JOHN CHIZE BAHINGANYI v REPUBLIC 1988 TLR 234 (HC)

 JOHN CHIZE BAHINGANYI v REPUBLIC 1988 TLR 234 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

C 30 November, 1988

Flynote

Criminal law - Malicious damage to property - When defence of bonafide claim of right is available.

-Headnote

The appellant and the complainant were allocated plot numbers 234A and 235A respectively. Both started to develop plot number 235A. That triggered off a serious dispute and each of them referred the matter to the authorities claiming to be declared the true owner of plot no. 235A. The appellant thereafter pulled down the gate to E plot no. 235A which was erected by the complainant.

The appellant was charged with and convicted of malicious damage to property. On appeal the Court considered whether the defence of bonafide claim of right was open to him.

Held: 

(i) The defence of bonafide claim of right, embodied in section 9 of the Penal Code, is only available where the claim of right is fairly, honestly and reasonably held having regard to all facts and circumstances;

(ii) on the facts and circumstances revealed in this case the appellant's alleged claim of right was no more than a colourable pretext for a wilful and unlawful act.

Case Information

Appeal dismissed.

Tendwa, for the Republic.

[zJDz]Judgment

Chipeta, J.: The appellant, John Chize alias Bahinganyi, was jointly charged with another, who was acquitted, with I the offence of malicious damage to property c/s 326(1) of the Penal Code. The appellant was convicted as charged and sentenced to pay a fine of Shs. 17,000/= or seven months imprisonment. He now appeals.

The prosecution's evidence is to the following effect, one Taiba alawi Shariff (P.W.6) applied for a plot to construct a building in Kigoma-Ujiji Township. At about the same time, the appellant also applied for one. It would appear that each of them preferred to be allocated a plot in a particular area, that is, the parcel of land lying between Kigoma Post Office and Kigoma Community Centre where there are two plots.

The Urban Planning Committee of the Town Council approved the two applications.

The appellant was then allocated Plot No. 234A following the normal routine of allocating plots seriatim. That was on 20th October, 1987, C (See Exhibit P.3). Next day the appellant paid land rent and other charges for Plot No. 234A.

On 3rd November, 1987, P.W. 6 was allocated the next plot, that is Plot No. 235A, and on 6th November, 1987, she paid land rent and other charges for that Plot. The only difference between the two plots is that Plot No. 234A D faced Kigoma Primary School while Plot No. 235A faces Railways Quarters.

Thereafter it would appear that both P.W.6 and the appellant started developing the same plot, namely, Plot No. 235A, for no apparent reason.  On his part, the appellant started clearing Plot No. 235A while P.W. 6 fenced off that same plot and fixed a gate at the entrance to the plot. That triggered off a serious dispute between the parties and each of them referred the matter to the authorities claiming to be declared the true owner of Plot No. 235A.

While this dispute raged on, on 25th April, 1988 the appellant went to the site and found a servant of P.w.6 on Plot No. 235A arranging bricks. After looking around briefly, and without saying a word to that servant the appellant left. Soon thereafter, the appellant returned with a lorry loaded with sand. The appellant and the turnboy then pulled down the gate to Plot No. 295A and the lorry offloaded the sand onto that plot. That done, the appellant ordered the driver of the lorry to smash the remaining part of the gate. The driver obeyed; he drove the vehicle in reverse gear and smashed the remaining part of the gate using the rear end of the lorry.

The matter was then reported to police and the appellant was arrested and later charged accordingly. The appellant did not dispute most of these facts. All he said was that he was allocated a plot and later he heard that that plot had been allocated to P.W.6. So he wrote a letter to the authorities to complain.

The learned trial resident magistrate carefully examined the evidence and considered the legal issues involved. In the end, he was satisfied that the prosecution had proved its case beyond reasonable doubt in that the defence of bona fide claim of right was not available to the appellant in the circumstances.

During the hearing of this appeal, Mr. Tendwa, learned senior state attorney, declined to support the conviction. In his submission, the appellant had a bona fide claim of right which was a defence to the charge.

It is certainly the law that if a man, genuinely believing that he has a right to damage nthe property of another on the C ground that he has a bona fide claim of right, so damages such property, then such person has a defence to a charge of malicious damage to property. It matters not that such belief was unfounded in law. (See Kandege vR., [1968] H.C.D. 398, and Athumani v R. [1967] H.C.D. 147). In order to prove a charge of malicious damage to property, D therefore, it must be proved that the accused wilfully and unlawfully caused the damage. (See Yusufu Hussein v R. [1969] H.C.D. 16)

However, this defence of bona fide claim of right is not available in every conceivable case. This defence, which is embodied in section 9 of the Penal Code, is only available where the claim of right is fairly, honestly and reasonably E held having regard to all the facts and circumstances. |t is, therefore, a question of fact. As Onyiuke, J. stated in the case of D.P.P. v Henry Rwegashamiza, [1973] LRT n.15, at page 63:

A person who asserts a claim of right must be acting honestly, that is to say, that he honestly believes in the right he asserts. If however, the claim is merely a colourable pretext for a fraudulent act then the alleged claim of right cannot avail him. That is a question of fact.

With respect, I entirely agree with that statement of principle. In cases of malicious damage to property, therefore, if the alleged claim of right is merely a colourable pretext for a wilful and unlawful act of damaging property, the defence of bona fide claim of right will not be available to such accused person.

In the instant case, the appellant knew very well that Plot No. 235A was seriously in dispute. He himself took up the matter with as high up as the Minister for Lands, Natural Resources and Tourism. He was also aware that he had been allocated Plot No. 234A while P.W.6 had been allocated Plot No. 235A - the one in dispute, and by his own admission, he was aware that the gate had been erected by P.W.6. Then there was the conduct of the appellant. Having removed part of the gate to gain ingress, he went on A to smash the remaining part of the gate.

On the facts and circumstances revealed in this case, and with unfeigned respect to the learned senior state attorney, I am of the view that the appellant's alleged claim of right was no more than a colourable pretext for a wilful and B unlawfl act. The defence of bona fide claim of right was not, therefore, available to the appellant.

Accordingly, I hold that the appellant's conviction was rightly deserved.

With regard to the sentence, it was by no means excessive, for the offence attracts a maximum sentence of seven C years imprisonment. In my view the appellant was treated with some leniency in that he was given the option of a fine. The learned magistrate was entitled to give that option by virtue of the provisions of section 97(3) of the Penal Code. Since the sentence of fine requires confirmation by this court under the provisions of section 170(2) (c) of the D Criminal Procedure Act, 1985, the same is hereby confirmed.

In fine this appeal fails and is accordingly dismissed in its entirety.

Appeal dismissed.

1988 TLR p237

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