20120511 TZHC Arusha

IN THE HIGH COURT OF TANZANIA ATARUSHA MISC. CRIMINAL REVISION NO.1 OF 2012 (Originating from Arusha RM's Court, Criminal Case No.330/2011) THE DIRECTOR OF PUBLIC PROSECUTIONS .... APPLICANT VERSUS MEDIAN BOASTICE MWALE ........................ RESPONDENT RULING SAMBO, J. The Director of Public Prosecutions filed this application against the respondent, Mr. Median Boastice Mwale, who is the accused person in the Arusha Resident Magistrates' Court Crirninal Case No.330 of 2011. This application is made under the provision of section 372 of the Revised Edition, 2002 and any other enabling provisions of the laws. The applicant prays for the following orders:- (a) That, this honourable Court may be pleased to call for and examine records in the District Court of Arusha, Criminal Case No.330 of 2011 and satisfy itself as to the correctness, legality and propriety of proceedings, finding and orders of the said court dated 7th day of March, 2012. (b) Any other order that this honourable Court may deem just to grant. As usual in respect of the law, this application is duly supported by the affidavit of the learned Principal State Attorney, Mr. 1 Frederick Manyanda. The application was accordingly served upon the respondent who then lodged his counter affidavit and filed a notice of preliminary objection based on four points of law, to wit:- 1. That, the revision application is incompetent for being barred in law. 2. That, the revision application is incompetent in law having been brought under the wrong and non - existing enabling provision of law. 3. That, the revision application is bad and incompetent in law for not being accompanied by a copy of the proceedings and ruling containing the order of the lower trial RM's Court sought to be revised. Consequently, it will therefore be urged that the applicant's pertnent revision application be struck out for being bad and incompetent in law. 4. That applicant has no locus standi to file this application for the Tanzania Revenue Authority. Based on these grounds, the respondent humbly prays that the application be struck out in its entirety. This preliminary objection on points of law was argued orally. For convenience, I will start with the second ground which, if uphold, will completely demolish the whole application and therefore, there will be no need to discuss the other grounds, for it will be just an academic exercise. On this point, the learned respondent, Mr. Median Boastice Mwale, submitted to the effect that section 372 of the Revised Edition, 2002, does not exist in our laws. Consequently, this court is not properly moved. In support of his position, he referred this court to its decision in the 2 ' '\ ... , 'f ,,r;. ·•.• . .. . .,,. ' . , . ..,.,,_ case of Richard Kajuna Muro V. Arusha Municipal Council, Misc Civil Revision No.6 of 2005, at Arusha, ( unreported) and the decision of the Court of Appeal of Tanzania, the highest Court on the land, in M/s Ilabila Industries Ltd & 2 others v. Tanzania Investment Bank and Another, Civil Application No.159 of 2004, at Dar es Salaam, (unreported) and Citibank Tanzania Limited V. Tanzania Telecommunications Company Ltd and 4 others, Civil Application No.65 of 2003, at Dar es Salaam, ( unreported). In all these cases, the Courts of law held that they were not properly moved when the Applicants cited inapplicable section and or Rule. Both applications were struck out with costs. Henceforth, he prayed that this ground be upheld and the present application be struck out. In rebuttal, the learned Principal State Attorney, Mr. Frederick Manyanda, informed this honourable Court that the Application has been filed under the existing law. In the Chamber summons the words "Criminal Procedure Act, CAP.20" are missing due to typing errors. This. defect is curable under the provision of section 388 of the Act. He therefore prayed that this ground be rejected. At this juncture, I have considered the reasoned submissions of my learned friends for and against the second ground of the present preliminary objection on points of law. The learned Principal State Attorney do submit to the effect that the application is filed under a proper provisions of the law because the existing defect is curable under section 388 of the Criminal Procedure Act, supra. In essence he admits and do confess that the chamber application has been made under a wrongly cited 3 provision of the law and looks for its remedy within the law. The said section to which the learned Principal State Attorney finds his refuge reads as hereunder:- 388. (1) Subject to the provisions of section 387, no finding sentence or order made or passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, surmons, warrant, charge, proclamation, order, judgment or in any inquiry or other proceedings under this Act, save that where on appeal or revision, the court is satisfied that such error, omission or irregularity has infact occasioned a failure of justice, the court may order a retrial or make such other order as it may consider just and equitable. I have carefully and attentively examined this statutory provision of the law in respect of the present matter., and came to the satisfaction that it's absolutely inapplicable and irrelevant in its entirety. It will in no way make this court properly moved to act and or grant or dismiss the relief(s) sought. It therefore remains that the