HEMEDI KANJUNJUMELE v REPUBLIC 1984 TLR 202 (HC)

HEMEDI KANJUNJUMELE v REPUBLIC 1984 TLR 202 (HC)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Mustafa JJA and Kisanga JJA

April 6, 1985

CRIMINAL APPEAL 70 OF 1983

Flynote

Criminal Law - Uttering a false document - Permit to hold ngoma issued in

contravention of an alleged quarantine - Whether the permit which was not required

by law amounted to a false document in law - F Whether there was utterance as

defined by section 5 of the Penal Code.

-Headnote

The appellant and seven other persons were jointly charged with the offence of

disobedience of lawful order contrary to section 124 of the Penal Code. He was

charged alone with another count of G uttering a false document contrary to s. 342

of the Penal Code. The seven other accused persons pleaded guilty to the first count

and were accordingly convicted on their own pleas of guilty. The charge was

however withdrawn in respect of the appellant upon his pleas of not guilty. It was H

alleged that the appellant in his official capacity as ward secretary, issued a written

permit allowing the other seven accused persons to stage an initiatory ngoma known

as "muzuka" contrary to an alleged quarantine imposed over Tunduru district by the

District Medical Officer to control the outbreak of cholera. The appellant was

subsequently found guilty and convicted of uttering I

1984 TLR p203

MSUMI J

A false document contrary to s.342 of the Penal Code and sentenced to

imprisonment for six and half months. He appealed against the conviction and

sentence.

B Held:(i) For the offence of uttering a false document to be established, it must be

proved that; first the document is false in material particulars about itself, that is, it

must state what in fact it is not; secondly the person uttering it must know that the

document he is uttering or about to utter is false; and thirdly he must utter it

fraudulently, that is to say, he must utter it with a clear intention of C making the

other person act to his detriment or that of persons or bodies he represents;

(ii) a document is said to be false if it purports to imitate a genuine one, that

involves a comparison of two documents - a genuine one and a false one;

D (iii) in the present case the absence or presence of the foregoing stated

elements depends on the determination of the following two issues viz. whether the

District Medical Officer had any power under the law to declare the alleged

quarantine; and, whether any permit was required under the law to stage the ngoma;

E (iv) the Infectious Disease (Infected Areas) Rules made pursuant to section 17

of the Infections Deceases Ordinance, cap. 96 of the Revised laws have the effect of

conferring on the Medical Officers the power to declare quarantine over "infected

areas";

(v) "infected area" is defined under section 2 of the Infectious Deceases

Ordinance cap. 96 as F any area of or place in which there is, or has recently been,

an occurrence of infectious disease and which has been declared by the Minister of

Health by Order published in the Gazette to be an infected area for the purpose of the

Infectious Disease Ordinance;

G (vi) Tunduru was not at the material time, "an infected area" for the purposes

of the Infectious Disease Ordinance; therefore the purported quarantine imposed by

the District Medical Officer Tunduru was not legally enforceable and its

contravention does not disclose any offence known to law;

H (vii) unless it is specifically stated in a quarantine order or where there is a

local by-law requiring it, there is no general law which requires a person to get a

permit before he stages a ngoma, and no body can be criminally charged for failure to

obtain it; therefore there is no falsity in the purported I permit issued by the

appellant since in law there is no such thing as permit to stage ngoma;

1984 TLR p204

MSUMI J

(viii) for the reasons stated above there was no utterance at all as defined

under section 5 of the A Penal Code and the holder of the said permit could not act

upon it to his detriment;

Per Curiam:

The offence of disobedience of lawful order which the seven other accused persons

were convicted B of and sentenced can only be maintained where the order was

promulgated vide a specific legislation. In this case the alleged quarantine had no

backing of the provisions of the Infectious Disease Ordinance hence it could not be a

lawful order within the ambit of section 124 of the Penal C Code.

Case Information

Appeal allowed.

Cases referred to: D

1. Alley Ali and Another v Republic [1973 ]LRT no 43

2. Abdallah Yusufu v Republic [1976] LRT no. 57

3. Laisi Kitia v Republic Cr. App. no. 4 of 1982 (H/C Arusha)

(unreported)

[zJDz]Judgment

Msumi, J.: Originally appellant was charged jointly with seven other persons with the

offence of E disobedience of lawful order contrary to section 124 of the Penal Code.

