LUSAJO MWAKYERU VERSUS REPUBLIC

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA MISCELLANEOUS CRIMINAL APPLICATION NO. 22971 OF 2024 (Arising from Criminal Session No 16797 of 2024 in the High Court of Tanzania Dodoma Sub-Registry) LUSAJO SHEDRACK MWAKYERU ………………....….. APPLICANT VERSUS THE REPUBLIC ……………………..…………………RESPONDENT RULING Date of last order: 29/08/2024 Date of Ruling: 29/08/2024 LONGOPA, J.: The applicant one Lusajo Shedrack Mwakyeru stands charged in Criminal Session No. 16797 of 2024 with an offence of acts intended to cause grievous harm contrary to section 222(a) of the Penal Code, Cap 16 R.E. 2022. It is alleged that on 28th day of June 2023 at Magorofa Mengi - Kikuyu area within Dodoma District in Dodoma Region with intent to do grievous harm did unlawfully splash Sulphuric acid on face, neck and 1|Page shoulders of one WITNESS NKUVALAVA as a result the said WITNESS NKUVALWA sustained grievous harm. On 13th August 2024, the applicant filed this application under Section 148(3) of the Criminal Procedure Act, Cap 20 R.E. 2022 with certificate of urgency for an order, namely: (a) that, bail pending determination of the case be granted (b) That, bail requirements/ conditions be set (c) Any other order or relief which this Honourable Court may deem fit and just to grant. This application is supported by an affidavit of Mr. Onesmo David Martin Issiah, the Counsel for the applicant. The affidavit states that the applicant is facing a bailable offence thus applying to this Court to grant bail pending hearing and determination of the charges he is facing in the forthcoming Criminal session. The applicant’s affidavit states as follows: (1) That, I am an Advocate of the High Court of Tanzania and Court subordinates thereto, dully instructed by the Applicant herein to depone the facts of this Affidavit hence conversant with the same. (2) That, the Applicant herein stands as an accused person as per the charges filed before the High Court of Tanzania 2|Page with the charge numbered as Criminal case No. 16797/2024 before High Court at Dodoma Sub-Registry. (3) That, the applicant herein is charged with the offence of Act Intended to Cause Grievous Harm contrary to Section 222(a) of Penal Code [Cap 16 R. E. 20221. Which is within the jurisdiction of this honorable court. A Copy of the information is herein attached and craved to form part of this affidavit and marked as annexure LS 1. (4) That, the offence that the applicant herein stands charged is bailable as per Article 15(2) of the Constitution of the United Republic of Tanzania and Section 148(1) of The Criminal Procedure Act [CAP 20 R.E 2022]. (5) That, the Applicant herein is an aged man and a bread earner of his family where he has children and grandchildren who depends on him for supply of daily basic needs (food, clothes and shelter) hence his family shall suffer irreparably if this application is not granted. (6) That, the Applicant and his family stands to suffer irreparably psychologically and his general wellbeing and given the fact that the applicant is a government employee 3|Page who is supposed to attend his office and failure for him to attend work for three days shall lead to his termination of his employment. (7) That, the Applicant herein furthers assures this court that if the bail shall be granted, he has no desire to interfere, tempering or to evade due process of the law and he shall face his trial by virtue of consistence appearance before the Trial Court. (8) That, the applicant herein was arraigned on the 12th August 2024 and has been in custody since then and the matter has not yet been assigned the dates of hearing. (9) That, the Applicant shall abide to terms and conditions of bail to be imposed by the Trial Court. (10) That, the Applicant has reliable sureties to stand as sureties and to bring him whenever he will be needed by the Trial Court for hearing of the case. 11)That, basing on the above stated facts it is the interest of law and justice this application be granted by this honorable court. 4|Page On 29th August 2024 when this application came for hearing, the applicant enjoyed the legal services of Mr. Onesmo David Martin Issiah, learned advocate and the Respondent was represented by Mr. Francis Mwakifuna, learned State Attorney. The Counsel for application adopted the affidavit of the applicant to form part of the submission and reiterated that the applicant has reliable sureties within the jurisdiction of the Court. Further, it was argued that the applicant is willing to adhere to all conditions set by this Court including appearance to court on dates set for the forthcoming Criminal session. The Counsel urged this Court to find merits on this application given that the offence the applicant is charged with is bailable. The application was not resisted by the Respondent’s State Attorney. The learned State Attorney reiterated the need for this Court to set appropriate conditions that are equal to the severity of the alleged offence. It was submitted by the respondent that during Preliminary Inquiry before the District Court of Dodoma the applicant had been granted bail and appeared to court at all times he was required to do so. It was argued that Committal Order dated 12th August 2024 that terminated the bail as the applicant was committed to this court to face his trial thus the subordinate court could not have extended the bail as the accused was not within the jurisdiction of the District Court from that 5|Page moment a committal order was made. That was all from both learned counsel for applicant and respondent. I have dispassionately considered the affidavit supporting the application and submissions from both applicant and respondent. The respondent is not objecting to the grant of this application and admission to the bail to the applicant. Bail is an important aspect of criminal trial that accords an accused person temporary release from police custody or remand prison pending trial or determination of his appeal. It is governed by the provisions of Section 148 of the Criminal Procedure Act, Cap 20 R.E. 2022. The Act provides that: 148.