John Gilbert Bayo vs Republic (High Court Criminal Appeal No. 196 of 1989) [1990] TZHC 466 (21 October 1990)

• ... --:· __ _ c._ . IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION ·H-IGH COURT CRIMINAL APPEAL No·. 196 OF 1989 ! ORlGINAL CRIMINAL CASE No. 158 OF 1988 OF THE DISTRICT COURT OF 1 , ARUSHA DI.STRICT AT ARUSHA ·, Be.fore: .A .C .NYERERE Esq, RESIDENT MAGISTRATE JOHN GILBERT BAYO •••••••• ~ •••••• APPELLANT VERSUS I THE REPUBLIC ••••••••••••• · ••••• RESPONDENT JUDGMENT NCHALLA_, J. The appellant, one JOHN GILBERT BAYO, was charged before the District Court at Arusha with two Counts. On the 1st count he was charged with dissuading persons from assisting with . . . self help schemes c/ s 89 C ( 1) of the Penal C_ode '. On the 2nd count he was charged with malicious damage to poperty c/s . ' . '. 326 (1) of the Penal Code, Cap. 16. The appellat was convicted on 1st count, while he was acqu.i:t_ted on the 2nd- -oot.mt,. He ha~ . . . . appealed to this eourt against conviction, sentence and order· to pay a contribution of 400/= pls 50% thereof being distce , fine, total Shs. 600/=. Mr. Sang' ka,· learned 'advo.cate,. represented the appellant in this appeal and also argued the appeal. The Republic was represented by Mr. Mwidunda, learned State Attorney~ · Mr. Sangi ka vehemently challenged and· attacked the decision of· the trial lower Court. He submitted that the particulars of the charge did not disC.:lose an offence under se.ction 89 C (_1) of the Penal Code under which the appellant was charged in 1st count. It will serve quite a useful purpos€t ..... , ....... I 2

2 to reproduce the particulars of the charge in 1st count. They are the following:- " That John S/0 Bayo charged on the 9th·day of September, 1988 at about 15.00 prs at Moivo Village within the Arum.eru District Arusha egion with intent to impede did prevent one Catherine d/o James a Village Secretary from assisting people to build· . . CCM office a self help scheme approved by the District Commi- ssioner of Arumer\1 .Dis·trict reference DC/ARUM/C. 20/89/dated 23rd June 19$8.. 11 · ...... • . . It will also.be of advantage for this Court to reproduce ,, . the provisions of section 89' c ( I) of the Penal Code under which the offence in 1st count was preferred. Those provisions are the following:- ... 11 89 c (I) Any person w11.Q, with intent to impede, Obstruct, prevent or defeat any sel.:f help scheme approved by the Regional Oommissioner or the Area Commissioner. (D.istrict- Commissioner) or any self-help scheme of a type approved by th Regional Commi.ssioner or· the Area Commissioner,dissuades or attempts to dissuade any person ffom offering his servicesJ or from assisting, in connection' there witht. ~hall, be_guilty of an offence-and liable ¢n conviction to a fine•riot exceeding one thousand Shilings, or to imprisonment for a term nbt exceeding six. months, .or to. both such fine and imprisonment. 11 t It .. is evident from -the above. quoted provisions of section 9 c(I) p! the. Penal Code, tap.· 16 that th& ingredients ·of the offence created under that sec-tion ,are these:- ( 1) Any person · t9 . .. . (2) With inteny_impede, Obsruct, .pr.event or defeat (3) Any self - help scheme.approved- by -the Regional Commissior or the District Commissioner •............ /3

3 .:. 4. dissuades or ttempts to dissuqde any perssn . . 5. From offering his services, or from assisting in connection . therewith. I · The particulars of the charge in 1st count as reprouced above do not include the vital ingredients of the offence as set out in items (4) and (5) above. J:B,,en the ingredient in ' item (2) that •is, 11 with-intent to i;npede 11 , is ambiguous. A vital question is left unanswered thus: T impede what? The words used in the particulars of the charge ths "did prevent one Catherine d/o James a village Secretary from assisting people to build CCM office etG., 11 are .improperly used, becal.1S e they import a·different ingredient of an offence other than the :i,.ngredients of the offence under section 89. c ('I) of the Penai Code •. The relevant ingredient contemplated in the seOtion is" to prevent any self - help scheme approved by the District Commissioner 11 not to prever.1.t a person; Under the circumstances, I quite agree with Mr. Sang'ka, learned counsel for the appellant, that the particulars of the-offence in 1st count in the' charge in. this case did not at 9-ll disclose an. offence under section 89 c (I) of the Penal Code, as the vital ingredients of.that offence as stated in item (4) and (5) above were omitte. It is stressed that the charge in 1st count ought to, have stated that 11 the accused ·issuaded Catherine d/o James or any.person from offering his/her services or assisting in connt:Jction therein. 11 The charge was therefore defective in 1st count* and the defect . . . is incurrable •. This finding alone would have settled the decision of this appeal. However~ I must furtherCXl1Sid~ the rest of the submi- ssions by Mr. Sang'ka and'those of M~. Mwidunda, learned Stt Attorney, wh~-, did not support the conviction, sentence ~ ............. /4 \

