Moshi J:
This is a second appeal. The primary court of Mbalizi sentenced the appellant, Saidi N Uledi, and six other persons who did not appeal, to a fine of Shs 1 000/= or three months' imprisonment in default, Econsequent upon a conviction for criminal trespass, contrary to s 299(a) of the Penal Code. The matter centered on a thirty acre piece of land whose ownership was being claimed by the respondent, Kalesi Ngonela, on the one hand, and the appellant, on the other.
F The conviction and sentence aggrieved the appellant who preferred an appeal to the district court of Mbeya through the services of his learned advocate, Mr Mwangole. The appeal was dismissed, hence this second appeal which was preferred and argued before me by the same Mr Mwangole, G and resisted on behalf of the respondent by Mrs Makuru, learned Senior State Attorney.
The case for the respondent was this. He inherited the land from his father who died in 1957. He cultivated bulrush millet and reserved part of it for cattle grazing. His four witnesses (SM2-SM5) spoke in support of his claim. Solomon Mwamapasi SM2, in particular, said he witnessed the H inheritance transaction. On 12 February 1994 the respondent found the chairman of Igale village, Amanyisye Mwakalonge, allotting the land to some of his villagers. Amanyisye claimed that when he took over the village leadership in 1993 he was told that the land belonged to Igale village. The appellant and the six accused were villagers of Igale village. In consequence, the respondent sued I the chairman, Amanyisye, on behalf of his villagers,
for the land. It was Mbalizi primary court Civil Case No 19 of 1994. In that case three of the A respondent's witnesses in this case (SM2-SM4) testified. In a judgment (exh MA2) delivered on 9 May 1994 the primary court found in favour of the respondent and declared him to be the lawful owner of the land in dispute. No appeal was preferred against that decision which to date has not otherwise been reversed or altered. Then in February 1995 the respondent found the appellant and B the six accuseds cultivating the shamba. He registered a complaint against them with the appropriate village authorities who by a letter (exh MA1) dated 10 February 1995 directed the appellant and his six confederates to stop cultivating the respondent's shamba. But the appellant, who was in the forefront, refused to heed the directive, and cultivation continued. Hence the criminal C proceedings before the primary court of Mbalizi.
The case of the appellant, on the other hand, was that he inherited the land from his deceased father. Neither the appellant nor his witnesses said when. He then dished it out to the six accuseds who, with the appellant, went into occupation and started to cultivate it. Again the appellant did not D say when this took place. The third accused (SU8) said it was in 1969 whilst the seventh accused (SU12) said it was in 1991. The fifth accused (SU10) said he had been cultivating the land for a long time. And the elder brother of the village chairman aged fifty nine years, Lusubilo Mwakalonge SU4, said he knew of shambas occupied by the appellant since 1962 but the land in dispute was not E among them. The appellant claimed that he was neither a party to Civil Case No 19 of 1994 nor aware of it. F
Both courts below believed the respondent and his witnesses and found, on the basis of, among other grounds, Civil Case No 19 of 1994, that the land in dispute belonged to the respondent, and that the appellant was aware of that case, and that he, in consequence, had no genuine claim of G right over that shamba, and finally that the appellant's guilt as charged was demonstrated beyond reasonable doubt.
Mr Mwangole preferred three grounds of appeal, as he had done in the appeal to the district court, which were to the effect, firstly, that the first appellate court grossly erred in law and in fact in H holding that the appellant knew about the dispute in Civil Case No 19 of 1994 regarding the disputed shamba and, secondly, that the learned Resident Magistrate, who heard the first appeal, erred in law in holding that the appellant had no claim of right over the land in dispute. The learned advocate submitted that on account of that I
A the appellant was neither a party to, nor aware of, Civil Case No 19 of 1994 he had a valid claim of right and that the matter ought to have proceeded as a civil case. The case of Saidi Juma v R (1) was cited and relied upon. Mrs Makuru, for her part, submitted that the appellant had no claim of right as he was, like some of his co-accuseds, aware of Civil Case No 19 of 1994 and that the B shamba belonged to the respondent. Saidi's case (supra), she argued, was distinguishable from this case in that in this case there was a valid judgment of a court of law of a civil nature in favour of the respondent while in that case there was none. And in this case, she concluded, village leaders C were involved while in that case they were not.
