Tramontano v Republic (Criminal Revision No. 14 of 1997) [1998] TZHC 2563 (17 August 1998)

FRANCESCO TRAMONTANO v. REPUBLIC 275 The views of this court on the use of revisional powers under a sub-section (3) have been expressed in a number of decisions and one condition expressed in these views is as Miss Munisi has rightly pointed out that there should be no right of appeal against the matter. The purpose of this condition is to prevent the provisions of this b sub-section being used as an alternative to appeals. In the matter now before us, there is a right of appeal even if not at the present time. Therefore, if the applicant exercises a little patience, he will get what he is now seeking at the conclusion of the trial if the need c arises. As it is now, the application for revision is premature. We are therefore satisfied that the applicant has not made out a case to move us to exercise the revisional jurisdiction of this court under section 4(3). D Accordingly, we dismiss this application with an order that the record should be returned to the District Court for the trial to proceed from where it was interrupted. The trial will proceed as ordered in the ruling of Nsekela, J. E FRANCESCO TRAMONTANO v. REPUBLIC HIGH COURT OF TANZANIA AT DARES SALAAM (Kalegeya, J.) CRIMINAL REVISION No. 14 OF 1997 (From the Dar es Salaam Resident Magistrate ’ s Court at Kisutu, in Miscellaneous Criminal Application No.l of 1997) Criminal Practice and Procedure - Witnesses - Recalling of a witness on accused ’ s demand - Whether magistrate has discretion to refuse - Section 214(2)(a) Criminal Procedure Act.

276 TANZANIA LAW REPORTS [1999] T.L.R. A Extradition - Minister's order to court for arrest and detention of fugitive - Court compliance with Ministers order - Whether lawful - Section 5(1) of Extradition Act 1965. Extradition - Bail - Consideration of grant or refusal of bail in Extradition Cases. There was a change of magistrates after the first witness had testified in extradition proceedings. A demand was made by the applicant to recall the witness, but the magistrate refused to do so on the ground that the previous magistrate having made no remarks about demeanour of the witness in the record, it followed that he had been satisfied with the witness ’ demeanour, and therefore, there was no need to recall the witness. The applicant is challenging the decision of the magistrate as well as his arrest on the order of the Minister of Home Affairs to the Kisutu Resident Magistrate ’ s Court, and the bail conditions imposed upon him. Held: (i) the section in the Criminal Procedure Act relating to recall of witnesses does not apply to extradition proceedings; E (ii) it was illegal for the Magistrate to have issued a warrant for the arrest of the fugitive on the basis of the Minister for Justices ’ order alone to him to issue the warrant. He must have some evidence, however informal, before issuing it. But in this case this error was not fatal because such evidence was soon brought to the F Magistrate in the form of documents; (iii) when it comes to extradition, there is a strong presumption against bail, which could be displaced if and only if, there is extremely strong evidence of circumstances special to the fugitive suggesting that he should get bail. G (iv) Obiter: Where an accused makes a demand to recall a witness, the Magistrate has no discretion to refuse to recall him, even if he is convinced that the nature of the evidence does not so require. jj Order accordingly Cases referred to: (1) Republic v. Rajab Lemu Seng ’ enge [1980] T.L.R. 166 j (2) Sadiki Abdallah Alawi v. Zulekha and National Bank of Commerce, Civil Application Number 56 of 1997 (DSM Registry) (unreported)

FRANCESCO TRAMONTANO v. REPUBLIC 277 (3) In the Matter and Extradition of Nacif-Borge 829 F Supp. 1210 (D. A November 1993) Statutory provisions referred to: (1) Criminal Procedure Act 1985, section 2 14(2)(a) g (2) Extradition Act Number 15 of 1965, sections 5(1) and 7(1) (3) Civil Procedure Act, sections 150, 212 and 388 Mr Mwengela, for the Applicant Mr Shaidi, for the Republic JUDGMENT D (Dated 17 August 1998) KALEGEYA, J.: The applicant, Francesco Tramontane, who is being faced with extradition proceedings under the Extradition Act 1965, E before Kisutu Resident Magistrates ’ Court, has come to this court applying for the following orders:

1. That the ruling and Order of the Subordinate Court dated 1 August p 1997 be revised for failure to make proper interpretation of section 214(2)(a) of the Criminal Procedure Act 1985.
2. That the whole proceedings of the Subordinate Court be quashed for being irregular in the following material particulars: G (i) The proceedings are based on irregular requisition. (ii) The arrest of the accused was irregular. (iii) That the proceedings before the Subordinate Court are bad in law for the Extradition Act 1965 does not envisage proceedings against a person who is not formally charged in a court of law. (a mere suspect other than an accused or convict). I

