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What was the origin of modern cooperative and how they did spread in Asia and Africa?

Answered by: Rehema Juma

University:  Saint Augustine university of Tanzania (Mwanza campus)

Programme: Diploma in human resources management

Year: 1

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Answer


Introduction
Cooperative is an autonomous association of person united voluntarily to meet their common economic, social and cultural needs and aspirations through jointly-owned and democratically enterprises.  Cooperative may include business owned and managed by the people who use their service (Consumer cooperatives), Organization by the people who work there (Workers Cooperative) and, or organization by the people to whom they provide accommodation (Housing cooperative) Hybrids such as workers cooperative that are also consumers cooperative or credit union multi Stakeholder cooperative.

Cooperative Movement
Cooperative started to be organized and coordinated when there was an increase in imbalances of production in the society. Although there is no exact consistent to the exact origin of cooperative movement but many authority argue that the origin lies within the Europe (Shafter 1999, Itolyoake 1908). The first recorded cooperative date back to 1750  in France where local cheese makers in the community of Franche-comté established a producer  Cheese cooperative.

Origin of modern cooperative
The modern cooperative traces its origin back in the middle of 19th century. The movement was a result of hardship condition of life which forced them into cooperation. Despite, the cooperative to be started with the Europe, cooperative was of different types depending on the nature of the problems suffered by the citizen. For example, in England there were a consumer’s cooperative, craftsmen due to problems caused by industrial revolutions, traders and farmers cooperative in France and Germany respectively were also an example.

Cooperative movement In Europe
England
In England the movement was established under the Rochdale society. This was a society of equitable pioneers comprised of 10 weavers and 20 others in Rochdale England, It was formed in 1844. The society introduced Rochdale principles which aimed at  Promoting cooperation. The Rochdale pioneer did not aim at changing the system of market economy which were present rather they only intended to generate their own  income from the existing system. In england, cooperative was regarded as private   association thus there was no legislation codified to promote and rule cooperatives societies. In England the most types of cooperatives established was consumers and traders coopertaives, this was due to the effect of industrial revolution which took place in 19th century, the revolution driven more people (especially skilled labour) into poverty due to lack of employment. These people, under the Rochdale principles jointed together to form cooperatives where they opened their own store for selling food and other product. The succefully example of cooperative business provided by the Rochdale society was established between 1850 and 1855 was a flourmill, a shoe factory and textile plant. By 1863 more than 400british cooperative association modelled after Rochdale society were in operation.

France
In France the movement was founded by various activist like Charles Fouries, Philippe Buchez, Louis Blank and later Charles Gide. The founders of modern cooperative in France aimed at changing or escaping the existed social economic system which was seen to be unjust and explotative. It is in 1750 where various cooperative seen to be established in France. The most notable cooperative were established in franche-comté region by various cheese makers' mutual society. Apart from that, there were other cooperative which were established by various craftsmen who were suffered from competition  Of new industrial product. Unlike England were codification of cooperative legislation did not archieved at that time, in France this was different. In 1865, the first proposal of cooperative legislation was made and the law was enacted two years later authorising the rights to associate. Although the general law on cooperative was made in 1947.

Germany
In Germany the rise of modern cooperative was due to the industrial revolution and land reforms which took place in 1860's. The land policy at the rural area introduce enclosure system in which the land were later owned by few individual people. This led to to unavailability of the land to majority of people who depended on agriculture hence driven them to poverty. In reacting to this situation, differentcooperative was established such as Market cooperative, agricultural supply, Thrift and loan society in the rural areas in order to overcome that situation. Founder of that cooperative was known as Raiffeisen and Haas. Apart from that, in urban areas the condition was serious harsh to craftsmen and traders, this was due to the industrial revolution which took place at that time. Thus under the concept of Herman schelze-Delitzsch who was a judge and parliamentarian facilitated the formulation the cooperative of traders and craftsmen so as to overcome the problem they were faced. Raiffeisen and Schultz-Delitch developed anindependently formulated cooperative model in German. By 1850, Schultz-Delitsch was able to draft the first cooperative society Act for germany. He developed it from one of the by laws cooperative he was promoting. In 1889, the Act was passed and later became world wide model of cooperative.

Spread of cooperative in Asia and Africa.
After the successful establishment and development of strong cooperative in Europe, the movement was never stop at there, rather it was spread to other part of the world. Now, regarding to the main discussion, the modern cooperative was also spread in Asia and African countries. Speaking to Asia, the modern cooperative was firstly adopted in Japan, south Korea, Vietnam and China. While in Africa the modern cooperative was mostly adopted through colonialism, hence the nature and pattern of cooperative depended on the nature of colonialism.

