20150918 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CRIMINAL APPLICATION NO. 73 OF 2014 MOSES MLAWA ............................................................. APPLICANT VERSUS REPUBLIC ..................................................................... RESPONDENT RULING MKASIMONGWA, J MOSES MLAWA, (Applicant) has filed a chamber summons seeking from the court for the following orders:- 1. That this Honorable Court be pleased to grant leave for the applicant to issue an order of certiorari, quash conviction, set aside the sentence and leave the applicant at liberty in Criminal Case No. 104 of 2007 of Kilosa District Court at Kilosa. 2. And any other orders the court may deem fit to grant" The Chamber Summons is filed under Section 17 of the Law Reform (Fatal Accident and Miscellaneous Raison) Act [Cp. 310 R.E 2002], Section 3(3) of the Government Provisions) Act [Cp. 5 R.E 2002] and Article 13 (6) (a) of the Constitution of the United Republic of Tanzania [Cap. 2 R. E 2005] and any other enabling provisions of the law, and it is supported by the Applicant's own affidavit. In the Affidavit the Applicant avers to the effect that sometime on 3/5/2007 he was convicted of rape and sentence to thirty (30) years imprisonment by the District Court of Kilosa at Kilosa. As he was not satisfied by the decision of the trial Court he expressed his intention to appeal to the prison authorities who within four days of the conviction forwarded the same to the court in writing. To date he has not been supplied with the copy of judgment and proceedings despite the fact he had in several occasions 1 ' . written letters requesting for them from the Principal District Magistrate at Kilosa. He has not been supplies with the copies despite his complaint to the Commission of Human Right and Good Government and frequent meetings held with the District Register of the High Court of Dar-es Salaam Zone to discuss the matter. He has made this application from a belief that he can no longer exercise his right of appeal and this is the only remedy available to him under the circumstances to an aggrieved party. If the order sought is not granted, the applicant will suffer irreparable injury from infringement of his right to be heard. When the matter came up for heaving the Applicant had nothing to add to what is averred in the supporting Affidavit. On the part the Respondent who was being represented by Mr. Msasa, learned State Attorney contended that this Application is misconceived. It is not shown if there have been administration steps taken by the Applicant to get the copies of the proceeding and judgment from the court. He submitted that the application is incomplete. He prayed the same be dismissed and the Applicant be advised to follow the administration channel to have the copies availed to him. In rejoinder the Applicant contended that he tried as much as he could do to get the copies but it was in vain. He wrote to the Judiciary Authorities and even to the Commission of Human Rights and Good Governance without success. That is why he has brought this Applicant in court. That all respective submissions made by the parties. As said earlier this is an application for an order granting leave for the applicant to issue an order of certiorari quash conviction, set aside the sentence and set the Applicant (accused in Criminal Case. No. 104 of 2007 of Kilosa District Court) at liberty." It is not very much clear as to what order is specifically sought from the court. This Application is made under Section 76 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap. 310 R.E 2002]. I suppose, this is an application for leave to apply for and order of certiorari. 2 f C Whether the order sought can be granted in this case is the question I will answer in determining this matter. It is clear to me that the applicant is dissatisfied by the decision of the District Court at Kilosa in Criminal Case No. 104 of 2007 dated 3/5/2007, convicting of rape and accordingly sentenced to serve thirty (30) years in imprisonment. He thus, in exercising has right of appeal, he notified the court of his wish to appeal to the High Court. He has however not filed the appeal because he is not availed with a copy of judgment and proceedings. Since the copies have not to date been availed to him, the applicant sought to have this Application instituted in court. Let me hasten to say that basically in law we have Appellate Review and Judicial Review. These are two distinct ways of remedying a person aggrieved by the decision made by certain authorities. Appellate Review involves Appeal. An Appeal is a process for error correction as well as clarifying and interpreting the law. Judicial review is a doctrine under which legislative and executive actions are subject to review by the judiciary. A court with a Judicial Review power may invalidate laws and decisions that are not conformity to the higher authority such as the terms written constitution. Judicial Review is one of the checks and balances in the separation of powers. The power of the judiciary is to suspense the legislature and executive branches when they exceed their authority. Appellate Review and Judicial Review cannot work together on the same issue for these two are (where apply) alternative ways of remedying a person who is aggrieved by the decision. Where the law provides for the right of appeal against a certain decision, any person aggrieved by the decision shall mandatorily exhaust the appellate ladder of the matter. He cannot seek for a judicial review on the matter. As such since the applicant had commenced appeal processes in this matter he should proceed with the appeal. The fact that he has not, for this long, provided with copies of proceedings and judgment does not entitle .him to institute an application for orders of certiorari. It is expected that, at the instance of applicant the judiciary authority should come with an administration solution of the problem the appellant is facing. 