dpp vs ramadhani athuman mohamed and 3 others 2011 tzhc 2142 13 october 2011

IN THE HIGH COURT OF TANZANIA AT TANGA DC.CRIMINAL APPEAL NO.49 OF 2011 [Originating from RM's Court Tanga P.I NO.2/2011] D.P.P.................................................................... APPELLANT VERSUS 1.RAMADHANI ATHUMAN MOHAMED | 2. ALLY MOHAMED @ ABDALLAH j !> ..............RESPONDENTS 3. ISSA ABDALLAH MAN SOUD 4.RASHID MOHAMED FLASHMAN J Date of last order: 27.09.2011 Date of Delivery: 13.10.2011 JUDGMENT Mussa, J; This appeal originates from a so-cailed Preliminary Inquiry [PI] No.2 of 2011; presently, pending in the Court of Resident Magistrate, Tanga. In those proceedings, the respondents are arraigned for two counts involving narcotic drugs. The first count relates to conspiracy to commit an offence, contrary to section 384 of the penal code, chapter 16 of the laws; as well as, sections 22(a) and 25 of the Drugs and Prevention of Illicit Traffic in Drugs Act, chapter 95 of the laws. The particulars are predicated on a diver's date, between the 23rd and 24th July 2011; either at Dar es Salaam or Tanga; whence, the respondents, allegedly, jointly conspired to traffic narcotic drugs. The second count pertains to trafficking the narcotics drugs, contrary to section 16(l)(b)(i) of the above referred Drugs Act. In support of the statement of offence; the particulars allege that on the 24th July 2011; at the Tanga weigh bridge, the respondents did 1 traffic three (3) kilograms of cocaine hydrochloride valued at a sum of sh's.202,500,000/=. So much of the indictment was read over and explained to the respondents whom were, nevertheless, not required to plead by the court below. Soon after; Mrs. Kabwanga, learned advocate, rose to request for bail on behalf of all the respondents. Her submission below was to the effect that the indicted offences are bailable; that the prosecution had not produced a certificate from relevant authorities to quantify the value of the impugned drugs; that the respondents had reliable sureties and; that they were ready, able and willing to make a deposit of up to half of the value of the property involved in compliance with section I48(5)(e) of the Criminal Procedure Code [CPA]. The quest was strenuously resisted by Ms Kaaya., learned state attorney. Amongst other arguments, she charged that in terms of section 148(5)(a)(ii) of the already referred CPA; the indicted offence was, imperatively, unbailable. Ahead of confronting learned rival submissions; the presiding officer below sought satisfaction, first thing, as to whether or not the court was properly seized of the matter; more so, as either of the indicted offence is triable in the High Court as a court of first instance and; given its status as a mere committing court. Upon due consideration, the learned Resident Magistrate was, nonetheless, fully satisfied that a subordinate court is empowered to grant bail, if asked to, with respect to bailable offences triable in the High Court. To this, the committal court authoratively sought reliance in the unreported Court of Appeal 2 decision comprised in Criminal Revision Nos.l and 2 of 2008 [Republic versus Dodoli Kapufi and another]. The Magistrate, then, made a reflection of the check list of considerations to be taken into account upon a quest for bail; as enunciated in Petel Vs R (1971) H.C.D n.91. v Passing on, then, to the nitty -gritty of the matter;' the presiding officer referred to the relevant provisions as comprised in both the CPA and the Drugs Act. Nonetheless, to appreciate his line of reasoning, I need only extract those comprised in roman two and three of section 148(5)(a) of the CPA:- A police officer in charge o f a police station or a Court before whom an accused person is brought o r appears, sh all not adm it that person to bail i f - a) that person is charged, with - i- ..............; ’//' illic it trafficking in drugs against the Drugs and prevention o f Illic it Traffic in Drugs Act, but does not include a person charged fo r an offence o f being in possession o f drugs which taking into account a ll circum stances in which the offence was committed, was not m eant for conveyance or com m ercial purpose; Hi. an offence -involving heroin, cocaine, prepared opium, opium poppy (papaver setigorum ), poppy straw, coca plant, coca leaves, cannabis sativa or cannabis pesin (Indian hemp), m ethaquaione (mandrax),~catha edulis (khat) or any other narcotic drug or psychotropic substance specified in the schedule to this A ct which has an established value