Victoria Pharmacy vs The Board of Pharmacy (Misc. Criminal Cause No. 28 of 2000) [2000] TZHC 144 (21 August 2000)

(J • 1 IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CRIMINAL CAUSE NO.28 OF 2000 VICTORIA PHARMACY.; .... ""····· APPLICANT VERSUS THE BOARD OF PHARMACY ...... RJtSPONDENT JUDGJ\1ENT BUBESHI, J: The appellant VICTORIA PHARMACY is aggrieved by the decision of the Pharmacy Board whereat it ordered the closure of their Pharmacy and criminal charges ·have been laid at their door in terms of Section 26 (1) (2) and (3) of the Pharmaceutical and Poisons Act, 1978. According to Mr Eustace, learned counsel advocating for the appellant, the Respondent has violated the procedure and powers vested upon it (the Board). He con1plained that the Pharmacy Board has no pm.vers to order closure and has submitted that this court has powers, vide Section 67, to on .. i~r the appellant to continue carrying on ~usiness pending the determination of the _appeal.

2 I have re read the provision - S. 67; For ease reference, the section provides; 67 - When a decision of the Board or of a court in any proceedings for an offence under this Act makes it unlawful for a person to carry on any business which he was ]awful1y carrying on at the date when that decision was given, or to use any premises for any purpose for which he was ]awfully using them at that date he may carry on that business and use the premise for that purpose until the time for appealing has expired, and if any appeal is lodged, until the appeal is finally disposed of or abandoned or withdrawn." It is clear therefore, from the above provisions that this court may allow the appellant to continue doing business pending the hearing of the appeal. But whicb appeal is envisaged here? In n1y view, it must be the appeal against the decision of the Court pending the crin1inal proceedings. Mr Ngwen1be learned State Attorney has submitted in reply that the appeal filed against the closure by the Board is just an interim measure pending the decision of the court hence pren1ature as the criminal case is still pending in court. Of course any person aggrieved by the decision of the Board or court, :may appeal to this Court - Section 66(1 ). Mr Ngwembe has submitted that the decision to close the pharmacy is an interim measure pending the final decision to be taken

.rl 3 after the disposal of the Criminal case nmv pending at Kisutu. I think I am inclined to agree with this proposition that as there is a criminal case pending against the appellant it would be premature to call that decision to close the pharmacy as final when the criminal case is yet to be finalised. Now is this appeal properly before this court in view of the charges laid at the appellants door? The charges have been preferred in relation to offences ~ falling under Section 26(2) and (3) of Act 9 of 1978, and in the alternative, c/s to k. section 28(1) (a) and 72A of Apt 9 of 1978. While the law allows for any person to appeal against the Boards decision vide section 66 ( l) of the Act, the charges preferred against the appellants pharmacy are so interlinked with the decision to close the pharmacy that to allow them to re open the pharmacy at this juncture would not be in the interest of justice and fair play. To that extent the appeal lodged with this court is in 1ny view incompetent. This is not the type of case where this court can order the re opening of the appellants pharmacy in view of the nature of the charges facing the appellant and whose outcome is still unknm:vn. I decline therefore to allow the appeal which in my view, has been lodged is prematurely. The san1e is ordered struck off the courts record. Before I end, I have observed that the appellant's pharmacy is nan1ed as Victoria Pharmacy situate along Mkwepu Street, Ilala District. This is as per the charge sheet. In the chamber sumn1ons filed by Rutabingwa and Co. Advocates

4 Victoria Pharmacy is located at Mwenge area, in Dar es Salaam. \Vhjch is the proper address? Mr Eustace may wish to take note of this discrepancy and rectify his record.