20010529 TZHC Mbeya

f, .• TI'J THE HIGH COUR'J.' OF TAl'JZll.NIA AT MBEYA ORIGINAL JU':' ISDICTION (Mbey::1 Registry) MISC. CRil'iINAL !LPPLICAS:·ION NO. 70 OF 1999· (From Mbey:i D/Court Criminal Case No.216/1994) N .B .C. HOLDrnG CORPORA'rION ••••••• , • • • • • • AFi'LICANT VERSUS THE ATI'ORNEY GENERAL ) ) SAXSON ANDREW LUHANJO ) • • • • • • • • • • • • • • • RESPONDENTS AKIM -JAMI.ON T,tJEVE ) RULING MSHOTE 1 J • • The applicant, N.B.C. HOLDrnG COP.PORATION, through their Counsel, Mri MwakilMa'hns brought this applic,::ition to move this court to revise · or nullitf aad order ma<le by the Late 11'ir. Mrmdawcl, PJ1 in Mbeya Cr. C3se No. 2,6 o~ 1998 by qu3shing it~ The order dated 21/1/98 had ordered the Br~nch Mamlg~r of !.J.3.C. tvJb,)yo Branch to h::rnd. over or return the sum of Sht!f,24,~0,000/= to the second and the third respondents, immediately. The present applie~tion he.ls boen rn.si::l.e by W'3Y of Chr-r.iber Summons, under the provisions of Sect_ion:. 41+ (1) (.;i) of the Magistrate's Court Act, 1984 and Set,tions 372 and 373 (1) (b) of foe Criminal Procedure Act. The appl1ftion is supported by an r:1ffidavit of Mr. Mwakil,:l5a, Advocate. The~re:5pondents .:=ire represented by Mr. Mwnngole _and Mr. Boniface, learned Counsels. In his counter affidavit Mr. Mwangole has tnken a preliminary point thP.tt the applic,mt ha.s no locus standi. Mr. Mwangole and Mr. B·oniface lllso argue that the application is misconcei~cd As it h-~ been made under wrong provision~ of the l3w. It is important to preface this ruling with a brief historical bagk- ground that gave rise to this application. The order, the subject matter of these revisiom::l proceedings, arises from Mbeya District Court Criminal Case No. 216/94e In that case the sec'.)nd :md third responr:lents were acquitted of charges· .of forgery, uttering false doeuments and obtaining money by false pretences C/ss. 333, 337, 342 and 302 of the Penal Code~ The Director of Public Prosecutions the 1st respondent was aggrieved by the acquittalo He filed an appeal, Criminal Appeal No. 94/99, but on 12/10/99 the Director of, Publie Pro~acutions withdraw the appeal. 2 - It is noted fram the proceedings of Criminal C,'.lse tfoo216/94 that the trial, Senior Resident Mogistrate, Mro S:i.fori (~s he tl1en was) iid not make any order regarr:ling the sum of Shso24,500,000/= being :v1rt of the money involved in the case. It is nlleged th:1t _the s,:-iid money was in custody of the Branch l':an:iger of N.B~:::. Vibey:1 Br,,1:1ch 0 \rJh3t hoprJened thereafter is ot best shr•.)do:l in mystery but the rec(,rd shows that on 21/1/98 the csse file c3me b·c:fore the Lnte Mr. Mcmdm,a - RM Gnd purporting to 3 ct on a letter ::'ldc1ressed to the court by Hr. Mwnngole, learned CounsGl, ho c)rdere:d the N .B.C. Branch rbn-c:ger of Mbey,3 Branch to immedi3tely h!:md over/return the sum of Shso24,_500,000/= to the second 2nd third respondents. This order resulted in the present -'."lpplication. Mr., Mwr:ngolc, hJs ariued thot 3S the tipplicr::tion origin=1tes from Mbeya Criminal CEiso No. 216 of 1994, the Director of Public Prosecutions would have been the right person to file <Jn .::tppeal or ::cevision. He submitted th.Jt the Director of Public Prosecution filed. Crimino_l Appeal Noo..,,,.99 .·~ of 1999 but bter on 12/10/1999 he withdrew the s;:ime. 'l'he learned-~C~~el cited the C.'.:lse ::if F::muel 1"1sc J.1~~i V. Peter Mkimbu [i99.?/ TLR 1090 1 .Dealing with Section 44 (1) (a) of th~ M::igistr,-::>,teis Courfr Act and·Section Y/2 and 373 (1) (b) of the Civil Procedure Code under chich the pieseqt application h::,s been preferred, Mr. M1r.r-:,ngnl:, sub'11ittecl thr.:it th3 sectio~s •hovd been wrongly c_itecl as they refer to supervisory powers 7f. t.,hc _Hig_h Co;urt and not revisfon. V.p. BonifD9e, le·:1rned State Attorney, who represented the first respondent joine:1 h:,m.cls with Mr. Mws,:1gole, that Sections 44 (♦1) · (c:i) of t the tliagistr:.ite!s. Courts Act ::md Sections 372, and 373 (1) (b) ..