20120419 TZHC Dar es Salaam

1 IN THE HIGH ~~OU'RT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 90 OF 2011. (Original from Crimin.al Case No. 24 of 2011 in the Resident .Magistrate Court of Kisutu) REPUBLIC If • 0 e 19 e e e 8 e e e •• e O e 8 9 e •. fl G e APPELL.ANT VERSUS KH()MEL, s/ o MOHAMED ISMAIL . KA.SHIF s/ o ALLY . . . . ·. . . . . , . . . . . . . RESPONllENT·S Date of last order-28/3/2012 Date of Judgment -- 19/ 4/ 20]2 JUD GM EN'( Shangwa, J. In this case, the Appellant is the lJ:nited Republic of Tanzania. It vvas aggrieved by the R111ing of the Court of the Resident l\t1agistrate at Kisutu delivered by f). Kisoka:, R.M on 24 th \January, 2011 in Criminal Case No. 24 of 2011 ,vherein the R.espondents were granted bail r.iending the 2 hearing and final determination of the crilninal charge with which they stand charged in the · above 1nentioned case nam.ely unla,vful possession of amrnunition c/ss 4 {l) and 34 (1) and (2) of the Arms and Ammunition Act [Cap. 2.23 R.E. 2002] as amended by Act No. 17 of 2010. The particulars of the offence vvith vvhich they were charged in court are that on 18th day of Decem.ber, 2010 a{ Mbezi Beach area vvithin Kinondoni District, Dar es Salaan1 Region, they were jointly and together fen.Ind. in pos~t~~~sion of forty rounds of ammunition mal,::-_e special slug, forty rounds of ammunition rr1ake highland and fifteen rounds of arnmuniti.on make priv partzan without valid lic:ence. The appeal was argued by way of written submissions and it was based on five grounds. In · his ..vri t.ten 1 subrnissions, the learned State Attorney consolidated the 3 five grounds of appeal into two main gro11nds · vvhich read as fallows and I quote: - "l. That the trial Magistrate grossly er,·ed in law to gran.t bail to the Respondents whereas there had been filed a Certificate of the .Director of Pu. blic Prosecution issu.ed under S.148 (4) cif the Criminal Procedure Act (Cap 20 R.E.. 2002) 2. That the . trial · Magistrate . . erred in law to rehear bail application· and -·grant same 011 23 rd · March, 20 .l 1- v.;hereas she had heard the same and 4 refused to grant it on 24th. January, 2011". The issue to be considered in this appeal is whether or not the trial Magistrate vvas justified in granting bail to the . Respondents in disregard of the fact that there was a . certificate of the Director of Public Prosecutions hereinafter to be referred- to as the D PP issued under S. 148 (4) of the Criminal Procedure Act not to grar1t ·1· oa1. 1 to the! Respondents; and vvhether ot not the trial 1\/lagistrci.te ,vas justified in rehearing bail application and granting the J'. . sarne on 23 rd :tv1arch, 2011 in vie\v of the fact that she had heard the same and refused it on 24 th January, 2011. It is not in dispute that upon being charged vvith the offence of unlawful possession of several and different rounds of a1n.munition as indicated in the particulars of the charge against the Respondents dated 20 th . .Jarn1ary, 2011, 5 the DPP 1v1r. Eliezer Mbuki Feleshi filed a certificate under S.148 (4).of the Criminal Procedure Act [<.";ap 20 R.. E. 2002] notifying the court that granting of bail to the Respondents· who are charged for contravening the Provisions of SS.4 (i) and 34 (1) and (2) of the .Arms and Ammunition Act [Cap 223 R.E. 2003] will affect the interest of the United Republic of Tanzania and that they should be denied bail. The trial court's record sho'",s that counsel for · the· Respondents, Mr. Ndusyepo contested the DPP's Certificate. by saying that the offence is bailable and that bail is ·a constitutional right to the accused persons (Respondents) and that the DPP was misled in issuing his Certificate. In reply, the learned State Attorney, Mr.· Maganga. .,, submitted that nobody rnisled the DPP· in issuing his . , Certificate but that in doing so, he took into consideration· the interests of the Republic. 6 In her ruling dated 21 st January, 2011, I{isoka ·RM refused to grant bail to the Respondents. The following is what she said and I quote: "The issue here is whether th.e DPP's Certificate (supra) violates the accused persons' ri.ghts to get bail -while the . offence co1:nmitted is bailable ojjence. '.l'his. cou,1: after going through the; record·s t'. s,1.tisfied !. that S.148 (4) o.f the Criminal ., Procedure Act [Cap. 20 R".E. 2002]:'is very certain with th.e use. of the wo,--d "SHALL" which . means .it ·mandatory .for. -th-is · court to .co,nply- with. So, this court al.lows DPP's Certificate to stand and t,.he -accused 7 persc,ns should be not be granted bail. Signed D. Kisoka RM 21/1/2011" It is not in dispute also that three months later after refusing to grant bail to the · Respondents acting on a Certificate filed by the DPP, the trial Magistrate D. ·I{isoka, RM reheard the application· . for bail · presented by MT:} · Ndusyepo for the R.espondents who in a fe,N ,vords . 