Saidi v. R. Crim. App. 44-A-69; 5/3/70; Bramble J.

 

Saidi v. R. Crim. App. 44-A-69; 5/3/70; Bramble J.

This was a second appeal against an order of conviction and sentence in a case of willful and unlawful damage to property. It was alleged that he appellant ordered someone to cut down a tree which the complainant claimed as hers, without informing her. The appellant did not deny that the shamba belonged to the complainant but said that he made use of the trees on that part of the shamba every year without anyone complaining. He claimed, however that he was responsible for the distribution of his father’s estate and that he shared the part of the shamba having trees with the complainant.

            Held: (1) “It was clear that the appellant cut the trees in the exercise of what he genuinely considered being his right. The exercise of a right reasonably founded with respect to property cannot be the basis of a criminal charge for malicious damage unless it can be shown that the appellant did more than was reasonably necessary to enforce the right he claimed. There was no evidence that his was so …. (2) “The trial magistrate in the primary court also found that “there was nothing to show that the tree belonged to the complainant and that there was no doubt that the accused has been oppressed to be charged with this offence”. I cannot see how in such circumstances he found the appellant guilty.  Neither of the lower courts properly directed itself on the facts or the law in this case and for the reasons given I must allow the appeal” “I quash the conviction, set aside the sentence and order the fine be refunded to the appellant if it has already been paid.”