NKIRWA SUMARY v REPUBLIC 1984 TLR 186 (HC)

NKIRWA SUMARY v REPUBLIC 1984 TLR 186 (HC)

Court High Court of Tanzania - Arusha

Judge Mwakibete J

October 28, 1984

(PC) CRIMINAL APPEAL 14 OF 1984 B

Flynote

Criminal Law - Forcible entry on land - Ingredients of the offence - Penal Code,

section 85.

-Headnote

The appellant was convicted and given a conditional discharge for the offence of

forcible entry into another's land. The facts established showed that he had

cultivated and planted maize on disputed C land.

Held: (i) To constitute forcible entry it must be shown that the entry was in a violent

manner; in the circumstances of this case this element was lacking. D

Case Information

Appeal allowed.

No case referred to

[zJDz]Judgment

Mwakibete, J.: This is a 2nd appeal by one Nkirwa Sumary. He was convicted before

a court of 1st E instance, at Maji ya Chai, of forcible entry c/s 85 Penal Code., as

applied, and given a one year conditional discharge under s.38 (1) Penal Code. His

appeal to the District Court, at Arusha, against both the conviction and sentence was

dismissed. Hence this appeal. F

The allegation was that he had forcibly entered on and laid claim to the shamba, the

property of one Noel Sarakikya. It is said he had cultivated it and planted maize

unauthorized.

Appellant's defence was that he had cultivated a shamba which he genuinely and

reasonably believed was his property by inheritence. G

Each of them then called witnesses to establish his claim over the shamba. And it

happened that Noel Sarakikya had a stronger case than that of the appellant when the

trial court convicted him of forcible entry. Section 85 of the Penal Code says: H

Any person who, in order to take possession thereof, enters any land or ...... in

a violent manner, whether such violence consists in actual force applied to any other

person or in threats on in breaking open any house or in collecting an unusual

number of people, is guilty of the misdemeanour termed 'forcible entry'. I

1984 TLR p187

A So that for one to be convicted of 'forcible entry' one must be shown to have

entered on the land in a violent manner, as provided in the section quoted. I have

carefully gone through the proceedings before the court of 1st instance but no where

is evidence of 'violence' shown in terms B of the law as above. Which means that,

on the evidence, a necessary ingredient for the offence of forcible entry was lacking.

The conviction was therefore lame and on the basis of this alone the same cannot be

allowed to stand - it is quashed and the sentence set aside.

C There is yet another aspect of this case. The nature of the allegation and the

defence thereto clearly show that the case involved a dispute over ownership of the

shamba in question. That being the case, the controversy is one that ought to have

been resolved by civil litigation instead of criminal proceedings. The Republic agrees

with the appellant that the case was more of a civil nature D than criminal - as such

it would not support the conviction. The appeal would also succed on this point.

This means that because the appellant (Nkirwa) was in occupation of the shamba

when criminal proceedings were brought and he still asserts that the shamba belongs

to him - Noel Sarakikya may E bring a civil action to establish ownership of the

same if he so desires. Of course civil action will be unnecessary if Nkirwa abandons

his claim over the shamba.

F Appeal allowed.

1984 TLR p187

G