4 and order that were pas.sect by the trial,. subordinate Court. I deem it quite appropriate and perhaps necessary for the interest of the general public to make definite findings on all the issues that were·canvassed on appeal, which I find to be of great public impqrtance • . Mr. Sang'ka submitted further that, indeed, there was the ·self - help scheme referred to in 1:;he charge which scheme or project had been api)roved by the District Commissioner for . . Armeru District, as evidenced.by his letters Exhibit. P1_ and . · P2 •. It. will .be of advantage to reproduce· those letters. The , first l'etter is•ctated 20/1/88 whi.ch is Ref. No. AC/ARUB/,C.20/89 / 198 address.ed_ :to· the Chairman, Moivo Village, . Arumeru (Exhibit .P:1) is as follows: ; ·.·.: ·n YAH: KIBALI CHA MCHANGO 'I Reja .nakala ya muhtasari wako wa mkutano wa had.ham':a wa Tawi wa tarehe 9/1/88 :na barua· yangu Kumb. Na •. DC/ARUM/C.20 /89/167 ya tarehe 15/1/1988. -- Kibali kimetolewa ili uweze kukusanya mchango kwa ajili ya ujenzt wa offisi ya :Chama. Kibali hicho ni kuanzia tarehe• 27/1/88 hadi tarehe 30/4/88. Vitabu vya stakabadhf zitakazotumika ni kama vifua~vyo:- ' Na: •.......••. ·• ....•...•... • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Muda wa kibali hiki ukimalizika itakubidi upeleke vitabu hivi kwa Mkurugenzi Mtendaji (W)· ftrurneru kwa ukaguzi.; .. " .... .,. Sgd: B.M. Kaviahe Mkuu· wa Wi1aya ARUMER'C' ll I ••••••o•••o•_•/5

5 Nakala kwa:- .. . .... . .. . . . . ................ . . ........ •· ...... . . . -· The second letter (Exhibit P2) is dated 23/6/1988 and is Ref. No. AC/ARUM/c."20/89/189 addressed to the same Chairman as follows: 11 KIBALI'CHA KUONGEZA MUDA WA MCHANGO Rejea barua yako Kumb.Na. KIJ/MO 1/7 ya tarehe 11.6.88. Natoa kibali kwamba mchango uendelee hqdi tarehe 309.88. . . Masharti· ya kuchangisha yatabaki kama vile yalivyo katika barua yangu KUmb. Na.' DC/ARVM/C.20/89/168 ya tar.ehe 20/1/88. IH tabu vi ta kuwa ·ni vile· vi"le vilivyotajwa katika barua hiyo. J Sgd: B.M. Kavishe Mkuu wa Wilo.ya ARUMERU II • • • • • • • • • • • • • • • • • • • • ........... 0 •••••••••• In,pursuance of the approval given by the relevant Distri- ct Commissioner .as indicated above, the Moivo Village Secre- tary, one C<:3-therine d/ o James (P. VT. 7'), went' about collecting contributions which had been set and approved at Shs. 400/= per person as evidenced by the copy ·o:r minutes of the Moivo Village Council meetings (Exhibit.P3 and P4). It is stated in the mihutes·of the said Village Cocil meeting (ExhibitP3) that any persop. resident of Moivo Village who did not raise ••..•..... /6 .. ;..' · :_:•,·i-\ ii:'"o~; ~'

