kagwa luoga and others vs attorney general and another 2021 tzhc 2620 19 march 2021

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY)

AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 14 OF 2020

IN THE MATTER OF CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA, 1977 [CAP 2 RE 2002] AS

AMENDED FROM TIME TO TIME

AND

IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT [CAP 3 RE 2019]

IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT (PRACTICE AND PROCEDURE) RULES, 2014

BETWEEN KAGWA LUOGA & 2 OTHERS................... PETITIONERS

VERSUS ATTORNEY GENERAL.......................... 1st RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION...................................2nd RESPONDENT

RULING Date o f Last Order; 27/11/2020 Date o f Ruling; 19/03/2021 S.M. Kulita, 3. The Petitioners herein are currently detained at Segerea Prison in Dar es Salaam. They were arrested on 30/10/2017 and charged with an economic offence, namely O ccasioning Loss to a S pecified A uthority contrary to Paragraph 9(1) of the 1st Schedule to, and Section 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002]. The Petitioners allege that their right to a fair hearing, presumed innocent until the contrary is proved and personal freedom as enshrined in Article 13(6)(a) and (b) and Article 15 of the Constitution of the United Republic of Tanzania of 1977 as amended are being violated by the Respondents. This is based on the allegation that their trial is less to commence since the file in respect of their Economic Case No. 9 of 2017 which is before the District Court of Kilombero at Ifakara is with the office of the 2nd Respondent. They therefore pray for their indefinite incarceration be declared unconstitutional and order them be released unconditionally. As part of their Reply to the Petition the Respondents herein raised the following Preliminary Objection against the Petition; a. The matter is untenable for being resjudicata. b. The Petition is fatally defective for contravening the provisions of Sections 4(5), 8(2) and 8(4) of the BRADEA (Basic Rights and

Duties Enforcement Act) as amended, as the Petitioners have alternative means of redress or remedy. c. The petition is untenable for being frivolous, vexatious and an abuse of the court processes. d. The affidavit in support of the petition is incurably defective for being sworn by incompetent person. e. The affidavit in support of the petition is incurably defective for contravening Order XIX Rule 3 of the Civil Procedure Code [Cap 33 RE 2019]. f. The petition is incompetent and bad in law for contravening the provision of Sections 1(2), 3, 4, 6(d) and 8(l)(b) of the BRADEA as amended and Article 26(2) of the Constitution of the United Republic of Tanzania of 1977 [Cap 2 RE 2002]. g. The reliefs sought by the Petitioners are untenable. The matter was argued by way of written submissions. While the Petitioners are represented by Mr. Edson Kilatu, Advocate from Divina Attorneys the Respondents are represented' by Mr. George N. Mandepo, Principal State Attorney from the office of the Solicitor General. In his submission in respect of ground (a) that the m atter is untenable fo r being res judicata the Principal State Attorney, Mr. Mandepo, on behalf of the Respondents submitted that this court was called on to determine the issue of bail in a case of KAGWA ANSI LUOGA V. REPUBLIC, Misc. Economic Cause No. 51 of 2017 [2018] TZHCCED 2; (11th January, 2018) and indeed this court had

refused to grant bail. He further submitted that in the said case the 1st Petitioner argued on his right to bail being his constitutional right within the contents of Article 13(6)(a) and (b) of the constitution of the United Republic of Tanzania. He said that in that case the Director of Public Prosecution (DPP) had filed a certificate objecting the grant of bail under Section 148 of the Criminal Procedure Act [Cap 20 RE 2002] arguing that the said provision is similar in contents to section 36(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002], a section used by the DPP to file a certificate objecting the application for grant of bail to the 1st petitioner in the case at hand. Mr. Mandepo further submitted that applicants' counsel in that said matter argued that section 36(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] is unconstitutional, and therefore requested the court to grant bail to the applicant. Upon hearing the parties, the court dismissed the application. He submitted that the act of the 1st petitioner bringing the claim on the basis of the same cause of action, that is bail application, is not procedural and legally making this application purely a resjudicata. The counsel stated that the constitutionality of section 148(5) of the Criminal Procedure Act was already determined in the previous cases including GIDEON WASONGA &

