LEONARD SATU MASHABARA
- Citation
- LEONARD SATU MASHABARA
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TANZLII
- Decision
- 27 August 2024
- Posture
- Miscellaneous Criminal Application for Revision / Ruling on Preliminary Objections
- Language
- English
More details
- Court
- TANZLII
- Decision
- 27 August 2024
- Posture
- Miscellaneous Criminal Application for Revision / Ruling on Preliminary Objections
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The application was struck out for being incompetent as it improperly included as respondents parties who were not parties in the original criminal case, contrary to the requirements for revision jurisdiction. Only parties to the original proceedings should be respondents in a revision application; inclusion of strangers renders the application incurably defective.
Court disposition
Application struck out as incompetent
Orders
- The application is struck out for involving new parties as respondents who are not parties in the original criminal case.
02
Material facts
Parties
Leonard Satu Mashabara
Applicant Counsel: Emmanuel AnthonyTanganyika Law Society
1st Respondent Counsel: Godwin Benda, Ezekiel Amon MwakapejeHon. Director of Public Prosecution
2nd Respondent Counsel: Kumbukeni KondoHon. Attorney General
3rd Respondent Counsel: Kumbukeni KondoAdvocate Godfrey Sabato John Wasonga
4th Respondent Counsel: Robert OwinoAdvocate Sadiki Omary
5th Respondent Counsel: Robert OwinoAdvocate Boniventura Njeru
6th Respondent Counsel: Robert OwinoAdvocate Meshack Yona Ngamando
7th Respondent Counsel: Robert OwinoMT 140105 Clinton Damas @ Nyundo
8th RespondentPraygod Mushi
9th RespondentAmin Lord Lema
10th RespondentNickson Jackson
11th Respondent03
Procedural history
Posture
Miscellaneous Criminal Application for Revision / Ruling on Preliminary Objections
04
Questions and positions
Legal issues
- 01
Whether the application for revision was competent for including parties who were not parties in the original criminal case
- 02
Whether the applicant had locus standi to bring the application
- 03
Whether attachment of an order, finding, or sentence is mandatory for revision under section 372(1) of the CPA
Party arguments
- Applicant
- The applicant argued that the High Court has jurisdiction to entertain the application under section 372(1) and 373(1)(b) of the CPA, section 2(3) of the Judicature and Application of Laws Act, and section 44(1)(a) of the Magistrates Courts' Act. He contended that any person, including a stranger, can bring a revision application and that all potentially affected parties should be joined. He further argued that the law does not require attachment of an order or decision for revision and that his interest is to promote, protect, and preserve justice.
- Respondent
- The respondents argued that the applicant lacked locus standi, that the application was incompetent for including parties who were not parties in the original criminal case, and that the application was defective for not attaching an order, finding, or sentence as required by section 372(1) of the CPA. They contended that only parties to the original proceedings should be respondents and that strangers cannot be joined as respondents in a revision application.
05
Court’s reasoning
Legal principles
- 01
Jackline Hamson Ghikas vs Mllatie Richie Assey (Civil Application 656 of 2021) [2022] TZCA 438
Preliminary objection must be a pure point of law not requiring evidence.
- 02
Section 372(1) of the Criminal Procedure Act, Cap. 20 R.E. 2022
High Court's revisional jurisdiction is to correct manifest irregularities or illegalities in subordinate court proceedings.
- 03
K. Pandurangan V. S.S.T Velusamy (2003) 8 SCC 625 (India, persuasive)
A stranger may bring a revision application, but only parties to the original proceedings should be respondents.
- 04
Section 372(2) of the Criminal Procedure Act, Cap. 20 R.E. 2022
Attachment of an order, finding, or sentence is not mandatory for revision if the application concerns irregularity of proceedings.
06
Ratio, limits and disposition
Ratio decidendi
The application was struck out for being incompetent as it improperly included as respondents parties who were not parties in the original criminal case, contrary to the requirements for revision jurisdiction. Only parties to the original proceedings should be respondents in a revision application; inclusion of strangers renders the application incurably defective.
Obiter and limits
- A stranger may bring a revision application to the High Court, but cannot be joined as a respondent.
- Attachment of an order, finding, or sentence is not always required for revision if the application is based on irregularity of proceedings.
