LAWYERS and a prosecution witness on Thursday locked horns at the Kisutu Resident Magistrate's Court in Dar es Salaam on whether the case against Secretary General of the Council of Islamic Organization, Sheikh Ponda Issa Ponda and his colleagues, was criminal or civil.
While advocates Juma Nassoro and Tahaya Njama, for the accused, claimed that the case had all elements of civil by its nature, the witness, Senior Superintendent of Police (SSP) Ame Anange Anoqie, maintained to the contrary, saying that the matter falls squarely in criminal ambit.
The heated debate among the lawyers and the witness was fuelled by the latter's testimony in his evidence in chief that the accused forcibly took possession of a plot known as Markaz at Chang'ombe area in Temeke District, while they had no single document to support their action.
"I was forced to believe that the accused committed criminal offences because responsible land authorities evidenced that the legal owner of the plot was Agritanza Limited. But when the accused were asked to produce any document to prove ownership they failed to avail any," SSP Ame said.
However, in cross-examination during the trial presided over by Resident Magistrate Victoria Nongwa, the two lawyers, on different occasions, alleged that the police were informed of the intended action by the accused of going to the area to rescue Muslim properties, thus the matter should have been referred to any Land Tribunal.
"Don't you see that you rushed to file a criminal case instead of taking the matter to proper court responsible of determining land disputes? For sure in this case there is a dispute on legal ownership of the plot," Advocate Njama asked the witness.
But in his response, SSP Ame, who works in the office of the Criminal Investigation Department in Temeke Police Region, told the court that there was nowhere the police went wrong in opening criminal charges against the accused, considering circumstances surrounding the matter.
In the case, Sheikh Ponda and his 49 co-accused are charged with conspiracy, trespass and criminal possession of property owned by Agritanza Limited on a plot situated along Markaz, Chang'ombe area, in Temeke District. Other charges, according to the prosecution, include stealing building materials from Agritanza limited, including 1,500 bricks and 36 tonnes of aggregate and iron bars, all worth 59.6m/.
The offences are alleged to have been committed on October 12, last year. In his brief testimony led by Senior State Attorney Tumaini Kweka, the witness narrated that on October 12, last year, while in his office he was informed by his subordinates that they received a complaint from one person that some people have invaded his Chang'ombe plot.
According to him, he instructed his men to inquire about the legal owner of the plot in dispute. He said his men informed him that the Office of Temeke Municipal Council, Land Division, confirmed that the legal owner of the plot was Agritanza Limited.
He told the court that it was at that point when the police concluded that an offence of criminal trespass has been committed and therefore they decided to go at the plot in question at night to arrest the alleged invaders. Hearing of the case continues today.