ISMAIL BUSHAIJA v REPUBLIC 1991 TLR 100 (HC)

 

ISMAIL BUSHAIJA v REPUBLIC 1991 TLR 100 (HC)

Court High Court of Tanzania - Mwanza

Judge Chipeta J

14 August, 1991

Flynote

B Criminal law - Criminal trespass - Ownership of trespassed property disputed -

Whether proper in the circumstances to convict of criminal trespass - What Court to

do.

Criminal law - Criminal trespass - Ownership of trespassed property disputed -

Defence of bona fide claim of right.

-Headnote

C The appellant and the complaint had a dispute over a plot of land, each claiming

ownership. When the appellant entered the suit plot and cut down some trees he was

charged with and convicted of criminal trespass. On appeal the High Court

considered whether the defence of bona fide claim of right was not open to the

appellant, whether in D the circumstances it was proper to convict of criminal

trespass and what the court should do in such cases.

Held: (i) Since this case boils down to a dispute of ownership of the shamba which is

the subject matter of these E criminal proceedings it seems that this is a clear

defence of bona fide claim of right;

(ii) it is wrong to convict a person for criminal trespass when ownership of the

property alleged to have been trespassed upon is clearly in dispute between the

complainant and the accused;

F (iii) when in a case of criminal trespass a dispute arises as to the ownership of

the land the court should not proceed with the criminal charge and should advise the

complainant to bring a civil action to determine the question of ownership - Saidi

Juma v R [1968] H.C.D 158.

Case Information

G Appeal allowed.

Case referred to:

1. Saidi Juma v R. [1968] H.D.C. 158

Nasimire, for the appellant

Songoro, for the respondent

[zJDz]Judgment

Chipeta, J.: In Bukoba District Court, the appellant, Ismail Bushaija, was charged with

and convicted of the I offences of criminal trespass and malicious damage to

property contrary to sections 299

1991 TLR p101

CHIPETA J

(a) and 326 (1) of the Penal Code and was sentenced to pay a fine of Shs. 2,500/= in

respect of each count. The A appellant was dissatisfied and so has appealed to this

court.

To a large extent the facts are not in dispute. They are as follows: The complainant,

one Ernest Ndyamukama (P.W.1) told the court that he owns a shamba in which he

has planted various trees in Ibwera village, Bukoba. On B 10th September, 1988, at

about 1.00 p.m he saw the appellant and three of his servants cutting trees in P.W.1's

shamba, and in all they cut down 481 trees. When the appellant was asked by P.W.1

as to why the appellant was C doing such a thing, the appellant retorted by telling

P.W.1 that he should go and ask the people who had given the trees to him.

Later the complainant reported the matter, surprisingly, to the Ward Office and the

District Commissioner. Eventually the matter found its way to the Police and then to

the Court.

In this defence, the appellant said that the shamba in dispute is his own shamba and

that it had earlier been the D subject-matter of a civil suit in which he was the

successful party. He called witnesses who, to some extent, backed up the appellant's

claim.

With respect to Mr Nasimiro, learned counsel for the appellant, I tend to agree that

this case boils down to a dispute E of ownership of the shamba which is the subjectmatter

of these criminal proceedings. It seems to me, therefore, that this is a defence

of bona fide claim of right.

The learned trial magistrate blamed the appellant for not producing in court the

judgment in the alleged civil case. F However, in this memorandum of appeal drawn

up by his learned advocate, the appellant alleges that the civil case was Ibwera

Primary Court Civil Case No. 2 of 1987.

In my view, it is wrong to convict a person for criminal trespass when ownership of

the property alleged to have G been trespassed upon is clearly in dispute between

the complainant and the accused. As was pointed out by this Court in the case of

Saidi Juma v R [1968] H.C.D. n. 158, cited by Mr Nasimire, when, in a case of

criminal trespass, a dispute arises as to the ownership of the land, the court should not

proceed with the criminal charge and H should advise the complainant to bring a

civil action to determine the question of ownership. That is exactly what the trial

court should have done in the present matter.

For these reasons, the appellant's conviction cannot be allowed to stand. This appeal

accordingly succeeds. The I convictions are hereby quashed and the sentence set

aside. The complainant is

1991 TLR p102

A advised to seek redress in a civil court. The fine which, I note, was paid, shall be

refunded to the appellant forthwith.

Appeal allowed.

1991 TLR p102

B