DPP vs Festo s/o Sudi (HC Criminal Appeal No. 76 of 1997) [1999] TZHC 402 (12 May 1999)

1. '1, • IN fl'HE HIGH . COlfRT OF TANZANIA . ·:. AT MBI!,'YA. HIGli COURT CRil-UNAL APPEAL NO. 76 OF 1997 ' t . ORIGINAL MBEYA DISTRICT COURT CRIMINAL CASE NO. 32 OF 1997 DPP • • e • • • • • • .. • • 0 • •••• APP:i£1L1\NT VERSUS FESTO s/o SUDI • • • • • • • • • JUOOEMl!..T RESPONDENT ·'·. MWIPOP_O 1 J • ... The appellant is the DPP represented by the learned Mr. Mulokozi (SA) agai11St the, ·acquittal of the respondent Festo Sudi on charges of Disobeying a lawful order c/s 124 of the P.c. in the 1st count and giving false · Information to a person employed in the public service· c/s 122 (b) of the P.C .. • » •• The ·respondent is represented by the.,learned Mr. Naali (advocate). On the first. count the statement of offence stated that on 30/10/96 at the Resident . ,Magistrate Mbeya the respondent Festo Sudi disbyed an order duly made or issued by, the SRM with reference No. cc. 15/89. Ofcourse the mention of the date of 30/1e/96 as the day the lawful ·order was· disobeyed,by the respondent , ,', . was a typing or clerical error meant to be the 30/12/96 (instead of 30/10/96). T'nis is because the 2nd count clearly mentions 30/12/96 which is the same I date the respondent went to the RMs court as well as to the police station purportedly for the purpose of offences committing ttie, two. In the trial court 1 s,_judgement the 1-earned Yir• Salum (DM) hinted·that this was a contradic·.:.- in the prosecution case· whereas it was merely a clerical error as explained aboV,:.E!a : · ,., :The lawful ordr i tse+f. w:as produced as exhibit. P2 which was an order ' .~ / . •··.' . of the learned Safari (SRM) directed to the OCD police station Mbeya for the police to remove the Ihombe village council from the land in dispute for failure to respect lawful order. There was an error in citirut the lawful order of the court which the respondent was charged for disobeying of no doubt. The proper lawful order of the court which should have been cited

-- 2 - • in the charge sheet's 1st count' s stateme·nt of offence should ·have been the District c,ourt ruling of 29/11/96 ·by the same learned Mr •. afari (SRM) which ... judged that, on application by the learned Mr., Mbise,. the advocate for the Ihombe village council, to'quote·the•relevaJJ.t_portian of.te ruling: ... "In order to maintain the status· quo.between the parties •. This court is of the consider.eq opinion that . the application should be granted pending appeal'o:n the ground that the applicant should deposit a sum of 200 1 000/= to the court as security within sixty days from the date of ruling failure of which the respondent shall be· allowed to excute. the decree.. Order Accordingly• D.B.G. Safari (SRM) ,. ·This order meant that:- , 1. Neither_party for 60 days from 29/11/96 up to 28/1/97 shall use the land in dispute. 2. Within the 6o days the applicant shall have deposited in court 200./= as security - iri which case the stay of excution would be extended .. beyong 60 days for ever until the judgement of this court which was ... pending in respect of the same case had been finally determined. 3. In case the applicant Ihombe village council failed to depiit the shs.200 1 000/= security in court within 6o days than the respondent Festa Sudi'would. be free to return to court from 29/1/97 onwards to apply for ·execution of the decree so that he would start using that in dispute~ ·· Strongly enough I hardly had 24 days elapted thereafter - when the respondent-Festa Sudi went to .the SRM to complain that the Ihombe village council had criminally trespassed into. the same land in.dispute by hiring that land to cultivators of maize. That is why the respondent produced Exh.D3 dated 3/10/96 with contents showing that the sub-village chairman should advertise to the people th~t the forms would be hired in Saturday 5/10/96 for shs.6 1 00t/= at 9.00 a.m. _ ,-..s DW1 the respondent testified to the. same effect t:hat, ~r went to the court to co!Iiplain which were the SRM to issue the 'i• order of 23/12/96. The SRM directed the respondent to the OCID with the court order of 23/12/96 for the village council to be evicted from the farm •.

