Benedicto Ndalo v. Republic, CA 306 of 1976

BENEDICTO NDALO v. REPUBLIC

[HIGH COURT OF TANZANIA AT MW ANZA, (Lugakingira, J')]

CRIMINAL APPEAL 306 OF 1976

Criminal Law-Willful obstruction of a police officer In the due execution of his duty under s/n(b) of the Penal Code-Construction.

The appe1ant was charged and convicted of willfully obstructing a police officer in the due execution of his duty.

On appeal it was contended, among other things, that the obstruction was not physical in that he just made a remark and that the remarks so made produced no results for the officers succeeded in apprehending the suspects.  

Held: 

(i) every act and every omission which is capable of inhibiting a police officer in the due execution of his duty, and designed to do so is an obstruction;

(ii) the appellant's remarks amounted to an obstruction as his motive was to frustrate the police officers in their duty;

(iii) it is not an ingredient of the offence that the obstruction must succeed. It is sufficient if the obstruction is perpetrated willfully and without lawful justification.

Appeal dismissed.

Case referred to:

(1) Bastable v. Little (J 907] ) K.B. 59.

February 18, 1977. LUGAKINGIRA, J.: At Mwaroni in the township of Mwanza is to be found the busiest harbor for local crafts and canoes. They ply in ladden with varieties of foodstuffs and take off carrying articles of merchandise. On 18 April, 1976 two police officers, P.,¥.I and P.W.3, happened to be there on duty. They spotted a group of people with several bags of maize. They suspected that the maize was being illegally transported and approached to inquire. The appellant who was nearby became interested and drew closer. After listening to the interrogation he remarked that the officers were only after bribes and even exhorted the group of suspects to ignore them. He was arrested and charged with willfully obstructing a police officer 'in the due execution of his duty cis 243(b) of the Penal Code. Upon Conviction he was sentenced to a fine of shs. 600/- which he paid and appealed.

There was no dispute about the basic facts. It was never disputed that the remarks were uttered nor was it ever in doubt that the officers were on duty. It 'was conceded, on the other hand, that the remarks produced no results for the officers succeeded in apprehending the suspects. The only question, therefore, was and remains whether the appellant's remarks amounted to willful obstruction. The trial magistrate answered the question affirmatively although I have not been attracted to his reasons. It will be observed that s. 243(b) creates the prima facie impression that the' obstruction spoken of has a physical attribute.

The entire s.243, Indeed the whole of Chapter XXIV of that; ·Penal Code, is devoted to assault. If obstruction is to be understood ejusdem generis. one would be excused for thinking that it refers to physical obstruction. I was therefore not surprised when learned counsel for the Republic argued along those lines. This, however, would be a very narrow interpretation. The spoken word is capable of giving rise to physical results as the application of actual physical force. If a person is verbally ordered to stop and he stops, I do not see the difference between this and physically restraining his body. I would suggest, therefore, that the obstruction spoken of in s. 243(b) is something wider than actual physical obstruction. Every act and every omission, which is capable of inhibiting a police officer in the due execution of his duty, and designed to do so, is an obstruction. The English High Court expressed the same view in Baslable v. Little. () 907) I K.B. 59, where the obstruction complained of was a warning to motorists to slacken their speed and beat a Police trap ahead. I'm satisfied that there was an obstruction in the instant case as appellant's motive was to frustrate a police officer in their duty. In the same way, it does not appear to me as an ingredient of the offence that the obstruction must in fact succeed. It is sufficient if the obstruction is perpetrated willfully, that is, without lawful justification. In this case the police officers were lawfully interrogating the group of suspects for the purpose of detecting crime, 

The appellant, aware of this, intervened to say that the officers were after bribes and advised that they be ignored. That was clearly designed to frustrate and inhibit officers in their investigation. It was in the event the the obstruction even though it was unsuccessfully. On those considerations i would hold the trial magistrate correct in the decision he reached and sustain the appellant's conviction.

In imposing a fine 600/- or six months imprisonment the trial magistrate observed that the police are servants of the public and need every co-operation rather than frustration. I agree with that observation. Hence, although the appellant was a first offender and his mischief bore no fruit, I think the sentence he earned was be fitting. In the results the appeal fails in its entirely and it is accordingly dismissed.

Appeal Dismissed.