Edward Pembwa and Another vs Republic (HC Criminal Appeal No. 113 of 1999; HC Criminal Appeal No. 116 of 1999) [2000] TZHC 458 (16 August 2000)

IN THE HIGH COURT OF T,'\ NZA ND\ 1\T M'.,JANZA APPELLA'l'E JURISDICTION (Mwanza Registry) HIGH C0URT CRIMI NlL IU?PEAL l\ 1 t\ 113 &: 116 OF 1999 Original criminal case No. 129 of 1999 of the District Gou.rt of M1•1anza District at M1•mnza - Before ,. K. Milambo, Esq .. , District Magistrate 1., EDYJJ\RD PEMBWA 2o H/.TIBU MLI-L'i1'1ED MBOGO Q pnTL''iTS JcOCJ d000000011oa.oeo• i·}. .t·J.:J.U 1.i.'l 1 ( Originc'l.l A ccuseds) versus: THE REPUBLIC • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • PR(i,SECUTOR (Original Prosecutor) JUDGEME!JT MREMA 2 JUDGE Edward Pembwa and H3tibu Mohamed :Mbeiso are appellants before this court. Edward filed H.c. criminal Appeal No 113/1999 and Hatibu Mohamed filed HC. criminal Appeal No. 116/1999. Both the 1,ppellants and one .Shaban Mo1mmed were charged with preventing or obstructing service or execution of process c/s 114A-(b) of _the P 1 ::mal Code. The learned trial District Magistrate Mr. A .• K. Milambo was apparently • satisfied on the evidence by the prosecution wi tnesse,s that the accused persons were guilty of resisting the order issued by the District Court in respect of D/C Civil case 1 ?0.18/1996 which required the court Broker, one Makali Auction Mart and court Brokers, Mwanza, . . to evict and remove the named persons in the EVICTICN ORDER and ORDER FOR DEMOLITION, dated 7th day of October, 1996. Consequent to that finding the trial magi.strate sentenced Edward pembwa (1st accused) and Sbabani Mohamed (2nd accused) to pay a fine in the sum of shs.40,000/- each and in default each was to serve six ( 6) months imprisonment., The third accused Hatibu Mohamed Mbogo was sentenced to twelve ( )2) months imprisonment - with no option to pay fine. Now ar;grieved by the conviction the 1st accused and third accused v1ho, conviniently for the purpose of this appeal, r-1re referred to as the 1st and second appellant respectively,

.. 2 have preferred this appeal to this courto The second appellant (I-Iatibu) has also appealed op;ainst the sentence on the ground that the sentence was imposed discriminatively against him because he was never given opportunity like the other accuseds to exercise the option of a fine~ At the instance of the Learned State Attorney Mr4P DP 0 ()uta for the Republic and the learned advocate for the appollants Hro J.F.S. Muna, with leave of this court, the aforesaid two appeals have been cosolidated and argued together, so that Edward pemh-1a is in this judf;ement referred to as the 1st appellant, and }Iatibu Mohamed Hbogo as the 2nd appellant, and their appeal entitled as HC Crimo !.pp No.113 of 1999;. The back ground of the cn,se, in a nutshell, is that there has been a protracted dispute over ownership of plot No9238 thet situates along Kenyatta Road, Mw3nza, between M1:mnza Engineering Works Ltd and a t:;roup of individuals, the latter clo.iminG to have been in occupation of the land befor£ it was surveyed, rer;istered and allotted to Mwanza Engineering works Ltd 0 Following that (!_ispute Muanza Enr;ineering works Ltd sued one Ifamad Nbilingi and others for an order for vacant pcssession in the District Court of Mwanzc1; at Mwanza, vide Civil suit Ncol8 of 1996 and the trial court gave judgement in favour of the M:wanza Engineering v/orks Ltd. rt would a.lso appear, as l depicted by the proceedings in the Civil case that there were some other occupant,s, too, who were residinro on the same land but they were not ,sued in the Civil case herein above stated. As the result of the judgement in Ci 1 .-i1 case No.18 of 1996 the decree holder (Mwanza Engineering works Ltd) applied for execution of that judgement and the consequent order for execution and it was on the execution process that the present problem wa,s hatched out. on the 7th of October, 1996 the then ·1earned Resident Magistrat~ i/ c of Mwa~~a Region issued Eviction rrder/emolitio• ord9r to be served o the fallowing persons who, according to the warrant, are namely, Hamadi Mbilinyi, Edward Hassan, Ti to John, Mayen.r:;a Gheche, Mashauri Magambo Mwisunga Mtarizi, Masudi Mohamed and Ramadhani Abdallah9 The terms of the order were to the following effect, i.,e.