• 3 - indisputea Certainly due to the ruling of a9/11/96 maintaining the status quo of both parties being barred from using that land., When the OCD executed this or.der by showing PW1 C .1430 D/Sgt •. Emmanuel he ma.de findings as testified in his evidence what actμally it was tl,ie responde_nt himself who was using that land bJ hiring it to named 6 people ,· . who were . also complained by the village couneil and,· one of the users of the land.hired to him by the respondent. who testified as PW5 are Isanjeliye d/o .. t-: i •• Nundwe. With these facts the respondent should have been. charged in the 1et count . . ' with disobeying the lawful order of the ruling of the SR-1 .r 29/11/96 which barred boh the respondent and the appliiant from using the land in dispute ' '· for the ver_iod . of 60 days· wr:ich had not yet expired and ti'or..,.ib,e respondent was not allowed to execute th; decree he got on the.lru.id in dispute• an • . t .. this court correct this error so that he is convicted of disobeying a lawful order not mentioned in the charge sheet though proved in evidee. c·ertainly not. It is too late now to correct the particulars of offence in the 1st count by inserting th8 ruling of 29/11/96 in lieu of the cited order of 23/12/96. In tf1.is techinical ground I dismiss this appeal on the. 1st count.,- The respondent was properly acquitted o'n the 1st ground based on a different reasons than th0 erronous reasons 0 iven by the trial court. In the second count of giving false information to a public officer the particular of offence stated that the respondent Festo s/o Sudi on 30/12/96 gave false information to police officer No. E 1951 PC Omero th&t Chairman of Ihombe village had devided the land in dispute for villagers to cultivate which land was still ~aving the said Civil Case No. 15/89 still pending in appeal to this court. From the testimony of PW1 arid PW5 although the said No. E 1951 PC Omero did not testify in court there was enough evidence to prove that indeed the respondent went to the SRM on 23/12/96 to complain about the criminal • ' trespass on the land in dispute who directed the respondent t9 go the police to complain and to get police officers to go and evict the vil*a,ge council. i..s 8:. res.ult of that complo.int at the police station. PW1 went to investigate

• 4 ' the land in dispute and found tht cually it was not the village'Council· which was using that land but the respondent himself by hiring it to 6 • ' ' f' I • j • \ specifically named veople out of.them 3 testified in court 2 for the . ·; respondent and 1 for the complainant. Those who testified for the respondent wee DW2_Lua Mwaisangu and Fanuel.s/o Sawanga who testified that they hired o! acr.~ ~ from the village council with 6o other co-villagers for shs.6 1 000/= each without being given any receipts. To show that there was st1:ch. hiring the respondent produced exh. D3 referred above in this judgement. .. 1·.11 the village leaders testified that the· 6 users .of the land in ,. \ f f \ .... .'"' • • ~ dispute inter alia were name,;t.y 1·. Men.go Haivenje, 2. Luka Mwaisenga 1 3, Kapera. ·. ',•\ . tos?-, 4 Nonde Haivenj_e, 5• Fa.:nuel Sawanga and 6. Malango Sima.like were not . . ' hir_ed the 111d in dispute by the v i].lage council but by the respondent himself ,, •• ,..,... .. •··- .... ~ ~ .,.:.i..,,- as per tstimony ot PW1 and PW5 Isanjelinje Nundwe. . •·• The trial cour~ Magistrate the learned Mr. Salum (SIM) did not grasp the evidence of all from both sides. He wrongly commanded that the entire ev.idence was based iimajungua - rumour - mongering between enemies who were •• .,v ··.: involved in a land dispute for a long time. The complaint here was not about . a lfnd d~~pute at al~ and the complainant was not the .village· council. The . : complainant here was the police who were ordered by the court to evict the village council from the land in dispute on complaints of the respondent that • ,"f • . the hiz:ers of land authorized by the village-chirman were using the land in dispute •. This was.found by the police PW1 to be false information for-it was the respondent himself hired them to use the land in dispute. For the testimoned tendered in court the testimony of PW1 and PW5' as bursressedly the testimonies of PW2, PW3 1 PW4 & PW6 proved beyond reasonable coubt that the respondent falsely gave wrong information to the police station that the village chairman who testified as PW2 Daniel Mwasonyanga ' .. ' did not allow the 6 people to cultivate in the land in dispute This witness .PW2_ was not crossexamined by the land Mr. Naali (Adv.) if at all he went with the:iespondent to _the SIM on 23/12/96 to complain about the criminal trespass on the land in dispute. The t?s.timony of DW1 releting PW2 is merely after I

