MCA 31923 OF 2024 ARTHUR MGONGO VS REPUBLIC Final

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM MISC. CRIMINAL APPLICATION NO. 31923 OF 2024 ARTHUR FREDRICK MGONGO.…………………………….……..…….APPLICANT

VERSUS REPUBLIC ……………………………………..…………...……………..RESPONDENT

RULING 02nd & 24th December, 2024 BWEGOGE, J.: One, Arthur Fredrick Mgongo, the applicant herein instituted this application under the certificate of urgency praying this court to be pleased to call for and examine the records respecting Economic Case No. 31824 which is pending in the Resident Magistrates’ Court of Dar es Salaam, at Kisutu, for the purpose of satisfying itself as to the correctness, legality, propriety of any finding or order recorded or passed and regularity of the said proceedings, among others. The application herein was brought under section 372 (1) of the Criminal Procedure Act [Cap. 20 R.E. 2022] and supported by the affidavit of one Aweda Traphim Mandara, the applicant’s spouse. 1 In tandem with filing counter affidavit, the respondent raised preliminary objections on points of law as hereunder: 1. That the affidavit supporting this application is bad in law.

2. That the entire application violates section 372 of the Criminal Procedure Act [Cap. 20 R.E. 2022]. The application herein was heard orally. At the scheduled hearing, the applicant had the services of Mr Peter Michael Madereka, learned advocate; and Mr Tawabu Yahya Issa, learned senior state attorney, entered appearance for the respondent. In substantiating the 1st limb of his objections, Mr Issa submitted that the affidavit supporting the application herein is bad in law for the reason that the deponent was sworn by the counsel for the applicant contrary to section 7 of the Notary Public and Commissioners of the Oaths Act [Cap. 12 R.E. 2019]. That the relevant provision prohibits the counsel to administer oath to the client whom he represents. The attorney further expounded that the essence of this prohibition is based on the principle that the affidavit being evidence, may be acted upon by the court; and in some circumstances, the court may require the deponent to enter an appearance in court as a witness. Moreso, the attorney asserted that the alleged procedural sin offends the principle of natural justice as one 2 cannot be a judge of his own cause. The case of Wilson Chalanga vs. Aloyce Kitonga Batilo (Misc. Civil Application No.4072 of 2024) [2024] TZHC 2326 was cited to buttress the point. Thus, the attorney opined that the affidavit supporting the application herein

should be expunged from the record of this case for being bad in law. Likewise, the attorney opined that the impugned supporting affidavit having expunged from the record, the application herein would be rendered limbless; hence, doomed to be struck out. Respecting the 2nd objection, the counsel charged that the application herein violates the provisions of section 372 of the CPA. That the respective provision enjoins this court with power to call for the record of the lower court to satisfy itself on the legality, propriety and, or correctness of the order, finding, and sentence of the lower court. However, in this matter, there is no order, finding, and or sentence entered by the lower court which would enjoin this court with power to invoke the provisions of section 372 of the CPA. That the power of the DPP to institute the charge against the accused in the lower court cannot be questioned by this court in the absence of the order, finding or sentence in terms of the provision of section 372 of the CPA. 3 Thus, based on the above premises, the attorney asserted that the application herein is incompetent before this court, liable to be struck out. In reply, Mr Madereka contended that the 1st limb of the objection was brought without regard to the procedural law which instructs how the objection should be raised in court. The counsel expounded that the law requires that the

preliminary objection should encompass a citation of the provision of the law alleged to have been contravened to avoid taking the adverse party by surprise. That the objection was too general as it doesn’t specify how the affidavit is bad in law. The case of James Buchard Rugemalira vs. Republic, Criminal Application No. 59/19 of 2017, CA (unreported) was cited to bring the point home. Moreso, the counsel maintained that the 1st objection raised herein being too general, it denied them an opportunity to prepare for a counter- argument. Hence, the 1st objection raised herein should be of no legal effect and, or disregarded by this court. The counsel called upon this court to abide by the provision of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977, as amended, which enshrines the right to be heard which has been curtailed by non-disclosure of the essence of the purported objection advanced by the respondent herein. 4 Respecting the 2nd limb of the objection in that the application herein violates the provisions of section 372 of the CPA; the counsel hastily directed the mind of this court to the case of Dinna Pantaleo Moshi vs. Republic (Misc. Criminal Application 11 of 2022) [2022] TZHC 13077 on page 12 wherein this court restated that the revisionary powers of the High Court are not restricted to the order, finding or sentence meted by the

