Chua, J.: The appellant Dr. Wilfred Mlanga Marealle was charged in the District Court of Moshi as follows: H
1. Criminal trespass c/s 299 (1) (a) of the Penal Code, it having been alleged that on the 15/12/80 at Marangu Lyamrakana village he unlawfully entered into the farm of Edward David Marealle with intent to annoy. I
A 2. Malicious damage to property c/s 326 (1) of the Penal Code. He is alleged to have uprooted 15 banana plants belonging to Edward Marealle.
3. Failing to comply with a lawful order c/s 124 of the Penal Code. He allegedly failed to comply with an B injunction order issued by Marangu Primary Court in Criminal case Nos. 6/81.
The appellant was convicted in all the counts. In respect of the 1st count he was sentenced to a fine C of 2,000 Shs. or 6 months' imprisonment in default, while for the 2nd count he was sentenced to a fine of 1000 Shs. or 6 months' imprisonment in default and for the 3rd count he was sentenced to 12 months' imprisonment but the sentence was suspended for 9 months. It was also ordered that the D appellant should refrain from entering the disputed land from the 6th August 1984. The appeal is against the conviction, sentence and order of the District Court.
For a proper understanding of the case it is important to refer to its background. Both the appellant and the complainant are brothers begotten by the late Chief David Mlanga Marealle. Their mothers E were different. The late Chief David Marealle had many wives and was blessed with many children. When he died in 1962 he had bequeathed land to all his male children except Akilei who was then a baby. There was a portion of land which appeared not to have been bequeathed specifically to any child, though the complainant had been allowed by his father to graze his cattle F there. That piece of land was considered by some members of the clan to have been the rightful inheritance of Akilei while the complainant and others did not subscribe to that view. In 1968 Akilei Marealle suing through his next friend, the appellant, filed a suit in the Primary Court of Marangu G claiming for the piece of land. He lost the case. The appellant appealed to the District Court Moshi on behalf of Akilei. The District Court Moshi reversed the decision of the primary Court and awarded the land to Akilei. The complainant appealed to the High Court. The appeal was allowed H with costs. The appellant on behalf of Akilei Marealle filed a suit in the Customary Land Tribunal of Kilimanjaro Region claiming for the same land. The Tribunal ruled that the matter was res-judicata and advised the appellant to apply for leave to appeal against the decision of the High Court to the I east African Court of Appeal. The appellant did not pursue the matter further as advised.
Sometime in early October 1980 Mama Monica the mother of the complainant died. On the 7/10/80 A an all male family council was convened by the chairman of the clan Mangi Mkuu Thomas Marealle II. What happened in that meeting is a matter of controversy in this case. According to the complainant, he was asked to give the disputed land to Akilei so that the wish of his mother that the B family should be reconciled be fulfilled. He however refused to release that land. On the other hand according to the appellant, Mama Monica had said before her death that she had had dreams in which her husband directed her to settle the land dispute before her death. In the funeral meeting the land question was brought up. The complainant was asked to release the land to Akilei. The C complainant agreed to release the land from that day and the appellant was appointed to build a house for Akilei and his mother by using subscriptions from family members. Pursuant to what was agreed at the family meeting, the appellant cleared the ground and started building a house. He D denied having seen the injunction order alleged to have been pasted on the building nor received such order by dispatch. He only admitted having received summons which he obeyed by going to the Primary Court Marangu. E
The crucial question which the trial court had to decide was whether the complainant agreed to give the land to Akilei. Although in his evidence the complainant denied having done so, the evidence of Benedict Marealle (P.W.3) was that the complainant agreed to give the land to Akilei and that the clan would contribute towards the cost of putting up a house there. After the agreement was F reached the male members of the clan went to the house of the complainant to brief his wife. The wife fully endorsed the decision of her husband and went on to entertain the clan members with "mbege, a traditional Chagga brew. Mangi Augstine Marealle (D.W.2) told the trial court that after the clan asked the complainant to release the land he agreed to do so. Then the clan members shook G hands with the complainant. The shaking of hands, according to the witness, was an indication that the land reverted back to the clan. I quote the exact words of the witness on this point: "the land became clan property soon after P.W.1 released it at the meeting. It was thus the duty of the H sub-committee to hand over the land to Mama Veronica (the mother of Akilei)".
