19940713 TZCA Arusha

-;w-~-~ IN THE COURT OF APPEAL OF TANZANIA ' ~ \ / ·)· ,/ AT ARUSHA -. / . (CORAM: OMARz JC ~-_,_l3AMAT)HANI z ,J.A:2· An<i MN._ZAVASz J.A.) BETwEEN . '. Lr j •,, • 'THE DIRECTOR OF PUBq:c PRQSEClJ:I'IOI\S. APPELLANT AND, LEONS SILAYO NGALAI. o o o G o a e o o o RESPONDENT I (Appeal from the decision of the High Court of Tanzania ~t Arusha) I ..... ··:~ '•· (Mfalila, J.) .. ., •,• ' naten the 6th day of December, 1988 in •·· .!I · ~rimi·nal_l:_opeal fllo. · 168 of 1988 1 ~~T OF ,TEE COURT' ,. j . i ; RAMADHANI % Jc Ac ! .i ; ►.\.·:;-~,· ' This has }?een a protracte~: appeal having fir:st come before t.his ,Coutt't on' 23rci ~ovember; 199p.. :A:t last we have come· to the ·' end of~ it:h,,e roa<i. : • A .brief _his tor:y' is appropriate to pref ace · the . ·r j urlgmer:d:.; The responrient, Leol!si Si.layf"I· Ngalai, has been the Chairman of Ole4e Co-operative ':Sd)c iety Union. The committee of ,- e \'' 1:,1( '. f , . .- . . the Uni.OZ?.. vies on 22/8/1987 purporterl ter:be <iissolve,'l by an ' '; ' ord~r of~, tne Regional Co-<;>perative Officer by virtue .of his· (,. ' ·being an- kssistant Registrar l"lct: Co..;.t,peratives uncier the ... '. Co-op'eratfve si·cieties· Act, 1~82 . (Act No. 14 of 1982,) (hereinafter referr~d to as the' Act). The respon~ent ciefie~ that orner anci ..4, ' !" ,.. "" _refuse~ to hanci pver•the affairs of the Union to th~ interim : . • "'. . .. c<'.>rnmi tt~e, whichl>·was appointe~' by the saici Assi'slant Registrar. .,. ., . { ;. '] ',"""~ ( f1 •••• /2 i ·•- \ . 2 • ·~ r Because of that the appellant was chargen ar-~ convicte11 Ll 11isobeaience of that or~er c/s 169 (1) (a) of the Act. The learnerl Resi(1ent Magistrate heln that ·"whether the or~er,as ,, lawful or not is not the concern of this Court". He observed, obiter, that if the respor-11ent was aggrieven by that orner, he shoula have challenged it by appealir-g to the relevant Minister. As far as'1 the learner, Magistrate was concernen, an I j' I or~er hal'1 been given by the As'sistant Registrar ann the l 1 'responnent wilfully 1isobeye11 it. So pe founn the responnent I guilty anr, sentencen him to pay a fine of Shs. 5,000/= or 1 I serve a term of three months imprisonment. The responrlent appealen against that conviction and sentence. The High Court of Tanzania at Arusha ( MF ALILA, J. , l ~ as he then w~s) founrl the orAer of the Assistant Registrar to ' 'have been unlawful ann so all owe a the appeal acqui ting ttie . respon0ent. The Director of Public Prosecutions has preferre~ this. appeal which, as we have alreaciy saia., came to us first on 23/11/1990. At that time we stayen the appeal to await the compliance of another orA.er that we had given in Civil Appeal No. 33 of 1988 with respect to that same orner of the Assistant Registrar. The responAent sought to challenge that or(1er of the Assistar-t Registr~r by mears·of certiorari. He applie0 for leave to apply for an or~er of certiorari in Misc. Civil Application No. 168 of 1987 but the High Court of Tanzanta at Arusha (MUf\'UO, J.) refuserl leave because, in her opinion, the responrlent shoulrl have exhauste~ the remerlies un~er the Act ann that was to appeal to the relevant Minister.. The ,, \ I• 3 respon~ent appealerl to this Court and w~ returnerl it to the High Court because the time for appealing to the Minister harl expire.-'! ara so the High Court cou1r1 rieal with the matter unrier s. 18 ( 3) of the Law Reform (Fatal Accir'lents ahd MiscellaPeous Provisions) OrcHnar.ce (r·:o. 55 of 1968). This was our or.-ler in Ci~il Appeal No. 33 of 1988 anrl it was the one which mar1e us stay the hearing of this appeal. On 4th May, 1992 this appeal ca~e lp again before us. At that time MUNUO, J. ha~, on 28th August, 1991, ruler'l that the orrer of the Assistart Registrar was null anr1 void anr'! so quashea it by orAer of Certiorari. We were tolr'l that the Republic had filed a notice of appeal against that orr1er of MU~uo, J. As the question to b~ reci~erl in this appeal is the very one to be settlerl in the intenr'lerl civil appeal, namely, the lawfulness or otherwise of the orrer of the Assistant Registrar, we again r1ecir1eo to stay this appeal so that both appeals coulrl be rletermined by the