278 TANZANIA LAW REPORTS [1999]T.L.R 3. That bail conditions imposed by the subordinate court to the applicant on 22 April 1997 be varied and/or reduced as the same are oppressive and contain conditions which are per incuriam. For easy appreciation of the issues a background leading to this state of affairs is necessary. On 12 April 1997 acting under section 5(1) of the Extradition Act Number 15 of 1965, the Minister for Justice and Constitutional Affairs issued an order to Kisutu Principal Resident Magistrate for arrest and detention of applicant. For clarity, let it speak for itself. To: The Principal Resident Magistrate, Kisutu DAR ES SALAAM WHEREAS a request has been made by His Majesty ’ s High Commissioner of the Kingdom of Belgium for the Extradition from the United Republic of Tanzania of Francisco Tromontano to Belgium to stand trial for offences of FORGERY, FRAUD and OBTAINING MONEY BY FALSE PRETENCES amounting to 110 million Belgium Francs (TZS. 2.2 billion) committed between 1990 and 1994; NOW THEREFORE, I hereby require you to issue a Warrant for the arrest and detention of the said Francesco Tramontane. GIVEN under my hand this 12 April 1997 Sgd: H. Bakari Mwapachu MINISTER FOR JUSTICE AND CONSTITUTIONAL AFFAIRS An arrest warrant was duly issued and applicant was apprehended and landed before the Kisutu Resident Magistrate ’ s Court on 21 April 1997. After heated submissions by the defence led by Mr Mwengela, Advocate, on one side and Mr Shaidi, Principal State Attorney, on the other over an application for bail, the prayer was granted and applicant was released on bail on the following conditions. Again let the very wording in the court ’ s order paint the picture:

FRANCESCO TRAMONTANO v. REPUBLIC 279

1. The fugitive criminal will execute a bond of TZS. 100 million A
2. There shall be produced three reliable sureties all Tanzanian and all resident permanently within the jurisdiction of this court. They shall each execute bonds of TZS. 50 million One of those sureties shall convince the court that he or she owns valuable immovable property of a value within the jurisdiction of this court.
3. The fugitive criminal shall deposit in court all travel documents and shall not leave the jurisdiction of this court without the prior written permission of this court.
4. To ensure that the fugitive criminal is available he shall report without fail thrice a week, i.e. every Monday, Wednesday and Saturday at the RCO , who shall register .... in an appropriate form. o Any failure to comply with any of these conditions shall lead to the cancellation of bail and forfeiture of bonds ” . On 22 May 1997, a preliminary inquiry commenced by hearing the evidence of Ivo Moyersoen who identified himself as “ an examining Magistrate and Vice President of the Tribunal of first Instance in Antwerp ” , Belgium, investigating the matter which involves the Applicant. His testimony followed by a lengthy cross examination covered 4 days - 22,26,27, 23 Mayl997. On 28 Mayl998 hearing was adjourned to 17 June 1997. F Unfortunately, Mr Kiwango, RM, who was presiding over this matter resigned from public service and it was re-assigned to Mr Mtotela, Principal Resident Magistrate. On 22 July 1997 Mr Mwengela, Advocate, prayed to have PW1 recalled under section 21 4(2)(a) of the Criminal Procedure Act arguing that it is his client ’ s statutory right; urged the Magistrate to accept the prayer because “ when the witness adduced evidence in court you were not in court and you do not know his credibility or demeanour ” and also that they were challenging H the bail conditions before the High Court. The Principal Resident Magistrate dismissed the application holding (again for clarity, even at the danger of making this ruling unnecessarily long) thus,

280 TANZANIA LAW REPORTS [1999JT.L.R. A The provisions of the act on demeanours are very clear. In order for a trial magistrate to rely on demeanours they must form part of the court record. This is what I understand from section 212 of Civil Procedure Act which I quote hereunder. D When a magistrate has recorded the evidence of a witness he shall also record such remarks, if any, as he thinks material respecting the demeanours of such witness whilst under examination. c This section is very clear and a trial magistrate has to record the remarks. The section does not suggest the converse that the magistrate should reflect demeanours in the course of writing a judgement which demeanours were not recorded after the conclusion of the evidence. D I have noted that the trial magistrate did not put any remarks with respect to demenours. That means he found PW 1 fit and credible witness. Section 2 14(2)(a) of Civil Procedure Act does not provide mandatory E regulation as to the recall of witnesses when a case shifts to another trial magistrate. It says the accused may recall any of witnesses for the purpose of being reheard. It clearly shows that it is optional. In the circumstances it will be remembered that Mr Mchora for the F fugitive was present and he did cross-examine. I do not see why PW1 should be recalled when he was present when he testified. I for one would like to say that I do not need to have PW1 recalled. I have gone through the testimony, I have understood what he said. G Besides, the trial magistrate did not see demenours. Therefore, I see no reason why he should be recalled. This application is overruled and P.T.O. adding that the same court had power under section 150 Civil Procedure Act to vary bail conditions “ If there is an application to do so. ” The above ruling prompted the applicant to apply for revision in terms indicated and quoted above hence the present ruling. In support of the application Mr Mwengela, Advocate, submitted forcefully that while a magistrate who takes over a case from another i Magistrate who has recorded evidence wholly or in part has power and discretion to act on the record or evidence recorded by his predecessor

