IN THE HIGH COURT TANZANIA
AT BUKOBA
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
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 6th
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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