~~1Jc~HIGH COURT OF TANZANIAAT DAR ES SALAAM

CRIMINAL REV.CASE NO. 8 OF 2000CR. CASE NO. 849/99 AT KISUTU

The applicant was charged and convicted of obtaining moneyby false pretences cis 302 of the penal code, Cap. 16 of the

sentence in that he should keep dean record during all thatperiod. Besides that, it was inter alia that:

Block 44 in Kijitonyama immediatelyin favour of PW3 one Valence Matunda.

the suit premises as immediately as ordered by the court27/3/2000 as certified by a court bailiff by his affidavitdeponed and filed by him on 6/4/2000. That was nine days afterthe judgement and order. On the same day the court beiliff filed

an affidavit the applicant filed a chamber summons in accordanceto Section 368 (1) (b) of the Criminal Procedure Act, 1985 for thefollowing orders:

(a) That the honourable court be pleasedits suspend execution of an order thatdirect the applicant to vacatethe house No. 397 Block 44 in Kijitonyamapending the hearing of an appeal.

(b) That the court be pleased to suspend allother orders therein, pending hearing ofthe appeal.

(c) That any other relief(s) as the court maydeem fit and just to grant.

The application was scheduled to be heard on 12/4/2000 and it wasfurther rescheduled for hearing on 14/4/2000. on that day,before the commencement of the hearing of the application, theprosecutor of the hearing of the application, the prosecutorrequested the court to require the applicant first to show causewhy he disobeyed the count's order for immediate vacantpossession. Then the court ordered that it would hear theapplication by the applicant to have the order suspended as wellas that of disobedience of courts order for vacant possession ofthe Kijitonyama House No. 397 Block 44 which amounts intocontempt of court cis 114(1) (h) of Cap. 16.

The learned counsel for the applicant replied in thefollowing words:-

In view of the application andrequirement on accused to show cause,I have the following to say:

My client is praying on thismagistrate to disqualify himself frompresiding over this case becausehe has no confidence in you." HeStated some unfounded reasons as towhy his client had no confidenceto the trial magistrate and finallysubmitted that his client (theapplicant) "prayed for the magistrateto disqualify himself from the hearingof the matter."

The court overruled the learned counsel and still, thelearned counsel want on to submit. That his client was notready to proceed with the hearing of his application by thetrial learned Principal Resident Magistrate. The Court acceptedand adjourned the hearing of the accuseds application sine die,yet, it went on the require that accused/applicant to show causeas to why he should not be delt with for contempt of courts. Inshort, Mr. Kadogo, learned counsel for the applicant submittedthat the accused was looking for another alternative

accommodation within which he would vacate from the house with aperiod of 14 days. secondly that the accused was intending tolodge and appeal against the decision of the court.

In reply to that short submissions! the Public prosecutorsubmitted that it appeared that the accused was trying to delaythe implementation of the courts order taking into considerationthat the order was supposed to be obeyed immediately because itwas in course of Criminal matter.

After hearing the submissions! the Court ruled that theaccused had disobeyed the court order since 27/3/2000 and he hadfailed to show sufficient cause and so he was convicted ofcontempt of court c/s 114 (1) (h) of Cap. 16 of the Laws.

(1) For the offence of contempt of the court's order! heis sentenced to six months imprisonment.

(2) For the suspended sentence! he lS after today'sconviction ordered to serve it in a custodian form fromtoday.

The sentences were ordered to run consecutively so that theaccused served a total of one and a half years imprisonment. Itis from that background that the accused wrote a letter to this

court requiring the court to revise the lower courts decision forcontempt of court.

There are three reasons which are to be considered leadingto the revision of the contempt proceedings namely:-

(1) That despite being asked to withdraw himself fromthe conduct of the case he refused and proceeded tohear the application for the Public Prosecutor.

(2) That in the conviction of contempt of court, the Hon.trial magistrate convicted the accused while therewas no formal charge which was read to the accused norfact;

(3) That the Hon. trial magistrate, erred in law andinfact in refusing to withdraw himself while therewas sufficient reasons.

