hamza fakihi napunda another vs republic 2023 tzhc 19160 20 july 2023

THE. UNITED. REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL APPEAL NO 43 OF 2022 (Originating from the Resident Magistrate's Court ofMtwara at Mtwara in Criminal Case No. 9 of2021) HAMZA FAKIHI NAPUNDA .......................... ................... 1st APPELLANT RAMADHANI OMARY LUTAMBI..... ................. ....... ....2nd APPELLANT VERSUS THE REPUBLIC............. ............ ...................RESPONDENT RULING 20/7/2023 LALTAIKA, J. The appellants herein HAMZA FAKIHI NAPUNDA and RAMADHANI OMARY LUTAMBI (herein after the Ist and 2nd appellants respectively or simply appellants when referred to jointly) were directors of a company called PRIDE FM RADIO LTD which owned a Radio Station in Mtwara, During their business, Labor Officers from the Labour Administration and Inspection Services Department of the Regional Labour Office for Mtwara inspected their workplace and issued a Compliance Order. The Labour Officer one SELEMANIR. SENG’ENGE exercising powers conferred upon him by the provisions of section 45 of the Labour Institutions Page 1 of 9 Act ordered the appellants to, among other things, pay salary arrears for 22 identified employees to the tune of TZS 72,202,000 within fourteen days. Needless to say, that this order was not complied with, allegedly due to financial difficulties. As a result of such noncompliance, the appellants were arraigned in the Resident Magistrate's Court of Mtwara at Mtwara charged with two counts as follows: L Disobedience of a lawful order c/s 124 of the Pena! Code Cap 16 RE 2019 2. Failure to pay monetary remuneration to employee c/s 27(1) (2) (3) and (5) read together with section 102(1) and (4) of the Employment and Labour Relations Act. When the charges were read over and explained to the appellants, they pleaded guilty to both counts. The trial court convicted them as per their own plea and proceeded to sentence them accordingly. For clarity and ease of reference, the sentence part reads as follows: "For the 1st Accused Person 1st count: To pay a fine of Tshs 200,000/= or to serve- to years jail term in default to pay the fine count: To pay a fine of Tshs 200,000/= or to serve two (2) yearsjail(term in default to pay the fine For the 2‘d Accused Person: 1st count: To pay a fine of Tshs 200,000/= or to serve to years jail term in default to pay the fine 2nd count: To pay a fine of Tshs 200,000/= or to serve two (2) yearsjail term in default to pay the fine " It is on record that the appellants paid the fines as ordered by the trial Court in the above quoted sentence. Nevertheless, and more importantly for this ruling, the trial Court after sentencing the appellants as shown above, proceeded to make the following Order Page 2.of 9- ''Order: In addition, the accused persons are ordered to pay their employees the salary areas to the tune of Tshs 72,202,00/= within seven (7) months from the date of this sentence. This is to say before or on the l!7h day ofDecember 2021 and in default to pay the said salary arrears, the Accused Persons are to undergo twelve monthsJail sentence. Aggrieved, albeit at the eleventh hour, the appellants knocked to the doors of this court, to appeal against the above order. The petition of appeal dated 5th April 2022 included an order of this court for extension of time to file an appeal out of time dated 28th February 2022. A critical eye may see that the 28th of February when the application for extension of time was granted to the 5ttt of April when the petition of appeal was filed isn't typical of a person appealing against conviction and sentence in a criminal case. It would be fair enough to state that from the date that the petition was filed to the date of this ruling, appellants indicated all manners of sloppiness and lack of diligence. Many adjournments were requested throughout the year 2022 and most of 2023 (so far) in pretext that the 1st appellant was sick and bedridden. Although this Court is committed to tenets of fair trial by ensuring that the dissatisfied appellants are accorded the right to be heard, it is also mindful of the need to ensure compliance to Court orders. It should be noted that the appellants had been ordered to pay salary arrears to the tune of TZS72,202,00/- by the 15th day of December 2021. This was not done. The appellants proceeded to enjoy the festive season until February 2022 when their Advocate Mr, Stephen Lekey successfully obtained leave to file the appeal out of time as alluded to above. Page 3. of 9 IMr, Enosh Gabriel Kigoryo, the learned State