20170816 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM -(CORAM: MUSSA l.A., MUGASHA, l.A., And MWAMBEGELE, J.A.) -- CRIMINAL REVISION NO. 1 OF 2017 THE REPUBLIC .......................................................................... APPLICANT VERSUS RASHID SALIM MOHAMED @ RASHID RAMADHAN MOHAMED ........•••.••••••••..•....••.•...•..•...•.......... RESPONDENT (Revision from the proceedings and Orders of the High· Court of Tifnzania at Dar es Salaam)- (Mkasimonqwa, J.) Dated 17th day of August, 2015 In Criminal Session No. 25 of 2015 RULING OF THE COURT 10 th & 18th day of August, 2017 MUGASHA J.A. These revisional proceedings were commenced after the High Court [Mkasimongwa, J.] sought directions and guidance on the propriety or - ·otherwise ofnot conductfng a preHm1narynearTngTn a crlminal trial. Before embarking to determine this application, it is pertinent to avail the underlying brief background on what precipitated the present application as follows: Before the High Court, the respondent was 1 - ~ - ___ ,.._ _______ ---------·- -·---- . . Drugs and Prevention of Illicit Traffic in Drugs Act [CAP 95 RE: 2002].The - - -- applicant alleged that, on 24th July,- 2010, the respondent arrived_ at Julius Nyerere International airport in Dar-es-salaam having traveled from Brazil via Doha by Qatar Airways. On arrival, the Airport police having suspected the respondent as a drug mule, they detained him at the airport and subjected to close observation during which the respondent excreted eighty two (82) cocaine hydrochloride drug pellets at different intervals, weighing 1374 grammes valued at Tshs. 59,972,800/=. On 11/5/2015 when the charge was read over and explained to the respondent, he denied the charge as well as the name of the accused person appearing in the charge sheet. On this account, Kaduri, J made a finding that, since the respondent was disputing all matters, the prosecution had to prove everything at the trial. When the case was called on for hearing on 17/8/2015 before Mkasimongwa, J, there cropped a doubt or uncertainty as to whether or not the preliminary hearing was already conducted by the predecessor Judge. This made the trial Judge to refer the matter seeking Court's directions and guidance having conceived that, the propriety of the conducting of preliminary hearing was put to ------ ----- - --- ------- ------- -- - question. ________________________ _ ~_:__ 2 At the hearing of the present application, Ms. Evetha Mushi learned __ eri.ncipa.L State_ Attorney ___represented_the _ap_plicant wbereas__ Mr. __John ___ _ Kambo and Mr. Yasin Membar, learned Advocates represented the respondent. Ms. Evetha Mushi submitted that preliminary hearing was conducted and the respondent disputed his name. She added that, even if the ---- preliminary hearing was not conducted it would not have been fatal to the trial thus, the trial judge ought to have proceeded with the trial and the prosecution could have _paraded the evidence to disprove what was disputed by the respondent. To support her proposition she referred us to the case of KAPTEN MWAIPUNGU vs. REPUBLIC, Criminal Appeal No. 85 of 2007 (unreported). As to the way forward, the learned Principal State Attorney argued that, it was uncalled for to refer the matter to the Court becatJse- the---case--is-·-stiH---pending- -before- the -High--eourt. -,As-such~ --she adviced that the matter be remitted back to the High Court for continuation of the trial. - - --- -------- -- .. ------- - --- --------- - - - - - - - - - - - - - - - ------------ --- ----- 3 On the other hand, Mr. John Kambo and Mr. Yasin Membar counsel for the respondent supported what was submitted by the learned Principal State Attorney. The issue for our determination is the propriety or otherwise of the trial judge's decision to refer the matter to the Court seeking guida nee having doubted the propriety or otherwise of the conducting of the preliminary hearing by the predecessor judge in Criminal Session Case No. 25 of 2015 which is pending for trial. Before addressing this issue, it is pertinent to point out that, the legislative intent of introducing preliminary hearing in a criminal trial was to accelerate and speed up trials in criminal cases. This was way back emphasized by the Court in the case of EFRAIM LUTAMBI VS REPUBLIC, Criminal Appeal No. 30 of 1996 (unreported) where we said: n- .... The provisions df sect/on 19Z-df1'/ieAct are vety useful m the administration of criminal Justice. They were intended by the legislature not only to reduce the costs of criminal trials in the country, but also to ensure that those trials are, without prejudice to the parties, conducted expeditiously. " 4 ·--~-·-------· - --- -··- --·-------- --·-- --•-· ----· -·-- -- -- ---- . --- - -------~------------------------- ·------- ---------------- - - ----- --- ..