deus kasharu another vs edwin edward 2023 tzhc 17997 29 may 2023

IN THE HIGH COURT OF TANZANIA

BUKOBA DISTRICT REGISTRY

AT BUKOBA CRIMINAL APPEAL NO. 1 OF 2023 (Arising from Bukoba District Court in Criminal Appeal No. 38 of2021) DEUS KASHARU........ ..................................... 1st APPELLANT JONATHANKASHARU .................................... 2NDAPPELLANT

VERSUS EDWIN EDWARD...... ....................................... RESPONDENT

JUDGEMENT 23rd May 2023 & 29th May 2023 K. T. R. MTEULE, J. This Appeal arises from the decision issued by Bukoba District Court in Criminal Appeal No. 38 of 2021, originating from Gera Primary Court in Misenyi in Criminal Case No. 38 of 2021. Before Gera Primary Court, the Appellants were charged with disobedience of a lawful order contrary to Section 124 of the Penal Code, Cap 16 of RE 2019. They were alleged to have disobeyed an order issued by the District Land and Housing Tribunal of Bukoba on 20th April 2021 which required the children who were expelled from the suite premises to return therein until the pending suit is finally determined. The Appellants I i were found guilty by Gera Primary Court in Misenyi where the 1st Appellant was discharged under the Probation of Offenders Ordinance, Cap 247 for a period of one year and the second Appellant sentenced to community Service for a period of six months. The genesis of the matter can be traced dispute between the 2nd Appellant and the Respondent before the District Land and Housing Tribunal of Bukoba. While the matter was still pending, on 20th April 2021 the Tribunal issued an order directing the children who were expelled from the suit premises to return to the house pending the final determination of the land dispute. This order was executed by the tribunal on 03rd June 2021 after appointing a Court broker

named MAJEMAJE Auction Mart and Court Brokers who conducted the execution. It was alleged by the respondent that in the execution process, the 2nd appellant and 1st appellant with common intention refused to allow the children to dwell in the House when the MAJEMAJE auction mart were executing the tribunal order. A criminal case was lodged in the Primary Court of Gera in Misenyi and after the trial, the Appellants were found i i guilty of disobeying the order and were both convicted. The first Appellant wa$ sentenced to a probation order for one year while the ;i second Respondent was sentenced to community Service for six months under the Community Service Act 2002, Act No 6 of 2002. The conviction and sentence aggrieved the Appellants who appealed to District Court. The District Court upheld the conviction and the sentence of the Primary Court on the reason that the offence was proved beyond reasonable doubt. Aggrieved by the decision of the District Court, the appellants preferred this second appeal with the following grounds; - i. The lower Court erred in law to convict the Appellants with disobedience of the order issued by Bukoba District Land and Housing Tribunal as the order was not to vacate from the house but the return of the children to the disputed house. ii. That the 1st Appellant was wrongly convicted to serve a twelve­ months sentence without being confirmed by

the District Court. iii. That the 1st appellant was a privy to the order of Bukoba District Land and Housing Tribunal thus his conviction was unlawful. iv. That; there was no evidence to prove that the appellants jointly did chase away the children on 23rd May 2021 as held by the ■I first appellate Court. v. That the appellant's defense was not properly considered. The appeal was heard orally. The Appellants were represented by Advocate A. K. Chamani while Advocate Lameck John Erasto appeared for the Respondents. Supporting the appeal, Advocate Chamani submitted on ground No. 1 separately and combined grounds No. 2 & 3, and further combined grounds 4 & 5. Before embarking on the grounds of Appeal, Advocate Chamani raised a point of law which in his view cap be raised at any point. Under this point of law, he questioned the sentence procedure referring to the guidance givdn by the Court of Appeal in the case of Yusuph Shaban Luhumba versus Happyness John and Others, Civil Application No. 304/14 of 2022 at Dar es Salaam. According to Advocate Chamani, in this case, it was the position of the Court that contempt of the Court is; not punishable by immediate imprisonment, but the offender neecjs to be given an option of paying fine. He challenged the sentence in the instant matter where the Applicants were sentenced upfront without being given an opportunity to pay fine. Concerning