-(1) Where any person is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail the officer or the court, as the case may be, may, subject to the following provisions of this section, admit that person to bail; save that the officer or the court may, instead of taking bail from that person, release him on his executing 6|Page a bond with or without sureties for his appearance as provided in this section. (2) The amount of a bail shall be fixed with due regard to the gravity and other circumstances of the case, but shall not be excessive. The law allows generally a person to be admitted on bail when such person is under custody of the police or other means of detention. The Police officer or the Court is enjoined to satisfy that a person is eligible to bail in the sense that such person should be charged or facing allegations in a bailable offence. The bail restrictions are set out in Section 148(5) of the Criminal Procedure Act, Cap 20 R.E. 2022. The offence of acts intended to cause grievous harm contrary to section 222(a) of the Penal Code, Cap 16 R.E. 2022 is one of those offences whose bail is restricted. It is a bailable offence under the laws of Tanzania. The instant application on bail is a step towards applicant enjoying his freedom of movement that is temporarily curtailed. The application for bail is a realization of the provisions of Article 13(6) (b) of the Constitution of United Republic of Tanzania on presumption of innocence which forms crucial element of principle of equality before the law. 7|Page Having in mind of the objectives of remanding an accused person in custody pending trial, a Court exercising powers to grant bail or otherwise must be fully versed with jurisdiction before it embarks on determination of an application for bail. In the case of Director of Public Prosecutions vs Farid Hadi Ahmed & Others (Criminal Appeal 96 of 2013) [2013] TZCA 260 (20 November 2013), at pp.18-19, the Court of Appeal distinctively stated that: In disposing of this crucial ground of appeal, we have found it instructive to begin by stating categorically that it is now trite law that the issue of jurisdiction for any court is basic. As this Court succinctly stated in Fanuel Mantiri Ng'unda v. Herman M. Ng'unda and Others, Civil Appeal No. 8 of 1995 (unreported), "it goes to the very root of the authority of the court to adjudicate upon cases of different nature" The Court went on to hold that "the question of jurisdiction is so fundamental" such that "it is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon the case". We are accordingly of the settled view that jurisdiction to adjudicate must not be presumed or taken for granted. It must be traced to unequivocal statutory provisions and in some rare cases from the Constitution. 8|Page The Court without being clothed appropriately with jurisdiction shall not be seized with powers to grant bail. Any exercise of such powers would amount to nullity of the decision. All cases involving committal proceedings prior to a committal order are not within the mandate of the High Court to grant bail. This was the principle in the case of DPP vs Bookeem Mohamed @ Ally & Others (Criminal Appeal 217 of 2019) [2021] TZCA 188 (7 May 2021), at pp 12-13, the Court of Appeal lucidly stated: Guided by the above cited authority, it is our view that, if the High Court, in Dodoli Kapufi's case (supra) was found to have no powers to grant bail to the applicants on a matter which was still under committal proceedings without prior order which could have vested jurisdiction on it, the matter at hand is even more serious. We say so because, one, there was no illegality, incorrectness or improprieties which ought to be corrected in terms of section 372 of the CPA. Neither was there any order, finding or sentence which needed to be corrected in terms of section 373 (1) (a) of the CPA. [See also Domiano Qadwe's case (supra)]. Two, there was no committal order by the subordinate court as the matter was still in pre-committal state which the High Court was prohibited even to take cognizance of it. 9|Page It goes without saying that in circumstances where there are ongoing committal proceedings it is the committal court that would be versed with proper jurisdiction to grant bail to the accused person for bailable offences at the time of processing committal order. This is in line with the decision in the case of The Republic Versus Dodoli Kapufi and Patson Tusalile, Criminal Revision No.1 of 2008, while interpreting sections 148(1), 148(5)(a), 244, 245(1), 245(4) and 248(4) of the Criminal Procedure Act, the Court of Appeal held that: a subordinate court at the stage of committal proceedings has power to grant