YASINI MIKWANGA v REPUBLIC 1984 TLR 10 (HC)

 

YASINI MIKWANGA v REPUBLIC 1984 TLR 10 (HC)

Court High Court of Tanzania - Mtwara

Judge Msumi J

March 27, 1985

CRIMINAL APPEAL 15 OF 1982

Criminal Law - Contempt of court - Accused refuses to answer a question from a coaccused

- Presiding B magistrate overrules such objection - Accused still refuses to

reply - Whether accused is guilty of contempt of court, (s.114(2) of the Penal Code).

Criminal Practice and Procedure - Contempt of court - Magistrate convicts accused

person in a summary proceeding without drafting a charge of contempt of court -

Whether failure to do so occasioned a failure of C justice.

-Headnote

The appellant and three other persons were charged with shopbreaking and stealing

contrary to section 296(1) and 265 of the Penal Code. In his defence, the appellant

opted to testify on D affirmation, and while he was being cross examined by one of

his co-accused, appellant refused to answer one of the questions put to him

contending that it was irrelevant. The District Magistrate E overruled the objection

and ordered the appellant to answer the question, but the appellant refused to answer

it. It was at this juncture that the magistrate decided to take cognizance of the alleged

contemptuous conduct and summarily convicted him under the provision of section

114(2) of the Penal Code.

Held: (i) In every case where the court rules out that the witness should answer the

question, then F the witness ought to comply, except where he is impaired by

physical infirmity or otherwise;

(ii) unlike in formal criminal charge, there are no set rules which a magistrate

is required to comply with in drafting a charge of contempt of court under summary

proceedings; it is enough for G him to explain to the accused the gist of his offensive

conduct, the particular provision of the law which contravenes it and give him an

opportunity to make a reply. H

Case Information

Order accordingly

Cases referred to:

1. Joseph Odhengo s/o Ogongo v R. (1954) 21 E.A.C.A. 302.

2. A.G. v Butterworth (1963) 1.Q.B. 696 I

1984 TLR p11

MAINA J

A Y.A.S. Mchora for the Appellant.

[zJDz]Judgment

Msumi, J.: Appellant was summarily convicted of contempt of court contrary to

section 114(1)(b) of the Penal Code. He was sentenced to six months imprisonment.

B What happened is that appellant and three other persons were charged with

shopbreaking and stealing contrary to section 296(1) and 265 of the Penal Code. In his

defence appellant opted to testify on affirmation. And while he was being cross

examined by one of his co-accused, appellant C refused to answer one of the

questions put to him contending that the same was irrelevant. It would appear the

alleged question concerned a case of which appellant was previously convicted. The

learned trial district magistrate overruled the objection and ordered the appellant to

answer the question. But appellant stuck to his guns; he refused to answer the

question. It was then when the D learned trial magistrate decided to take cognizance

of the alleged contemptuous conduct and summarily convicted him under the

provisions of section 114(2) of the Penal Code.

The learned defence counsel, Mr. Mchora submitted, as his first ground of appeal, that

the alleged E offensive conduct of the appellant did not amount to a contempt of

court. This view was emphatically shared by the learned Senior State Attorney on

behalf of the Republic. With respect, I am of the contrary opinion. Appellant's

conduct clearly contravenes subsection 1(b) of section 114. F It appears both learned

counsel have in their minds either subsection 1(a) or 1(i) of section 114. Otherwise it

is incomprehensible how the conduct of the appellant can be excluded from being

contemptuous under subsection 1(b). Perhaps I may do a great service to the learned

counsel if I quote the said subsection:

G "114 (1) Any person who -

(a) ....

(b) having been called upon to give evidence in a judicial proceeding, fails

to attend or, having attended refuses to be shown or to make an affirmation, having

been sworn or affirmed, refuses without H lawful excuse to answer a question or to

produce a document or other thing, or remains in the room in which such

proceedings is being had or taken, after the witnesses have been ordered to leave such

room; is guilty of a misdemeanour, and is liable to imprisonment for six months or to

a fine not exceeding five I hundred shillings (the emphasis is mine).

1984 TLR p12

MAINA J

It is true that as an accused, appellant was not a compellable witness hence it cannot

be said that he A was called to give evidence. But once appellant had opted to testify

in the witness box he automatically subjected himself to all rules governing witnesses.

For example like other witnesses he was required either to affirm or swear and he was

subject to cross examination. In this case when the B appellant refused to comply

with the trial magistrate's order that he should answer the question he was clearly

contravening the provision of subsection 1(b) of section 114. In Joseph Odhengo s/o

Ogongo v.R ((1954) 21 of E.A.C.A. 302 appellant was summarily convicted of

contempt of court contrary to section 116(1) (b) of Kenya Penal code which is in pari

materia to our section 114 1(b) of C the Penal Code. In principle the Court of Appeal

for Eastern Africa agreed with the trial judge that appellant's refusal to answer

questions put to him as a witness was contemptuous.

