Ndelaonjama v. R. (PC) Crim. App. 188-A-70; Kwikima, Ag. J.

Ndelaonjama v. R. (PC) Crim. App. 188-A-70; Kwikima, Ag. J.

The appellant was charged before a Primary Court for criminal trespass c/s. 299 (1) (a) of the Penal Code. He built a dwelling house for himself on what he took in good faith to be his land. Not until the house was completed did the complainant lodge “complaint. Some Tanu officials ordered appellant to pull down the house but he refused whereupon criminal proceedings were instituted against him.

            Held: (1) “The respondent cannot be said to have lodged his complaint in good faith. He probably sought to dispossess the appellant of his new house. Such conduct was the subject of adverse comment by my learned brother, Hamlyn J. in the case of Laurent Cohola v. Rembo Odoyo, 1968 H.C.D. 19 when he said: - “Whether or not the appellant was in fact granted the plot in 1957 as he claims, he has made no effort to develop it and it was not until the respondent completed his building that he laid claim to it. The fact that he did nothing when building commenced would point to fact that the claim is not a bona fide one but merely made in order to reap the harvest of another man’s labour.”  The penultimate sentence in that observation is particularly relevant to this case. (2) “There is nothing on the record to sow that the elements of criminal trespass, the entry should have been forcible with intent to annoy. Te appellant entered the land genuinely believing it to be his own, and in broad daylight he started to erect his house until it was complete. Only then did the respondent stir. If the complainant was annoyed, it was not for the forcible entry, for there had been none. The complainant must have woken up to the prospect of acquiring for himself or dispossessing the appellant the house which are appellant had just after putting in effort ad capital.” (3) Appeal allowed conviction quashed.