RULING Boniface Jacob final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT PAR ES SALAAM CRIMINAL REVISION NO31235/2024 CASE REF 202411022000031235 (Arising from Miscellaneous Criminal Application No. 29695/2024 and Criminal Case no 26918 of 2024 at Court of Resident Magistrate’s of Dar es Salaam at Kisutu) BONIFACE JACOB (EX-MAYOR UBUNGO). .................................APPLICANT Versus REPUBLIC.................................................................................RESPONDENT RULING 21st & 28th Nov 2024: KIREKIANO, J: In Criminal Case no. 26918 of 2024, pending before the Court of Resident Magistrate of Dar es Salaam at Kisutu, the applicant herein faces a charge of publication of false information. The charge is preferred under section 32 (3) and (4), 36, and 38 of the Cyber Crimes Act, No. 14 of 2015. While the proceedings are pending, the respondent made an ex parte application under section 32 (3) and (4), 36 and 38 of the Cyber Crimes Act, No. 14 of 2015, seeking a court order to accord the respondent access to the applicant's cell phones to obtain data to assist law enforcement officers in the investigation during the pendency of Criminal Case No. 26918 of 2024. 1 The ex parte application was registered as Misc criminal application no 29695 of 2024 and was granted. The trial court held thus; “Under section 38 of the Cybercrime Act which mandatorily requires the application to be heard ex-parte and; after having gone through the chamber application and the affidavit and also; after having gone through section 32(3) and (4), and 36 of the Cyber Crimes Act which empowers this court to grant the prayers sought, the applicant is hereby granted access to the SAMSUNG GALAXY S23 ULTRA with IMEI no. 351343955567808/352873865567808, SAMSUNG S20 ULTRA 5G with IMEI no. 352285110557204/71 and 353286110557202/71, and X account (formerly known as Twitter) of the respondent for the purpose of obtaining data. The applicant herein is aggrieved with this decision; it is noted here that the proceedings in Criminal Case No. 26918 of 2024 are still pending in the subordinate court. Under sections 372 (1) and 392A (1) and (2) of the Criminal Procedure Act Cap 20 [RE 2022], the applicant has filed this application seeking the following reliefs: 1. This Honourable Court be pleased to call for, examine, revise and dismiss the charge sheet dated 19 September 2024 in Criminal Case No. 26918 of 2024 between Republic Vs. Boniface Jacob @ Ex - Mayor Ubungo. 2. This honourable court be pleased to quash the ex-parte order issued in Miscellaneous Criminal application No. 29695/2024 which ordered the applicant to unlock his phones SAMSUNG GALAXY S20 ULTRA SG with Imei 2 No. 35228511055720471 and 3532861 10957202 71, SAMSUNG GALAXY S23 ULTRA with Imei No. 151343955567808, 352873865567808, 3. That, this honourable court be pleased to prevent the Regional Crime Officer of Kinondoni or his agents working under his instruction from implementing an illegal and unlawful order issued against the applicant of unlocking passwords in his phones. Make SAMSUNG GALAXY S20 ULTRA SG with mei No. 35228511055720471 and 3532861 1095720271 Upon being served with the applicant application the respondent had other ideas; they have posed preliminary objections against the application on two points thus; 1. That this application is incompetent and bad in law as it contravenes Section 43 (2) of the Magistrates' Courts Act [Cap. 11 RE 2019]. 2. That this application is incompetent and bad in law for being brought as an omnibus application During hearing of the preliminary objections, the applicant had service of Mr Hekima Mwasipu and Mr Michael Lugina learned advocates while the respondent had service of Mr Clemence Kato SSA, Miss Nura Manja SSA and Mr Cathbert Mbilingi learned state attorneys. In support of the objection, on the first point, Mr Kato submitted that the order in the misc application number 29695 of 2024 did not decide the fate of the charge facing the applicant at the subordinate court. 3 Thus, this application falls within the purview of section 43 (2) MCA CAP 11, that is to say it is interlocutory which revision can not be sought. In support of his stance, he cited the CAT decision in Director of Public Prosecutions vs Faridi Hadi Ahmed & 36 Others (Criminal Appeal 205 of 2021) [2021] TZCA 203 (19 May 2021) on pages 11- 13 on the meaning of interlocutory orders to the effect that these are orders that are issued by a court while a case is going on. On the second point of objection Mr Mbilingi submitted that the application is omnibus, because the applicant has brought the application on unrelated transactions. He argud that the applicant combined prayers which cannot go together. He said the first, second and third, prayers originated from two different cases thus making the application bad. He cited decision in Lily Marandu & Another vs Arusha International Conference Center (Civil Application No. 34 of 2015) [2016] TZCA 920 (27 May 2016 underlining the position that lumping unrelated prayers makes the application bad. The respondent thus beseeched this court to find the application incompetent and strike out the same. On his part, Mr Mwasipu took a stance that the order at issue was not interlocutory because the applicant's right to be heard was finally 4 determined. Thus, the fate in criminal application no 29695 of 2024 was determined. He was of the view that if the order was made in the main case, it would have been interlocutory. He invited this court to consider the nature of the order test as stated in JITESH JAYANTILAL LADWA AND ANOTHER VS DHIRAJLAL WALJI LADWA AND 2 OTHERS. CIVIL APPEAL NO. 435 OF 2020, an interlocutory order is an order that relates to some intermediate matter in the case of any order other than final. In any case, it was Mr Mwasipu's submission that, notwithstanding section 43(2) MCA Cap 11, it was not the intention of the parliament to restrict the power of the High Court from calling for and examining the proceedings of subordinate courts to satisfy itself as to the regularity of such proceedings. He cited the decision in Peter Michael Madeleka vs Republic (Criminal Appeal No. 263 of 2022) [2024] TZCA 356 (14 May 2024), arguing that even if the order was found to be interlocutory. Yet this court may exercise its revisional powers to satisfy itself as to the regularity of the proceedings of the subordinate court. On the second point, he argued that the prayers follow each other in the two cases. That is to say, they are related; thus, the application is not omnibus. He cited the decision in Justine F. Bufure vs Haji R. 5 Mwikalo (Civil Appeal No. 292 of 2023) [2024] TZCA 85 (22 February 2024) to support his argument that bears out clearly that the two prayers are not diametrically opposed to each other, but rather, one follows the other. All that the courts discourage, argued Mr Mwasipu, is a combination of several reliefs in one application, which are governed by different laws with different yardsticks or timelines. He cited NMB Bank PLC vs Yara (T) Ltd & Another (Misc. Commercial Application No. 105 of 2023) [2024] TZHC Com D 114 (14 June 2024) to support his argument. In his rejoinder, Mr Kato, for the respondent, argued that the applicant's argument that the matter determined the rights between the parties was misconceived. Instead, the rights of the parties will be determined in the determination of the charge pending in the trial court. He maintained that the decision will be final only when it finally disposes of the rights of the parties on the pending charge. It was also maintained that the prayers are unrelated. On my part having followed the rival submission by the parties, I now wish to determine the objection raised. On the second limb of the objection, the parties subscribe to the position that an omnibus application is incompetent, and the remedy has 6 been to strike it out. This is the position of law stated in plenty of decisions, including Rutagatina C.L vs The Advocates Committee & Another (Civil Application 98 of 2010) [2011] TZCA 143 (18 February 2011). It is thus worth noting that an application becomes omnibus when the applicant combines unrelated prayers in one application. I have also taken note of the exception on this as discussed in the cited case of Justine F. Bufure (supra) sited by Mr Mwasipu. In that decision the court of appeal citing MIC Tanzania Limited v. Ministry for Labour and Youth Development and Another, Civil Appeal No. 103 of 2004 (unreported) stated that that the exception arises where two or more prayers sought for are combined in one application and are not diametrically opposed to each other. Now, looking at the applicants' prayers as stated in the chamber summons the same seeks to address grievances in an order in Misc criminal application no 29695 of 2024, which had an impact on the fate of Criminal Case no 26918 of 2024. Although the ex parte application ended by an order, it is in its nature related to the determination of the rights of the parties in the charge pending in the criminal case. To put it differently, the ex parte application and order would not be there, but for the main 7 case, that is a criminal case. It is on the basis of this I agree with Mr Mwasipu that the two prayers emanated from two related matters, and consequently, the prayers are not opposed to each other. I see no merit on the second point of objection, this point is overruled. On the first point, the respondent’ objection is posed under section 43 (2) of the Magistrate Court Act Cap 11, the same is to the effect that, revision shall not lie against any preliminary or interlocutory decisions or order of the district court or a court of a resident Magistrate unless such decision or order has the effect of finally determining the criminal charge or the suit. It is noted that this is a general provision. In criminal proceedings, such limitation finds its expression under section 372 (2) of the Criminal Procedure Act Cap 20. This application at issue is premised under section 372 (1) Criminal Procedure Act Cap 20, The same provides; 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. 8 What is clear is that generally, according to section 43 (1) MCA and section 372 (2), CPA CAP 20 application for revision shall not lie against any preliminary or interlocutory decision or order of a subordinate court not having the effect of finality of the charge. The argument posed by Mr Mwasipu is that, under section 372 (1) there is still a leeway for this court to exercise it revisional powers. It is on this he premised the application and relies on decision in Peter Madeleka to support his argument. I have read the decision, and in that decision, the substance of the prayers in the chamber summons was, among other provisions, in pursuance of 372 (1) of the CPA. The same sought to call for and examine the record of criminal proceedings in Criminal Case No. 269 of 2022 before the trial court at Kisutu for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order recorded or passed and to the regularity of such proceedings. The CAT noted the limitation for revision under section 372 (2) and that the appellant in that application did not seek to revise any decision or order passed or made by the trial court. The court of appeal held on page 11 thus; In this case, the parliament in its wisdom saw it fit to enact section 372 (1) to empower the High Court to call 9 for and examine the record of proceedings from the subordinate courts with a view to satisfying itself as to their correctness, propriety of any orders findings, sentences passed by such courts and the legality of any such proceedings. From what can be gathered from the above position, the high court may call for and examine the record of proceedings from the subordinate courts. Two, where there is a decision made by a subordinate court that has no effect of finality a limitation, applications for revision are limitated under section 372 (2) CPA. As much as I appreciate Mr Mwasipu’ thought in this section, considering that there was a decision made by the subordinate court, with respect, I am unable to subscribe to his view that a party aggrieved by the interlocutory decision, which is otherwise limited under section 372 (2) may apply to the court under section 372(1) CPA. I say so, having considered the prayers and reliefs sought in chamber summons. The same are centred on a decision passed, thus limited under section 372 (2) CPA section 43 (2) MCA Cap 11. The first point of objection is merited and thus sustained. Based on the foregoing I find that the second point of objection is merited. The application before me is incompetent. 10 The last issue is minor but woth noting. Looking at the respondent notice of objection, there was a prayer for dismissal of the application. The position of law is that an incompetent application can not be dismissed instead the proper order is to strike out the same. All said this application is incompetent and is accordingly struck out. A J. KIREKIANO JUDGE 28.11.2024 COURT Ruling delivered in the presence of Mr Michael Lugina advocate for the appplicant and in presence of Mr Cutbert Mbilingi state attorney for the respondnet. 11 A J. KIREKIANO JUDGE 28.11.2024 12