Asia ‘
In Asia, starting with Japan, the modern cooperative reached in the around 1890. At this time the movement was facilitated by various scholars including a Germany professor UDO EGGERT who at the material time taught at the Japanese university. Eggert was able to write and publish a book known as “policy of promoting Japanese Agriculture. The book entailed and emphasized two roots of cooperative delivered from the Raiffeisen which are autonomous form of an organized self help and an imported model. A part from Udo, the researches on cooperative which conducted by various scholars who studied in Germany contributed to the spread and development of modern cooperatives in Japan.
Upon the successfully establishment of various cooperative like that of Japanesse  cooperative alliances, the predecessors of Japanese consumer cooperative union (JCCU) (1945), Japan was able to introduce various laws including an industrial cooperative association  (1900) which covered four types of cooperatives. Namely credit marketing, purchasing and production cooperative.

South Korea
In South Korea, the spread of modern cooperative was not too far different from that of Africa. The spread of modern cooperative in South Korea was the result of colonialism under the Japanese. During Japan domination, there was establishment of various cooperatives such as workers and agricultural cooperation which followed the nature and pattern of Japanese cooperative. So upon the end of colonialism, South Korea enacted the first agricultural cooperative Act in 1957 so as to re-organizing the agricultural cooperatives formed during the Japanese occupation. Later on in 1961, the Act was replaced by the new agricultural cooperative law and was amended nine times so as to meet the need of cooperative system they needed.

The spread of modern cooperative in Africa
The modern cooperative in Africa was spread and facilitated by so called colonialism. Thus the nature of cooperative on certain country depended on the nature of domination. That is to say the nature of cooperative in British colonies was in some extent different from Germany or French colonies.

Spread of modern cooperatives in British colonies.
Upon the arrival of British in Africa, they introduced the legislation which was mostly based and used in Indian colonies. That was knows as The British Indian pattern of cooperative (BIPC) 1930. The legislation in some extent based on Schulze-Delitzsh codification which was also adjusted to the British legal system. The legislation specified how the cooperative should behave and how should be controlled. Simply all cooperatives under this legislation were became partial state controlled.

Spread of cooperative in Tanzania
In Tanganyika cooperative traces its roots back on 1920’s where the first cooperative legislation was enacted in 1932 and  complemented in 1976 by the socialist model of cooperative in form of villagization  programme through the village and ujamaa villages.In Tanganyika, the spread of cooperative was highly adopted, since  Peasants in  started informal (unregistered) cooperatives in 1925 so that they could capture part of the trade profit of their crops. The first cooperative union in the country was the Kilimanjaro Native Cooperative Union (KNCU), which was registered with its eleven affiliated primary cooperatives on 1st of January 1933. The event took place in Moshi district, which by then comprised of the current Rombo, Hai, Moshi, Siha, and Mwanga districts. In 1924 there were 3,300 peasants growing coffee in Moshi district who sold 40 tons of parchment coffee. The formation of the KNCU saw the number of growers increase to 15,000 in the district. They sold 1,709 tons of parchment coffee valued at ₤ 39,000 in 1933. By 1966 KNCU was marketing 16,730 tons of clean coffee per year sold at ₤ 308 per ton[1]
The Ngoni-Matengo Cooperative Marketing Union and its three affiliated primary cooperatives were registered in 1936 in what is now Songea region. In the same year tobacco output rose to 120 tons – up from one ton in 1930. Tobacco output reached four figure numbers in the 1950s[2]. Increased tonnages of crops were reported in other areas as soon the cooperative effort was put into action[3].
In the 1940s and 1950s other important cooperatives and unions were formed and registered. These were the Bugufi Coffee Cooperative Society in Ngara district, the Mwakaleli Coffee Growers Association in the Rungwe district. The latter went on to change its name to Rungwe African Cooperative Union. Others were the Bukoba Native Cooperative Union in Bukoba district, and the Lake Province Growers Association in the Lake Victoria area, which later changed its name to the Victoria Federation of Cooperative Unions Limited (VFCU The VFCU was a remarkable organization that has gone down in history as a landmark. It grew dramatically in marketing and ginning cotton that was produced by peasants in the lake zone. It facilitated the supply of low priced inputs, such as cotton pesticides and seeds to members, which it purchased in bulk from manufacturers or wholesalers. It also started an industrialization process in the lake zone distinguishing itself in the operation of cotton ginneries. The federation bought and loaned tractors to its members; its famous building (Pamba House) in Mwanza town, where new tractors were on display for members to buy, was almost a “pilgrim” centre for cotton farmers in the whole of the lake zone. By the 1960s the VFCU was the largest cooperative in Africa[4].

