Director of Public Prosecutions vs Michael Mrema and Another (Criminal Appeal No. 129 of 1989) [1991] TZHC 2669 (20 August 1991)

IN THE TIIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION (.A.UUS.ilA REGISTRY) CRHITNAL APPEAL NO, 129 OF 1989 . . . ORIGINAL CRIMI.t"\JAL CASE NO, 252 OF 1988 OF THE DISTRICT COtrRT OF MOSHI DISTRICT AT MOSHI BEFORE: N.GAWASYA ESQ,, DISTRICT IV"0,GISTRATE THE DIRECTOR OF POJ3LIC PROSECUTIONS .• I I APPELLANT VERSUS MICHAEL MREMA & lillOTIIER .•.• . . . ·• . , 1 RESPONDENTS JUDGMENT • NCH.ALLA, J •,: This appeal has been'filed by the Director of Public Prosecutions against.the acquittl of .the two respondents for the charge of theft o/s 265 of·the Penal Code The respondents were oharged with that offence before the District Court at Moshi. Mr. Lundu, learned State Attorney, veheoently argued this appeal. He submitted that there was established evidence that was adduced ·by the prosecution that in 1988 the complainant one Fudasi~ d/o Samwel (P,W,1) had cultivated her piece of land of the size of 2½ acres which is situated at Mandaka Mnono village in Moshi rural district, She sowed paddy in that shamba and that she expected to hal'.'Vest many bags of paddy. P.W.l said that she used to harvest 50 bags of paddy fron one aere. It was in the evidence of PW.l that she acquired that piece of land in the followinG procedure. She cleared bush from part .. of that land which was virgin land. Pa.rt of that land was sold to her by Pili, whilG yet another part of that land was eold ~o her by one Apoli. The complainant also mentioned the nmnes of persons. who own paddy shanbas bordering her shamba from which it_is alleced the respondents harvested paddy. Mr. Lund.u stressed that on the naterial day the respondents entered cor:iplainant•s paddy sha □ ba in the ,eompa.ny of many other persons and they started l:.arvestine paddy from that shanba.

2 - It was during the d.ay at about 8.00 a.m. One Godson Victory (P,W.5) who ·was guarding at the said shamba against birds from eating paddy in that -shar.lba saw and identified the respondents as they harvested paddy fror.i PoW,l's shar.iba. Mr. Lundu subr.iitted that there had been previous disputes between the complain.cc1nt (P.W.1) and the father of the respondents one MrerJa Makuu over the ownership of the shanba from which it is alleged the responuents stole paddy. The said disputes had been referred to varioul}ggr&tt6i decision •. At the tiIJe this crir.iinal case arose there was a civil case pending before the Kiliraanja.ro Regional Customary Land Tribunal in respect of the sawe :;;hatlba and between P,W,l and the father of the responnts. That case is civil case No.28/86 whose decision was not nade available to the tril court in this ease. Mr. Lundu subciitted that the said Customal'.'y Land Tribunal had issued a teoporary injuction to the father of the respondents restraining him and his agents fror.i entering Md cultivatine the pieGle of land in issue pendins the detemination of'the suit before it. Mr. Lundu submitted that the ter.iporary injunction that was issued by the Reeional Custooary Land Tribunal against the father of the respondents was .issued on_ 14/7/87. After that order was issued then the respondents enteed into the said ahamba. They were charged with crir;J.inal trespa.ss in Moshi Distriet Court crir:tlnal ease No,84/88 but the charge was later withdrawn. Then sooe relatives of the father of the responden'ts also entered that shamba and they were charged ·with disobeying a lawful order, that is, the teoporary injuction that had been issued by the Custonary Land rl'ribunal ' against the father of the respondents. Those relatives were convieted . and were sentenced to pay shs,3000/= fine each. Mr. Lundu att2.ckecl the finding of the trilil r,1a.gistrate tha.t the sari1e proceeded frot1 wron0

principles, Mr. Lundu charged that the trial magistrate considered extraneous natters such as that the complainant who was an elderly wot1an could not eultivate a shanba of paddy,, Also Hr. Lund.u ch2.re;ed that the defence cMe was i