Court disposition
Application struck out as incompetent
- The application is struck out for involving new parties as respondents who are not parties in the original criminal case.
Source and reliance status
TANZLII · 27 August 2024
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TANZLII
Judgment· 27 August 2024
IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY
AT DODOMA MISC. CRIMINAL APPLICATION NO. 23837 OF 2024 (Originating from Criminal Case No. 23476 o f2024 of the Resident Magistrates Court of Dodoma) LEONARD SATU MASHABARA.............................................. APPLICANT
VERSUS TANGANYIKA LAW SOCIETY.............................................1st RESPONDENT HON. DIRECTOR OF PUBLIC PROSECUTION.....................2nd RESPONDENT HON. ATTORNEY GENERAL.............................................. 3rd RESPONDENT ADVOCATE GODFREY SABATO JOHN WASONGA.............. 4™ RESPONDENT ADVOCATE SADIKI OMARY.......................................... 5™ RESPONDENT ADVOCATE BONIVENTURA NJERU................................6™ RESPONDENT ADVOCATE MESHACK YONA NGAMANDO......................7™ RESPONDENT MT 140105 CLINTON DAMAS @ NYUNDO..................... 8™ RESPONDENT PRAYGOD MUSHI.............................................................9th RESPONDENT AMIN LORD LEMA.......................................................... 10th RESPONDENT NICKSON JACKSON........................................................ 11™ RESPONDENT
RULING 29. 08. 2024 HASSAN, J.: The 8th'9th, 10th and 11th respondents have been indicted before the Resident Magistrates Court of Dodoma at Dodoma for sexual offences i which comprises of two counts namely; one, Gang Rape contrary to section 130 (1) and (2)(e) and section 131A (1) and (2) of the Penal Code, [Cap. 16 R.E. 2022]; and two, Unnatural Offence contrary to section 154 (1) (a) and (2) of the Penal Code, [Cap. 16 R.E. 2022]. Whereas, the 4th, 5th, 6th and 7th respondents are learned counsels representing the aforesaid respondents in the trial Resident Magistrate Court of Dodoma in the Criminal Case No. 23476 of 2024, which is still pending upon determination of this application. The 2nd and 3rd respondents appear under the umbrella of the Republic, while the 1st respondent is a legal person and outsider who has been only added in this application. On the other hand, the applicant, one Leonard Satu Mashabara is a countryman and a prominent advocate of the High Court of Tanzania , and an outsider or stranger (as the words can be interchangeable used) in the Criminal Case No. 23476 of 2024, but who has been pained by procedural lapse at the trial subordinate court. To register his dissatisfaction, under certificate of urgency, the applicant has moved the court through chamber application for Revision Under section 372 (1) and section 373 (1) (b) of the Criminal Procedure Act, Cap. 20 R. E. 2022; and section 2 (3) of the Judicature and Application of Laws Act, Cap. 358, R. E. 2019; together with section 44 (1) (a) of the Magistrates Courts' Act, Cap. 11 R.E.
2019. All the way to this court, the applicant is seeking for prayers thus: 1. That, this honourable court be pleased to call and examine the records o f the Resident Magistrates Court o f Dodoma in Criminal Case Number 23476 o f 2024 and satisfy itself on the propriety of appearances and defending o f the 4h, 5th, &h and 7th respondents (Advocates) to the 8th, SF, l( fh and 11th (Accused persons) respondents as the first group (4h, 5th 6P1and 7th) are members o f the 1st respondent 2. That this honourable court be pleased to revised proceedings which the 4h, 5th, & 1 and 7th respondents have appeared as defending lawyers o f the 8th, t?1 , l& h and 11th respondents.
3. That, this honourable court be pleased to grant any relief (s) it deems fit andjust to grant This application is supported by affidavit sworn by the applicant himself. While on their part, the respondents have contested the application by filling the counter affidavits severally sworn by the respondents. Categorically, the 4th, 5th, 6th and 7th respondents filed their joint counter affidavit along with a Notice of Preliminary Objections pitched with six grounds of objection to be determined by the court, to wit: 1. That, the applicant has no locus standi to pursue this matter.
2. That the applicant's application is bad in law for suing wrong parties who were not parties in criminal case No. 23476 in the Resident Magistrate Court o f Dodoma at Dodoma.
