p 2669 maj sy suleiman y suleiman vs advocate general 1992 tzhc 64 8 february 1992

IN THE HIGH COTJRSf .OP TANZANIA AT PAR ES SALAAM COURT MARTIAL CRIMINAL APPEAL NO.2 OF 1990 P.2669 MAJ. SY SULEIMAN . Y. SULEIMAN .......... . APPELLANT Versus JUDGE ADVOCATE GENERAL.., RESPONDENT J U D G M E N T MAPIGANO, J. KYANDO, -J. MACKANJA, J « Two preliminary points were taken on behalf of the appellant, and we dismissed the same and reserved the reasons. The first point is about the legality of the order which convened the trial court, and the seoond is abotjt the aompetence of the Judge-Advocate who officiated at the trial proceedings* one Colonel Mkindi* and the part piayed by him* It was submitted that the Chief of Staff who made the tonvening order did not have authority under the law to do so» I? indicated, we were unable to sustain this submission* Unde the prQvisiong *f Jthe statute which was oited by counsel for t appellant, the power to convene a General Court-Martial is QOnferred upon the President, the Chief of Defence Porces and "any other officer specifically assigned by the Defence forces Ctmmittee"* An instrument was produced and displayed by CQuns for the respondent which explicitly showed that the Defenee Faroes Committee had actually exgrgised its discretion by appointing the Chief of.Sta|f as the convener of all General Courtg^Martia1# It was poiatetf QUtf Ja fijie* i*1 relation with the second point, that the Colonel Mkind^ was the one which initiated the 1»yia^§ a*id it was argued that in pcpinoiple and justice C^loneJ Mlsindi shouid not have tiQfcen part "in the determination of t&e fiaae% We consider that there is no factual baa^s for thig cgntentign^ W§ totally agree that it is n<jt the d^ty a Juclge^Advoeate to partioipate in the determination of a case before suoh court. In our vi«w the r^ie of a Judg^gayipsoate is* broadly# one wi&ch is qon^ined ' tg superintending the tria^, advising the ?ourt on points o£■ and prgoedure, arid assisting the parties to elicit a \■ - 2 - -full statement of facts material to their respective cases. It is not his business to participate in the decision of the case, and, we repeat, there is nothing on the record to show or suggest that Colonel Mkindi d£d so. These were the reasons which led us to overrule the preliminary points » We now turn to consider the main part of the appeal. It is the contention of the appellant that the General Court-Martial - which tried him failed to comply with statutory procedures at the time of his arraignment. In particular, he argued that contrary to laid down procedure, the President of the General Court-Martial divd not take the oath as required by Regulation 112 of the Defence Forces Regulations. These Regulations, made under section 66 of the National Defence Act, N o .24 of 1967# are read as one with the Code of Service Discipline made under sections 53 and 85 of the said Act. Section C*112(1) of the Code of Service Discipline makes it a mandatory condition » precedent that: "C,112(1) At every court-martial an oath shall be administered to each of the following personst- (a) the President and other members of the 0Qurt»martial, (1?) the Judge-Advoeate, (e) coi^rt reporters, (d) interpreters* and (e) witnesses* in the manner and in the forms prescribed ia Defence Forces Regulations"* Regulation 112*05 makes provision for a mandatory procedure which must be followed before the oaths are administered in the prescribed form* When the oourt has been opened and all have taken their plages, the convening order* including the names of the officers appointed to try the aooused* mu^t be read in the hearing of the aooused. The accused* or each ef them seperatel nnj§t be given an opportunity to objeot to any of those officers by being asked whether he does so object* The objections will have to be determined in advance of any other step in the proceedings, Then every member of the oourt^nartial and every ■ a person in attendance on a oour1|gpai*tial as Judge^Advocate,^ the President and each officer who%is named'in seotign C,H2(1) of tho Code of Service DiscipliziS; ■must take an oath if they are Christians or be affirmed if they are Moslene. 'The oath shall be in the prescribed form as provided for in Regulations 112^05* Our er'rruination of page 2 of the record of proceedings before the general Court-Martial shows that after the court had assembled and objections from the appellant having been overruled, the President swore all members of the court and the Judge Advocate. The -Judge-Advocate 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 sther member of the General Court-Martial. Ms. Kiwan^a, learned State Attorney, concedes that the General Court-Martial included the President. It is her view that although page 2 of the record of proceedings does not show that he was sworn, he was in fact sworn and that the onmission is probably a clerical error. That is an. attractive point* We are. however, after a careful scrutiny of the reoord, not persuaded that that was a clerical omission. We are satisfied that the exclusion of the President of the Court from those who took the oath portrays the true position of what happened. We would thus call in aid the maxim that excressio unius oersonae vel rei, est excj.usio alterious. We consider that the oath to be taken by the President of a General Court»Martial is a necessary* reriqjjisite to the jurisdiction of that court. It will therefore aQt without jurisdiction* as it is the case before ^s* where it fails to tompjy with formalities which aye o^flditions precedent to the oammencement qf a t r i a ^ £n these circumstances we hold that the Genera^ Court-Martial agted without jurisdiction* Consequently the proceedings before it have beep. rendered a nullity: Aniamic Ltd. Cmimissi^n and Another» A 9 6 8 7 2 WLR l l w i p I T w a ¥ o i t e c P w i t h ’ a p p r o v a l b Y * the Csurt - 4 - In the result we declare the proceedings a nullity* There will be no retrial, inasuch as the appellant has fully served the senlfenoe passed by the Court-Martial. D.P. MAPIGAUO JUDGE L.A. KlANDO JUDGE J.M. MACKANJA JUDGE 8/2/95 Coram: Mapiganc, J. Appellant in person Mr. Naali for the Respondent. C*urt: Judgment delivered. D.P. MAPIGANG JUDGE 8.2.1995 I certify that this is a true copyr-fi the original. A»R. Manfirte SENIOR DEPUTY REGISTRAR