DPP vs Festo s/o Sudi (High Court Criminal Appeal No. 76 of 1997) [1999] TZHC 327 (12 May 1999)

r .. J MWIFOI:O 1 . J • /1,,1 uj If I IN r.rHE HIGH COURT OF TANZANIA AT MBb'YA. HIGH COURT CRIMAL APPEAL.N¢ 76_0F_1997 ORIGINAL MBEYA DISTRICT ao-cmi:r CRIMINAL CASE NO. 32 OF 1997 DPP . . .. . ..•... ,:. ~ ·· . . • 0 VERSUS FESTO s/o SUDI ·• • • • • • • JUDGEMENT I .... ••• • • • • • APPlCT,L.l\NT RESPONDENT The appellant is the.J)PP represented by the learned Mr. Mulokozi (SA) against the acquittal of the respondent·FestQ Sui 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 rpresented by the learned Mr. Naali (advocate}. On the first count the statement of offence stated that on 30/10/6 at the Resident . ,.. __ "···. . · 'ih.gistrate .. Mbe·ya the. r_espondent Festa Sudi disobyed .an order duly'made r. issued by the SRM with reference No. cc. 15/89.,. Ofcourse the mention-of the date of 30/11/9p as the day the lawful order was .disobeyed by the respondent ( . . was a typing .or clerical error meant to be· the 30/12/96 (instad of 30/10/96) o. . . . - This is because the 2nd count_ clearly mentions 30/12/99 whi.ch· i the same date the rf3spondent went to the Rlvis court as well as :to the pol:Lce station • <r •••, ; •• •. purportedly for the purpose.of offences committing the to• In· the trial court's judgement the' learned Mr. Salum (DM) hinted. that this was a 'Contrd1 c-.:.- in the prosecution case whereas it was merely_a clerical error as explained The lawful order itself was produced as exhibit P2 which was an order of the.learned Safari (SR) directed to the OCD police station Mbeya for the police _to remove the Ihombe village council from the lani in dispute for ., failure to respect lawful order. There was an error fu cft'iruJ. tl)e lawful order of the court.which the respondent was charged for disobeying of no p • ~ •--':: • I • . , ,. doubt. The proper lawful order of the court which should Mttve been cited , . ·i.

2 ',. in the charge sheet's 1st count's statemeht.of.offence should have been the District Court ruling of 29/11/96 oi th~ se lear1,1ed Mr.·· Safar:i. (SRM) which judged that, on application by the. learned·Mr. Mbise, the advocate for the Ihombe village council, to quote.the relevant portia.n of the rulingc- • ., '. .. • 'll "' '• Hin order to maintain the status quo betwe'en the parties. This.court is of the considered opinion xhat the application should be granted pending qppeal on the ground that the applicant should deposit a sum of 20C,OOO/ to the court as security within sixty days from the date of ruling failure of which the respondent , shall be· allowed to excute the decre.e. Order l~ocordine;ly. This order meant that:- . D.B.G. Safari (SRM) 29/11/96.tt

