19910321 TZCA Dar es Salaam

IN THE COURT _OF AP.PE'AL OF TANZANIA AT DI\.R ES SALAAM ........ ,.. (CORAM: _MAKAME 1 J.A., RAMttJ:>~, J.A.,_~~d MNZAVJlS, J.A.) CRIMINAL lu'PEAL NO. 68 OF _·1990 BETWEEN • / THE DIBECTOR OF PUBLIC PROSECUTI~NS. • • • JJ>PEL~NT I AND . 1. AlIDli.LL.AH RWl.J3U MATUI1'$0 2, CELESTIN M. Rlu'HilEL · ; • • • RESPONDENTS 3. EVEREST SJJ3UNI CHAIJ:..MBO (Appeal from•t~G Ruling of the High Court .. -Of--Tanzonia at Dar es Salaam) · (Mapigano 1 J .) / dated the 25th day of _May, 1990 in. J.,_ (~ ~~ .• . criminal Revision No. 4 of 1990 --,,.~--- JlID:}MENT OF THE COURT ~U.r1.DHANI ·1 J .A • : The respondents, li.:BDALLlllI RAJ1u3U MATUMBO, CELfil?T~ ~u'lLiEL and b""VI!REST SAEUNI CH:1L,.il1BO,·were granted bail by Mr. I.H.M. H.foESS.A, the Principal Resident Magistrate, despite t~ provisions of Seoti~l) 14Efof• tne-cr_iminal Proced"i.iYcf Jio't, 1985. The learned· Principal . . / . ,.... ...-~,._ .~ .-' ~......... ~ Resident Magistrate Wr3B followil'lg the deoision of MWALUS/iNYA, J'~~:'..'ji/~ in th~ case of Daudi Pete v~ R. Misc. Criminal case No. 80 of 1989. The Republic being aggrieved . with that appealed t~ the ~ High Court where MAPJGJ~No, J., a_s he then was, held that tm leamed Principal Resident Magistrate was ~ou,nd by the ruling . in.-Daudi ·pete v.R. The Republic no.w appeal·~ to us. . . ~gµ-ipg the appeal on behalf of the Republio/Ap~llarit ··\v'as Mr_. MALL!.J3A, learned State ·Attorney while Mr. m.nfo., l.3arned • I -,.__·:.~·;_'-"~~f'9 I ■.Qi·:..<ti~♦.•!.~~:"'" '·.<~<. -~-.:'.: -.-·__ ,"I,._ . j~~r: , . . .~ , ' ·-.-.:·_~(btf'•. ',•· .... :"'~<!~ . • ..... ... ',/.'✓~•: . - .~--: -: 2 • ,(_ .4 - \- •;:--..,. c·ounsel, was resisting it on behalf of the respondents ... ' ' ~. Mallaba.submitted tha-t-~here were two issues :in , ,It .. 'i ......-. !~- ... ' .•1, •>: < · tnis appeal. The first issue. was _the doctrine of precedent ond f~-).. · ·! ,:t-t':,. the second was th~ existence of two· conflicting decisions· of·· . :··'It!- the High Court on the question of bail. As for the ~octrine_ of prec_~dent Mr·. Mallaba conceded: ,. .;, ,.,.. I that lower courts are bound by the decisions of superior c~urtih ..... But!he- argued t~t it is the ratio decidendi of the judg100n~ :.:t_;':. which is binding and not obiter dicta. He cited page 6 9£ ~ Doctrine of Precedent in the Court of Appeal for East Africa - - by ij.F.A. ~awyer and J. A. Hiller. Mr. MDllaba also '.refe~red us to Vol.22 of Halsbury,s Laws of England (3rd Ed.) at page 796 in support or·-tne ·definition ofrat'io decidendi as being the t~~,f. \·r- •~ .!:; ' ' general reasons given for the decision or the gene~al grounds on which it is based. He submitted that the ratio decidendi ia distilled ftom the decision on the ·natters at issue before • ,c . i• -. ...... _,:-,. .~:~l the. court in a particular case and that. dec1:-:3 ions on matters not at -issue are obiter dictum. Applying those principles -he sought to persuade us to ~irid that the ,issue before·MWALUSANYA, J. :in-Daudi Pete v~ R. was the granting of.bail under paragraph (e) ,.._. of subsection (5,) of section 148 of the Criminal Procedure ..Act-- (hereinafter r~ferred to as C.P.A.) but that the learned judge yrent out of his way to declare both subsections (4) ano (5) to be unconetttutional---;- To that extent; he argued, that decision ,•,: .