Attorney who initially handled the appeal clearly told this court that as far as he knew, the appellants were supposed to be coming from prison as the seven months they were given had lapsed since December 15th, 2021. Premised on the above, when this appeal was called on for hearing on 6/6/2023 this court's patience had deteriorated significantly. It made it clear that the matter was touching upon the fabrics of the rule of law. The appellants were advised to pay the money as ordered by the trial court within a month or go to jail in the exact terms of the trial court. Asked whether, upon hearing the court's position in black and white the appellants thought the presiding judge needed to recuse himself, the first appellant responded to the positive. He proceeded to write a letter dated 6th June 2023. The letter provides in part as follows: "Z am writing to ask you Hon. £ LALTAfKA, J. to withdraw from the Criminal'appeal No 43 of2022, This has been necessitated by my belief that I will not be getting a fair trial if this case continues to be heard before you, your Honor. As you have stated it yourself that you have other information about this case- which may influence your judgement T also fear that might be the case, Those information were (sic!) one sided given to you by Mr. Kigoryo (Counsel for the Republic) on the pretext that the case has public interest. Among those information is that you have information on our financial capabilities and that it needs only some force from the court side for us to pay, Another information is your allusion that the public demands we are taken tojail." In line The Code of Conduct and Ethics for Judicial officers, 2020, GN. No. 1001 published on 20/11/2020, I waited patiently for the parties or their respective counsel to address me on such a request for Page 4 of 9 recusal and produce tangible evidence to allow me to make an informed decision. This never happened so I really should not discuss the issue of recusal further. I can only say in passing that the learned counsel have displayed high level of discerning wisdom in realizing that the invitation for considering recusal wasn't what it said it was. It was more of a means to jumpstart the discussion to a higher level. As critical thinkers, like most learned counsel, they quickly realized that they were sailing against the wind. Back to the matter at hand, Lo and behold! On the 19/07/2023 miracles happened. The second appellant whom the learned counsel had repeatedly stated that he was too sick to leave Dar es Salaam entered appearance. As if that is not enough, their Advocate Mr. Lekey announced that all tire money as ordered by the trial court had been paid making the request for recusal irrelevant:or rather "overtaken by events." Since the announcement by Mr. Lekey came as a surprise and the appellants looked rather fearful (including the second appellant who had been an adherent attendant), I tasked the learned State Attorneys present to go through all pay-in slips, proof of payment and receipts so as to advice this court on such compliance. Earlier today, the learned State Attorneys Melchior Humbano & Atuganile Nsajigwa reported that they had carefully gone through all the documents and are satisfied that the court order had, by and large, been complied with. They indicated however that the total sum of money paid to the 22 individuals was 71,201,400/ “ and not 72,202,00/ - as the order Page 5 of 9 of the court reads. The explanation given by the learned Advocate Mr, Lekey on the difference leaves no doubt that the difference is an accounting error going back to the Compliance Order. Such errors are common in accounting. In line with the principle de minimis non curat /e^the same should not be permitted to derail this court. Having dispassionately examined the court records including proof of payment I have a few lines to pen down before .1 dispose of the matter. As a storytelling enthusiast, I will start with a story. Once upon a time, God, the Almighty, was in charge of day-to-day activities on earth. He personally oversaw the entire life of His subjects, human beings. In case of a conflict, He would perform the roles of the investigator, the prosecutor, and the judge all by Himself. To deliver his judgement, He would travel (with thousands of angels in a motorcade I would imagine), from heaven through the skies to the planet earth. Seeing Him, perpetrators would often be too afraid. Nevertheless, they would be invited to tell their part of the story, that is to say, to exercise their right to be heard, before the Almighty delivered