20160930 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO 138 OF 2015 {Original Cr Case No 35 of 2013 of Mkuranga District Court, at Mkuranga} ASHA ULAYA .........................................APPELANT

VERSUS THE REPUBLIC ....................................... RESPONDENT

JUDGMENT 24/8/2016 & 30/9/2016 MZUNA, J.: Asha Ulaya has lodged this appeal against the conviction and sentence of two years imprisonment imposed on her upon conviction for the offence of Disobedience of Lawful order c/s 124 of the Penal code. She was alleged to have disobeyed an order issued by the District Land and Housing tribunal for Mkuranga restraining her not to undertake construction in the suit premise till final determination of the appeal. The offence is alleged to have been committed on 4th day of June, 2013 at about 17 .30 hrs at Mkuranga, within Mkuranga District. The appellant who was defended by M/s Kinyaka learned counsel lodged six grounds of appeal in this appeal. However, she opted to drop three, that is grounds No. 3, 4, and 5 leaving other three, being grounds No. 1, 2 and 6. . 1 On 24th August, 2016 when the appeal came for hearing, Mr. Katuli, the learned Senior State Attorney did not oppose it. The facts giving rise to this appeal are very brief and just within a narrow compass. PW1 Celestine Philip Malya bought a house and therefore owns adjoining plots to that of the appellant. There was opened a Land case No 31 of 2013 at the Tribunal between them, the complainant being PW1. The Tribunal issued a stop order on 4th June, 2014 directing her not to continue with the construction pending the determination of the case. The order was attached on the house

but ignored it and said in a joke that; 'Hauna cha makaratasi Ngoma iende Juut-which -literally means that mere __ papers is nothing instead the matter should go for further steps. Apparently, the order which is said to have been served and disobeyed was served on her together with summons by PW2 Athuman Seleman Nyumba, the Mkuranga District Council Militia man. That was on 29th May, 2013 and she signed before attaching them on the wall of the building. It was tendered in court as exhibit Pl. During her defence, the appellant said the dispute on ownership was resolved at the Ward Tribunal where she won and was handled her land. She was arrested on the day she just came from Town and was away for some time. That even the house she was told to stop building had never been developed. She said further that she never knew the contents of the order she was served with. 2 :J, That she was not aware if there was any appeal lodged by the said Malya and that she was arrested only after a day she was served with the said order. She labeled this case to be a fictitious one. In her judgment, the trial Magistrate framed one issue, that is whether the appellant disobeyed a lawful order as alleged? She then found, after citing the relevant provision of the law, that the appellant disobeyed the said order, the contents of which read as follows; "The District Land and Housing Tribunal of

Mkuranga orders for the status quo to be maintained at the plot in_jssue_pending-the-hearing--and-fina1-- --- -- _ _ _ _J ------------------ - - -·- deter11J}IJf:1_tfQO_gf_the _miscellaneous-application-inter~patties. ,r -- She further found that failure to cross examine PW1 on the alleged uttered words showing disrespect for the order, amounted to an admission. The learned counsel in the filed appeal grounds and in her submission in court, has capitalized on the fact that; 1. The purported order alleged to have been disobeyed was an ex parte interim order which was pronounced by the District Land and Housing Tribunal in her absence.

2. That the evidence fall short of proving the charge beyond all reasonable doubt.

3. That the District court of Mkuranga was not seized with powers to adjudicate upon the matter which was issued by the District Land and Housing tribunal of Mkuranga in Application No. 31 of 2013. 3 ., .:.=--. ____ I!. In the first ground, it is argued by M/ Kinyaka the learned counsel that the order alleged to have been disobeyed was issued ex parte. This argument was ruled out by Mr. Katuli, the learned Senior State Attorney saying that it is unfounded as there was sufficient evidence including during the preliminary hearing that indeed the appellant was served with that order. This argument with due respect to the learned defence counsel lacks merit. It is bound to fail. In the third ground it is argued that since the order alleged to have -been -disobeyed- Game- -from--the_ Distrlct _l.~nq _9_r!d _-~ousing Tribunal, that similary it ought t6 tiave- been tried in that same tribunal not in the normal court. This argument was ruled out by the learned Senior State Attorney He says, and quite right to my view, that the question of jurisdiction does not arise as Section 124 of the Penal code is on the disobedience of any lawful order. This argument equally fails. On the second ground, M/s Kinyaka learned counsel argued that there was no sufficient evidence to convict as the court relied on the evidence of PWl while the material evidence was that of PW2 who purports to have .

I affixed the order to the wall but which is not corroborated. That it was quite impossible that the order of 4th June could have been annexed with the summons of 31 st May, 2013. Similarly that the court relied on the evidence which was not testified as there was no witness who averred that the appellant was building a house in disobedience of the order. Mr. Katuli the learned Senior State Attorney was also of the same view. He said that looking at the stop order which was tendered as Exh. Pl by 4 PW2 there was no evidence to show the status of the premise before that order and then after the order such that it could be said that it was disobeyed. That there was no prosecution witness who touched on that evidence and therefore the conviction cannot stand. I entirely agree with the submission of the defence counsel and the learned Senior State Attorney that the trial Magistrate never evaluated the available evidence. Reading from the evidence of PW1 and PW2, they said that the order was served on the appellant on 29th May, 2013. However, the _all~g_ec;J order is of 4th June, 2016 (see Exhibit Pl). That is practically impossible that one could be served with an order which w-as issued latter. Similarly, the memorandum of matters not in dispute shows that the appellant was served with the injunction order from the Mkuranga land Tribunal on 4th May 2013 and then arrested on 5th

May, 2013 followed by being charged in court on 6th May, 2013. There ought to have been the status of the premise when she was served with the order to when it was said she disobeyed it. The charge was not proved to the required standard of proof and this is a sufficient ground to set aside both the conviction and sentence as I hereby do. For the above stated reasons, this appeal is allowed. It is hereby ordered that the appellant be released from prison forthwith unless otherwise legally M G. MZUNA, JUDGE. 5