subordinate court but also to the regularity of the impugned proceedings. The counsel clarified that in this matter, they have not challenged the power of the DPP to institute the charge in the trial court but the regularity of the proceedings thereto. The counsel likewise, directed the mind of this court to the case of Peter Michael Madeleka vs Republic (Criminal Appeal No. 263 of 2022) [2024] TZCA 356 in bolstering his point. On the above premises, the counsel opined that the 2nd limb of the objection has no merit; hence, liable to be overruled. In rejoinder submission, Mr Issa reiterated his previous stance and contended that the case cited to buttress the argument made by the counsel for the applicant doesn’t fit the circumstances of this case. That the 1st objection raised herein is not too general as it is specifically averred 5 that “the affidavit is bad in law.” He maintained that the defective affidavit cannot support the application herein. Regarding the 2nd limb of the objection, the attorney, likewise, opined that the cases referred to buttress the argument made by the applicant’s counsel don’t fit in the circumstances of this case as there is nothing to be reviewed in the proceedings of the lower court. Now, the issue to be resolved by this court is whether the preliminary objections raised herein by the respondent are merited. I find it pertinent to commence with

the 2nd objection raised herein in that the application herein violates the provisions of section 372 of the CPA. The mainstay of the argument made by the respondent’s attorney is that in this matter there is no order, finding, and or sentence entered by the lower court which would enjoin this court with power to invoke the relevant provision of law. Ab initio, I am constrained to agree with Mr Madereka in that the 1st limb of the objections raised herein is patently misconceived. As rightly submitted by Mr Madereka, the revisionary power of this court is not limited to the order, finding or sentence meted by the subordinate court but also to the regularity of the impugned proceedings. The position was 6 clarified in the case of Peter Michael Madereka vs. Republic (supra) wherein on pages 9-11 the Court expounded viz: “Section 372 of the CPA, claimed to have been misinterpreted by the High Court stipulates: "372 (1) The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court. (2) Notwithstanding the provisions of subsection (1), no application for revision shall He or be made in respect of any preliminary or

interlocutory decision or order of a subordinate court unless such decision or order has the effect of finally determining the criminal charge." The appellant and the learned State Attorney had divergent views on the restriction in applications for revision brought about by sub- section (2); that is; whether the application from which the appeal has originated was caught up by the bar under sub-section (2) as found by the High Court. We agree with Mr. Kissima and indeed that is one of the rules of construction of statutes to a read the whole section and not one sub-section in isolation from the other. There is no dispute regarding the prohibition under sub-section 2 against revision from any preliminary or interlocutory decision or order of a subordinate court not having the effect of finality. There is equally no dispute on the scope of the application and the order sought by the appellant; to call for and exam ine the proceedings of the trial court w ith a view to satisfying itself as to its legality. The appellant did not seek to revise 7 any decision or order passed or made by the trial court.” [Emphasis mine]. Further, the Court opined: “Having read both sub-sections conjunctively and guided by the golden rule of statutory interpretation, we are inclined to agree with the appellant that the High Court slipped into an error in holding that its hands were tied in determining

the application by reason of the bar in section 372(2) of the CPA from doing so. I n its w isdom , the parliam ent did not w ant to restrict the pow er of the High Court from calling for and exam ining the proceedings of subordinate courts to satisfy itself as to the regularity of such proceedings in the sam e m anner it did w ith prelim inary decisions and orders w ith no effect of finality.” [Emphasis added]. See also the decision of this court in the case of Dinna Pantaleo Moshi vs. Republic (supra) on page 12. Given the foregoing holding, I am constrained to agree with Mr Madereka in that the revisionary power of this court is not restricted to order, finding or sentence entered by the subordinate court, but also to the regularity of the proceedings commenced thereto in terms of the provision of section 372 (1) of CPA. Therefore, I hereby find the 2nd limb of the preliminary objections bereft of substance. 8 I now proceed to attend the 1st and pertinent limb of the objections raised herein. The charge herein is that the affidavit supporting the application herein is bad in law for the reason that the deponent was sworn by the counsel for the applicant contrary to section 7 of the Notary Public and Commissioners of the Oaths Act which prohibits the counsel who represents the client from administering oath to the client whom he represents. Unfortunately, as mentioned earlier,