3 In reply Mr. Alutep learned advocate, ma.de a long aubraission. which a.an be surar.1arised as follows, He submitted that the findil'l5 ; of the.trial tJa.Bistrate was quite proper as the sa.m~ was based on credibility of evidenceo Mr. Alute further submitted tht even i{ the evidence of the witnesses that were called by the respondents on their dofence was coritradictory 9 yet .that fact alone could not ·be fatal to the defence case as the burden of proof in:crioint1l •barges always :).ies on the prosecutidn side. Mr. Alute submitted that the teuporary inju.otion that wo.s issued by the KilirJanja.ro Regional Custoary I.and Tribunal in· its civil ease No.28/86 did not confer ownership of the land in dispute to te complainant, but the sar.ie wo.s r,1erely to mintain the status quo and nothing else. Moreover, Mr. Alute urged, the said temporary injunction.affected only the respondents• father Mrem Makuu and his agents not every person who was not a party to that st1;it. Mr. Alute subt.litted that the said temporary injunction did not affect the respondents. Mr. Alute subraitted that the ownership of the sha.mba in dispute had not been resolved. For that reason orinina.1 proceedinGs oould not lie against the respondents for theft of paddy from the said shamba. Mr. ii.lute cited the decision of this court in the oase of SA!DI JOMA V.R. 1_2§.8.J[Cp Ns,.158,._ Moreover, Mr. Alute argued that the espondents had a·clo.ir.i of riibt over the shanoa in dispute and the orops in that shru:iba because prir.1af acie they are the owners of the said sharaba. He further submitted that the respondents have a bona.fide claim.of right over . . the shamba in dispute n.nd when they enteretl that shamba on 30/6/88 and harvested paddy therefrom they c1id so With a bona fide olain of right. For that reason the respondents eannot be prosecuted fo.1; tbe.ft 4-:n respect of ;paddy in that shanba •. Mt-. Alute cited· setiqn 9 of the Penal Code Ca.p, 16 'b'o baok up his contention. lie also •ited on the saie point the following decisions of this court in fte D.P.P. V. -~~L§f:9 Ryli.SJIA.ti1Z..\ l9ll LRT .I:1.0•f2 and SALUM IBRAHIM V.R. 19Jl _HC~~~.P.~~•.4-~ I, . ,. .. , ~ , :: <:;; .•

4 No doubt both parties appreciate and admit the fact that this ' . ease is centred· on the dispute of ownership of a piece of land froo which it is alle 0ed the respondents stole paddy _the property of the complainant (P.il.1). Even Mr. Munuo, leaned advocate, who was permitted to hold a wa.tchine; brief for the complainant (P.W.1) under the provisions of section 97 of the Crininal Procedure Act, 85 should easily see this fact •. It is further not in dispute • between the parties in this case that there has been a ·1one standing dispute of ownership of the said shal:lba between P.W.1 and the father of the respondents one Mrer.ia Makuu. The dispute had beein referred to various authorities or fora for dete:t'L'lination. At the tirae this case .arose there was the aforemetioned civil case No.28/86 pending before the Kilir:m.nja.ro Reeional Customary Land Tribunal. That suit was between P.W.l and the father of the respondents Mrema Makuu. Up to the tiDe this crir.u.nal oase was heard and determined before the district court at Moshi, the decision of the said Tribunal in its civil case No.28/86 had not been handed dow. ' For that reason the leeal owner of the shanba in dispute had not.· been kno1t{n. Even at this stage of appeal before this court it is not established with certainty-· who is the legal owner of the aha.moo. in question as between tlle cor:iplainant (P.W.1) and the respondents or their father. Under such circur.ist.onces, the respondents could . not have been· chareed and convicted of the offence of theft of any property froo that shru:i.ba.. The mere f.::i.ct that there had been issued an injunction order by the Land Tribunal against the.father of tho rospondents in civil case No.28/86 in respect of the said shanba does not mean that title was conferred to P.W.1 over the said shamba., As Mr. Alute rightly·subiutted, the said temporary injunction wa,s · issued L1erely to maintc..in peace and the st.atus quo at that shamba. The authorities cited by Mr. Alute on this point are quite correct and are bindin3 on the lover courtso In my considered view it was necessary for the prosecution to produce to the trial court in this case all the documents ontaining the decisions of various authoities and fora who hen.rd and decided the disputes between P.W.l o.nd the father of the respondents or the respondents themselves in order to satisfy and establish to the trial court tb1.t tho said 0,uthorities and forp,

