Ismail Bushaija vs Republic [1991] TZHC 13 (14 August 1991)


Chipeta, J.: In Bukoba District Court, the appellant, Ismail Bushaija, was charged with and convicted of the I offences of criminal trespass and malicious damage to property contrary to sections 299

(a) and 326 (1) of the Penal Code and was sentenced to pay a fine of Shs. 2,500/= in respect of each count. The A appellant was dissatisfied and so has appealed to this court.
To a large extent the facts are not in dispute. They are as follows: The complainant, one Ernest Ndyamukama (P.W.1) told the court that he owns a shamba in which he has planted various trees in Ibwera village, Bukoba. On B 10th September, 1988, at about 1.00 p.m he saw the appellant and three of his servants cutting trees in P.W.1's shamba, and in all they cut down 481 trees. When the appellant was asked by P.W.1 as to why the appellant was C doing such a thing, the appellant retorted by telling P.W.1 that he should go and ask the people who had given the trees to him.
Later the complainant reported the matter, surprisingly, to the Ward Office and the District Commissioner. Eventually the matter found its way to the Police and then to the Court.
In this defence, the appellant said that the shamba in dispute is his own shamba and that it had earlier been the D subject-matter of a civil suit in which he was the successful party. He called witnesses who, to some extent, backed up the appellant's claim.
With respect to Mr Nasimiro, learned counsel for the appellant, I tend to agree that this case boils down to a dispute E of ownership of the shamba which is the subject-matter of these criminal proceedings. It seems to me, therefore, that this is a defence of bona fide claim of right.
The learned trial magistrate blamed the appellant for not producing in court the judgment in the alleged civil case. F However, in this memorandum of appeal drawn up by his learned advocate, the appellant alleges that the civil case was Ibwera Primary Court Civil Case No. 2 of 1987.
In my view, it is wrong to convict a person for criminal trespass when ownership of the property alleged to have G been trespassed upon is clearly in dispute between the complainant and the accused. As was pointed out by this Court in the case of Saidi Juma v R [1968] H.C.D. n. 158, cited by Mr Nasimire, when, in a case of criminal trespass, a dispute arises as to the ownership of the land, the court should not proceed with the criminal charge and H should advise the complainant to bring a civil action to determine the question of ownership. That is exactly what the trial court should have done in the present matter.
For these reasons, the appellant's conviction cannot be allowed to stand. This appeal accordingly succeeds. The I convictions are hereby quashed and the sentence set aside. The complainant is

A advised to seek redress in a civil court. The fine which, I note, was paid, shall be refunded to the appellant forthwith.
Appeal allowed.


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