Court name
Court of Appeal of Tanzania

Hemedi Kanjunjumele vs Republic () [1985] TZCA 2 (06 April 1985);

Law report citations
1984 TLR 202 (TZHC)
Media neutral citation
[1985] TZCA 2

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

  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

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

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

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.

A