FRANCESCO TRAMONTANO v. REPUBLIC 281 or to resummon witnesses or order for trial or committal proceedings a de novo under section 214(1) of the Criminal Procedure Act, 1985, he has no discretion but to allow the application once an accused decides to exercise his right of demanding the recalling of witnesses under section 214(2). He insisted that the difference is indicated b by the words used: “ may ” in section 214(1) and “ demand ” in section 214(2). Further, he sought support in a treatise on Indian Law, Digest of Criminal Procedure Code by Chittalley (1966 Edition) which positively comments on a similar provision in their code before it c was amended. Mr Mwengela again submitted that although section 214(2) Civil Procedure Act is silent about preliminary inquiries or committal proceedings that that should be taken to relate to committal proceedings in respect of offences falling under the Penal Code and other territorial law but not extradition proceedings which under section 7(1) of the Extradition Act have to be conducted as nearly as may be as in a preliminary inquiry because the said proceedings are more of a trial than committal proceedings as witnesses do testify. He finally attacked the definition attached by the Principal Resident E Magistrate to the term “ demeanour ” under section 212 Civil Procedure Act that it does not mean “ bad behaviour ” as suggested by the Principal Resident Magistrate but it relates to a “ way of behaving, conduct. ” F Regarding an argument on irregular requisition Mr Mwengela maintained that the Extradition Act does not provide for extradition of persons who are mere suspects - that it must be a fugitive criminal who has been convicted or charged before a court of law; that the applicant ’ s arrest was also irregular as an arrest warrant against a fugitive criminal can only be issued when there is a Minister ’ s order, evidence before a Magistrate and the latter ’ s satisfaction in respect of the supporting evidence and proof of the existence of extradition treaty between the relevant countries. He asserted that the applicants ’ H arrest was unlawful and irregular as he is just a suspect, there was no evidence before the Magistrate on which he could act and there is no proof of the existence of a treaty between Tanzania and Belgium, and that this misconceived and invalid proceedings should be quashed. 1

282 TANZANIA LAW R EPORTS [1999]TL.R. A Finally, Mr Mwengela argued that the bail conditions imposed are gravely oppressive, unconstitutional and per in curium having taken away applicant ’ s right to liberty, and more specifically the act of placing him into the hands of his adversaries (police) to whom B he has to report thrice a week. In an equally forceful counter submission Mr Shaidi, Principal state Attorney, argued that as per section 7 of the Extradition Act a Magistrate should conduct the proceedings as nearly as may be in a c preliminary Inquiry while section 21 4(2)(a) Civil Procedure Act refers to a trial which proceedings are quite different from the one we have at hand; that even if it were to be positively considered, section 214(1), 214(2)(a) and 214(2)(b) should be read together as vide D the latter sub-section the High Court has discretion to act or uphold proceedings where the Magistrate did not inform an accused of his right to recall witnesses - cited R. v. Rajabu Lemu Seng ’ enge (1). He stressed that to recall witnesses is wholly within the discretion E of the Magistrate. Concerning an alleged irregular requisition, Mr Shaidi, PSA, insisted that the applicant ’ s arguments are based on Common Law system while the system prevailing in Belgium is continental or Roman Law F system whereby an accused is brought first before the court of first instance where he has to face first the investigation Magistrate after which he would formally be charged before the court which would try him. He argued that as a fugitive criminal means a person accused G or convicted of an extradition crime, and as a suspect includes an accused, and also as there is subsisting warrant of arrest against the applicant, the requisition proceedings are proper. As for the alleged irregular arrest of applicant Mr Shaidi launched H his attack by saying that the matter should have been raised before the subordinate court, adding that notwithstanding the non-enclosure of the arrest warrant and statements of evidence to the Minister ’ s order, these were subsequently given to the applicant and that therefore I if there was any irregularity it was curable, under section 388 Civil Procedure Act as it did not prejudice the Applicant.

FRANCESCO TRAMONTANO v. REPUBLIC 283 For bail, Mr Shaidi insisted that the conditions set have to be a looked at from the aspects that the sums involved are colossal (TZS. 2.2 billion) and the applicant is a foreigner. In reply Mr Mwengela insisted that it is improper to lump together section 214(1), 214(2)(a) and 214(2)(b); distinguished Seng ’ enge B case by saying that in that case proceedings had already come to an end and that extradition proceedings are not committal proceedings but could be dealt with as nearly as possible as is the case in committal proceedings and cited Civil Application Number 56 of 1997 Sadiki c Abdallah Alawi v. Zulekha S. Alawi and National Bank of Commerce (unreported - DSM Registry). I will tackle the issues raised in the same order they are presented. In order to have a clear ambit of the arguments leveled on interpretation of section 21 4(2)(a) Civil Procedure Act it is pertinent that we examine its wording, and this can best be done by reproducing the relevant parts. The relevant parts read as follows: E 214(1) Where any magistrate after having heard and recorded the whole or any part for the evidence in any trial or conducted in whole or party any committal proceedings is for any reason unable to complete the trial or the committal proceedings or he is unable to complete p the trial or committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial or committal proceedings as the case may be and the magistrate so taking over may act on the evidence or proceeding recorded by his predecessor and, may in the case ’ of a trial re summon the witnesses and recommence the trial or the committal proceedings or otherwise subject to subsection (2) (2) Whenever the provision of subsection (1) applies: h (a) in any trial the accused may, when the such other magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard and shall be informed I

