19790720 TZHC Arusha1

(C IN THE HIGH COURT OP WTZANIA AT BUSHA - APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL No.121 OP 1978 (Origi41 Or'iminal Case No. 69 f 1978 ef the District Court •f Ranang At Babati) BEFORE: J. N lim4azza - istriet Magistrate I1IMJI, GA1IGJI SI SODYA 0 000 0 00 000 APPELLAW2 versus THE REPUBLIC • • • • . RESPOT'1DENT JUDGEMENT MWLSIUMQ, Je This is an appeal by one Khimji Gangji Sisodya through the services of his learned counsel Mr. Mahatane against the decision of Babati District Court which found him guilty and thus convicted him of criminal trespass contrary to section 299(a) of the Penal Code. The appeal is against the judgement, sentence and the • erders. • This is ore of those a•es which I term to be as interesting as they are ptentially sensitive and invariably in such cases one has to be extra careful to see to it that the law must strictly take its •ourse ntwithstanding the ptentisl sensitivity that iight pr4bably some intr wrng play0 Befré the trial court the appellant stood haied with cx'iminal trespass contrry to section 299(a) of tllp, Penal Code it ha7ing been particularized that the person charged, between 13th and. 14th March 1978 at Masakta village within the Di.trict of Hanang an region of, Arusha did unlawfully enter into the ±rm of the aforesaid village which is the property • the villagers and cultivated thirty three acres f land and planted ma.ze without the aonsent of the viUagers with intent to annoy them. Upon s.nviction he was sentenced to a fine mf ahs.200/= or one n,nth imprisonment in default therf He readily paid the fine.. An order was pronounced by which he was allowed to harvest his maize and .then he .../2 was forced "I -2- was forced to vacate the said disputed piee of land0 The facts of this sse as estblished in the trial court were not seriously in dispute VYsy back In 1968 the appellant was allocated 200 ares of 4 land by the then village development cornell of .Endasaki. 4 Having cleared it on it the appellant used to plant several crops mncluling maize, bears "nfbaaz:i' '-4 Also on that.piece of land he built a building to be used as a store for his crops.. The said house :as built f burnt bricks and roofed with corrugated iron sheets and in his estimation the said house was valued at shs.20,000/=.. The appellant continued enjoying pecefu1 occupation and usage' of that piece of land till 22nd December 1976 when villagers of Masakta conved a meeting to which the appellant was summoned only to be old that at an earlier meeting the villagers had decided to take away his land and that 1ie was being so informed so that he could pack and go away from that land.. Naturally the appellant protested and refusea to surrender his land, at least, without diecussion and cOmpensation. O 170 acres he had tlmbaaziu iwhile on 30 acres the land was elear but he was planning to plant maize on it. 4 I0twitb5tanding his protest the villagers told him that 'they would immediately take over the 30 acres and then after be had harvested the mbaaziU they would also take f'ver the t'emaining 170 acres. This telling did net 1ease the appliant and he left the place disgruntled but soon thereafter a letter by the villagers to the appellant fUtwed to oonfirm what they had told him. Then the appellant approached several big Officials in Hanang District to protest against thst take over his land but none gave him back his shamba Against all his protest the villagers In 1977 ploughed the 30 acres and planted some maize. In November 1977 the villagers ihvaded the remaining 170 acres 'on which were "mbaazit' plants and they cut them dOwn, They did not manage to cut down all of them but only those on 20 acres and then they got tired. From the 20 acres the appellant expected to get shs.30000,/. .../3 In March - - - -- -3— In March 1978 the appellant moved into the' land with his tractors and ploughed it and planted some maize. It was at this stage that the