Since there was controversy on what exactly was agreed on in the clan meeting I found it necessary to summon the chairman Chief Thomas Marealle II. It became necessary to summon him because Iminutes purporting to have been taken at the meeting bore signatures
A of all the participants except that of the Chairman and the complainant. The minutes tendered as defence Ext.1 show that the complainant agreed to give the disputed land to Mama Veronica and her children and the appellant was instructed to build a house for them out of contributions made by B clan members. Those who signed the minutes are (1) Mangi Mwitori Petro Marealle, (2) Mzee Benedict Marealle. (3) Mzee Lokila Marealle (4) Mangi Agustin Marealle (5) Ndugu Gaspar Marealle (6) The appellant (7) Ndugu Frank Marealle (8) Ndugu Alfonce Marealle and (9) Ndugu Archibald Marealle.
C In this court Chief Thomas Marealle deposed that he refused to certify the minutes partly because some important matters were omitted and partly because it was wrong for those who attended the meeting to sign them before he certified them. According to him the minutes had D omitted the fact that Edward Marealle was supposed to hand over the land to Akilei after assessment of the value of any improvements and refund of 600 Shs. incurred in prosecuting the suit, already referred to, in the High Court. Otherwise Chief Thomas Marealle was categorical that Edward Marealle had agreed to surrender the land to fulfil the wish of his mother that the clan E members should be reconciled by settling the land question which had driven a divisive wedge into the clan. On the other hand Dr. Archbald Marealle (D.W.3), who, according to Chief Thomas Marealle, was responsible for keeping the minutes, was of the view that the minutes were correctly F recorded. In this he was supported by Mangi Agustine Marealle (D.W.2) and Benedict Marealle (P.W.3) both of whom testified that what was agreed upon is what is recorded in the minutes. There is no reason why they would have signed them if they were inaccurate for there is no evidence that they are illiterate. The signatures of the other attendants, which were not challenged, would appear G to lend strength to the view that the minutes represented substantially what was agreed at the clan meeting. For ease of reference I reproduce below the contents of Defence Ext. (1).
H Mkutano ulifunguliwa mnamo saa 6.30 kwa sala iliyoongozwa na Mwenyekiti. Mwenyekiti akauelezea mkutano madhumuni ya kukutana siku hiyo ni kusahihisha tofauti iliyokuwepo kati ya baadhi ya wanandugu wa marehemu Mangi David Marealle pamoja na kumpatia Mama Foronika (sic) na watoto wake maskani yake I kwani hapo alipo sio pake.
Kabla ya marehemu Mama Monica kufariki dunia, alitoa wosia wake kuwa hakupenda ugomvi uliokuwepo A kati ya baadhi ya wanandugu uendelee na ilikuwa nia yake kabla ya kuaga dunia kuleta amani katika ukoo wa Mangi Mlanga. Mkutano ulielezwa kwamba mama marehemu alikwisha agiza mbege zitayarishwe na ndizi kwa madhumuni ya kutisha pombe na kumwalika Mangi Mkuu aje kusimamia kupatanisha kwa wanandugu B hao. Kauli hii aliitoa akiwa kwenye matibabu Moshi. Bahati mbaya hakupata nafuu ya kutimiza lengo hilo.