284 TANZANIA LAW REPORTS [1999]TL.R. A of such right by the second magistrate when he commences his proceedings; (b) the High Court may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded g by the magistrate before the conviction was heard, if it is of the opinion that the accused has been materially prejudiced thereby and may order a new trial ” . [Emphasis Supplied] c Now let us go into the arguments presented. With respect to Mr Shaidi, PSA, I cannot buy a proposition that both section 214(1) and 214(2)(a) have the same import as regards the re-summoning of witnesses. Once the accused makes a ‘ demand ’ that the witnesses be recalled the court cannot be said to have an ‘ option ’ (to use the D word employed by the Principal Resident Magistrate) or ‘ discretion ’ as put by Mr Shaidi, PSA. To so hold would make the provisions of section 21 4(2)(a) superfluous and offend even the common meaning of the word “ demand ” . If that were the intention of the Legislature, E section214(l) would have sufficed - the source of the wish to have witnesses recalled would not have mattered as in whatever form or in whatever manner the issue surfaced the determinant factor would have been the discretion of the court. However the legislature did F not stop there - under, section 2 14(2)(a) it made it mandatory (the word used is ‘ shall ’ ) that the accused be informed of his rights to recall witnesses if he so wished; and once he is so informed and “ demands ” to have them recalled, the court has no discretion but to G recall them. Again with respect to Mr Shaidi, PSA, section 21 4(2)(b) cannot be read together with the other subsections in order to get the interpretation of section 214 (1) because it deals with a different matter altogether. Under section 21 4(2)(b) the High Court, making H its analysis of the evidence and finding based on evidence recorded by the predecessor magistrate may overturn the decision even if accused decided not to recall witnesses as indeed this may have been due to ignorance, timidity or indifference exalted by the facts of a j particular case which the High Court finds to be contrary to the scales of justice considering the evidence recorded and the analysis

FRANCESCO TRAMONTANO v. REPUBLIC 285 made thereof by the subordinate court. Clearly the Rajab case cited a by Mr Shaid is irrelevant to this kind of situation. The plain wording of section 21 4(2)(a) did not demand the level of the heated debate attained in this matter. However, in my view the current position of the Indian Criminal Procedure Code (after B one 1955 amendment), as pointed out by the learned author and summoned by Mr Mwengela to his aid, Chittalley in the Digest referred to above needs to be introduced into our code. At page 2425, the learned author comments: C 7. Proviso-Before the Amending Act 26 of 1955, the accused had a right to demand that the witnesses already examined before the previous magistrate, or any of them must be re-summoned and re examined before the succeeding magistrate. This right has now been D abolished, and whether witnesses or any of them should be re-summoned and re-examined is entirely left to the discretion of the succeeding magistrate. E This would guard against stubborn accuseds who wish to have witnesses recalled for the mere sake of it. This brings us to another observation regarding the ruling of the Principal Resident Magistrate attacked by Mr Mwengela. From the wording of his ruling already quoted above it comes out plainly, as pointed out by Mr Mwengela, that the said magistrate misconstrued the meaning of the word “ demeanour ” in section 212 Civil Procedure Act. A witness ’ s demeanour refers to his general behaviour - the way he conducts himself while in a witness box cutting across the evidence he gives, response to questioning, G whether evasive, affirmative, uncertainty, and goes even to his physical stature before the court - i.e. shaking, crying, smiling: the categories are unlimited, and it is a combination of all these factors taken together by the court in assessing whether to believe him or not that we use H the word ‘ demeanour ’ in the legal world. Also it is not correct to say that a magistrate “ must record demeanour ” and that if no records are made it should be assumed that the witness is telling the truth! This is a wrong interpretation, in fact dangerous to the justice world, i for the court decides on the totality of all the evidence tendered:

286 TANZANIA LAW REPORTS [1999]T.L.R. A the first witness may seem credible on his face value only to be marked unreliable upon deposition of subsequent testimonies. Secondly, only deserving remarks need to be recorded by the court if it deems so important. Section 212 is clear on this: JJ when a magistrate has recorded the evidence of a witness he shall record such remarks, if any, as he thinks material respecting the demeanour of such witness whilst under examination. c The purpose of recalling witnesses in a deserving case is to enable the succeeding magistrate to make assessment of the witnesses ’ demeanour. This however will depend on facts of a particular case. The succeeding Magistrate may upon going through the evidence recorded by his predecessor conclude that it is of the type which he D need not have witnesses recalled. Of course where the accused demands to have them recalled the magistrate will have no discretion even if he is convinced that the nature of the evidence does not so require, and that is why I have observed that it is high time our Act was amended E to be in line with what the situation is in India. While still on the interpretation of section 214 Civil Procedure Act next we move to whether extradition proceedings are covered thereunder Mr Mwengela argues that they are while Mr Shaidi takes the contrary views. Section 214(1) and (2) quoted above plainly refer to “ trial ” and “ committal proceedings ” section 7 of the Extradition Act, provides: G Section 7(1) subject to the provisions of section 17, when a fugitive criminal is brought before a magistrate, the magistrate shall hear the case in the same manner and have the same jurisdiction and powers as nearly as may be, as in a preliminary inquiry ” [emphasis supplied], section 17 H is inapplicable. Both Counsel concede that section 214 does not refer to Extradition proceedings. However that is the only far step they move together, they part when it comes to whether the said proceedings should be 1 read into that provision. I have paid due attention to the arguments