During the hearing of these revisional proceedings, theapplicant was no longer represented by Mr. Kadago, learnedcounsel. He was represented by Mr. Mwaikusya, learned counsel.During the submissions and reply to the submissions, neither Mr.Mwakyusa nor Mr. Mdemu, learned State Attorney did submit onground number one of the revision, that is to say that thelearned Resident Magistrate was requested to withdraw from theconduct of the whole proceedings. The proceedings show a kind ofmix up in that they relate to both the offence of contempt of

court as well as the application to suspend the eviction order.The trial learned Resident Magistrate did stay the hearing of theapplication by the applicant sine die while he relied that hewould proceed with the issue of contempt of court's order as hebelieved that the was not bias in any way. So he proceeded. Asto haw the learned trial magistrate was bias is not shown in thesubmissios of either the learned counsel for the applicant or thelearned state attorney. What is transpired is only that justafter the prosecution had alerted the court that its order forimmediate vacation of the suit premises had not been compliedwith, so the accused had to show cause as to why he should not bedelt with for the offence of courts order, then theaccused/applicant who had not complied with that order was of thefear fear that a penal action would be taken against himimmediately. So the quickest solution was.to make the court inaction by asking the trial learned Resident Magistrate todisqualify himself, that request was not conceded by the learnedResident Magistrate. The request to have the trial learned

Resident Magistrate to disqualify himself from seing to it thathis order for immediate vacation from the suit premises iscomplied with, is on my opinion an act of delaying the executionof courts orders and not an act of bias in the pact of thelearned Resident Magistrate. A courts Order is lawful unless itis invalidated by another superior order, and therefore it mustbe obeyed. A contrary view will have the undesired effect ofcreating an impasse in the conduct of the trials. The cardinalaim of reacting the offence of contempt of court is to arrest

all conducts which are aimed at or reasonably feared to be aimedat interfering with proper administration of justice. Justice H.

Msumi in the case of Yasini Mikwanga Vs R (1984) TLR 10 at page12 insisted on this point by quoting and approving a quotation inan English decided case in A.G. V Butterworth (1963)1 G.B. 696where Lord Donavan had this to say:

"The question to be decided ..in all cases of alleged contoupt ofcourt, is whether the action complainedof is calculated to interfere with theproper administration of justice.There is more than one of so interfering. "

From the quotation above, I would then ask myself if the actionof the accused of non compliance of the courts offer forimmediate vacation from the suit premises can be interpreted toamount into interfering with proper administration of thejustice. Court had made an order which order is within itspowers to make. Then the accused resisted to obey that offer andwhen the court is to ask the accused as to why he did not obey

its order, the accused replied that the magistrate shoulddisqualify himself from the conduct of the case. That behaviorof the accused is noting but an act calculated to interfere withthe proper administration of justice. The court is obliged tosupervise the execution of its orders otherwise, the court would

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be equated to a toothless bull dog which could buck withoutbiting. The learned Resident acted properly to see to it thatthe there is proper administration of courts orders. Now whetherthe conduct of the accused in not vacating from the suit premisesimmediately amounted into disobeying the courts order issubjective issue. What is immediately vacation of a suitpremises under the circumstances for a person who had been livingin the said house for years without prior arrangement for analternative accommodation. That was what the learned ResidentMagistrate was to decide judiciously-having been given thereasons for non-compliance with the order immediately, which, bythe understanding of the Public Prosecutor ment immediately afterthe delivering of the judgement and the pronouncement of theorder. That is the same day the order was made. If that is whatthe public prosecution and the learned Resident Magistrate ment,I beg to differ, each order must be taken in accordance to itscircumstances.

The learned counsel for the accused submitted in detail onthe second ground of revision, that is to say "the conviction ofcontempt of court - the learned Resident Magistrate convicted theaccused while there was no formal charge which was read to theaccused nor facts. in the first place, I have to look at theproceedings which are Self explanatory to this issue. Thelearned Resident Magistral said:

" Accused/Applicant to show cause why heshould not be dealt with for contempt

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of this court's order of 27/03/2000to vacate the House No. 397, Block 44 inKijitonyama. This is cis 114(1) (h) Cap. 16."