Modern Cooperatives in Francophone Countries
The francophone countries these were the countries occupied by French colonialist during colonialism era in Africa. In these countries the law applicable in cooperative was directly enacted in French and imposed to all French colonies. As it was in British colonies the enacted laws made the cooperatives to be under state control. For stance there was establishment of so called communal provident society - Société Indigene de Prévoyance (SIP), Later Société Africaine de Prévoyance (SAP) - socio-economic, semipublic communal organizations which also was under state control. In 1955, a co-operative societies’ decree was made for co-operative activities and after independence, the countries made their own co-operative legislation following French models. Since 2010 there is a common Co-operative Societies Act of OHADA (Organisation pour l’Harmonisation en Afrique du Droit des Affaires -Organization for the Harmonisation of Business law in Africa) with 390 articles to be applied by all Member states, replacing the former co-operative legislation.

Conclusion
Despite of problems suffered in cooperative, still cooperative has a lot  contribution in the development of  any country. It is through cooperative building of hospital, house, factories and more other social services are made easer.




References
  1. Chayanov, P (1966) The theory of peasant Economy, Homewood Illinois, Irw in for American Economic Association.
  2. Kimario, A (1992) Marketing cooperatives in Tanzania: problems and prospectus, Dar es salaam, Dar essalaam university press
  3. Melnyk, G (1985) The search for community: Fro utopia to a cooperative society, Montreal & Buffalo,  Black Rose Books.
  4. Akpoghor, P. (1993) Selected Essays on Cooperative Theory and Practice, Marburg, Marbug Consult for Self-help Promotion.

Citations


[1]University Press, 1968:176; Kimario, 1992:4
[2]University Press, 1968:176:177
[3]Maghimbi, 1990:84-85
[4]Maghimbi, 1990:85



Lukia Saidi v. R., (H.C.D 1969) Crim. App. 626-M-68, 1/11/68, Seaton J.



The accused was charged in count one with making a document without authority [s. 346(1), Penal Code], in count two with uttering a document without authority [s. 346(2) ], and in count three with obtaining goods by false pretences [s. 302]. There was some evidence that the accused had obtained goods on credit by making a written agreement to pay at the end of the month and signing it with the name of another person. The trial court convicted the accused on the first two counts. In doing so the court relied heavily on a written report submitted by a document examiner which stated that he had compared the agreement with handwriting samples of the accused and others and concluded, “I am of the opinion that (accused) is the writer of the disputed handwriting”. The accused was acquitted on the third count on the ground that the promise to pay at the end of the month was a representation with reference to the future and not a matter of fact past or present.


Held: (1) In acquitting the accused on the third count, the trial court correctly applied the definition of false pretences in s. 301, Penal Code.          With regard to the second count, s. 346(2) refers to a document that is made, sent or executed by one person and uttered by another. There is no evidence of this in the present case. The report of the handwriting expert is not in the form prescribed by s. 154C, Criminal Procedure Code, in that it does not indicate any of the similarities or comparisons between the disputed writing and the specimen writings as is required by the 7th Schedule, Criminal Procedure Code. Such an expert can say in an appropriate case that he does not believe that a particular writing was by a particular person. However, the most that he can say positively is that the two writings are so similar as to be indistinguishable. [Citing Hassan Salum v. R., (1964) E.A. 126] Appeal allowed on both counts.






R. v. Albert s/o Mwandenuke, (H.C.D 1969) Crim. Rev. 132-D-68, 2/12/68, Biron J



The accused was convicted on his own plea of driving a motor vehicle with defective steering c/ss 43(d) and 70, Traffic Ordinance, Cap. 168 and was fined Shs. 70/- and ordered to pay the vehicle inspector’s fee of Shs. 20/-.


Held: Fine reduced to Shs. 30/- and the order to pay the inspector’s fee set aside. “As is abundantly clear from the proceeding, the accused was a driver employed by the Tukuyu Agencies. He could, therefore  hardly be held responsible for the state of disrepair of the vehicle owned by his employers. The responsibility for maintaining a vehicle in good order and roadworthy condition is that of the owner, although a driver may sometimes share such liability if, for example, he fails to report defects to his employer, though he certainly cannot be held responsible for the state of the vehicle, and, should he refuse to drive it, he may well suffer the loss of his job. In the circumstances the fine plus the inspection fee, which doubtless constitute a substantial part of a month’s salary, cannot be justified”.


R. v. Mwita s/o Muhoni, (H.C.D 1969) Crim. Sass. 186-M-68, 16/12/68, Seaton J.



The accused found the deceased committing adultery with his wife in the bush. The deceased ran away, with the accused chasing him. Then he stopped and hit the accused with a stick on the arm. The accused hit him back on the head with a piece of sugar cane. The two grapple and struggled for some time, and finally the accused, realizing he was losing the battle, took out a pocket knife and stabbed the deceased on the upper arm. The deceased died shortly after, due to excessive bleeding resulting from a severed artery. The accused was charged with manslaughter.


