ALLY KAUZENI v REPUBLIC 1985 TLR 79 (HC

ALLY KAUZENI v REPUBLIC 1985 TLR 79 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mapigano J

17 January, 1983

CRIMINAL APPEAL 71 OF 1982

Flynote

Criminal Law - Criminal trespass - Building a house on a plot not belonging to the

builder by mistake - Whether can amount to criminal trespass. H

-Headnote

The appellant was charged with and convicted of criminal trespass because he entered

and started to build a dwelling house on a plot which he was duly, but by mistake,

allocated. The plot was previously allocated to I another person who, however, was

not in physical possession of it.

1985 TLR p80

MAPIGANO J

Held: (i) Where the complainant was, as in the present case, not in actual physical

possession of the property A no offence of criminal trespass under section 299 (a) of

the Penal Code can be committed against him;

(ii) the offence of criminal trespass is committed where the trespass is in

order to the commission of an offence, or when it is to intimidate, to insult or to

annoy. B

Case Information

Appeal allowed

Case referred to: C

1. Kigorogolo v Rueshereka [1969] E.A. 426

Judgment

Mapigano J.: In this case the appellant Ally Kauzeni was charged with criminal

trespass contrary to section 299 (a) of the Penal Code. He was convicted and

sentenced to a fine of Shs. 500/= and to D be jailed if he would not pay. He was

aggrieved by the conviction and he lodged an appeal against it. The appeal was heard

on the 7th inst. and the court then quashed the conviction and stated that the reasons

for the decision will be rendered in writing later.

In my assessment I was of the view that the trial court did not go to the heart of the

matter and that its judgment E was flawed by a number of non-directions that were

grave in nature. And it did not surprise me that Mr. Uronu for the Republic felt a

civil trespass had been committed and not a criminal trespass and that redress if any

lay in a civil action rather than criminal charge. F

The appellant was accused of unlawfully entering upon the property of Omari Mbega

at Msamvu area in the Morogoro township with intent to intimidate, insult or annoy,

the incident taking place on the 29th September, 1979. As indicated at the outset, the

charge was laid under paragraph (a) of section 299 of the Penal Code. For ease of

reference that paragraph is set out in full hereunder, viz: G

Any person who unlawfully enters into or upon property in the possession of

another with intent to commit an offence or to intimidate, insult or annoy any person

in possession of such property is guilty of the misdemeanour termed "Criminal H

trespass" and is liable to imprisonment for three months: if the property upon which

the offence is committed is any building, tent or vessel used as a human dwelling or

any building used as a place of worship or as a place for the custody of property the

offender is liable to imprisonment for one year. I

1985 TLR p81

MAPIGANO J

In the instant case the property upon which the alleged criminal trespass was

perpetrated by the appellant was a A piece of undeveloped land and the mens rea

which the charge sought to attribute to the appellant was to intimated or insult or

annoy the said Omari Mbega.

The background and facts of this case, largely undisputed, are these. Up to 1979

Omari Mbega, the appellant B and other people used to live at a place called

Mwigole in the township of Morogoro. It happened that the Town Council resolved

to build a road through the area which would have necessitated the pulling down of

several houses in that area. Pursuantly, the Town Council served notices to Omari

Mbega, the appellant and C others, requiring them to move from the place to create

room for the construction of the projected road. At the same time the Town Council

offered each one of them an alternative plot at Msamvu. Omari Mbega was duly

offered a plot in that area identifiable as No.36 B, and the appellant was also offered

one. However, not the whole Msamvu area was suitably habitable. The plot offered

to the appellant turned out to be situated at a D marsh. Finding himself in such

quandary, the appellant approached the Town Director through the local Party

leaders. A few days later the appellant was seen entering upon plot No. 36 B, which

had been allocated to Omari Mbega, and starting to building a dwelling - house on it.

That was before Omari Mbega had done E anything to the plot. All the same, Omari

Mbega protested and lodged a complaint to the authorities, resulting into the

appellant being brought to the lower court on the charge.

The appellant made an explanation as to why he entered upon the plot. He said that

when it was put in the mind F of the Town Director that the plot granted to the

appellant was on a bog, the said Director instructed one Nyoni, a surveyor, to offer

the appellant another one. Nyoni, the appellant told the court, proceeded to reallocate

him plot No. 36 B. Neither the Town Director nor the surveyor was called to

give evidence, but the G story of the appellant found some support in the testimony

of two Party functionaries, namely Daudi Mganga (DW 2) and Malungo Choka (DW

3), and no reasonable man could say for sure that they were lying.

In his judgment the learned magistrate found, reasonably, that the plot was the

holding of Omari Mbega. He also H found, reasonably, that the appellant's entry

upon it was wrongful, adding that it was or would have been grossly irregular for the

Town Director or any body under him to allocate the plot to the appellant. The

substantive part of the appeal is the criticism that the learned magistrate paid no or

little attention to the fact that the entry upon the property was the result of a genuine

mistake.