6 his or her contribution of 400/= within the stipulated time would have to pay .. an addi tiona1,.&¥tJ%t of the amount of the set contribution of 400/= per head. This eans such person would pay 600/=. inclusive of the 50¾ penalty, on 400/= for late payment of that contri.bμt,ion..- . . ' . P.W.7 in the company of .militiamen went to the house of the appellant to collect the said contribution, but the appellant was not at home at tha material °½ime •. He had gone on a safari. Appellant's wife was at home, and she explained to f'.-.-.7 t:n ~ th0 militiamen that her huband, the appellant, wa~ on safari. P.W.7 and the militiamen demanded with all the th · . · ... manaces thaiJ.goulti create to be paid the contribution of 400/=, · but appellant's wife said she had no money, and she pleaded with. P.W.7 to wait.for the return of the appellant .who would ... . . pay tbe said contribution~ P.W.7 and the militiamen would not ,.agree to wait ·for the appe1lant_' s return •. They simply· decided to seiz·e · two chairs belongip.g_ to th~ appellant. This they did in . compliance with a ·resolution to t effect which is conta- ined- in :the Village Council metig miutes (Exhibit P3 & P4). Appellant's two chairs were forcibly seized from his house in his absence and in vigorous protest by appellant's wife. Those chairs were taken to the house of P.W.2 to be kept pending their redemption by the appellant on payment. of 400/ = plus 50% pena- 1 ty ~ The appellant later returned to .his -hose· and·was' infor- «.. . ... . : . ; med by his wife of the seizure _of, )its two chai-rs. · Appellant ' . went straight to. P.W.2's house and removed. his· two chairs and '' . took them back home. Mr. Sang'ka argued th1t, from the facts of this cas.e the act of P. vf. 7 in seizing two chairs from the house of the appellant in his absence, and without the consent · ,,rife who W:J.S present ,Jt ci.peIIc.t s ,. Iiome of appellant's 1-~ was illegal and ltravires. In the first ·. , . r . . place the Distrfcf. c·ommissioner Is app:r-opl of the scheme as contained in the letters exhibits P1 and,Ldid not cover an approval for ·distress of prop~rty from the Villagers. Moreover, • • •-1 ' l # •...•...... /7

7 the value of two chairs thnt were seized from appellant's house was Ostensibly greater than the 400/=·which P.W.7 wanted as contribution from the appellant. Furt:1er, from these fact~, it is not established that_,the appellant dissuaded any person from offering his services 9 or from assisting in connection with the self - help scheme in question. Mr.Sang'ka submitted thnt the appellant merely resisted from his chairs being detained in distress. Appellant'& resistence cannot be · is equated with dissuasion in law, whichlan ingredient of the offance under section 89 c (1) of the Penal Code, Cap. 16. Moreover, the appellant had a bonafide claim of right on his two chairs that were seized iri his absence and without· his consent. I quite agree with Mr.- Sang'ka's arguments that Moivo Village Council had no jurisdiction in law to make a resolu- tion ::irecting .Jistr2ss of property from thE? members of its Village for failure to raise the contribution of 400/= towards the contruction of a CCM building of the Village. Su.ch distress ought to have been contined in the District Commissioner's letters of approval in respect of that scheme. This was not the case .•. The said distress directive or resolution was and . is therefor illegal and incompetent. It is'ultra vires. SimilarJ.::--· to the. 50%.penal ty for failure to make the said . .. was ilTegaI . contributio Mo~eover, the Regional Commissioners and District Commissi_oners are not generally empowered to make orders in. the nature of taxation or distress, unless they.are so empo- . . wered b¥ a specific legisiation. So, the District Commissioner in this case could riot approve distre,ss of property for failure to -make the c<:mtribution of 400/=, because there is no general provision of iaw empowering District Commissioners ' to make $UCh approval. It. m•.lSt be borne in mind that self-help schemes are not a kind of forced labour. They are schemes which are launched and carried out through mobilazation and persuasion, not by force. Even the contributions which are made ·on a self - help scheme ar2 made on the same· line, that is they ••••• (I ••••• /8

8 are consentual not obligatory. The appellant was free to contribute· or not to contribute, and his refusal or failure to make· the contribution would not be met with penalties or sanctions as was done to the appellant in this case. Thts is the position at law, and even from what all politicians advocate from the plntforms. All leaders both in Government and in our solo and Mono party - CCM, should: kn.ow the leg.il position oh this point, as the same is contained in the supreme law o~ te l?' that is our Constitution. And /bove all, the Courts· of· this country which _are the fountainstice, and are chargetl-with the precious duty ·of'safeguarding the-ineli- • , • ~ I . enable rights of individuals and those of the general public, have to krtow the legal position of·this matter, and should im- plement_ it without fear or favour, in accordance with the oath of -their. office, tha·t •is the oath of oifice taken by all Magi- strates and judges.·· Mr. Sang'ka referred this Court to a deciion of this Court on the funda-mental rights of a person over individual or private property as contained under the Constitution. This is the case of JOHN MUNYUGU and Anotb.er V. DONALD KWAIMBIRA & ANOTHER HLC CIV. t.· 15/1986 MWANZA Regis 0 :try (unreporu;ri) by. Mr. Justi~~~Mwa'.lusanya. Mr. Sang'ka submitted that the decision of that case is relevant in this case because the right of the .. . ' appellant ovel;" ·'his private :rroperty, that is, the two chairs, has been violated. I could not get the report on the case cited by Mr. Sai-ig'ka. However, I b~lieve that the said decision contains a correct principle of law on the question of the right to individual or private property which is safeguarded under our Constitution. I have had recourse to our constitution. Only the Swahili version of our Constitution was available to me, but even that one I had to borrow from somE one. There is no single copy of the Constitution in the Hi[h Court library at Arusha • • . . . . • . . . . /9