3. That the affidavit is defective in the jurat o f attestation and verification.
4. That, this court is not vested with power to grant relief (s) prayed by the applicant contrary to section 372 (1) and 373 (l)(b) o f the Criminal Procedure Act, Cap. 20 R.E. 2022 and section 2 (3) o f the Judicature and Application o f Laws Act, Cap. 358 R.E.2019; section 44 (l)(a) o f the Magistrate Courts' Act, Cap. 11 R.E.2019.
5. That, the applicant has failed to attach an order, sentence or decision as per the requirement o f section 372 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2022.
6. That, the prayers in the chamber application are vague and untenable. When the preliminary objection came for hearing on 27th day of August, 2024, the applicant was represented by Mr. Emmanuel Anthony, Learned Counsel. Whereas, the 1st respondent was represented by Mr. Godwin Benda and Mr. Ezekiel Amon Mwakapeje both learned counsels. The 2nd and 3rd respondents were represented by Ms. Kumbukeni Kondo, learned State Attorney, while on the other hand, the 4th, 5th, 6th and 7th respondents were represented by Mr. Robert Owino, learned counsel. The 8th, 9th, 10th and 11th respondents appeared in person unrepresented by counsel. During hearing of the preliminary objection, at the earliest before he canvassed to his submission, learned counsel for the 4th, 5th, 6th and 7theagerly opted to drop the 3rd and 6thground of preliminary objections. Thus, moving forward, he ensemble to launch his submission in descending order starting with the 5th, 4th, 2nd and end up to the 1st ground. Notably, in my analytical style, to save time, I will handle each ground of objection to the fullest without first copying the whole submissions as preamble. Thus, each ground of objection will be staged with its submissions in the course of analysis. To begin with, learned counsel Owino kickstarted by submitting on the 5thground of preliminary objection thus; the applicant failed to attach an order,
sentence or decision as per the requirement of section 372 (1) of the Criminal Procedure Act. He argued that section 372 (1) of the CPA gives this court the mandate to call for and revise the legality and propriety of any findings, sentence or order recorded or passed by the subordinate court. He went on to stress that this section (s. 372 (1) of the CPA) should be read together with its subsection (2) which provides that no application for revision shall lie, or be made in respect of any preliminary or interlocutory decision or order of the subordinate court unless such decision or order has the effect of finally determining the criminal charge. By linking the said provision to the instant application, learned counsel Mr. Owino contested that the applicant filed his application under aforementioned provision to call and inspect the records of the Resident Magistrate Court of Dodoma in Criminal Case No. 23476 of 2024 for satisfying itself on propriety of the appearance and defending of the 4th, 5th, 6th and 7th respondents (as defence counsels) to the 8th, 9th, 10th and 11th respondents, who are the accused persons before the Subordinate Trial Court. However, to that effect, he argued that the applicant has not attached in his application any order or decision which has the effect of finally determining the criminal charge against the 8th, 9th, 10th and 11th respondents. In the
circumstance, Mr. Owino posed a question as to why an order is required? In response, he then underlined that, subsection (2) of section 372 of the CPA requires that the disputed order or decision ought to be attached with the application. He emphasised that this is the direction of the Court of Appeal in the case of Samueli Kobelo Muhulo v. National Housing Corporation, Civil Application No. 443/17 of 2018, where at page 4 the same issue was addressed and the applicable test to reach the decision was "nature of the order test". Based on the decision above, he pressed that there is neither an order, findings or sentence which has been attached in the instant application or, even proceedings which has been attached to allow the court to go through and inspect what is protested by the applicant. To that effect, learned counsel Mr. Owino pinned that this application becomes incompetent for not knowing as to which order, sentence or proceedings the applicant is disputing and therefore, owing to this anomaly, he prayed the court to struck out the application since nothing is sought for court's determination. On the other hand, to squeeze further on this point of objection, all the remaining respondents chose not to repeat what was presented by learned counsel Owino and instead, they gladly supported his submissions and prayer thereof. Whereas on the other side, learned counsel, Mr.