3 OTHERS V. THE ATTORNEY GENERAL & 2 OTHERS, Misc. Civil Application No. 14 of 2016 (HC), (Main Registry) at DSM of which the Court of Appeal did mention while entertaining the appellate case of THE ATTORNEY GENERAL V. DICKSON PAULO SANGA, Civil Appeal No. 175 of 2020, CAT at DSM. The counsel, also stated that the petition does not disclose any specific section of law which violated the petitioners' rights enshrined under the referred articles as required under sections 1(2), 3, 4 and 6 of the BRADEA. He said that however it is, the fact that this court has already declared the provision of law prescribing the unbailable offences is constitutional, this court can no longer determine that same issue. He said that under the principle of res judicata there is no way it can reverse its decision. In his reply in respect of the 1st limb of the preliminary objection that the petition is bad in law for being res judicata the Appellants' Counsel, Mr. Edson Kilatu submitted that it is devoid of merits as it does not comply with prerequisites of resjudicata. He said that the cited case of KAGWA ANSI LUOGA V. REPUBLIC (supra) and the current one is not between the same parties. While the current case is against the Attorney General and the DPP and it involves three parties conversely the former one involved only two parties and it was against the Republic. Further supporting his

argument that the petition is not res judicata Mr. Kilatu submitted that the subject matters in the two cases are not the same, that the former one was a Miscellaneous Criminal Application in which the applicant sought to be granted bail while the instant case is a Constitutional Petition in which the applicants are seeking amongst other things for declaratory orders to the effect that indefinite incarceration of the petitioners is unconstitutional. Lastly, Mr. Kilatu argued that the parties either seeking for the same reliefs but they are not litigating under the same title, hence res judicata cannot stand. Mr. Kilatu, also submitted that res judicata is a civil law concept, the same cannot be resjudicata against the constitutional petition. Furthermore, the counsel stated that the case of GIDEON WASONGA (supra) & 3 OTHERS V. THE ATTORNEY GENERAL & 2 OTHERS (supra) and that of THE ATTORNEY GENERAL V. DICKSON PAULO SANGA (supra) cited by the Respondents are distinguishable from the instant case. He said that the two cited cases did not focus on res judicata but on constitutionality of section 148(5) of the Criminal Procedure Act [Cap 20 RE 2019] which is not an issue in the current case. In his rejoinder in respect of the 1st ground of preliminary objection Mr. Mandepo maintained that the present matter is res judicata. He therefore reiterates his submission in chief. Having

closely gone through the submissions in respect of the 1st ground (ground "a") I have noticed the presence of challenges in respect of the applicability of the doctrine of Res Judicata as well as to whether filing of this case which involves almost the same parties as it was in the previous case of KAGWA LUOGA V. REPUBLIC, Misc. Economic Cause No. 51 of 2017 which was determined by the High Court Corruption and Economic Crimes Division prior to the institution of the matter at hand amounts to Res Judicata. In analyzing the issue of Res Judicata I find it convenient to get a concept of that term. Section 9 of the Civil Procedure Code [Cap 33 RE 2019] provides the conditions under which the doctrine applies. The provision states; "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any o f them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II: For the purposes o f this section,

the competence o f a court shall be determined irrespective o f any provisions as to a right o f appeal from the decision o f such court. 8 Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV: Any matter which might and ought to have been made a ground o f defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V: Any relief claimed in the plaint which is not expressly granted by the decree shall, for the purposes o f this section, be deemed to have been refused. Explanation VI: Where persons litigate bona fide in respect o f a public right or o f a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes o f this section, be deemed to claim under the persons so litigating." (emphasis is mine). The rationale behind the doctrine of Res Judicata is to ensure certainty in the administration of justice. This was held in a case of EAST AFRICAN DEVELOPMENT BANK V. BLUELINE ENTERPRISES LIMITED, Civil Appeal No. 110 of 2009, CAT at DSM (unreported). In his book titled INDIAN CONSTITUTIONAL LAW, 5th Edition Reprint, 2004 at page 1314 -1315 Professor M.P. JAIN also articulates on the rationale of the rule of Res