certified by the com m issioner for National Co-ordination o f Drugs Control commission, as exceeding ten m iiiion shillings; Reflecting on the relevant provisions referred from the Drugs Act; it is O V 6 0 noteworthy that its section 27(1 )(a) is, substantially, a replica of the above extracted section 148(5)(a)(ii) of the CPA. The same is the case with its 27(l)(b) when compared with the extracted section 148(5)(a)(iii) of the latter enactment. To say the least, whereas, 27(l)(a) and 148(5)(a)(ii) of, respectively, the Drugs Act and CPA address the same subject; the same goes with 27(l)(b) and 148(5)(a)(iii) of the respective statutes. That being so, for ease of reference, I shall, hence forth, collectively refer the first set of the twin provisions to simply as roman two; whereas, the latter set will be called roman three. That in mind, I should also hint at this stage, that in his construction of the foregoing provisions, the learned committal Magistrate leaped a stride further. To him, the entire referred legislative setting; that is, roman two on the one hand, and roman three on the other, relate to one and the same subject. No wonder, he perplexedly, enquired One may even wonder why the legislature enacted two legislative provisions [s.l48 (5 )(a)(ii) o f CPA and s.2 7 (l)(a ) o f Cap. 95 on the one hand;-and sections 148(5)(a)(iii) o f the CPA and 27(1)(b) o f Cap.95 on the other hand] providing for the sam e thing [offences involving drugs] in what seems different approaches? 4 Against this stance; the committal Magistrate, next, ventured into what he conceived as a discovery and construction of the intention of the legislature. To me, his manner of the engagement was, rather, strange; in that the ° n c provisions of roman two were, seemingly, submerged 3nd done away with. On the premises, the presiding officer was only remained with the provisions of roman three to weigh against the application. It' is beyond question that for an accused to be denied bail under the terms of the provision; the drug involved must be certified by the anti-drug Commissioner to be of the value exceeding ten million shillings. Thus, on account of the fact that the value certificate was no show, the committal court adjudged that there was, in fact, no obstacle to the application for bail. Incidentally, the committal court was not, actually, beating about the wilderness; much as, of recent, this court came by that conclusion in a decision comprised in an un reported Misc. Economic Crimes Application No.7 of 2011; Fredy William Chonde and Others Vs Republic. Commonplace, it is, that in the referred case, the applicants were, just as well, arraigned for trafficking narcotic drugs. Upon their application, it was held (Msuya, J;) that the commissioner's certificate as to the value of drugs is an imperative requirement to activate a prohibition for bail and; that the mere mention of the drugs value, on the charge sheet, does not suffice. In fact, the court went further to hold that the charge was incomplete or, perhaps, it was meant incompetent, by the mere lack of that certificate. And so, the committal 5 Magistrate, in the matter at hand, felt he was bound by Chonde and; accordingly, bail was granted. It is common ground that the order granting bail was handed down August 1st 2011; whereupon, in the course of initial examination, there was some dissatisfaction with the sureties presented before the court and the ultimate order was:- Mention on 15/8/2011. AFRIC. In the meantime, the DPP picked the cue to file a notice of intention to appeal on August 2nd 2011; followed by Criminal Appeal No.45 of 2011 of which was mounted on the 9th August, 2011. Again, it is common ground that following a decision of my own; the referred appeal was struck out on a technicality but; the DPP was extended option to prefer a fresh one. In the aftermath, the DPP preferred the present appeal comprised of four points of grievance:- 1. That, the com m ittal Resident Magistrate erred both in facts and law in granting b a il to the Respondents who are facing unbailable offences. 2. That, the com m ittal Resident M agistrate erred both in facts and law in holding that absence o f certificate (sic) o f value from the Commissioner fo r N ational Co-ordination o f Drugs control Com m ission renders the offence o f trafficking in narcotic drugs to be bailable. 3. That, the com m ittal Resident Magistrate erred both in law and facts in . granting b a il to the respondents after holding that the (com m itting court) has no jurisdiction over the m atter as the case is fo r prelim inary enquiry. 