Mr. Mwaikusya, learned counsel submitted that the procedurein framing the formal Charge was seriously flouted. He foundsupport in the High Court case of Masumbuko Rashidi Vs R(1986)TLR 212. In that case the accused persons had wanted toengage an advocate and on the day in issue, the alleged advocatehad not yet received any instruction from the accused persons.The accused person insisted that they wanted their advocate andwhen the charge was read over to them, the 4th accused walked outof the dock, and the trial magistrate, peremptorily convicted himof contempt of court cis 114(1) of the Penal Code and sentencedhim to twelve months imprisonment. Following the decision in thethem East African Court of Appeal in Joseph Odhengo s/o OgongoV.R 21 EACA 302, the court held that

"when a court takes cognisance of anoffence of contoupt of court, it isessential that the court should frameand record the substance of the charge,read such charge to the accused whoshould then be called upon to show causewhy he should not be convicted on the charge;and the accused should be given a fairopportunity to reply. Besides, therecord of the court should contain an adequatenote of the accused person's reply, if any, as

Earlier before the decision of Chipeta J in MasumbukoRashidis' case (supra) hon. Msumi J. as he then was in the caseof Yasini Mikwanga V R (1984) TLR 10, again following the samecase of Joseph Odhengo c/s Ogongo (Supra) and AG.V. Butterworth(1963) 1. G.B696 held that

"unlike in formal criminal charge thereare no set if rules which a magistrate isrequired to comply with in draftinga charge of contempt of court undersummary proceedingsi it is enoughfor him to explain to the accused thegist of his offensive conduct, theparticular provision of the law whichcontravenes it and give him an opportunityto make a reply.

When this court was confronted again in this issue of theprocedure in cases of contempt of court, Plat J. as he then wasin the case of Sebastian Lothi and Others VR (1969) HCD 184, heconsidered the Court of Appeal for Easten Africa decision inJoseph Othengo (Supra) in which Simon J. as he then wasdifferentiated the case of Othengo and that of Hamisi s/o MuruiroV R. Cr. App No. 141 of 1968 (unreported) whereby the observationof the Court of Appeal (EA) in Odhengo's case were consideredObiter and therefore not binding, while it was said that theactual contempt might allow for a different procedure. For

example the contempt in Odhingo's case was refusing withoutlawful excuse to answer a question. Simon J. was prepared toconcede that in the case of that kind of contempt it might wellbe contrary to natural justice not to give the contemnor anopportunity of advancing a lawful excuse if he had one. The

court of Appeal for East Africa Judge, Simmons, went on todistinguish the Odhengo's case and that of Hamisi. In the Hami'scase, the contempt consisted of insults heard by the court, whichdemanded no proof and admitted of no explanation. Then it wasruled that under the circumstances in the facts found in Hami'scase, the court was entitled to punish brevi manu. On thestrength of the authorities cited above. I am inclined to followthe decision of Msumi J. in Yasimi Mikwanga (supra) together withthat of Platt. J. in Sebastian Lothel Another (supra) and holdthat is no formal procedure stated in formulating and dealingwith offences of contempt of the court, provided that the accusedis informed of the particulars of the offence and the offenceitself. He may be required to show cause as to why he shouldnot be punished for contempt of the court or he could just bepunished brevi manu.

