19700518 TZHC Dar es salaam2

Criminal Form N•. 33 (Approved by the High Court Judgment or Order on Appeal (s. 320) under Section 352 of the Criminal Proelure Cole). 4 Sma r IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION CRIMINAL APPEAL No ....... 149 ........... OF 1920 Original Criminal Case No .............. 17 ...................... of 19.7.0. of the District Court ........ District at ......... Dar..s..&i1aani before ........ jchO1a ....... Esq., Resident Magistrateff)i9ftiet-Me6ftmft (Original Accused) versus THEREPUBLIC .......................................................................................... Respondent (Original Prosecutor) CHARGE: Contempt of court contrary to section 114 (a) of the Penal Code, Cap. 16 of the Laws. JUDGMENT1ORDE&.. WAKAME,Ag.3. The Ir es Salaam District Court zunnarily convicted the appellant of contempt of court and sentenced him to a rine of S1. 400/- or one month' a imprisonment He is appealing against both the convictIon and sentence * ThO alleged facts of the case are best set out.in full: "This offence toOk place within the court's view. * The accused entered into court inforinai]r without taking cognizance of the court and surveyed around. After satisfying himself - an this time still standing right in front of the court - the accused turned around and talked to some other person that was .outsldo the court 0 P Dsm 10224/12-65/60mJ4up 2.. * while the accused person himself was still in court. All this time the couri was listening to a vitnes5. The court called on the accused and asked him what the problem was and instead of the accused answering verbally he just nodded and threw his head up as to question the authority of the person questioning - court. Our courts of law must be held in the highest esteem by all persons for the benefit and welfare of Tanzanian society. I take offencesof this nature very seriously. The accused has turned out to be a very responsible person in society and this shows that he ought to have 1own better and not to come to court with his office disrespecting everybody that is in court. He is the citizen. The other citizens who do not hold his position and educatiOn would follow and copy. it is no defence for him to say that he has never been in court before because such conduct as he portrayed is unbecing even in an ordinary office. I exercise my powers under section 114 (a) and fine the accused 400/- or one month imprisonment in default, the fine to be paid within one day The fIne was paid. The learned counsel for the appellant urged that the learned magistrate short- circuited the procedure, and argued that a. plea of not guilty should have been recorded, evidence heard, and a finding made on the evidence adduced. He suggested that the case should have been heard by another magistrate, and said summary proceedings should be used only as a last resort. I most say at the outset that I agree with the learned counsel for the appellant that summary proceedings for contempt of court should be rarely employed. The court has power to commit summarily for contempt, but it must always be remembered that this power allows an exceptional, though in appropriate cases desirable, interference with individual liberty, so it must be used only rarely and very cautiously. People coming to our temples of justice for whatever legitimate reason must feel free to do so and should not be made to fear that the slightest lapse from accepted behaviour will be visited with punishment without their being afforded the opportunIty to explain themselves. However., having said this, it must be remembered that summary proceedings in a situation like the one revealed by the facts set out by the learned magitrate in the instant case is allowed, and the whole point of such a provision is to "short- circuit" the usual procedure, to use the learned counsel for the . appellant' s apt expression. The law allows the court to Ittake cognizance of the offence and sentence the offender". As the learned trial magistrate observed, the appellant' s conduct was "unbecoming even in an ordinary off ic&'. And there can be no argument of an 1 ,p L 4 *1 overt finding of mona rca. The appellant is not a privileged comxnentatoron his actions. His behaviour was clearly contemptiious, and he cannot be heard to say that he did ntj nierr'offence. Perh.ps one may be forgiven for/forming an impress;on of the appellants attitude fromb&e little note he most probably addressed h:thiseif to thitnial court and enclosed in an envelope bearing the iark of Howse & Mcaeorge, of which be is the manager. The chit asking for certified proceedings is written on a casual M. & B. drug advertising note, the type containd in drug house diaries. The request could have been written on less informal paper. The failure td frame a formal charge and set out the particulars cannot reasonably be said to be fatal in the present case, it is a procedural formality which does not affect the justice of the case. I find that the conviction cannot be faulted, and accordingly I dismiss the appeal against it. With respect, I agree with the learned counel for the appellant that the maximum punishment for an offence. vth.ich is what the appellant got, must be imposed only in extreme cases., in the present instance for the most contemptuous behaviour, which the present appellant s cannot be said to have been. The fine of Ss. 400/- 9 which the appellant has already paid, is therefore reduced to S. 250/-. The difference of Sha, 150/- should therefore be refunded to the appellant. Save for this variation, the appeal is dismissed.. Delivered in Court at Dan es Saiaam this 18th day of May, .1970; (Sgd.) L. M. MAKAME. ACTING ,$tJL