Sosthenes Fumbuka vs Republic (Criminal Appeal No. 5 of 1998) [1999] TZHC 527 (21 July 1999)

SOSTI IENES FUMBUKA v. REPUBLIC 35 l . SOSTHENES FUMBUKA v. REPUBLIC HIGH COURT OF TANZANIA ATTABORA (Masanche, J.) CRIMINALAPPEALNo. 5 OF 1998 Criminal Law - Cognate offences - Appellant charged with but acquitted of the offence of soliciting the commission of an offence c/s 390 of the Penal Code

• Appellant convicted of contempt of court instead - Whether proper. Criminal Law - Contempt of Court - Person convicted of Contempt of Court for. an act not committed in the face of the court ·- Whether conviction proper
• Section 114 the Penal Code. An area around Sibiti River was declared as reserved for grazing and should not be built or cultivated on. Two persons had attempted to cultivate there and were taken to B C D E F G H

352 TANZANIA LAW REPORTS [2000) T.L.R. A the District Court, convicted and fined, and the court declared that the area shall not be cultivated on. A meeting was then convened at which the appellant and another person were said to have uttered that people could cultivate in the area. And subsequently some people went to cultivate there. The appellant, and the other person B were then charged with inciting the commission of an offence. The other person was convicted as charged by the District Court while the appellant was convicted of the "lesser offence" of Contempt of Court. Held: (i) The trial court magistrate was wrong to say that Contempt of Court is a C lesser offence to the offence of inciting to commit an offence and, in any case, the two are not cognate offences; D E (ii) Contempt of Court offences are offences that arise while a judicial proceeding is pending; they are offences committed in the face of the court; (iii) Since there was no evidence ofincitement to commit an offence and the trial court magistrate held the meeting in question not to have incited the mob, both the appellant and the other person who did not appeal ought to have been acquitted; accordingly, although the other person did not appeal, the High Court invoked its revisional powers under section 31 of the Magistrates' Court Act 1984 and ordered his release from prison. Convictions quashed F Statutory provisions referred to: (i) Penal Code, section 390, section 114, section l 14(l)(d) (ii) Magistatrates Court Act 1984, section 31 G Mr Masa/u, for the Appellant H Mr Mwampoma, for the Respondent JUDGMENT (Dated 21 July 1999) MASANCHE, J.: The appellant, Sosthenes Fumbuka, was charged I with contempt of court contrary to section 114( 1)( d) of the Penal Code, after being acquitted of the offence of soliciting the commission

SOSTHENES FUMBUKA v. REPUBLIC 353 of an offence contrary to section390 of the Penal Code. In other words the Magistrate (Mr Mlawa, SDM) substituted the offence of Contempt of Court for the offence of soliciting the commission of an offence. The Magistrate wrote a very very long judgment, unnecessarily so. The appellant and another (not appealing), who was convicted as charged under section 390 were, after conviction sentenced to different types of sentences. In sentencing them, the District Magistrate said and I quote: The offence of soliciting or inciting to commit an offence is a serious one. It attracts for a deterrent sentence to be imposed upon the accused. The accused number 1 though a first offender, he is given by this court a sentence of twelve ( 12) months imprisonment without an option of fine. Accused number 1 Boniface Linjachi to serve twelve (12) months imprisonment, whereas the second accused who has been found guilty of a lesser offence is sentenced by this court to a fine ofTZS. 50 000 or three months imprisonment in default of payment of a fine. Right of appeal has been explained to the accused persons. The understanding I have here is that the present appellant Sosthenen Fumbuka who was the second accused at the trial, a Ward Secretary, had been sentenced to a fine of TZS. 50 000 imprisonment or 3 months jail in default. The record shows that he has paid the fine. The other accused Boniface Linjachi, who was the Ward Executive was sentenced to 12 months imprisonment, without an option of fine. He is, in other words, languishing in jail. And it is the one now out, the second accused at the trial, who appeals. The appellant here before me is represented by Mr Masalu, learned advocate and the Republic is represented by Mr Mwampoma- the learned State Attorney. [Both counsel did not support the appellant's conviction]. The facts of this case were simple and straight forward, although the Magistrate has written a long and rumbling judgment. An area around a river, the Sibiti River, was declared an area that no one should build or cultivate on. It was decided that the areas should remain a grazing area. A B C D E F G H I

A B C D E F 354 TANZANIA LAW REPORTS (2000] T.L.R. Some two persons had attempted to challenge this move, and they had attempted to cultivate in that area, but they ended up in trouble. They were sent to court and fined. It is while the matter had reached the court that it is said the court announced that the area should not be touched. On 16 November 1996, a meeting was convened. At that meeting the appellant was the Chairman. The first accused also attended and there it is said the two persons uttered, at the meeting that people could cultivate in the area. And, indeed some people who came to testify in court went to cultivate the area. These people told the court that they went to cultivate because these two people had told them to do so. And so, the police thought it was better to charge the two persons. Up to that point, those facts alone are sufficient to dispose of the appeal: The meeting that the learned Magistrate addressed his mind to, was held by him not to have incited the mob, hence he acquitted the appellant. And that would have been the end of the matter. Convicting the same person of the offence of contempt of court was improper on these grounds: (1) Both these offences are misdemeanours. You cannot substitute a misdemeanour for a misdemeanour. Which one then is the lesser offence of the two? The Magistrate is wrong to say that the offence of Contempt of Court is a lesser offence to the offence of inciting. G (2) Even assuming, for the sake of argument, that one was lesser than the other. These offences are not cognate - are not connected to each other. (3) Contempt of court offences are summary procedure offences. Section H l 14( I)( a) of the Penal Code that the Magistrate talks of, deals with situations which arise "while a judicial proceeding is pending". It does not deal with events which took place long time ago. The offences of Contempt of Court under section 114 of the Penal Code are offences that are punished brevi manu. The offence must be committed in "the face of the court".

IMKE HELLA CAMPBELL-SMITH v. DOUGLAS WILLIAM CAMPBELL-SMITH 355 I, therefore, do agree with both Counsel that the appellant was unjustifiably convicted. His conviction is therefore quashed. The fine imposed on him that he paid out should be refunded to him. The same goes to the first accused in the trial, Boniface Linjachi, who was convicted of soliciting or inciting the commission of the offence. The evidence on record showed nothing more than that he attended the meeting and possibly addressed. It is difficult to say that the address had the tone ofincitement. There is not that evidence. To incite is to "stir up". There is no evidence of that nature. He too, I think, ought to have been acquitted of the offence. Although this person has not appealed, I invoke my revisional powers under section 31 of the Magistrates Courts Act 1984 and order for his immediate release from jail, unless there is something else lawful which 1s keeping him in jail. \

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