Held: The accused was convicted of manslaughter o his own plea and sentenced to 12 months imprisonment. In sentencing, the court remarked: “The learned defence counsel has observed that this case is on the border – line of self –defence and manslaughter. It is certainly a gross provocation to find oneself the victim of adultery and then of an assault by the adulterer. I take into consideration that the deceased was a younger man and may have been stronger than the accused. It would have been a more fact fight had accused continued to use his fists and the stick of sugar cane rather than resorting to hi knife. But the Court can appreciate that his sense of indignity may have been so great that, coupled with his fear of being physically worsted, the accused reacted desperately. He was protecting his honour and the court should be lenient accordingly”.

Thanker Singh v. R., Crim. ( H.C.D. 1969) App. 715-D-68, 15/1/69, Biron J.



The appellant was convicted on his own pleas, of failing to complete and forward to the Director of the National Provident Fund, the appropriate forms in respect of contributions to the Fund, and of failure to pay into the Fund the contributions from his employees, c/s 38(1) and 38(1)(d), National Provident Fund Act, No. 36 of 1964. He was sentenced respectively to a fine of Shs. 200/- or imprisonment for two months in default and a fine of Shs. 400/- or imprisonment for two months in default. He is now appealing from the sentences.


Held: “In mitigation the appellant’s counsel is recorded as stating that the appellant employed his labour on contractual work from the Dodoma District Council, and as the Dodoma District Council had delayed payments due on the contract, he was therefore unable to forward the contributions towards the Provident Fund ….. There is nothing I the record to indicate whether the

magistrate believed the plea in mitigation or not. The facts stated in the plea, if untrue, could easily have been disproved, and as they are by no means


improbable they may will be, in fact probably are, true, therefore, in the absence of any contradiction they should be accepted as true. To my mind, the fact that the appellant  Himself did not receive payment from the District Council, and therefore was unable to forward the contributions to the Fund, constitutes a very strong mitigating factor, particularly so, as submitted by learned counsel who appeared for the appellant at the hearing of the appeal, as he is not a rich man and he was not therefore deliberately withholding the contributions of his employees, and his should have been taken into consideration by the magistrate in imposing sentence. The appeal is accordingly allowed and the fine awarded on each conviction is reduced to Shs. 100/-“.


Hassani s/o Shenlugu, (H.C.D 1969) Crim. App. 694-D-68, 15/1/69, Biron J.




The appellant was convicted on his own plea of a corrupt transaction with agent c/s 5 (2), Prevention of Corruption Ordinance, Cap. 400. He was sentenced to imprisonment for two years under the Minimum Sentences Act. It would appeal that he corruptly gave Shs. 135/-, which he had received from three men, to a primary court magistrate to whom he was related as an inducement to “release and close the cases” against those three men, who were charged with criminal trespass.



Held: With respect to sentence, “the age of the appellant is given I the charge sheet as seventy seven years, though the magistrate in his ‘Judgment’ stated that he appeared to him to be between sixty and seventy years old. The offences, or, rather, offences, were, as noted, disclosed to the police by the appellant himself. It would appear, as conceded by learned state Attorney, that he merely acted as a passive mediator. It is thus apparent that the appellant, because of his relationship to the magistrate before whom they were facing charges, was merely used by these three men to pass the bribes to him, and because of his advanced age – he may well even be senile – he allowed himself to be so used, as there is nothing to indicate that the


appellant was deriving any benefit or advantage from the whole transaction. He was therefore, to borrow the terminology from another context, a mere conduit pipe. The combination of these circumstances, to my mind, constitutes special circumstances which quality the appellant for the exercise of the court’s discretion within the meaning of section 5(2) of the Minimum Sentences Act. In the result … the sentence imposed is set aside and, in view of the very advanced age of the appellant, and taking into consideration all the relevant circumstances, there is imposed in respect of each conviction such term of imprisonment, to run concurrently with one another, as will result In the immediate discharge of the appellant”.

Swalehe s/o Mohamedi, Crim. App. 149-D-68, 10/1/69, Biron J.


Swalehe s/o Mohamedi, Crim. App. 149-D-68, 10/1/69, Biron J.


The appellant was convicted in the Primary Court of Mtama on two pairs of related counts of housebreaking and stealing, c/s 294(1) and 265, Penal Code. He was sentenced to imprisonment for two years on each of the housebreaking convictions and to imprisonment for two months and three months respectively, on the convictions for theft, all the sentences of imprisonment to run concurrently, and to the statutory twenty four strokes corporal punishment, under the Minimum Sentences Act.


Held: ……… “There are, to my mind, special circumstances apparent from

the facts of the offences themselves. The offences were committed together with another man much older than the appellant, whose age was found by the primary court magistrate to be nineteen years. This other man who, incidentally, did not appeal, was alleged to have had a string of previous convictions, of which he denied all but two, of house-breaking and stealing, when he was sentenced to a substantive term of imprisonment for three years and to twenty four strokes corporal punishment. It is thus apparent that in committing these instant offences the appellant was influenced by this older man with a criminal record, whose age, incidentally, was found by the magistrate to be about thirty five years. The combination of all the relevant circumstances, to my mind, constitutes special circumstances within the meaning to my mind, constitutes special circumstances within the meaning of the Minimum Sentences Act qualifying the appellant for the exercise of the court’s discretion. Bearing in mind his youth, I consider that the justice of the


case would be met by the imposition of a substantive sentence of imprisonment for one year”.