the first ground of Appeal, Advocate Chamani submitted that the appellants never disobeyed the order of the District Land and Housing Tribunal since the order was not for vacation from the house, but it was for the return of the children in the said house. He referred to the said decision dated 20th April 2021 which was admitted as Exhibit SMI which was to the effect that the children who were chased away by the 2nd Appellant Jonathan Kashala be returned to the disputed premise until when the original suit is determined. He further referred to Exhibit SM 3 which was a letter that appoint Court Broker Majemaje Auction Mart to execute the order. In his interpretation the letter indicates that the Court Broker was to implement the order of 20th May 2021 by returning the children into the disputed house. According to Mr. Chamani the respondent misled the trial Court by giving evidence which contradicted the said order. He gave an example of page 4 of the trial Court proceedings (handwritten) indicating that the appellants were to vacate the house for the children. He further referred to page 5, on the 4th line from the end, stating that the respondent misled the Court by saying that even Majemaje Court Broker was ordered to evict the appellants while there was no eviction order. i He questioned the trial Magistrate for having not given reasons of ignoring the defense of the

appellants which is vivid at page 7 of the proceedings that the second appellant said that the order of the tribunal did not mean to vacate, but to allow the children to enter in the house. According to Advocate Chamani, this was against the position in the case of Goodlack Kyando v. Republic, 2006 TLR 363 at 367 which stated that any witness is entitled to credence and his evidence must be believed unless there are good reasons for not believing it. Mr. Chamani submitted that even the evidence of the witness Anna Kanwa (mother of the children) as seen at page 31 of the proceedings on the alleged date of commission of the offence on 23/05/2021, the children were in school but at page 5 of the typed judgment the Magistrate doubted the defense evidence of the appellant by saying that they wanted to convince the Court that the tribunal did not make that order without stating what does the order say. Regarding ground 2 & 3, Mr. Chamani submitted that the 1st appellant did not have any case in the Land tribunal but he was included in the criminal case. According to him, contempt of Court is guided by the case of Wilson Kilanga vs. Gregory Rubahindura and others, HC, l I. ; . Bukoba, PC Criminal Appeal No. 01 of 2021 at page 5, in the 3rd line from above where the Hon. Judge found it unusual for the appellant in that case to sue the persons who were not part in the District Land and

Housing Tribunal. According to him the order of the tribunal is not issued to specific persons or to whoever is concerned. Advocate Chamani challenged the 12 months sentence which was issued without being confirmed by the District Court which in his view, renders the judgement not properly procured and the sentence not within the power of the Primary Court Magistrate. Concerning grounds 4 and 5 argued together, Mr. Chamani submitted that there was no evidence from the Respondent to prove that on 23/04/2021, the appellants teamed together to chase away the children as claimed by the 1st appellate Court. He believes that the respondent did not prove mens rea and actus reus. He thus prayed for this Court to allow this appeal and set aside the orders of the subordinate Courts and find that the appellants never committed the offence they were charged with. In reply Advocate Lameck started with the point of law on the option of I paying a fine rather than sentence. He faulted the applicability of the case of Yusuph Shaban Luhumba, cited by the appellant's Counsel on the ground that in the instant case, the charge was on disobedience of a lawful order contrary to S. 124 of the penal Code which does not give an option of fine sentence but only 1 year imprisonment. In his view, it is wrong to invoke the holding of this case which had a different scenario from the instant case since it

is not even shown in that case if the Accused persons were charged with offence contrary to S. 124 of the Penal Code. Submitting on the 1st ground of the appeal, Advocate Lameck disputed the assertion that the appellants did not disobey the order on the ground that all the prosecution evidence in the trial court indicated that the appellants on the date of implementing the order, refused to accept the children and chased them away. According to him, it is noted that the 2nd Appellant admitted the existence of the order but in his interpretation, he added that he did not know how he should accept them as stated at the first pages of the proceedings. He referred to Exhibit SM, which in his opinion was not challenged by the 2nd 8 Appellant neither was it cross examined or challenged, something which j justifies its correctness according to him. i Advocate Lameck submitted that one of the children who was to be returned into the house did testify after being examined by the Court on his capacity to testify, and he repeated that they were chased away from their house contrary to the order of the Court. He is of the view that the case of Goodlack Kyando (supra) that requires credence of the Court, was observed since it is obvious that the witness deceived the Court by saying that the children were not there, while the 2nd appellant was to handle the house to the children to stay