As I have remarked above, the judgment of the lower court was flawed by a number

of serious non-directions. I In the first place, the learned

1985 TLR p82

MAPIGANO J

magistrate never paused to consider the issue of possession. As pointed out already,

the holder of the plot in A question had not started developing it at the time the

appellant entered upon it and it seems that he was then still residing at Mwagole area.

The question, therefore, is whether criminal trespass could be committed against a B

person who was not in actual physical possession of the property. In my view, an

intention to intimidate, insult or annoy any person in possession of property does

not, in the context of the penal provision whereunder the appellant was charged,

mean to intimidate, insult or annoy any person in constructive or in juridical

possession C but in actual physical possession. Where, therefore, the complainant

was, as in the present case, not in actual physical possession of the property no

offence of criminal trespass under section 299(a) could be committed against him. In

holding so I find countenance and comfort in India. In that country, where the law is

exactly the D same, the weight of authority is in favour of the view that no criminal

trespass can be committed upon a person who is not actually possessed of the

property. And nearer home, there is a persuasive decision in Kigorogolo v

Rueshereka,[1969] E.A 426, by the High Court of Uganda construing an identical

penal provision. If that opinion holds, then that should per se have been sufficient

ground for dismissing the charge. E

But there was another ground aside from that, equally strong, and this brings me to

the second non-direction which is in relation with the issue of mens rea. The

question that arose in this case is what was the appellant's frame of mind at the

material time. Now it is self-evident that the section whereunder the appellant was

charged and convicted has two essentials: F

(1) Unlawful entry into or upon property in the possession of an other

(actus reus),

(2) Such entry must be with intent G

(i) to commit an offence (which was not the allegation), or

(ii) to intimidate, insult or annoy the person in possession of the

property (this was the mens rea alleged in the charge in this case). H

Of course the words intimidate, insult and annoy must be understood in their

ordinary senses. To intimidate means to overawe, to put in fear, by show of force or

threats or violence; to insult is to assail with scornful abuse or to treat with offensive

disrespect; and to annoy is to irritate, to molest, to harass or to disturb the reasonable

peace of mind. I

It was necessary here for the learned magistrate to address his mind on this question

of intent. He was obliged to consider whether the

1985 TLR p83

MAPIGANO J

unlawful entry was calculated on the appellant's mind to intimidate, insult or annoy.

Unfortunately this point did A not engage his attention at all. Ratanal and Thakore

on The Law of Crimes 14th edition go into this matter of intention at quite great

length. At pages 1083 - 1084 they have this to say: B

"The word" "intent" is not to be taken as identical with "wish" or "desire". The

intention constitutes the entry criminal. Merely to trespass is not ordinarily such an

offence; but when the trespass is in order to the commission of an offence, or when it

is to intimidate, to insult, or to annoy, it is punished. Thus, the essence of the offence

is the intent in committing C the trespass. It is essential for the prosecution to prove

the intention laid down in the section. The intention must always be gathered from

the circumstances of the case, and one matter which has to be considered is the

consequences which naturally flow from the act, because a man is usually presumed

to intend the consequences of his D own act. That, however, is only one element

from which the court has to discover the intention of the party who trespasses. Was

the real intention to annoy, or was the real intention something else and the

annoyance a mere consequence, possibly foreseen, but not intended or desired? If it

is the latter, there is no offence under the section... A E conviction could not follow

merely because one could pronounce with certainty that the accused must have

known that his act would, as one of the inevitable incidents, cause annoyance.

Criminal trespass depends on the intention of the F offender and not upon the

nature of the act. It is one thing to entertain a certain intention and another to have

the knowledge that one's act may possibly lead to a certain result. The section is so

worded as to show that the act must be done with intent and does not, as other

sections do, embrace the case of an act done with knowledge of the likelihood of G a

given consequence. Although a trespasser knows that his act, if discovered, will be

likely to cause annoyance, it does not always follow that he does the act with that

intent....

The corroborated evidence of the appellant stood unrebutted. There was nothing to

refute his story that he had H been re-allocated the plot by Nyoni. The learned

magistrate remarked that it was wrong for Nyoni to do so. I am disposed to agree

with him and I would be charitably inclined to the view that Nyoni did so

inadvertently or under a misapprehension. But there was no positive evidence to

establish that the appellant's entry upon the land I was accompanied by an intention

to intimidate, insult or

1985 TLR p84

annoy. The facts, in my opinion, operated to take the case out of the scope of section

299 (a) of the Penal A Code. There was hardly any vestige of doubt that the

appellant had been given to believe, and he honestly and reasonable believed, albeit

mistakenly, that he had been granted the title to the land. And it appears that his

entry B upon it was solely in the exercise of the bonafide claim of that supposed

right. The law visits not the honest error, but the malice of mankind. I am sure that

if the learned magistrate had applied his mind to the ingredients of the offence he

would have come to a different conclusion. He would have held that there was no

mens rea necessary to bring home the offence of criminal trespass. He would,

therefore, have acquitted the appellant. C

The aforegoing were my reasons for quashing the conviction. I would like to make it

quite clear, though, that nothing herein should be construed as finally deciding the

right to the plot in question.

Appeal allowed. D

1985 TLR p84

E