19950208 TZHC Dar es Salaam

. , .. l_ t-§:_Q_ r \ ~ __.!->-\ ·~ ' ~ IN THB HIGH COURT OF TANZANIA AT DAR ES SALAAM COURT MARTIAL CRIMINAL A:OPEAL N0.2 OF 1990 P.2669 MAJ. SY SULEIMAN y·. SULEIMAN • ·• • • • . . . • . • • • APPELLANT Versus JUDGE ADVOCATE GENEEAL •• ·, RESPONDENT J" U D G 11 E N T \ MAPIGANO, J •. KYANDO, J. MACK.Al'JJ A, J, Two preliminary points were taken on behalf·o! the appellant, and we dismissed the same and reserved the reasons.· The first poj,Tlt is about the legality o! the arder which convened the trial court, and the second is aboijt the eompetence of the Judge-Advocate who officiated at the trial proceedings, ·one Colonel Mkindi, and the part played "'bY him, It was submitted that the Chief of Staff who made the 1onvenin~ order did not have authority under the law to do so. l, indtcated, we were unable to sustain this suomission. Under the prijvis.on~ of the ~tatijte which was cited by oounsel for the appellant, t~e power to convene a General Court~artial is QOnferred upon the President. the Chief of De!ence F~roes and "any ot.ner officer specifica~ly. assigned by the :Oefenoe Forces Ctmmittee", An instrument was produced and displa.y7ed OY counsel ' . , for the respondent which explicitly showed that the Defence , 9 Fg.c~e Cgmm1ttee had actual.r exergised its cti~oretion by appointing the Ch:i.e! of Stal: as the corwe~er o! all General Court·¥art:Lal-. It was pointeo QUt• ~n !1ne• in relation wi~h the second Point, that tbe Q♦.!~ge Qi CijloneJ, Mkind~ was the one which 0 initiated the t{1a•• ~nd it was ar~ued that in w1noiple and j u.stice C~lone• M1ti11d1 sllo~ld not have "ijeken ,mrt "in the determinat1Qn at ~he Qase" • vre cQnsider that there 1s no factual ba~~6 !or thi~ cQnte.nti~n• we totally agree that it is n~t the dij~Y ~i o Judge.Advocate to partioipate in the ·1 determination o! a oase before suoh court, In our view the rQle of a Jjdg~aw~cat~ 1~, broadly 1 one wbich is c~n!ined tQ superinien~ing the tria 1 • advistng the oaurt on points of •aw and prijced~re. and assisting the part;i.es to elicit a .- . ; ' . ' . ) ::1.l: - 2 - ff ~· full statement of facts material to their resroctive cases. [~' It is not his business to participa~e ~n tho· decision of the .,.·' f~< ., case. and, we repeat, there is nothing on the record to show ~ or suggest that Colonel Mkindi did so. , I ' These were the reasons which led us to overrule the : f!:.' ,; preliminary points. f' We now turn to consider the main part oi the appeal~ It is - the contention of the appellant that the General Court.Martial which tr.ied him failed to comply with statutory procedures at the time of his arraignment. In particular, he argued t}:lat contrary to laid down procedure, the President of the General Court-Martial did not take the oath as required.by Regulation 112 of the Defenc~ Forces Regulations~ These Regulations~ made under sedtion 66 of the National Defence Act, Noj24 of t967~. · are read as one with the Code of Service Discipline made under sections 53 a~d 85 of the said Act~ Section C,112(1) ~f the Coae of Service Discipline makes it a mandatory condition• precedent that: "C,112(-1) At every court-martial an oath $hall be administer·ea to each of the to.J.owing person·~ t • - (a) the President and other members Qi the court.martial, (b) the Jijdge•Advocate, (e) coijllt reporters, (d) interpreters, and (e) wj,tnesses, in the manner and 1n the forms pres~ribed in Detence Forces Regulations"£ Regulation 112.05 makes provision for a mandatory procedure which m~st be tollowed before the oaths are administered in the prescr1'bed form 1 When the court h~s been opened and all ha:ve taken their pla,es. the convening order, inei~ding the names of the Qt:fice·rs appotnted to try the aooused• mu~t be read 1n the· hear1ng of the aooueed, The acoijsea. or eagh cf them seperate: mi.et be given an opportunity t(? obj a.lt to any ~.! thgse oificers by being asked whether he does so ~bject• The obJeQtfon~ wil~ have to be determined in advance of any other etep in the· proceedings, Then every member of the oourtt.roartial and every person in at'iendan(te on a oourlttrlartial as Judgee)ldv.ocate, the President and each officer who is named in .seoti~n c 6 1~2(1) of - . I ~~- Code of Setvice Di~0~,1~ne, must take an 0~th if they are ''(!-:i~~~_stians o:r be aff:!_ri:1ed :i.f they are Mosler:ie, The oa-th shall bP in the prescribed form as provide~ for in Regulations 112.05. C:J.:r ~z::m:i..nat:~on of page 2 of the record of proceedings before the General Court-Martial shews ,·that after the court tcd a □ semhled aQd objections from the app~llant having been cverrulerl, the President swore all members of the court and the Judge Advocate. The J~dge~~dvocute swore the court reporter. The record of the proceedings does not show that the President was himself sworn by the Judge--Advocate, or by any ~ther member of the General Court-Martial. Ms. Kiwan3a, learned state, ii ttorney, concedes that the General Court-Martial inclu~ed the President. It is her view that although page 2 of the record of proceedings doas not show that he was sworn, he was in fac~ sworn and that the ommission is probably a clerical error. -That is on attractive point, We are however, after a careful scrutiny of the record, not persuaded that that was a clerical omission. We are satisfted that the exclusion of the President of the Court from those who took the oath portrays the true position of what happsneo, We would thus call in aid the maxim that ;?£frej!,.i2., ij.,.nJ,1:& :persggae vel rei, 4 e.,,st ,e:clusio, aJ}eri,O.Ut· We consider that the oath tQ be taken by the President of a General COijrtwMartial is a necessary reriq~s1te to the jurisdiction o! that court. It w1l• there!Qre aot without jurisdiction. as it 1~ the case betore i~• where it fails to eomply with torma~~t~es which are o~nditlona preoedent to the oemmencement o! atria•• ~n these circumstances we hold that th~ General court~artiai agted wttha~t Juriijdict1on. Consequently the prcceed~ng~ before it have oeep rendered a nullity1 Anism · Another, ~968 he c~urt ~f Appeal gt Tanzania ,PM · ana v, Jumui• a ~a W~!anyakgzi },~n;i2}\f.,Jiw 15 ,o i,! 1988, - 4 - In the result we d~clare the proceedings a nullity. There will be no retrial, inasuch as the appellant has fully served the sentence passed by the Ciurt-Martial. D.P. MA?IGANO JUDGE L.A. KYANDO JUDGE J.M.- MACKANJ A JUDGE 8/2/95 Coram: Mapigano, J. Appellant in person Mr. Naali for the Respondent. C•urt~ Judgment delivered. \ D.J;. MAPIGANO JUDGE 8.2.1995 , I f'ertify that this is a true co PY .jf the original. ---1~-\~~7•·" ~(\ ·- A ,R- iMaMtnti• · -·sENIOR ·DEPUTY REGISTRAR ·" .,.