3 I • Secondly, I was looking at this matter in the light of Section 19 (2) of Cap. 310 which reads as follows:- "Subject to the provisions of Subsection (3), rules made under Subsection {1) of this Section may prescribe that applications for an order under Section 17 shall, in specified proceedings, be made within six months or such shorter period as may be prescribed after the act or omission to which the application for leave relates" The applicant challenges the decision that was made on 3/5/2007 and this application was filed on 24/7/2014. It was filed beyond the prescribed time and without leave of the court extending it. Even if this application was proper for it to be made, the same is caught by the time and therefore is incompetent in court. From the above discussion, I find no merit in this application. It is therefore dismissed. The applicant is advised to pursue his appeal. Dated at Dar es Salaam this 18th day of September, 2015 . .-~/;;:~~-=-:-:..:~.:.:..... / ,/r..,.... •;!'.: w;.:i~li~UM ' ~ I E.~ \ \ ~---""- . JUDGE 18/9/2015 Date: 18/09/2015 4 Coram: Mkasimongwa, J Applicant: Present in person For the Respondent: Miss Ashura Mnzava (SA) Court Clerk: Miss Judith. Miss Ashura Mnzava (SA): My Lord I am for the Republic/Respondent. The matter is coming for Ruling. The Applicant is present. We pray receive the ruling. Court: Ruling delivered in Chambers this 18th day of September, 2015 in the presence of Miss Ashura Mnzava (SA) for the Republic/Respondent and of the Applicant in person. Right of Appeal is explained ;;ZOR~----.. <. ., :; ~- ::-<, ~~ \ . ,\ -""'"'' \ ' C, l'\ wk;mrn;wa 'i ~)' ''I \ I JUDGE ·. . ~,'7· 18/09/2015 ">·.-:· ,"'!,t_, . . . . · 5 IN THE HIGH COURT OF TANZANIA (OAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC CRIMINAL APPLICATION NO. 67 OF 2014 (Arising from Criminal (P.1) No. 25 of 2014, RM's Court of Dar es Salaam Region at Kisutu) HAFIDH HAMOOD HI LAL AL-GHAFRI .... ........................... APPLICANT VERSUS REPUBLIC .................................................................... RESPONDENT Date of last submissions: 17/11/2014 Date of Ruling: 08/12/2014 RULING F. Twaib, J: At the Kisutu Resident Magistrate's Court, Dar es Salaam, committal proceedings are currently pending against the applicant. He has been charged with illicit trafficking in drugs, contrary to section 16 (b) of the 1 Drugs and Prevention of Illicit Trafficking in Drugs Act, Cap 95 (R.E. ' 2002) as amended by section 31 of the Written Laws (Miscellaneous Amendments) Act (No. 2) of 2012. It is alleged that on the 24th day of June 2014, at Julius Nyerere International Airport, Dar es Salaam, the applicant was found trafficking from the United Republic of Tanzania 378.62 grams of narcotic drugs known as Heroin Hydrochloride, valued at Tshs. 17, 037,900/=. On grounds that he is suffering from a hypertensive heart disease, which allegedly requires him to be under special care, which care is not available in remand prison, the applicant has filed the present Page 1 of 5 t application for bail pending trial. His advocate, Mr. Kusalika, is of the view that bail is available to his client. The respondent disputes the material facts forming the reasons for the application as given in the applicant's affidavit. It also contends, more forcefully, that bail is not available to the applicant on the ground that the offence he is charged with is not bailable. Counsel Kusalika has argued that the offence could only be unbailable if there was a Certificate from the Commissioner for National Co- ordination of Drug Control (hereinafter "the Commissioner'') certifying that the drugs involved were of a value above Tshs. 10 Million. He invited the court to look at section 27 (1) (b) of the Drugs and Prevention of Illicit Trafficking in Drugs Act, Cap 95 (R.E. 2002) (hereinafter "Cap 95''). He admitted that the law which deals with drugs trafficking prohibits the granting of bail in respect of the offence of trafficking in narcotic drugs.However, it is his contention that in the absence of the Commissioner's Certificatedeclaring the value of the drugs in question at more than Tsh. 10,000,000 makes the offence is bailable. Ms Rachel Magambo, learned State Attorney who appeared for the Republic submitted that under section 148 (5) (a) (ii), where the charge relates to illicit trafficking in drugs, the offence is unbailable, even if there is no certificate from the Commissioner. if I got Mr. Kusalika well, he is of the opinion thpt section 148 (5) (a) (ii) must be read with section 27 (1) (b) of Cap 95, which requires that the value of the drugs in question must be of a value of more than Tshs. 10 Million and a Certificate from the Commissioner to that effect must be exhibited in order to deny bail to the accused person.