[2018] UGHC 40

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA**

**HOLDEN AT MBAALE**

**CRIMINAL APPEAL NO. 26 OF 2017**

**(ARISING FROM TORORO CRIMINAL CASE NO. 20 OF 2016 & CRB No. 170/2015)**

**A1 OWOR JOHN**

**A2 OLOWO RICHARD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

**VERSUS**

**UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE: HON JUSTICE SUSAN OKALANY**

**RULING**

**INTRODUCTION**

1. This is an appeal from the judgment of Her Worship Cherotich Kaibei Magistrate Grade One, delivered on 7th July, 2017.

**BACKGROUND**

1. The Appellants were charged as follows: 2. Threatening violence contrary to section 81 (a) of the Penal Code Act, where it was alleged that the Appellants and others at large on the 23rd day of November 2015, at Atiri “C” village in Tororo District, with intent to annoy or insult Ochakolong Yolokamu, threatened to injure the said Ochakolong Yolokamu. 3. Criminal trespass contrary to section 302 (a) of the Penal Code Act, where it was alleged that the Appellants and others at large on the 23rd day of November, 2015 at Atiri “A” village in Tororo District, with intent to annoy or insult Ochakolong Yolokamu, entered into the land in possession of Ochakolong Yolokamu with intent to annoy the said Ochakolong Yolokamu. 4. Criminal trespass contrary to section 302 (a) of the Penal Code Act, where it was alleged that the Appellants and others at large on the 20th day of November, 2015 at Atiri “C” village in Tororo District with intent to annoy or insult Alenya Patrick Oboth, entered into the land in possession of Alenya Patrick Oboth with intent to annoy him. 5. Criminal trespass contrary to Section 302 (a) of the Penal Code Act, where it was alleged that the Appellants and others at large on the 23rd day of November, 2015 at Atiri “C” village in Tororo District with intent to annoy or insult Ismail Ofwono Obel, entered into the land in possession of Ismail Ofwono Obel with intent to annoy the said Ismail Ofwono Obel. 6. Theft contrary to section 254 (1) of the Penal Code Act, where it was alleged that the Appellants and others at large on the 23rd day of November, 2015 at Atiri “C” village in Tororo District stole 4 hoes, 2 bags, a jacket and 2 pairs of sandals valued at 82,000/= being property of Ismail Ofwono Obey.

**BACKGROUND**

1. The facts giving rise to the trial and subsequent conviction of the Appellants were that Ochakolong Yolokamu bought the suit land from Martin Ologe in 1998. He surveyed the land in 2008 and obtained a certificate of title. In 2012, the accused persons started disturbing him over the suit land, claiming that it was their ancestral land. On 21st November, 2015 as PW3-Adilu Fenekasi was cultivating in Ochakolong’s garden, the Accused/Appellants went to the said garden and stopped him from cultivating it. They also ordered him to leave immediately or else face arrest by the police. On 23rd November 2015, while in the garden with Ochakolong, the accused persons came and chased him from the garden with pangas, hoes and big sticks leaving Ochakolong behind. Ochakolong Yolokamu upon sensing that his life was in danger, called the O/C Mailo 8 Police Post, who came to his rescue. On seeing the police officer, the accused persons run away with his hoes. Earlier on, Owor John had called Ochakolong, telling him to wait for them to come to him in thirty minutes time. The accused threatened Ochakolong that he would die. 2. Both Appellants denied the charges. They testified that on the said date, as they were going to the LC1 Chairman’s place, they used a shortcut through their former land. They found Ochakolong with his workers weeding cassava, but they did not move close to him. Immediately Ochakolong saw them, he made an alarm, calling his workers for help, because he had seen his enemies coming. The workers responded by advancing towards them and when the workers got to them, the accused persons informed them that they were simply using the path through the land, to go to the home of the LC1 chairperson. That on their way out of Ochakolong’s land, they met Adiru and Oketcho to whom they narrated their ordeal. That they proceeded to the home of the LC1 chairman who was not at home. They subsequently went to CPS Tororo to report the incident and the O/C CID advised them to open up a police file. The file was opened in respect of charges of criminal trespass, forceful entry and threatening violence. It was their evidence that unknown to them, Ochakolong had opened up a police case against them at Mailo 8 police post and it was only Ochakolong’s file that was sanctioned for trial. They insisted that the suit land was their ancestral land. 3. The Trial Magistrate convicted the Appellants for criminal trespass against Ochakalong Yolokamu and acquitted them in respect of the other charges.