The learned state attorney though admitted that the accusedhad disobeyed the lawful order of the court, yet he briefly saidthat for that reason alone, he could not support the conviction.Going by the records of the lower court, following the decisionof Yasini Mikangwa (supra), I am of the opinion that the triallearned Magi.strate followed the procedure. The learned Resident

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magistrate asked the accused/Applicant to show cause why heshould not be dealt with for contempt of the courts order of27/3/2000 to vacat~ the House No. 397 Block 44, Kijitonyama.That was cis 114 (1) (11) I Cap. 16. Both the section' of the relevantoffence was cited by the court, the particulars of the offencewere given to accused by the court, that is failure to vacatefrom the house as per order of the court made on 27/3/2000. Thisalso surfaces the requirements stated in Masumbuko Rashidi(Supra) unfortunately, instead of the accused showing cause as to

why he should not be convicted of contempt of court, the learnedcounsel for the accused spoken behalf of the accused. he firstdemanded that the trial learned Resident Magistrate shoulddisqualify himself from the conduct of the case. That was notthe reply needed by the court. However, Mr. Kadago, learnedadvocate after the court had refused to disqualify itself fromthe conduct of the contempt of courts proceedings, he want toshow cause, on behalf of his client and for certainty, I beg toquote him as follows:

"Mr. Kadago: The Republic through theprosecutor has applied for Accused to showcause why he should not be convictedof contempt of court. The accused hasnot infact contempted the court. He isaware of a notice to vacate the house on6/4/2000.

"Therefore the accused was supposed to vacatethe house on 6/4/2000. Therefore the accusedwas supposed to vacate said house after 14 days.The accused is therefore looking for analternative accommodation pending the outcomeof this matter ...the accused is intendingto lodge an appeal ... The accused is residingin that house. It is quite difficulty for him tovacate the house in a short time. The accusedtherefore is not willing to disobey the courtsorder. We pray on court to take all thatinto account. That is all your honour."!

Following what I had already said above at length, Idon't agree with both the defence counsel Mr.Mwakyusa and thelearned State Attorney Mr. Mdemu for the Republic that theprocedures for the offence of contempt of court was flouted. Itwas not and the accused was given an opportunity to show causeand he actually should cause only that the trial ResidantMagistrate on his subjective test did not believe theexplanations given so he convicted the accused and sentenced him.

Secondly, Mr. Mwakyusa,learned counsel stated that thealleged order which is said to have been disobeyed was issued on4/4/2000 after the application of one Matunda dated 3/4/2000, anapplication made under order 21 rule 11 of the Civil ProcedureCode, 1966. If the order took a form of a Civil nature, then it

need 14 days from the date it was issued. The accused was notserved with the order. order and was not aware of it.Thus the conviction of the accused for contempt was illegal. Thecourts order was not made on 4/4/2000. The learned trialResident Magistrate was very clear on what order he talked aboutwhen he called upon the accused to show cause. That was theorder of the court made on 27/3/2000 when the accused was foundguilty and convicted of the offence of obtaining money by falsepretences cis 302 of the Penal Code Cap 16 of the Laws. Thatorder was made in the presence of the accused and was heard byhim. He was not convicted of contempt of courts order issuedunder order 21 rule 11 of the Civil Procedure Code, 1966, and tosay that the accused was not aware of the courts order to vacatefrom the suit premises, an order made in the presence and hearingof the accused on 27/3/2000 is nothing but a misleading of thecounsels himself and the court. This ground is dismissed aslacking truth or substance worth of acting upon.

Lastly, the learned counsel for the accused submitted thathe complaint that the trial magistrate was bias so as todisqualify himself was not given serious consideration. he wenton saying that in the circumstances where were charges of theapplicant being contemptuous of the same magistrate, one wouldexpat more serious consideration as the magistrate would besitting on a matter of which he himself is a complainant. Thisview was supported by Mr. Mdemu, learned State attorney by sayingthat hon. Ihema when requested by one Mtilala to disqualifyhimself from the case and how Ramadhani, J.A when asked byLyatonga Mrema to disqualify himself from the conduct of the

case, did disqualify. Unfortunately, the learned state attorneydid not elaborate under what circumstances in which those judgesagreed to disqualify themself what were the reasons advanced bythe complainants which made the judges accept the request. Thatwas an empty handed submission.

