:01:12I?.l~i~ 
 nant must have fcEU'cd or susncct(_cl a breach of £_eacc 
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 ~-=-- ___ ,.,_ --~"---~~~..,.-.::-,o,o~.::::z..~.,..°"~?U'lr'<-,..~ .... -·---- ..cc.~ ........... - .. ........ - =--~ ___,.,_,.._....-,,r.. 
 (Eriiphr-wis supplied)., 
 In the above st?-tement. tt.er,: ·ws.s B.Il o_ssumption of facts by 
the learned Di,str.:.ct M2gistr2te in the midst of positive 
evidence that the complainant was actually threatencdo In 
the evidence of the pr-oseeution witnesses, the rGspondents 
 were not only ,,,ieldil1g weapons but they actually threatened 
the complainar.J.t., In the totality of the evidence, th<?re were 
 threats which could have <2asily caused a breach of th8 peacea 
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 Mso Bigcye h:::s ntter:1pted to say~ inter alia, that since the 
 complainant was tr.u:2atened not· to get out of his house he 
 could rut ca~ily kno~ the res~o~dSnts~ With respect, I do 
not ·agree because th_e complainant knew the respondents before 
 that day and he co~ld have actually seen them through other 
avenues i,.co .windows, doors etco In cmy case, the evidence 
of the othep pros.::=cution witnesses ccnfirrned the presence and 
 the: threats pcrpctrcJ.ted by the respondontsa 
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 In the end result, I run satisfied that the case against 
 the .respondents was established beyond reasonable doubto It 
 was, th2refore, wrong for the; J?istrict Court to order their 
 acquittala Tho appoal is nccGrdingly allowed with the result 
 that the order for the respondents' ocquittal is quashed ond 
 set aside .. In its pl3.ce 
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the respondents are convicted as 
 chargedo 
 0-zi'- - 
 Jo Hn JViSOFFE 
 JUDGE 
8/9/2000 
 Delivered this 8th day of September, 2000 a}i1a_ the 
presence of Mrs o Ntilatwa for the app~llant - :qpp L Mso B-i :;'):T2 
 for ttie respondents~ and the responclentso 
 !fv;ji 
 JD H .. MSOFFE 
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 8/9/2000 
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 Mrs 0 Ntilo.twa~ = My Lorcl, thcr0 is no record of previous 
..,,.__...,.,..~_~_..,.,..-_~"7t"C";t:-:-~:.,r~-==- 
 conv:~ctions o 
 r1s.,o_~:i?~~~e;z:~J-~Ct~ n~j.t7,~J~.~S:?l12. r, My Lord') the accused persons 
 are first offenders4 Each of them ha.s a far;1ilyo The 
 respGctive families depend on themo The respondents have 
 been out all this time - therefore it is not likely that 
they will be a menace to the sociotyo I pre~ for lenient 
sentences =• preferrably non=-custodial sentenceso 
 S~~t~}l~.£ ~ On the facts ond the points raised in mitigntion 
 I sentence the respondents ns follows:-~ 
 1~~-Q~t.m.-t - Eac_h respondent is sentenced to pay a fine of 
 Shso 2,000/= er six months imprisonment in defs.ulto 
 .~.,.Sl .. Q.o~uncl •-~ }:~Q£l} respondent is sentenced to pcy a fine of 
 2,000/= or six monthn imprisor1ment in defaulta 
 If the respondents shall fail to pay the fines then 
 the alternative sentences sentences of imprisonment shall 
run coucurrcntlyo 
 vv[:41 
 ,Jo H .. MSOFFE 
 JUDGE 
 ·s/9/2000 
 Right 0±.' appeD:i_ expla:il~.ed., 
 J .. H'9 MSOFFE 
 JlJ-DGE &___ ..... 
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 8/9/2000

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 Mrso Ntilo.tw2.: 
.,~__,._..,,,.,-::c_,_._...,,_._,::~~-,,,---..-~->:,:;a 
My Lorcl, thcr0 is no record of previous 
 conv:~ctions o 
 are first offenderso Each of them has a farJilyo The 
 respG:ctivc families depend on thcma The responde:nts have 
 been out all this tirllc ~ therefore it is not likely that 
they will be o. men&ce to the society., I pra~ for lenient 
sentences=• preferrably non~custodial sentences" 
 S~t<:.r~Ae •~ On the facts cmd the points raised in mi tige.tion 
 I sentence the respondents as follows:•- 
 1st Count - Ench reBpondent is sentenced to pcy a fine of 
r.~~...:r:~~ 
 Shs., 2,000/= or six months imprisonment in clefc.ulto 
 .?ncl _qol:£?.s1 ,., J~£ll respondent is sentenced to pcy a fine of 
 2,000/-= or s~x mc.mths i11prisor . .1nent in clefnulto 
 If the respondents shall fail to pay the fines then 
 the o.l tornative sentences sentences of imprisorrn1ent shall 
run concurrentlyo 
 vv[}tt 
 ,J '& H .. MSOFFE 
 JUDGE 
 '8/9/2000 
 Right; 0f appec<i explai:c.edo 
 rldc 
 J,, l, MS0FFE 
 JUDGE 
.,..~~ 
 8/9/2000

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