Baada ya majadiliano marefu, juu ya kumpatia mama Foronika na jamii yake mahali pa kuishi ukoo ulikubaliana kwa pamoja kuzingatia kauli ya mama Monica na kwa kufanya hivyo ukoo ulimtaka Edward C kuzingatia kauli ya mama marehemu na ya ukoo na kutoa lile shamba ambalo ndilo chanzo cha ugomvi kati yake na baadhi ya wadogo zake. Wanandugu wote waliohusika na ugomvi huo, walipewa nafasi ya kuzungumzia kwa kirefu juu ya tofauti zao. Baada ya hapo Ndugu Edward alikubali bila ya masharti yeyote D na kwa hiari yake kutimiza kauli ya mama ya kuleta amani nyumbani na kutoa hilo shamba kwa makazi ya mama Foronika na watoto wake. Ndugu Edward alizungumzia juu ya fidia ya Shs.600/= ambazo alitumia kuhusiana na ugomvi wa shamba hili siku za nyuma. Ilikubalika kwamba arudishiwe fedha hizo kupitia E kwenye mikono ya Mwenyekiti. Mara tu baada ya tamko la Ndugu Edward, ukoo wote ulifurahi na kuamka na kushikana mikono, huku Mwenyekiti akiunganisha wanandugu waliokuwa na ugomvi. Baada ya yote haya na F amani kuja kati yetu wanandugu, Mwenyekiti alitoa hotuba fupi ya kuwashukuru wote kwa jinsi mkutano ulivyopata mafanikio ya amani ambayo kwa muda mrefu ilikuwa inatafutwa. Kabla ya kufunga mkutano Ndugu Edward alisema tangu leo shamba ni mali ya mama Foronika na watoto wake lakini alitaka ukoo umwonye aache kumnyanyasa na amtambue kwamba yeye ni mwanae na makamu wa Mwenyekiti wa mji huu. Ukoo G uliagiza kwamba:
1. Kamati ndogo iteuliwe na Mwenyekiti aende kumkabidhi ardhi huyo mama Foronika na papo hapo H aonywe pamoja na wanawe waache tabia ya kudharau ukoo.
2. Ukoo uliagiza Ndugu Wilfred Marealle atengeneze ramani ya nyumba kama anayokaa sasa na wanandugu wote wachangie ujenzi wa nyumba hiyo na Wilfred asimamie ujenzi huo na awaarifu ndugu zake. I
3. Wanandugu tuwe tunakutana mara kwa mara kuzungumzia
A nafasi zetu na sio kukutana tu kwenye kilio, haswa sasa kwamba mwenyekiti wa jamii ya Baba Marehemu Mangi Mlanga yuko nyumbani.
Kabla ya kufunga mkutano, ukoo ulionelea kwamba ni vizuri kwenda nyumbani kwa Ndugu Edward na B kumweleza mke wake matokeo ya mkutano huu. Baada ya kauli hiyo Mwenyekiti akafunga mkutano yapata saa tisa mchana kwa sala.
Ndipo sote kwa pamoja tukaondoka na kwenda kwa Ndugu Edward ambapo tulikaribishwa vizuri sana na C mkewe. Mke wa Ndugu Edward alielezwa kikamilifu uamuzi na makubaliano ya mkutano wetu, nae akafurahia amani hiyo iliofikiwa na ukoo na baadae akatushika mikono wote. Tukaendelea na viburudisho nyumbani kwao.
It will be seen from the minutes as quoted above, that they conform to what Benedict Marealle, Archibald Marealle (D.W.3) and Mangi Agustine Marealle (D.W.2) stated was discussed and agreed D upon at the clan meeting. Chief Thomas Marealle agrees that in substance the complainant agreed to release the land only that he contended that there were conditions precedent before the complainant could release the land. The complainant denied having agreed to release the land at all E and thereby adopted a position that was not supported by the rest of the witnesses in the case including that of a prosecution witness. Taking into account the fact that the minutes bore 9 signatures of those who attended the meeting and no less than three witnesses said that indeed that F is substantially what was agreed upon I find that the learned trial Principal District Magistrate erred in not giving weight to what was decided by the clan by referring either to the minutes or to the oral evidence of those who attended.
G Chief Thomas Marealle opined that the title to the land did not pass to Akilei and his mother because no assessment of compensation had been made, and no handing over had been effected. In this view he is probably correct. But that is not the only way of looking at the matter. According to Mangi Agustine Marealle as soon as the complainant said he was giving the land to Mama H Veronika and her children title to the land passed to the clan which would then arrange to pass on the title at a handing over ceremony. Since the preponderance of evidence in this case established that indeed the complainant said he was handing over the land to Mama Veronica from the day of the meeting then this in my view divested him of title which passed on to the clan which was then I supposed to arrange a handing over ceremony and pass on the title to the donees.
If that view is correct then by the time the appellant started clearing the land and constructing the A house the complainant no longer had title to the land, he having passed it on to the clan. If this view is wrong then by the time the appellant cleared the land and started building the house he had the express permission of the clan and the complainant in which case there was no intention to annoy. B Consequently the offence of criminal trespass was not proved at all in the absence of the requisite mens rea.