6 4. That\ the com m ittal Resident Magistrate erred both in !aw and facts in holdings the absence o f the certificate from the com m issioner for National Co-ordination o f Drugs control Commission m akes the charge sheet incomplete. At the hearing before me, the appellant had the services of Mr. Mganga, learned senior state attorney; whom was assisted by Mr. Pande and Mr. Iboru, learned state attorneys. On the opposite side, there was Mrs Kabwanga, learned advocate, for the first two respondents; whereas, the third and fourth respondents were resisting the appeal through Mr. Mrarnba, aiso learned advocate. To express from the very outset, the points of contention were approached with lucid arguments from both sides; to which I am, profoundly, grateful. I shall refer the rival learned contentions in due course as I relate and determine the issues involved. Nonetheless, ahead of confronting the issues of contention, I am anxious about a remark or two pertaining the title assigned to the proceeding giving rise to this appeal. I should suppose, the proceeding is titled "Preliminary Inquiry" on account of the fact that the same involves offences which are triable by the High Cpurt as a court of first instance; which is why the indictment below is, seemingly, a holding one to which the respondents were not asked to plead. That might be so but; I am perturbed by the use of the expression "Preliminary Inquiry" which is, rather, attributable to the old Criminal Procedure Code; unto whence, there 7 used to be some form of an inquiry ahead of a committal with respect to offences triable in the High Court. With the advent of the present CPA, that particular function was done away; just as was, indeed, the expression under reference. Thus, where, as here, persons accused are submitted to a subordinate court, transit-wise to the High Court; the appropriate term for such a course of action is: "Committal proceedings". That is, so' to speak, the expression as sanctioned by the provisions of section 244 of the CPA. With so much by the way of a prelude I should now confront the issues involved. I have, in this regard, conveniently, picked for a start, the question of jurisdiction; more so as, if found that it was non-existent, the committal court could not have been properly seized of the matter. It should be recalled that the committal court addressed the issue to which the answer arrived at was in the affirmative; authoratively, following Kapufi, citated above. Mr. Mganga criticized the finding of the learned committal Magistrate; just as he sought to explain away Kapufi. As it were, learned senior state attorney was wielding as an arsenal another decision of the Court of Appeal comprised in the unreported Criminal Appeal No.81 of 200 - DPP versus Boniface Muhuma and others. That being so, it might be instructive to extract the relevant portions of the two judgments; both of which were generously supplied by the learned senior attorney. Beginning with Muhuma:- .......We are satisfied that subordinate courts are not com petent to determine b a il applications in cases triable by the High Court except where a Resident m agistrate is in the exercise o f Extended Jurisdiction .... Coming to Kapufi, the relevant extract appears to me to be this:- Having anxiously considered the matter, and paying best attention to the purpose o f com m ittal proceedings, it would equally appear to us that on a fa ir reading o f section 245(1)(4) and 248(4) read together with section 148(1) and 148(5)(a) that during the relevant period at issue, i.e. pre­ co m m itta la subordinate court is empowered to adm it an accused to bail for a bailable offence triable by the High Court. Learned senior state attorney specifically referred to a remark comprised in Kapufi in which their lordships related to this:- ... We wish to point out that we are wide awake to the pow erful rival argum ents raised by both Mr. Mushokorwa and Mr. Luoga on Boniface Muhuma's case for which were are grateful. However, it is to be observed a t once that our decision in this m atter has been based on particular circum stances o f the High Court ruling In Misc. Crim inal Applications No. 15 and 16 o f 2007 and the interpretation o f the applicable law as analysed. 