DIRECTOR OF PUBLIC PROSECUTION v PETER ROLAND VOGEL 1987 TLR 100 (CA)

 

DIRECTOR OF PUBLIC PROSECUTION v PETER ROLAND VOGEL 1987 TLR 100 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Kisanga JJA

30 September, 1987

Flynote

Evidence - Evidence not produced in court of first instance - Whether admissible on appeal.

Judicature and Application of Laws Ordinance, Cap 453 - Adversarial system. Its modification in Tanzania.

Extradition Act, 1965, - Nature of extradition proceedings.

-Headnote

The District Court of Ilala and the High Court, on appeal, dismissed extradition proceedings instituted against the respondent because the prosecution had tendered evidence which was found to be unauthentic and of no evidential value. On appeal the appellant adduced new evidence concerning the existence of extradition arrangements between the United Republic of Tanzania and the Federal Republic of Germany. The respondent submitted that the Court of Appeal should not, in an adversarial system, interfere with findings of lower courts on the basis of evidence which came to light subsequent to conclusion of proceedings in the lower courts.

Held: (i) The court is not justified in interfering with findings of the lower courts in order to enable the prosecution to adduce evidence which it had no opportunity to produce at H the time of the proceedings in the court of first instance;

(ii) the adversarial system in this country has undergone considerable modification in its application under the proviso to s.2 of the Judicature and Application of Laws Ordinance, Cap. 453; 1987 TLR p101

(iii) by virtue of section 7 of the Extradition Act, 1965, extradition proceedings are a preliminary inquiry and not a trial;

(iv) in a preliminary inquiry, as intended by Parliament up to 1965, the role of the Magistrate was not that of an umpire or referee, but that of an active participant in the inquiry into the matters at hand.

Case Information

Appeal allowed.

Cases referred to:

1. Salehe Mahamburi v Noseni Mrinda [1969] HCD n. 276 C

2. John Magendo v N.E. Govani [1973] LRT No. 60

Shio, for appellant

Marando and Maira, for respondent

Judgment

Nyalali, C.J., Makame and Kisanga, JJ.A.: This is an appeal by the Director of Public Prosecutions in respect of extradition proceedings which originated in the District Court of Ilala District at Kisutu, Dar es Salaam. The Director of Public Prosecutions E hereinafter known as the D.P.P. is represented before us by Mr Shio, learned State Attorney whereas the respondent, namely one Peter Roland Vogel of German nationality, is represented by two advocates, that is Messrs Marando and Maira. On the 28th February, 1987 the Respondent was brought before a Resident Magistrate in F the District Court of Ilala District at Kisutu, Dar es Salaam for extradition proceedings under the Extradition Act, 1965. He was then remanded in custody. Six days later on the 6th of March, 1987, the case came up for hearing but it could not proceed to hearing because preliminary objections were made by the Advocates for the Respondent, G concerning the legality and the jurisdiction under which the Respondent was brought before the court. After considering those objections, the learned Resident Magistrate, Magessa PRM, ordered the prosecution to show compliance with the procedural requirements and whether there were any binding extradition arrangements between the H United Republic of Tanzania and the Federal Republic of Germany to enable the magistrate to proceed with the hearing of the extradition proceedings. In order to enable the prosecution to do so, the magistrate adjourned the case to the 9th March, 1987.

When the proceedings resumed as fixed on the 9th March, 1987, both the court and the I parties were satisfied that the procedural requirements for bringing the Respondent before the magistrate had been complied with. However, neither the court nor the Advocates for the Respondent were satisfied on the preliminary issue of existence of a legally binding extradition arrangement between the two countries. The material produced by the prosecution side consisted of firstly, an uncertified diplomatic Verbal Note dated 14th April, 1964 from the Embassy of the B Federal Republic of Germany at Dar es Salaam, addressed to the Ministry of External Affairs and Defence of the United Republic of Tanzania.

Secondly, the prosecution cited various legal matters both under domestic and international law in support of its contention. At the end of the day in court, the prosecution case turned on, among other C things, the authenticity of uncertified diplomatic Verbal Note. The learned resident magistrate found it to be of no evidential value. Consequently the preliminary objection was upheld and the proceedings were dismissed and the Respondent was discharged.

The D.P.P. was aggrieved by the decision of the learned resident Magistrate and he appealed to the High Court. The High Court, Mapigano, J., however concurred with the findings of the lower court, and dismissed the appeal. The D.P.P. was further aggrieved by the decision of the High Court hence this appeal to this court.