applicant has brought this application under a wrongly cited provision of the law. In numerous decisions the Court of Appeal of Tanzania has held that wrong citation of the law under which the application is made renders the same incompetent. The highest court on the land has time and again held further that Applicants are required to cite the relevant provision from which the Court derives the power to hear and determine the application, that's the court must be properly moved in the first place. In the Case of M/s Ilabila Industries Ltd and 2 Others V. Tanzania 4 Investment Bank and Another, supra, rightly cited by the respondent, the court categorically stated that:- 11/n neither case could the Court derive Jurisdiction from the erroneously cited provisions of the law. " It's now a settled law in this country that in all applications, if one does not cite the enabling provisions of law which give the power to the Court to do what it's requested, or if one cites the wrong provisions, the court is not properly moved and the application would be struck out. See: China Heman International Cooperation Group V. Salvand K.A. Rwegasira Civil Reference No.22 of 2005, (unreported); Aloyce Msella v. The Consolidated Holding Corporation, Civil Appeal No.11 of 2002, (unreported); Citibank Tanzania Limited V. Tanzania Telecommunications Company Ltd and 4 Others, supra. Other decisions of the Court of Appeal of Tanzania on this matter include, Naibu Katibu Mkuu (CCM) V. Mohamed Ibrahim Vergi and Sons, ZNZ CIVIL APPLICATION NO.3 OF 2003, at Zanzibar, (unreported), Antony F. Temu V. Iddi Materu, Civil Application No.8 of 2001, at Arusha, (unreported), Marcky Mhango V. Tanzania Shoe co. Ltd and Another, Civil Application No.37 of 2003, at Dar es Salaam. (unreported) and Joseph John V. Chandrakant Shamji Shah Civil Application No.7 of 2001, at Arusha, ( unreported). In his submission, the learned Principal State Attorney said that the defect was caused by a typing error, in this regard, the Court of Appeal of Tanzania in the case of Harish Ambaran Jina (By his Attorney Ajar Patel) V. Abdulrazak Jussa Suleman, ZNZ Civil Application No.2 of 2003 at Zanzibar, 5 (unreported), at page 7 of the typed judgment of the Court, held that:- "--------- he ought to have sought to correct the error before the preliminary objection was filed ---------." In the instant matter as well, the good and proper remedy could have been for the Applicant to apply to correct the error noted before the present preliminary objection was filed in court. In view of what I have stated herein above, I am satisfied that the second ground of the preliminary objection has merits. I do uphold it and declare that the current revision application is incompetent in law for having been brought under the wrong and non - existing enabling provision of law. On the first ground, the respondent do submit that this application is against the interlocutory order of the trial Court dated 7th March, 2012. The same ought not to be filed in view of section 43 (2) of the Magistrates' Courts Act, CAP.11 R.E.2002 because it does not finally determine the case. Even section 372 (2) of the Criminal Procedure Act, CAP.20 R.E.2002, as amended by Act No.25 of 2002, prohibits such kind of Applications. In order to cement his argument the learned respondent referred this Court to the decision of the Court of Appeal of Tanzania, in the case of The Attorney General V. Wilfred Onyango Mganyi @ Dadii and 11 Others, Criminal Application No.276 of 2006, at Arusha, (unreported), at page 14 of the ruling of the Court, second paragraph, maintaining the said position of the law. On the other hand, the learned Principal State Attorney, Mr. Manyanda assisted by his learned sister Neema Ringo, Principal State Attorney told this court that this application is to request the honourable court to examine the legality, propriety and 6 correctness of the proceedings including the order dated 7th march, 2012. It's made under the provisions of section 372 (1) of the Criminal Procedure Act, CAP.20 R.E.2002. The learned Principal State Attorney, submitted further that the case law has changed or provided exceptional rule to the general rule ·stated by the learned respondent, ·Mr. Mwale, which empowers higher Courts to see to it that proceedings are going on properly. This is the base for this application. In order to fortify his position, the learned State Attorney cited the case of Stanbic Bank (T) Ltd V. Kagera Sugar Ltd, Civil Application No.57 of 2007, at Dar es Salaam, a decision of the Court of Appeal of Tanzania, (not reported) which made a clear distinction between complaint against proceedings generally and those against orders. The law prohibits any appeal or revision against orders and not against proceedings, as it's clearly stated at page 10 of the ruling of the court. He therefore prayed that this ground be rejected and dismissed. Having heard my learned brothers, I then carefully read section 43 (2) of the Magistrates' Courts Act, 1984, as amended by Act No.25 of 2002, which reads as hereunder:- "(2) Subject to the provisions of subsection (JJ no appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision 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." The chamber summons for this application which was filed on the 12th day of March, 2012, in paragraph (a), prays to this court 7 ,, consider and if necessary