NA TZCA Dar es Salaam Stecy4

IN THE. COURT OF' APPEAL OF TANZANIA AT DAR F.S SALAAM (Q,OiyiM: BA,!1AD§'4NI ,· ~ ! •. _h},UBUV~,&~-!-~. A_-..Jili.P~ LlJQAKIRq1-13Al_J.c~o} -:' CRIMINAL APPLICATION NO. 2 OF 2002 · In the Matter of an Intei1ded Appeal BRl'WEEN DAUSfil ANAEL MUNISI), JON.AS BULAI ) ce O. 0 e O e O O O O COO O O O O O O O O O O O o'o O O oAPPLICANTS AND 'I'HE DIRECTOR OF PUBLIC PTIOSECU'l'IONS o o o • • o • • • o . o o • .RESPONDEN'.t (Application for Revision from the decision of the High Court of Tanzania at Dar es Salaam) dated the 25th day of Ja...YJ.uary, 2002 in ~----,-.----·...,.. Misc. Economic Cr:ime· ~ Cause No. 2 of 2002 - - . . - ---- .................__._ R U L I N G ______.. _____ ··--···~-.. ----·-·---- This is an application for revision. It is made under section 4(3) of the Appellate Jurisdiction Act 1 1979 as amended by Act No. 17 of 1993. By notice of motion, the Court is moved to call for the record of the High Court in Miscellaneous Criminal Cause No. 2 of 2001 in order to satisfy itself as to the legality 1 correctness and or propriety of the .decision of 25. 1.,20021 refusing bail to the applicants. The background giving rise to the matter may be stnted briefly as follows: The applicants viere charged on three counts ~,ith offences- lfu.dcr the Drugs and Prevention of Illicit Traffic in Drug~ Act Nq._ 9 of 1995 as amended by Acts Nose 9 of 1996 and -31 of 1997 • By Chamber Surnmons, an applicat'ion· ·for -bail was filed in the High Court in tenns of section 29 of the Economic and Organized C_riines Control Act, section 148 of the Cr:i.mmal Procedure -Act 1985 and the Drgus Act No., 9 of 1995 as amended. After close ' consideration of the matter, the learned judge (Ihema, J.) was -.... . . .~.. J:~ :-:i!~.:.;~ J. ' j . ~ settled in his view that the offences facing the· applicants-,--..,__":"\.--- bailable under section 148 (5) (a) (ii) of the Cr:im:i.nal Procedure Act, " 1985. Consequentl:y, the application for bail ~ dismissed on application, this 25., 1.2002. Following the dismissal. of bail · application· for revision has been filed in this 1 Court. Mr. H. Nyange and Mr. Kalolo· Bundala, learned advocates, a)?peared '- in this application for. tho firSt and second applicants re~pectively •.. In the ·p.otice of motion filed by Mr. H. Nyange, the . . . . following growtds are set out: 1. Section 4 of the Criminal Procedure Act, 1985 as amended disapplies the bail provision of the Crim'inal Procedure Act to offences under the Drugs and Prevention of Illicit Traffic in Drugs Act, 1995 as amended. 2. Offences under the Drugs and Prevention of Illicit Traffic :in Drugs Act, 1995 are bailable if they do not come under the ambit of section 26 (1) of the Act. 3. Section 2.6 (1) of the Act does not include methaqual.ont (Mandrax) tablets or Chemical. Precursors. · 4. Assuming section 2n ( 1) of the Act or the· ~rm.inal Procedure Code to (sic) apply ( which is not the case) the absence of value of the substance allegedly manufactured is a benefit of doubt to be accorded to the applicants. !:~:~phs 3, 41 5 and 6 of-the affidavit sworn by Mr. N::an,ge also 3. !he ~earned- Judge. o: the High Court erred in Co~d~g that the bail provisions of ··the rl.!Tlmal Procedure Act do apply .to offences ~der. th: Drugs and Prevention of Illicit raffic m Drugs Act No. 9/1995 as amended. 4. !~e l~arned Judge of the High Court misdirected ~:3e ,l~ wh~ he ruled that Illicit traffickin oJ ~Ue;$_ no matter the type and value of th g s_ubs_is.!ence is unbailable. ; •,·. · · e 5o To my_ :.knowledge Methaqualone (Mandrax) tablets ~o not fall with:in the drugs for whos~ offence 16 not r ·lat. bailable and f ur th . er, for mi offence c mg to narcotic drugs to be unbailable . the substruice must have a V"'l h ·11· c. ue o f or above , 6 1 ings one million ( 1 1 000 1 000/=) • · 6•. • The charge f th M sheet does not -even · suggest the value ~. e andrax tablets or chemical precursors . .,.. mvo1 ved. · --- - 3 - On the basis of these groJ.lhds, with a great deal of industry, both . Mr. H.: Nyange and Mr. Kalolo Bundala, have gone to great lengths argi,,,ing in support of the application for revision. In response to the submissions, Mrs. Su.'li~i, learned Principal State Attorney ass:Lsted by Mr. Mtinangit ~arned State Attorney for the respondent Republic have strongly resisted the a~plioation. As can be gleaned from the paragraphs extracted, it is at once apparent that these grounds are bettt,r suited for memorandum of appeal than factual statements :l.n support of an affidavit. At this ' , , juncture, befor&° dealing with tho submissions by _lea.med counsel on the merits of the matter, if we should, we pose to ask ourselves whether th:Ls is a,matter in which the Court could appropriately :invoke its powers of revision. It is now a settled principle of law that a party to proceedings in the High Court cannot invoke the revisional jurisdiction of the Court .as an alternative to the _,.,.,........._~~~ appellate ju.t'isdiction. This principle was underscored by the Court in the cases of !'1.9_~~~ie.wY.:.}-Si, E!E-19£....:.._]h~ Two Others 1)~7 ··- TLR 134, J.:~~~_tl,]_qujn_menrt.J..'2~_v. D. t:_ Valnmbhia /19957 TLR 161 and more recently, in Halais Pro-Chemie .._..._.. ,..._ ...- ~ ... - _...__.._ •. . . . . _ . . ~ •·• ca ____,,, _ _,,,, --...._...._ - - v. ...Wella... .A. ·a. /19967 ~ ..-.........- 1 . TLR 269. In the instant case, the issue :j.s whether the order of the High Court of 25.1.2002 refusing to grant bail to the applicants was appealable. In our considered opinion, this being an independent order and not an interlocutory one, it was appealaple. The matter being appealable 1 we can hardly see any reason why the applicants should come to this Court by way of revision:_· as alte_r.;n.ative to the appellate jurisdiction ~ .. . . of 'the Court. Iri_~_<!:_-!ard ISml2.u,,.&a _y_~ /)99[/ TLR 84 1 in more or. ,.. ·,, . ' less similar circumstances, the applicant who was:charged with an .offence under the E~onornio and Organized Crime Control Act, was refused bail by the High Court. From the order of refusal for bail 1 the matter was brought up to this Court by way of appeal,. Similarly in this case 1 there is no reas.on why the matter is not brought to the Court by way of appeal. Of -course, we are not ' ..../4 J--, .. ~~,., / .\ ''-. ·' unmindful of the the Court had 1>r-eviously matter by wey of revision :in Cr:iminal Revision No. 2 of 2001. We wish, however, to observe at once that the previouscase is " distinguishable from the :instant one. In lhat case, the Court dealt with the matter by way of revision because there was an cxcep~i~mal circumstancee That is, :in that case, it was patentl·r c1:~ai:.,6n the face of the record tltat the matter was dealt with i 1. the High Court on the basis of not only a wrong law but a repeal d legislationl That constituted spe(cial reason amounting to except::onal cli±cumst.mce to warrant the Court's exercise of its revisional jurisdiction. · _!n Mwa~:t,_bete (supra) the Court held a similar view .in ' its holding (ii) when it stated: ''Except ~q~xc,e;pt.~<?8t. ~J.rc..,':}!1Stances, a party to proceedings ih. the High Court cam:.ot :invoke the revisi.onal jurisdiction of the Court as an alternative to the appellate jurisdiction of the dou:.:-t•r; In addition, m the previous case, that constitute<l an illegality on the face of the record for correction on revision. J.n the instru·t case, we can fmd neither .spe6ial nor excaptio".lal circumstances -;, warrant the. matter b::ing brought to the Court by way of rcv:ision as an alternative to the appelktc jurisdiction. It :.s hardly necessary to emphasize that tl1e amendment to the Appe:1.late Jurisdicti--,n Act, 1979 effectr.d by Act Noe 17 of 1993, was not 7':J:l.:~nded to provide for an alternative to the appeaJ process e : n this C.:1.Se, as can be seen from the grounds stated a1:love seeking re-:rfaion, the legal points raised can hardly be said. to constitute ar.. illegality, impropriety or· incorrectness on the face of the ref">rd f0'l:' correction on revision. :.:f anything at· all 1 we thfok this is l complaint egninst possible mi.sinterpretation or misapplication of / ' . the law which-~ould constitute gr01.mds for appealing to the Cour<,., For these. ·reasons, we are ,s,.;_tisfied that thi.5 matter does not fall under the categories of instances m which the Court can appropriately invoke its revisic~al jurisdiction. I The application is dismissed. • ••/5 l. ·AoS .. L., RAMADHANI JUSTICE OF. APPEAL DEPUTY .REGISTRAR