9 Capitalising on the foregoing extract, Mr. Mganga wittily suggested that Kapufi was, actually, decided on its own peculiar facts and circumstances. On the premises, learned senior state attorney elegantly invited me to find binding authority in Muhuma, the other Court of Appeal decision, that is. The submission is, no doubt, overwhelmingly refreshing but; to express at once, I will, respectfully, decline the tempting invitation. Reading Muhuma and Kapufi, it is unfortunate that I cannot help the feeling that the two decisions are, actually, founded upon irreconcilable ratio decidendi. I hope to be pardoned for taking the position that there is really no way for one to explain away either of the decisions, as tried Mr. Mganga. To me, both decisions relate to the same question and; yet, diametrically at logger-heads. The only viable option is for me to exercise the liberty of choice and; so long as their lordships in Kapufi were "wide awake" of Muhuma; I take the position that the binding authority of the latter is doubtful. All said, I will pay full homage to what was decided in Kapufi. That is to say, the committal court was fully seized of the matter and; accordingly, ground No.3 of the DPP's petition crumbles. In his submissions, learned senior state attorney, conveniently, consolidated grounds Nos.2 and 3 of the petition. Upon a mature evaluation, I was minded and, so find, ground N o.l to, generally, involve the same question. The common issue of contention in'all grounds under reference is that the committal court erred in predicating the offence charged as bailable. In this regard, Mr. Mganga and Mr. Paride took turns to strenuously contend that the offence of trafficking in 10 drugs is, by statute, imperatively unbailable. The law officers, extensively, related to roman two; in accordance of which, the granting of bail is, imperatively, prohibited. On the opposite side, both Mrs Kabwanga and Mr. Mramba sought reliance on the other set of the twin provisions as comprised in roman three; to ground a submission that in the absence of a certificate as to value, the charged offence is bailable. In addition, both heavily placed reliance in the above referred decision of this court as found in Cnonde; To this, Mr. Mramba specifically cautioned on a long standing reluctance by this court to depart from its own reasoned decisions; particularly, as the matter at hand happens to be on all fours with Chonde. I accorded the submissions of either side some most anxious consiteration. It seems to me, controversy evolves around the referred two sets of twin provisions of the CPA and the Drugs Act. Thus, a resolve is, more or less, dependent upon a true and proper construction of the provisions under reference. As to what is the correct manner of interpretation, I think the best approach is to look at each provision on the basis of its own scheme and language. As was propositioned by VISCOUNT SIMONDS in Attorney General V. Prince Ernest Augustus of Hanover [1957] A.C. 436 at p.461:- . . . words derive their colour and content from their context; secondly~ the object o f legislation is a param ount consideration. ll That in mind, I need not enter the arena of having to explore. a whole legislative history of the provisions regulating bail in drugs offences. It will suffice if I disclose that, of the contentious provisions, it was roman two which was first to be promulgated into being. That was through Act No. 12 of 1998: A written laws (Amendments) Act, that inserted it into section 148 of the CPA, A good deal later, through another written laws (Amendments) Act No.9 of 2002;' roman three was enacted into, respectively, the CPA and the Drugs Act. In this regard, I should, perhaps, bring into picture what was said by the Hon. Attorney General in the course of presentation of the Written laws Bill giving rise to the amended Act:- Mheshimiwa Spika, fungu la 148 la sheria h ii ya Mwenendo wa makosa ya jin a i nalo Hnapendekezwa kufanyiwa mabadiliko. Itakumbukwa kwamba mwaka 1998, kifungu cha 148, kifungu kidogo cha tano, Ibara ya (a), kilifanyiw a m arekebisho Hi kuainisha makosa ambayo hayatakuwa na dhamana . Kosa la usafirishaji haram u wa madawa ya kulevya nalo liliingizw a katika orodha hiyo. Kwa vile yapo makosa mengine ya madawa ya kulivya yasiyokuwa na dhamana chini ya sheria ya kudhibiti Madawa ya Kulevya na U safirishaji Haramu wa madawa ya Kulevya, inapendekezwa kwamba makosa hayo nayo -yaainishwe pia katika k ifungu hiki. I am grateful to Mr. Mganga who graciously availed the foregoing excerpt from the hansard in the course of his submissions. As it turns out, the passage is 12 in Kiswahili but; in a nutshell, the pronounced object of enacting roman three was to add to an already existing list of unbailable drug offences. As already