Waziri Kofia v. R., (PC) Crim. App 24-A-69 8/8/69, Platt J.

Waziri Kofia v. R., (PC) Crim. App 24-A-69 8/8/69, Platt J.

The appellant was convicted of forcible entry upon land contrary to section 85 of the Penal Code and sentenced to pay a fine of Shs. 20/- or one months imprisonment in default. On first appeal, the learned District Magistrate found that the facts were applicable to a charge of forcible detainer of land contrary to section 86 of the Penal Code and substituted a conviction for that offence. One appeal.

            Held: “The question on this appeal is whether the substitution of the conviction of the conviction under section 86 of the Code was lawful. An offence under section 86 is not a minor offence to that under section 85, and the two charges are not cognate. They are in fact mutually distinct. The charge faced by the appellant did not raise issues of forcible detainer and consequently the appellant has own tried to put forward matters in his petition of a appeal defence to the new charge. The trial did not afford the appellant a chance to defend himself under section 86 of the Code. This was not one of those cases coming within Para 33 of the Primary Courts Criminal Procedure Code, (Third Schedule to the Magistrates’ Courts Act Cap. 537), where an alternative verdict is permitted. Although section 17 of cap. 537 give the District Court wide powers on appeal, the substitution of one charge raises entirely new issues. If the trial had been based on a charge of forcible detainer, but by error the wrong section had been quoted, that might have been a different matter.” Appeal allowed.