20001219 TZHC Mbeya

IN THE HIGH COU:F:.T OF TI,i'TZ:31L\ L.T"11<'""9"-~_,, ~.:';I f'lBJSY_~,_:_ f.FPELii"TB Jl.i'TII.SDICTION, (MBCYI\ :RIDGLS'I'BY) CRDHN ,L hPFEAL NO. 14 O:F' 2000 (Fron Orie;. Crimin3.l Cc,se No.,130/99 of the District Court of Rungwe District at Tukuyu) ) ) 3o MARil,M KIJ.J\i\BOKO ) VERSU;':3 THE REF TJBLI C• e o n o c o • o • o o o o o o o o o • o e o o • o o o o, o o o o , o • o c RES} ONIBNT JUDCf,l£NT The appellc:mts v,cre convicted of crirnin::tl trespass c/s 299( a) of -.:ie Penal <lode. The evidence on v,hich they were convi.ctod is rather clear. On 1st Jcmu:J.ry, 1999, John Morice My.-2Jd (fW1) the Brmch Mc.mnger of the erstwhile National Bonk of Commerce ( 1997) Ltdo, dfacovered that surveyed plots that were allocatad to h:i.s employer were being develored by the appellants. It 1:ms e,stablished by Mbukoti Laizer (PvJ2), the Rungwe District Land Officer and Robert Olotu (PW4) that the r2...rcels of land in question were indeed ,alloc:J.ted to the NBC ( 1997) Ltd. Essentb.~_ly thci.t wns case for the prosecutiono The appcllcm.ts denied the c).1argeo i,den Ko..nyeka, tp-.,- first appellant, swore tha.t he h.J.d occupying that :;::·ioce of lMd since 1936 when he inherited it from his fathero He w,,ts 62 yea.rs old when he te,sti fiedo He denied that NBC (1997) had any just clnim over it" Ezekiel 'J;'homas M1:nlusar11ba uastified that (Dd2) :put up claims on pc:,rt of the

lw1e1 that was claimed by NBC (1997) Ltd, On his l)D.rt 1\h2cli :\" Mw2S,:ce;a ( 2nd aprellent) swore that he obtnined the land legally frc r!l the first on:elb.nt <I 1 Vio.rio.m Kame1.boko ( 3rd arpellant) also got ...... •-0 C / ') C.. 2 her r>c.rrcel of land from tho first a.r,pe'.:.l::mt ~ The learned trial magistrate found thnt the prosecution c:ise had becm rroved according to lawo He convicted the arrellants an.d sent each of them to jo.il for six months. They have appeal; it is unforhma.te that their npt,eal is bein13 he,"',rd after h:wing served all the sentence. This is not the kind of justice cu:l.yonc woulcl expect t specially where the EI.F})enl is allowodo Mr. Mwakolo, le,:-,xned col,D.Bel for tho ar1Jelln.nts, filed three grounds of appeal a.s fo1lows:- 'I • that the le,Tined trial magistr2,te erred in roint of law and fo.ct when he determined the matter as a crime when in fa.ct it is civil in nnture as the central issue w2..s ownershir, of the disputed parcel of land; 2. that the trin.l court likewise erred when he convicted. and sentence the arpell.Dnts in respect of criminal trespass while the offonce was not proved beyond any reasona~)le doubt ; and that the trial court erred in lm,; in ordering the appellnnts to remove the builci.ing matr.;rie.ls at the disrute site in '.J. case which l!-"ls r,ur8ly a civil m'.l.ttero Mrc Mwakolo argued the .:1ypea.l

cenerally. By 1,ny of ernrhnsis he submitted the.t the matt er wo.s civil in nnture and th:1t tho oJ pello.nts had established a genuine clo.im of right over the disputed plotso Now what must be done in order to ~)rove a ch:>.rgc of criminal tresrn.ss·, According to section 299 of the Pehal Code anyone commits that offence if he (a) unlawfully enters into or upon property in the possession of another with intent to cornr.ii t an offence or to intirnido.te or to mmoy ruiy person in :possession of such r,rOl'E'"cl"'ty 9 or ... (b) having lawfully into or uron such 1:roperty unlawfully remains there with intent thereby to intimidate, insult 0r annoy a11y such person or with intent to commit nn offence"" 3 * The key elements tho.t must oe :-proved are the requisite a.ctus rems and an 1 ..:;,e,:.--.,.:,..o..,s•~·..-., •. ....-,--"'"·~., .. , accompanying El~.~s _,r(Jc<?;e Here there is rroof of entry on the dis1)uted areae There is, in other \vords, evidence of the exi,sten.ce of thcas_:~u?_ re~s o In order to complete the offence they must be shown to have entered on the lo.nd with intent to comr;;i t a crime. All the appell:uits have r3.isec1 n defence of a claim of right o It is n. total defence to the ch::rge if tlie an1ellc::mts can establish on a preponderant evidence that the 1011d is . theirs• ;rhe second and the third nccused :persons established lawful acquisition of the

bnd~ for there is no evidence which shows that they knew that the firr:1t accused was illegally in possession of the 13.Ild he devis'ed onto them., I woulcJ. allow their appeal on that count. The first accused swore that he in.rierited the land from his late father and that he had been in r,e,3-ceful possession for some 36 yeru.~s before he WRS prosecuted. The rrosecuti:Jn did not disr,ute hiG acco{mt on that issue. If, in the mear1timo the 1-:md has ·been surveyed E.tnd some of it w2.s allocated to the N,.B.,C ( 1997) the issue boils clown whether the first anJellrmt has a genuine claim over that land. This, as Ivir,. ~1w::tkolo pointed o~t,j civil matter. !:LE;~.].~~- has dot, thorefore, been rroved on the part of the first accused. Since it is a civil matter it must be ressolved a civil court in as much as ' he has full I)rotcction under section 9 of the Penal Co'1o v>hich 1:rovicles that a person is not criminally resJ_1onsible in respect of an offence relating to property, if the act done, or cirnitted to be ckne by him with rosrect to the I pror,erty waB done in exercise of an honest claim of ri3ht and without intention to defraudo Accordingly, the arpeal succeeds. C:mvictions a.re q_wshed: and the sentences and order for demolition are set aside. Each of the a1pellant is discharged from prison if they are still there,. Judgment she,11 be delivered 1)y the District Resfatrar.

JUJXIB 1~/12/2000 . 4 Coram: Sa Ao N. Varnbura 1 CGX.J •) An,ellants: Lbscnt For Agiellants: Mr. Mwo.kilo Advocate - present For Republic: C/C-:. Mrs. Mronzi Court: __ _,,,..___,= Judgment delivered in open court at the rresence of all the Advocates and in the absence of the ar,ellanti 19/12/2000 DIS'I'RICT P.E3ISTRA..'R . I MBEYl\.