villagers rushed to the Police to lodge a complaint and as a result the Police preferred a charge of trespass as indicated above. sf The question before the trial court and indeed before this court was and is whether on the facts as presented above the appellant was guilty of criminal trespass as defined or as laid down in section 299(a) the Penal Code, The trial court answered that question in the affirmative hence the conviction and the resultant sentece and eviction order. With respect this court finds itself at gross variance with the court below on that anwer for the evidence clearly shows that that question on the evidence before that court ought to have been answered in the negative. Trespass in its most ccmprehensi.ve sense, signifies any transgression or ofence against the law of nature, of society o r of the country in which one lives and 'it relates to a man's person or to his property. In its more limited and ordinary sense, it signifies an injury l:ommitted with violence and this violence may be either actual or implied; and the law will irily Vilenco though flofle Is actually used, when the Injury is of a direct and lmrnodiate kind, and committed on the person ,4r tangible and c.rpore,al property of the plaintiff. Of / actual violence, an assault and battery 'is an instance whereas of impLied, a peac able but wrongful entry upon a person's land is the example. To make It criminal trespass the said entry must be clupled with an intent to commit an offence or to 7 tt$midate insult or annoy any parson in possession of SUCh property In the instant ease the first and preliminary / question is who was in pbssessiQn of the piece of lend in question before the dispute arose. Having irected ene's mind to that question then if an answer /is prevjded tg it then it should be easy to resolve whether it was the appellant evor the villagers who were / .../4 the trespassers, / - i :I JO GTn3 9 • I.9ç 008 Q o 9U3AJOS OT4q. iVq uo noózoI ic 'oxi .iVIçqIB o. qoeqns oq ou TTBTt9 0td00d '1c-tiBnb pedcI eq 'wotn eq pqe Rq,eçoos jo 9AST jo IBd it.uose nopq uV. UOq—flOM PuS iVp u ç UTATt Jo Unq.Joddo pucIxe oq. UBW JO WOPOGLIJ t2.X qqj. OLIBU8 oq ST wsTTsT 06 JO esodLind et fl • s TxGJeWA (qqTe od) wstoos PUS wopee11 0q çt Ut QI9t1G&N ° )I sflTtflf flwTIBMI 13T LMZUeL JO OTTqTtdaa pOUfl 0t4 JO Uopçs9 014q. .9OU91T9O3C STj TznPUTdvW BT3 8WBtT JO UBWJçBUQ PUB O'.B$ JO 0 130H 1110 usqq. I9T0 OU Aq pGp39 R- zoio s itdtOUTJd 9iT41 'LXWnOO 8Ttt U 9tttITJd pO.dG30B Pule POLTsTaGT4 0 B ST t0Pt/& aiMBt JO 9 1tLt etj. TM çwtxojuo uy eq pinoiA PUTW Au o. 9 TtTX •8aOBt1TA 0. mTlT WOXJ ic-flflJeoBod xe sULX. •. MOt T28tGddB Ot4 InTAk pO3.00U pus U(AO 9 Vit JOOBOd QABq Ptt'kOt9 AOTL opueT Jo 000Td .BT4 tIT1Tflb)B JO 09IZflQó Qt UT penpui pooput Aaqq. as Aqçoxj ç qz2 0l 4ou sum toBozdds 1xdoid et uot oouo'çpodxo tTtdd ali g 9&Bt oq. pOU13A& 9XOBT1TA etfl jJ • .u 9 wdot 9 A9p PtM UOTdtt3Q 1 2 BOT 5t O. PGTtUO 11tS.9BM qtmTTodda 9T PUBt 4Vtlq. JO aGTdn 300 TnJB1 et. uoeq TTTq. 9 2AH 'ITOUU00 quamdOT9AOP 9BflA Vtlas 9t. 3! BOP eAT.B1CTO1 GTlq. 144TA 9.BtVU.X01 ¶OU PTP poBooTIB.pBtl Puel ioto AUS peepu' PUBI Bt JO OSTOJ9XO U0t.B0OTTB OT JO 1TBA 914. 9uor.BTsTot 4U ,9WUaaA0f TB 001 4uanbasqris eq pa4vutmj9q. oouosçxo s -t p'q GL'3q q.qçw floufloo U9Wdot9AGp ) - GFUTITA PTIeS GLfl. -4.3 nOTZI cTT0un00 4uqwdoT9A9P 99ttA UGt.q. aTqn, tq PUBI JO SOJOB 009 PIBS etq. p9$btT PTIrLjmeT U90q puT4 OLI UGtA 9961 9 0uTs PUBt 30 GOeci BL JO qtI)WJoTOAOp 1nJuTBp9OpUT pUB uOT 88988 O tflJB1 Ut SI3PA qucoddB 9t OBOJB 9ndsp qBq. u9ilm 9w ot. o. dn Lro[o st to0u9pte bT44 uo ,9flO tE 9 JOW Jo IBUTWIJO sssdsoa ,4 T0t1S SBM. :9T OTTfl PUB uoçsenb cxou ot. ptuoo ITVA U9tJ 9IX989Bd9O.X qq -' but vo.t cannnt have sTciaUsIn without it, because it is the epesion f man ? s equality inone facet of social living If the above principle. was adhered to by the authorities whom the.Appellant approached and if tbe in turn advised the villagers to settle a