Elias Manyenye v. Republic, Cr Rev no 2 of 2002 (armed robbery)

IN THE HIGH COURT TANZANIA

AT BUKOBA

(ORIGINAL JURISDICTION)

HC. CRIMINAL REVISION CASE NO. 2/2002

(Arising from Biharamulo District Court Criminal Case No. 12/2002

Before: I.J. Katela Esq.SDM)

ELIAS MANYENYE…………………………………..……….….APPLICANT

VERSUS

THE REPUBLIC…………………………………………..….…RESPONDENT

RULING

LUANDA,J.

         In the District Court of Biharamulo Elias Manyenye (hereinafter referred to as the Applicant) and seven others were charged with “armed robbery” c/ss.285 and 286 of the Penal Code.

         At the close of the prosecution case, three accused were acquitted; they had not case to answer.  The remaining accused, including the Applicant were called to defend themselves.  They gave their defence and called a number of witnesses.  At the end of the trial, save the Applicant, all the remaining accuseds were acquitted.  The Applicant was convicted as charged and sentenced to 30 years imprisonment.  The conviction and sentence were passed on 11/4/2002.

         On 12/6/2002 the Applicant filed this Misc. Criminal Revision application.  He filed the application by way of chamber Application supported by an affidavit.  The application was made under SS.372 and 373 of the Criminal Procedure Act, 1985 and also under SS.43 (1) of the Magistrates’ Courts’ Act, 1984.  On 27/6/2002 the Applicant through Mr. Katabalwa, learned Counsel filed an appeal.  Realizing that the two i.e. an appeal and revision filed by the Applicant himself cannot be filed simultaneously, Mr.  Katabalwa withdrew the appeal.  This ruling is in respect of the revisional proceedings.  In this matter the Republic is represented by Mr. Vitalis, learned State Attorney.  Mr.Vitalis filed a counter affidavit.

         When the matter was called on for hearing Mr. Vitalis told the court that the affidavit attached along with the chamber application is incurable defective in that no oath was taken at all and it was not shown where it was taken.  Mr. Kababalwa conceded.  But he told this court that the court should ignore the entire application and revise the proceedings suo motto as is provided for under SS 372 and 373 of the Criminal Procedure Act, 1985 and S.43 (1) of the MCA, 1984.  He prayed the court to revise the proceedings.

         Mr. Vitalis on the otherhand maintained that the affidavit which is evidence is incurable defective.  It goes contrary to S.392 of the CPA. 1985 and S.8 of the Notaries Public and Commissioner for Oath Ordinance, Cap 12.

         As regards to SS.43 (1) of the MCA, 1984 Mr. Vitalis said they are not applicable.  S.43 (1) have nothing to do with powers to revise criminal proceedings at the instance of the party; whereas S.44 (1) deals with inspection and not revision.  He went on to say even SS.372 and 373 is not applicable either as those powers are exclusively vested with the court.  The court can do it suo motto.  It cannot be done at the instance of a party to the proceedings as a revision is not a right of an accused/convict.  The accused has a right of appeal under S.359 (2) of the CPA, 1985.  And revision is not an alternative to an appeal.  Had the Parliament intended so it could have stated so in very clear words as in civil cases where a party can apply for revision under S.44 (1) (b) of the MCA. 1984.  He prayed the application be struck out.

         In reply Mr. Katabalwa said S.44 (1) (a) &(b) of the MCA, 1984 does not state on how to act.  He submitted that ss.372 & 373 provide the manner.  A party can apply, he submitted.  He conceded that a revision is not an alternative to an appeal.  But he submitted that where an appeal has been blocked by a legal process an party can resort to revision.  He did not elaborate.

         The question for decision in this ruling is whether a party to a criminal proceeding can apply as a matter of right for revision in this court under S.44 (1)(a) of the MCA, 1984  and SS.372 and 373 of the MCA, 1985 after the trial had been concluded by a subordinate trial court.

         S. 44 (1)(a) of the MCA,1984 reads:

44 (1)          In addition to any other powers in that     behalf conferred upon the High Court (a) shall exercise general powers of supervision over all district courts and courts of a resident magistrate and may, at any time, call for and inspect or direct the inspection of the records of such courts and give such direction as it considers may be necessary in the interest of justice, and all such courts shall comply with such directions without undue delay.

And S. 372 (1) of the CPA, 1985 provides:-

372 (1)       The High Court may call for and examine the record of any criminal proceedings before any subordinate court of the purpose of satisfying itself as to the correctness, legality or propriety of finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

                  

                   (2) N/A

S.373 (1)   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,the High Court may

                   (a) in the case of conviction, exercise of the powers conferred on it as a court of appeal by sections 366,368 and 369 and may enhance the sentence;

                   (b) in the case of any other order other than an order of acquittal, alter or reverse such order, save that for the purposes of this paragraph a special finding under sub-section (1) of section 219 of this Act shall be deemed not to be an order of acquittal.

         I have reproduced the section to see whether it confers a party to an criminal proceedings a right to apply for a revision.  S.44 (1) (a) of the MCA, 1984 and S.372 (1) of the CPA. 1985 are very clear; they do not confer as a matter of right to a party in criminal proceedings to apply for revision.  S. 373 (1) of the CPA, 1985 also does not confer such right.  But one may argue the words “which otherwise comes to its knowledge” should be constructed to include an application by a party to a criminal proceedings, that is not a proper way of construction the section.  My understanding of those words is that they are to be construed ejusdemgeneris with those preceding them.  The words preceding them do not refer to a party in a criminal proceeding.  It follows therefore that the above quoted section do not confer a party to a criminal proceeding to apply for revision as a matter of right.

         But Mr. Katabalwa requested this court to revise the proceedings by ignoring the entire application.  In other words he is asking this court revise the proceedings suo motto.  If I ignore the entire application, what is the basis of going through the records?  To put it differently there must be some information for the court to act.  As no such information is available it is not proper to act on that request.

         In fine as the application is not proper before the court, the same is struck out..

B.M. Luanda

JUDGE

AT BUKOBA

16/11/2004

Delivered on court this 6^th day of December, 2004 in presence of the Applicant and Mr. Vitalis State Attorney for the Republic.

P.A. Lyimo

DISTRICT REGISTRAR

16/12/2004

Right of Appeal explained.

P.A. Lyimo

DISTRICT REGISTRAR

16/12/2004

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