Three grounds were submitted by the D.P.P. in support of the appeal. Mr Shio, in answering questions from members of this court in the course of the hearing of the appeal informed the court that new evidence concerning the existence of extradition arrangements between the two countries had come to light subsequent to the conclusion of the proceedings in the two courts below. The evidence consists of certified photostatic copies of diplomatic exchange notes between the United Republic of Tanzania and the Federal Republic of German made between 11th December, 1963 and G 14th April, 1964, that is, after the second anniversary of Independence and before the commencement of the Extradition Act, 1965.

The important issue before this court is whether we should interfere with the concurrent finding of the two courts below on the basis of the evidence which is said to have come to light subsequent to the conclusion of the proceedings in the two courts below. Advocates for the Respondent have submitted that this court cannot do so because it was entirely due to the fault of the prosecution that such evidence was not available to the court of first instance. However under the adversarial legal system which applies to the United Republic of Tanzania, the court cannot be expected to take the initiative to obtain A evidence since to do so would make the court appear to be prosecuting the case. On the other hand Mr Shio, learned State Attorney, has urged the court to interfere with the findings of the two courts below to enable the prosecution to adduce the evidence which it had no opportunity to produce at the time of the proceedings in the court of first instance.

With due respect to Mr Shio, we do not think that this court would be justified in interfering with the findings of the two courts below on the grounds advanced by him. The record of these proceedings clearly shows that the prosecution had ample opportunity to seek and obtain the necessary evidence either form the Ministry of Foreign Affairs of this country of from the Embassy of the Federal Republic of Germany. It would seem that the failure to obtain the necessary evidence was due to a mixture of incompetence, negligence and lack of seriousness on the prosecution side.

This unsatisfactory state of affairs appears to have persisted even in respect of the proceedings before this court, as illustrated by the fact that the existence of the relevant diplomatic exchange of notes became known to the court only in answer to questions E asked by members of this court. Had we not asked these questions, this appeal would most likely have been concluded without the court being aware of the alleged diplomatic exchange of notes which took place between the two countries before the enactment and commencement of the Extradition Act, 1965.

However, the lack of merits in the ground advanced on the side of the D.P.P. does not necessarily mean that the appeal fails. We have to consider the totality of the case in the interests of justice. We start with the submissions made by the learned advocates for the Respondent. With due respect we do not think that the grounds advanced on the respondent's side constitute good reason to prevent this court from interfering with the findings of the two courts below. Although it is correct to say that we have an adversarial legal system in this country, it is important to remember that the adversarial system in this country has undergone considerable modification in its application. This H modification can be seen in a number of authorities decided by the High Court. We only need to cite two of these authorities to illustrate the position.

The first case is that of Salehe Mahamburi v Noseni Mrinda [1969] (HCD). 276. In that case, Georges, C.J. as he then was, stated:

Looking at the matter from the point of view of English law, I would agree with the view A expressed by the District Magistrate. Proof of title here is, however, quite a difficult thing where there are no deeds showing ownership of customary land and seldom any documents evidencing a transfer. To decide cases on the basis of onus of proof, as in England, is not B desirable and would certainly not be understood. ... All effort should be made, therefore, to have all the facts brought out, rather than to depend on rules as to burden of proof - which operate fairly when legal advice is available to both sides, but not otherwise.

The second and more relevant case is that of John Magendo v N.E Govani [1973] LRT. 60. In that case Biron, J. as he then was stated:

It is deplorable that any Bench-holder could treat court proceedings before him as a football match, with doubtless, the parties themselves being the ball and kicked around by their counsel, however inept they may be.

It is the duty of a judge or magistrate conducting a case, to try the case and determine it on its merits doing justice to each party according to law. As remarked by Lord Godard, C.J. In R. v David Flynn, 52 Cr. App. R. 17. "Criminal trials are not a game. The object of a criminal trial is F to acquit the innocent and convict the guilty". Likewise the object of a civil trial is to do justice to the parties and determine the dispute between them judiciously in accordance with the law. It cannot be overstressed that it is the duty of a magistrate trying a case, not to sit back as a spectator or, to use the magistrate's terminology, a referee, and watch the proceedings, but to try the case before him, whether a criminal or a civil one.

