SYLIVERY NKANGAA v RAPHAEL ALBERTHO 1992 TLR 110 (HC)

 

SYLIVERY NKANGAA v RAPHAEL ALBERTHO 1992 TLR 110 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J

26 May 1992

Flynote

Criminal Practice and Procedure - Appeals - Appeal against acquittals originating in

the G District Courts - Whether the complainant can pursue the appeal in the High

Court.

Criminal Law - Criminal Trespass - Whether a charge of criminal trespass can succeed

where ownership of the land has not been determined in a civil case.

Land Law - Land ownership - Whether a Criminal Court can determine matters of

land H ownership.

-Headnote

Raphael s/o Albertho, the respondent was charged, in Singida District Court, with

criminal trespass c/s 299(a) of the Penal Code. The appellant was the complainant. At

I the end of the trial the Court acquitted the respondent and declared him the lawful

owner of the

1992 TLR p111

MWALUSANYA J

disputed land. The complainant appealed to the High Court. Three issues required A

determination. First, whether the complainant could in view of the provisions of

sections 378(1) of the Criminal Procedure Act, appeal in person to the High Court of

Tanzania. Second, whether a charge of criminal trespass can be sustained where the

ownership of the land has not been resolved in a civil case. Third, whether it is

competent for a B Criminal Court to determine matters of land ownership.

Held: (i) By virtue of section 378(1) of the Criminal Procedure Act, in public

prosecutions only the DPP can appeal against an acquittal from cases originating in C

the District Court;

(ii) a charge of criminal trespass cannot succeed where the matter involves

land in dispute whose ownership has not been finally determined by a civil suit in a

court of law;

D (iii) a Criminal Court is not the proper forum for determining the rights of

those claiming ownership of land. Only a Civil Court via a civil suit can determine

matters of land ownership.

Case Information

Appeal dismissed.

[zJDz]Judgment

Mwalusanya, J.: The appellant Sylivery s/o Nkangaa was the complainant at E

Singida District Court where the respondent Raphael s/o Albertho was the accused

charged of criminal trespass contrary to section 299(1) of the Penal Code Cap. 16. The

accused (respondent) was acquitted of the offence he was charged with. Now the F

complainant is appealing to this court against the acquittal.

This appeal is obviously misconceived. According to section 43(1)of the Magistrate's

Court Act No. 2/84, appeals from the District Courts to the High Court have to be

concluded in accordance with the virtue of section 378(1) of the Criminal Procedure

G Act, in public prosecutions, only the Director of Public Prosecutions (D.P.P.) can

appeal against a acquittal by the District Court. This was a public prosecution and

therefore the complainant has no right of appeal. Therefore this appeal is

misconceived and incompetent.

Even if the appeal was properly filed, still the appeal had to fail on merits. This was a

H charge of criminal trespass. This court on numerous occasions has held that the

charge of criminal trespass cannot succeed where the matter involves land in dispute

whose ownership has not been finally determined by a civil suit in a court of law. In

this case both the complainant and the respondent claim ownership of the land in

dispute. The I respondent claims that it is

1992 TLR p112

MWALUSANYA J

his clan land, while the complainant/appellant claims that he was lawfully allocated

by A the village land allocating committee. That being the case, the charge of

criminal trespass is not maintainable as the ownership of the land in dispute has not

been resolved by a court of law in a civil suit. The rationale behind that doctrine is

that under section 9 of B the Penal Code Cap. 16 the alleged trespasser is protected

because he has an honest (bona fide) claim to the land in dispute, even though the

claim may be mistaken. The honest claim of right can only be destroyed after a court

of law in a civil suit determines who is the owner of the land in dispute. The learned

Resident Magistrate was quite C alright in acquitting the respondent. However the

learned Resident Magistrate was wrong to declare the respondent as the lawful owner

of the land in dispute. A criminal court is not the proper forum for determining the

rights of those claiming ownership of land. Only a civil court via a civil suit can

determine matters of land ownership. D Therefore using my powers of revision, I

will quash that part of the decision of the Resident Magistrate which declares the

respondent as the owner of the land in dispute. The parties are at liberty to file a civil

suit which will determine once and for all, who is the owner of the land in dispute.

In the event I hold that this appeal is misconceived and incompetent and therefore it

is E dismissed. The order by the District Court declaring the respondent as the

owner of the land in dispute is hereby quashed. The parties are at liberty to file a civil

suit which will determine as to who is the lawful owner of the land in dispute.

F Appeal dismissed.

1992 TLR p112

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