Bura and Another v Republic (Criminal Appeal No. 38 of 1999) [2000] TZHC 661 (17 May 2000)

8 TANZANIA LAW REPORTS [2002] TLR. A For what I have tried to explain above, I need not deliberate on grounds three and four of the preliminary objections for doing so is just for academic exercise and not for the purpose of reaching a decision in this applications. B Therefore then, I am of the considered opinion that this Court has no jurisdiction to entertain the suit and hence it is improperly before it so it is struck out with costs. c _______________________ DELI BURAAND MANDOO BURA v. REPUBLIC D HIGH COURT OF TANZANIA AT ARUSHA (Msoffe, J.) E CRIMINAL APPEALNo. 38 OF 1999 (Originating from Mbulu District Court, Criminal Case No. 90 of 1998) F Criminal Law - Meeting convened to discuss and write a letter to the District Commissoner on mismanagement of village funds - Whether the meeting and writing of the letter amounted to a criminal offence. Criminal Practice and Procedure - Sentencing - Sentences running consecutively — Sentences ordered to run consecutively without assigning reasons - Whether sentencing is proper. The appellants were, together with four other accused persons who are not appealing, jj charged with three counts, for example conspiracy to commit an offence, unlawful assembly, and giving false information to a person employed in the public service, contrary to sections 384, 74, and 75, and 122(6) respectively, of the Penal Code Chapter 16. They were convicted and sentenced to terms of imprisonment which were ordered to run consecutively. The appellants appealed against both conviction and sentence. On appeal;

DELI BURA AND MANDOO BURA v. REPUBLIC 9 Held: (i) There was nothing wrong in holding the meeting and writing the letter to the A District Commissioner for, by doing so they were exercising their constitutional right of freedom of expression; (ii) In the light of the evidence on record it is also clear that the other accused B persons who are not appealing were wrongly convicted; accordingly, in the exercise of the revisional powers of the High Court, their convictions are quashed and the sentences imposed on them set aside. Orders accordingly Case referred to: (1) Hadija Ally Kimbau alias Sarah Martin Simbaulanga v. DPP Criminal Appeal Number 33 of 1988, DSM High Court Registry (unreported) D Statutory provision referred to: (1) Penal Code Chapter 16, sections 384, 74, 75 and 122(6) Mr Kimomogoro, for the Appellants E Mr Massara, for the Respondent JUDGMENT I (17 May 2000) * F Msoffe, J.: In the District Court of Mbulu, the appellants were, together with other four accused persons who are not appealing, charged with three counts for example Conspiracy to commit an offence, unlawful G assembly, and giving false information to a person employed in the public service C/sections 384; 74 and 75; and 122(6) respectively of the Penal Code. After a full trial they were convicted as charged and each sentenced to terms of imprisonment of two years, one year, h and six months respectively, with the said sentences being ordered to run consecutively. This is an appeal by two appellants for example Deli Bura and Mandoo Bura against both conviction and sentence. Mr Kimomogoro learned counsel is advocating for the appellants, j

10 TANZANIA LAW REPORTS [2002]T.L.R. A On the other hand Mr Massara appears for the respondent Republic. Learned counsel have filed written submissions. In the submissions of Mr Massara, it is clear that the respondent Republic is not supporting conviction. For reasons that will be apparent hereunder the Republic B is justified in taking this stand. The facts giving rise to the charges were brief and are well stated in the judgment of the District Court. In a nutshell, the appellants together with the other accused persons and other people, were alleged c to have convened a meeting whereby they decided to write a letter to the District Commissioner of Mbulu complaining about mismanagement of funds and some other goods, by some village authorities. The District Commissioner and some village authorities d were of the view that the meeting was not only an unlawful assembly but that the letter was also false and hence the charges and conviction in question. The said letter was produced and admitted in court as Exhibit P 1. On the other hand the defense cage was a general denial e of guilt. Again, in a nutshell, generally the appellants, and the others, did not deny meeting and writing the aforesaid letter. Their general defence was that there was nothing wrong for them, as citizens of this country, in convening and writing a letter to their District F Commissioner with the view to airing their grievances. In his judgment, the learned Senior District Magistrate was satisfied that the case against the appellants and the other accused persons was established beyond reasonable doubt and hence the conviction G and sentence. In particular he cited section 74 of The Penal Code, Chapter 16 and then opined and held that there was proof that the assembly was for the purpose of committing a crime or a breach of the peace. He was also satisfied that the letter written to the District H Commissioner was false. In the petition of appeal, there are a total number of six grounds of complaint. In summary, the grounds centre upon one general point for example that the case against the appellants was not proved beyond I reasonable doubt.

DELI BURAAND MANDOO BURAv. REPUBLIC 1 1 I do not intend to deal with each ground separately. Rather, I a propose to dispose of the appeal generally as follows: First, as correctly submitted by Mr Massara there are three pertinent questions that have to be asked and answered in arriving at a fair conclusion of the entire case: To quote Mr Massara, the questions are: B

1. Was there a conspiracy? And if so was it for the purposes of committing an offence?
2. Was there an unlawful assembly or any assembly for that matter? C And if so was the assembly aimed at instigating fear or to commit an offence?
3. Was the information sent to the District Commissioner false and how was the falsehood tested? D Second, a thorough scrutiny of the evidence will show that the appellants ’ “ offence ” , if any, was the fact that they convened a meeting and wrote a letter to the District Commissioner. Surely, there was nothing wrong in doing so, for after all, by doing so they were exercising their E constitutional right to freedom of expression. Their approach might have angered the District Commissioner and the village authority but that would not be enough to impute criminal responsibility on them. In any case, no£oncrete evidence was forthcoming to show if F there was any falsehood in the letter written to the District Commissioner. At best there was the District Commissioner ’ s evidence that the information was false but there was no other independent evidence from other impartial sources to prove falsehood, if any, of the contents G of the letter. Regarding sentence, it is not clear why the learned Senior District Magistrate ordered the same to run consecutively. Apparently he did not assign any reason(s) as to why he thought there was need for H the sentences to run consecutively. It may be useful to bring to the attention of the learned Magistrate that the principle has been that unless there are exceptional circumstances sentences of imprisonment should always be ordered to run concurrently - See Hadija Ally I

12 TANZANIA LAW REPORTS [2002] TLR. A Kimhau alias Sarah Martin Simbaulanga v. DPP (1) cited to me by Mr Kimomogoro. In the end result, the appellant ’ s conviction is quashed and sentences set aside. Since they are already out in bail I will not make an order B for their immediate release from prison. In the light of the evidence on records it is also clear that the other accused persons who are not appealing were wrongly convicted. Accordingly, in exercise of my revisional powers I quash their conviction and set aside the sentences c imposed on them. These accused persons for example Decabuye, Enock Thomas, Samay Hau and Warse Qayami shall be released from prison forthwith unless they are lawfully held therein in connection with other lawful causes. D EAST AFRICAN BREWERIES LTD v. E GMM COMPANY LTD HIGH COURT OF TANZANIA ATMWANZA F (Mroso, J.) CIVIL CASE No. 67 OF 1999 G Contract - Freedom of contract - Parties to a contract are free to choose the law that should govern their contract. Contract — Arbitration clause — Arbitration clause ousting jurisdiction of Courts H - Whether an arbitration clause can operate to oust jurisdiction of the Courts - Section 18 of the Civil Procedure Code, 1966. Arbitration - Arbitration clause in a contract — Whether such arbitration clause can operate to oust jurisdiction of the Courts. I