1. Neither party for· 60 days from 29/11/96 up to 28/1/<,7 shali use '·the land in dispute. ~~
2. Within the 6o days the applicant shall have deposited in court 200,oot/= as ·sc·curi ty - in which case the st9-y of excution would be extended . . . _., eyong. 6o days for ever until the judgement of ts court which was t, II'> .. • pen?ing in respect of the same case had been finally determined.
3. In case the applicant Ihombe village council failed ·to deposit the shs.200,000/= security in court within 6o days than.the respondent_Festo -'· ' Sucli · 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,, hardly had 24 days elapted thereafter - when the respondent Festa Sudi ~ent 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 ~ontents showing that the sub-village chairman should · .. ·advertise·to ·the people that the forms would Qe.hired in Saturday 5/10/96 ::· for ·shs.6 1 00e/= at 9 •. QQ a.m •. · As. DW1. the respondent testified to the same . . . effect that he went to the court to ~omplain which were the SRM to issue the order of 23/1_2/96 •. '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 - indispute. Certainly due to the ruling _of a9/11/96 maintaining the status quo of both parties being barred from using that land, 'Jheri the OCD.executed this order by showing PW1 C 143() D/Sgt• Emmanuel he ma.de findings··as -'testified in his evidence what actually it was the . . . respondent himself who was using that land·by hiring it to named 6 people wh~ were ·also complained: by the village counc·n and _one of the usere of the land.hired ·to him by the respondent who testified as PW5 are I6anjeliye d/o Nundwe • With these facts the respondent should have been charged in the 1st oount rih di~obeying the lwful order of the ruling of the SRM •f 29/1C/96 whieh barred qoth the.respondent and the appliiant from using the lPd iit dispute for. the period of 6q days which bad not yet exp.ired .. and therefore ·t,he respondent was not allowed to execute the derc he got on the }.and in di.sputa• Can . . t• this cour~ correct this error so that he is convicted of disobeying a lawful orde·r. not· men.tioned in the charge sheet though proved in evide?1Ge• Certainly not.· It is too late now to correct the particulars of offence in the 1st count . by.inserting the ruing of 29/11/96 in lieu of the ci~~d order gf 2,/12/96. In'.'tis techiniQal ground I dismiss this appeal on th.e: .:irl ,1ountt The respondent was prpe,rl_y acquitted on the 1st ground based. on a different .:reasons than the erronous _.re'.3-sons given by ·the trial coμrt, . n the sec;ond count of giving false information to a public officer the P.?1.I'tc,ular Qf offen4e stated hat the respondent Festa s/o ·sudi on 30/12/96.gav. false information to police officer No. E 1951 PC Omero that Chairman of I4ombe village had devided the I ' land in dispute for villagers to cultivate which. land was still having the said Civil Case No. 15/89 still pending in appeal to this court. From.the estimony of PW1 and PW5 although the said No. E 1951 PC Omero did' not testify in court there was enough evidence to prove that indeed the _resl?ond_ent _wnt to the SRM on 23/12/96 to complain about the criminal trespass on the land in dispute who directed the respondent to go the police to complain _cμ1d to get police officers to go and evict the village council. I.a a reult of that complaint at the: police station. PW1 went to investigate

4 the land in dispute and found th.::tt actually it was not the village'Council ., which was using that land but the·respondent himself by hiring it to 6 . .r. . ~ ·1·: · · specifial}y named people out of tl1.eril 3 testified in court 2 for \he resp.ondent and 1 for. the ... complainant. Those who testified .for· the respondent ~ f: . ♦ • - -· • ' • • were DW? _Luka Mwaisangu and Fanuel ·if,io Sawanga who testified that they hued one acre@ from the village council with 6o other co-villagers for shs.6 1 000/= \ • ,. I • • each without being given any receipts. To show that there was such hiring te respndent produced exh. D3 ieferred above in. this judgement • .. i,11 the village leaders testified that the 6 users of the land in : ..... -._ ... \ ::J . dispute inter ?,lia were namely 1. Mengo Haivenje, 2. Luka Mwaisenga, 3.·Ka.pera '' , · ,t• . .i:, . 'f : • . ·•. . '. • . .. • r_:Itosa, 4. Nonde Ha_ivenje,.,_jl·.Fam,il Sa.wanga and 6. :Malongo imalike were not -. ' . . - ' - : . . , hired the land in dispute by ime'. village council but by the respondent himself . - t. .• as par testimony of PW1 and W5·IsanJelinje Nundwe, The trial court Magistrate:i.the learned Mr. Salum (SIM) did not grasp t. • t, ' ) .. .. " • the evidence of all from both sides. He wrongly commanded th3.t the 'entire evidence was based "majungu;:- .- ;-umour - mongering between enemies who were : .... , .. ... ·. involved in a land dispute for a long time. The complaint here was not about . . . _,?, land disJ:)ute at all and ,t.he cdlnplaina.nt was not the village council. The complinant here. was the. police,)11h·0•· wer·e ordered by the court to evict the .. ·' . ··, . . v_illage council from t!le land in dispute on complaints of the respondent that the. hir~rs of ].,and authorized by.the village chirman were us'ing the land in dispute. This was found by j;l;ie police PW1 to be falsE.? information •for '.it was tho respondent himself hiretl them to use the land in dispute. For the testimoned tendered in court the testimony of PW1 and PW5 as .burstr,3ssedly the testimonies of PW2 1 PW3, PW4 & PW6 proved beyond . . reasonable coubt that the respondent falsely gave wrong information to the police station that the village chairmru:r who testified as PW2 Daniel Mwasonyanga did npt ullow the 6 peop'J.e to cultivate in the land in dispute. ·This· witness ;FW2_was not crossexamined by the land Mr. Naali (Adv.) if at all he went with . . : the :iespondent to the S1M on,. 23/12/96 to complain about the criminal trespass on the lruid in dispute. The ,.t9stimony of DW1 reletirig Pw2· is merely after . . ..