Emmanuel Anthony who appeared for the applicant vehemently protested the assertion set forth by the respondents. Therefore, moving ahead to reply the same, he opted to respond to the 1st and 4th grounds of objections together and jointly. To his firm view, these two grounds emerged from a similar principle. Thus, to navigate through, Mr. Emmanuel defended his opinion that the two grounds fall under the same principle in the sense that, the court has the power to entertain the matter but also, the individual has the mandate to bring the matter before the court. To show that the court has power to entertain this application, he submitted that the instant application was correctly brought under section 372 (1) and 373 (1) (b) of the CPA. Also, it has been brought under section 2 (3) of the judicature and Application of the Laws' Act, Cap. 358 together with section 44 (1) (a) of the Magistrate Courts' Act, Cap. 11. 8 He however noted that, in the preliminary objection, the contention raised by the respondents has only disputed the provision of section 372 (1) and not about other laws which have been referred. Moving forward, he submitted that all those sections of law apart from section 2 (3) of the JALA, have been broadly discussed in the case Brighton s/o Joseph @ Brai @ Maro and Another vs Republic (Criminal Appeal 178 of 2019) [2020] T7HC 1158 (20 May 2020) specifically from
page 7 to 8. Therefore, based on the findings from the decision above, learned counsel Emmanuel contended that this court has mandate to entertain the application at hand. As to why section 2 (3) of the JALA was cited, he succumbed that looking on the application, it falls under the application of the doctrine of equity and thus, he stressed, that to his opinion this court has jurisdiction to entertain the matter. Another scenario which he brought up is the mandate of an individual person (s) to bring the matter to the court. He pointed out section 372 (1), 373 (1) (a) of the CPA and section 44 (1) (a) of the MCA, of which he submitted that if someone reads them between the lines, it does not provide as to who should file the application. For example, section 372 (1) of CPA provides that: "The high court may call for and examine the records o f any criminal proceedings before any subordinate court for the purpose o f satisfying itself as to the correctness, legality or propriety o f any finding, sentence or order recorded or passed, and as to the regularity o f any proceedings o f any subordinate court." Thus, on his view, he argued that the applicant could have even wrote a normal letter to inform the high court on the pertinent issue, and the high court would have acted upon. He therefore concretised his assertion that, the same application can be applied under section 44
(1) (a) of MCA. Rejoining to this point of objection, learned counsel for the 4th, 5th, 6th and 7th respondents firstly, reiterated his earlier submissions and further, recalled the Brighton s/o Joseph's case as it was cited by the applicant's counsel. And in that case, he contended that there was a reason pegged, as to why the applicant was charged with gang robbery and so convicted but later after proceedings were revisited it was observed clearly that ingredients of an offence of theft and stealing were complete by the act of the appellant thus, he insisted on his point that there must be an order so that revision can be preferred. 10 Having heard and carefully considered the submissions with respect to this 5th point of preliminary objection, I am certain that the issue for determination of the court is whether or not this application for revision was competently filed in terms of section 372 (1) of the Criminal Procedure Act for not attaching the order or finding or sentence disputed against by the applicant. In the first hand, and for ease of reference, I find it pertinent to reproduce in verbatism a relevant part of enabling provisions of which this application was made up with. It reveals: "Made under section 372 (1) and 373 (l)(b) o f the criminal procedure Act, Cap. 20 R.E. 2022 and section 2 (3) o f the Judicature and Application o f Laws Act, Cap. 358 R.E. 2019,
section 44 (1) (a) o f the Magistrates Courts' Act, Cap. 11R.E. 2019 and any other enabling provisions o f laws." Initially, in my endeavour to go through the contested preliminary objections, I will be guided by prerequisite underscored in the case Jackline Hamson Ghikas vs Mllatie Richie Assey (Civil Application 656 of 2021) [2022] TZCA 438 (18 July 2022). That is to say in nutshell: li "The preliminary objection must satisfy three conditions viz; one, the point o f law raised must either be pleaded or must arise as a dear implication from the proceedings; two, that it must be a pure point o f law which does not require dose examination or scrutiny o f an affidavit or a counter affidavit; and three, determination o f such a point o f law in issue must not depends on the court's discretion." Basically, in my reflection to the objections raised, now, I will start to analyse the 5th ground of preliminary objection which evolves compliance of section 372 (1) of the CPA. The section provides: "The High Court may call for and examine the record o f any criminal proceedings before any subordinate court for the purpose o fsatisfying itselfas to the correctness, legality or propriety o f any finding, sentence or order recorded or passed, and as to the regularity o f any proceedings o f any subordinate court. (2) Notwithstanding the provisions o f subsection (1), no application for