FRANCESCO TRAMONTANO i: REPUBLIC 287 and asked myself the question, what is the difference between “ committal a proceedings ” and “ preliminary inquiry ” . The Criminal Procedure Act does not define the terms “ Committal proceedings ” or “ Preliminary Inquiry ” . However Black ’ s Law Dictionary (Abridged Sixth edition) gives us some light on the meaning of “ preliminary B hearing ” which is defined as follows: The hearing by a judge to determine whether a person charged with a crime should be held for trial. A hearing held in felony cases prior to indictment during which the state is required to produce sufficient evidence to establish that there is probable cause to believe that a crime has been committed and (b) that the defendant committed it. Preliminary hearing before magistrate is, basically, a first screening of the charge; its function is not to try the defendant, nor does it require the same degree of proof or quality of evidence as is necessary for an indictment or for conviction at trial. Its function is to determine whether there is sufficient evidence to hold an accused for trial. Indigent defendants have a right to be represented by counsel at a preliminary examination. E Again, although the term “ committal proceedings ” is not defined as such, the definition attached to “ Committing Magistrate ” in the same dictionary can also assist us on what committal proceedings are considered to be. A Committing Magistrate is defined as: An inferior judicial officer who is invested with authority to conduct the preliminary hearing of persons charged with crime, and either to discharge them for lack of sufficient prima facie evidence or to commit them to jail G to await trial or (in some jurisdictions) to accept bail and release them thereof. The term is said to be synonymous with “ examining court ” . Now looking at the two definitions one can only and logically conclude that generally both terminologies relate to the same procedure in h that the Committing Court or the one which holds a'preliminary inquiry or hearing investigates preliminarily into the guilt of the accused and then commits the said accused for trial by another court (invariably superior court). Under the preliminary inquiry/hearing j

288 TANZANIA LAW REPORTS [1999]T.L.R. A or committal procedure that existed in the past the Lower Courts had to hear evidence of witnesses intended to testify in support of the charge and then decide on whether a prima facie case had been established upon which finding the accused would be committed for B trial by the High Court. This procedure, still applicable in some common law jurisdictions, is no longer in practice now as under the Criminal Procedure Act, the committing magistrate simply reads over the information and statements of witnesses to the accused and commits c him for trial by High Court, our committal courts do not decide on whether or not there is prima facie case against accused. Although I have observed that the ‘ committal proceedings ” referred to in section 214 of the Civil Procedure Act can also properly be D called “ preliminary inquiry or hearing ” this cannot aid the applicant for under the current system there is no calling of witnesses in committal proceedings and logically you cannot recall something which never existed in the first place. E And, further to the above, a preliminary inquiry or committal proceedings cannot be interpreted to mean “ trial ” provided under section 21 4(2)(a) Civil Procedure Act. Had the Legislature intended to have committal proceedings covered in section 21 4(2)(a) it would F have so provided as it did in section 2 14( 1 )(a), and in any case, it would have been illogical because as already said there is no calling of witnesses in such proceedings, at least in our jurisdiction. That apart, even if the old system of committal proceedings still G existed, and covered section 21 4(2)(a), in my view, a fugitive criminal would have no right of recalling a witness because extradition proceedings are special and different proceedings as they are not geared at establishing the guilt of the person being requisitioned. Indeed section 7 of the Extradition Act does not turn extradition proceedings into a preliminary inquiry but it provides that it should be dealt with “ as nearly as may be ” as is done in the latter proceedings (Alawi case cited above is very relevant). The same wording however 1 imports and presupposes the existence of separate treatment in line

FRANCESCO TRAMONTANO v. REPUBLIC 289 with the matter itself, that is, the Extradition proceedings as opposed A to preliminary inquiry. I have so concluded because of the following. I should start by insisting that extradition proceedings should not be equated to criminal prosecution. Extradition is just a procedure by which one sovereign B nation turns over a person in its custody to another sovereign national following the latter ’ s request. The extraditing Magistrate is not determining the guilt or otherwise of the person faced with extradition proceedings. In fact he is only concerned with whether extradition would be lawful c and not whether the person to be extradited will be convicted. He is only concerned with whether there is a probable cause to believe that the person whose surrender is sought did commit the crime for which extradition is requested. What should be the standard of proof? d It suffices if the evidence before him can cause a person of ordinary prudence and caution to conscientiously entertain reasonable belief of accused ’ s guilty, a standard which is by far below that required in a normal Preliminary Inquiry let alone in trials. In this kind of situation e it would be patently wrong to wholly attach to extradition proceedings the usual attendants to criminal prosecution. Relating this analysis to the facts of our case, affording applicant the rights of an accused under section 2 14(2)(a) is tantamount to saying that the extraditing F court is required to be satisfied of the applicant ’ s guilty beyond all reasonable doubts or even the establishment of a prima facie case which would indeed, in normal criminal prosecution, entail detailing and assessing the witnesses ’ demeanour. In fact, looking at the Extradition Act, the Extraditing Court may not even require the attendance of witnesses physically. It may merely rely on documents presented. The above is said however without prejudice to what the subordinate court will decide at the conclusion of the inquiry. For the reasons discussed, I hold as did the Principal Resident Magistrate (though H for different reasons) that section 21 4(2)(a) Civil Procedure Act is not available for applicant ’ s utility. Next, we turn to the complaint regarding irregular requisition and irregular arrest. I