3 ( 1) They being trespassers should dern.olish ·the houses D.:nd structures forthwith at -their c)wn ,. costs; (2) . that permanent inj-action be issued ·restraining the Defendants frb:n encroachin~ upon the .· plaintiff 1 s plot; ( 3) that pr.cyment of: To!3,hs~ 10, 000,000/..:. ··b<b rnad'; . : ..... to the plaintiff as loss of businessr s earnin;si ( 4) the.t_ eviction (.;rder fror,1 the suit premises namely plot N:J.238 Kenyatta Road Industrial Area, :M1:1anza ·Municipality to the above named persons be issued; (5) that the cos.ts of thii:, suit be provided; and (6) any other relief (s) t).1e court may deem fit . and just be granted~ Mak;ali I.ucticn Mart and court Brokers vrere directed to evict and remove. the af,oresaid persons out of the said plot 238 1 including their personal effects :=,.nd. further that, t,) demolibh the structures/hbuses. built by the alleged trespassers on the said plot - the orders hrwin,1 been made followi11tci; the ex-parte judgement dated 31/5/96., rt :i.s ap:garr:mt from exhibit P.3, a similar evicticn order in· respect of civil case N0ol8/96 dated ·29/11/1996, that the forr:1er order exhibit p.2 was never heeded or ccm;_->liGd i,Tith 3.t all and that eX';;ilain:s why the principal Resident _w:igistrate i/c of RM' s Court, MH;:.mza, re-issued the order contained in exhibit p.,3 which speaks by itself as follows' ( quotil'.)g only the re_lev3nt material part): HAnd whereby wkali Auction Mart and court broker Mwnzc>. was al)})Ointed t,:, execute and did infcrm the • court throur;h his letter with Reference Numbe:i;- Hi'-11/CB/005/10 dated 8th November that Edward nassah 1 $hE1.b_ani Mohamed who is not a party of the cc:se but is said to be instead of ;:,r;.:1.madi Mbilinyi and Khatibu Mbo5c who is also not a part-J to the case ,but is f3aid to be instead of Tito John who .is now deceased, pave refused to be evicted,.

4 ·. Be:1\ig s,::i, tl:lis is disobeying court order contrary to section of. the Penal Code. ·i.· . 114A (b) ,(C) you are· th-:;refore bein,3 orderc::d and rE:quirecl and (111) IEirTIBU MD0Gf) and ,\NY OTHER PERSON INVOLVED IN "THE' !CT and C1l:\RGE them accordingly before COURT OF L:'!'1 P<~TTJ,</ITH 0 The above cited order was adciressd to the Rer?;ional Police ;1m1ander, . ·., ' Region Headquarters, Mwanza.. There is nothing in the evident record that shows whether the Poli.ce complied.with. the .:c.ourtr s, order promptly or thereabout, but I note from the 1 pre],_imin.qr-y '.Proce8dinG of,, ;the.i,instant case that the pro,seutiont s f,cts, which were· however denied -by ..th(;! · appellant.s, that on the 3rd d_ay of Decer:ibex;,f. 1997 the 2ppellants resisted the court• s -order to demqlish t~eir house oA-plot Noo238 Kenyatta Road, vide ' .. t' \ \ ' ' ' . '; .... ~--"; .. Civil c2.se No. 18/1996 •. Also fr,m 'the fact,§, the appellants ( accused) were arrested and. taken to the Central ?oli'cc· station,, The question now that arises is whether the evidence on record· is sufficiently cepable to 'sustain the 3T}pe'1lnnts' convictions., The learned r.dvocate for the appellants tvir. J .F 0 ,S 0 Muna answered in the negative,. . rt is his contention that the appell,rnts gave r-;ood reasons as . ·. . to why they did ,not comply t,,ith ;the EvictionOrder of tlie court dated 7/10/1999, which i!las pr2sehted to them by Elieza Daud J\Jgaliga (PW3) ... the court Broker. HG referred to P:J3t·s testir:10ny which is to the effect .. that he (PW3) did not comply with the court• s -C'l:rder first, beccm'?e the 1.'• appellants clRimed that their names were not in the warrant f 1 or execution, and second, becouse the appellant clafrned that they ha,d not been . . .' ·, compensated., He further contended. that the offence under which the appellants were charged was not one o{·strict liability ,:rnd 1 therefore, the prosecution had a du:ty tc_establish mens rea on the part of the . I • accused persons. In the instant Cf;\se, he urged,. it was not possible to , \· establish mens rea because there was not any criminal ac't which the ..

