John Lui v. R., Crim. App. 387-D-69, 26/9/69, Georges C.J.

John Lui v. R., Crim. App. 387-D-69, 26/9/69, Georges C.J.

The appellant was convicted of three offences against the Penal Code: contempt of court c/s 114(c), disobeying lawful order c/s 124 and resisting arrest c/s 243(b). The appellant appeared before the Senior Resident Magistrate Dar es Salaam in another criminal matter which was for mention that day. The Senior Resident Magistrate fixed a bail for him with a surety. The appellant said that he should be released on signing his own bond. The Senior Resident Magistrate would not agree to this and asked the appellant to leave the dock. The appellant refused to leave. The Senior Resident Magistrate asked the orderlies to remove him. He rested, and caused a disturbance. It was no longer possible to continue the court proceedings and the magistrate rose. At that stage the police officer in charge of the court summoned other police officers and the appellant was eventually subdued and removed.

Held:(1) With respect to the conviction for disobeying a lawful order c/s 124, the question arises as to whether the magistrate made any order within the meaning of the section. In the only East African case on this point, R. v. Mdeda

            Okaya and others 19 K.L.R. 95 it was held that an accused who had disobeyed a summons to appear at the hearing of his matter was guilty of an offence under the equivalent section of the Kenya Code. The court stated that the summons was clearly an “order” and the fact that a warrant could have been issued to enforce it did not prevent the application of the section. “In Tanganyika, however, the trend of authority is different. Although section 124 itself has no been considered it has been held by Saudi J. in Salehe Alemasi v. Republic, Law Report Supplement No. I dated 18.6.65 p. 19 that failure by an accused person to appear to a court in answer to a summons was not a breach under section 117 (b) of the Penal Code [the contempt section].The learned judge held that section 101 of the Criminal Procedure Code was a specific provision of the law prescribing the mode of dealing with an accused person who disobeys a summons to appear personally Mr. D’Souza has argued that the section should be restrictively interpreted. I understood him to urge in effect that the word ‘order’ could be restricted in its meaning to formal orders of the court in which case asking an accused person to leave the dock so that following matter could be dealt with could not be an “order” within the meaning of the section. I am myself sympathetic with this approach as it is in the nature of things desirable to define with strictness conduct which can be characterised as a breach of criminal law. To place a wide meaning on the three words, order, warrant or command could lead to repressive use being made of the section. It seems, however, difficult to formulate on interpretation of the section which is both restrictive and logical. It would appear to me for example, that the word ‘order’ is linked grammatically in the section not only to court, but also to any “officer or person acting in a public capacity”. If that is so then, clearly, the word could [not] be restricted to some formal orders made by a court. On the other hand, the use of the words “duly made, issued or given” would seem to involve rather more formality than is usually associated with oral commands. It may be argued that these words in some case bring in the concept of promulgation contained in section 188 of the Indian Penal Code Act 45 of 1862, to which Mr. D’Souza referred me as being probably the section most analogous with section 124 of our Code. the fact is, however, the word promulgation has not been used. It could be said that a command is duly given at the very moment when it is spoken, so that if the person gibing the command is authorized to do so then disobedience to it falls within the meaning of the section. I would hold, therefore, that the appellant did commit an offence against the section and was rightly convicted.” (2) Conviction for resisting arrest quashed. (3) Conviction for contempt of court upheld.