Regina v Jiwabhai (Criminal Appeal No. 378 of 1955) [1950] EACA 517 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), SINGLAIR (Vice-President) and BACON, Justice of Appeal

REGINA, Appellant

## MOHAMEDBHAI JIWABHAI, Respondent (Original Accused)

## Criminal Appeal No. 378 of 1955

(Appeal from the decision of H. M. High Court of Uganda, Bennett, J.).

Crown Land-Unlawful occupation-Land within the Protectorate presumed to be Crown land—Uganda Crown Lands Ordinance (Cap. 177), sections 24 (1) and (25)—Uganda Crown Lands (Declaration) Ordinance (Cap. 118), sections $2, 3, 4$ and $5$ .

The respondent, having been convicted by a District Court of unlawfully occupying Crown land, appealed to the High Court which allowed his appeal on the ground that the prosecution had not discharged the burden of proving that the land was Grown land. From this decision the Attorney-General appealed.

- Held (7-5-56).—On the proper construction of section 2 of the Crown Lands (Declaration) Ordinance (Gap. 118), once it is proved that the land in question is within the Protectorate, a presumption arises in favour of the Crown that the land is Crown land and it is for the defence to rebut that presumption. - Appeal allowed. Judgment of the High Court set aside and conviction and sentence of the District Court restored.

No cases.

Dickie for appellant.

Wilkinson for respondent.

JUDGMENT (prepared by Sinclair, Vice-President).—The respondent was convicted by a District Court in Uganda of unlawfully occupying Crown land contrary to section 24 (1) of the Crown Lands Ordinance (Cap. 117), and was fined Sh. 125. He appealed to the High Court of Uganda which allowed the appeal, quashed the conviction and set aside the sentence on the ground that the prosecution did not discharge the burden of proving that the land was Crown land. The Attorney-General now appeals from that decision.

Section 24 (1) of the Crown Lands Ordinance provides: -

"It shall be unlawful for any non-African throughout the Protectorate or for any African in the Buganda Province to occupy Crown land outside the boundaries of a township or trading centre unless such occupation is in pursuance of a valid licence or lease which in the case of a licence has been issued by the Governor and which in the case of a lease has been granted by the Governor or by a person who is in occupation himself pursuant to a lawful lease or sub-lease."

Section 25 of that Ordinance reads: —

"Any person who unlawfully occupies Crown land shall be guilty of an offence and on conviction shall be liable to a fine not exceeding Sh. 400."

The prosecution prayed in aid the presumption created by section 2 of the Crown Lands (Declaration) Ordinance (Cap. 118), which reads as follows: -

"All lands and any rights therein in the Protectorate shall be presumed to be the property of the Crown unless they have been or are hereafter recognized by the Governor by document to be the property of a person or until the contrary thereof be proved as hereinafter provided."

Section 3 of that Ordinance provides that any person claiming any right, title or interest as against the Crown in any particular area of land shall lodge a claim with the Land Officer within twelve months of the commencement of the Ordinance, namely 22nd March, 1922, after the expiration of which period no claims will be entertained. Sections 4 and 5 provide for the appointment of a Special Commissioner who shall hold an inquiry and report to the Governor whether any claim preferred to any land as against the Crown is established. If the Special Commissioner reports to the Governor that a claim to an area of land is established as against the Crown, the Governor shall thereupon make an order vesting the land in the claimant, and the claimant shall thereupon be placed in possession of the land.

The evidence established that the respondent, an Indian, was one of four partners in a firm which owned *posho* mills situated on land in Busoga District in the Protectorate of Uganda. The land was not in a township or trading centre. Two of the other three partners in the firm were Indians and the fourth was the respondent's wife, an African. The respondent and his wife were in physical occupation of the posho mills. Neither they nor the other partners claimed that they had a valid licence or lease from the Governor or any other valid document of title from the Governor. One Samweri Nkondo, a Saza chief, claimed a reversionary interest in the land but he admitted that he had no document of title from the Governor and that he had not lodged a claim to the land under the provisions of the Crown Lands (Declaration) Ordinance within the prescribed period of 12 months.

The four partners in the firm were jointly prosecuted. The respondent alone was convicted. The grounds upon which the other partners were acquitted are not relevant to this appeal. The respondent by his advocate contended at the trial that the presumption raised by section 2 of the Crown Lands (Declaration) Ordinance is rebuttable not merely by one or other of the means prescribed by that section but by any other means whereby it can be shown that the land is not Crown land, and that the defence has only to establish that the land is not Crown land and need not go to the length of showing whose land it is. He further contended that by the evidence of the Saza Chief he had proved that the land was hereditary property and not Crown land.

The learned trial Magistrate rejected the respondent's contention as to the construction of section 2 and convicted him on the ground that the land in question was shown to be Crown land inasmuch as the defence had not produced any document issued by the Governor entitling the respondent or any other person to the land and the evidence established that no claim to the land had been lodged within the prescribed period.