290 TANZANIA LAW REPORTS [1999]TL.R. A Section 5(1) of the Extradition Act states: 5(1) A requisition for the surrender of a fugitive criminal of any country who is in or suspected of being in Tanzania shall be made to the Minister by a diplomatic representative or consular officer of that g country and, upon receipt of such requisition, the Minister may, by order under his hand, signify to a magistrate that a requisition has been made and require the magistrate to issue his warrant for the arrest and detention of the fugitive criminal. C While section 6 provides: 6(1) The warrant for the arrest of a fugitive criminal whether accused or convicted of a crime, who is in or suspected of being in Tanzania, D may be issued by a magistrate: (a) On the receipt of the order of the Minister and on such evidence as would, in the opinion of the magistrate, justify the issue of the warrant if the crime has been committed or E the criminal convicted in that part of Tanzania in which he exercises jurisdiction; or [emphasis supplied] Reading section 5(1) and section 6(1) of the Extradition Act together, one is left convinced that the Legislature did not envisage the court F acting merely on a Minister ’ s order as was the case here but also on some accompanying evidence in respect of the crime allegedly committed. The evidence required is not defined. In my view it is rightly left to the Magistrate ’ s discretion so it could be anything; simply a charge G sheet or complaint, a statement of investigator and or anything related. The evidence referred to (section 6(1) should be one which in the opinion of the Magistrate justify the issuing of an arrest warrant if the offence were committed within his jurisdiction I am satisfied H that the issuing of the arrest warrant based on the Minister ’ s order alone without evidence was improper and Mr Mwengela rightly complained on this. Nevertheless, as submitted by Mr Shaidi, Principal State Attorney, this was not fatal in view of the fact that immediately thereafter ! the relevant documents were made available to the applicant and indeed the proceedings on the matter are still on.

FRANCESCO TRAMONTANOv. REPUBLIC 291 Mr Mwengela ’ s argument that the applicant should not have been a demanded for extradition because he is just a suspect cannot stand either. As rightly submitted by Mr Shaidi, PSA, courts (including Advocates) are supposed to take judicial notice of international legal systems prevailing in different parts of the globe. The Belgium legal b system being Roman Law or Continental Law it differs very much from the common law system prevailing in our country and on which Mr Mwengela based his complaints. “ A DEMAND FOR EXTRADITION ” sent to Tanzania in July 1996, and c produced by Ivon Moyersoen (the witness who testified) and which was part of the documents he was cross examined upon clearly shows that applicant ’ s arrest had been ordered by the investigating Magistrate of the court of first instance. It may be that this should have accompanied the D minister ’ s order but this is different from saying that when he was being extradited he did not fall under the definition of fugitive criminal. Again, for clarity let the “ demand ” document speak for itself. DEMAND FOR EXTRADITION E The prosecutor of his Majesty the King at the court of first instance in Antwerp, Belgium feels honoured to request the competent, authorities for the extradition of the person hereafter. An application of the agreement relative to extraditions between Tanzania and Beligum ratified on 29 October 1901; IDENTITY OF THE PERSON TO BE EXTRADITED Surname Tramontane G First Name Francesco Bom in Bruscanio (Italy) 2 January 1942 Nationality Italian JJ Profession Without known profession Last residence known London (G,B) Break Avenue G. At present free on bail in Tanzania since 25 July 1996. I

292 TANZANIA LAW REPORTS [1999JT.L.R. A DECREE ON WHICH THE DEMAND IS BASED The present demand is based on the order of arrest by default by the investigating Judge I. Moyersoen in Antwerp on 23 November 1995, on account of establishing and guiding an association of criminals in view of committing crimes, forgery and its use, fraud (subsidy fraud). FACTS FOR WHICH THE EXTRADITION IS REQUESTED- TRAMONTANO C Also is chief of an organization that, succeeded, between 1990 and 1994, by means of false document in withdrawing monies, originating from the AROS, aid organization from the Belgian Ministry of Development Aid and meant for the development aid to Tanzania and this for an amount at 0 present estimated at 110 million Belgian Francs. A statement of the aforementioned facts is enclosed. It is not a political nor a coherent crime. E THE PUNISHMENT IN BELGIUM The aforementioned facts are punished by the articles 66, 193, 196, 197, 213, 214 and 322 of the Belgian Penal Code and the Royal Decree of 31 May 1933, as becomes clear from the enclosed copy of the applicable F legal texts. REFERENCE TO THE CONVENTION OF EXTRADITION The crimes aforementioned are indicated in the aforementioned Convention q of Extradition, ratified between Tanzania and Belgium, under article 1.7 and 11. THE DURATION OF THE PUNISHMENT, REQUIRED BY THE CONVENTION H The maximum duration of the imprisonment for the fact, for which the extradition is demanded, surpasses the duration required as a minimum by the aforementioned convention of extradition. I

FRANCESCO TRAMONTANO v. REPUBLIC 293 Section 2, of the Extradition Act, defines a ‘ fugitive criminal ’ as a follows: “ fugitive criminal ” means any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Tanzania and a reference to a fugitive criminal accused on convicted of an extradition crime committed within the jurisdiction of that country. and, an “ extradition crime ” is defined as follows: “ extradition crime ” means a crime which, if committed within the jurisdiction of Tanzania would be one of the crimes described in the schedule to this Act. Black ’ s Dictionary of Law defines a ‘ suspect ” as, a person “ suspected D to be involved in a crime ” From the above I go with Mr Shaidi, PSA, that the term ‘ suspect ’ should not be looked at narrowly-clearly it is included and covered by the term fugitive criminal. E Mr Mwengela attacked the proceedings from yet another angle

• that there is no proved treaty between Belgium and Tanzania concerning surrender of fugitive criminals. I must confess that this has exercised my mind a great deal Mr Shaid, PSA, decided to keep silent on this issue although it was vividly put by Mr Mwengela in his submission. F The light on the matter is first ahead on us by the ‘ demand note ’ which states that there is an “ agreement relative to extraditions between Tanzania and Belgium ratified in 29 October 1901 ” . Under section 3 of the Extradition Act, the following is provided: (1) where an agreement has been made with any country with respect to the surrender to that country of any fugitive criminal, the Minister may, by order published in the Gazette, declare that this H Part of this Act shall apply in the case of that country subject in such conditions exceptions and qualifications as may be specified in the order, and this part shall apply accordingly.

