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-
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 non-existence 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.
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-
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