Ivo Nkana vs Seston Kazule (PC HC Criminal Appeal No. 6 of 1998) [1999] TZHC 357 (17 September 1999)

IN TH:8 HIGH- COURT OF '.1. 1 ANZA.1,1IA AT MBEYA (PC) HIGH COUHT CRIMINAL Af·PE11.L NO~ 6 OF 1998 . : . . '<:From Criminal Appeal No. 9 of 1997 of Sumbawanga District Courto vTiginal Criminal Case No.25_. o.f 1997·of-Kipande Primary Courto Before~ M.J.B •. Hamisi,,-;- District R~·siderit Magist:cat~) IVO NKANA Versus SESTON KAZDLE On1.Jf!On0,00r:,0t,.>OOOOOO 1-?.ESPONDDNT -JD'DGMENT ..,,-;; .... -- • l'his is a second appeal. The l'ipande prirr1ary court. convicted the appellant, Ivo s/o Nka.na, of.two counts: §.ecd_c_o.Y,_: Ivia1icious damage tti· property,, contrary. to Section 326(1) of the Penal Cod~~ .. The appellartt was sei1tenced to a sentence ¢.f:dines of shs.5,000/"'i., and ..... shs.10 1 000/:.::, respectively or sx months imprisonment in default. He w:a.lso ordered to pay to the respondent, Beston Kazule, a comper.,3aion of shs.20,000/::.: foil'.' his destroyed crops. Ee felt aggrieved and preferred 'his fir,s. appeal to the district court of Sumbawanga district at Surnbawangcl ·which was. dismissed. · Hence this second appeal whose memorandum of appeal was drawn and filed, but not argued, by Mr. Materu, learned advocate. When this appeal was called on for hearing, the appellant asked the court to consider the memorandum of appeal, and the respondent, who had filed a written .reply to the memorandum· of a.ppeal .,. was absent as· he had eixpressed a wish not to enter an·appearanceo 'l'his. second appeal i6 withou~-aubetance- ~ admitted for hearing orily ~e ~ 'w.a,,l!""·t a lened advocate ~-9- .appea,r which... however• has not : ·,; .. ; . ,[i:_.- ·-,. ., ... .,: . . It_ ·w undisputed and established in evidence that on 29.1 .97 ·••000000000 /2

J 2 the appellant forcibly drove his_tractor into the land occupied and cultivated by the appellant and completely detroyed the appellant's crop of finger millet (ulezi) estimated at 3 bags, and sunflov;,er (alizeti) estimated at 1 bag claiming that it was his lando But, .. :the appellant 1 13 ovmership of the '12nd. was established in ample material and believable evi_c_ece. Five witnesses well versed with the history of that la.Yld spoke in favour of the 'i,esponcl.ent:~ As said, I would have dismissed this appeal summarily at. the sfage of admission under Section 28 ( 1) of the Magistrates' Courts Act 1985,. but for the reason T have given~ I accordingJ.y find no merit i.n this second appeal which is hereby AT F!BEYA. '-. ·-·····-·-".-- ....... 17 September 19990 For Appellant~ Present b For Respondent: Absent~ B.P. M00HI J'UDGE. I CERTIFY.THAT THIS IBA TRUE·COPY OF TB:E OrlIGINAL. I