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however withdrawn in respect of the appellant upon his pleas of not guilty.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