R. v. Kassian Paul Kauta, (H.C.D 1969) Crim. Sass. 175-D-68, 5/12/68, Georges C. J.



The accused in 1952-53 underwent training at Peramiho nurses’ school near Songea. After leaving he chose a different career, but kept a syringe, a needle and some poisonous drugs. On a visit to Kibaha, he was invited to see a child who was ill with a stomach complaint. The accused gave him two injections, of penicillin and of chloroquine. The child died from shock consequent on the injection, possibly due to an allergic reaction of penicillin. The accused was charge with manslaughter.

Held: The accused was convicted of manslaughter on his own plea and sentenced to six months’ imprisonment. In passing sentence, the court remarked. “The accused ….. should have known better. He is clearly not in

the class of an uneducated bush doctor. The evidence … shows that he was holding himself out to be a qualified doctor …. The fact that the parents of the

child went to his as a person with a reputation for curing would indicate that he was practicing as a doctor. This type of activity must be stopped. I am conscious that it is unlikely that the accused will attempt this practice again but I think nonetheless that he must be punished since this type of conduct is


not at all uncommon and the public must be made to realise that it will not be tolerated”.

R. v. Omari s/o Saidi Crim. Rev. 124-D-68, 19/11/68, Biron J.


The accused a youth of 19 years, was charged with stealing nine pigeons worth in all Shs. 9/-. In answer to the charge, he stated that he had stolen the pigeons, had roasted the, and had already “devoured” eight but was caught with the ninth. He was convicted and sentenced to four month’s imprisonment.


Held; Sentence reduced so as to result in immediate discharge. The court remarked: “In view of the fact that the accused was a first offender, and taking into consideration his youth, the magistrate could will ask himself whether a term of imprisonment was really called for, and, further still, whether such a short term could serve any useful purpose, but rather the reverse this youth will have been brought into contact with hardened criminals, from which he is hardly likely to benefit. Further, the unstated terrors of prison, which could


have served as a deterrent, will have been dissipated. As the learned magistrate will appreciate, the best course in this case would have been to have placed the accused on probation”.

R. v. Amiri s/o Ali, Crim. (H.C.D 1969) Rev. 3-D-69, 10/1/69, Biron J.



The accused was convicted on his two years and to six strokes corporal punishment. The accused, who was sleeping in the same room as the complainant, in the middle of the night went to her bed, and without even awakening her, undressed her and had sexual intercourse with her, not only without her consent but without her knowledge. She however awakened, raised the alarm, and the accused was apprehended on the spot.


Held: “I fully agree with the learned magistrate that the offence is serious, although unfortunately rather prevalent, and must be discouraged and stamped out. Even so, every case must be considered in its own particular context and surrounding circumstances …. There are in this instant case

strong mitigating factor ….. First there is the age of the two parties. The

magistrate will recall that when the girl was first examined the doctor found her to be under fourteen years he then very properly had her again medically examined and the doctor found her to be under twelve years of age. Likewise, in the case of the Accused, after a thorough medical examination, he was found to be over seventeen. Thus the accused is just above the age of a juvenile, whilst the complainant is just below the age of consent. But the strongest mitigating factor is that this case differs from the usual run of such offences, where the offender entices a little girl into the bush, or rapes a little girl whilst her parents are away. In this case the accused had temptation thrust upon him, in that, sleeping together in the same room; he was doubtless affected by the proximity and tempted by the sight and presence of the sleeping girl so near him. In those circumstances… a short sharp lesson to teach the accused self-control would serve a much more useful purpose than sending him to prison for a long spell, where he would be exposed to the dangers of contracts with hardened criminals and probably come out a much worse citizen than when he went in ….. the sentence of imprisonment imposed is accordingly reduced to such term as will result in the immediate discharge of the accused, and the corporal punishment awarded is increased to ten strokes”.





Hassani Msange Sarota v. R., (H.C.D 1969) Crim. App. 559-M-69, 29/11/68,


The accused was charged in Primary Court with stealing and was acquitted. The District Court magistrate then exercised his revisional jurisdiction and ordered that the police reinvestigate the case and file new charges if appropriate. The District Court did not cite any error in the lower court judgment but acted on the ground that the case was a “serious one and wanted careful investigation”. As a result the accused was convicted in a second proceeding of stealing by servant.