I have followed and considered these arguments. In the circumstances of this case I am bound to uphold Mrs Makuru's argument. With respect to Mr Mwangole, the appellant was in a way a party in D Civil Case No 19 of 1994. The allegation in that case was that the land in dispute which was the same subject-matter in this case, was the property of Igale village, and the respondent then sued its chairman on behalf of that village and all its villagers of which the appellant was among them. This would account for the fact that the village chairman had to summon some villagers to testify. It was E unnecessary, in my view, that all the villagers, including the appellant, were to testify. It sufficed that only the village chairman and the villagers to whom he was giving the land to had to testify. And with even greater respect, even assuming that the appellant was not a party in those proceedings, he was, as were his co-accuseds, quite obviously aware of that case and its outcome. The F circumstances were clearly such that he simply could not have missed it. The dispute in that case, as already stated, was over the same piece of land, and the village chairman, who was sued by the respondent, as well as the villagers who testified for the appellant in this case, and the appellant himself and his six co-accuseds, were all of the same village of Igale. It was therefore inconceivable G that this great event of that case touching upon that village, its chairman and its villagers in general, would have missed or escaped the attention of the appellant, particularly so when, firstly, the appellant and his co-accuseds were, as they claimed, in occupation of that land and, secondly, H the village chairman, as established, was allotting that same land to some villagers. Furthermore, the entire village leadership was aware that the land in dispute belonged to the respondent, and it was most unlikely that the appellant, in the circumstances, would not have been aware of that as I well.
And as though to clinch the matter, one of the witnesses summoned by the appellant in this case A SU4, but spoke against the appellant, was the elder brother of the sued village chairman, and this was clearly indicative of that the appellant was duly aware of the dispute in Civil Case No 19 of 1994 as well as the outcome of the case. Indeed, in the circumstances, the appellant's claim that he had inherited the land from his father was, on proper reflection, an attempt to rob the respondent of his B land. His witnesses were, as demonstrated, at variance on that claim. He and his co-accuseds could not have purportedly occupied that shamba for such a long time without being seen by the respondent or by the sued village chairman for that matter. It was when they invaded the shamba in C February 1995 that the respondent, on seeing them, promptly and swiftly acted in the manner already described. The manner in which the appellant responded or reacted to the village leadership's directive (exh MA1) to stop cultivation was clearly indicative of that he was stubbornly clinging to that which he knew belonged to the respondent, rather than to that which he genuinely D believed belonged to him.
The essence of the offence under s 299(a) of the Penal Code is, firstly, that the entry must be unlawful and, secondly, that the entry must be done with intent to commit an offence or to E intimidate, insult or annoy the person in occupation. There can be no doubt in this case that these ingredients were, in the circumstances, and as demonstrated, established to the required extent. The appellant lacked a bona fideor an honest claim of right in terms of s 9 of the Penal Code when F he entered the land he knew belonged to the respondent. As amply demonstrated, he had entered the land with intention to defraud. Saidi'scase (supra) was clearly distinguishable from this case in the manner pointed out by the learned Senior State Attorney. In that case there was a bona fide G claim of right which was not the case here. In this case, but not in that case, the respondent had, and still has, a valid judgment and decree of a court of law in his favour arising fro prior civil proceedings over the same piece of land in which the appellant was a party and/or of which he knew about. H
For all the foregoing reasons, I am satisfied, as was the district court, that the appellant was properly convicted and sentenced. In consequence, this second appeal fails, and it is hereby dismissed in its entirety. I
A