same panel of this Court. On 28th October, 1993, fo'r the third occasion, this appeal came before the Court, anr1 there was a ruling of 12th May, 1993, by our brother I"'J\ZAVAS, J,-A., sitting as a single Judge i i Civil App~ication No. 8 of 1992, striking out the notice of ap~eal by the Republic against the rlecision of MUNUO, J. in Misc. Civil Application No. 168 of 1978. As such there is now only this appeal before the Court. As full submissions by both parties were hearn on 4/5/1992, the panel of this Court on 28/10/1993 cecire~ that the panel of 4/5/1992 shouln proceed to write jungmento This is the judgment • .Jr:ifi >,i;. -- 4 The D.P.P. in this apreal was representerl by Mr. Lunau, learnerl State Attorney, anrl the responrlent appearerl in person. Mr. Lundu had two grounrls of appeal. First, he sought to fault the finrlir.g of MFALILA, J. (as .. he then was) that the orner of the Assistant Registrar was unlawful:. while the same High Court had dismisserl the responrlent's application for leave to apply for an or.rler of certiorari and while an appeal therefrom was still pending. The responrlent, on the other hand, pointed out that that ground harl been overtaken by events as an order of certiorari had been issued quashing the orner of the Assistant Regi·strar. The respondent observed that there were no two conflicting decisions on the legality or otherwise of the orr~er of the Assistant Registrar.· Hnwever, the respon11ent further pointen out_ that the learnea Jurlge rlirl not quash the orrler of the Assistant Registrar, In the seconrl grounrl of appeal, Mr. Lunrlu criticised the learnerl Junge for ho~r-ing that the responaent wa-s justified in refusing to obey the ori-1er of the Assistant Registrar when the learned Junge had found that or~er to have been intra vires. _-- ....I It is perfectly true, as the responrlent has said, that the learned Jurlg~ rli<'l not quash the orrler of the Assistant Registrar and that was because ,that was not an issue before him. Again the appellant is righ~ that the learnerl Ju~ge found that or~er to have been intra vires, nevertheless he found·it unlawful anr, so voia of any o:.enience • • • •_/5 s Mr. Lunriu concerien that where a charge is nisobenience of an or~er then the vali~ity of that orrler is the first.issue to be settled. We think that is so. Even among the disciplinary forces where such prosecutions are the or~er of the day, the offence is "c1isoberlience of a lawfull command" (see Section c. 19 of the Corle of Service Discipline, First Schenule to the National Defence Act, 1966). Again at the International Military Tribunals trying war criminals after the Worlo War II at Nurnberg, the defences of superior ~rrlers a~vanceri by various accused persons were rejected because the orders they sought to rely on were not lawful. In this appeal, 9 t the High Court, the learned Judge examined s. 106 (1) of the Act uprler which the Assistant Registrar pnrported to rli ssolve the committee of which the responrient was the Chairman. The learne(i Jurlge foun<" that the Assistant Registrar rli~ not completely follow the letter of the law. The Assistant Registrar ~eht ahearl to appoint an interim committee with out consul ta ti.on with the Secr tary- 0 General. For these two omissions the learnen Junge, and rightly so, came to the opinion that the or~ers of the Assistant Registrar to rlissolve the committee, to appoint a~ interim • one and to ctemana the han~ing over were illegal.and incapable. of obe~ience. We can only associete ourselves with the learnea Ju~ge in expressing concern over the attitu0e of the Attorney-General's Chambers in Arusha. They first wrote to the respondent threatening him with prosecution and then proceeaen to draft the charges with out scrutinising al 1 the papers they .' pronuced •••• /6 J s 6 - at the. trial •.... Had they done that, they ~~uld then have gone ,'j r > to dO thei.t:' P?Unde~ duty of advising. the Assistant'Regi~tr~r . to comply wH:h:.the law. we, 1994. JUSTICE OB-APPEAL :. ' :· :·.•' ''(,,., A. S.L." RAMAOHANI JUSTICE ·OF • .APP.EAL MNZAVAS :, JUSl'ICE OF APPEAL that this is a true c_opy of the original. ',' { Mo S. 'i ,f DEPUTY RF;.G.f $'.f.Rt}}3. ,,'j I :" ., I '" • C .' I '