5 prosecution would prove to have been corm!li tted by the·· a1pella.nts. That the appellants' names were _not .enlisted ,in the EViction 0rder .9.nd for tl:1..at reason there was nothing 1gal. thot required the appellcmts to comply; and further that the ctppel;i,.ants had gbod cause· or reason as why' they should not move out of the plot,. in question becaus·e the·y had not been ',.,. compensated. The learned state Attorney Mr~ D.;Pa Ou.ta joined hancls with the . appellants• side, hence the Republic is not supportine the conviction. In ad?..ition to what Mr. Mun-?, suhni tted, it is the view of Mr. outa that PW3' s testimony falls short. of material partculp..r, in that he (PW3) did not tell the trial court as :what was the particular act the appellants . •, committed so as to □ ake it ir.lpossible for PW3 to carry out the orders for ev,icticin anc1 demolition of the occupants• houses, etc. Un:Ier the circumstances, 1e reiterated, it is diffiul t tc d6s~~rn from the appellants• conduct when PW3 allege·dly ser;ed 'the deraoli tion/eviction orders on them :··1.hether the appe..llants wilfully o1bs.tructd or knowingly . . ; . prevented, or in any way interfered with or resisted the execution of . '. -~ •. I , . \ . •· •• ·• the warrant for eviction or der.1oli tion, within the meaning of the provisions ,:• .. · of section U4-A (b) of the penal Code under which, the oppellants were charged. And since the whole case· rested on the¥ evidence of PW3, Mr'a OU.ta sul:xnitted 1 it would not be possibl 1 e fr ._the prosecution to support the conviction because Plv3 did not show the np.ture and extent of criminal act that stopped hl.m (PW3) from executing _the Order in the warrant, for it was.not enough to say that the appellants refused to comply with or resisted the order. Both the Learned counsel,, ho,,ever, did not cite arry autority to strene;then their vropositions. Before I consider the ground · r:1ised in· the appellants• memorandum of appeal, which is basically on point of law as it is centred on the provisions of section 114-A of the ?enal Code, ··+ would first like to examine the. totality of evidence' oh record o.nd ··see -whether the conviction was properly grounded on the strength of that evidence on record.

6 From the outset I find problem on the eviden_ce of PW3 ;;.nd i_n particular with the execution warrants (exhibit p.,2 and P3) D I. star't with these two exhibits, exhibit p2 is shown to have been issued on: ?1e ,7th of October, l999 and exhibit P£3 on the 29th l\f.':lvember, 19,990-. ,But I ,find .it ; • • • • I ~ • • ' • - • • •• strange that PW3 claimed that it was issued on 31.5.96 and he wen,:!; to plot ,,. '. in question for execution on 3/6/1996. This latter informstion, ·r regret .,· :-•·(,, ,l; to say, is not anywhere f'.:rnncl in the lower court, s :proceeding". rt wa,s this ' ' 1:1i tnes who produced exhib':i ts p2 D.nd P3 but he did not say why the dates ' ' on· either of the warro.nt did n~t show 31/5/96, the date when he alleged that the trial court issued' the ·e,;ictio11 o;der/demoli tion. Whether there was ·-,·;:.1 another order for execution or demolition issued prior to exhibit p2_ that evidence is not on record: Since ezhi bi ts p2 and P3 were i,ssued much more later thnn 31/5/96 it cohld not therefore hiwe been pos,sible for him to ' ' ·' ,i:) ;-- -. ' ' ' serve exhibits p2 & P3 on 3/6/199'6 as he claimed in his testimony. PW3 furtl1e; toid ··th~ trial court that on 8/11/96 he wrote a letter to the principal Resident \1~~gistrate i/c, vd letter RefoNo.J1AM/qcB/005/10 informing him that the appellants hd resisted the eviction order and that, following that notice the appellants were arrested a!1d taken to the central ·police Station.. But the witness did not go further to say what actit>n was taken age.inst them. The only actio!l tlwt this court. is aware of is the pi-esent case vrhich 1,-m.s instituted on 12/2/1999. - !Jlore thaYJ two years later. l.nd why PW3 did not seek the a.ssistance of the police thi.s court is not in a. position to tell,. Moreover the evirience of pole i',13.sunga (HJl) r:1akes the evidence of PW3 much lss probably true, which is whether Ph/3 actua,lly. and properly executed the court's order according to law -3.nd the courtt s anticipation. At' 'page 4 of the trial court's proceedings PWl is vividly on record as having denied serving any warrant for executicn on the 1st appellant, although both are neighbours/ . The witness further denied that he ever visited. the 1st appellant• s premises in the company of PW3 on the materia:: dr-i ..