1. The grounds of the appeal are that: 2. The Trial Magistrate erred in law and fact when she failed to fully and properly evaluate the evidence of ownership, possession, entry and intention to annoy, thereby reaching a wrong decision; 3. The Trial Magistrate erred in law and fact when she did not take into consideration the defence of claim of right. 4. The learned Trial Magistrate erred in law and fact when she sentenced the Appellants to a term of 24 months imprisonment for threatening violence, which in the circumstances of the case is harsh and excessive.

**REPRESENTATION**

1. The Appellants were represented by Mr. Enock Kyabakaya and Ms. Rachel Nyaketcho, while the Respondent was represented by Mr. Noah Kunya Senior State Attorney

**SUBMISSIONS OF COUNSEL**

1. Counsel Nyaketcho argued grounds 1 & 2 jointly. Citing the decision in the case of ***Opio Enriko vs Uganda Criminal Appeal 10/2014***, Counsel submitted that the complainant did not adduce documentary proof such as a sale agreement and a certificate of title to establish his claim of purchase of the said land and the fact that it was titled land. 2. She also submitted that the Trial Magistrate acknowledged the fact that there was a path on the land in issue and the defence of the Appellants was that they were using the foot-path and not trespassing on the land in issue. That when the Trial Magistrate stated at page 5 of the judgment that she found the evidence of PW1 – Ochakolong Yolokamu and PW2 – Ofwono Ismail was more believable. She was deciding the case on the balance of probabilities as if it was a civil matter, instead of considering the standard of proof which is beyond reasonable doubt. Counsel asserted that the Trial Magistrate misconducted herself when she continued to hear the matter instead of advising the parties to pursue civil remedies. Ms. Nyaketcho prayed that this court finds that the Trial Magistrate had erred when she failed to address her mind to the defence of claim of right. 3. Mr. Kyabakaya submitted in respect of ground 3. He submitted that the analysis conducted by the Trial Magistrate in respect of the elements of threating violence as listed at pages 6 and 7 of her judgement was faulty. Referring to page 10 of the lower court record, Counsel further submitted that the complainant – Ochakolong did not testify that the accused had threatened to kill him. He simply stated that the accused had chased away his workers from the garden, where upon he called police officers. That when the police officers got to the alleged scene of crime, the accused persons walked away. Counsel referred the testimony of Ochakolong at Court to page 22 of the record of the Trial Court, and asserted that the complainant did not state whether the Appellants were armed or not. 4. Referring to page 23 of the said record, Counsel submitted that the policeman did not testify to seeing the accused persons holding any panga. That from his testimony, it was apparent that it was the complainant who informed him that the accused persons had a panga. He pointed out that at page 6 of her judgement, the Trial Magistrate imported facts into the case, when she stated that the complainant on seeing the Appellants, became fearful and started screaming for help. 5. That the alleged threatening utterances and conduct amounting to intent to annoy were not analyzed properly, vis-a vis the evidence of the Appellants that they were moving using a foot-path near the garden in issue. 6. Mr. Kyabakaya additionally submitted that the Trial Magistrate, being abreast with the fact that the maximum sentence of criminal trespass is 12 months, erred in law when she sentenced the Appellants to imprisonment for 15 months. Counsel prayed that the sentence be quashed. 7. Mr. Kyabakaya contended that the Trial Magistrate had properly evaluated the evidence and found that the ingredients of criminal trespass and threatening violence had not been proved, she would not have convicted the Appellants. That at page 7 of her judgement, the Trial Magistrate stated that she had believed the evidence of the prosecution, which was not credible. He wondered why the complainant’s claim that he had developed fear be believed? He submitted that the Trial Magistrate had imported that fact into her judgement, because the complainant never stated so. Counsel prayed that this court finds that the conviction and sentence were improper and allows the appeal. 8. Opposing the appeal, Mr. Kunya Senior State Attorney Mbale, submitted that the complainant’s testimony was that there was no path on the land in dispute. He asserted that since there is a judgement awarding the land to the complainant – Ochakolong, the Appellants were trespassers. Additionally, he asserted that it was PW1’s testimony that the Appellants were armed with pangas and told him that he would die, which utterances amounted to threatening violence. Mr. Kunya further submitted that the Trial Court had properly convicted the Appellants. Counsel however, conceded that the sentence of imprisonment for 15 months for criminal trespass is illegal. 9. Regarding the 24 months sentence passed in respect of the charge of threatening violence, he prayed that this court does not interfere with it, since it was not manifestly excessive. Mr. Kunya prayed that this Honourable court dismisses the appeal except ground 4 of the illegal sentence which the prosecution conceded.

