Maserian Nakulele vs Republic (Criminal Appeal No. 6 of 1998) [1998] TZHC 2331 (19 October 1998)

• ,;-•'' ...:·.·"· ... IN '1'U RIGEr COUt'?- Qi' T~ AT ARUSB:A CRIMINAL APP]JA.L NO. 6 OF 1998 P'ROM TIU~ DECISION OF THE DIST1UCT COURT OF .ARUSIIA CRD.UN.AL. C.. 2li3/91. -MASmtA!f ~ .• :·:~ •••• APPELLAN'.r VRS ~ R:IllPUBLIC., • •. • •• ~ .: ,R!lSPOND:r.NT JUD . N. M.11USIII 1 J~ ' The appellant, Naserian Nakule.J.e 7 was- .ahar.s,Bd a.iw. ~ ~ ,the offce of tresspas.s o/s j-99 .(a.) pf the: Penal Code. She was · · 'sente9e'a i;o a.· ondi tional discharge under ·se.o.tion 30 .of the Penal . Cod~ .:She'· i~ ... appealiag against oonviotioi,.., , -., ' . . . •.,· .. , • ~s. Ntiia.twa. 1 learned state Attorney, did not su:p,POrt the conviction. . · · . . , · · . . · T a.p;pella.nt has 11ut :f'o~-~ wds,of appeal. In the ... first [Wound of appeal the appellant-says tt ·the trial magistrate . er~~-·ti.'oot~·:her ·for the'. ,,o:t:fene.:of, :;esspass without firet .. . . ) , _,. ··• ··· .,., ,;.. dterrnμi11S the i°e~ ownership· 0£ the shamba. In the second growld. of appe~:(· th~ ppellant oompl.a.jJu]. that·. the trial ma{;i.etrata failed to consider the defence evidence- in partiCJUa.t' exhibit D1 which was a. a. copy of jttdgement i1i, civil oa.se in which she claimed she had won the dispute 'over the shamba ,;rltlch she is alied to. i1ave tresspe.ssed. The appellant· ·ad.mi tted to. have entered the shamba and planted maize. She said th~:s:i.1amba was her propaty. She however admitted not to have ' ' . oul tivatod. the shamba f'or a lo~ time. The appellant tendered a copy of a. judc,'Omont regarding Civil case ine,whioh she alleged to have been declared as the owner•of the.sham'J;a.- It is oloa.r .. from 'the judgemc11t of' the lower court that the learned trial magistrate did. 'nQ't,,•at a.J:l con.sider this •pact of the defence case. Loti Simon, the oompla.i:nant in the oim:i.nal .ctwge, told the court that ha was given .the shamba in 1980 by his fat.her. This Loti did not know th history of the shamba. The prosecution purpotted to tend.er as evidence a statement by one. Simon Meti.nyiko who is the , ••••••• /2

·'· 2 - .,~ of ·J:.oltl.. ~ 4~~ ~ ~ ~~~ J,4li,-~ ~ Evidence Act. The statement was t-rrongly ad.mi ttcd because it did not comply with subsection 2 (d), and (f) of seotion 34J3 relied upon by the prosecution. . The only evidence regarding O'lirllersJ2i:p df" the .s.bamba. o-n the pras.ocution aide was that of Pi l - Lcti Simon who did not know how his law father - aa.mae-J the, ether Bid.c,, the- a~ tha."G ·t1ie shamba was her property as fihe was given by one Sa.ningo and .she also te.oder-ed. l'w judgement in which ~ -c.J.a.imed -to have been docla.red· the owner of the same shamba by the Primary Oourr As I said ea:rli~..t · learned trial magistrate dj_d not consider ... I.. . . . . . this aspect.of the def~nce evidence. ! am satisfied that had the ' ' ~i.al. ~ iy c.onsi.d$:> tb,Q...de£.ano-e ,ev:tt].en.c.e .and the evidence of the prosecution regarding ownership of ~1e shamba,• he sould havq en,:tJ;lrtained some doubts to the t. · that the.r.e ~ h& JUDGE 19/10/98 'ti 20/1/i/98 Coram t ¥• 1-1. Mushi,. , J. Order1 Appolla.nta-Naeerian Nakulele - present :r.rr. ser s,.A. for the Republic ,,. Judent read in ohambere. JIEGE