LAWRENCE MATESO v REPUBLIC 1996 TLR 118 (HC)

 LAWRENCE MATESO v REPUBLIC 1996 TLR 118 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Samatta JK

MISC. CRIMINAL CAUSE NO 14 OF 1993 B

31 May, 1993

Flynote

Criminal Practice and Procedure - Bail pending appeal - Principles applicable -

Section C 368(1)(a)(i) of the Criminal Procedure Act, 1985.

Criminal Law - Malicious damage to property - What constitutes the offence.

-Headnote

The Applicant was convicted of malicious damage to property in the District Court of

the D Ilala District, contrary to Section 326(1) of the Penal Code, and sentenced to

six months' imprisonment. The present is an application for bail pending the outcome

of an appeal.

In the course of its ruling, the Court enunciated certain well-established principles to

be followed when determining such applications:

(i) The principle that bail is a right is applicable only to cases where the

accused E person has not yet been convicted;

(ii) Bail pending an appeal can be granted only where there are exceptional

and unusual reasons or where there is an overwhelming probability that the appeal

would succeed;

(iii) Where an argument on the facts needs detailed references to the text of

the F evidence or the judgment to support it, it cannot be said that the appeal has

overwhelming chances of success;

(iv) Since no general principle exists that a person released on bail pending

appeal will not be sent back to prison if his appeal fails, the court is reluctant to order

that a convicted person be released on bail pending the outcome of the appeal; G

(v) Deciding whether bail in a matter such as the present should be

granted involves balancing the liberty of the individual with the proper

administration of justice;

(vi) Conversely to an application for bail pending trial, the onus in an

application for bail pending an appeal is on the individual, who must satisfy the court

that H justice will not be jeopardised, and that either exceptional and unusual

reasons exist for bail, or that his appeal has overwhelming prospects of success.

Held:

(i) The learned Magistrate erred at the trial in not considering and

deciding whether I the subjective element of the offence of malicious damage to

property was present.

1996 TLR p119

(ii) This failure by the learned Magistrate was so serious as to be capable of

A constituting a warrant for faulting his decision.

(iii) There were overwhelming prospects that on appeal the Court would

hold that the Applicant's version of the events was a sufficient defence to the charge.

(iv) There were accordingly overwhelming prospects of success in the

appeal. B

(v) The application was allowed, and the Applicant was granted bail in the

sum of Shs. 100,000/= with two sureties, each in the like sum.

Case Information

Cases referred to: C

1. Raghbir Singh Lamba v R. [1958] EA 337

2. In re R v Sakerbai MA Gangji [1967] HCD n.243

3. Hassanali Walji v R [1968] HCD n.174

4. Attilosio s/o Mosca v R. [1968] HCD n.295

5. Mipawa v R. [1971] HCD n.62 D

6. Singh v R. [1971] HCD n.149

7. Michael v R. [1972] HCD n.56

Dr Lamwai, for the appellant.

Kamba, for the respondent. E

[zJDz]Judgment

Samatta JK:

In this application, Lawrence Mateso, applies, under s 368(1)(a) of the Criminal

Procedure Act 1985, for bail pending the hearing of his appeal. He was convicted by

the District Court of Ilala District of malicious damage to property, contrary to s

326(1) of the F Penal Code, and was sentenced to six months' imprisonment.

The subject of the charge laid at the applicant's door was a structure which had been

constructed on Plot No 132, Mbezi Beach, Dar es Salaam. It was not seriously

disputed that in May last year the applicant, using some labourers, wilfully

demolished this G structure. Was the demolition unlawful? The prosecution alleged

and sought to prove that it was. Their case was that the plot was the property of one

Jafari Ngonyani, who was PW3 at the trial. The witness gave evidence to the effect

that, following instructions H from the President of the United Republic of

Tanzania, the plot was vested in him by the relevant public authority. He produced as

an exhibit a certificate of occupancy in his name. The applicant, on the other hand,

gave evidence which was intended to demonstrate that the demolition was lawful.

Briefly, his case was that the plot in question I was his; it was vested in him in 1988.

Four years later one Chilemba disputed before the District Court his (the appli-

1996 TLR p120

SAMATTA JK

cant's) ownership of the plot, but he lost the case. The applicant produced a copy of

the A court's judgment, entered ex-parte, as an exhibit. The burden of the applicant's

story was in essence that he believed that he was entitled to demolish whatever was

on the plot. Although he did not expressly say so, he seemed to base his contention on

a B concept equivalent to the concept underlying the Latin maxim of great antiquity:

Aedificatio solo, solo cedit (What is built on the land is to be regarded as having

become part of the land). Unfortunately, the learned trial magistrate does not appear

to have given his mind to this aspect of the defence case.