revise, among others, the orders of the said court dated 7th day of March, 2012." The said order (s) were issued by a Court of the resident magistrate for Arusha Region, and they are or is an interlocutory decision in all fours. Henceforth, under the above quoted statutory provision, this kind of a revision is outrightly prohibited! Even if we assume that this Application is filed under section 372 (2) of the Criminal Procedure Act, supra, which is outrightly not the case as earlier stated in this ruling, the said provision would not empower this honourable court, the temple of justice, to interfere with the order (s) of the trial Court dated 7th day of March, 2012. Under no circumstances section 372 (2) of the Criminal Procedure Act, supra, was enacted in order to override the provision of section 43 (2) of the Magistrates' Courts Act, supra. It follows to state here that in law, the present application ought not to have been lodged in this court and should not be preferred later on, until and unless Criminal Case No. 330 of 2011 has been heard and determined completely. On this ground, the learned principal State Attorneys have also pegged their submission on section 372 (2) of the Criminal Procedure Act, as amended by Act No.25 of 2002. That section reads as hereunder:- 11(2) Notwithstanding the provisions of subsection (1)/ no application for revision shall lie or be made in respect of any preliminary or interlocutory decision or order of a subordinate court unless such decision or order had the effect of finally determining the Criminal charge." 8 With due respect to the learned principal state attorneys, this statutory provision further prohibits the Applicant from filing this application against the order(s) of the subordinate Court dated 7th March, 2012. Knowing that this is the law, the learned attorneys, told this court that it's empowered to do what it's requested under section 372 (1) of the Criminal Procedure Act, supra, which reads:- 11The High court may call for and examine the records 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. " This statutory provision empowers this Court to exercise such duties on its own motion without being moved by any party or person and that's' why subsection (2) categorically provides that;- 11Notwithstanding the provisions of subsection (1) no application for revision shall lie or be made in respect of any preliminary or interlocutory decision -------. " • Therefore, it should be understood that subsection (1) of section 372 of the Criminal Procedure Act, do not override the provision of its subsection (2). This application ought not to have been filed and should not be filed later unless the said main suit has been finally determined and the same be part and parcel of the appeal if any. In their reasoned submission, the learned principal state attorneys told this honourable court that in the case of Stanbic Bank (T) Ltd V. Kagera Sugar Ltd, supra, the Court of Appeal of Tanzania provided an exceptional rule to the above named 9 general rule against applications in respect of interlocutory decisions and orders. I carefully read the ruling of the court and find that if the "complaint of the applicant is impropriety, inconsistency and irrationality in the proceedings generally" and not asking for a revision on interlocutory orders, then revisional proceedings are permitted. In that case, the application was based on the proceedings generally and not on interlocutory orders. There were apparent confusion, inconsistency, illegality and irrationality of the proceedings, hence the need for revision. But, in all senses, this is not the case in this matter. The said case is strongly distinguished from this matter. As stated herein above, the complaint is basically and generally on the orders of the subordinate court dated 7th day of March, 2012. This is vividly shown in prayer (a) of the Chamber summons in issue. The affidavit in support of this application generally refers to the motor vehicles allegedly seized by the Tanzania Revenue Authority (TRA), the subject matter of the order of the subordinate court. Even the annexture "Al" to the said affidavit, refers to the said motor vehicles, the core of the order of the trial court. The records of the trial court in no way do they reveal apparent confusion, inconsistency, illegality and irrationality on the proceedings. Consequently, there's no need of the revision applying the said exceptional rule to the general rule prohibiting applications for revision on inter·locutory decisions and or orders. Based on all what I have stated herein before, I hold that even the 1st ground of the preliminary objection raised by the learned respondent is meritorious and do uphold it. In the result and given what I have endeavoured to say in this ruling, I am extremely satisfied that this application is totally incompetent in law and ought not to have been filed at all. I now ' I order that the same be and is hereby struck out of our records forthwith. I further order that the records of Criminal Case No.330 of 2011, be returned to the Residedt Magistrates' Court of Arusha for continuation of the hearing processes. JUDGE 8/5/2012 Delivered in open court this ,:11 th day of May, 2012, in the presence of ·. Veritas Mlay, principal State Attorney for the applicant and .the respondent being present in person. K.M.M. SAMBO I JUDGE I 11/5/:2012 11 r I 11 I f I i1 I /RS