--,---, - ---- .... - - ----- - ·--- ... - ---------- --------- ---~----------- ... ··-·-··· -· ----·-----~ - ----· ---,-------·--- Since the purpose of conducting preliminary hearing in criminal cases is to - - - -- - -expedite-trials, it is settled- law that, failure_ to conduct preliminary heari_rig vitiates the preHminary hearing itself, it does not vitiate the entire trial proceedings (See JOSEPH MUNENE AND ANOTHER vs THE REPUBLIC, Criminal Appeal No. 109 of 2002, KAPTEN MWAIPUNGU vs REPUBLIC, Criminal Appeal No. 85 of 2007 (both unreported). In the trial which is the subject of this application, when the case was called on for hearing on 17/8/2015 before Mkasimongwa, J. the learned Principal State Attorney initially, submitted as follows: ''My Lord, the matter is coming for hearing. The same came for preliminary hearing on 11/5/2015. When the charge was read over and explained to the accused, the latter denied his name. In essence Preliminary hearing was not conducted. As such, we pray that a preliminary hearing be conducted and hearing proceeds thereafter as we have witnesses, present, ready for the hearing. '' learned trial Judge viewed that it was conducted on 11/5/2015 and he made a following observation: "Going by these proceedings, technically the preliminary hearing was conducted. The charge against the accused person was read over and -------explained--to--the---accased-person.-=rne-finding-by--the--court-that ___________ _ --------- 5 everything is disputed is the result of such held Preliminary Hearing. Whether the procedure adopted by the cou,;t, was proper or not is not the matter of this Court to decide. Such a mandate lies with our superior court, the Court of Appeal of Tanzania. Keeping in mind that failure to obsetve the procedure in conducting Preliminary hearing does not itself vitiate the proceedings1 I leave it to the parties to seek for an Order of the Court of Appeal revising our proceedings. Othetwise I would prefer for the trial to proceed'~ Notwithstanding that, the learned Principal State Attorney did not question the propriety of the procedure adopted in conducting preliminary hearing, the trial court prompted parties to seek revision before the Court which was heeded to. As such, both counsel prayed that-the matter be referred to the Court for directives. Then the trial Judge concluded as follows: "Parties to this matter are of the view that there was no preliminary hearing conducted by the court in this case. Going by the record it can be implied that the Preliminary hearing was conducted This is due to . the __orders of the court emanatingfrom_theproceeding5 which suggest that the accused has disputed to all the facts constituting the offence and that the prosecution should approve each fact alleged against him. Parties think it being necessary to seek for the guidance of the superior court, the Court of Appeal of Tanzania. I therefore order that this record should be submitted to the Court of Appeal for it to consider whether or not the preliminary hearing was conducted ·--· ___ -·--·- _Second/.y,.JLtbe_pceliminazy.JJ.eadng_was..d11/y_conducted,-whether-.the------------ --- 6 procedure adopted by this court in conducting it was proper. The matter is referred to the Court of Appeal in terms of section 4(3) of the Appellate Jurisdiction Act Cap 141 R.E 2002. ✓, From the record, it was clear to the trial judge that preliminary hearing was conducted and that failure to the same does not vitiate the trial proceedings. However, as earlier stated, he persistently pressed on the parties to seek an order before the Court to