Jermiah Njau v. R., (PC)MCrim. App. 11-A-69, 23/8/69, Platt J.

Jermiah Njau v. R., (PC)MCrim. App. 11-A-69, 23/8/69, Platt J.

The appellant was convicted of forcible entry c/s 85 Penal Code, and of malicious damage to property c/s 326(1), Penal Code. In 1957, the appellant had been allocated land in Kilimanjaro district by the headman. But it had never been formally conveyed to him because he had not brewed pombe for the headman. The

Appellant had paid the headman Shs. 20/-, but as that person had been sent to prison, the money was refunded. The appellant stayed on the land, until he was transferred to Arusha and subsequently other places. In his absence, other people cultivated the land for him. In 1962 his wife returned to the land and in 1965, he found that people were interfering with it. A certain woman called Namikasia along with other women had occupied a portion of the land for the purpose of growing yams. It appears the appellant wrote to Namikasia and the other informing them that they must stop cultivating, but they ignored this letter. The appellant then went to see one Nderangusho, who appears to have occupied some relevant position of authority, and who ordered that the cultivating should stop until ownership of the land was ascertained. Nevertheless the woman continued cultivating. The appellant then entered upon the land occupied by the women and uprooted their yams, which actins gave rise to the present conviction.

            Held: (1) “The facts of 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 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 but they are not necessarily exhaustive. (See Russell on Crime, 11th Ed. P. 315). What is required is evidence amounting to something more than a bare trespass. It may be that the accused is w\wither the order 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 land and he considers that the person in possession is 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. It is for this reason that the second paragraph of the section specifically provides that it is immaterial whether the person entering has the right to enter, and the only exception is that he is not guilty of the offence if he takes possession from his servant or bailiff. Now as learned Counsel pointed out, the general law of Tort provides that a person who is in possession of land but who finds trespassers upon it, is always entitled to enter or re-enter his land and may use reasonable force to evict the trespasser and may even pull down any building erected by the trespasser (so long as it is not inhabited by him). If he uses reasonable force, he will not be liable under the civil law. This is clear from Hemmings v. Stoke Poges Golf Club (1920) 1 K.B. 720 (See also Russell ibid; Salmond on Torts 13^th Ed. 804; and Windfield on Tort 7^th Ed. 385). Nevertheless, he may still be liable under unreasonable force is used, the person who enters will be liable both criminally and civilly, Whereas if reasonable force is used, he may be liable criminally but will not be liable at civil law. The purpose of the criminal law is that a person should make entry neither 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-possess his land. (2) “First of all, there is the question of what right

The appellant had to the land. It was found by the trial court that he had no legal right to it because when the land was allocated to the appellant, it had never been formally handed over ….. I accept the opinion of the assessors that at the time the transaction took place in 1957, it was necessary for that formality to be complied with and that with such compliance; if the Local Authority had wished to re-allocate the land, it would have been within its rights to do so. (There have been one or recent cases on this specific point. I am not clear however why it was not considered that he formality had not been complied which in view of the fact that the appellant had paid money in lieu of brewing pombe. If it was not a sufficient substitute, the money should not have been accepted. Possibly as the money was  returned, it was thought later on to be insufficient by the appellant appears to have acted in a way which was a sufficient compliance and indeed it is not disputed that he had been permitted to develop the land)…. It seems that the witness Namikasia, wife of Anael, had occupied the portion of the land for the purpose of growing yams. She did not claim that she had been granted the land or state in what way she could claim it hers. It appears to have been assumed that she had obtained the land from 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 he 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.” (3) “The question then is whether it can be said that the appellant made a forcible entry. He did not use any force to the women nor had he gone with an unusual number of people. It seems that he had gained help in preserving his rights, and that as the women were told not to cultivate there, that he had taken possession peaceably of the portion on which they cultivated and on which he considered they had trespassed. As it appears possible that the incident took place after that time, and that the women had continued to cultivate, the appellant had then asserted his rights by up-rooting the yams. It seems to follow therefore that being already in possession of the land, he could not be said to have “entered” forcibly. Had it been ca case where the appellant having retuned after an absence and finding trespassers upon his land, had then simply taken possession and removed the trespassers forcibly or destroyed their property, that the conviction might have been valid, because it was immaterial that he had  the right to reenter. But that was not the case here, for it must be assumed that he had given notice and had been enabled to take possession before he had destroyed the yams. Accordingly I agree with Defense Counsel that the conviction on the first count cannot be supported.” (4) “It follows further that if the appellant had the right to occupy the land, and without making a forcible entry, he had occupied the land, he was entitled to remove the property of the women. It cannot then be said that he had unlawfully damaged their property. It would have been better, nor doubt, had he come to an arrangement with eh women, so that they could remove their yams for planting elsewhere, or allowed them some time to harvest the yams. But it must be remembered that hey were not periodic crops, but perennial crops. It was not a question or crops like maize. Consequently the conviction on the second could was equally unsupportable.” (5) Appeal allowed and convictions quashed.