Perhaps one of the questions which may arise at this juncture is whether appellant

had lawful excuse D not to answer the question notwithstanding the court's order

that he should do so. I am of the view that except where the witness is impaired by

physical infirmity or otherwise, in every case once the court rules out that the witness

should answer the question then he ought to comply, otherwise E he will be liable

for contempt. The trial court's order might be legally wrong; for example where the

magistrate allows question which has the effect of extracting some inadmissible

evidence such as previous conviction, as in this case. All the same, that order must be

obeyed. Any contrary view will F have the undesired effect of creating an impasse in

the conduct of the trials. The cardinal aim of creating the offence of contempt of

court is to arrest all conducts which are aimed or reasonably feared to be aimed at

interfering with proper administration of justice. As pointed out by Lord Donavan in

A.G v Butterworth [1963] 1 Q.B. 696 that: G

The question to be decided... in all cases of alleged contempt of court, is

whether the action complained of is calculated to interfere with the proper

administration of justice. There is more than one way of so interfering". H

No doubt one of the essential conditions for proper administration of justice is that

there should prevail discipline in court throughout any trial. This condition will

definitely be undermined if any party in the trial was to be allowed with impunity to

defy an order of the court on the ground that the I said order is illegal or

1984 TLR p13

MAINA J

A otherwise improper. I don't think that the legislature meant to tolerate such

condition when it impliedly exempted a witness, under s.114(1)(b), from answering a

question by giving lawful excuse. Any statutory provision which directly or indirectly

purports to strip off the courts' inherent power B of maintaining law and order in

the course of a trial must be viewed with circumspection.

In his second ground of appeal the learned defence counsel submitted that the trial

magistrate ought to have framed a charge which should have contained the gist of the

purported contemptuous C conducts. The learned counsel is of the opinion that the

trial magistrate failed to do so hence there resulted a failure of justice. Again the

learned Senior State Attorney found this argument irresistible. With respect, I am

again unfortunate in finding myself holding a different view. I admit that section

114(2) under which courts are allowed to take cognizance of certain contemptuous

conducts and D convict a person summarily has been repeatedly interpreted by this

court and courts above as requiring the magistrate to frame a charge before a

summary conviction is entered. Thus when dealing with a similar provision in the

Penal Code of Kenya in Ogongo's case the Court of Appeal said:

E The observation which we wish to make on this is that, when a Court takes

cognizance of an offence under the provision of section 116(2) it is in fact assuming

and exercising a jurisdiction to deal summarily with the F offence and that in every

such case, it is essential that the court should frame and record the substance of a

charge, call upon the person accused to show cause why he should not be convicted

on that charge, and give him a fair opportunity to reply.

G I am of the opinion that this requirement is sufficiently complied with where a

magistrate adopts any procedure which has the practical effect of notifying the

accused of the gist of his offensive conduct and afford him an opportunity to reply.

Unlike a formal criminal charge, there are no set H rules which a magistrate is

required to comply with in drafting such a charge under summary proceeding. In

determining whether the provisions of subsection (2) of section 114 have been

complied with the question should be whether the court took the necessary step in

explaining to the accused the gist of his offensive conduct, the particular provision of

the law which contravenes it, I and lastly give him an opportunity to make a reply.

There is no magic formula for attaining these ends. Thus in Ogongo's case the Court

1984 TLR p14

MAINA J

of Appeal was of the opinion that these ends have been adequately attained by the

trial judge when A he recorded:

A. Charged with refusing without lawful excuse to answer a question contrary

to section 115(b) Penal Code. Court takes cognizance of offence under section 116(2)

and sentences A, etc. B

Of course in that case the Court of Appeal was also influenced by the fact that the

trial court record showed that appellant had been persistently warned by the court to

answer questions but in vain. In C the present case, before convicting the appellant

the learned trial magistrate recorded:

Court: This accused witness has been repeatedly warned by the court to

answer questions put to him by his co-accused but he has deliberately refused to

answer. This is, in my view a disrespect to the court and as D such the accused

witness has committed the offence of contempt of court contrary to section 114(1)(b)

of the Penal Code, Cap. 16.

The accused witness is therefore asked to state his reasons as to why he should

not be punished for E contempt of court.

Accused witness states: I have refused to answer the questions put to me by

the co-accused (No.3) because they are irrelevant to this instant case except that they

are relevant to the previous case (Cr.C. No. 30/81) F which has already been

determined by this court on 26/6/1981. I repeat again that I am not going to answer

the accused's question in this cross-examination.

And after the appellant's reply, the learned trial magistrate summarily convicted the

appellant. With G respect, I am quite convinced that from the court record as quoted

above the learned trial magistrate slavishly complied with the provisions of

subsection (2) of section 114. The learned defence counsel's argument, which

unfortunately was not challenged by the learned Senior State Attorney, as a ground

for this appeal is dismissed. H

However, I totally agree with both learned counsel that the sentence of six months'

imprisonment imposed against the appellant is illegal. According to section 114(2)

under which the summary conviction was entered, the maximum sentence which a

court is empowered to impose is a fine of I four hundred shillings or one

1984 TLR p15

A month's imprisonment in default. It is only where accused has been convicted

through normal indictment that the court is empowered to impose a maximum

sentence of six months or a fine not exceeding five hundred shillings.

B In conclusion appeal against conviction is dismissed. But on the ground of

illegality, appeal against sentence is allowed. Hence the sentence of six months'

imprisonment is set aside and in substitute appellant is sentenced to imprisonment for

one month. This alteration of sentence is of no beneficial value to the appellant as he

has already completed serving the said illegal sentence. It is, C however, important

for record purposes.

Order accordingly.

1984 TLR p15

D