until the case is finalized. He added that the evidence of PW 4 (child) or SM 4, Prisca Paul was never challenged and that the evidence of PW1 was supported by all the prosecution witnesses. Advocate Lameck raised a point of law that when two Courts concurrently make similar findings, then the 2nd appellate Court should not vary the position unless there are some exception circumstances. He cited the case of Amratlal Damora Maltasel & Another vs. A. H. Jariwallar T/A Zanzibar Hotel, TLR 31 and stated that in this case the Court confirmed the position there should be no departure from the i 1 previous two lower courts unless there is a very reasonable cause. He added the Case of Augustino Peter Mmasi vs. tausi Selemani (2016) TLS L R 135 where the holding said that since the trial judge accepted the Respondent's testimony, the appellate Court cannot interfere unless there are circumstances on the record calling for reassessment of Respondent's credibility. He added that even the trial Magistrate tasted the demeanor of the witnesses. Regarding the allegation that the 1st appellant was not a party in the District Land and Housing tribunal Advocate Lameck agreed but he is of opinion that he become a party by forming common intention in preventing the implementation of the lawful order. In justifying the circumstances which may create common intention, Advocate Lameck cited the case

of Republic vs. Tabulayenko s/o Kilya, (1943) Vol. 10 E. A. Court of appeal (defuncto), at page 51 where the Court held that to constitute common intension the actions of the parties are relevant. Advocate Lameck denied the applicability of the case of Wilson Kilanga (supra) cited by the appellants' Counsel, submitting that it is distinguishable as it concerned an order prohibiting entry into a land and make development while in this case, there was an order to allow children to enter their house and therefore it involves life of children j while in the cited case it was merely a matter of cultivating the land. He thus prayed for this Court to find that all the factors to convict the appellants were correctly considered by the Primary Court and blessed by the 1st Appellate Court and the appeal be dismissed for want of merits. Advocate Chamani made a rejoinder to counter respondent's argument regarding the decision issued in Luh um ba's Case (su p ra), regarding the argument that the sentence did not give fine option, he said that in this case the Court considered the interpretation of Section 124 of the Pena! Code in making its findings, as stated at page 12 of that decision, 9th line from above. According to him, the Hon Judges had Section 124 in their mind when they were making the holding. Concerning non-interference of facts in concurrent findings, by the lower Courts, Mr.

Chamani submitted that there was Misinterpretation between the parties regarding the order issued by the District Land and Housing Tribunal. He is of the view there is a need of this Court to vary or interfere the impugned decision. About the assertion that the 2nd Respondent agreed to the order, he submitted that this was not in question, but what was in dispute is the interpretation of the said order. He reiterated that Anna Kanwa is aged 40 and she said the children were not present that's why credence to ! j her evidence is necessary. Regarding the application of the doctrine of common intension Advocate Chamani submitted that there was no evidence to indicate such common intension. He added that if the same was present, the 1st Appellant should have been sued under S. 22 (1) (d) & (c) the of the Penal Code. He insisted that inclusion of the 1st appellant is an abuse of Court process. He thus prayed for the appeal to be allowed. Having heard parties' submissions, and after going through the records of the two lower courts this Court is called upon to determine as to whether the appellants adduced good grounds justify interference with the decisions in Criminal Appeal No. 38 of 2021. In answering the above issues, all the grounds of appeal will be considered. Before I embark to the main Appeal, I find worth to address the point of law raised by Mr. Chamani concerning the