Held: (1) An appellate court may revise an order or decision only if the order or decision of the lower court is incorrect, illegal or improper or if the proceedings are irregular. He may not do so merely because he disagrees with the result. In the present case there was no error in the lower court judgment and the revisional order was improper.
Because the revisional order in the first proceeding was improper, the second proceeding as a nullity. Conviction quashed.

R. v. Abdallah s/o Robert and Beita d/o Michael, Crim. (H.C.D 1969) Rev. 138 & 139-D-68, 26/12/68, Biron J.


The accused were convicted on their own pleas of being in possession of Moshi without a licence contrary to the Moshi (Manufacture and Distillation) Act, 1966. The question for determination was whether the convictions could stand since the accused were changed with committing an offence under an Act not yet in force


Held: The proceedings are a because under section 1 of the Moshi (Manufacture and Distillation) Act, 1966 it is provided that, “it shall come into operation on such date as the Minister may in the Gazette appoint”, and the Minister had not yet appointed any date. The court distinguished this case from R. v. Iudo Parsad Jamietram Dave (1963) E.A. 65 where the accused was convicted of an offence under an Ordinance which at the time of the commission of the offence had not been brought into operation, thought it was subsequent to the commission of the offence, on two grounds: (1) In the latter case the particular provisions under which the accused was convicted in the new Ordinance were the same as those under the old Ordinance in every essential whereas in the instant case the new Act does not repeal and replace the Local Liquor Act, Cap 77 Supp. 44. (2) In the latter case the mis-citation of the Ordinance was not prejudicial to the accused since the material sections in the old and new Ordinance were the same in every essential whereas in the instant case the accused were prejudiced in being charged under the new Act since the penalty is heavier than in the old and extant Act.

Philipo Mtoakodi v. R., Crim. (H.C.D 1969) App. 684-M-68, 28/11/68 Seaton J.



The accused was convicted in Primary Court of cattle theft and was sentenced to 3 years imprisonment and 24 strokes and to a fine of Shs. 500/-and in addition was ordered to pay compensation of Shs. 300/-. During the trial the Primary Court refused to permit the accused to call one of his wives as a witness, apparently on the theory that he had to call all of his wives or none of them. Exercising its revisional jurisdiction without notice to the accused the district court found that there were no special circumstances justifying a fine in addition to the prison sentence and set aside the fine. The accused then appealed the conviction to the District Court but his appeal was denied on the ground that an order in revision had already been made. Accused then appealed to the High Court against the conviction and the District Court dismissal of the appeal.


Held (1) The revisional order quashing the fine was properly made under s.

17, Magistrates’ Courts Act, Cap. 537.
 Although the District Court could not on appeal review the previous order of revision made by a magistrate of that court, it could consider the portions of the memorandum of appeal which concerned matters which had not been the subject of its previous consideration such as the appeal against the conviction [Citing Suleman Ahmed v. Rex, (1922) 9 E.A.P.L.R. 19; Gordhan Gopal v. Chagan Raja (1935) 17 K.L.R. 65].

         “(T)here is a question of some substance as to whether [accused] suffered an injustice by being deprived of the right to call his wife …….. as a defence witness”. Appeal allowed in part and case


remitted to district court to hear and determine the appeal against conviction in the manner prescribed in ss. 16 – 17, Magistrates’ Courts Act.

R. v. Daudi Milamibulo, Crim. (H.C.D. 1969) Rev. 66-M-68, 9/11/68, Seaton J.


The accused was charged with theft. He did not reply when the charge was read and explained to him. The case was adjourned so that a medical officer could determine whether his failure to respond was due to illness or deafness. The report was never received, and the trial court eventually proceeded with the case under s. 169, Criminal Procedure Code, which deals with proceeding where the accused, though not in same, is unable to understand the proceedings. After hearing evidence for the prosecution the court decided that there was sufficient evidence to justify a conviction. The court remanded the accused to prison to be detained at the Minister’s pleasure as Provided by s. 169(1) (a), Criminal Procedure Code, since he appeared unable to understand the proceedings “either out of malice or by visitation of God”.
Held: (1) S.169 deals with persons who are unable to understand the proceedings from causes other than mental derangement such as deafness or ignorance of the language and was relevant to the present proceedings. [Citing Sohoni’s Commentaries on the Indian Criminal Procedure Code, 13th edn. (1931), p. 762].

Although there may be difficulties involved [Citing Lelanon Leseroi R., (1964) E.A. 111], the court should make an attempt to determine the reasons for accused’s inability to understand and to investigate means for communicating with him, such as experts in sign language or the use of person familiar with his language. [Citing Sohoni, supra, p. 763]. A decision as to whether his silence is due to legitimate causes or to malice should be made before proceeding to hear the evidence for the prosecution. If the silence is due to legitimate causes, then the court should proceed under s. 169. But where it is due to malice, s. 203 (4) applies, and the court should treat the accused as refusing to plea and enter a plea of “not guilty” for him. Since the cause of silence was not determined here, the case is remitted or trial de novo.