~f the Criminal Procedure Act were not applica 1)le in the pr0sent app1.i.tion as the sections referrer! t::i supervisory powers of the-:: High Court only~ The le.::::rned Counsels relied on the c,'lsc of Jchn Mg8ya and 4 Others - Criminnl.. Appe,:11 No. 5/19?7 - Court of ·Appe3l (unrclX)r,;ed). Ho submitted that the cippropri::ite se.ctions would h2x.e been sections 43 (1) of the Mogistrc:1te 1 s Courts Act and Sections 372, of tho Crimin2l ?rocdure Acl. He cited the c:J.se of DPP V. Abc.1..ul Ism::iil :_ Criminal Appeal No. 73/1993 (Court of ,~ppoal) (unreport,3d). Deolin;_; with the .question of locus standi, Mr. Boniface subrnitte 1:t th:it in the l)j_,<_-:;trict Court the parties were the 0.ccuscd nnd the Republic ,_md. therefore the right of o.pp,.al O;t' r•3vision would h:we been av::i.il.'3ble only to the eccused and Republic if aggrieved. Be said that the 2pplicc:int h:::td no locuc3 Gt-omdi. In his turn Mr. I"iw.skil::isn, by ,::irni l.:1rge, srgued th3t the application was properly preferred un-:.ier section 44 (1) (a) of theM:=:igistrates' Courts Act ,,:md section 372 and 373 (.1) . (b) of the Criminal P:r-ocedure Act. •:. He said thPt the applic·mt§ cornplo.int was not Cl.gainst the ocquittal of the accused persons.. He s,::iid that the applic::mt w:is col'tdemned unheard and when on 21/9/98 the trial court m:,de :in order for the applic,mt to pay ,•.• /3 ,_ 3 Shs.2L~,500,000/·: to the 2nd tmd 3:::-d rcspon'.le::.1ts. He said thnt it was not for the DPP ~to cornpl:.:1in: He said thot the applic:1nt h.:,1d no obligation to ask the DPP to appear As the money haJ no connection with the District Court CriminGl CE1sc No. 216 of 199 1+. He s:::id the money was not an :!iXhibit in the case and it w,-::is not pr0duced in c-:rnrt i I will first dispose of the ar&uGr.1.ent whether or not the applicc'ltion is properly before the court.. It is import:~nt to cx::imiTJ.e the sections under which the applicntion hos been preferred~ Section 44 (1) (a) of the Mngistr2te' s Cotirts '\.ct, 1984 sbtes;- r,44 (1) (a) - In adJ.ition to r:my ~.lther powers in that hehalf conferred upon the High Court, the High Court - (.::i) shall' 0xercise gene!'3.l powers of supervision ~ver 311 district courts e.nd resident m.,gistrates ;:md may, at any time, ccJll for and inspect or direct the, inspection of the records cf such court 3nd give such directions 2s it .considers m::iy be necessDry in the interests of justice ~nd all such cou-cts sholl comply with such directions :1 without un-iue dolny o Section 372 (1) (b) of tho CriminDl Procdure Act, 1985 states: ' s. 372 - 'I'h8 High c~urt moy call for cmd examine the record of .:1ny crimin'.':\l r,rriceedings before any ·subordin-ste court for the pur~'.lose of sr-.itisfying its0lf ,s to the correctness~ lcg~lity or propriety of 2,.ny finding sentence 1 order recorded or passed ,rnd os to the regularity of any proceedings or any such subordin:::te court.;, Sectinn 373 (1) (b) of the Crimin:.:11 Procedure Act, 1985 states: S. 373 ( 1) (b) - In the; c'"lse of ony proceedings in the subord.in3tc court the record which has been celled fer or which h::is been reported for orders er which otherwise com(;!S to its lmowledge the High Court m::iy ••• From my retiding of the 3bovc sections it seems to me pl.c1inly clear that in ad;b.tion to its other po1t1ers, the High Court is empowered to supervise clistrict .::nd resirL,mt m'.1gistr,::ites' courts •. That is subordinate courts. It' is also crystal cle.Jr thc:t in inspecting the records of the subordin:~te courts the High Court is empowered to give dir,3ctions to the district and r0sidcnt m·,gistrate I s courts which dire et ions the subordin:_:ite courts .:lre obliged tc comply with. In my considered view whc:it ..is envis~ged undGr these p:;:ovisi0ns are din,ctions in the n':lture of .... / Li.' . ... 