Mr Madereka refrained from responding to the respective objection for the reason that he was taken by surprise, and called upon this court to disregard the same. Having scrutinized the pleadings filed by the applicant, the essence of the 1st objection raised herein as substantiated by the respondent’s attorney, I am of the view that the 1st objection raised herein goes to the root/competence of the matter before this court. Hence, I refuse to purchase the prayer made by Mr Maderaka to disregard and, or ignore the respective objection and proceed to determine the merit or otherwise of this application. My predisposition is based on the following reasons: One, when this matter was brought for necessary order on 15th November, 2024 the respondent’s counsel enlightened this court that he intended to file counter affidavit and preliminary objection on point of law 9 soon thereafter. Considering that the matter herein was filed under the certificate of urgency, this court set the matter for hearing on 02nd December, 2024 with an order for the respondent to file counter affidavit and the envisaged preliminary objection. And on the respective date set for the hearing, Mr Madereka enlightened this court that he was ready for the hearing and prayed this court to hear both the preliminary objection and merit of the application to enhance expeditious determination of the matter. I agreed

with the proposition. Mr Madereka didn’t raise concern that the 1st preliminary objection was too general for him to prepare for a counter-argument. It was not until Mr Madereka heard the substance of the objection that he registered his complaint in that he was taken by surprise and prayed this court to disregard the same. Thus, I find the complaint an afterthought. Two, apprehending the import of the objection raised herein which alleges incompetence of the matter herein, of which I found constrained to rule on, I afforded room to the counsel, if need be, by adjourning the matter, so that the same may respond to the respective objection. The counsel herein vehemently objected to the proposition for the reason that he is not obliged to respond to the objection brought in contravention of the law. 10 Admittedly, in the case of James Buchard Rugemalira vs Republic (supra), the Apex Court having apprehended that the objection raised by the respondent was not clear to allow the adverse party to respond thereto contrary to its amended rules vide GN 362 of 22/09/2017 wherein rule 107 (1) requires that a party requiring to rely upon the preliminary objection to the hearing of the appeal or application shall give the appellant or applicant three copies of notice thereof prior to hearing setting out the grounds of objection such as the specific law, principle or decision relied upon.

The court found that the objection raised contravened the above provision and disregarded the same. Arguably, there is no specific rule of law which guides this court on how the preliminary objection should be drafted. However, this court is equally obliged to see that the adverse party in the proceedings should not be taken by surprise by the shrewd party or denied a fair hearing for the reason of improper drafting of the preliminary objection. It is for this very reason that though the applicant’s counsel intimated that he was ready for hearing, and later found that the objection was unanswerable, I afforded him room to prepare for the counter-argument, if need be, by 11 adjourning the hearing. My proposition was vehemently contested. Hence, I apprehend that the counsel found the objection unanswerable. As I previously mentioned, the 1st objection herein alleges the competence of the application before this court which I cannot do otherwise, but decide on irrespective of the applicant’s call to disregard the same. Thus, I proceed to determine the respective objection. The provision of section 7 of the Notary Public and Commissioner for Oath Act [CAP. 12 R.E. 2019] provides thus: “No commissioner for oaths shall exercise any of his powers as a commissioner for oaths in any proceedings or matter in which he is advocate to any of the parties or in w hich he is interested.” The

above revisited provision is clear needing no further interpretation. In no uncertain terms the relevant provision issues two distinctive prohibitions: First, prohibits the commissioner for oaths from exercising his powers as a commissioner for oaths in the matter in which he is an advocate. Secondly, prohibits the commissioner for oaths to exercise his power as a commissioner for oaths in the matter in which he is interested. Both procedural sins specified in the relevant provision render the matter before the court incompetent. See the cases: Wilson Chalanga vs. 12 Aloyce Kitonga Batilo (supra); Aloyce Kissenga Mchili vs. Erick Kuneza Rutakonya & Others (Misc. Commercial Application 43 of 2022) [2022] TZHCComD 279; and Calico Textile Industries Limited vs. Zenon Investment Ltd and Others [1999] TLR 100. In the case at hand, the counsel is alleged to have administered oath to the deponent whose affidavit supports the matter in which he is an advocate. I have scrutinized the affidavit supporting the application. It is apparent on the record that one, Peter Michael Maderaka, the applicant’s counsel herein, administered oath to the deponent (Aweda Traphim Mandara). Admittedly, the applicant’s counsel contravened the provision of the law cited herein above in exercising his power as a commissioner for oaths in the matter in which he is the advocate. The procedural sin committed

by the applicant’s counsel renders the supporting affidavit defective. Consequently, the matter before this court is rendered incompetent. Hence, I am constrained to agree with the respondent’s counsel in that the procedural sin committed by the applicant’s counsel, renders the matter before this court untenable. 13 In view of the foregoing, I find the 1st limb of the objections meritorious, but the 2nd objection. I hereby sustain the 1st objection. Accordingly, the application herein is hereby struck out for being incompetent before this court. For what it’s worth, the striking out of this application is not the death of the applicant’s right to question the criminal proceedings brought against him in the trial court. The applicant may re-institute proper application before this court for determination. I so rule. DATED at DAR ES SALAAM this 24th December, 2024. O. F. BWEGOGE

JUDGE 14