And in order to arrive at a just decision, in civil case, the magistrate is expressly empowered by the Civil Procedure Code to summon witnesses of his own motion, and in criminal cases, he is not only empowered to summon witnesses of his own motion, but it is mandatory for him to do so, if it appears essential to the just decision of the case. For the benefit of the magistrate it is pointed out that failure by a court to call witnesses when the justice of the case required it, has resulted  in the court's decision having been reversed on appeal to a superior tribunal.

These decisions of the High Court of Tanzania with which we totally agree, illustrate the manner in which the High Court judges of this country have been exercising their powers as granted by the proviso to section 2 of the Judicature and Application of Laws Ordinance, Cap. 453, by applying English law, "Only so far that the circumstances of Tanzania and its inhabitants permit, and subject to such qualification as local circumstances may render necessary".

There is another reason why the objections raised by Advocates for the Respondent are insufficient to prevent this court from interfering with the findings of the two courts below. It is apparent that by nature extradition proceedings by virtue of section 7 of Extradition Act, 1965, are a preliminary inquiry and not a trial.

Obviously, the preliminary inquiry intended by Parliament under section 7 of the Act is that which was in existence at the time of the commencement of the Act, and not what is in use today after major amendments to the law, were made in subsequent years resulting in a purely formal E preliminary inquiry. In a preliminary inquiry as intended by Parliament up to 1965 the role of the magistrate was not that of an umpire or referee, but that of an active participant in the inquiry into the matters at hand.

We have asked ourselves, whether in these extradition proceedings, the learned Resident Magistrate fully discharged his duties in conducting the inquiry into the matters that were raised before him. We have already mentioned that an uncertified copy of a diplomatic Verbal Note was tendered by the prosecution in the course of hearing the preliminary objection made by the Advocates for the Respondent. We agree with both the learned Resident Magistrate, and Mapigano, J. that this unauthenticated diplomatic Verbal Note has no evidential value. But, that does not mean that the document has no significance whatsoever in the inquiry. In proceedings of this nature, such document ought at least to have put the magistrate on notice that proper and relevant evidence H could be obtained either from the Ministry of Foreign Affairs of the United Republic of Tanzania, or from the country which was seeking extradition of the Respondent. The significance of this unauthenticated document becomes apparent, when it is noted, that it makes reference to earlier diplomatic exchanges between the two countries, concerning the establishment of extradition arrangements, and that, this alleged exchange of diplomatic notes occurred after the expiry of the period of two years stipulated under what has come to be known by some international jurists as the Nyerere Doctrine State Succession, but before the enactment of the Extradition Act, 1965. We are satisfied that a reasonable tribunal of inquiry, having been put on notice about the above mentioned diplomatic exchange of notes, would not conclude, without sufficient inquiry about the matter, that no legally binding extradition arrangements exist between the United Republic of Tanzania and the Federal Republic of Germany. This means that the learned Resident Magistrate did not fully discharge his duties according to law when hearing the preliminary objection raised by the Advocates C for the Respondent. We shall therefore have to interfere with the findings of the two courts below.

Before we do so however, we feel that we shall be failing in our duties if we do not express our dissatisfaction with the manner in which the prosecution handled these proceedings. The prosecution lacked seriousness and purpose. This attitude is aggravated by the fact that only one state attorney appeared to argue the appeal against two defence counsels before us. Two state attorneys appeared in the court of first instance, that is, Mr Shio and Miss Philip, and three state attorneys appeared in the High Court on appeal, that is Mr Shio, Miss Philip and Mr Mwanyika. We do not know whether the reasons for failure to have more than one state attorney appeal before us was due to shortage of experienced state attorneys in the Attorney General's Chambers. Whatever be the case, we do not think that it would have been impossible to find at least F one state attorney to join Mr Shio to assist this court reach a just decision. We would wish the Attorney General to take note of these expressions ofour disapproval of the conduct on the prosecution side, and to ensure better performance in future in the interests of justice and our nation.

In the final analysis, we allow the appeal, quash the findings of the two courts below, and direct that the Resident Magistrate continues to hear the preliminary objection in the light of the new evidence and any other relevant matters, and depending on the outcome of the preliminary hearing, to conclude the proceedings according to law. We further order that the Respondent, Peter Roland Vogel, be apprehended forthwith, and he brought before the Resident Magistrate for purposes of this inquiry.

Appeal allowed.

1987 TLR p107