5 had unaninousiy doclarod,the ownership of the shamba in dispute in fa.vow,:- of theconplainant (r._w~l) an~ tqat,such a unani11ous ·deblaratio~ had not been overturned by a superior court. This vital procedure and requirement was not adhered to and complied with by the prosecution side. Even the trial maistrate did not require tl-ie prosecution to conply with that crueial requirement upon which the proeress and deterlination of the criminal proceedines ' · ·:before it solely depended. _In :the .absence of the said declaratiqn, qS was·the position in this c~se, the crirainal proceedings should ; t' not have been allowed ~o proceed. Indeed, the e{i-idencc that was given by the conplainnnt (P.W,l) and her witnesses·at 'the trial in an attempt to establish her ownership over the land in dispute was overall not clear and str(1,ightforward. There was differing evidence as to the exact size of the shamba over which she claios ownarship which shamba is .. . ·alleged to be t·~e · s&.1e shamba fron which the respondents harvestecl ·'·.

• ·:~ paddy. Also it ! is ·not cleo.r as to when and how P. W o 1 cane in possession and wnersb..ip of that shamba. All these doubts would have been cleared if tbc previous decisions of civil oourts or other relevant authorities had been tendered as evidence at the tria.l to establish who was the leg:::i.l owner of the said. shamba. For exar.)ple, . . . . . . .. •. the first respondent :Michael J/ireli.la testified at the trial that he had sued the complaint (P.w.i) fo;· owrwrs.hip of the shrunba in question in Moshi D/,Court civil case No.50/88 and that he won the suit and that the conplainant never appealed against that decision, If that evidence is true then the crirJinal oha.rge. in this ca.s for · theft of paddy from that SaLle shanba cannot lie against .the respondents ,, who are full brothers. Certainly, the defence of bona fide clair.1 of right will arise in favour of the respondents and will militate against the whole crininal charge of theft, ,,_ ·· Iri the ci%CUii1$tc,,nces~ I find that the criDinal proceedings that were conducted before the trial subordinate court_against the respondents which procedings cdti.n.'.ltod in the acquittal of the respondents were irJproper as the sane were conducted wftho11.· -proof as to the ownership of the land fror.1 which the paddy in question .. . . :·\ . ·., :.) ,">.! ( •

6 .. . . was harve,sted by tl101 rGi~~•s-. n .I .ruls that tb.Qaa p~ ~ null and void and hence the acqui t;t_al of the respotidents. I hereby quash the whole of those proceedings and . set aside the order o:t acquittal on the respondents'. I direet that the case be hea1'1 de novo before p.nother magistrate' of conpeterit jurisdict_ion preferably a resident magistrate.. Should the issue of owner.ship errupt to which the eor.1pln.inant will have no evidence to prove or disprove, as the case r,JQ,y be, in the LJa!'lner directed , by this court in this judgL)ent, then _such erirJina_l proceedings sha.ll be st.'.lyed in atrict cor:ipliMce with Saidi J.una 's decision (supra), . Save. for the fore&oinB observations and direction, the appeal is disr:usaed. It is ordered accordingly, .. 20/8/91 · Cprang M.D. Nhalla.;J • For DPP / Appellant - Mr. Mwict>nda S/A For Respondents - Nr. 1Uute Advocate. c.C.g Blanca • (M.D. NCHti.LLA) JUDGE - 19/s/91 ourti Judgoent delivered in open coUJ!t at 11.rusha in the proseneG of both parties, this the 20th day of August, 1991. Right of appeal ex-Flained. I/ (---· t l.!ffi ,· A/I I I JI ' I { J . , //) ·UJJ&· '·&'(,' ( . , m_1 n _ / V. _ /</· (M.D. NCHALLA) JUDGE !0/8/91