As regards the offence of malicious damage to property the prosecution had to prove that in uprooting some banana plants the appellant acted maliciously. But since it is clear from the C evidence as a whole that the appellant was an agent of the clan and the humanitarian act of building a house for Akilei and his mother inevitably involved the removal of plants, the view taken by the learned trial magistrate that he acted maliciously can hardly be supported without incurring the risk of appearing irrational. I am unable to support the conviction for malicious damage to property. D
As regards the 3rd count it was alleged that the appellant had failed to comply with an injunction issued by the Marangu Primary Court in Criminal Case No. 6/81. Three questions were crucial in this count. First whether an injunction was served on the appellant. Secondly whether he deliberately E flouted it and thirdly whether the injunction was lawful. As regards the first question Eliueter Masawe (P.W.7) the then Primary Court Magistrate at Marangu, told the District Court that on the 15/1/81 the complainant lodged a complaint to him that the appellant had trespassed on his land F despite the fact that he the complainant, had been ajudged the lawful owner of that land. On the strength of the copies of judgments and other documents which the complainant showed the magistrate, criminal case no. 6/81 was opened and an injunction issued. A copy of the order was handed over to a messenger one Oviviti Atwani (P.W.2) for posting on the building under G construction. There is evidence that the order was seen by the workers at the site but no admissible evidence to show that the appellant who lived at Moshi saw the injunction. P.W.7 said that the complaint was lodged on the 15/1/81 and the injunction was issued on the same day whereas Oviviti H said that he was handed over the injunction on the 5/1/81. Oviviti must have got confused on the dates because another messenger Eliaringa Ndeliso Keni said that he was given the original copy of the injunction on the 15/1.81 for dispatching to the appellant at Moshi.
Although the accused denied having received the order, there as evidence that he signed a dispatch I book which was tendered in
A court. The entry on the dispatch book showed that what was delivered was an injunction order. The substance of the injunction order was that the appellant should desist from interfering with the disputed land and stop constructing the house he was putting up. As regards the copy of B injunction there was nothing beyond mere hearsay that he had acted contemptuously by removing it and ordering his workers to carry on with the work. No person was called to testify that he saw the appellant do that. The hear-say information apparently prompted the Primary Court Magistrate to issue a Warrant of Arrest which was not executed in time before the case was transferred to the C District Court. But since the original order was served on the appellant as shown on the dispatch book and there is evidence that by 23/1/81 the workers were still at the site the appellant can escape liability only if the injunction was not a lawful order. The question then is whether the injunction was lawful.
D The first defect with the injunction is that it was obtained through a fraud. P.W.7 stated categorically that had the complainant told him that the appellant had been allowed by the clan to build the house he would not have issued it. The second defect is that the injunction was issued in E a criminal case while it is an order issuable in a civil suit. The power of the Primary Courts to issue injunctions is spelled out under S.17 (1) (2) of the Primary Courts Civil Procedure Rules (G.N. 310/64) which provides:
F An application may be made by any party at any time after a proceeding has been instituted for an injunction restraining any person from alienating, destroying, wasting, damaging or otherwise injuriously dealing with any property the subject of the proceeding.
G (2) Upon receiving an application under this rule the court may examine the applicant and if it is satisfied that grounds exist for ordering an injunction the court may make such order."
H Whereas in civil proceedings an interim injunction may be issued ex-parte where the urgency of the matter precludes the possibility of serving the other party, it is unthinkable to have an injunction issued in a criminal case before the accused is even aware of the charge against him. The Primary Court Magistrate did not in his evidence state under what provision of the Primary Court Criminal I Procedure rules he acted. I have been unable to find an enabling provision which allows a criminal court to issue an interim injunction
before the accused is formally brought before it and charged. I am equally unable to find a A precedent in decided cases to support the procedure adopted. It was therefore incumbent on the learned trial magistrate to quash the injunction of the Primary Court for being illegal and find that there was no order legally binding on the appellant. B
For the above reasons I allow the appeal in its entirety with the result that the convictions are quashed and sentences set aside. The fines should be refunded to the appellant.
The complainant should go to a civil court in case he finds it inexpedient to have the matter settled within the family. C
Appeal allowed.
D