Gwasa Bunzinya v Republic 1983 TLR 419 (HC).

GWASA BUNZINYA v REPUBLIC 1983 TLR 419 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

October, 1983

CRIMINAL APPEAL 21 OF 1983

Flynote

Criminal Law - Forcible entry - Elements of - S.85 Penal Code.

-Headnote

The accused Gwasa Bunzinya was originally tried, convicted and sentenced to pay a fine of 500/= or six months' imprisonment by the Shanga Primary Court in Ngara District following a charge and prosecution for forcible entry to complainant's land contrary to s. C 85 of the Penal Code. The court also imposed orders for compensation to the tune of 1,500/= to be paid by the accused to the complainant.

The accused had conceded entering the complainant's land but had argued that the property in question had been abandoned and was bona vacantia. No evidence was led by the prosecution to prove that the accused used any force or violence to enter the land.

The District Court dismissed the accused's appeal but set aside the order for compensation. The accused was still not satisfied hence this appeal.

Held: (i) Section 85 of the Penal Code was not intended to take care of every trespass to land but only those primarily concerned with the preservation of public tranquillity in matters pertaining to land and accompanying or concomitant processes of changes of ownerships or possessions;

(ii) in order for s. 85 of the Penal Code to operate, the following elements must be established beyond reasonable doubt:

1. The accused/appellant must have entered the said lands or tenements in question;
2. The said accused/appellant must have applied violence and the said violence must have been for purposes of taking possession of the said lands or tenements;
3. Unless the said lands, or tenements, are in the custody of the accused's servants or bailiff, it is immaterial whether the said accused/appellant is entitled to enter the lands or not;

(iii) in this case, it has not been proved beyond reasonable doubt that the accused entered the shamba in a violent manner in order to take possession of the said shamba.

Case Information: Appeal allowed.

No cases referred to.

Judgment:

Katiti, J.: This is an appeal whose compass coverage is a narrow one. The undisputed facts are as follows. PW.2 Baseka s/o Bunzinya had had occasion to entrust all his lands or tenements to the complainant Zubel s/o Rukele PW. 1, before he went on a long errand for the treatment of his child. The accused/appellant, a brother of PW.2, entered the said Shambas that had been entrusted to the complainant, and began plucking and consuming the fruits thereof, and hence the complaint by the complainant PW.1. The appellant's defence was that he entered the shamba because it had been abandoned by his brother, and that nobody was in control, and further conceded that his brother PW2, could have his shamba back.

Shanga Primary Court found the appellant guilty as charged and imposed a fine of Shs. 500/=, or Six months imprisonment, following the same with an order that the same appellant compensate the complainant to the tune of Shs. 1,500/=. The appellant's appeal to the District Court was partly dismissed, as while the conviction and fine imposed were upheld, the compensation order was set aside for lack of foundation on which it could stand.

The appellant has appealed again. The prosecution and defence cases juxtaposed, one discerns no serious conflict between them, in general terms. As a matter of fact, nowhere did the appellant deny entering the Shambas/tenements in question, he only qualified his such entry that the same property hitherto belonging to his brother had been abandoned, and was bona vacantia. I think, I dare say, it was the apparent simplicity with which the appellant seemed to agree with the prosecution's general evidence that drove both the Primary and District Courts, to easily enter conviction, and/or uphold the same. I think the two lower courts had a problem of shortsightedness, in easily thinking the case had been proved beyond reasonable doubt.

While indeed trespass to land, which the appellant's conduct, inter alia was, is a wrong, it is not the intention of the Section to take care of every, and any trespass to land. The Section is afraid of treading on slippery grounds. Section 85 which is worded carefully, reads:

"Any person who, in order to take possession thereof, enters on any land or tenements in a violent manner, whether such violence consists in actual force applied to any other person, or in threats, or in breaking open any house or in collecting an unusual number of people, is guilty of the offence termed 'forcible entry.'"

It is immaterial whether, he is entitled to enter on the land or not, provided that a person who enters upon lands, or tenements of his own, but which are in custody of his servant, or bailiff, does not commit the offence of forcible entry.

Having read and reasonably digested the above Section, it seems to me that before conviction under it is successfully achieved, the following elements must be established beyond reasonable doubt. They are:

1. The accused/appellant must have entered land/s, or, tenements in question, and
2. The same said accused/appellant must have applied violence and whether such violence consists in actual force applied to any or other person, or in threats or in breaking open any house or in collecting an unusual number of people, the same such violence must be for purposes of taking possession of the same said lands or tenements.
3. Unless the said lands, or tenements, are in the custody of the accused's servants or bailiff, it is immaterial whether the said accused/appellant is entitled to enter the lands or not.

This section, it may be discerned, is not so much concerned with the unlawful consumption, if any, of fruits, produce, or products of the said lands or tenements involved, as that may be taken care of by another section. It is primarily concerned with the preservation of public tranquillity in matters pertaining to land and accompanying or concomitant processes of changes of ownership or possessions. In other words, it is a law and order section, decrying applications of violence, disturbances of tranquility in land entries.

If, with respect, we apply the above elements to the instant case, we shall not fail to note that, while we have concession that, the appellant did enter, there is hardly evidence showing whether the appellant applied violence in entering the same said Shamba. All we have from the complainant, at best an eye witness, is this:

Namshitaki Gwasa Bunzinya kwa kuniingilia katika Shamba nililoachiwa na baba yangu mdogo Baseka Bunzinya.

With considerable and far-reaching efforts, I have failed in the name of Justice, to read application of violence or even threats thereof, by the appellant in entering and taking possession of the questioned Shambas from the evidence adduced. The Swahili word "Kuingilia" that the complainant chose to use in describing the appellant's conduct does not, in my view, carry or bear the violence content contemplated by the provisions above reproduced. It carries the mildness that the Section is not worried about. Even going by the complainant's own amplification that - hata Katibu Kata alifika waliona walivyokata ndizi, I fail to read the same to mean that the appellant entered the said Shamba in a violent manner, in order to take possession of the same shamba.

I find myself finally succumbing to my conviction, that the case was not proved beyond reasonable doubt against the appellant. The appeal is therefore allowed, conviction quashed, and sentence set aside. It is hereby directed that the fine imposed, be refunded, if paid.

Appeal allowed

1983 TLR p422