· ,, was obi ti3r. The lear~~d couns~l >said that the issue involved in the present appeal is bail under paragraph (g) of subsection · _(5) ·of section 14.8. He concluded that a decision on paragraph . . _(e) was not bind~ on a determinatibn of paragraph (g) • .He ·...... ./3 ~.-r-~r,;. ' .' .. . .- 't .~.·~:;:', ~_.c ~ , conceded, however~ that both paragraphs fall un;ler subsection (5) -_but _made the distinction that wb.er-eas bail is denied under pararrraph (e) it. is only_restricted under_paragraph:{g) ... ,However, he agreed with ... the Court that under both paragraphs there· is no right of a hearing and that the matters are not.decided by the Court but are prescribed •. by the statute. He, however, submitted that_the learned Pru1cipal Resideri.t"Mag~trcrte should not·•fl:ave- felt . bound by the decision in Daudi Pete· v. R. Mr, Mallabt then submitted that there are two conflicting decisions of the. High Court on the constitutionality of subsection ' ,,. (5') of ae_ction 148. M3U~1I, J ~ , · c.ontrary to MWA4USANYA, "'.,• . J. , has i. . . ' . '' . ho~d-'in R. v-. Peregrin Y. Mrope Misc. ,er. Cause. No~ 43 of 1989 ~UIU:eported) that paragraph {e) of su~section (5) of sect~on 148 ... ·" .· . . ~ ;is not Wlconsti:t utiona_l. Mr. Mallaba argued that in view of these two conflicting decisions the learned Principal aesui~nt I'1agistr~te was not boWld.by either of them. The learned State Attorney did _not have any. authority for so saying~ Mr. -Ma~a stated that the learned Stnte Attorney failed to ~ppreciate the power of t.he H~h Court :to declare a statute unconstitutional which is what r•'MALUS.i~NlK, J •. did~ - The learned counsel. submitted that on the basis of precedent and.stare decisis, ·· with ;egard to the lower courts, the whole of subsection (5) of section 148 is non-existing~ As for the second prong of the attack .r . _by the appellant, Mr-•. Maira contended that. I"1SUMI, J. d'ec-ided_ only ~- . .f' !. . .·'on paragraph' (e} -df Subsection (5) of section 1-48.-~~eNas MWALUS..u~i. J. dGcided on the entire subsection (5), that is· poragraph (a). to. (g} ••.• /4 .... ·- \~;-> ,:~ ¥:~_,,, .. -. c' -'I._, .-.,, ,. ... • • ,. • , '.. - "'!: /. ,, . -,~ , ..! ~ ' --. -· 4 1 both inclusive~ Hence there is only one decision on paragrnph (g) '- and that is that of MWALUSANYA, J. Mr • .Maira submitted. that the learned Principal Resident Magistrate was bound by the decision . of . •,. . . · ?-iWi.LUSANYA, Jo :Nro Maira replied to the Court that if' the two ' !Iigh .Court decisions were to be held to be in conflict then neither of them was binding on the learned Magistrate who·was then free to decide which one he_ adopted., . ,_ ., . 1 ; ., We start with the second issue of whether there are or _,,._ . there ere not .~re conf1ictiJ?g High Court decisions. If the answer / to that is in the af:f,'i.cmative then the first issue will be· of acad~mic · interest ortl:r 0 '· , First of all the learned Principal Resident Magistrate• ', \._,,,'' . di~not decide the•is~ue before ,hiIIY'in ignorance of th~ decision of :tr'.Bur,u-, J ~-- . Sub~issions from brith sidl'ls were made on ~hat de.cisio}'.l. .. Unfortunately the learned Principal Resid~nt Magistrate did not give t:-:i,;.J.."