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• 5 - thoughts. Even exhibit D2 written on 3/10/96 related a period when the court's order of 29/11/9J had not been· issued as yet and in relation to anothe~ land . . ,,,. in Izyomu Farms, not those in dispute in-:.'Ihombe v.illage. · In 'exhibit P1 on ., the sketch map drawn by PW1 there i:s no area called Izyamu which has b~·en ,, ' shown. There is Ihombe, Itende and Iwala areas only. A}ter all 6Q hirers with one acre at shs.6,000/= per@ a9re would mean 60 ?,res of iand which for larger thlit!l ·the ·land in dispute the subject of the fa.ls'e information charged . ..,, in this case • . The evidence tndered in the lovier court related the speciic incident of a false infomation of the respondent that led the police to evict by . : . going to the ·scene of the i' 1 trespass 11 which proved to be a lie knowingly .uttered to the_police in the police.complaint of the respondent. His acquittal in_the 2nd ground was errously reached." It is quashed. The resondent as 1st accusd Fest<? s/o Sudi .is found guilty o~ knowingly giving false information to a public officer c/s 122 of PC. I-convict him accordingly. E.L.K. MWIPOPO JUOOE ·11/5/99 I have my avocate ~resent at the court ·of defending· me. I have my son Fred Festo Sudi: I am-32 years and I would like to bail out my father. I have a house and a farm of coffee 1000 trees. I have no objection. C_<?u.rt; The accused ha:s .;l rig!lt to have his advocate Mr. Naali (Adv.)• The offence convicted is very minor which carries a mere fine of 1000/= or 6 • months imprisonment. ·So 1 I grant bail to the accused on his own bond of 5000/= and with one surety of his son Fred Sudi to the like sum of shs._5000/=o Sentence tomorrow 12/5/1999. EaL.K. MWIPOFO JUOOE I 11/5/99.

6 ..... , .. 12/5/99 Mwip()pO; J • Vir& Nangela (SA) - Present in person for appellant . ., Festo Sudi - Respondent ~-present. V.1r. Naali ;;.dv. for· Respondent - Present. C/C • _Mr! Mwakyusa. Court: Before Sentence &...., Nan_gel~(S1~) I have nothing to say. It. mea.ns within my record I have no record of his previous convictions. !9-.££.lF.it. It doesn I t mean he has no previous criminal records. Bu-b, my record doesnt show so• ie The file of appeal~ have here.

He is 61 years old. He has a wife & 5 children who depend on him. 
The. environment was very conducive to leniency. The respondent was protecting 
his farm _which h~. was at loggershed in its ownership with the village govt. 
The respondent has right to protect his bi,g farm which he beleived is his. 
He should be dealt with leniently. 
We.will have another civil application in respect of the same piece of 
land.· In the other hand applicanf he wants to appeal to the court of Appeal of 
Tanzania. 
The court should take into account all these matters. 
' 
Festo Sudi:- I have nothing to add. I don't recall to have ever been 
· t f anv · · 1 ""f convic ed o · ..., crimina 01. ence. 
SENTENCE 
This is a very minor_ offence.of a misd.emeanour which carries both an 
imprisonment term of 6 months a fine of shs.1,000/= since has an old men of 
61 years I give him the option to be punished by way of a fine. 
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