Judicata &s follows; "... The rule o f res judicata is based on considerations o f public policy as it is in the larger interests o f the society that a finality should attach to binding decisions o f courts o f competent jurisdiction, and that individuals should not be made to face the same kind o f litigation twice.........The principle o f res judicata envisages that if the judgment has been pronounced by a court o f competent jurisdiction, it is binding between the parties unless it is reversed or modified in appeal, revision or other procedure prescribed by law...... The High Court's decision can be attacked in an appeal to the Supreme Court but not through a writ o fpetition" Generally, the case which has already been determined to the finality is estopped to be re-litigated. If nature of the case involves individuals per se, those individuals are estopped to re-institute the same case in that court or any other court with the same jurisdiction. The decision becomes binding unless it is reversed or modified in appeal, revision or other procedure prescribed by law. The rationale behind, as stated in the above authorities is to make sure that litigations reach to an end. 10 As for the matter at hand I hesitate to agree with !the argument raised by the Respondents' Counsel that this petition is Res Judicata for the reason that the same had been fully determined by this court

(High Court Corruption and Economic Crimes Division) in the Misc. Economic Cause No. 51 of 2017 the parties being KAGWA LUOGA V. REPUBLIC. I went through the judgment of that said case which has been annexed in the Respondents' written submission, it looks distinguishable to the concept of the doctrine. In that Misc. Economic Cause No. 51 of 2017 the issue was application for bail which was denied because the DPP had filed a certificate to object it, but the current matter is the constitutional case, meaning thereby subject matters are different. Though among the reliefs sought in this matter is for the applicants to be released on bail, that cannot be adopted as it is not a proper forum I for that purpose. It is therefore sufficient to state that in this scenario there is no res judicata. However, upon going through the Court of Appeal case namely THE ATTORNEY GENERAL V. DICKSON PAULO SANGA, Civil Appeal No. 175 of 2020, CAT at DSM which has been cited by the Respondents' Counsel I came to note that the issue of constitutionality on bail had been determined by the High Court in the constitutional case of GIDEON WASONGA & (3 OTHERS V. 11 THE ATTORNEY GENERAL & 2 OTHERS, Misc. Civil Application No. 14 of 2016 (HC), (Main Registry) at DSM and its decision had never been reversed^. In his submission in the support of the Preliminary Objection the Petitioners' Counsel challenged

that parties to this case do not tally with those involved in the Misc. Economic Cause No. 51 of 2017 (supra). Actually, in the matter at hand parties are KAGWA LUOGA & 3 OTHERS on one side, and THE ATTORNEY GENERAL & DIRECTOR OF PUBLIC PROSECUTION on the other side, while the case in which the said issue of constitutionality in respect of bail was determined is GIDEON WASONGA & 3 OTHERS V. THE ATTORNEY GENERAL & 2 OTHERS (supra). That argument has no legal weight as the basic issue to be determined here is the subject matter and nature of the case. As any other constitutional case, any person is at liberty to file it in court, therefore the doctrine of res judicata in the constitutional cases applies even in a situation where parties to the case are different, provided that the issue in dispute has ever been determined before by that same court with competent jurisdiction. Further, as rightly stated by Mr. Mandepo, Principal State Attorney that the petition does not disclose any specific section of law which violated the petitioners' rights. However, as for the nature of the 12 claim the Petitioners appear to invite the court to determine their rights to bail under the provisions of the Economic and Organized Crime Control Act. As per the said statute the section is 36 particularly sub section (2). It is the one used by the DPP to object bail against them in the KAGWA LUOGA V.