He added th,3.t the a 1 Jpellsrntl s house was not demolished, on that day because .:the app.ellant• s name _did not ,9.ppear in the demolition order. The trial · court ·vias also told ( in cross-examination) that PWl. ·could not have visited the homestead of th~ 2nd appellat'l.t when PW3 went there because 1 he (PWl) ,vas not the ten cell leade,r of the· ai>pellant - one ,Msrwa Nyangoy·tr.:.r~s oneo He • I also confirmed thDt the .rinme. of Kha ti bu Mohamed did not appear in the warrant 0 In the totality of that evidence it is difficult for one to say with precision that the appell,ant.s were ever served with either exhibit p2 or P3, or both, ilnd if they .w~re whether they were the pr.aper ·persoris mentioned therein, who were. required to co □ piy with the court rs corilmand. Exhibits P3 talks. of.' 1 ,:flff ("I'II8I1 PEH:S0N PNOLVED IN TIIB \C'I' 1 i.e. • . ,: ,; 'I :L whoever was found in th(? land. in ·question and refused to move ~tt there- ·:'. - ,.from contrary to the evictiop: ordf:,r., ·· CEl.n we say undoubtedly that the .. appellnnts ~ere one of , tho 9e .11 other personsn? rt is not safe t'ti rriake that . . . ..., . ,· conclusfon on the account of the contradictions displayed by' exhibits p2 and p3.,' rn: view of thoE)8 contradictions it is ba.rd to tell if there was any propfr service 8.t all, hence reasonable doubt as whether the appellants did contravene the provisions of section 1141. • (b) of .the pen2,l code. Another rizasonable 'doubt ic: lack of _.evidence ·showing, thott tlle ;9.ppellants w,ere ever . served :i-dth a Notice to quit from the surveyed plot 0nd th2,t it was upon . i such Notic'e to quit tha.t they had ignore.ct .or -reftlsed to comply tl1at led to the legal use of force to evic_t them and dem-lish their houses/bandas. 133 tbat as .it. iney, · qSSUliinins for the 02.l<e',;of :'lrgur.1ent the,t the . ' appellants had been su-Jplied with such Notice; 'but which I believe there· was one, there is another que,stion to cons:ider and decicleo But it has to be pointed out clea:-ly that o.s soon ns the government surveyed the land in dispute the appellants aμtomatice.lly. became illego.l occui:iants . . . . and therefore their continued st.J.ying On the land hc~d. nothing lpwful.; . . ,,) . ". The arguments ·by the appellants that they had not been compensated would . . unmaintainable because the nei.v allottee and potential developer would not have the obligation requiring 1nm to make compensation to the affected

8 former occupants unless there is evidence that the governmerit directed the aliotte~ of; the surveyed 1 plot to pay the· cor:1pensatiori... Notwithstanding the absence of 'suci~ evidence it i~ li.owe·ver· notd fro the evidence on record . that the. aliottee of· th~ plot in qestion had paid all what was required of him to cio, includi:hg compensation; to the rovernment.. The new occupant of the Land w;s therefore en.titled to take lawful ':'losse:3sion of the Land withbut any obs.tructi·n whati.'bever. But what prevented hirh then fran taking legal possession ·of th· lan.d.? I If the Court Broker (PW3) had executed his duty as required of hir:i by law I would not have the, slithtest hesitation in dismissing the appeals; for it· is qu:i. te clea~. that the appellants had no business to continue .·,. - : . ,·a,r:• . ::.·:··( ... .. ... . .· • . squa.tterins·-.on the 1ilot after survey bad been completed '.:\nd the plot . . . ( ) ':.' :, . .- '.!. .. '\ . ,· ., ;, . allocated to the com)lainant iri this ec'3.(3e. .. A similar situation was observed i· PANCIUS 1\IBY!,NDER v, REPUBLIC [j.981/ Tt,'q, 92. The question here is whether th/:c,;ur'.t brok~; 'ctld: exelite the cirde/ contained in the warrant as mandated by law. ,The rele.vant eii;:letice of PW3 is to the effect th':l.t in the course of implementing the cou/t;, s' ·order h, was· accrnpanied by the ten cell leader oi th area and the str;/ef cha"irr:1ai~ After' going to varioi..l..s resident places of the persons mer.tined in the wai-:ran and found them absent they proceeded on to tl'i.e residence of one Edward Hassari 1here they met the present nppellan-': ' ' ' Edward peinbwa, PW3 then emphatically told the trial court as follows:- "I ctid not implement court• s order because I had no police men 0 The same refused to vacate bec 0 us9 tJ+ey .have ,not yet paid their compensation., rt was ·when I notified the c.ourt which issued arrest warrant • • u Q,1,, prom the above re-stated piece of eviJ.ence it goes without saying that PW3 did not carry out any exe·Sution 1 to wit· evicting those mentioned in the warrant, or de □ olish their re'sidential 1J1;,emises., There is not also shred of evidence indicating that any of the two appellants was mentioned in the execution warrant, nor can, it be S9.icl frbr.1 PW3' s evidence that he (PW3) required