The principles which this Court applies in determining applications for bail pending

C appeal are I think, well established now. They include the following:

1. A clear distinction has to be drawn between the granting of bail to a

person yet D to be tried and granting bail to a convict. It is of great importance that

it should be clearly understood that the principle that bail is a right is applicable only

to cases where the accused persons have not yet been convicted, it does not apply to

cases, like the one now before me, where the accused persons have been convicted. E

2. Bail pending the hearing of an appeal can be granted only if there are

exceptional and unusual reasons or where an overwhelming probability that the

appeal in question would succeed exists; see Raghbir Singh Lamba v R (1); In F re R

v Sakerbai M A Gangji (2); Hasanali Walji v R (3); Attilosio s/o Mosca v R (4); Mipawa

v R (5); Singh v R (6) and Michael v R (7).

3. It cannot be said, where an argument on the facts needs detailed

references to the text of the evidence or the judgment to support it, that the appeal

has G overwhelming chances of success: see Hassanali Walji's case (supra).

4. There is no general principle that a person released on bail pending the

hearing of an appeal will not be sent back to prison if his appeal fails. The nonexistence

H of such a principle gives rise to a reluctance on the part of the court to

order that a convicted person be released on bail pending the hearing of his appeal.

5. The execution of the task of deciding whether a person who has been

convicted should be granted bail involves balancing the considerations of the I

liberty of the individual and proper administration of justice.

1996 TLR p121

SAMATTA JK

A 6. Whereas in an application for bail pending trial the onus lies on the

prosecution to satisfy the court that the interests of justice would or might be

jeopardised if the accused is released on bail, in an application for bail pending the

hearing of an appeal the onus is upon the applicant; he must satisfy the court that

justice will not be endangered and that either exceptional and unusual reasons exist or

B that his appeal has overwhelming chances of success. The court will grant him bail

only if it is satisfied that justice requires that that be done.

In the instant case would I be justified to grant bail to the applicant? With the above

C principles in mind, I proceed to answer that question. What constitutes the offence

of malicious damage to property? I start with that. Before a person is convicted of that

offence, malice, inter alia, must be admitted or proved. But the word malice here is

not used in the sense understood by the layman; it is used in a technical sense. Here

the D word does not necessarily mean personal spite against the owner or possessor

of the damaged property. It is enough if the accused intended wrongful damage to the

property, because if that intention is admitted or demonstrated to have existed, the

law will presume malice. The presumption is, of course, rebuttable. It follows from all

this that a E bona fide assertion of right-whether or not the belief was founded in

law-is, putting it in general terms, a sufficient defence to a charge of malicious

damage to property. The decisiveness does not lie in the lawfulness of what the

accused did but in the question whether the accused believed he was entitled to do

what he did. The accused's belief F need not be a reasonable one, for the

unreasonableness of the belief is a matter which goes only to credibility. The

unreasonableness of the alleged belief may be so great as to lead, when considered

with other factors to an irresistible conclusion that the accused G could not have

acted bona fide when he damaged the property in question. But where it is accepted

(or where there is a reasonable doubt on the matter) that the accused damaged the

property under the honest but mistaken belief that the said property was his or that

he had a right to do what he did to it he has not committed the offence of H

malicious damage to property. In the instant case, as already pointed out, the learned

trial magistrate did not address himself to the important task of deciding what the

accused believed when he caused the destruction of the structure on the disputed

plot. While guarding myself against any statement which could be taken as

amounting to expressing opinion on the merits of the appeal, I cannot but say that the

learned I magistrate's omission was a very serious one, parti-

1996 TLR p122

cularly when it is considered in the light of one of the ingredients of the offence of A

malicious damage to property I have discussed above. In my opinion the error is so

serious as to be capable of being considered by this Court as constituting a warrant for

faulting the learned magistrate's decision. Clearly, this was a case in which each B

claimant-the complainant, Jafari Ngonyani, and the applicant-was armed with an

official document which on the face of it supported his claim of ownership of the

disputed plot. In these circumstances, it was absolutely necessary for the learned

magistrate to consider the defence of claim of right and make a finding as to whether

the applicant C caused the destruction of the structure in the honest belief that the

plot was his and, therefore, he had the right in law to cause the said destruction. In

what appeared to me to be a half-hearted submission Mr Kamba, counsel for the

Republic, contended that the D applicant's appeal has `a narrow chance of

succeeding'. With respect, I disagree. For reasons I have endeavoured to give, albeit

briefly, I agree with Dr Lamwai, counsel for the applicant, that the appeal has

overwhelming chances of success. In my opinion, there are overwhelming chances

that after hearing the appeal this Court will hold that the story which the applicant

put before the Trial Court was a sufficient defence to the E charge he faced.

Accordingly, I allow the application. The applicant is granted bail pending the

hearing of the appeal in the sum of Shs 100 000/= with two sureties each in the like

sum. F

1996 TLR p122