SAIDI ULEDI v KALESI NGONELA 1997 TLR 195 (HC)

 

SAIDI ULEDI v KALESI NGONELA 1997 TLR 195 (HC)

Court High Court of Tanzania - Mbeya

Judge Moshi J

F

CRIMINAL APPEAL 8 OF 1996

6 August 1997 G

Flynote

Criminal law - Criminal trespass - Elements of offence - Section 299(a) of the Penal

Code - Knowledge of ownership

-Headnote

The appellant appealed against his conviction in a primary court for criminal trespass

in H contravention of s 299(a) of the Penal Code and his sentence of Shs 1,000/= or

three months' imprisonment. He contended on appeal that it had not been proved

that he knew that the land belonged to the respondent. It appeared from the evidence

that the land in question had been inherited by the respondent from his father who

had died in 1957. In 1994 the respondent found the chairman of a village I

1997 TLR p196

A allotting the land to some of his villagers. The people occupying the land (of

which the appellant was one) claimed it as their own and the case was heard in the

primary court which upheld the respondent's claim.

Held:

(i) The appellant's contention that he was unaware of the respondent's

title could not be B upheld he had in a manner of speaking been a party to the

litigation in 1994 concerning the title to the land. It was inconceiveable that this

event would have missed his attention;

(ii) The elements of the offence created by s 299(a) had been duly proven.

Case Information

Appeal dismissed.

C Case referred to:

1. Saidi Juma v Republic [1968] HCD 158

Mwangole for the appellant.

D Mrs Makuru for the respondent.

[zJDz]Judgment

Moshi J:

This is a second appeal. The primary court of Mbalizi sentenced the appellant, Saidi N

Uledi, and six other persons who did not appeal, to a fine of Shs 1 000/= or three

months' imprisonment in default, E consequent upon a conviction for criminal

trespass, contrary to s 299(a) of the Penal Code. The matter centered on a thirty acre

piece of land whose ownership was being claimed by the respondent, Kalesi Ngonela,

on the one hand, and the appellant, on the other.

F The conviction and sentence aggrieved the appellant who preferred an appeal to

the district court of Mbeya through the services of his learned advocate, Mr

Mwangole. The appeal was dismissed, hence this second appeal which was preferred

and argued before me by the same Mr Mwangole, G and resisted on behalf of the

respondent by Mrs Makuru, learned Senior State Attorney.

The case for the respondent was this. He inherited the land from his father who died

in 1957. He cultivated bulrush millet and reserved part of it for cattle grazing. His

four witnesses (SM2-SM5) spoke in support of his claim. Solomon Mwamapasi SM2,

in particular, said he witnessed the H inheritance transaction. On 12 February 1994

the respondent found the chairman of Igale village, Amanyisye Mwakalonge, allotting

the land to some of his villagers. Amanyisye claimed that when he took over the

village leadership in 1993 he was told that the land belonged to Igale village. The

appellant and the six accused were villagers of Igale village. In consequence, the

respondent sued I the chairman, Amanyisye, on behalf of his villagers,

1997 TLR p197

MOSHI J

for the land. It was Mbalizi primary court Civil Case No 19 of 1994. In that case three

of the A respondent's witnesses in this case (SM2-SM4) testified. In a judgment (exh

MA2) delivered on 9 May 1994 the primary court found in favour of the respondent

and declared him to be the lawful owner of the land in dispute. No appeal was

preferred against that decision which to date has not otherwise been reversed or

altered. Then in February 1995 the respondent found the appellant and B the six

accuseds cultivating the shamba. He registered a complaint against them with the

appropriate village authorities who by a letter (exh MA1) dated 10 February 1995

directed the appellant and his six confederates to stop cultivating the respondent's

shamba. But the appellant, who was in the forefront, refused to heed the directive,

and cultivation continued. Hence the criminal C proceedings before the primary

court of Mbalizi.

The case of the appellant, on the other hand, was that he inherited the land from his

deceased father. Neither the appellant nor his witnesses said when. He then dished it

out to the six accuseds who, with the appellant, went into occupation and started to

cultivate it. Again the appellant did not D say when this took place. The third

accused (SU8) said it was in 1969 whilst the seventh accused (SU12) said it was in

1991. The fifth accused (SU10) said he had been cultivating the land for a long time.

And the elder brother of the village chairman aged fifty nine years, Lusubilo

Mwakalonge SU4, said he knew of shambas occupied by the appellant since 1962 but

the land in dispute was not E among them. The appellant claimed that he was

neither a party to Civil Case No 19 of 1994 nor aware of it. F

Both courts below believed the respondent and his witnesses and found, on the basis

of, among other grounds, Civil Case No 19 of 1994, that the land in dispute belonged

to the respondent, and that the appellant was aware of that case, and that he, in

consequence, had no genuine claim of G right over that shamba, and finally that the

appellant's guilt as charged was demonstrated beyond reasonable doubt.