cempensation. to be paid to the appellant before they forcibly ii\aced and grabbed the said land such an approech wouL5 not only have been in conformity with the law of this country but indeed it would also hde been in line iith the 6licies and plitics of this country which rightly advocates some form of cmpensation o already developed: -pieces of land even if the same are to.beacquired for the iftterest of furthering the, licy of "ujamaa villages" scia1ism and self—relianco If this approach had been adopted in the intant dispute, I hrioly believe, the appellant would not have been adamant about his riEhts it1'air and reasonable cpensation was offered to nim by tho vaiiagers or any •ther authority that was supposed to Ceal with villagilizatión, .;. On this qesGion qfi4.t and rcascn - ble -oznpensaton I am likeise r :ified by amon, many decided authorities, His Excellency the Chairman •.o' Chama Cha .Mapinduzi cum the President of. this United Republic of Tanzania who am.ng other things stated in his book —(Freedom and Unity page 53 - 54): . ¶'From wheré.dOes a manderive the right to possess something,and to refuse the •. who1e world this right.o ewnership? this right originat,es.from only one factor; the fact that man is nobody t s prcperty.0 le owns himself and cannot be someone ele's pbssession. If, therefore, man possesses himself, it / Is -clear that his •health,.•his intellect, • and his.abiiity cannot be someone else's. property * o, whenever he uses his .inteirect his health .nd hkL. ability • to. make anything, thatthing becomes his property ---------- Land isa free gift from Gd to all Ills living • . things to be used now and in the future. : rTh I. use nr •energey and talent to clear a piece of ground for ny use it is clear that I am trying t transform this basic ift from God s that it 6- 'that it can satisfy a human need. It is' true, hovvever, that this land is not mine, but 'the efforts made by me • in clearing th& land enable me to lay claim of nership over the cleared piece o .and. But it is • ~ not really the and itself that be- longs to me but nly the cleared ground which wil. remain mine as i long as Icontini4e to work it. By clearing added to its value and have enabled need. Whoever then takeç this piece • of ground must pay me for addn val ue to it through ,clearinitb ,y wwn labour." Turning back to the instant base not only did he • appellant clear the disputed piec of ground but he even planted crops ei it and yet the vlllagers went 'jut of their way end. damaged part of theth' the pegion peas (rnbaazi) piants . This was ver wrng on the part cf , the village±'s. I mu4 pbi'nt out that in this country we are very much blessd'to hve.the Head of Stdte who is a firm '.1 believer olthe rule of law and independency of the Judiciary. This gives tremendous inspiration and encouragement t us who arentruted th'the responsibility of adrnir1str'ation of jutibe It is bur duty to see to it that.we do it let down Our tresident and the people of this countryi 'hereThre wher the±"e is a need toedÜcate and demonstf'ate to the. pople what the law s by 6Ü udicial prörib ioètiehte Ike should not hesitate tO.dO so everi if by 8 o doirg some people might vrongly intor,rete 64 decisions as bé'thg d 6tinter to the geheral pOlicies ef the land ahd i±i this spirit justice must not only be 4n6 but il t - fifust be seen to be done. In the insta±it 6a86 one might be tempted tO argue th ±'avur of the vili'agers that they invaded and grabbed the disputed ice Of lend in pursuance of the villages and ttjamaa.village ( V6 gi strati6nj Designation and --' Adininistrat±oh) Act, NO. l Of 1975. With great scrutiny I have gone through the said Jt but nowhere is there any trace of provision whiOh pivides a mandate ti any type of village to resort to violence and terrrism as a mde ofacqiliririg land either for habitatio, cultivation ir any other purpose. In fact 10 - 77_ In fact if by any shance such a provisien was thexe