His Judgement on a particular case ranging from domestic misunderstandings to murder. This is how, as recorded in scriptures, the first ever murder case was adjudged. There were no prosecutors or judges as we know them today. At some point, so the story goes, God the almighty1 thought it wise to allow human beings to govern themselves. The second epoch was born. Kings, in ail their might, took over from the merciful God. Many if not most of the kings ruled over their subject with an iron fist, ruthlessly. Law was Page 6 of 9 what they thought and stated that it was. Their wish was a command to their subjects, both literally and figuratively. As a. result of this cruelty and lack of objectivity people lost faith in the kings and shifted their allegiance to religious leaders. The third epoch started. These new leaders were not as cruel. They used their power sparingly. Their objectivity was also difficult to fault because they would claim that their authority was handed down from heaven and therefore their decisions were inspired. Promises that one would be allowed to heaven for obeying their rule were in unlimited supply. To cut the long story short, we now live in the fourth epoch. Needless to say, that although some elements of each of the above three epochs are still with us, humanity has, unapologeticaliy embraced the rule of law. The Rule of Law is now the "supreme" ruler. In this era, no one is above the law. Kings, priests, diviners, peasants and the man on the street, are the same before the law. The reason I have employed storytelling (and some degree of creative writing) to preface my analysis is simple: I want to be as clear as possible with these two messages: One; no one is above the law. Two; Court orders must be obeyed no matter to whom they are directed and what inconvenience they cause. The first point has clearly been made, by the art of storytelling, in the preceding paragraphs. The rest of this ruling is by and large on the second point. I do not want to say that the appellants wouldn't have complied with the trial court's order had it not been the change of tone of this court on Page 7 of 9 Tuesday the 6th of June 2023 including, as appears in the first appellant's letter albeit with some exaggeration, allusion that the public demanded that the appellants were are taken to jail. All I want to say is that court orders must be complied with. In the words of Romer L.J. in HADKINSON V. HADKINSOH [1952] 2 All ER 567 "It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction, to obey it unless and until - that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void." It cannot be overemphasized that disobedience of court Orders undermines public confidence in our courts and the legal system in general. This court cannot allow this to happen because it would be tantamount to encouraging parties, whenever they feel that a particular court order is not "'valid" negate their compliance obligation and run to this court in order to somehow circumvent the order, In SUBRATA ROY SAHARA V. UNION OF INDIA (2014) 8 SCC 470, the Supreme Court of India stated as follows: "Disobedience of orders of a court strikes at the very root of the rule of law which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is ho answer for noncompiiance of a judicial order. Judicial orders cannot be permitted to be circumvented Tanzanians have consistently asserted their faith in the judiciary as the ultimate custodian of their rights. They believe that once they knock on the doors of a court of justice, they will receive the services they need and that court orders will be obeyed. A recent study by the Research on Poverty Page 8 of 9 Alleviation (REPOA), an independent and non-profit organization provides that the level of satisfaction of users of the services has jumped from 78 per cent in 2019 to 88 per cent in 2023. Whether one is a director of a famous radio station or a poor peasant from Nanjilinji, a remote village in the vast region of Lindi, Southern Tanzania, the law applies equally to them. They must obey court orders without expecting any exception. As they say in Kiswahili sheria nimsumeno. All said and done, this appeal is hereby marked withdrawn as prayed for byjhej^arned counsel for the appellants. I. LALTAlKA JUDGE 20/7/2023 Ruling delivered under my hand and the seal of this Court this 20th day of July 2023 in the presence of Melchior Hurubano 8i Atuganile Nsajigwa learned State Attorneys for the respondent, Mr. Stephen Lekey, learned Advocates for the appellants and the appellants. 1.1ALTAIKA JUDGE 20/7/2023 Page 9 of 9