Part XXIV of the Land Act 1996 creates the criminal offences that protect government and customary land. They apply to both categories, which makes them among the few provisions of the Act that directly protect customary landowners.
Section 144 — trees, timber and materials
A person who, without authority:
(a) injures, fells, barks or destroys a tree growing on Government land or customary land; or
(b) cuts, saws, removes or sells timber lying or being on any such land; or
(c) removes, takes away or severs, excavates, quarries or digs for, with intent to remove or take away, any mineral or any stone, sand, gravel or other material from any such land,
is guilty of an offence. Penalty: a fine not exceeding K500.00 or imprisonment for a term not exceeding three months.
The fine is modest. The real consequence is in the next subsection.
Section 144(2) — paying the value of what you took
In addition to the penalty, a person convicted shall pay — to the Minister, or in the case of customary land to the Custodian for Trust Land for distribution to the customary landowners — the value, as determined by the convicting court, of any tree, timber, mineral or thing in respect of which the offence was committed.
A conviction under section 144 carries an automatic order to pay the value of the timber, gravel or stone taken — and where the land is customary land, that money goes to the Custodian for Trust Land for distribution to the customary landowners.
For a group whose bush has been logged or whose river gravel has been carted away, this is often a more practical route than a civil claim: the prosecution does the work, and the value order follows the conviction.
Section 144(3) — arrest without warrant
A member of the Police Force, or a person authorised for the purpose by the Minister or the Departmental Head of the Province, may arrest without warrant a person found committing an offence against section 144, and must immediately cause them to be dealt with according to law.
The power is confined to a person found committing the offence. It does not authorise arrest on suspicion after the event; that requires the ordinary powers under the Arrest Act (Chapter 339). A person arrested retains the protections of section 42 of the Constitution.
Section 145 — unlawful occupation
A person who, without authority, enters, occupies or uses Government land or customary land, is guilty of an offence.
First offence: a fine not exceeding K500.00 or imprisonment not exceeding 6 months.
Second or subsequent offence: a fine not exceeding K1,000.00 or imprisonment not exceeding 12 months.
Section 145(2) — the defence that is expressly removed
It is not a defence that the entry, use or occupation of the land was under a claim of right.
This is a significant provision and it is often decisive. In many parts of the criminal law an honest belief that you were entitled to do what you did is an answer. Here it is not.
The reason is practical: disputes over who is entitled to land are extremely common, and if a genuine belief in entitlement were a defence, the offence would be unenforceable. The Act separates the questions — occupation without authority is an offence, and entitlement is decided elsewhere: by the Land Courts and the Land Titles Commission for customary land, and by the ordinary courts for State land.
Do not rely on that belief to justify occupying it. Establish the entitlement first — through mediation and the Local Land Court for customary land, or through the courts for registered land. Occupying while the dispute runs exposes you to prosecution under section 145 and to ejection under subsection (3).
Section 145(3) — forcible ejection
A person who contravenes subsection (1) and refuses to leave after receiving notice to quit from the Departmental Head or the Provincial Administrator of the province in which the land is located may be forcibly ejected by a member of the Police Force.
Two conditions: a contravention of subsection (1), and a notice to quit from one of the two named officers which the person has refused to comply with. Ejection without a valid notice to quit is outside the section.
Section 146 — occupiers of acquired land
Section 146 deals with a person who (a) is in occupation of land acquired under the Act at the date of acquisition, and (b) refuses to leave within 14 days after receiving a notice to quit.
Remember that on acquisition the land vests in the State freed of all interests, and the occupier’s interest converts into a right to compensation. Where the State is not yet using the land, a section 126 licence over resumed land can allow the former occupier to stay lawfully — and the Act gives the person from whom the land was acquired first refusal of such a licence. That is worth asking for before a notice to quit issues.
Related provisions and remedies
- Division 2 of Part XXIV — prevention of disruption in land settlement schemes.
- Part XXV — fencing of land, including the allocation of costs between neighbours.
- Civil recovery of possession against a tenant or occupier of leased premises — the Summary Ejectment Act (Chapter 202).
- Section 134 — the standing duty of the Custodian for Trust Land to take action to establish, further or protect the interests of customary landowners.
Sources
- Land Act 1996 — ss 12, 126, 134, 144–146; Parts XXIV and XXV
- Summary Ejectment Act (Chapter 202)
- Arrest Act (Chapter 339)
- Land Disputes Settlement Act (Chapter 45)
- Constitution — ss 37, 42, 53
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.