Njau v. R. (PC) Crim. App. 11-A-69; 23/8/6; Platt J.

Njau v. R. (PC) Crim. App. 11-A-69; 23/8/6; Platt J.

Appellant was convicted in the Old Moshi Primary Court on two counts of forcible entry c/s. 85 of the Penal Code and malicious damage to property c/s. 326 (1) of the Penal Code. evidence showed that the appellant had been allocated a piece of land though the land had not be on formally conveyed to him because he had not brewed pombe for the headman, but had paid Shs. 20/- in lieu thereof. Without such a formal conveyance, the Local Authority would have been entitled to reallocate the land but there was no evidence of such reallocation to the complainant, Namikasia.

            Held: (1) “The facts f this case point out the questions involved in a charge of forcible entry and it may be as well to consider the purposes of section 85 in general. The section reads as follows [His Lordship set out s. 85 and continued]….. “The section presupposes the situation where a person not in possession of land (We are not concerned here with tenements or buildings) takes possession of the land in a violent manner. Some examples of violence are given in the section by Crime 11^th Ed. p. 315) what is required is evidence amounting to something more than a bare trespass. It may be that the accused s either the owner or not, of the land in question. If he is not the owner and has no right to take possession of the land, the case is usually simple to prove. But more often the accused has a reasonable claim to the lad and he considers that the person in possession a trespasser. There are other occasions when the accused is actually the owner of the land and the person in possession of it is indeed a trespasser, nevertheless, if the person with the  right of entry, enters the land in a violent manner, he will be liable under the section” (2) “The purpose of the criminal law is that a person should make entry “not with strong hand nor with multitude of people but only in a peaceable and easy manner”, because otherwise there may be unnecessary tumults or breaches of the peace. Thus to some extent the criminal law acts as a check upon the right of self help given by the civil law to a person to re-posses his land. It was no doubt on this basis that many of the cases were brought; and certainly there has been a good deal of self-help exhibited in relation to land.” (3) “Unless there was evidence of re-allocation by the Local Authority, the appellant was entitled to consider that the land was his and on general equitable principles, he must surely have been entitled to call for the formal conveyance at any time. I agree with learned Counsel therefore that appellant had the right to the possession of the land and that Namikasia had no right to it in the absence of her gaining superior title to the appellant or coming to an agreement with him permitting her to cultivate on it.” (4) The appellant did not use any force. He took peaceably the portion of land to which he thought he was entitled. He was already in possession when he uprooted the yams of the trespassers. There was therefore no forcible entry. (5) Since appellant had occupied the land over which he had a right without making a forcible entry, it follows that he was entitled to remove the property of the trespassers. (6) Appeal allowed and convictions quashed.