sentencing procedure. He averred that the 1st Appellate Court erred in law by failing to offer an option of paying fine. This assertion is disputed by Advocate Lameck who; argued that Section 124 of the Penal Code does not give fine option. In janswering this, the relevant provision is Section 124 of | I the Penal Code. i| To get a right guidance in resolving this contention, I reproduce the provision of Section 124 of the Penal Code which provides; - 11124. A person who disobeys any order, warrant or command duly made, issued or given by a court, an officer or person acting in any public capacity and duly authorized in that behalf, is guilty of an offence and is liable, unless any other penalty or mode or proceeding is expressly prescribed in respect of that disobedience, to imprisonment for two years." The above provision generally provides for imprisonment except where the respective disobedience is expressly assigned a different i punishment. It is not shown whether disobedience of the order of District Land and Housing Tribunal has a different punishment expressly provided for. Nevertheless, case laws have been encouraging alternative punishments to custodial imprisonment in civil court contempt. Advocate Chaman cited the cases of Yusuph Shaban Luhumba vs. Happyness John & 3 Others, Civil Application No. 304/14 of 2022, CAT, at Dar es salaam, (unreported) citing the case

of Mary Joseph v. Rachel Zephania, Miscellaneous Land Application No. 37 of 2020, (High Court, Mwanza, unreported) where it was held thus; - "The punitive jurisdiction of the court to punish for contempt is based upon the fundamental principle that it is for the good of the public and the parties that, such orders should not be despised or slighted. Civil contempt does not require immediate imprisonment, for it is also punishable by the imposition of a fine. The custodial penalty comes in when the person found to have failed to show cause has failed to pay fine". Again, in the case of Tabu Fikwa v. Republic [1988] TLR 48 it was stated; - "The application of the common law principle must be subject to section 27 (3 ) 101 of the Penai Code which says that a person liable to imprisonment may be sentenced to pay a fine in addition to, or instead of imprisonment". From the above cited cases, it is a legal stand by the Court Appeal of Tanzania Courts are invited to consider alternative punishment, upon conviction. The issue now is whether the Trial Court failed to give the Appellants alternative punishment. The failure to give alternative punishment was not raised in the District Court. However, I will determine it since it is a point of law which can be dealt with at any stage as submitted by Advocate Chamani. It has to be noted that sentencing is a discretionary power so long

as such power does not go below the minimum or above the maximum if provided by the law. When a judicial officer is exercising the discretion to sentence, the court is left to choose the appropriate punishment to impose on convicted offenders depending on the circumstances of each case. Generally, the exercise of this discretion depends on the need to be done judiciously. Alternative Punishment is not necessary a fine. The Magistrate chose a probation and a community service. In my view, these were alternative sentences which were within a discretionary power which was within her ambit. I do not agree with Mr. Chamani the position confirmed in Luhumba's Case (supra), binds the trial court to confine the sentence on only fine. What was confirmed, was a fine a alternative to custodial sentence. In the instant matter, there was no custodial sentence but a probation and a community service. The Court in Luhumbu's case only discouraged outright custodial sentence in the offences of contempt of court while in this matter, there was no 15 custodial sentence. From this reasoning, I find Mr. Chaman's point of i I i ;i law concerning! failure to offer fine option to be unfounded. i.‘ I now address the first ground of appeal, that the lower Court erred in law in convicting the Appellants for disobedience of lawfully order. Advocate Chamani alluded those appellants never disobeyed the

order of the tribunal since the order was not for vacation from the house, but it was for the return of the children in the house. While Advocate Lameck averred that the appellants disobey the tribunal order by refusing to receive children Advocate Chamani insisted that the disputed question was misinterpretation of an order and not the Order itself. In the first appellate court, the Magistrate was satisfied that what was proved in the Primary Court was that both Appellants chased away the children who were intended by the order of the DLHT to be returned to the house. He referred to the evidences of SMI, SM2, SM3 and SM4 given in the trial court which confirmed that the children were refused access to the house. It was on this basis that the first appellate court was satisfied that although the appellants were not ordered to vacate the house, there was evidence that they did chase the children on 23 April 2021. th e First appellate court did not give the details of the ij evidence of SMI, SM2, SM3 and SM4. With eager to know the details I had to go through the record of the Primary Court. I could not get that witness identification as SMI, SM2, SM3 and SM4. However, there were 4 witnesses who testifies for the prosecution. I have read the contents of their evidence; they all focus on the eviction of the Appellants during the execution of the order of the DLHT. No where was it

