Lyanga v. R. (PC) Crim. App. 185-A-71; 20/7/71; Brambe J.

 Lyanga v. R. (PC) Crim. App. 185-A-71; 20/7/71; Brambe J.

The appellant was convicted in a primary court of Malicious damages to property contrary to section 326 (ii) of the Penal Code. The facts were that there was a tenancy agreement between the appellant and the complainant, after some disagreement with them the appellant took possession of the building which was the subject of the tenancy agreement, and put the complainant’s things outside. These were reported to have been later destroyed but it was not said that the appellant destroyed them. On appeal the district magistrate properly held that the evidence did not support the charge of malicious damage but substituted a conviction for Criminal Trespass contrary to section 299 (a) of the Penal Code. the section reads: - any person who:- (a) unlawfully enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property is guilty of the misdemeanour termed “criminal trespass”.

Held: (1) “An essential ingredient of the offence is the “intention to commit an offence or to intimidate insult or annoy.” If a person exercises what he considers to be his right, although mistakenly so, he cannot be said to have the intention necessary to bring his act within the section. The remedy of the complainant lay in making a civil claim for damages and not in a criminal charge.” (2) Appeal allowed; conviction quashed.