His co-accused were convicted on their pleas of guilty and each was sentenced to pay

a fine of Shs.600/= or four months F jail in default. On the other hand consequent to

appellant's plea of not guilty, prosecution decided to withdraw the allegation against

him under section 86(a) of the Criminal Procedure Code. But in the same charge

appellant alone stood charged with uttering false document contrary to section 342 of

the Penal Code. After a full trial he was convicted and sentenced to imprisonment for

G 6 months. His appeal against conviction and sentence was ably prosecuted by the

learned Advocate, Mr. Kumwembe.

The background which led to this case is connected to the sporadic outbreaks of

cholera which are H currently prevalant all over the country. Typical of note of the

proceedings recorded by this particular learned trial magistrate, there is sketchy

evidence that at the material time there was cholera outbreak in Tunduru District. It

is further alleged that among other measures taken to control the decease was the

imposition of quarantine by the District Medical Officer. But contrary to I the

alleged quarantine, the seven accused

1984 TLR p205

MSUMI J

A persons who were jointly charged with the appellant were on the material day

actively engaged in initiatory ngoma locally known as a "mizuka". This conduct gave

rise to the count of Disobedience of Lawful Order contrary to section 124 of the Penal

Code. The record further reveals that before B staging the said ngoma the second

accused, who apparently was the host, obtained from the appellant a written permit

purportedly allowing him to stage the ngoma. Appellant issued that permit in his

official capacity as a ward secretary of the area where the ngoma was to be held. It

was the said act of the appellant of issuing the purported permit which led him to his

being charged under C the provision of section 342 of the Penal Code.

A number of legal issues featured in the course of the hearing of this appeal. In this

connection I feel obliged to say that the arguments of both counsels were quite

salutary and legally enlightening. One of the questions which this court was invited

to consider is whether appellant's conduct in law D amounted to the offence of

which he was convicted. On this question the judgment of my brother Mfalila Ag. J.,

as he then was, in Alley Ali and Another V. Republic [1973] LRT n. 43, has been of

great assistance. In his characteristic eloquence his Lordship said:

E .... The elements of the offence of uttering of false document are as follows:

First the document must be false in material particulars about itself; in other words it

must state what in fact it is not. Secondly, the person F uttering it must know that

the document he is uttering or about to utter is false. Thirdly he must utter it

fraudulently that is to say he must utter it with the clear intention of making the

other person act to his detriment or that of the persons or bodies he represents.

G With respect, I entirely agree with this exposition of the law. In the present case

the absence or presence of these elements or any depends on the determination of the

following twin issues viz. whether the District Medical Officer had any power under

the law to declare the alleged quarantine; H and secondly whether the second

accused Hamisi Chidiaonga required any permit, under the law, to stage the ngoma.

Any rational answer to the first question must entail studious perusal of the Infectious

Disease Ordinance, cap 96 of the Revised laws. Under section 17 the Director of

Medical and Sanitary I Services with the approval of the Minister of Health is

empowered to make rules for the purpose, inter alia, of "the prevention of persons

entering

1984 TLR p206

MSUMI J

or leaving an infected area or travelling along road of access there to and in the

vicinity thereof, and A their submission to medical examination and interrogation

for the purpose of preventing or checking the spread of infectious disease."

Pursuant to this provision the following rules were published vide Government

Notice No. 178 of 1935. For the sake of clarity the same are hereby reproduced in

full: B

THE INFECTIOUS DISEASE (INFECTED AREAS) RULES

1. These Rules may be cited as the Infectious Decease (Infected Areas)

Rules. C

2. Any person entering or leaving an infected area may be required to

stop and submit himself to such inquiries or inspection by a medical officer or any

person authorized by him in writing in that behalf as D may be necessary to prevent

and check the spread of infectious disease.

3. A Medical Officer or anyone duly authorized by him as aforesaid may

establish examination posts on E any road in or leading to an infected area and may

refuse to permit any person to pass an examination post unless and until he has

submitted to inspection and has satisfactorily answered any questions that may

properly be put to him for the purpose of obtaining information to assist in

preventing and checking F the spread of infectious disease.