**DETERMINATION**

1. The duty of this Court as a first Appellate Court is to re-appraise all the evidence on record and re-subject it to a fresh and exhaustive scrutiny with a view of reaching its own independent conclusions, mindful of the fact that the lower Court had the opportunity to observe the demeanor of the witnesses as they testified, which benefits the Appellate Court does not have. ***(See******Kifamunte Henry versus Uganda, S. C. C. A No.010 of 2007).*** 2. I have examined the record and judgement of the Trial Court. I have also considered the submissions of both Counsel and the law applicable. I will discuss grounds 1 and 2 jointly and ground 3 separately.

**Ground 1 & 2**

***The Trial Magistrate erred in law and fact when she failed to fully and properly evaluate the evidence of ownership, possession, entry and intention to annoy, thereby reaching a wrong decision;***

***The Trial Magistrate erred in law and fact when she did not take into consideration the defence of claim of right***.

1. To prove offence of criminal trespass under section 302 (a) of *The Penal Code Act*, it must be proved by the prosecution that there was entry into or upon a property in the possession of another with an intention to commit an offence thereon, or, to intimidate, insult or annoy the person in possession of the said property.

**Entry into or upon a property**

1. PW1 – Ochakolong Yolokamu testified that on 23rd November 2015, the Appellants came up to him in the garden. PW2, Ofwono Ismail, also testified that on the same day, he saw the Appellants in PW1’s garden. PW3-Adilu Fenekasi testified that on 23rd November, 2015, the Appellants came to PW1’s garden where he was digging. I find that their testimonies were coherent and truthful and established the fact that the Appellants entered upon the said property on 23rd November 2015 beyond reasonable doubt. In any case both DW1 and DW2 (the Appellants) in their testimonies admitted passing through PW1’s garden in issue, thus placing themselves at the scene of the alleged crime. I therefore find that the Trial Magistrate came to a correct conclusion when she stated that the Appellants had entered into the land of PW1.

**Possession of the property by the complainant**

1. This takes me to the issue of possession. The complainant must be the person in actual possession of such property. Possession within the meaning of this section refers to effective, physical or manual control, or occupation, evidenced by some outward act, sometimes called *de facto* possession as distinct from a legal right to possession (see***Opio Enrico vs Uganda Crim Appeal No. 10 of 2014***)*.* 2. PW1 testified that the said property was his garden, which he bought from Martin Ologe. He did not however produce evidence of the said purchase. However, since he was cultivating the said land, he was in physical control and occupation of the said land. Both PW2 and PW3-Adilu Fenekasi testified that the said garden belonged to Ochakolong Yolokamu, because he was cultivating it. DW1 – Owor John and DW2 – Olowo Richard also testified that they found PW1 with many of his workers, weeding cassava in the said garden. This evidence supports the fact that the complainant was the one in physical control of the said land. I therefore do find that the Trial Magistrate properly held that the land in issue was in the possession of Ochakolong Yolokamu.

