BADDOO vs. THE REPUBLIC [1968]DLHC10253

Date	1968-11-25
Suit No.	G L R 1012 - 1015
Citation No.	[1968]DLHC10253

OLLENNU J.A

AMISSAH J.A

SOWAH J.

T. A. NELSON-COFIE FOR THE APPELLANT.

HESSE SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1968]DLHC10253
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													<main id="main" class="content" style="min-height: 60rem" >BADDOO<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">G L
R 1012 - 1015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 25TH NOVEMBER, 1968<o:p></o:p>

</div>COUNSEL:<o:p></o:p>T. A. NELSON-COFIE FOR THE APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

HESSE, SENIOR STATE
ATTORNEY, FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

OLLENNU J.A, AMISSAH
J.A, SOWAH J.<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;&nbsp;AMISSAH&nbsp;
J.A.<o:p></o:p>&nbsp;Amissah J.A. delivered the judgment of the
court.&nbsp; 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.&nbsp; He appealed to the High Court which upheld
the conviction.&nbsp; Still dissatisfied, he
has now appealed to this court.<o:p></o:p>&nbsp;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.&nbsp; He visited the land once to
find that part of the wall had been broken down.&nbsp; 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.&nbsp; But as well be
seen later no particular significance could have been attached by the trial
court to this piece of evidence.<o:p></o:p>&nbsp;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.&nbsp; 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.&nbsp;
He had also planted coconut trees on the land; presumably these still
remain.&nbsp; When the complainant some time
ago attempted to put up a building on the land, he, the appellant stopped
him.&nbsp; Therefore when he found that
someone had built a wall on the land, he demolished it.&nbsp; The simple question for determination is: Does
the law allow him to do this?<o:p></o:p>&nbsp;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] statute book starting from 1960 has now re-appeared through N.L.C.D.
47 is as follows:<o:p></o:p>&nbsp;"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."<o:p></o:p>&nbsp;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.&nbsp; 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.&nbsp; His pronouncement with any bearing on the
point is as follows:<o:p></o:p>&nbsp;"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. &amp; Ry. 471; R. v.&nbsp; Studd (1866) 14 L.T. (N.S.) 633, C.C.R.; see
Archbold's Criminal Pleading, Evidence and Practice (33rd ed.) at p.
1313."<o:p></o:p>&nbsp;Actually the manner in which this defence was
put did not do justice to the appellant's case.&nbsp;
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.&nbsp; 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.&nbsp; The absence of
title in the prosecutor is no defence, it is true.&nbsp; But it is a totally different consideration
when the question is whether the absence of possession is or is not a
defence.&nbsp; And for the purposes of this
offence it is this latter consideration which is of any relevance.&nbsp; 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 i</main>