Member of a TANU Branch selected a piece of land on which to build an office. In the following years, the accused went onto the land and began cultivating it, having been permitted to do so by the local authorities. While he was temporarily absent, the local TANU branch began building the office, erecting poles on the land, which at that time had no crops on it. When the accused returned, he removed the poles and left them in a heap outside the land. He was charged and convicted of malicious damage to property, c/s 326(1), Penal Code.
Held: (1) In order for the accused to be convicted of malicious damage to property, “the prosecution had to prove that the [accused] had willfully and unlawfully destroyed the partly constructed building. They had proved willful distraction, it was a deliberate act – but unlawfully was in question”. But it follows from the evidence that the accused “had a clear claim of right to the land, and that he was justified in treating the TANU Officials as trespassers unless they proved superior title. On that basis he was no guilty”.
(Obiter) “Both counsel referred me to an opinion of this court per Saidi J. in which it was held that where a criminal case arose out of a dispute as to the ownership of land it was better that the issue of ownership was decided first in a civil court. That appears to me a salutary direction. In the present case if the right to the land had been established no doubt compensation would have been awarded which would have covered the loss if indeed [the accused] was at fault”. Appeal allowed and conviction quashed.