'pray·ed · for bail to his clients saying that bail is a right. In her lengthy ruling which was made on the same day J and which appears to have been prepared before Mr. Ndusyepo's short prayer for· bail, she stated·· that 1n his Certificate, the DPP did not disclose the interest of the United Republic of Tanzania that will be affected· once ·bail ' is granted to the Respondents or give any· other reason for 8 denying bail to them. After so stating, the trial Magistrate ordered for the amendment of the charge so that it indicates the age and nationality of the Respondents. After so ordering, the trial Magistrate went on to state that according to what she understood to be the case is . that the DPP filed a certificate in order to give ample time to 'the prosecution to do the investigation and speed up the trial but that now the :Respondents are co1nplaining abou:t the delay in the investigation of their cas:e. After so stating,· the trial Magistrate w·ent ·on to state further that a person charged with an offence has a right to bail and that a person is deerned h1nocent until proved guilty and that allowing one persoh to detain another person is the violation of the principle of eq1.1ality before the law and the Constitution of the United Republic. That the DPP's Certificate is the violation of the doctrine . of 9 separation of powers in that s. 148 (4) of the Crirninal Procedure Act under which it \Vas issued ties up the hands of the judiciary by forcing it to detain and hold unlawfully the accused persons in prison. That the denial of bail to the Respondents is the violation of the African Charter on Human ana. Peoples Rights ,vhich provides for the presu1nption of innocence of an accused person until ·· proved guilty. That it is an old principle of International -, La"\\r that bail should not be ,:vithheld as a punishn1ent and · 1i~- that Tanzania is a signatory to. International A.greements 1· ,,<,r; which the above principle is provided for .. That granting '*• ·' bail to the Respondents will reduce congestions in our prisons. That the Respondents are you_ng me1:1. and the_ offence with which they are charged, with is not so grave and the attendant sentence is -equalljr not so, grave. 10 On the first ground of appeal, the learned State Attorney replied that once a Certificate of the DPP issued under S. 148 (4) of the Crirninal Procedure Act is filed in court, the court is duty bound to comply i.e. to refuse to adrni.t the accused to bail and that the Certificate is valid from the date it is filed in court until the conclusion of the rnatter or until it is withdrawn by the DPP. He contended that as·the Certificate had not· been withdrawn by the DP.P 1 nor had the matter been concluded; the trial Magistrate had no powers to grant bail to the Respondents. On the second ground of appeal, the learned State ·Attorney· sub1nitted that the trial court (l\,1agistrate) was fu.nctus officio to rehear and determine the bail app ·1·1cat·ion on . ., rd Marc h., L.,no11 · 23 · • I-Ie said that. on 24th January, 2011 the Respondents applied for bail but the 11 trial Magistrate rejected their application on grounds of the DPP's Certificate that they should not be granted bail. He contended that as the same n1atter had been heard and determined, the court had no powers in law to rehear and re-determine the sa1ne. He cited the case of Bibi l{osoko Medard V. Minister for Lands, Housing and Ur·ban Development and Another (1983) TLR 250 where it was ·held that in matters of judicial proceedings once. a decision has been reached and made kno\vn to the parties, · the adjudicating tribunal thereby becomes .fun.ctus o,{ficio. ..... .. '!. '-~ ·~ In n~y judgment., I agree vvith the learned State ·.