intimated, a provision ultimately derives it meaning from the content and context of the language used but; although not an end in themselves, the object clause on a Bill as well as parliamentary proceedings contribute a great deal towards a discovery and construction of the intention of the legislature. With so much on the rule of interpretation and a brief legislative background; it is pertinent to note that roman three was promulgated a good deal later than roman two and; upon the stated object, it was not meant to displace or merge unto itself the pre-existing roman two. To that extent, the former does not derogate from the latter; rather, it came into being in addition to. What is more, it is quite apparent that what did not cross the learned min'd of the committal Magistrate; was realism to the effect that the contentious provisions relate to separate and distinctive subjects. More particularly, whereas, under roman two the granting or non-granting of bail is tied to the happening of a certain event or course of action; bail consideration under roman three is, rather, dependent on the genre or type of the drug involved as well as its corresponding value. To, first, reflect on the former, the provisions of roman two are double-jointed, in the sense that, when it comes to bail, they are both prohibitive and permissive. Thus, it is unbailable if the arraignment relates ho a course of action pertaining to trafficking in drugs, yet; by the same token, it is bailable if the happening was simple possession not meant for conveyance or 13 commercial purposes. As regards roman three, an indictment is unbailable if it involves one or several of the listed drugs found to have an established value, certified by the anti-drugs Commissioner; exceeding ten million shillings. Nonetheless, owing from the fact that bail is predicated upon distinctive subject considerations in the two sets of contentions legislative enactments; it may happen that a given subject of an arraignment is caught up by the provisions of both. For instance, a trafficked narcotic drug having reference to roman two, may just as well answer to the description of the scheduled drugs under roman three. To be sure, if such be the situation, a corresponding arraignment would be unbailable by the mere fact that it involves trafficking; even if its value does not, on the terms of, roman three, exceed ten million; let alone the commissioners' certification. Conversely, a possessed narcotic drug to which an indictment is, prim a facie, bailable under roman two, may turn out to be unabailable under the terms of roman three if its corresponding value is certified to exceed ten million. The foregoing necessarily implies this: Even though addressing distinctive subjects, the two sets of legislative enactments are complementary to each other and; for that matter, whatever be the situation, the best approach is to sychronise the provisions so as to give effect to either of them. To this end, for one and; on a true and proper construction;^ the prohibition with respect to trafficking as comprised in the opening sentence of roman two is both peremptory and imperative. On its terms, the question of 14 quantification and certificate as to the value of the drugs involved does not feature at all. From where I am standing, once the indictment involves trafficking, the bail prohibition is triggered without more. For another, the permissive bail instruction there is to the provision with regard to possession is subject to the perils of roman three under which arraignments of whatever nature are unbailable if the drugs involved happens to be amongst those listed and, additionally, manifestly quantified by the commissioner. As it turns out, roman three was designed to be all-embrasive to address each and every remainder situation aside from a trafficking. Nonetheless, on account of what I conceive as it's loose wording,-I doubt whether the provision is fully capable of effecting into practice the clearly expressed intention of the legislature. The provisions of roman three may not turn towards the decision at hand but; I hope to find time to elaborate on my immediately foregoing comment, even though the engagement may turn out to be obiter dicta. Back to the impugned decision, as hinted upon, it was erroneous for the learned committal Magistrate to conceive that the entire provisions under reference addressed one and the same subject. In fact, the moment he took the stance, the presiding officer set his feet on a sure road towards a misapprehension. The