Samweli s/o Baruni v. R. (PC) Crim. App. 22-A-67, 30/8/67, Platt J.
Accused was the defendant in a prior case in which a judgment had been entered against him. The plaintiff in that action brought an execution proceeding which resulted in the sale of accused ‘s shamba, but accused was permitted to remain in possession for a period in order to harvest his crops. Eventually the purchaser at the execution sale reported to the court that he was unable to take possession of the shamba. As a result, accused was convicted under section 114 (1) (h) of the Penal Code which provides that any person who “wrong fully retakes possession of any land … from any person who has recently obtained a judgment from a court for the recovery of possession on such land … is guilty of a misdemeanor.”
Held: Accused had not “retaken” possession but had merely remained in possession beyond the permitted period. Moreover, the purchaser’s right to possess did not stem from a judgment granting him recovery of possession. Therefore, the charge was not proved. The Court stated, obiter, that if the purchaser had sued accused for the recovery of the land,
Accused would then have been in contempt of court if he had failed to vacate possession. The Court also stated that if accused had disobeyed any lawful orders of the Court, he “could have been charged perhaps under section 124 of the Penal Code …..”
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