294 TANZANIA LAW REPORTS [1999JT.L.R. A (2) an order made under this section shall recite or embody the terms of the agreement and shall not remain in force for any longer period than the agreement. (3) every order made under this section shall be laid before the National B A L.1 Assembly. My research has convinced me that the relevant treaty was indeed ratified. My research landed me on a copy of the Treaty for the mutual c surrender of fugitive criminals of 29 October 1901 between Great Britain and Northern Ireland and Belgium filed and recorded with the Secretariat of the United Nations on 8 May 1976 and which treaty covered all British colonies and nations under her supervision including Tanganyika (as she then was). The said research carried me further to other diplomatic exchanges between Tanzania, (after independence), and Belgium regarding the Extradition understanding which existed then. Once again the live and full contents of those communications can clarify better the issue. E On 30 November 1963, the Government of Tanganyika communicated to the Belgium Embassy the following: The Ministry of External Affairs and Defence of the Republic of Tanganyika F presents its compliments to the Embassy of Belgium and has the honour to refer to the Note of 9 December 1961 from the President (then Prime Minister) of the Republic of Tanganyika to the Secretary-General of the United Nations concerning the treaty obligations of Tanganyika. That Note q which was circulated to all member states of the United Nations stated, as follows: As regards bilateral treaties validly concluded by the United Kingdom on behalf of the territory of Tanganyika or validly applied or extended H by the former to the territory of the latter, the Government of Tanganyika is willing to continue to apply within its territory on a basis of reciprocity, the terms of all such treaties for a period of two years from the date of independence (i.e. until 8 December 1963) unless abrogated or modified j earlier by mutual consent. At the expiry of that period the Government

FRANCESCO TRAMONTANO v. REPUBLIC 295 of Tanganyika will regard such of these treaties which could not by A the application of the Rules of customary international law be regarded as otherwise surviving, as having terminated. The legal advisors to the Ministry are of the opinion that under the D rules of customary international law the treaty between Great Britain and Belgium for the mutual surrender of Fugitive Criminals, done at Brussels, 29 October 1901, would not survive the two year period. Any rights and obligations which the Government of Tanganyika had under the said agreement would, therefore, terminate on 8 December 1963. c The Government of Tanganyika is willing, however to keep the said agreement in force until such time as a new agreement can be negotiated directly between Tanganyika and Belgium. If the Government of Belgium is in favour of such an arrangement the Ministry has the honour to D propose that this note, and the note of the Government of Belgium confirming such an arrangement shall constitute an agreement to that effect. The Ministry of External Affairs and Defence avails itself of this opportunity to renew to the Embassy of Belgium the assurances of its E highest consideration. The Belgium Embassy responded on 17 March 1964 as under: The Royal Embassy of Belgium presents its compliments to the Ministry p of External Affairs and Defence and has the honour to acknowledge receipt of its note number PXC 211/007 of 30 November 1963, by which the Ministry of External Affairs and Defence of Tanganyika proposed to maintain temporarily between Belgium and Tanganyika, the provision of the treaty between Belgium and the United Kingdom of Great Britaih and Ireland, for the mutual surrender of fugitive criminals, signed at Brussels on 29 October 1901. As the Belgian Government agrees to this proposal, the above-mentioned h note of the Ministry and present reply will be regarded as 'constituting the agreement between the two Governments. Furthermore, the Belgian Government considers that this agreement includes also the additional conventions of the Belgo-British Treaty of I

296 TANZANIA LAW REPORTS [1999] T.L.R. A Extradition, signed the 5 March 1907 and 3 March 1911, conventions of which the applications have been extended to Tanganyika. The Royal Embassy of Belgium would be obliged if the Ministry would confirm that such is its opinion also. B The Royal Embassy of Belgium avails itself of this opportunity to renew to the Ministry of External Affairs and Defence the assurances of its highest consideration. c On 30 October 1964, the Government of Tanzania further communicated with the Belgian Embassy as follows: The Ministry of External Affairs of the United Republic of Tanzaia presents its compliments to the Royal Embassy of Belgium and has the honour to D refer to the Embassy of Belgium and has the honour to refer to the Embassy ’ s Note S.G. 759 of 9 June 1964, concerning extradition. The Ministry of External Affairs has the honour to confirm that the agreement between the Belgian Government and the United Republic of Tanzania to maintain E temporarily the provisions of the treaty between Belgium and the United Kingdom of Great Britain and Ireland for the mutual surrender of fugitive criminals, signed at Brussels on 29 October 1901, also includes the additional conventions of the Belgo-British Treaty of Extradition, signed the 5 March F 1907 and 3 March 1911, Conventions of which the applications had been extended to Tanganyika. The Ministry of External Affairs of the United Republic of Tanzania avails itself of this opportunity to renew to the Royal Embassy of Belgium G the assurances of its highest consideration. From the above it is clear that the 1901 Extradition treaty survived the 2 year period which seems to have been the usual period for which such treaties could normally survive after independence; survived H independence to-date. In the communication dated 30 November 1963, the Government of Tanganyika proposed: The Government of Tanganyika is willing, however to keep the said agreement j in force until such time as a new agreement can be negotiated directly between Tanganyika and Belgium.