revision shall He or be made in respect o f any preliminary or interlocutory decision or 12 order o f a subordinate court unless such decision or order has the effect o f finally determining the criminal charge." Basically, I am alive that in this 5th ground of preliminary objection, the respondents have not challenged the prospect of having individual person to institute application for criminal revision before the High Court in terms of section 372 (1) of the CPA. However, the respondents' contentious view is that, such application should be attached with a copy of order, finding or sentence the applicant had it in dispute pursuant to subsection (2) of the same section. Therefore, since nothing has been attached in the instant application thus, the application is bad in law and it has to be struck out. Whereas, to the contrary, the applicant's counsel argued otherwise that it is not the requirement of the law that if a person wishes to file an application for revision, he should attach a copy of decision or order contested against. In my judgment after thorough consideration of the arguments and the laws, literally, section 372 (2) of the CPC does not require the applicant to attach a copy of disputed order, finding or sentence to the application for revision, instead, it restricts filing of an application for revision in respect of any preliminary or interlocutory decision
or order of 13 a subordinate court unless such decision or order has the effect of finally determining the criminal charge. In my view, this means that the avenue to file an application for revision under section 372 (1) of the CPA seeking remedy as to the regularity of an v proceedings of any subordinate court, or otherwise as the case may be, will not require the attachment of an order or finding because irregularity of proceedings might not necessarily include an order or findings of the court. For instance, court manifesting procedural lapses such as the use of excessive force or rivals' treatment against the accused person, improper recording of witness evidence and so forth. Therefore, in such circumstances provision of section 372 (2) of the CPA will not apply. That said, this point of objection is discounted for lack of merit. With regard to the 4th ground of preliminary objection, there was nothing tangible from the respondents. Learned counsel Owino was so brief that he relied on the outcome of his submission in the 5th ground of preliminary objection. Therefore, since the result was in negative, the 4th ground of objection naturally became pointless and thus discounted. Sailing forward to the 2nd ground of preliminary objection, the contentious view from the respondents was that, in the application, the applicant has included parties who were not a party in the
Criminal Case No. 23476 of 2024 of which, it is the subject of this application. Mr. Owino 14 went on to submit that, the 1st respondent was not a party in the criminal charge number 23476 which is pending before the Resident Magistrates Court. He also pressed that, since this criminal revision number 23837 is drived from aforesaid criminal case, then the proper parties should have been the Republic and the 8th, 9th, 10thand 11th respondents, and the rest respondents are strangers. Thus, he contended that this application was incorrectly filed and it should be struck out. To support this ground of objection, learned counsel, Mr. Ezekiel Amon added to the 2nd ground of preliminary objection that, even if the 1st respondent could have been a party to the aforesaid Criminal Case, she would have no locus standi to prosecute or defend any criminal charge. More so, to complement the submissions fronted by her fellow counsels, Ms. Kondo, learned State Attorney added more that, since revision is relief which is also owned by a person who is not party to the proceedings, therefore revision allow strangers to the application. But nevertheless, such stranger has to be an applicant who feels his interest is or has been infringed in the charge which he was not a party. Explaining further, she stated that the only stranger in the application for criminal revision is supposed to be the
applicant. And if 15 that was the case, the respondents should have been all respondents who were in the criminal charge, and the only stranger should have been the applicant. To that effect, she stressed that stranger cannot be the respondents. In conclusion thereof, Ms. Kondo averred that since strangers have been made as respondents in this application thus, the application does not match with Criminal Case number 23476 of 2024. And therefore, since the application does not match with Criminal Case number 23476 of 2024, this court lacks mandate to provide the relief sought by the applicant. Whereas, on the other side, learned counsel Mr. Emmanuel protested the assertion and he vehemently contended that, the question why the 1st, 3rd, 4th, 5th, 6th and 7th respondents were added in the application can be answered thus: that, a criminal case is a matter of public interest, that is, every citizen through republic forms part of proceedings. And again, he maintained that any person who may be affected by the order of the court must be given opportunity to defend his case. He pressed further by saying that, looking on the nature of this application, in spite of the fact that the 2nd respondent could have represented the 4th, 5th, 6th and 7th respondents, yet, what the applicant is disputing would have required individual appearance to the court as 16 parties to the application.
