REPUBLIC v JOSEPH MBOLOLE 1987 TLR 30 (HC)

 

REPUBLIC v JOSEPH MBOLOLE 1987 TLR 30 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

24th June, 1987 B

Flynote

Criminal Practice and Procedure - Appellate jurisdiction - Charge -Neglect of official duty - Whether there was a specific law imposing a specific duty on the person charged - Sec. 121 of the Penal Code.

Criminal Practice and Procedure - Lawful orders - Whether the order made by the District Commissioner is valid in the eyes of the law.

Criminal Practice and Procedure - Repealed laws - No similar laws in existence - Whether applicable.

-Headnote

The accused, one Joseph Mbolole, a ward secretary at Ndeki Village was charged with the offence of neglect of official duty contrary to Sec. 121 of the Penal Code. That the accused failed to perform his official duty as provided for under sec. 7(1)(a) (i) and (ii) of the Cotton Ordinance Cap 362 of the Laws. The accused is said to have failed to instruct farmers at said village to remove refuse of cotton plants in their farms as ordered by the District Commissioner.

Held: 

(i) An offence of neglect of official duty under Sec. 121 of the Penal Code can be said to have been committed only if, there is a specific law imposing a specific duty on the person charged;

(ii) the order made by the District Commissioner is not valid in law as it did not have legal backing;

(iii) there was no offence committed by the accused person;

Case Information

Conviction quashed.

No case referred to.

[zJDz]Judgment

Chipeta J.: On 17th February, 1987, I quashed the accused's conviction set aside the sentence and ordered that the fine paid be refunded to him forthwith. I reserved my reasons for doing so, which I now give.

The accused, Joseph Mbolole, was charged in Nzega District Court with the offence of neglect of official duty. c/s 121 of the Penal Code.

When the charge was read over and explained to the accused, he stated: 

It is true. I neglect (sic) my official duty.

In the facts given by the prosecution, it was stated that the accused, as ward secretary at Ndekeli village, failed to perform his official duty under section 7(1) (a) (i) and (ii) of the Cotton Ordinance Cap 362 of the Revised laws in that he failed to instruct the farmers at that village to remove refuse of cotton plants in their farms as ordered by the District Commissioner.

Unhappily, as the learned state attorney pointed out, the Cotton Ordinance was repealed by section 62 of Act No. 3 of 1973 - itself repealed by the Cotton Marketing Board Act, 1984. The current law contains no provisions similar to those in section 7(1) (a) (i) (ii) of the repealed Cotton Ordinance.

An offence under section 121 of the Penal Code can be said to have been committed only if there is a specific law imposing a specific duty on the person charged. In the absence of any such law, as was the case here, a conviction under section 121 of the Penal Code cannot be had.

In other words, whatever order was made by the District Commissioner does not appear to have had the backing of any law.

It was for these reasons that I quashed the accused's conviction which, incidentally the Republic declined to support, and set aside the sentence.

Conviction quashed.

1987 TLR p31

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