19971125 TZHC Dar es Salaam

. IN TP..E · HIGH COURT OF T,.JL.:;1\NIA APPELL,\'IB JURISDICTION· CRD'iIN1tli REVISION _NO. 16 OF 1997 (ORIGINAL CRIMIN.hli. CASE N0 .. 617 OF 1997 OF THE DISTRICT COUHT OF ILALA DfoTRICT AT KIVUKONI) r .. BE.FORE: MOMBA M. Esq.-, DISTRICT MAGISTl~.\TE MICH.AZL PAUL ·······~·······················•~-•-········ APPLICJ\NT

VERSUS THE DIRECTOR OF PUBLIC PROSECUTION 000000000000•000000 RESPONDENT ••

RUL I NG ' i, • I.,· (\ I CHIPETA, J.: In Kivukoni, Ilala District Court Criminal Case No. 617 of 1997, the prese_nt applicant stands jointly charged with four others·with the offence of attempted theft. The case is still pending. . I ,t, ~ It .was common ground that at 'the time of the arrest of the ' applicant, Michael Paul 1 Police also seized a motor vehicle ~ . I Reg. No. TZH 11, the property of the applicant. It is still in the • custody of the Police. Subsequently, the applicant m~de an applic~tion before the trial · ' court fer an order to have the motor ' vehicle relcqsed to the applic:.mt. The· prosecution reE;isted the application on the ground ~that the motor • _vehicle was used in the commission of the offence. The trial court · on rejected the applicationltii'e ground that, in the circumstances, it was ·i premature to release the motor vehicle tc the applicant. ,, .. - 2 The applic.,.int then moved this court by was of these revisional proceedings to set aside the interlocutory ruling of the trial court and order the release of the motor vehicle to the applicant as provided by section 357 of the Criminal Procedure 1-~ct, 1985. During the I hearing of this matter, Mr. Nyang:Jrika, learned counsel for the applicant, submitted that the motor vehicle does not feature in the charge and that it is exposed to waste, delay and possible vanda1isr:.·. He added that the

information that the motor vehicle was used in the commission of the offence was not contained in an affidavit but only csm0 f:·om the Bar. Mr. Chidowu, lec:.0_1:;d_ State Attorney, resisted the application. In his submission, the motor vehicle was lawfully seized by Police and is being law.f~ll.y kept by them until it is produced in court as an exhibit. Mr. Chidowu added that 'the Ruling by the trial 'court was an interJo:utory one from which no appeal lies. Before I go into the merits of this application, I wish to make one observation. In genera.l, no appeal lies from interlocutory ruling or orders. Secondly, revisional proceedings are, or should, be used for cases in which it is apparent that there has been some incorrectness, illegaility or inapporopriety of a finding, sentence or order or some irregularity in proceedings before a subordinate court. Those provisions, therefore, should not be used to circumvent the law relating to appeals. I now turn to the merits of the application. It is perfectly permissible for a court of law to act on information recived from the Bar if the court is satisfied that although not given on oath, such information is correct. 3 In the instant case, the lower court was told that the Police were detaining the motor vehicle because it was used in the commission of the offence. In other words, they are detaining it as evidence at the trial. It

h~s not been suggested that that statement is false, and I do not, in the circumstances, think that one can justifiably say that the Police are abusing judicial process. I th:ink that it is in the interests of justice that. evidence relevant to the proMoirtion should, as far as possible, be kept in the custody of the prosecution to safeguard against loss or destruction of such evidence - whether it be real or documentary; t ,: evidenceo On the face of the record and wha:t came from the Ba:r;-, I arn of the view that the proceedings in the lower court contained no irregularity, or incorrectness resulting into injustice, nnJ the resulting ruling or order was lawful and just. The same is accordingly hereby upheld. I can only hop~ that th0.Police will guard against any damage to the vehicle and that the case will be exp~diti:OllPlY., disposed of, In sum, I see no merit in this application which is accordingly .'•'. dismissed. '_./ ! ' \'I. ! /. B. D. CHIPETA

JUDGE Ruling delivered in Chamber this ~5th day of November, 1997. , I , I!/-' , : ,. / I I ; B. D. CHIP.ETA

JUDGE Mr. Nyangarika for Applicant. Mr. Chidowu, State Attorney - holding brief for Mr. Nyangarika for Republic.