Court name
High Court of Tanzania

Sylivery Nkangaa vs Raphael Albertho () [1992] TZHC 15 (26 May 1992);

Law report citations
1992 TLR 110 (TZHC)
Media neutral citation
[1992] TZHC 15

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

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. DTherefore 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.

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