Zaidu Bakari and Others vs The Republic (Misc. Criminal Cause No. 2 of 1998) [1999] TZHC 102 (5 February 1999)

KALEGEYA, J: .. IN THE HIGH. COURT OF TANZANIA AT DAR ES SALAAM MISC. CRIMINAL CAUSE N0.2 OF 1998 ZAIDU BAKARI & 5 OTHERS vs. THE REPUBLIC . JUDGEMENT ' . The Applicants, aidu Bakari Kirungi, Abdallah Migomba, Maulidi Hamidu Mtumbuka,. ohamed Mselemu and Jafari Mtumbuka, .. were jointly charged with unlawful assembly c/s 74 and 75 of the ~ ' Penal code. At the close of the prosecution case they submitted no case to answer which submission was not bought by the District Court. The court held that a prirna· facie case had een ' .. estab1lshed and were put on defence. Believin that this finding was not supported by eidenc _the applicants came to this court··· applylng·tJ hav~· the District Court order revised henc~ this judgement. :..i Both Mr Mudemu, St:;\t,e Attorney, for· the Republic and Mr •. >::.~- .• Mc home, Advocate, for ·the Applicants were agreed on one common ·f ground tha~ a ruling hlch holds that there is a case to answer .. aftr the prosecution have closed their case is legally not appealable as it is not one o~ the orders/decisions envisaged under S.359{1) of the Criminal Procedure Act {Act 9 of 198~~- (Cletus Seffu VS Republic 1969 HCD No.314 DPP vs Ephata Lema,·Hc' J.

2 Criminal Appeal No.2/89, D'Salaam Registry, unreported). They however part on the question whether it could be assailed by way of revision. Mr Mchome, Advocate, vehemently contended that in such situation the High Court can rightly invoke its revisional powers provided under S.372 through 376 of the Criminal Procedure Act, for, this power "covers finding, sentences, convictions and all such orders in the event their correctness, legality or propriety is questionable". He insisted, "--- Since appeal is barred against such orders the remaining remedy, provided under the law,- is ·revision. This is based on the logic that this court is the court of law which cannot in any circumstances allow incorrect; illegal and improper proceedings be conducted by the subordinate courts. To curb this misnomer, the law has provided remedy for such circumstances, especially when the¥ would take too long: i.e to the finality of .the entire matter". Countering, Mr Mudemu, State Attorney, argued that a right to revision is limited wholly and exclusively to the High Court suo moto. If I understood him correctly, he branded this application as misconceived.

' ' \ -/ 3 Having carefully considered the arguments fronted by both sides, and the relevant law, I am of the settled view that the High Court cannot use its revisional powers to revise a Subordinate Court's decision regarding the existence of a ''case to answer" arrived at at the closure of the prosecution case. I fully concede that S.372 of the Criminal Procedure Act is so widely couched that one may be tempted to conclude that any order or decision can be revised. The said section prescribes: "The High court may call for and examine the record of any Criminal proceedings before. any subordinate court for the purpose of satisfying i tse 1 f as - to the - correctness, legality or propriety of any finding, sentence or order rcorded or passed, and as to the regularity of any proceedings of any such subordinate court". Before going further I should dispose of one matter raised by the State Attorney. It is not correct to say that revisional actions must be taken by the court suo moto. The manner by which the High court comes across the record for revision should be differentiated from the act or decision itself - revision. While the latter is wholly in the Court's discrection depending on what is discovered on record (which discretion does not even require hearing the parties (hence 374 CPA which does not grant any right to be heard to any party save on Court's discretion), the former,

4 that is, information pointing out defects or errors on record can GU-ti,'o n filter to the High Court'sAthrough any avenue - it could be, by the High Court own discovery through its routine inspection of lower courts' records; a tip by a good samaritan: a complaint by an interested party or victim, or by the subordinate court itself on second reflectiori on its acts or by its incharge. Thus there is nothing illegal for any accused to move the High Court to use its revisional powers provided he points out to the court the defect or error which deserves to be revised. The question of "suo moto" action by the eourt or "rights of party to move th.e court" to revise" does not arise at all, for, moving the court to look nto th osibiliy of reising a·deciion)~rder is different from the revision itself. The court may be moved but may not revise depending on cireumstances and nature of the record. Even the opening wording in S.373 of the Criminal Procedure Act clearly shows that there is no particular avenue provided, through which a record which deserves to be revised, can be brought to the attention of the High Court. The said \ _J section provides, i1part; ""'.,"'(1' .j/.j J In the case of any proceeding in a subordinate court the record of which has been called for or which has been reported for orders or which otherwise comes to its knowledge" (emphasis mine) It should also be noted that revisional powers of the High Court

. ) 5 prescribed under S.372 through S.376 of the Criminal Procedure Act, are not in derogation but in addition to the general supervisory and revisional powers conferred to it under the Magistrate's Court Act, No.2 of 1984 (Parts III and Iv - i.e. 30- 32 and 44). With that let us turn to the main question - is there any incorrectness, illegality, impropriety or irregularity on the trial courts' record which deserves the invocation of the High Court's revisional powers? As I have already said the answer is in the negative and for the following ground. Al thougb. the High - Co1Jft' s revisiona.l ,powers_ a.re so wide, in my considered opinion, as much as the order for existence of case to answer is not appealable, in the same vein, it would be undesirable a procedure, for the High Court to interfere with the proceedings of the trial court at that stage, when it has not finally reached its finding - acquittal or conviction. As is obvious, at that stage, the guilt or otherwise of accused is not yet decided, and it matters not that accused believes that the finding should have been the opposite - No case to answer or the High Court feels that if it were the trial court it would have decided otherwise. The revisional powers of the High Court are mainly geared at guiding against profound mischiefs which may be committed by tbe subordinate court - such acts would be attacked for their incorrectness, illegality; impropriety or irregularity. A decision on no case to answer which does not finally determine

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• ) 6 the fate of the accused, by whatever extension of interpretation, cannot fall under any of the above categories. Because of this basic finding, the merits or otherwise of the arguments fronted by the Applicants' counsel, i.e. that their submission of no case to answer was not considered by the court cannot be discussed. The Application for revision is refused. The matter to proceed from the stage reached: Applicants to enter on their defence before the trial court. L.B. Kalegeya JUDGR