M.M. Hirji v. R. Crim. App. 149-D-70; 18/5/70; Makame, Ag. J.

M.M. Hirji v. R. Crim. App. 149-D-70; 18/5/70; Makame, Ag. J.

The Dar es Salaam District Court summarily convicted the appellant of contempt of court and sentenced him to a fine of Shs. 400/- or one month’s imprisonment. The facts of the case as found by the trial court, were as follows. This offence took place within the court’s view. The accused entered into court informally without taking cognizance of the court and surveyed around. After satisfying himself – all this time still standing right in front of the court – the accused turned around and talked to some other person that was outside the court while the accused person himself was still in court. All this time the court was listening to a witness. The court called on the accused and asked him what the problem was and instead of the accused answering verbally, he just nodded and threw his head up as to question the authority of the person questioning. The counsel for the appellant urged that the magistrate short-circuited the procedure, and argued that a plea of not guilty should have been recorded, evidence heard, and a finding made on the evidence adduced. He suggested that the case should have been heard by another magistrate and said summary proceedings should be used only as a last resort.

            Held: (1) “I must say at the outset that I agree with the learned counsel for the appellant that summary proceedings for contempt of court should be rarely employed. The court has power to commit summarily for contempt, but it must always be remembered that this power allows an exceptional, though in appropriate cases desirable interference with individual liberty, so it must be used only rarely and very cautiously.” (2) “However, having said this, it must be remembered that summary proceedings in a situation like the one revealed by the facts set out by the learned magistrate in the instant case is allowed, and the whole point of such a provision is to “short-circuit” the usual procedure, to use the learned counsel for the appellant’s apt expression. The law allows the court to “take cognizance of the offence and sentence the offender.” As the learned trial magistrate observed, the appellant’s conduct was “unbecoming even in an ordinary office”. And there can be no argument of an over finding of mens rea. The appellant is not a privileged commentator on his actions. His behaviour was clearly contemptuous, and he cannot be heard to say that he did not mean offence.” (3) “The failure to frame a formal charge and set out the particulars cannot reasonably be said to be fatal in the present case. It is a procedural formality which does not affect the justice of the case.” (4) “I find that the conviction cannot be faulted, and accordingly I dismiss the appeal against it.” (5) “With respect, I agree with the learned counsel for the appellant that the maximum punishment for an offence, which is what the appellant got, must be imposed only in extreme cases, in the present instance for the most contemptuous behaviour, which the present appellant’s got, must be imposed only in extreme case, in the present instance for the most contemptuous behaviour, which the present appellant’s cannot be said to have been. The fine of Shs. 400/-, which the appellant has already paid, is therefore reduced to Shs. 400/-, which the appellant has already paid, is therefore reduced to Shs. 250/-. The difference of Shs. 150/- should therefore be refunded to the appellant.”