that ould have been repugnant and highly objectionable to the general run of the mill of the policis and pelitics of this country. The Act in a very systematic manner has laid down how villagers cn form villages and then registered ujwaa villages and nowhere is forcible acquisition of property advocEted. Mr Mahatane learned counsel for the appellant clearly analysed that law and it is suificient to state here that like him this court respectfully arrives at the same conclusiOn that Masakta village, at least at • that time when it engaged itself in those squabbles which led to this case, did not even have a certificate of • incorporation to entitle it to a legal personality with rights to sue or to be sued or to own lend on which they could lodge criminal complaints such as this one. In this case thei'eis also an interesting apect which was brOut to surface by D0 1 02 one Langai s/o Nyagwe who among other things, testified that at one time the chairman of Masakta village ordcrod DOWO2 and some other people to go into the shamba of the accused (now appellant) • to uproot his pigeon peas (mbaazi) plants and they were about 100 pebple involved in that exercise. According to his further testimony they performed that work for four • days from 8.bO hours to 11.00 hours. When they had finished the area the chairman ordered them to stop that work. Then D.W.2 heard that th; t land grabbed from the appellant was to be given to one Mairo s/o Samba who is not only a villager of that place (Masekta) but also a rich man according to the description of D 0 W.2. The chairman, accoruing to D.YT.2, bold them at a meeting. that the land taken from the appellant was to be given to Mairo s/o Samba, the rich man in compensation of the land, of Mairo s/o Samba which the village hd taken from him. Fr6m the above it would appear that when the villagers took the land of the appellant by force and without negotiations for compensation they did no act so in. ignoranae.of the ned of compensat ion as stipu1aed • by Mwalimu's stand for the very people were at the same time thinkig.ensation to Mairo s/o Samba from •• • .../8 whom they • • • N - I -8- whom they had taken a piece of land. To me it seems, subject to correction, the ruthless treatment accorded to appellant might have been pronted by a.feeling of colour discriminatioi. Mairo slo Samba, oven from the name itself appears to be an indogonous native while the appellant is an Asian. This court must deprecate acts liko this which can bring about a very unwanted and unpleasant reflection f our country which all along has been advocating individual rights to property .wnörship irrespective •f,somerno's race, colour, faith and the like. We in the courts, when such bad ten.oncios are brought to us judiciously as this case has done, we must fight hard to stamp them out at the very budding stage. It is very refreshing that in this case oven the Republic did 'bear with the appellant that his conviction was faulty both in f&ct-andlaw. Registering his reluctance to support the conviction and the..resultant s.e.tenc.e and ordor for eviction the learned tste kttorney Mx'. Mwale who appeared on behalf of the Resondont (Republic) had this to : Vy Ird it is the intention of the - Roublic not to support this conv1.- ctjon Fistly, the record shows 4flO T968 to December 19'6. the land .:. - ..- . .was'4.. oiTeçive p9ssassion of the app4lant. Afor hat period the vlagcrs. of Másakta decided tç qi.ire.hè land ,in.question be.ore . éØn1ing with the donditidna by.e : No..21 of 1975 r C' ...... .Sedly,.the pr:osocutiondid .n9t ovethe essential element .. 'whTer... the land in guáation was : .tt.;tua1iy allocatedby the. iisi'ct Development Council.. .,. P4iñg it ]•J• I wduld sTubmlt ...i...'.. Masakta were the -; trPspas.ser.s . upon the land of the appe2lant ãtid the ccllnt hèd no .rc aitenatie..øxceptto use roaOnableórc. • Fr these reasons. My. 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