5 - thoughts. Even exhibit D2 written on 3/10/96 related a period when the .court's . . ~ ' . ., order of 29/11/93 had not been issued as yet and in relation to another land. in Izyomu-Farms, not those in dispute in.Ihombe village •. In exhibit P1 on

' .. ~ - ' the sketch map drawn by PW1 there 1s no are.a palled _Izyamu which .as ben shown. There is Ihombe, Itende and I-wi:tla areas only •. Ii.'fter all 66 hi'r.ers with one ·acre at-shs.6 1 O00/= per@ .?3-cre would mean 60 acres of ld· whih-for larger than the land in dispute the sbject.of the false information cp?U"ged in this case. The.evidence tendered in the lower court related the specific incident of a false information of the respondent that led e p9lice to· evict by' going to the; scene of the 11 trespass• 1 which proved. to be a lie knowingly . uttered.to.the.police in.tho police complaint.of the respondent. His acquittal ,t . ' ' : . . i the 2nd ground was errously reached •... It is quashed. ·The respondent as 1st accused Festa s/o Sudi is found guilty_ -of knowingly giving false informat:iri to' a pblic officer c/s 122 of P.C •.. I convict him accor,dirigly. E •. L.K. MWIPOPO JUOOB .11/5/99 I have my advocate present at the court of 0 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. £.2...ll The accused has a right to have his advocate Mr. Naali (Adv.)• The offence ccnvicted is very minor which carries a mere fine of 1000/= or 6 months imprisonment. So, 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/=. Sentence toorrow 12/5/19990 E.L.K. HWIPOPO JUDGE 11/5/99.

··- 6 12/5/99,. Mwipopo, .J •· :Vir. Nangela (SA} - Present in person for appellant Festo Sudi. - Respondent ~ present.,. -:Mr. Naali idv. for Respondent .. Present. C/C • lVir • Mwakyusa. · Q.Q__ur__i; Before Sentence· \ &,_ Napge(Sii) I have nothing to say. It means with.in my record I have no record of his previous convictions. 1s> Co1g.,tt It doesn't mean he has no previous criminal records. But, my record doesnt show so - ie The file of appeal I have here • . !i:. The court take into account the following: He is a first offender: He is 61 years old. · He has a wife & 5 children who depend on him • • The environment was v'ery.'conducive to leniency. The respo!ldcnt was protecting his farm which he was at loggershed in its ownership with the village govt. The respondent has right to protect his big farm which he bele'ived is his. . . He should be dealt with leni'ently. We will have another civil application in res1Ject of, the same. piece of la..'1.de In the other _hand applicant he wants to appeal to the court of Appeal of Tanzania. The court should take into account all these matters. :fo _co1;1.:U Festo Sudi:- I have nothing to add. I don't recall to have ever been convicted of ~criminal offence. SENTENCE This is a very minor offence of a misdemeanour 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 tobe punished by way o'f a fine. of fine. Judgement. E .. L.K. MWIPOPO JUIGE 12/5/99. i ,··i /,. ' .. F .· DISTRICT RBJISTRt.R MBEYA.