4. A Medical Officer or anyone duly authorized by him as aforesaid may

require any vehicle entering or leaving an infected area to stop and may call upon any

persons riding there one to quit the vehicle for G the purpose of submitting

themselves to interrogation and inspection".

It is respectfully submitted that the practical effect of these rules is to confer on

Medical Officers the H power to declare quarantine in their respective areas. It is

further submitted that the wide definition of the term "Medical Officer of Health"

given under section of the Ordinance includes a District Medical Officer. But such

declaration of quarantine can only be made over an "infected area" which is defined

under section 2 as: I

1984 TLR p207

MSUMI J

A any area of or place in which there is, or has recently been, an occurrence of

infectious disease, and which has been declared by the Minister of Health by order

published in the Gazette to be an infected area for the purpose of this Ordinance (the

emphasis is mine).

B Through my research, which is limited to the scant number of books and statutes

available here, I could only trace four such orders published between 1949 and 1965.

And none of these Orders C included any portion of this region i.e Mtwara, Lindi

and Ruvuma. Thus as far as my research is concerned Tunduru is not an "infected

area" for the purpose of the Infectious Disease Ordinance. The purported quarantine

imposed by the District Medical Officer Tunduru was therefore not legally

enforceable. Its contravention does not disclose any offence known in law.

Admittedly the spirit D behind the declaration of the said guarantine was quite

noble. I don't pretend to be unaware of mortality caused by such infectious disease as

cholera. In the absence of better expression, these diseases are inherently lethal.

However, this fact does not overrule the trite legal principle that all E offences are

creatures of statutes and where they are not so created, whatever our feeling or

wishes might be, it is not within the power of the court to emulate the legislature.

With this finding, the question whether there was any requirement, under the law, to

get a permit before one staged a ngoma must get a negative reply. Unless it is

specifically stated in a quarantine F order, there is no general law which requires a

person to get a permit before he stages a ngoma. I am aware of the general practice

prevailing all over the country whereby people seek permission from the respective

party branch offices and police stations before they hold any functions which G

involves the gathering of people. But except where it is backed by a local by-law,

such practices do not have the force of law. Nobody can be criminally charged for

failure to observe it.

From the above finding it follows that per se there is no falsity in the purported

permit issued by the H appellant. Strictly speaking a document is said to be false if it

purports to imitate a genuine one. It invariably involves a comparison of two

documents -a genuine one and false one. Thus in this case it is absurd to regard the

permit in question as false when in law there is no such a thing as permit to stage a

ngoma. The purported permit issued by the appellant is actually what it is. It does not

I contain falsity about itself. And for that same reason I am doubtful if there was any

utterance at all as

1984 TLR p208

MSUMI J

defined under section 5 of the Penal Code. Legally the holder of the said permit

could not act upon A it to his detriment. As I said, there was no need for him to get a

permit before he staged the ngoma. His possession of the permit in question did not

prejudice him.

As noted at the beginning of this judgment, the other seven accused persons were

convicted of B Disobedience of Lawful Order contrary to section 124 of the Penal

Code. This provision has been a subject for discussion in a number of decisions of this

court. The general consensus is that for an order to be lawful it must have been

promulgated vide a specific legislation. In Abdallah Yusufu v C Republic [1976] LRT

n. 57, Kisanga, J., as he then was, had the following to say

That section 124 of the Penal Code should be restrictively construed so as to

include only those orders, D warrants or commands which have the backing of

specific legislation. In other words to prove a charge under section 124 it must be

shown that the order, warrant or command which is said to have been disobeyed was

made pursuant to specific legislation which confers on a public officer or official the

power to issue it. E

Similar observation was made by D'Souza Ag. J. in Laisi Kitia v Republic Cr. App. No.

4 of 1982, Arusha Registry (Unreported). As we have already seen, in this case the

alleged quarantine had no F backing of the provisions of Infectious Disease

Ordinance. Hence the same could not be a lawful order and thus it is outside the

ambit of section 124. The convictions of all accused is therefore faulty.

In conclusion this appeal is allowed; conviction is quashed and sentence set aside.

Since appellant G has already served the sentence of 6 months imprisonment, I

decline to order for his release. And in the exercise of revisional power, I quashed

convictions against the remaining seven accused persons and order that each of them

should be refunded his Shs.600/= which he had paid as fine. H

Appeal Allowed.

1984 TLR p209

A