Haji Mbaruku and Others vs Republic (HC Criminal Appeal No. 113 of 1990) [1990] TZHC 298 (23 October 1990)

· NCHALLA 1 J.:

IN THE HIGH COURT OF.TANZANIA ' AT ARUSHA APPELLATE JURISDICTION I-fIGH COURT CRIMINAL· APPEAL _No .113 OF· 1990 ORIGINAL CRIMINAL.CASE No. 28 OF 1989 oF· THE DISTRICT COURT· OF .IvfwANGA DISTRICT AT MWANGA Before: M.H. BAKARI Esq, PRINCIPAL· DISTRICT MAGISTRATE'.. HAJI MB.f-.RUKU & 2 others •••••• ·• .•. APPELLANTS· VERSUS THE REPUBLIC• ••••••• · • •• , ••• • •.••• RESPONDENT- .JUDGMENT. The thre. appellants in. this ca.se nam:ely HAJr' ·s/6 . . . . : ... , . MBARUKU (!st accused), ABDUL S/ o. RAMADHANI {2nd accused) : . . • •· ·; .. j , '. and BENEDICT S/o MBERESERO (3rd_ac.cμsed) wer,e·jointly charged; . . • '. - '· .• . . . . ' . . ,."fi with two Counts before the District C<?urt 1 ;at MVfanga •. :.9n 1st -'/1 t • JI • • ; • • ',' Cqμnt t.hey wer charged with ~ entry c/ s e5· o:f. the Pena~:~' Cpde,. and on 2nd Co.~~- .t-.hey ~re charged wi:th li".J.ous d·:.r to pr9perfy c/s 326 (I) of the penal code •. The first "two.. . appellants (1st and 2nd· accused)· were convi·cted on: the: 2nd ·Cour-t.only, while they.were acqu;i,tted of the Js~ Count .. The ·1ast mentioned appellant ( 3rd a·c~used) as· conicted o! both Courts. Each appellant_was sentenced to 15,000/i:.fine or· i·. nine (9) months imprispni:nent in default on 2nd Count, while . . . . t: . ·•. . . . : ,. ,' .,· •, .•. : , · the· 3rd accused was. sentenced to 5000/ = fine or three ( 3) ·::.

• .. ~ ·, . . . ~ . •' ~ ' .... . . ' ' ; ~ . . . s: '" :\ •. m_onth~. i,prJsonmen_t_ in default on. 1st _Count. The 3rd _acused/. t ;., · ··:appellant was further OI".dered -to py· Shs · 40,000/~ co-p~~. · . . . j . • . ·.: " ,, • ' ' '.. , •. . . .'' : . ' ' ' ' .. ,, <:'• nation ·to he 1 complainant._ Fu_rther order. was mar,le··ag_a_nst .. ; ,\, - 3rd accused/ appellan.,Lthat he should demoli$h a cement b 0 lock _ 'l: . . . . .. ... _;,,,..-: .. ; )it f' . ferice ~ whi()h Je built xteding ·_on :to the compi_ainaJ;).t Is piece. " .. , 0£ .land •. ·' ••••••••••• I 2

2 The· appellants d'l,lly paid the.fines that were imposed them. Also the 3rd accused/appellant duly paid 40.000/= comP.e-?.> •_. nsation to the complainant. The appellants were· however, aggrieved yvi th the convic.tion, sentence and the orders that were made and imposed on them by _.the trial subordinate hence hip appeal •. . .. . ... "' The· appellants were represented on appeal by Mr. Maruma, learned advocate, .while the .Republic was represented by Mr. ,. \ ... Mwidunda, learned State Attorney. I heard this appeal on 26/9/1990 and allowed it in toto. I quashed the conviction that wa entered by the trial Court _, on each appellant. I also set aside the sentences and the concomitant orders that were passed by the trial subordinate Court. I ordered that the fines which the appellants paid be ·: :; .. refunded to them by the Judiciary~ I also ordered ,.tpat the . .•. 4 • • • • • • " C 40, ooo/= which the 3rd accused/ ap.J;)elant pai·d to the complainant: . . being compensation for a· damaged fence made· of iron poles 'be r-funded to hi~.,,}othwi th by the complainant Ibrahim· S/ o· Mbreser~. (P~'Jj') ~ The order to demoli.h ·~ cement· block fence ·· that was ade against the/jrd accused/appellant was f:l.1so set asid. I~:rserved reasons for my decision. I now give those rasons •.. I will first set out the submissions of both counsel on appeal. Mr·. Mar1:1ma, counsel for the appellants, submitted that• the trial magistrate erred in making a finding that the 3rd- . . - . '"• accused/ appellant committed the offence of ·fornible · eht,ry. •;The':· evidence on record .did not prove that offence. Mr. Maruma submitted that this matter arose .out of a family dispute on 'piece of land between two full brothercs •. · The complainant is th · . · - ·. , ·· . ·· ·· accused · young brother of the 3rd accused. Th~_3rd appellantjruns a petrol station in Mwanga town which is adjacent t-o , ' ·'