Mr Mwangole preferred three grounds of appeal, as he had done in the appeal to the

district court, which were to the effect, firstly, that the first appellate court grossly

erred in law and in fact in H holding that the appellant knew about the dispute in

Civil Case No 19 of 1994 regarding the disputed shamba and, secondly, that the

learned Resident Magistrate, who heard the first appeal, erred in law in holding that

the appellant had no claim of right over the land in dispute. The learned advocate

submitted that on account of that I

1997 TLR p198

MOSHI J

A the appellant was neither a party to, nor aware of, Civil Case No 19 of 1994 he

had a valid claim of right and that the matter ought to have proceeded as a civil case.

The case of Saidi Juma v R (1) was cited and relied upon. Mrs Makuru, for her part,

submitted that the appellant had no claim of right as he was, like some of his coaccuseds,

aware of Civil Case No 19 of 1994 and that the B shamba belonged to the

respondent. Saidi's case (supra), she argued, was distinguishable from this case in that

in this case there was a valid judgment of a court of law of a civil nature in favour of

the respondent while in that case there was none. And in this case, she concluded,

village leaders C were involved while in that case they were not.

I have followed and considered these arguments. In the circumstances of this case I

am bound to uphold Mrs Makuru's argument. With respect to Mr Mwangole, the

appellant was in a way a party in D Civil Case No 19 of 1994. The allegation in that

case was that the land in dispute which was the same subject-matter in this case, was

the property of Igale village, and the respondent then sued its chairman on behalf of

that village and all its villagers of which the appellant was among them. This would

account for the fact that the village chairman had to summon some villagers to testify.

It was E unnecessary, in my view, that all the villagers, including the appellant, were

to testify. It sufficed that only the village chairman and the villagers to whom he was

giving the land to had to testify. And with even greater respect, even assuming that

the appellant was not a party in those proceedings, he was, as were his co-accuseds,

quite obviously aware of that case and its outcome. The F circumstances were clearly

such that he simply could not have missed it. The dispute in that case, as already

stated, was over the same piece of land, and the village chairman, who was sued by

the respondent, as well as the villagers who testified for the appellant in this case, and

the appellant himself and his six co-accuseds, were all of the same village of Igale. It

was therefore inconceivable G that this great event of that case touching upon that

village, its chairman and its villagers in general, would have missed or escaped the

attention of the appellant, particularly so when, firstly, the appellant and his coaccuseds

were, as they claimed, in occupation of that land and, secondly, H the

village chairman, as established, was allotting that same land to some villagers.

Furthermore, the entire village leadership was aware that the land in dispute

belonged to the respondent, and it was most unlikely that the appellant, in the

circumstances, would not have been aware of that as I well.

1997 TLR p199

MOSHI J

And as though to clinch the matter, one of the witnesses summoned by the appellant

in this case A SU4, but spoke against the appellant, was the elder brother of the sued

village chairman, and this was clearly indicative of that the appellant was duly aware

of the dispute in Civil Case No 19 of 1994 as well as the outcome of the case. Indeed,

in the circumstances, the appellant's claim that he had inherited the land from his

father was, on proper reflection, an attempt to rob the respondent of his B land. His

witnesses were, as demonstrated, at variance on that claim. He and his co-accuseds

could not have purportedly occupied that shamba for such a long time without being

seen by the respondent or by the sued village chairman for that matter. It was when

they invaded the shamba in C February 1995 that the respondent, on seeing them,

promptly and swiftly acted in the manner already described. The manner in which

the appellant responded or reacted to the village leadership's directive (exh MA1) to

stop cultivation was clearly indicative of that he was stubbornly clinging to that

which he knew belonged to the respondent, rather than to that which he genuinely

D believed belonged to him.

The essence of the offence under s 299(a) of the Penal Code is, firstly, that the entry

must be unlawful and, secondly, that the entry must be done with intent to commit

an offence or to E intimidate, insult or annoy the person in occupation. There can be

no doubt in this case that these ingredients were, in the circumstances, and as

demonstrated, established to the required extent. The appellant lacked a bona fide or

an honest claim of right in terms of s 9 of the Penal Code when F he entered the

land he knew belonged to the respondent. As amply demonstrated, he had entered

the land with intention to defraud. Saidi's case (supra) was clearly distinguishable

from this case in the manner pointed out by the learned Senior State Attorney. In that

case there was a bona fide G claim of right which was not the case here. In this case,

but not in that case, the respondent had, and still has, a valid judgment and decree of

a court of law in his favour arising fro prior civil proceedings over the same piece of

land in which the appellant was a party and/or of which he knew about. H

For all the foregoing reasons, I am satisfied, as was the district court, that the

appellant was properly convicted and sentenced. In consequence, this second appeal

fails, and it is hereby dismissed in its entirety. I

1997 TLR p200

A