II"· .... 9 of the const:i. tution Nor is there any copyi.2,t the Attorney General's Chambers at Arusha. This is a very sad and depl;orable situation which has gt to be remedied immediately. ·This situation gives a very bad picture to this Registry, and t·o the Attorney General's Chambers at Arusha. In the name of justice and professional commitment and standards befitting the bench and the bar, I call upon al1 those ,conc.erned to strive to secure a copy of our constitution for use in the library both at this Registry and at the Attorney General's Chambers at Aru'sha. From the provisions of the Constitution in Kiswahili version which is available to me, which none the less will meet the purpose .of my Jdgment, since all of those persons whom it 'is intended ·-to ;guide and instruct _are convesant with the Kiswahili lapgua:g-e,the _following Articles are relevant and I reproduce them as follos:- 11 10(3) Chama Kitakuwa na jukumu la kuhakikisha kwamba vyombo vyote vilivyokahidhiwa utekelezaji wa shUghuli za Umma vinateke-leza shughuli hizo kwa kuzingatia·kwa makini masharti ,1a Katiba hii. na · Sheri,3. za Nchi. 11 1 rr 24{ 1.)-1- .Bila va kuathiri h. . h . k .£....:1asharvl ya sneri~ za nc 1 zinazo us~ a, ya kummliki mali,•na haki ya,hifadhi kwa kwa mujibu wa sheria. kila mtu anayo haki mali yake aliyonayo (2) Bila ya kuathiri masharti ya ibara ndogo ya(1), ni maru- fuku kwa mtu yeyote kunyant;'anywa mali yake kwa madhumuni ya kuitaifisha au madhumuni 1 mengineyo. bila ya idhini ya sheria ambay? inawf:ka masharti · ya kut'oa fidia inayostahili. " ! The aov qus'ted· A~ticles o! our Constitution are quite clear and specific on the question of the right to individual or private property and the.right for such private property to be prosected. Also Article 10 is a caution to all concerned that every action or exercise done in carrying out or imple- menting public functions should be done in accordance with the_liaws the land and the ·.:onsti tution. Anything done to the ••••••..••• I 1 o

. . ..... -•- 10 contrary as the Moivo Village Council did in implenting the self - help scheme in this case py distressing property and imposing penalties to Villagers who refused or failed to pay contributions towards the construction of a CCM building, was both illegal and unconsi:i:ttilttcnil, and hence null and void. As I said, Mr. Mwidunda, learned State Attorney, conceded to the appeal. He did not sut>"port the conviction, sentence and the order for forced contribution to the tune of 600/=, that were made· and imposed on the appellant by the ·trial subordinate Court. Mr. Mwidunda's reasons for his stand are.the same and similar to the reasons that Mr. Sang' ka, couns.el for th.e appellant has argued nnd submitted on appeal • . After hearing this appeal, I dlllowed i:t ·in toto., I qua- shed the conviction and set aside the sentenoe of 1000/= fine or six months imprisonment that was impo?ed on the appellant by the trial District Court. I ordered th.ut the said fine, if paid,· be refunded to the appelLmt by the Judiciary.· Equally I set aside the order for,600/= contribution and penalty that was "•l · m2cle by the trial subordinate Court on 'the appellant. ·That money, if paid, should be refunded to the appeliant by Moivo Village Council, unless the appellant admits to forgo it. In defalt of refund of the said contribution distress to issue against Moivo Vilage Council. I delivered.my judGment on 14/8/90 in.open ourt, at Arusha, in the presence of both.parties. I reserved reasons . . . . . for my decision It is for the reas.o:is that I have given in extenso in this judgment that I .allm--red the appea'J, in .:Lts 'entiretlc MDN/mk I informed the parties of their appeal rights.· . /«JJf:)l'; fl //).() . M. D. NCHAL~~ Ju D·'G I 21 / 1 0 / 1 '.J 90 •