Court name
High Court of Tanzania

Ally Kauzeni vs Republic () [1983] TZHC 3 (17 January 1983);

Law report citations
1985 TLR 79 (TZHC)
Media neutral citation
[1983] TZHC 3

Mapigano J.:  In this case the appellant Ally Kauzeni was charged with criminal trespass contrary to section 299 (a) of the Penal Code.  He was convicted and sentenced to a fine of Shs. 500/= and to D be jailed if he would not pay.  He was aggrieved by the conviction and he lodged an appeal against it.  The appeal was heard on the 7th inst. and the court then quashed the conviction and stated that the reasons for the decision will be rendered in writing later.
In my assessment I was of the view that the trial court did not go to the heart of the matter and that its judgment E was flawed by a number of non-directions that were grave in nature.  And it did not surprise me that Mr. Uronu for the Republic felt a civil trespass had been committed and not a criminal trespass and that redress if any lay in a civil action rather than criminal charge. F
The appellant was accused of unlawfully entering upon the property of Omari Mbega at Msamvu area in the Morogoro township with intent to intimidate, insult or annoy, the incident taking place on the 29th September, 1979.  As indicated at the outset, the charge was laid under paragraph (a) of section 299 of the Penal Code.  For ease of reference that paragraph is set out in full hereunder, viz: G
   Any person who unlawfully enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property is guilty of the misdemeanour termed "Criminal H trespass" and is liable to imprisonment for three months: if the property upon which the offence is committed is any building, tent or vessel used as a human dwelling or any building used as a place of worship or as a place for the custody of property the offender is liable to imprisonment for one year. I

In the instant case the property upon which the alleged criminal trespass was perpetrated by the appellant was a A piece of undeveloped land and the mens rea which the charge sought to attribute to the appellant was to intimated or insult or annoy the said Omari Mbega.
The background and facts of this case, largely undisputed, are these.  Up to 1979 Omari Mbega, the appellant B and other people used to live at a place called Mwigole in the township of Morogoro.  It happened that the Town Council resolved to build a road through the area which would have necessitated the pulling down of several houses in that area.  Pursuantly, the Town Council served notices to Omari Mbega, the appellant and C others, requiring them to move from the place to create room for the construction of the projected road.  At the same time the Town Council offered each one of them an alternative plot at Msamvu.  Omari Mbega was duly offered a plot in that area identifiable as No.36 B, and  the appellant was  also offered one.  However, not the whole Msamvu area was suitably habitable.  The plot offered to the appellant turned out to be situated at a D marsh.  Finding himself in such quandary, the appellant approached the Town Director through the local Party leaders.  A few days later the appellant was seen entering upon plot No. 36 B, which had been allocated to Omari Mbega, and starting to building a dwelling - house on it.  That was before Omari Mbega had done E anything to the plot.  All the same, Omari Mbega protested and lodged a complaint to the authorities, resulting into the appellant being brought to the lower court on the charge.
The appellant made an explanation as to why he entered upon the plot.  He said that when it was put in the mind F of the Town Director that the plot granted to the appellant was on a bog, the said Director instructed one Nyoni, a surveyor, to offer the appellant another one. Nyoni, the appellant told the court, proceeded to re-allocate him plot No. 36 B.  Neither the Town Director nor the surveyor was called to give evidence, but the G story of the appellant found some support in the testimony of two Party functionaries, namely Daudi Mganga (DW 2) and Malungo Choka (DW 3), and no reasonable man could say for sure that they were lying.
In his judgment the learned magistrate found, reasonably, that the plot was the holding of Omari Mbega.  He also H found, reasonably, that the appellant's entry upon it was wrongful, adding that it was or would have been grossly irregular for the Town Director or any body under him to allocate the plot to the appellant.  The substantive part of the appeal is the criticism that the learned magistrate paid no or little attention to the fact that the entry upon the property was the result of a genuine mistake.
As I have remarked above, the judgment of the lower court was flawed by a number of serious non-directions. I In the first place, the learned

