BADDOO v. THE REPUBLIC [1968] GLR 1012

DIVISION: COURT OF APPEAL

DATE: 15 NOVEMBER 1968

BEFORE: OLLENNU AND AMISSAH JJ.A. AND SOWAH J.

NATURE OF PROCEEDINGS

APPEAL against conviction on a charge of forcible entry. The facts are fully set out in the judgment of Amissah J.A.

COUNSEL

T. A. Nelson-Cofie for the appellant.

Hesse, Senior State Attorney, for the respondent.

JUDGMENT OF AMISSAH J.A.

Amissah J.A. delivered the judgment of the court. The appellant was convicted upon a charge of forcible entry contrary to section 202A (1) of the Criminal Code, 1960 (Act 29), as amended by the Criminal Code, 1960 (Amendment) (No. 2) Decree, 1966 (N.L.C.D. 47), by the district court. He appealed to the High Court which upheld the conviction. Still dissatisfied, he has now appealed to this court. At the trial, the complainant claimed that he was the owner of a plot at Lartebiokorshie upon which he had erected a cement block fence. He visited the land once to find that part of the wall had been broken down. Investigation disclosed that the damage had been done by the appellant. According to the complainant, when the appellant was shown the damage by the police, he readily admitted having caused it. The complainant did say in his evidence that he was in possession of the land on which he built the wall. But as well be seen later no particular significance could have been attached by the trial court to this piece of evidence. Both in statements to the police and in court, the appellant admitted breaking down the wall. But his case was that the land was his; he had obtained it by a grant from the Sempe stool some 14 years previously. He had since been in occupation of the land; he had marked it out by putting pillars on its four corners, some of these pillars still remain while others have been damaged by the complainant. In the course of his occupation, he had once placed gravel and sand on the plot, though these disappeared. He had also planted coconut trees on the land; presumably these still remain. When the complainant some time ago attempted to put up a building on the land, he, the appellant stopped him. Therefore when he found that someone had built a wall on the land, he demolished it. The simple question for determination is: Does the law allow him to do this? Now the offence created by section 202A (1) of the Criminal Code, 1960 (Act 29), which after a period of absence from our

[p.1014] of [1968] GLR 1012 statute book starting from 1960 has now re-appeared through N.L.C.D. 47 is as follows:

“202A. (1) Whoever with violence makes an entry into any building or land, whether or not he is entitled to the possession thereof, shall be guilty of a misdemeanour, unless he does so in pursuance of a warrant or other lawful authority to use such violence.”

Two things must be established if a conviction under this section is to be sustained: there must have been an entry into a building or land and secondly, this entry must have been with violence. To prove entry, it must be shown that irrespective of whether the accused had title to the property or not, he did not have possession of it at the material time. Possession must be with somebody else. If a complainant therefore complains that an accused has forcibly entered his land, that complainant must show to the satisfaction of the court that he, and not the accused, was in possession of the land at the time. A positive finding on possession, if it is in issue, is essential. The learned trial magistrate treated the question of possession in a manner which although concise was somewhat lacking in clarity. His pronouncement with any bearing on the point is as follows: “The plea that the complainant’s occupation was only recent and that the accused’s occupation was prior in time is no defence—absence of title in the prosecutor is no defence, the gist of the offence being the force: R. v. William (1829) 4 Man. & Ry. 471; R. v. Studd (1866) 14 L.T. (N.S.) 633, C.C.R.; see Archbold’s Criminal Pleading, Evidence and Practice (33rd ed.) at p. 1313.” Actually the manner in which this defence was put did not do justice to the appellant’s case. The essence of that case being simply, that he was in possession of the land when he found that the complainant had built a wall on it so he demolished it. His prior occupation of the land, the coming of the complainant to build the wall on the land is what apparently has been put by the magistrate as “the complainant’s occupation was only recent and that the accused’s occupation was prior in time.” It does appear from the passage quoted above that the learned magistrate was confusing possession with title. The absence of title in the prosecutor is no defence, it is true. But it is a totally different consideration when the question is whether the absence of possession is or is not a defence. And for [p.1015] of [1968] GLR 1012 the purposes of this offence it is this latter consideration which is of any relevance. For example in R. v. Child (1846) 2 Cox C.C. 102, where the argument was whether it was even necessary for the prosecution to prove title in a charge of forcible entry if title is alleged in the indictment, Rolfe B. at p. 102 said, “Whether it may be proper to allege the title or not, it is clearly not in issue here. I shall merely leave it to the jury to say whether the prosecutor was in possession of this land; and if so, did the defendants in a violent and tumultuous manner deprive him of such possession?”

In a situation where actual possession is everything and the right to possession is nothing, it is of the utmost importance that the tribunal of fact should clearly state which of the two it has found that the complainant has, because on that depends the answer to; the question whether there has been any entry at all. The arguments presented at the hearing of the appeal before the High Court could not have conduced to a judgment which would take account of this point. Other issues seem to have engaged the attention of counsel on both sides there. May be because of that circumstance the point escaped that court also.

Before us, when the point was taken, learned counsel for the State conceded that without a finding on it the appellant could not be said to have entered the land. If that case then it matters little what the meaning of violence in the context of the offence of forcible entry is, be cannot he guilty of that offence: We accordingly allow the appeal, quash the conviction and set aside the sentence imposed on the appellant.

DECISION

Appeal allowed.

Conviction and sentence set aside.

L. E. A.