high water-mark was reached when he had the provisions of roman two completely submerged to give way to his consideration of the more favoured roman, three. In the engagement, the Magistrate felt he was 15 unfolding the best out of the object behind the legislative-enactments but; to say the least, his was, rather, an-annihilation of the intention of the legislature. Had he properly directed himself on the provisions, he should have found that the offence of trafficking in drugs with which the respondents are arraigned; is unbailable irrespective of a certification as to value by the commissioner. In arriving at this stance, I will have the misfortune of having to depart from Chonde, a decision of this same court. In taking the unusual stride, I am, to borrow the expression; "wide awake" of Mr. Mramba's caution about the established practice of this court. In fact there is ample authority for the proposition that it is not just a matter of courtesy but; the duty to act judicially, requires a Judge to not, lightly, dissent from the considered opinions of his brethren (Ally Linus and others Vs The THA and another - [1998] T.LR.5). But, it seems to me Chonde was decided purely on the basis of lack of the commissioners' valuation certificate and; for that matter, without taking trouble to, contemporaneously, glean over the requirements of roman two. That being the happening, I would venture the unfortunate view to the effect that it may well be that the decision was arrived at p er incuriam ; on account of a non-direction to a material provision of the law. Furthermore, it seems to me that the contentious provisions relate to consideration of bail, pure and simple. To me, the competence or completeness of a charge is, rather, the business of sections 132 and 135 of the CPA. Accordingly, I will allow this appeal, the results of which the order granting bail is quashed and set aside. My understanding is 16 that the respondents are still in custody; much as the impugned order was not executed to derive them assistance. Such being the situation, so be it. In the meantime, this matter is remitted back to the committal court for a resumption into the proceedings. As the matter was still at its embryo stage, I deem it in the best interests of justice if it is re-assigned another Magistrate of competent jurisdiction. When all is said and done, it' is now opportune to comment, by way of postscript, on the provisions of rom an three. As I said, the provision is the backbone of a bail regulatory scheme for drug offences other than those involving trafficking. Yet, despite the clearly expressed legislative object; rom an three admits to several elements of slovenly drafting; some of which are likely to devastatingly undermine that legislative intention. To begin with, the way it is pasted in the CPA, rom an three makes reference to "...any other narcotic drug or psychotropic substance specified in the schedule to this Act... " It is common ground that the schedule is, rather, an attachment of the Drugs Act and; to say the least, the reference "to this Act' as comprised in the CPA, is awkward. Speaking of the .schedule, it is noteworthy that the Drugs Act is, actually, comprised of several and not a singular schedule as is, obviously, the casual reference. What is more, the respective definitions, in the Drugs Act, of narcotic drug and psychotropic substance are all embracing to include the bulk of, if not all, the drugs, substances or plants itemized on the provision. The irony is: Why is it that the provision should involve an unnecessary and mouthful itemization of 17 substances which are, after all, either narcotic drugs or psychotropic substances. In a worst scenario, the canon ejusdem generic might be harshly triggered to ' confine the narcotic drugs or psychotropic substances to the type of only those itemized. Lastly, is the requirement o the commissioners' certificate of value. The combined effect of several provisions of the CPA is to command a police office to send arrested person before a court without unnecessary delay and; in any event, within twenty four hours subsequent to police custody. Given the vastness of our country, it would require an omnipresent commissioner to be able to timely quantify each and every arraignment exceeding ten million. Be what may have been the good intentions of the legislature, I doubt the practical utility of that requirement. Coram: Mussa, J; Appellants: Miss Makondo, state attorney 1st and 2nd respondents: Mrs Kabwanga 3rd and 4th respondents; Mr. Mramba.