Unfortunately, the submissions by the learned counsel cannotbe said to have a support of any authority. It was not bedifferentiated from a laymans submission. I say so because evena lay man could just submit as did the learned state attorneythis matter. I don't subscribe to that kind of submissions madeby a learned state attorney appearing for the Republic. I wouldtherefore say that none of the learned counsels did cited anyauthority to establish the biasness of the trial Residentmagistrate when calling upon the accused to show cause why heshould not be convicted of defaulting his order made on 27/3/2000for the accused to vacate the suit promises immediately.Immediately as I had said earlier could mean just on the very daythe order was made or any other near date and that is why thelearned Resident Magistrate wanted to hear the accused person

before convicting him and sentencing him. Contempt of courtsordered are offences which a court takes cognizance, it is ineffect assuming and exercising a jurisdiction to deal summarilywith the offence and it is essentially not calling for furtherevidence to prove it. The offence is already committed in theeyes of the court soit doesn't need another magistrate whodoesn't know anything about its commission to deal with the

learned trial Resident Magistrate stayed sine die the hearing ofthe application by the accused for staying the execution of itsorder, but rightly, on my opinion continued to deal with theoffence of contempt of court.

Mr. Mwakyusa learned counsel had submitted on the point ofbias that the learned magistrate was interested in the case, asdid the prosecutor. So his continuing with the case even after arequest to disqualify himself violated the principal of maturaljustice. The learned Resident Magistrate had no interest in thecase nor is there any evidence to that effect, bit his interestwas to see to it that the courts orders are obeyed. If amagistrate makes an order which is not obeyed then the motionof the rule of law will not be in existence. Courts orders mustbe obeyed and the courts should see to it that such orders and ordecisions are obeyed for proper administration of justice.

After my lengthy elaboration as to the law in regard tocontempt of court I now proceed to, on my own motion to make aruling whether the trial learned Reside~t Magistrate was right ornot in combining the hearing 0 the application by the applicantalready filed to suspend the execution of an order that directedthe applicant to vacate the house No. 397 Block 44 in Kijitonyamapending the hearing of an appeal and the Verbal request by the

public prosecutor for accused to show cause why he should not beconvicted of contempt of court. This application was set forhearing on 12/4/2000. On that day the accused's advocate was

absent and the hearing was set for hearing on 14/4/2000. It wason that day when the trial magistrate decided to hear the twoapplications simultaneously. The accused felt bias on the partof the learned Resident Magistrate as there was no justificationas to why his application should not be heard, an applicationwhich requested the court to stay its order for the accused tovacate from the suit premises.

I am of the considered opinion that the learned Residentmagistrate might not have been bias on the face of it, hebelieved that his order had not been complied with, and thereforehe failed to control his patience so that he could first hear theapplicant/accused as he might have good and reasonable reasonswhy he should not vacate immediately. Such reasons asavailability of an immediate alternative accommodation. The nonpatience of the learned Resident Magistrate to ear first theapplicant/accused made the accused to think that the trialmagistrate was bias, even if he is not. That the best test isnot whether the magistrate's acts in a prejudicial manner, butwhether there exists in the mind of the accused a reasonableapprehension that he will not have a fair and unprejudiced trialbefore the magistrate in question. Borrowing the words of LordDenying in Metropolitan Properties Co (F.G.C) Ltd. V London(1969) IQB577 at p. 599 quoted by Kazimoto J. as he then was inRepublic Vs Athuman Rajabu & others (1989) TLR 44, his lordshipsaid:

confidence is destroyed when right- minded people go away thinkingThe judge was biased."

Now on the case before me, the conduct of the learnedResident Magistrate in accepting to hear the application forcontempt of court before hearing the application for stay ofexecution by the applicant really eroded the confidence of theaccused person thinking that the magistrate was biased anddemanded him ~ disqualify himself. Only on that part of thethe revision, I am inclined to say that the trial learnedResident Magistrate should not have combined the hearing of thetwo applications and his acts of so combining the hearing of thetwo applications made the right thinking people think that he was

A.R.~

Mr. Msuya - for Applicant,Miss Maganga - for respondent.