/* .\ ... his reasons for following MWALUSIJil'YA, j. and not I.SUMI,- J. . .. I I 'I Now coming to the issue itself, MSUMI, J_. made a decision . •. on paragraph (e) of subsection. (5) -of secti,on 148 of the C.P •.11'. In fact on _page 3 of his ruling, he, said: .\ · ·.-iO;n the question of unc·onstitutionality, · I am of the view that section 148(5)(e) does _pot. contravene the. pr-<N is ion. of , . Article 13(6)(bL or any~ '·of the /. Cons~ i tut iono II e •~ Thus we · agree with Mr o Mn ira that the; dee is ion of MSUMI, J. does.· not t9uch on p~r~raph (g) of subsection (5)' of.~po~n 148 which .,.,. f'• 1, ; ' ""· ., if... >~. is. the one in -~sue nowo ~ . .: ~·.~ r; r~ ,.-~~\ '·--:"\• \ ... ' f;J . . 11• - A4!QiJ5~~,.,p~;,~~'-'~.- . ,. ~~- . . ·· 40 /\ it.I' :---~'Y- . ' ·. /. . . - 5 - :on' the -ether ·rumd· MWALUS..'1NYA~- -,h--,--whGther rightly or .· wrong~y, declared th.G whole of subsection (5) of section 148 to be unconstitutional. So the only decision of the High Court touching on paragraph (g) is toot of MWALllSlNYA,_ J • ' . 'ow, _did tb.at decision of MWALUSANYA, J .-bind t~e learned Principal Resident Magistrate or not? On thG outset we must state our stand and scopo very clearly. Wo are not in this appeal called upon to sit in judgment on whether MWll.LUS~'\.NYA, J. _was right or was wrong. Fortunately that issue is up for decision by, another panel ' of. this Court i.11 this same session. The issue before us here ., ""r is whether the decision of MWALUSANYA, J. was binding on tho Principal Resident Magistr.'.:lto or not_ 0 We agree with.Mr. Mallaba that what is binding in the doctrine of precedent is the ratio decidendi of the donisioµ which is determined by the issues before the court and,. tho ... • . decision on them. However, Mr~ Mallaba had a very narrow view of what w~s in issue before MWALUSJ..NYA,J. The. learned State Attor~~y•s view was that only poragrnph~(e) of S .lbsecti9n (5) 1 .of' section 148 of the C.P.1.-. was in issue. But MW.i.LUSANYA" J. mndo the entir.e subsection {5) and indeed even subsection (4) of s e ct ;on ~_48 in __i~e • Thus the ratio· decidendi of ..naudi Pete \. v. ·R. is that bdil cannot be denied under· su~sections (4) and ' ', · ~5')" of section 148 of the C.P.•li.. becat1:3e the two f:!Ubsections . a.re unconatitutional.0 Hence we f"ind that the leal;'ned Principal Resident . ?,lagistrate ·,' was bound by. that ruling. ~ I- •, •. /6 , ; :.1-·~~.,... ..... ,_ - "'"~ lil,, (, .•-,,, \.:i .... ' • ' ./ ~ . ,_~ :~-~~~~:- ~: =¼y:;:;:? / ·.· .. ' ' :..,. '--· · We therefO're dismiss' the appeal and uphold the Principal. Resident .Magis·trai;e and MAPIG.ANO, J .• DATED. at DAR ES SJJ.i!J.M this 21n day of MarQ_h, -1991_ •.. j' ... '' L. M. Mli.KAME I, ,, ·JUSTICE· OF APPEAL \ . I•. ,. '~. . ' ..J ' A. 's • L.. RAMADHANjf ·• JUSTICE OF'APPEl¥L ·.. ir ' ·, ' ' ;_. r ,•. ~ :•:. ·:( • ·:.· --~ I ,~· l,z':'~·. :c:·.~:,.. ".. .,. .. .,.I' • • .... -- .... ~ N. S •. MNZ.AVAS JUSTICE OF APPEAL ' ' •, I .:9e.rtify t6.at this is a~ true oow of tne·:·original. I f · ' .( 'r, ' ' -·o· ,• ..: . l I.. .• [ I ·I \ I .. ·,, , . , . ;. ' j r .. ' ,,,. i ,•