REPUBLIC, Misc. Economic Cause No. 51 of 2017 (supra) on the 11/01/2018 before Hon. Korosso, J. (as she then was). Be it noted that in the Court of Appeal case of THE ATTORNEY GENERAL V. DICKSON PAULO SANGA (supra) the basic issue was the constitutionality of Section 148(5) of the Criminal Procedure Act while the current issue falls under the Economic and Organized Crime Control Act particularly section 36(2) as stated. They are two different statutes, now the issue is whether the Court's declaration that Section 148(5) of the Criminal Procedure Act is not unconstitutional extends to Section 36(2) as alleged by Mr. Mandepo, State Attorney in his submission. Generally, section 148 of the Criminal Procedure Act and section 36 of the Economic and Organized Crime Control Act serve almost the same purposes. The wordings in section 36(2) of the Economic and Organized Crime Control Act, is similar in contents with the provisions of section 148(4) of the Criminal Procedure Act, which states; 13 "5. 148(4) Notwithstanding anything in this section contained, no police officer or court shall, after a person is arrested and while he is awaiting trial or appeal, admit that person to bail if the Director o f Public Prosecutions, certifies in writing that it is likely that the safety or interests o f the Republic would thereby be prejudiced; and a certificate issued by the Director o f Public

Prosecutions under this section shall take effect from the date it is filed in court or notified to the officer in charge o f a police station and shall remain in effect until the proceedings concerned are concluded or the Director o f Public Prosecutions withdraws i t " Similarity in contents in some of the provisions for the said two sections which empower the DPP to object bail, as well as the same having the lists of unbailable offences; subsection (5) for section 148 of the Criminal Procedure Act and subsection (3) for the Economic and Organized Crime Control Act indicate that they almost serve the same purposes. Among the objectives of detention of the criminals as per the case of DICKSON PAULO SANGA (supra) is the attainment of the desired objective of article 30(2) of the Constitution, that is protection of interests of public safety and public order, defence and protection of those involved in the judicial proceedings. On the last paragraph of page 66- 67 of the said judgment the Court of Appeal stated; "In view o f what we have endeavoured to discus, we are satisfied that white it is true that section 148(5)(a)(i), (ii), (Hi), (b), (c), (d) and (e) o f the CPA has no prescribed procedure regulating refusal o f bail on the offences listed, it meets the tests o f proportionality, legitimacy and lawfulness and thus saved by article 30(2) o f the Constitution. Thus,

the detention pending trial is undoubtedly the necessary restriction for attainment o f the desired objective which include among others, the interests o f public safety and public order, defence and protection o f those involved in the judicial proceedings" (emphasis is mine) Subject matter in the case of DICKSON PAULO SANGA (supra) was constitutionality of section 148(5) of the Criminal Procedure Act, but in GIDEON WASONGA's case (supra) which was cited by the Court of Appeal in that said case of DICKSON PAULO SANGA (supra), apart from section 148(5) of the Criminal Procedure Act the High Court also discussed and decided upon on the constitutionality of section 36(2) of the Economic and Organized Crime Control Act. As read on page 27-28 of the 15 judgment for the said case of GIDEON WASONGA delivered on 25/04/2017 both sections were found not unconstitutional, I quote; "it is our findings that both section 148(5)(a)(v) o f the Criminal Procedure Act........ and section 36(2) o f the Economic and Organized Crime Control Act, are constitutional" (emphasis is mine). Therefore, the fact that the said Section 36(2) of the Economic and Organized Crime Control Act had already been declared not unconstitutional by this court in the case of GIDEON WASONGA & 3 OTHERS V. THE ATTORNEY GENERAL & 2 OTHERS (supra) the Petitioners' act of filing this suit challenging the constitutionality of the said provisions is nothing but Res Judicata. In upshot I find the 1st ground of Preliminary Objection that the matter is untenable for being res judicata meritorious. This ground is sufficient to dispose of the matter, the petition is therefore dismissed. As the matter is a public interest litigation, I make no order as to costs. 4ft- S.M. KULITA

JUDGE 19/03/2021 16