On appeal to the High Court, the learned Judge held that there was no evidence to support the finding of the learned Magistrate that no person had ever made a claim to the land in pursuance of section 3 as it was not beyond the

bounds of possibility that some person other than the respondent or Samweri Nkondo had a valid title to the land which had been recognized by the Governor. He then went on to say: $-$

"In prosecutions under section 25 of the Crown Lands Ordinance the onus is on the prosecution to prove that the land, which is the subject of the charge, is Crown land. Once this has been proved, the onus is then upon the accused to establish, if he can, that he is in occupation of the land by virtue of a valid licence or lease which has been issued by the Governor. The prosecution can prove that the land is Crown land by showing that no title to it has been recognized by the Governor and that no successful claim to it has been made under section 3 of the Crown Lands (Declaration) Ordinance. It is only when these two facts have been established by evidence that the presumption created by section 2 operates in favour of the Crown. The Ordinance may have been enacted to overcome difficulties arising from the somewhat nebulous definition of 'Crown lands' in the Uganda Order in Council, 1902 (Vol. VI, p. 82 Revised Edition) and the lack of a definition in the Crown Lands Ordinance, Cap. 117. Section 2 relieves the Crown of the obligation of having to prove its own title to land which is said to be Crown land; but that is far from saying that in a criminal prosecution in which the status of a particular piece of land is in issue it casts upon the accused the burden of proving that the Governor has never recognized the title of a third party. The grant or recognition of a title by the Governor is a matter especially within the knowledge of the accused when the accused is himself the holder of the title, but it is not a matter especially within his knowledge when the holder of the title is a third party.

In the instant case, the Land Officer ought to have been called by the prosecution to prove that the Governor had not recognized anyone's title to the land and that no person had made a successful claim to the land under the Crown Lands (Declaration) Ordinance. In the absence of any evidence as to the status of the land the prosecution did not discharge the burden of proving that the land was Crown land."

The contention of the Crown on this appeal is that as soon as land is proved to be within the Protectorate it is presumed to be Crown land by virtue of section 2 of the Crown Lands (Declaration) Ordinance. The onus is then on the defence to rebut that presumption and that can be done only in one of the two ways provided by the Ordinance, namely:-

- (a) By producing a document to prove that the land has been recognized by the Governor as the property of a person, or - (b) By proving that a successful claim to the land has been made under the provisions of the Ordinance.

On behalf of the respondent it is again submitted that the Crown Lands (Declaration) Ordinance does not exclude other ways of rebutting the presumption and that the evidence of the Saza chief sufficed to rebut it. As for the recognition by the Governor by a document that the land was the property of a person, or the making of a successful claim within the prescribed period, it is now contended that the learned Judge was correct in holding that the onus is on the Crown to prove that neither of those events has occurred.

The language of section 2 of the Crown Lands (Declaration) Ordinance is not entirely clear and we have found some difficulty in construing it. We think, however, that the submission of the Crown is correct. Once it is proved that the land in question is within the Protectorate, the presumption arises in favour of the Crown that the land is "Crown land". It will then be for the defence to rebut that

presumption by proof of one or other of the two matters mentioned in the section. Rebuttable presumptions of law are inferences recognized by law which "stand instead of proof till the contrary be proved:" Gilbert's Law of Evidence, 6th ed., 142. There is nothing in the section or elsewhere in the Ordinance to warrant a departure from the general principle that the burden of rebutting an affirmative presumption of law rests on the party who supports the negative. The burden of proving that a successful claim to the land has been made under the provisions of the Ordinance plainly lies upon the party who is asserting that the land is not Crown land and that fact strengthens the view we have taken that the burden of proving that the land has been recognized by the Governor by document to be the property of a person lies also upon that party.

As to the submission that the Crown Lands (Declaration) Ordinance does not exclude other ways of rebutting the presumption, in our view section 2 is exhaustive. The section is couched in unambiguous terms and is incapable of the more flexible construction for which the respondent contends. Had the legislature intended that the presumption could be rebutted otherwise than in one of the two ways provided by the section, it would have sufficed to say, and one would have expected the legislature to have said "unless and until the contrary is proved" or words to that effect.

At the trial the Crown proved that the land in question is in the Protectorate. The defence failed to discharge the burden which then lay upon it. The evidence of the Saza chief as to the land being hereditary property by tribal custom carried the defence no further.

For these reasons we are of opinion that the learned Judge came to an erroneous conclusion and that the appeal must be allowed. The judgment of the High Court is accordingly set aside and the conviction and sentence are restored.

We would observe that, except in the Buganda Province, it is only the occupation of Crown lands by non-Africans which is made unlawful by section 24 of the Crown Lands Ordinance. Sub-section (2) of that section expressly provides that it shall be lawful for Africans, other than in the Buganda Province, to occupy Crown land outside townships and trading centres without lease or licence from the Crown.