4 guidance from tho High Court t0 tho subor•lin,?te courts in order. to, ensure thot errors ,:mcl mist.::.kes thbt arc Jisclosed from such inspections o.re not r.::pe::rtec1c by m:=:gistr.::i--tes, With rospect to Mr. EweJ.dlnsR, Advocate, the above secti:ir1s :10 not :foBl kith rcrisiom,l powers of the High Court. In my considered opinion, Mr. Mwr.::kil.'.·s,:i should hove ;)referred this r:ipplic,':ltion und,,or the provisions of Section 1+3 (1) of 'the M0gistr2-.tes 1 .Courts Act re':'.d toget 11cff wHh Section 372 of tho" Crimin:11 Procedure Act. I hove olrec,dy reproduced Section 372 of tho Crimin'sl ·Procedure ii.ct and therefore I will only deal with Secti~m 1+3 (1) of the MoC.A 0 The section st-'3tes~ ;;Subject to the pr:wisi0ns of any law in the time being in force, the provision of the Criminal Proce~ure Code shsll apply to oppe3ls in proceedings of a crimin.31 n::tuxe from Cl district or courtsof resident m<:1gistrote to the ~is.~o.£., ~f ;eroc•2~~.:e of a criminal nnture tl2£_~ :::md to such oths-r prcceedings in or in reletion to such courts as m2y be pr:ovided. (The emphasis supplied). As demonstrc1ted "'bove it is cry,st.:11 cle Jr th-::t Mr. Mwo.kilnso, Advocate cited wrong provisions of l::;w in the present c.rpplic21tiono However the issue for c?.:ceful :m':l. serimJ.s c,~,nsicl.2rc1ti,:m is wh,:.t is the effect of citing wrone: provisicm of l.':lW 1.n chomber summonso In the c::ise of ABUBAKJ\.R i,1GHiJ'''.ED I1iEiN0,\ Vs~ JlJM•'\. J'ff,l..UI'-1~ L-T98.2,l TL.,.-q at pnge 146 the court held th::it c1 mere omissi'.,n by 2 1x.rcty to indicnt0 the approprinte section of lDw under which the m..:tter is pi~eferred is not fo.tnl 2rn1. is curoble. I will nm,i .-1e 0,l with the issue of locus etandi• One of the principal questiom:; I h::!ve L, decicle in this m'.:'tter is whether tho ap-1:,licont NBC HOLDING CORP0:1A:TIGJ h":ls lncus st:-:ndi or s bnding to being the npplication vrh'i.ch is r!.8W before the courto In this c,·untry ~ locus standi is go..erned b:y the. eommon l ':!w., According to ch.'.Jt lnw in ::--rder to successfully m'3.int-sin thi.s kind of proceedings, q pl:,intiff or applicant must shO\'! no':J only th.3t tho court hos power to determine the issuo but also th~t ho is entitlc1 to bring the mntter before the court: See ~blsbury 1 s L<Jw af Englcmd 1 4th :Cd. para 49 e.t pc1ge 520 As was rightly poin.tecl out by Mr e Mwong,:;le ond Mr. Boniface, learned Counsels. for th::o responcbnts, the prn:·ties in Cr" Case No. 216/98 in the district court wero tho 0ccused and the Republic, The right of 3p1;eal or revision~ therefore was only 3vc1il0.ble to the accused and the Republic if ~ggriove·d~ As car1 cle,:1rly" bG seen ,;\ftcr tho acqu:ittnl the Director of Public Frosec-qtion we.s ,,ggrieved ::m,l fil<~d Criminal A;rpoal Nc,.94/99 but . "./5 5 - on 21/10/99 he withdrew the r.:ippectl. In my vfow, therefore, the applicant hns no locus st::m.~i, and if he wonted to pursue the m3tter he should h9vc acted through the Director of Public Prosecutions ("JPP). It is, therefore 9 clenr from the foregoing observations th3t the present applic,;1tion is miscnnceived ,'.JS the appliccmt h:is ri0 locus standio I accordingly upheld the preliminary objection and strike out the application with costso ,(i ·. ·. F-~ ·s • .::,. ~ JlJOOE 29/5/2001