Yusufu Hussein v. R. (H.C.D 1969) (PC) Crim. App. 210-A-68, 30/11/68, Platt J.



Member of a TANU Branch selected a piece of land on which to build an office. In the following years, the accused went onto the land and began cultivating it, having been permitted to do so by the local authorities. While he was temporarily absent, the local TANU branch began building the office, erecting poles on the land, which at that time had no crops on it. When the accused returned, he removed the poles and left them in a heap outside the land. He was charged and convicted of malicious damage to property, c/s 326(1), Penal Code.

Held: (1) In order for the accused to be convicted of malicious damage to property, “the prosecution had to prove that the [accused] had willfully and unlawfully destroyed the partly constructed building. They had proved willful distraction, it was a deliberate act – but unlawfully was in question”. But it follows from the evidence that the accused “had a clear claim of right to the land, and that he was justified in treating the TANU Officials as trespassers unless they proved superior title. On that basis he was no guilty”.
 (Obiter) “Both counsel referred me to an opinion of this court per Saidi J. in which it was held that where a criminal case arose out of a dispute as to the ownership of land it was better that the issue of ownership was decided first in a civil court. That appears to me a salutary direction. In the present case if the right to the land had been established no doubt compensation would have been awarded which would have covered the loss if indeed [the accused] was at fault”. Appeal allowed and conviction quashed.


R. v. Ikaka s/o Murenda, Crim. (HCD 1969) Sass 64-M-68, 10/12/68, Seaton J.



The accused was tried for murder c/s 196, Penal Code, On the day before the killing, the accused had collected 6 women and 2 men, all fellow – villagers, to go with him to consult witch-doctors regarding his sister’s sickness. The deceased Boke was a member of the party. She was a woman of about 50 years of age. The group of villagers went first to a witch-doctor named Wanzera, who performed witchcraft ceremonies and then announced the result of his divining was that Boke had bewitched the sister. The next morning, they consulted another witch, a woman named Wakuru, who confirmed, after performing her witchcraft rituals, that Boke was a witch. The group of villagers left for home. On the way, they came to a river, it seemed a likely place to bathe and the whole party did so except the deceased Boke and the accused. Boke said she would not bathe because she wanted to go quickly to the sick person and give her some medicine. The accused told Boke, “Let’s go ahead”, and the two of them went on. Temerange, was the first to finish bathing and followed them. From a distance of about 100 paces behind, Temerange said he saw the accused striking Boke, and then when he caught up with them, he found Boke lying face downwards, dead. The accused in an unsworn statement explained that after leaving their colleagues behind them bathing in the river the deceased said that people told him stupid things saying she had bewitched his sister. She then threatened the accused that if he played with her, she would prepare medicine and he himself would die. Then, the accused said, the deceased abused him in their own language saying words which mean: “Fornicate your own mother. The anus of your mother. The head of your mother”. Further, the accused said, the deceased pushed him, whereupon he hit her with a stick. His intention was not to kill him but only to make her fear him so she would go home with him to give medicine to his sick sister.

Held: (1) “I am inclined to believe that the accused and Boke had a quarrel on the road after they left the group at the river. This would be consistent with the evidence of the prosecution witnesses that there was a happy and

friendly atmosphere amongst the members of the group along the way back home and up to the time the stopped to bather. It seems that they all, including the accused, believed the deceased would give the sick person medicine to make her well. The reason for the accused’s mood to change suddenly into one of violence must have been more than the knowledge that the deceased was witch – he had known this since the day before. I believe that the deceased said or did something there along the road which provoked the accused suddenly to strike her. If the deceased used the words ascribed to her by the accused and pushed him, the insult and the threat to use her witchcraft to kill him plus the physical assault could have provoked him to act suddenly in the heat of passion. The accused said that his intention was only to make the deceased fear him. Whether or not that is so, it appears he was so provoked that he was deprived of the power of self control and induces to assault the deceased …. I am satisfied of the truth of the accused’s story as

to the sudden rousing of his passion, the striking of blows in great fury, then the remorse which made the accused confess his crime to the fellow-villagers who arrived at the scene. I agree with the opinions of both the assessors. I acquit him of the offence of murder and find the accused guilty of manslaughter and convict him accordingly.
(2) Accused sentenced to 5 years imprisonment.




Sample of lease agreement



                                             LEASE AGREEMENT

THIS LEASE AGREEMENT is made this    day of  ………….. ,  2012
 Between
 of P. O. Box 3634    Dar Es salaam (hereinafter called “The Lessor”) of the one part;

And
..    of P. O. Box  …….Dar Es salaam    (hereinafter called “the Lessee”) of the other part.