bail for any bailable offence. The Court added that, the High Court, in those cases has only got powers of superintendence with regard to bail as provided for in section 148(3) of the Criminal Procedure Act. The powers of superintendence are emphasized in section 149 of the Criminal Procedure Act. Similar holding was arrived at in the case of The DPP Versus Bashiri Waziri and Mugesi Antony, Criminal Appeal No.168 of 2012, CAT, at Mwanza. The first aspect for resolution by this Court is whether it is versed with proper jurisdiction to grant bail on the instant application. Determination of this aspect related to jurisdiction is crucial before embarking on circumstances that would assisting in setting appropriate terms of the bail. 10 | P a g e The accused person is standing charged with an offence called acts intended to cause grievous harm contrary to section 222(a) of the Penal Code, Cap 16 R.E. 2022. This offence is triable by this Court. That being the case, the applicant was subject to committal proceedings. It is important to ascertain if there exists a committal order. My perusal of the record in the Court file reveals that there exists a committal order of Preliminary Inquiry (P.I) No. 29 of 2023 from the District Court of Dodoma dated 12/08/2024 (Hon K.M Lugoye, SRM) which committed the applicant to the High Court for trial. It is clear from these facts that this Court is now seized with proper jurisdiction to determine the application for bail as the applicant has already been committed to the High Court for trial. This application for bail pending trial is thus within a proper mandate of this Court to determine. In the case of Emmanuel Simforian Massawe vs Republic (Criminal Appeal No. 252 of 2016) [2018] TZCA 376 (23 February 2018) (TANZLII), at page 12, the Court of Appeal reiterated that: We wish to make it clear and emphasize that this is not a constitutional matter but rather a criminal appeal premised on the subject of bail. We have all good reasons to say so because, at the High Court level the issue was an 11 | P a g e application for bail and upon hearing both parties a decision focused on that point was given. So as to satisfy ourselves as to whether the appellant was accorded a fair hearing, we meticulously went through the proceedings of the trial court dated 31/3/2016 as reflected at page 5 to 15 of the record of appeal. These proceedings leave no doubt that the bail application before the trial court was heard on merits. In those proceedings, both parties through their respective learned counsel were fairly given an opportunity to be heard. In the instant matter before this Court, both Counsel for applicant and respondent are not at issues on the grant of appeal. It appears to both counsel that this is a fit case to grant bail pending trial of the case. The remaining aspect is left to the Court to determine appropriate conditions in case it grants the application for bail. Having ascertained that this Court has jurisdiction to determine an application for bail, and heard both parties in support or otherwise on bail, the second aspect is whether it is appropriate to grant the application for bail and under what terms should bail be granted. The applicant is charged with offence of acts intended to cause grievous harm contrary to section 222(a) of the Penal Code, Cap 16 R.E. 12 | P a g e 2022. If proved, the offence attracts penalty of custodial sentence of life imprisonment. It is considered to be a very serious offence. As a result, any conditions set for bail should be sufficient to ensure that the applicant attend his case once the session is scheduled. In the affidavit supporting this application, the applicant sets three important averments. First, that the offence he is charged is bailable offence. Second, the applicant has reliable sureties within the jurisdiction of the Court. Third, the applicant promises to abide to conditions to be set by this Court including attending the court session on date set for appearance. It is my settled view that conditions set should be sufficient to enable proper administration of justice by balancing the interests of justice administration on one hand, and freedoms of the applicant on the other hand. The conditions should adequately safeguard and ensure appearance of the applicant to Court on all dates fixed by the Court for the pending trial. In view of the above, the application for bail pending trial is hereby granted. The applicant is admitted to bail on the following conditions: 1. The applicant shall sign a bail bond in sum of twenty million (TZS 20,000,000/=). 13 | P a g e 2. The applicant should have two reliable sureties with fixed abode within the jurisdiction of the trial Court; 3. Each surety shall execute a bail bond in the sum of TZS 10,000,000/=. Each surety should deposit to the custody of the Court, evidence satisfactorily to prove existence of an immovable property valued at TZS 10,000,000/=. 4. Each surety shall produce an introductory letter from his or her employer or local authorities and a copy of recognized identity card. 5. The Applicant must attend in Court on every date his case is scheduled unless prevented by reasonable cause. 6. The Deputy Registrar of the High Court of Tanzania Dodoma Sub- Registry to ascertain compliance with these conditions. It is so ordered. DATED at DODOMA this 29th day of August 2024 E.E. LONGOPA JUDGE 29/08/2024. 14 | P a g e