testified that the appellants chased away the children on 24th April 2021.1 particularly refer to the evidence of Flora Paulo, who appeared as the second witness in the primary court, uttered the following words in her testimony: "... Waliwaambia watoke ndani kusudi niingie na Watoto wangu walikataa walisema kuwa hawatoki humu walisema wakae nao nilisema sitaki. Nilisema sitaki nilisema siwezi kuingia wakiwemo" The said Flora Paulo appears to be the mother of the children and what she stated in Kiswahili meant that they were told to vacate the house but they refused, and she was told to allow the children to stay with them but she refused . Further to that the first witness in the Primary court stated that Maje Maje Court Brokers came to remove the appellants from the house. 17 It is apparent irrthe order of the DLHT that what was to be done was to I' ' have the children returned in the house and not for the appellants to !■; I i vacate the house for the children. For clarity, I reproduce the contents of the order hereunder:- "Baraza linatoa amri kwamba Watoto waliofukuzwa na mwombaji warudi kwenye eneo la mgogoro mpaka pale kesi ya msingi itakaposikilizwa na kuamriwa" The above contents of the order are very clear that it was for the return of the children and not the eviction of the appellants. And this is not in dispute. All what MajeMaje Court Broke was to evict the

appellants and this is according to the evidence of the first witness in the primary court. Since, there has been no direct evidence in the primary Court which showed that after the issuance of the order of the DLHT the Appellants refused to accept the children in the house, then I agree with Advocate Chamani that there was a misinterpretation of the order in the District Court, in the Primary Court and the executing court broker. They focused on eviction rather than bringing the children in the house as per the order of the DLHT. Could the Respondent intended the order of the DLHT to have effect of evicting the Appellants, he should have sought such order. This; being the case, ground one is answered that there was !| no disobedience to the lawful order as the order was not to vacate the I suit premised but the return of the children therein and there was no proof that the appellants refused such return. I therefore differ with both the trail court and the first appellate court which uphel the conviction and the sentence. I The 2nd and 3r^grounds concerned the non-confirmation of the sentence i of more than one year against the 1st Appellant and his wrong conviction due to his noninvolvement in the case in the DLHT which issued the order alleged to have been disobeyed. Having found that the conviction i was not proper in the Primary Court, automatically, there was no

valid sentence to be confirmed. These two grounds dissolve with the finding in the first ground. In grounds 4 and 5 the Appellant is asserts that there was no prove that the jointly chased the children on 23 April 2021 and that the Appellants defense was not properly considered. The findings in the first ground have already confirmed that there was no sufficient evidence in the Primary Court which confirmed the offence of disobeying the order of the DLHT. Could the defense evidence taken into account, the Primary i Court and the ’District Court could have found that the court broker was executing the Iorder of the DLHT by the eviction of the Appellants j instead of returning the children into the suit house. Due to what is found in the first ground, the 4th and the 5th grounds have merit. I am aware of Mr. Lameck's argument that courts should refrain from interfering with a decision where two lower courts come with similar findings. I totally agree with him as supported by the position in Amratlal Damora Maltasel & Another vs. A. H. Jariwallar T/A Zanzibar Hotel, TLR 31. I further agree that in exceptional circumstances, such interference is necessary. In the instant case, the errors in the lower courts are so apparent that interference is necessary. From the foregoing reasons, I allow the appeal. I hereby quash and set aside the decision of the District Court and the conviction and sentence issued in the Primary Court Judgment. The appellants are set free unless held for another offence. It is so ordered. Dated at Dar es Salaam this 29th day of May 2023.

TARINA REVOCATI MTEULE

JUDGE 29/05/2023 20