FRANCESCOTRAMONTANO k REPUBLIC 297 The above proposal was accepted by the Belgium Government vide A their communication dated 17 March 1964 and reconfirmed by the Government of the United Republic of Tanzania on 30 October 1964. As that understanding though intended to be provisional has subsisted to-date, however undersirable the situation may be, legally that treaty b is still effective as between the parties - Belgium and Tanzania governments. This treaty read together with the saving provisions of section 28 of the Extradition Act (15 of 1965) and GN 159 of 1928 made under Chapter 22 (repealed) which provided for the application c of fugitive criminals surrender Ordinance to Belgium as revealed on page 257 of Volume V Subsidiary Legislations, Chapter 1-112 clearly covers the present applicant. On this score also Mr Mwengela ’ s complaint cannot have a base upon which to stand. Finally we come to bail conditions described by Mr Mwengela as gravely oppressive. In criminal law generally, bail is the accused ’ s right unless specifically taken away by statute. The guiding principle is whether accused will present himself before the court as and when e required. However, in extradition proceedings, by their very nature, extra care should be exercised by courts when deciding on the question of bail. In most jurisdictions granting bail to a person faced with extradition proceedings is an exception rather than the rule, and common F sense can easily grasp why it is so. In the United States, for example, with all the drums and trumpets claiming exceptional cherishing of human rights and personal liberties there the issue is treated with very exceptional focus. The courts there have only curved a limited exception to the general prohibition against bail by simply giving birth to a principle called ‘ special circumstances ’ .An example is what was stated In the Matter and Extradition of Nacif — Rorge, 829 F. Supp. 1210, 1215 (D. H NEV 1993.). A person subject to international extradition may overcome the presumption against bail by presenting clear and convincing evidence demonstrating ‘ special circumstances ’ justifying release pending i extradition, proceedings and that the person will not flee or pose a

298 TANZANIA LAW REPORTS [1999]T.L.R. danger to any other person or community... this exception should be exercised only in the most pressing circumstances and when the requirements of justice are absolutely peremptory. The American Courts insist that the standard of ‘ Special Circumstances ’ for release on bail for persons involved in foreign extradition proceeding ” is more demanding standard than that of ordinary accused criminals awaiting trials that special circumstances must be extraordinary and not factors applicable to and defendants facing extradition let alone the requirement that an extradite provide a clear and convincing evidence of special circumstances. Why such strictness? The following is the consideration. The demanding Government when it has done all that treaty and law require it to do, is entitled to delivery of the accused on the issue of the proper warrant and the other Government is under obligation to make the surrender, an obligation which it might be possible to fulfill if release on bail were permitted. The enforcement of the bond, if forfeited would hardly meet the international demand, and the regaining of the custody of the accused obviously would be surrounded with serious embarrassment. [emphasis supplied] Of course the above is American Law but in my view it is good law. Generally all accuseds are invaluable suspects because until they are convicted they are presumed innocent. So even a fugitive criminal who is charged but not yet convicted in any foreign country, as in the case with applicant, is presumed innocent. However, bail is always considered on these very people presumed innocent the moment they are charged regardless of whether or not they will subsequent be convicted for that is another process conditions for bail, for those who manage to get bail, vary depending on various factors including the nature of the charge facing them. Now in the situation at hand, being charged with foregeries worth TZS. 2.2. billion or 110 million Belgian Francs and under extradition proceedings, cannot by all standards escape very stringent bail conditions; and for that matter one should thank his luck for getting bail at all.as was the case in this matter Mr Mwengela ’ s complaint on this cannot be justified.

TANZANIA PHARMACEUTICAL INDUSTRIES LTD v. DR. EPHRAIM NJAU (NUMBER 1)299 While it may be true that placing an accused into hands of his a prosecutors when it comes to granting bail, as Mwengela submitted (though I failed to trace the relevant authority which he simply cited as “ the case of Seif Shariff Hamad"), considering the fact that this is not an ordinary criminal matter I was not prepared to disturb the imposed B bail conditions but for one factor. The record shows that the Applicant has in between, been granted special release permits to travel outside Tanzania and has always returned. This is a positive pointer on his reliability on meeting bail conditions. For this reason condition four- reporting to the Regional Crimes Officer three times a week is hereby c set aside. However bail conditions one to three remain undisturbed. In conclusion the application for revision is hereby refused except to the extent indicated in respect of bail conditions. TANZANIA PHARMACEUTICAL INDUSTRIES LTD u DR. EPHRAIM NJAU (NUMBER 1) E COURT OF APPEAL OF TANZANIA ATARUSHA F (Lubuva, J.A.) CIVIL APPLICATION No. 5 OF 1996 (Application for execution of the decree from the judgment of the 'High Court of Tanzania at Arusha, Munuo, J., dated 23 August 1996, in Civil Case No.3 of 1993) Court of Appeal - Affidavits — Supplementary affidavit - Conditions for filing supplementary affidavit - Rule 46(3) of the Court of Appeal Rules of 1979. B Public Corporation — Specified Public Corporations - Public corporation declared a specified public corporation - Effects thereof — Sections 38(1) and 39 of the Public Corporations (Amendment) Act of 1993. Appeal - Legal issues on appeal - Whether a legal issue not raised at the trial i may be raised on appeal.