For that reason, he insisted that these respondents ought to be included as respondents so that they cannot be affected by the order of the court which might be given in their absence. In this regard, going through the contested issue, I have once again perused the records of the trial court and indeed, I found that the 1st, 3rd, 4th, 5th, 6th and 7th respondents are strangers as they were not party in the original criminal case pending before the trial subordinate court. Though, on the records, it appears that the 4th, 5th, 6th and 7th respondents were the defence counsels for the accused persons in the trial proceedings, of whom, they hereby appeared as the 8th, 9th, 10th, and 11th respondents respectively. And for the 3rd respondent, it is obvious that she appeared by value of her portfolio of legal representative of the 2nd respondent. Whereas, for the 1st respondent, she is a total stranger as she was not a party in the pending criminal case. Owing to the circumstance above, the issue to be determined by the court in this point of objection is whether or not, upon inclusion of strangers to the application for criminal revision as respondents the application becomes incurable defective. This blend up of parties led me to recall provision of section 372 (1) of the CPA which empowers the High Court with revisional 17 jurisdiction for in-depth observation of its policy
consideration. The provision entails thus: " The High Court may call for and examine the record o f any criminal proceedings before any subordinate court for the purpose o f satisfying itselfas to the correctness, legality or propriety o f any finding, sentence or order recorded or passed, and as to the regularity o f any proceedings of any subordinate court." In my considered view, having critically eyed the construction of this provision, I am certain that, the object behind revisional jurisdiction of the High Court is to enable the Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings, to correct manifest irregularities or illegalities, and to give appropriate direction on the manner in which the trial, if still on going, should be proceeded. That is similar to say that the High Court revisional jurisdiction includes ensuring that where the proceedings in the lower court have been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. 18 And it has to be noted here that, as I have discussed earlier on, that not only the revisional jurisdiction of the High Court is exercisable where the court has made a finding or sentence or order, but if goes on to determine the regularity of any
proceedings of any such subordinate court. Now, in my firm opinion, looking on the spirit of revisional jurisdiction as portrayed in our law, what the High Court is empowered to revise is an anomaly or otherwise irregularity of proceedings observed in the same and, or similar case which is pending or just completed in the subordinate court. Thus, with exception of the applicant who from the wording of section 373 (1) (b) can be any one who can raise attention of the court to act, which means it may include a stranger in my view, the rest should be the same parties who appears in the original proceedings in the subordinate court. Therefore, to involve new parties as respondents will signify institution of a new matter distinct from the one which ought to be revised from subordinate court. At this juncture, in the absence of homemade authority to rely upon my disposal thus, reference should be made in the persuasive decision of India Supreme Court in K. Pandurangan V. S.S.T Velusamy (2003) & SCC625 where it was held that: 19 "The power o f revision can be exercised by the revisionai court Suo motu, hence even a stranger or third party can question the legality of the order passed by the lower court and file criminal revision against the order. " That being the case, since the instant application falls to that trap, the application becomes bad in law and for that sake, this ground
of preliminary objection is sustained. Turning to the 1st ground of preliminary objection and the final one, thus the applicant has no locus standi to pursue this matter. In his submission which was supported by the rest of the respondents, learned counsel Owino averred that the applicant has identified himself as the Advocate of the High Court and an active member of the Tanganyika Law society (TLS). And thus, per section 6 and 7 read together with section 37 of the Advocates Act, the applicant has a duty to confirm his membership. And further he submitted that as for section 39 (1) (a), (b), and (c) provides for the qualification of an active advocate which includes among others, a practicing number and a business licence thus; the applicant was duty bound to prove for those requirements through his affidavit in order to satisfy the court of his membership. 20 Likewise, in addition to that, learned counsel Owino further contended that, the applicant was supposed to show his interest and rights which has been prejudiced in such criminal case. To the contrary, in his affidavit, there is nowhere the applicant has demonstrated on how he will be affected by proceedings which takes place in the trial court. In this point he referred the case of Lujuna Shubi Balozi Senior v. Registered Trustee of Chama cha Mapinduzi (1996) TLR. 203 at page 204 roman (i) and (iii) to cement his