3 piece of land. Since 1987 the complainant constructed a fence using iron poles in such a manner that motor vehicles were hampered fro·m entering 3rd accused's petrol station for .fue- ling_ purposes. The 3rd accused thousht of having the said poles removed to afford ease access by motor vehicles to his petrol station~ !t would appear the 3rd accused,could not convince 'his young brother, the complainant~ to remove those poles. So, the 3rd accused sought the,ass.istance frqm their , , eicters joint clan elders where by the clan L. ,held a series of meetings at which complainant and the \rd accused attended, and where the clan elders directed that the·said iron.poles be removed. The complainant submitted to the jurisdiction of the clan elders' reconciliation and, infact, he agreed with the clan elders' direction, but did not however later comply with that directirm. The last of the clan elders'· meeting was convened on 10/2/1989 to which the 3rd accused ·andLJg&plainant atte_nded, whereby the· same resolution and direction ,was rea- , . ched by the clan elders, and the complainant who attended that • '. I . , ' meeting was present, and acceded to the clan elders' resolution, D.W2 one. of the clan elders was instructed to. go and supervise the. implementation of the clan ·elders': directive; In compliannce with that directive, and in the presence of the. complainant, D. \v. 2 went and ased the 1st ahd 2n_d accused, who are the 3rd accused's employees, to carry out the clan elders' directive which the complainant had agreed to. 1st and 2nd· accused carried out that task on instructions of D.W.2. They uprooted the iron poles fence which was built.by the complainant bordering the 3rd accused's petrol station, ·and whic~ hampered ac·cess · to that petrol station by motor vehicles. The 3rd . · the accused was not present whenLsa1d iron poles were removed. On the above evidence Mr. Maruma argued that even the offence of malicious damage could not be p.ro'ved on the appellants. The iron poles·· were mer~ly· ·. upro'o.ted 'in u manner which was the only way that those iron poles could .be removed to comply with the order of the clan elders. This fact is supported by the evidence of P. W. 4 wh·o 1nade those iron ••••••••••• I 4

4 poles and imbeded them in the ground. Mr. Maruma submitted that he 3rd accused had no malicious intent, but had a bona fide claim of right in removing those iron poles in line w th the c_lan elders' resolution which was consented to by the compl?inant. As regards the alleged_encroachn_lf=nt by the.3rd accused by building a block fence extending to complairiant 1 s piece of._land, Mr. Maruma submitted that, that act could only give •rise· to civil actio~ if proved, not criminal proceedings as was done in this case. Mr. Marua stessed that it was erroneous for tl:ie trial . . Court to demand for a copy of minutes of the clan elders' ' ' meeting and the rP.solution thereof to which the complainant . . . . agreed. This fact was not in dispute and the complainant clearly so admitted at the triai. So, the trial magistrte's finding o·f fact contrary to what is established by the evidence on that issue is arbitrary and threfore prejudicial. Without further ado, I quite agree with Mr.Maruma t·hat it was'establi- shed. on the evidence on record that on .several occasi_ons the · clan .. elders of b.oth the 3rd accused and the complainant held meetings in order to reconcile the complainant ·and the 3rd .accused ip. ttieir dispute in respect to the removal of iron .. ·poles that were impending motor vehicles from easily reaching . . the 3rd accused's petrol station. The complainant and the 3rd accused attended.those meetings.and the elders always resolved that the iron poles in question be removed and the complainant consented. to that resolution-. The last of such meetings was held on the material day, ·that is,on 10/2/1989 where the same rsolution, was repeated_ ad to which the.complainant agreed. On this plain evidence, it was curious for the trial magistrate . .. to demand for produ,ci-c5n of minutes of such meetings when infact even te complainant so admit~ed at the trial. Mr. Mwidunda, learned State Attorney, conceded to the appeal. He did not support the.whole decision that was made .......... 0 •• /5

• 5 by the trial subordinate Court in this case. Indeed, this case was so straight forward that the same presented no difficulty in making a decision thereto-. I quite agree with Mr. Maruma, counsel for the appellants, that on the available evidence the charge on both counts was not at all proved on any of the appellants beyond reasonable doubt. The conviction that were entered on the appellants by the trial subordinate Court were ¥ot properly arrived at. It is for the foregoing reasons tha.:!tallowed this appeal. For avo- idance of doubts, the comp~~~nant• if so disposed, is free to file a civil suit against his elder brother, the 3rd accused, for the encroachment to his land. Appeal allowed .• ·M 1~fa1q '-...,/ ~ D • NCHALLA, JUDGE 23/10/1990.

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