· As stated at the beginning, the applicant is charged with illicit trafficking in drugs, contrary to section 16 (b) of the Drugs and Prevention of Illicit Trafficking in Drugs Act, Cap 95 (R.E. 2002) a_s amended by section 31 Page 2 of 5 of the Written Laws (Miscellaneous Amendments) Act (No. 2) of 2012. The issue falling for this court's determination is whether a person facing such a charge can be granted bail pending trial where there is no Certificate of the Commissioner certifying the value to be more than Tshs. 10 Million. I happened to have recently decided a case which is on all fours with the present. It was the case of Pendo Stanley Msaki v R, Misc. Crim. Application No. 35 of 2014. The applicant in that case, who was facing a similar charge, applied for bail pending trial. The Republic resisted, citing similar grounds as those cited herein. In agreeing with the Republic's position in that case, I stated the following ( emphasis added): To appreciate the gist and strength of [the Republic's] argument, · it is pertinent to understand the clear distinction between two distinct offences: one, being found in unlawful possession of narcotic drugs, contrary to clause (a) of section 16 (1) of the Drugs and Prevention of Illicit in Drugs Act, Cap 95 (R.E 2002) and two, illicit trafficking in narcotic drugs, contrary to clause (b) of the same section. Relying on the decision by Musa J (as he then was) in DPP v Ramadhani Athumani Mohamed & 3 Ors, DC Crim. Appeal No. 49 of 2011, HCT- Tanga, I held that the offence of illicit trafficking in drugs under section 16 (b) of the Act is not bailable. I further held: Unlawful possession of narcotic drugs is bailable under section 148 (5) (a) (iii), so long as the value of the drugs in question does not exceed Tshs. 10 Million. On the other hand, illicit trafficking in drugs (unless it can be inferred from the circumstances that the drugs were not meant for conveyance or commercial purposes) is imperatively unbailable. This is what section 148 (5) (a) clause (ii) of the CPC provides. Mr. Kusalika, learned counsel for the applicant, has submitted that the offence with which his client is being charged only becomes unbailable Page 3 of 5 I \ _) if there is a certificate from the Commissioner certifying that drugs in question are of a value above Tshs. 10 Million. Without such a certificate, he contended, the offence is bailable. He relied on section 27 (1) (b) of Cap 95. To answer this submission, I would go back to my further finding in Pendo Stanley Msaki v R that section 148 (5) (a) (ii) enjoins the Court not to admit any person to bail where he/she is charged with, among other offences, illicit trafficking in drugs under the Drugs and Prevention of Illicit Trafficking in Drugs Act. This is a stand-alone provision, and does not depend on section 148 (5) (a) (iii). Neither is it subject to section 27 (1) (b) of Cap 95, as Mr. Kusalika has attempted to infer. In Pendo Stanley Msaki, a number of court decisions were referred to me by counsel for the applicant: Jonathan Loliana & Ors v R, Misc. Crim. Appl. No. 57 /2001, Fredy William Kironde & Ors v R, Misc. Crim. Appl. No. 7/2011, Athuman Mohamed Nyamvi & Ors v R, Misc. Civ. Appl. No. 9/2012 and Hsu Chin Tai & Anor v R, Crim. Appeal No. 250/2012. I agreed with counsel for the Republic that all the cases were distinguishable. I do not wish to repeat those reasons here. Instead, I accepted a more recent position taken by this court in Mwanaidi Ramadhani Mfungo & 8 Ors v R, where Kaduri J dismissed a bail application on the ground that trafficking in narcotic drugs is prima facie unbailable. A simiar position was taken in DPP v Ramadhani Athumani Mohamed & 3 Ors, DC Crim. Appeal No. 49 of 2011, HCT- Tanga, per Musa, J (as he then was). In view of the above, I agree with Ms. Magambo that, irrespective of whether there is a certificate from the Commissioner, the offence for which the applicant herein is charged is not bailable. This is the clear intendment of subsections (4) and (5) of section 148 of the Criminal Procedure Act. The most relevant provisions are in subsection (5) (a) (ii) of that section 148, which stipulates: Page 4 of 5 - '\ .....a..~ -r - • fl (5) A police officer in charge of a police station or a Court before whom an accused person is brought or appears, shall not admit that person to bail if- (a) that person is charged with- (i) .... , (ii) illicit trafficking in drugs against the Drugs and Prevention of Illicit Traffic in Drugs Act, but does not include a person charged for an offence of being in possession of drugs which taking into account all circumstances in which the offence was committed, was not meant for conveyance or commercial purpose; In the final analysis, it is my respectful opinion that the offence the applicant is charged with is prima facie not bailable, irrespective of the value of the drugs involved, and thus the issue does not need a Certificate from the Commissioner for National Co-ordination of Drug Control. Page 5 of 5