9 the appellants to vacate the plot in question but they resisted or refused tangible to vacate. In other words there is not any / ·: evidence on record that ' " . - ' shotJS that the two a:)pellants,. ,:;,r any of them willfully obstructed, or knowingly prevented, or in any ,-1ay interfered with or resisted the execution of 'the said warrant of execution - ,as clearly provided under· section ll4i(b) ... of the penal Code. ,. 'Ji 1·,J_; '· t. I now turn to the questiDn of mens rea raised by ::i.dvogate Mr. Muna. . . His contention is that the offence under which the appellants were charged was not one of strict liRbility and therefore the.trial court errd in ' . . ' - . relying on the prosecution case i::hich did not establish the i;uilty inind - · or conduct of the appellants wi'th respect, this I do squarely fall in · with his view-point. It is .ne.edless to emphasise that most of the offences J .. of strict liability arise Ul).der ,regulatory leisislation in order to protect the welfare,· interest or l:ib~~ty of the subject; and; indeed 1 it is this -- ··-.,- .; ; dardinal principle that a court should alway bear in r,1ind, th0t, unless., a statute either clearly or by nece_f,sa:ry implication rules out mens rea as a constituent part of a crime, the court should riot firnl n man c;uilty •· r ' of an offence ac;ainst the criminal law ,; unless he he.13 a guilty mind - iee the observation by Lord Godderd in Bl"IBND v. WXD (1946) 62 TLR,. 462 - also approved and followed in -!/i.RNER v. METR0POLIT;\N PC•LICE C(HMIS.SI0NE:R (1968) 52 CRo APP. R, '373. rt' wPi.s c;.l.so, discussed by the Privy Council in the latter . t d ( ) ' . . th d . . b \·' . t J . 0 HET)D ' s ci e case supra t appr0:v1ng e ecision ;y •vri , . • in 0 r,."ll v. i;>e RUTZEN {J.89Jl I QBD, 918 that nthere is a presumption that menr is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creatin.•~ the offence or by the subject with which it deals, ::.:tnd b0th must be considered 11 • Under section 114 A. (b) the prosecution was duty bound to show or prove that anyway interfered with or resisted the execution of the order contained in the warrant. The gener8.l rule of Law is that a man should not be held criminally responsible unless he was r-.icting voluntarily, knew wlw.t he was doing and foresaw the likelihood of those conseguences. I.n·d in doing an

10 act ( criminal act) the.re must h~ve iqeen some bodily moyerqe;nt, or some omission to do an act., In this case nothing of the nbove mentioned prepositions was establishe·d. in evi0-enpe. t ,;the trial court., to cover the. a·ppellants,' or any one of :them, in.,.l:le ligllt of, he foregoing _I am satisfied beyond doubt that the nllec;ed offence ago.inst the appelle,nts '. was .l:l:,ver ,prnvccl at all and therefore the convicti0n was bad in law. In the .esult the conviction cannot.be sustained Rnd it must be quashed forthwith, as I hereby .do .. Also the sentences or Rny order consequent thereupon the • (·• ' '. < ·'. : ',• ' :. • ," l :·:: :. • judgement should be set,.aside 7 o.nd i is so set asic:e.. The appellants are . ' . . . . . . i declard free citizens unless they are otherwise lawfully pronounced. 16/8/2000 Delive'red at Mwanzil '' .. in the presence of the appellants and their advoc§te_ ,Mr., MU.1:19,, and also in the presence of Mro D.P .. outa, learned State Attorne;; . .for, the Republic . ·. JUDGE

:: \ I ,,,_. .. -~:~t-'-:1- .. : I. c. MREiMA f JUDGE 16/8/20000.. \ .. . •