argument. He therefore concluded that based on those reasons, the applicant has no locus standito bring his application before this court and thus, he prayed the court to struck out the application. His argument was further supplemented by learned counsel Amon who added that even if the 1st respondent could have been a party to the aforesaid criminal case, she would have no locus standi to prosecute or defend any criminal case. In this context, on his side, learned counsel Emmanuel opposed the assertion and to address his view, firstly he pointed out section 372 (1), 373 (1) (a) of the CPA and section 44 (1) (a) of the MCA, of which he submitted that, if someone reads them between the lines, it does not provide as to who should file the application. Thus, in his view, the 21 applicant could have written a normal letter to inform the High Court on the heated issue, and the High Court by its discretion would have acted upon the notice. He therefore cemented that, the same application can be applied under section 44 (1) (a) of MCA. Furthermore, speaking of an applicant's interest, Mr. Emmanuel contended as to how interest of the applicant ascends, he cited the case of Amani Mashaka v. Mazowea Amani Mashaka (Civil Application 124 of 2015) (2016) TCA 754 (18March 2016) whereas at page 5 of the ruling it was stated that: "Furthermore, in Dominick Nkia and Another v. Cecilia Mvungi
and Othert\ Civii Application No. 3 "A" OF 2006, this court adopted what was decided in the case o f Agostino Liatonga v. republic, Criminal Appeal No. 61 o f1999 and Halima Hassan Maliale v. Parastatal Sector Reform Commission and Another, civii application no. 84 o f1999 (unreported) the court states. It is apparent that provision o f section 4 (3) ofAJA seeks to ensure that this court has power to rectify any errors, illegalities or improprieties in decisions or proceedings o f the high court which come or are brought to its attention thus, this court may be moved in revision by the third party who say has interest in the matter." Therefore, Mr. Emmanuel contended that it is clear in this application that, the applicant is a third party, and based on the above decision, third party can pursue his right through revision. That said, he added that the basic question which can be raised in such circumstance is where the third party can accrue his interest? He then submitted that since the principle requires that the attention of the court has to be drawn thus, paragraph 6th of the applicant's affidavit in support of application is clear on that respect that the interest of the applicant is to promote, protect and to preserve justice in the United Republic of Tanzania. Adding to that, he stressed further that paragraph 6 of the applicant's affidavit was not disputed by all
respondents in their respective counter affidavits. Therefore, in his view, what has been demonstrated is enough to hold that the applicant has interest thus, to promote, protect and preserve justice in the United Republic of Tanzania. In my view, going through this contested ground, it is clear by the nature of the arguments presented by the parties that, what the parties are trying to evolve is an issue of evidence. For instance, the issue whether the applicant is or not active member of TLS requires evidence 23 and similarly, the issue whether or not the applicant has interest in the ongoing criminal case in subordinate court is also a matter which requires proof of evidence. That being the case, I am alive that for ages, it has been a trite law that preliminary objection must be a pure point of law which does not require close examination or scrutiny of the affidavit and a counter affidavit. That is the stand propounded and strictly maintained in a number of decisions of this court and the apex court. To mention a few, see for instance in Jackline Hamson Ghikas vs Mllatie Richie Assey (supra) which has quoted with approval the decision of Mukisa Biscuit Manufacturing Company v. West End Distributors Limited [1969] E.A 696 which addresses what constitutes a preliminary objection. Thus, in Mukisa's case it was held that: "A preliminary objection is in the nature o f what
used to be a demurrer. It raises a pure point o f law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise o fjudicial discretion." 24 Couched from the above, it is apparent in my mind that, what has been submitted in the 1st ground of preliminary objection requires evidence to be ascertained and thus, it cannot be said that it meets a test of what in law constitutes a preliminary objection. Therefore, given the above-quoted authority, I disqualify the 1st ground of preliminary objection as a fit ground of preliminary objection to be determined by this court. In the end, all said and done, I find this application bad in law for involving new parties as respondents (strangers) including 1st, 3rd, 4th, 5th, 6th and 7th who are not parties in the original Criminal Case No. 23476 of 2024 which is pending before trial subordinate court. For that reason alone, I struck out the application for being incompetent before this court. It is so ordered. DATED at DODOMA this 29th day of August, 2024. 29/08/2024 25
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