Written and witnessed bequests or gifts are valid even in the absence of a will, provided they are properly tendered in court, High Court at Kabale, Rules
- Waboga David
- Oct 7
- 4 min read
Facts
The Appellants, Tushabe Prossy and Niwamanya Richard, were convicted by Her Worship Chandiru Milly, Chief Magistrate of Kabale, for criminal trespass under Section 282(a) and malicious damage to property under Section 312(1) of the Penal Code Act.
It was alleged that on 30th September 2016, at Nyamabare Village, Kabale District, the appellants entered the complainant’s land (belonging to Agnes Matsiko, their paternal cousin) with the intent to annoy and intimidate her, and cut down her banana plants.
The complainant testified that she had received the land as a gift from her grandmother, witnessed by the appellants and confirmed by a written agreement (PEX2).
The appellants claimed it was family land but provided no proof. Dissatisfied, they appealed, alleging the Trial Magistrate ignored their bona fide claim of right, erred in convicting for malicious damage, and failed to properly evaluate the offenses’ ingredients.
Issues
Whether the trial magistrate erred in law and fact by ignoring the appellants’ bona fide claim of right to the land.
Whether the trial magistrate erred in convicting the appellants of malicious damage to property.
Whether the trial magistrate failed to properly evaluate the ingredients of criminal trespass and malicious damage, leading to a wrong decision.
Legal Representation
For the Appellants, M/s Egon & Co. Advocates
For the Respondent, Mr. Isaac Onyango, State Attorney – Office of the Director of Public Prosecutions (ODPP)
Submissions
Appellants’ Counsel argued that the appellants acted in exercise of an honest claim of right to family land under Section 7 of the Penal Code Act, which exempts one from criminal liability where property-related acts are done without intent to defraud.
The State opposed the appeal, maintaining that the appellants had no documentary proof of ownership and that the gift deed in the complainant’s favour was properly executed and witnessed, making her the rightful owner.
Court’s Findings
(a) On the Claim of Right (Ground 1)
The Court cited Section 7 of the Penal Code Act, which protects persons acting under an honest claim of right. However, both appellants admitted lacking any written proof of ownership, and even acknowledged that their grandmother had given the land to the complainant.
The Court held that their claim was dishonest and unsupported, and thus not protected under Section 7. The trial magistrate had properly dismissed this defence, following authorities such as Opio Enrico v Uganda, Cr. App. No. 10 of 2014, and Korokoni & 3 Others v Uganda, Cr. App. No. 013 of 2015.
“In this case, I find the claim of right to be dishonest, unsupported, and unworthy of belief.” – Trial Magistrate, cited with approval.
(b) On Malicious Damage to Property (Ground 2)
The Court outlined the three key ingredients of the offence:
Damage to property belonging to the complainant;
That the damage was wilful and unlawful; and
That it was caused by the accused.
Evidence from prosecution witnesses (PW3, PW4, and PW5) confirmed that six banana plants were cut by the appellants. The Court found the evidence consistent and corroborated, satisfying all elements of the offence.
(c) On Criminal Trespass (Ground 3)
The Court restated the ingredients of criminal trespass under Section 282(a):
Actual entry by the accused;
Complainant’s possession at the time;
Unlawful entry; and
Intent to annoy, intimidate, or commit an offence.
The Court found that the complainant was in possession of the land under a valid gift deed (PEX2), and that the appellants’ entry was unlawful and intended to annoy, as evidenced by their destruction of crops.
From the comments, The Court emphasized that the concept of family land exists to protect members from unilateral decisions to dispose of family property.
Family members have rights to use and occupy the land, and any sale, disposal, or alteration requires consent from those entitled under the Land Act.
Moreover, Unilateral actions, even by elders, cannot override the rights of other family members.
The Court drew parallels with spousal consent requirements in the context of matrimonial homes.
Just as spousal consent is required before selling, mortgaging, or disposing of a matrimonial home, family consent is essential in disposing of family land to prevent disputes.
The appellants failed to assert a legitimate family claim and did not contest the complainant’s documented ownership, highlighting the importance of lawful procedures over self-help.
That the doctrine of de minimis allows courts to ignore trivial matters, where the law or justice does not require punishment for minor interference. The Court noted that in this case, the appellants’ actions were intentional and brazen, despite involving only six banana plants.
Even minor physical interference can attract criminal liability if the act is deliberate and malicious, and therefore the appellants were not entitled to the protection of de minimis. While upholding the conviction, the Court acknowledged the relatively short sentences imposed, with the expectation that the appellants could apologize, reintegrate into society, and become law-abiding citizens.
Holding
All grounds of appeal failed.
Conviction and sentence by the trial magistrate were upheld.
The Court found no miscarriage of justice and affirmed that the appellants lacked a bona fide claim of right.
Key Takeaways
A claim of right under Section 7 of the Penal Code Act must be honest, supported by credible evidence, and free of fraudulent intent. Mere assertion of family ownership is insufficient.
Written and witnessed bequests or gifts are valid even in the absence of a will, provided they are properly tendered in court.
Criminal trespass and malicious damage are sustained where a person unlawfully enters and interferes with another’s property, even if family relations exist between the parties.
Family land disputes must be resolved through lawful civil channels, not by self-help or forceful occupation.
The Court reaffirmed that the doctrine of de minimis does not apply where the acts are intentional and malicious, even if the physical damage is minor.
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