WHEREAS, the Lessor is the registered beneficial owner of  two  office premises/frames  located at ...  , Morogoro road    , Ilala  Municipality in Dar Es salaam , (hereinafter as “the premises”);

AND WHEREAS the Lessee has agreed to rent the said premises for official     purposes  for a term of   two  (2) years   effective from ……………………… to ..............................   .

NOW THEREFORE IN CONSIDERATION of the rent hereinafter reserved and of the covenants and conditions herein stipulated and on the part of the Lessee to be observed and performed, the Lessor hereby leases  unto theLessee, the premises together with all fixtures and fittings .

NOW THIS AGREEMENT WITNESSETH as follows: -

1.  The lease shall take effect from ........................ to ........................  and shall subsist for two    years.
2.   The monthly rent shall be  ………………………..…….  (.............../=)   .
3.   That on the execution of this lease agreement  Lessor has paid (6) months rent  in advance, which amounts to …………..  ...................  (................./=) .
4.   That after the expiration of the six months rent paid in advance , the lessee shall be obliged to pay one year rent in advance which is equivalent to ……………………………….

5.    One month prior to the expiry of the two years lease  term herein created by this lease, the Lessee  may express its desire to renew the lease on a period to be agreed by the parties hereto and on such terms and conditions as the parties may NEGOTIATE and AGREE on the issue of renewal.
                

1. THE LESSEE HEREBY COVENANTS WITH THE LESSOR AS FOLLOWS: -

    1. To occupy and use the existing structure  for official    purposes only.
    1. To maintain, and otherwise keep in good and tenantable condition the structures of the building and in particular the roofs, foundations and walls thereof.
    1. To pay the Lessor the agreed rent as aforementioned in the manner above provided.
    1. To pay and discharge all fees for sanitary removal, all rates and charges for use of water, electricity and , security guard if any, in respect of the demised premises during the tenure of the tenancy. 
    1. At all times to keep the interior of the demised premises and appurtenances thereof including doors, windows and other fittings, water drains and other pipes, electrical systems and services therein, paintings and decorations thereof in good condition .
    1. Not to make any structural alterations or additions to the  premises , whether interior or exterior of  the demised premises, without first obtaining the written consent of the Lessor. If such consent shall be given, any cost involved in fixing any such item will be at the Lessee’s own cost; and any damage to the exterior or interior of the demised premises, as a result of such alteration and/or fixing of such items, will be repaid by the Lessee.
    1. Not to install or connect any electrical apparatus that might endanger or overload the electrical installation of the demised premises or any part thereof.
    1. To keep the premises clean and tidy at all times.
    1. Not to transfer, assign, sublet or part with possession of all or any part of the demised premises without the consent of the Lessor.
    1. Not to use the demised premises in a way which would create annoyance or nuisance or any danger to the public, neighbours or adjoining lessee(s) or in any way interfere with the quietness  and comfort of other neighbours.
    1. On the expiration or sooner determination of the term hereby created, to deliver up the demised premises to the Lessor, with all locks, keys and fasteners together with the Lessor’s fixtures and fittings therein complete, in good repair and tenantable condition (only reasonable wear and tear, earthquake and lighting exempted). It should be emphasized that damage by ordinary fire arising from electrical fault or any other cause other than lightning is not exempted.
    1. At the determination of the term herein created, to quietly yield up the  premises, together with all fittings and fixtures, in such good tenantable repair and condition as shall be, in accordance with the covenants in that behalf, on the part of the Lessee herein contained.


2. THE LESSOR HEREBY COVENANTS WITH THE LESSEE AS FOLLOWS:
                 (c)    That the Lesseeperforming his obligations hereinto shall peaceably hold and enjoy the demised premises without any interruption by the Lessor or those claiming through or under his title

3. Interpretation & Governing Law
That this lease agreement shall be interpreted and governed in accordance with the Laws of the United Republic of Tanzania .

IN WITNESS WHEREOF the parties hereto have dully executed this Agreement in the manner and on the day and year hereinafter appearing:


SEALED and DELIVERED at Dar Es Salaam by the said                  
       ]
 who is known to                                                                                 ]
 me personally/has been identified                                                      ]        
   ……………….
 to me by the latter being                                                                      ]  LESSOR
 known to me personally in my                                                            ]          
presence this……….day of ………….. 2012                                               ]                                                                                              
Signature:……………………………………..

Postal address:………………………………..

Qualification:………………………………….


Signature:……………………………………..

Postal address:………………………………..

Qualification:………………………………….






SEALED   and DELIVEREDat DAR ES SALAAM          ]
 by the said                                                                         ]                      
 in my presence                                                                       ] LESSEE
this ……………day of ……….. 2012                                                          

Signature:……………………………………..

Postal address:……………………………….
Qualification…………………………………

Signature:……………………………………..

Postal address:……………………………….
Qualification…………………………………


Drawn and filed by:
....