magistrate never paused to consider the issue of possession.  As pointed out already, the holder of the plot in A question had not started developing it at the time the appellant entered upon it and it seems that he was then still residing at Mwagole area.  The question, therefore, is whether criminal trespass could be committed against a B person who was not in actual physical possession of the property.  In my view, an intention  to intimidate, insult or annoy any person in possession of property does not, in the context of the penal provision whereunder the appellant was charged, mean to intimidate, insult or annoy any person in constructive or in juridical possession C but in actual physical possession. Where, therefore, the complainant was, as in the present case, not in actual physical possession of the property no offence of criminal trespass under section 299(a) could be committed against him.  In holding so I find countenance and comfort in India.  In that country, where the law is exactly the D same, the weight of authority is in favour of the view that no criminal trespass can be committed upon a person who is not actually possessed of the property.  And nearer home, there is  a persuasive decision in Kigorogolo v Rueshereka,[1969] E.A 426, by the High Court of Uganda construing an identical penal provision.  If that opinion holds, then that should per se have been sufficient ground for dismissing the charge. E
But there was another ground aside from that, equally strong, and this brings me to the second non-direction which is in relation with the issue of mens rea.  The question that arose in this case is what was the appellant's frame of mind at the material time.  Now it is self-evident that the section whereunder the appellant was charged and convicted has two essentials: F
   (1)   Unlawful entry into or upon property in the possession of an other (actus reus),
   (2)   Such entry must be with intent G
      (i)   to commit an offence (which was not the allegation), or
      (ii)   to intimidate, insult or annoy the person in possession of  the property (this was the mens rea alleged in the charge  in this case). H
Of course the words intimidate, insult and annoy must be understood in their ordinary senses.  To  intimidate means to overawe, to put in fear, by show of force or threats or violence; to insult is to assail with scornful abuse or to treat with offensive disrespect; and to annoy is to irritate, to molest, to harass or to disturb the reasonable peace of mind. I
It was necessary here for the learned magistrate to address his mind on this question of intent.  He was obliged to consider whether the

unlawful entry was calculated on the appellant's mind to intimidate, insult or annoy.  Unfortunately this point did A not engage his attention at all.  Ratanal and Thakore on The Law of Crimes 14th edition go into this matter of intention at quite great length.  At pages 1083 - 1084 they have this to say: B
   "The word" "intent" is not to be taken as identical with "wish" or "desire".  The intention constitutes the entry criminal.  Merely to trespass is not ordinarily such an offence; but when the trespass is in order to the commission of an offence, or when it is to intimidate, to insult, or to annoy, it is punished.  Thus, the essence of the offence is the intent in committing C the trespass.  It is essential for the prosecution to prove the intention laid down in the section.  The intention must always be gathered from the circumstances of the case, and one matter which has to be considered is the consequences which naturally flow from the act, because a man is usually presumed to intend the consequences of his D own act.  That, however, is only one element from which the court has to discover the intention of the party who trespasses.  Was the real intention to annoy, or was the real intention something else and the annoyance a mere consequence, possibly foreseen, but not intended or desired?  If it is the latter, there is no offence under the section...  A E conviction could not follow merely because one could pronounce with certainty that the accused must have known that his act would, as one of the inevitable incidents, cause annoyance.  Criminal trespass depends on the intention of the F offender and not upon the nature of the act.  It is one thing to entertain a certain intention and another to have the knowledge that one's act may possibly lead to a certain result.  The section is so worded as to show that the act must be done with intent and does not, as other sections do, embrace the case of an act done with knowledge of the likelihood of G a given consequence.  Although a  trespasser knows that his act, if discovered, will be likely to cause annoyance, it does not always follow that he does the act with that intent....
The corroborated evidence of the appellant stood unrebutted.  There was nothing to refute his story that he had H been re-allocated the plot by Nyoni.  The learned magistrate remarked that it was wrong for Nyoni to do so.  I am disposed to agree with him and I would be charitably inclined to the view that Nyoni did so inadvertently or under a misapprehension.  But there was no positive evidence to establish that the appellant's entry upon the land I was accompanied by an intention to intimidate, insult or

annoy.  The facts, in my opinion, operated to take the case out of the scope of section 299 (a) of the Penal A Code.  There was hardly any vestige of doubt that the appellant had been given to believe, and he honestly and reasonable believed, albeit mistakenly, that he had been granted the title to the land.  And it appears that his entry B upon it was solely in  the exercise of the bonafide claim of that supposed right.  The law visits not the honest error, but the malice of mankind.  I am sure that if the learned magistrate had applied his mind to the ingredients of the offence he would have come to a different conclusion.  He would have held that there was no mens rea necessary to bring home the offence of criminal trespass.  He would, therefore, have acquitted the appellant. C
The aforegoing were my reasons for quashing the conviction.  I would like to make it quite clear, though, that nothing herein should be construed as finally deciding the right to the plot in question.
Appeal allowed. D

E