**Intent to annoy the person in possession of the said property.**

1. It has already been established from the above facts that Ochakolong Yolokamu was the one in possession of the suit land. What is left is to be determined is whether there was intent to intimidate and annoy the complaint by the accused persons. At page 10 of the record of proceedings in the Trial Court, PW1 testified that the accused Appellants went to his garden with pangas and clubs. They also told him that he had to die. This was corroborated by PW3-Adilu Fenekasi, who testified that the accused persons were armed with pangas, hoes and big sticks. In their defence, the accused persons stated that they were merely using the path, which was in Ochakolong’s land to go to the LC1 chairperson’s home. 2. According to Phadke Ag J in the case **of *Kigorogolo vs Rueshereka [1969]1 EA 426***, intent to annoy by the offender is gathered from the circumstances of the case. That the intent referred to in criminal trespass is the intent to put fear by show of force or threats of violence. PW1 testified that A1, Owor John, telephoned him and told him that he should wait for them for thirty (30) minutes. After the said phone call, the accused persons entered upon the land with pangas and threatened him that he was going to die. This evidence was not weakened in cross examination. It establishes the element of intent to intimidate and annoy the complainant. 3. The Appellant’s defence puts them at the scene of the alleged crimes for which they were convicted. From their own evidence at the trial, they stated that they opened a case file in respect of charges of criminal trespass, forceful entry and threatening violence by the complainant but that the complainant had also opened up a police case against them at Mailo 8 police post which file was sanctioned for trial. It was their evidence that the land claimed by the complainant is their ancestral land. This aspect of their evidence contradicts their claims that they were merely passing near the garden, when the complainant made an alarm against them. They in fact laid similar charges against the complainant, namely; criminal trespass and forcible entry of their land, as well as threatening violence. Giving the impression that they were the ones in the garden where the complainant, forcibly entered and attacked them. 4. Thus, from my assessment of the entire evidence on record, I do not fault the Trial Magistrate for coming to the conclusion that the Appellants intended to annoy PW1 when they went to his garden. In the result, I find that the Appellants were rightly convicted for criminal trespass, the prosecution having proved all the ingredients of the offence to the required standard.

**Claim of right**

1. Section 7 of the Penal Code Act Provides:

***A person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.”***

1. The defence of claim of right is available to an accused person, where the accused firmly believed that he had a claim of right over the property. The first Appellant testified that he had applied to court to reinstate ***CIVIL APPEAL 29/1986 ERISAFAN OKOTH & ANOR VS MARTIN OLOGE.*** This court is unable to establish his claim of right from a mere letter, to determine that his appeal would be reinstate. The 1st Appellant did not provide proof of reinstatement of the above appeal. Even if the appeal was reinstated, it is obvious that the suit was determined against the person from whom he claims to benefit, who lost the suit in favour of the person from whom the plaintiff obtained title to the suit land. 2. In any case, I do not think that ***Section 7*** of the ***Penal Code Act*** effectively protects the Appellants from responsibility in respect of the offence of criminal trespass and threatening violence, given the facts of the case. They used force and violence to attack the complainant in order to affect their rights. The complainant has a legitimate interest in that land which interest the Appellants are aware of and have not successfully challenged in law courts as seen from the appeal mentioned above. If the courts are to sanction such barbaric methods of enforcement of rights under the principle of claim of right, then impunity will thrive. With respect, this Court does not agree with the submissions of Counsel Kyabakaya in that regard. I find that the failure by the Trial Court to consider the first Appellant’s defence of claim of right did not occasion a miscarriage of justice. 3. In regard to the offence of threatening violence, the prosecution must prove that the threats were uttered or that the actions of the offender amounted to threats. PW1 testified that the accused persons went to his land armed with pangas and threatened him that he would die. PW3-Adilu Fenekasi testified that the accused persons went to the suit land armed with pangas, big sticks and hoes. Further, that the accused persons directed him to stop digging and leave the land immediately or else the police would arrest him. PW1 additionally testified that he had sensed that he was in danger when the accused persons chased everyone from the garden leaving him alone and that out of this fear, he called O/C Mailo 8 police who came to his rescue. This evidence clearly supports the fact that the complainant was threatened by the actions and utterances of the accused persons. I therefore agree with the findings of the Trial Court regarding the said charge.

***Ground Three:***

***The learned Trial magistrate erred in law and fact when she sentenced the Appellants to a term of 24 months imprisonment for threatening violence which in the circumstances of the case is harsh and excessive.***

1. The punishment provided by the law for the offence of threatening violence under **Section 81** of the **Penal Code Act** is imprisonment for a period not exceeding 4 years. The sentence of 24 months imprisonment, which is an equivalent of 2 years imprisonment. In my opinion, the sentence passed against the Appellants was not excessive to warrant interference by this court. In the result, this ground fails too. 2. I, however, agree with both Counsel that the sentence of 15 months passed against the Appellants in respect of the charge of criminal trespass is illegal. ***Section 302*** of the ***Penal Code Act*** provides for a maximum sentence of imprisonment for 12 months. I, thus, substitute the sentence of imprisonment for 15 months with one of imprisonment for 6 months, in respect of the conviction on criminal trespass. 3. Consequently, this appeal partially succeeds.

I so order.

Susan Okalany

**JUDGE**

**26/8/2018**

Right of Appeal explained.