revise the proceedings of the High Court. The taxing question here is if the Court is mandated to give direction or guidance on a matter which is pending before the High Court. The answer is in the negative because the powers of the Court on matters arising from lower courts are only exercisable in two ways. First, by way of appeal and second by way of revision as provided under section 4(1) and 4(3) of AJA. And, ordinarily, the Court would exercise its appellate and revisional jurisdiction only after the lower Courts have handed down their decision. (See CELESTINE MAAGI vs TANZANIA ELIMU SUPPLIES {TES) AND ANOTHER, Civil Revision No. 2 of 2014 (unreported)). In SHARIFF ABDALLA SALIM AND ANOTHER VS MAHSEN ABDALLA SALIM, Civil Revision No. 11 of 2016 (unreported), the Court was confronted with . ---------------------------·~-- ------------ ----· -- a_ similar scenario whereby,_j:fle _HJgb_,Court,_ln__the course of writing Jts. _. _--·-· __ 7 • judgment discovered that the District Court had usurped jurisdiction vested in -tne -Land -tou-rts. Instea-d of-addressing the -point -of I-aw- sy cerrecting-a jurisdictional error, the High Court referred the matter to Court seeking guidance and direction. We categorically said: " ... In the case at hand, there is no decision that has been made by the High Court It is our considered view that the High Court was supposed to make a decision on whether or not the District Court had Jurisdiction. " We have gathered that, in the matter which was referred to us, the trial court did not make reference to section 192 of the Criminal Procedure Act which governs Accelerated Trial and Disposal of Cases and in particular, preliminary hearing and the Accelerated Trial and Disposal of Cases Rules of 1988, Government Notice No. 192 of 1988. With respect, in our considered view, had the trial Judge consulted laws governing the matter including case law emphasizing on conducting preliminary hearing as a way of expediting the trial before him, he would not have sought guidance of the Court on the matter. In this regard, we wish to repeat what we said in MAULID JUMA vs ISMAIL MRINDOKO, Civil Appeal No. 198 of 2016 -------------- 8 . .. --~ -- -- ---------- ---------~ . -- -- .. ··-· ··- "With due respect, we expect the High Court to work out -challenging issues on -their -own.- It is not.appropriate for the High _ Court to expect the Court of Appeal to be an extension of research facility at its disposal. It is axiomatic to say that, when hearing and determining matters before them Judges must look up to all statutes and regulations that apply to the matters before them. '' - - -we-fully-subscribe to-the-stated deGisioR.- In view of the aforesaid, it was not proper for the High Court to seek guidance or direction of the Court in the matter which is the subject of this application. We say so because, firstly, it was a misdirection on the part of the trial judge to conclude that, the learned Principal State Attorney initially, had questioned the propriety of the procedure adopted by predecessor Judge in conducting Preliminary Hearing which is not the case. The respective submission contained options of either conducting the --pr-eliminary- -hearin~l -or- -proceeding--with-the·trial·-·-because-the-prosecation witnesses were present which was in line with the spirit of expediting the trial. Secondly, apart from expressing his sentiments on the propriety or otherwise of the conduct of the preliminary hearing, the trial judge did not ---- -------·· - - - - - - - - - - - - --- ----------------------------------- ---- 9 . . "' make any decision and instead opted to refer the matter to the Court. With respect, this as well defeats the spirit of expediting criminal trials. In the circumstances, since the trial judge did not make any decision, Criminal Session Case No. 25 of 2015, is pending before the High Court. In the premises, we remit the record to the High Court before the trial Judge to proceed from where he had reached. It is so ordered. DATED at DAR ES SALAAM this 16th day of August, 2017. K.M. MUSSA · JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL J;C-:-M-. MWA:MBEGEtE JUSTICE OF APPEAL I certify that this is a true copy of the original. 10