-· Attorney for the Republic that after refusing to grant the application for bail to the · R.espondents which· she did on 24 th Jan1.1anJ, 2011, the trial Magistrate was functus officio v1hich means that she \Vas officially barred to rehear and 12 re-determine the subsequent application for bail and grant it as she did to the Respondents on 23 rd March, 2011. Moreover, when bail was granted, the Certificate which was issued by the DPP under S.148 (4) of the Criminal Procedure Act not to grant bail to the Respondents on grounds that if bail is granted, the safety or interest of the Republic ,vould be prejudiced, was still in effect as the proceeding·s ·had not been concluded and as the Certificate not to grant them bail had not been withd.rawn by the [)PP ,., •,, as provided for under the 1nandatory provisions of S.148 (4) of the Crirninal Procedure Act. It is common knowledge as asserted by the trial M:agistrate that bail is a right to an accused person . That a person is deemed innocent until pro-\Ted guilty. However, a right to bail and the presurnption of innocence is not absolute be it under the Constitution of the United 13 Republic of Tanzania or under the African Charter on Human and Peoples Rights or under any other written law. For instance, where a person is charged \Vith treason under the provisions of S.39 (1) of the Penal Code Cap. 16 R.E. 2002 or murder c/s 196 of the Penal Code, no bail can be granted by the court even though bail is a right to such a person and even though the presumption of innocence applies to such a person. ,. No bail: is ~lovved to s1Jch ·"'1'1 persons due to the serious nature of those offences. Likewise} the offence with ,:vhich the Respondents are charged namely being 1r1 unla,vful possession of · .tr . ,Ammunition c/ss 4 (1) and 34 (1) and (2) of the Anns and Anununition Act Cap 223 R.E. 2002 is a serious offence. The .DPP did certify that if the Responderits ·are granted bail it is likely that the safety or interests of the Republic ,:vould be pr~judiced. The allegation against the Respondents as 14 per charge. sheet is that they '"'ere unlawfuJly found with a total of 95 rounds of different types of amrnunition. Now is it not likely that if the Respondents are granted bail, the interests of the Republic will be prejudiced. I know that the Respondents are out on bail and the Certificate of the DPP has not been withdra,vn. This 111.eans that the interests of the Republic are being prejudiced. In v1hich :.-~ray?· -First of all, no one knows as. to how they, obtained • • . • '. i' ·· ·,~~; these rounds of an~munition. Secondly, no one knovvs fron1 ., ~ , .·I v.rhich gro11p of warlords or drug barons were they obtained and for '\'\That criminal purposes were they intended to achieve. Attached to his written submissions in opposition to the appeal ·1s a letter written by counsel · for the Respondents,. l\.1r. I-Judson Ndusyepo dated 18 th February, 2011 vvith Ref. Pl\./Cr. 24/2011/01 addressed to the DPP 15 arguing that the Respondents are innocent people and that the ammunitions in issue were found in one of the rooms of the house at Mbezi Beach area Kinondoni, Dar es Salaan1 ovvned by one A.bulrove Abdul Osman from where they also found 1000 gms of illicit drugs kno\\1n as morphine and a safe box which was broken and found to contain two short g1.1ns with their respective ammunitions and two books · which shows that the o,vner of the short guns which were . found in a safe is Abdulrove i\.bdul Osrnan who hails frorn Pakistan. In 1ny view; although Mr.. Hudson Nd·usyepo's letter to the DPP is trying to disassociate the Respondents from the offence charged and associating it to their brother Abdulrove Abdul Osman, the Certificate issued by the OPP against them has to be given the weight it deserves and be corn.plied with. \ 16 It ,Nas quite wrong therefore _for the trial Magistrate to grant bail to the Respondents not only because she vvas functus officio but also because she .disregarded the DPP's Certificate not to grant bail to them. Therefore, I allovv this appeal and quash the. trial court's ruling and orders made on 23 rd March, 2011. The Respondents' bail is now cancelled. They have to be arrested and remanded in prison until when the proceedings are concluded or when · ·' ~- · .. the DPP ·withdra\ivs his Certificate. It is so ordered .. The case file should be remitted to the trial court and be t •. reassigned to another Magistrate vvith competent· jurisdiction, to continue dealing with the sa.111e according to ~ law. ~ A.Shangwa JUDGE 19/4/2012. 17 Delivered in open cou.rt this 19 th day· of ,wril, 2012 in the presence of Mr .. Solomon l\,1ihayo for the Appellant aJ1.d l\1s. Sala Sala, Advocate holding brief for Mr. l\Id1.1syepo, Advocate for the Respondents. ~ A.Shangwa. JU-DGE 19/4/2012