NURDIN AKASHA v REPUBLIC (II) 1995 TLR 246 (CA)

 NURDIN AKASHA v REPUBLIC (II) 1995 TLR 246 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Kisanga JJA, Mfalila JJA and Lubuva JJA

B Criminal Appeal No 190 of 1994

October 23, 1995

(From the decision of the High Court of Tanzania at Dar es Salaam, Chua, J) C

Flynote

Administrative law - Prerogative orders - Order of Preventive detention made and

effected after an accused's acquittal by Court - Whether such detention legal.

-Headnote

D This was an appeal against the decision of the High Court which upheld the

legality of the appellant's detention under the Preventive Detention Act and

dismissed an application for habeas corpus. The legality of the detention was

challenged in the High Court as it was effected immediately after the appellant had

been acquitted by the Court. It was argued that the Government, by ordering the E

detention of the appellant, was pursuing criminal and administrative measures at the

same time.

Held:

(i) Since at the time of detaining the appellant court proceedings had

terminated, there was no interference with court decisions;

F (ii) The appellant was properly detained.

Case Infomation

Appeal dismissed.

Cases referred to:

(1) DPP v. Mehboob Akber Haji and Others CA Crim Appeal No 28 of 1992.

(unreported) G

Dr Lamwai for the appellant.

Sengwaji for the respondent.

[zJDz]Judgment

Mfalila, JA: delivered the following considered judgment of the Court: H

In the Resident Magistrate's Court at Dar es Salaam, the appellant Nurdin Akasha was

charged with three counts under the Economic and Organized Crime Control Act

1984. The charges involved unlawful importation and possession of dangerous drugs

and corrupt transactions. The drugs involved were 1,096,719 kilograms of I

1995 TLR p247

MFALILA JA

Methaqualone alias Mandrax valued at Shs 4,997,500,000/=. The trial Resident A

Magistrate found and held that the charges in all three counts had not been proved

beyond reasonable doubt and acquitted the appellant with an order that he be

released from remand custody. But he was arrested soon after leaving the court

premises and taken to the central police station. He was served with a detention B

order. Since then he has been detained under the Preventative Detention Act.

Following this detention, a habeas corpus application was lodged in the High Court

seeking the following directions and orders:

(1) That Nurdin Akasha having been acquitted by the Dar es Salaam C

Resident Magistrate's Court (Matui, PRM) on 20/5/94, the immediate detention of the

said Nurdin Akasha on the said 20/5/94 infringed his rights as a freeman and this

infringed the constitution of the United Republic of Tanzania. D

(2) That the said illegality be remedied by this honourable Court nullifying

the detention of Nurdin Akasha.

(3) That Nurdin Akasha be released immediately.

These were the three orders and directions contained and sought in the E

application filed on behalf of the appellant, and this application was supported by the

affidavit of one Shamsa Abdulrahman Niran who described herself as the appellant's

aunt. After the respondent republic had filed their counter affidavit and a reply

thereto had been filed by the appellant, the hearing of the application was set down.

But what is clear from the record of proceedings is that the nature of the F

application took a completely different turn. Instead of proceeding on the basis of the

application before it, the Court was misled into considering the constitutionality of

the act under which the appellant was detained. After hearing arguments from G

both sides, the learned judge held that although the Preventive Detention Act has a

number of shortcomings, i.e. a detainee is not given the right to be heard, still it had

sufficient safeguards to pass the test of constitutionality. Accordingly he held that the

Act was constitutional and that therefore the appellant was validly detained under it.

The appellant lodged this appeal complaining in the substantive ground H that the

learned High Court Judge erred in law in holding that the Preventive Detention Act

had sufficient safeguards and as such was constitutional.

During the hearing of this appeal, Dr Lamwai, learned counsel who appeared for the

appellant, submitted forcefully on the consti- I

1995 TLR p248

MFALILA JA

A tutionality of the Preventive Detention Act. He argued that the Act in

unconstitutional because it lacked basic safeguards before the powers under it are

invoked and that if the detainee has a right to make any representations, these are

limited to the formalities and procedures not the reasons for such detention. Mr

Sengwaji, learned Principal State Attorney, argued to the contrary on the behalf of

the Republic. B

In our view these arguments are neither here nor there because as we have indicated

the High Court was misled and went astray. In the result it went off course and

decided an issue which was not formally before it, leaving the formal prayers in the

application unanswered. C

As already indicated, the application before the High Court was for the issuance of

directions in the nature of habeas corpus that:

D (1) Nurdin Akasha having been acquitted by the Dar es Salaam Resident

Magistrate's Court (Matui, PRM) on 20/5/94, the immediate detention of the said

Nurdin Akasha on the said 20/5/94 infringed his rights as a freeman and this infringed

the constitution of the United Republic of Tanzania.

E (2) The said illegality be remedied by this honourable Court nullifying the

detention of Nurdin Akasha.

(3) Nurdin Akasha be released immediately.

F In all the three prayers asked for, none of them challenge the constitutionality of

the Act under which the appellant was detained. They challenge the legality of his

detention because such detention was ordered after the appellant was acquitted by a

court of law and that therefore such detention infringed his rights as a freeman, the

rights which are protected by the constitution. This was the basis of G the

application before the Court and that therefore because the detention is illegal for the

aforementioned reasons, the Court was asked to remedy the situation by nullifying

the detention order and ordering the immediate release of the appellant. The

constitutionality of the Act is raised for the first time in the reply to the counter

affidavit. This part of the reply therefore was just hanging in the air for it H was not

supporting anything in the original application. In the course of his submission in the

High Court, Counsel for the appellant asked for the following prayers which played a

major role in misleading the Court:

(a) That the Court can under s 390(1)(b) of the CPA make a I

1995 TLR p249

MFALILA JA

finding that the applicant is being illegally and improperly detained

and A order that he be set at liberty immediately.

(b) That whoever has the custody of the applicant be ordered to produce

him in Court.

(c) That the Court declare the Preventive Detention Act unconstitutional

and void to be struck off the statute book. B

It is clear then that while prayers in (a) and (b) above are contained in and supported

by the application before the Court, the prayer in (c) seeking to have the Preventive

Detention Act declared unconstitutional is not part of the original application and the

affidavit supporting it. Indeed, Dr Lamwai's reply in Court confirms this when he

submitted: C

'However we concede that there was a preventive detention order signed on

20/5/94. We concede that our appellant was detained, what we are not conceding is

the legality of the President to use is powers under Section 2 of the Preventive

Detention Act to counteract the decision of the Court.' D

This was a correct statement of the issue before the Court based on the application

before it. As a matter of fact the question of the constitutionality of the E Act being a

new issue was raised by Mr Naali, counsel for the respondent Republic. In his

submissions in the High Court, he said:

'The chamber application and the affidavit in support which were drawn up

by Kashumbugu F advocate and the counter affidavit drawn up by myself have

covered all matters regarding the legality of the detention under the Preventive

Detention Act that:

(1) It amounts to an infringement of the basic rights of the applicant

(2) That the executive interferes with the judiciary. G

These are the matters at issue. In reply to the counter affidavit drawn up by Dr

Lamwai, there is raised a fresh issue and that is the issue of constitutionality. This

amounted to taking the Court by surprise and he is estopped from bringing matters

which were not in the affidavit. The Court should not consider the question of

constitutionality of the Preventive Detention Act. Dr H Lamwai is estopped from

bringing the matter. This is because it was not in the original affidavit of the

applicant.'

In answer to this objection, Dr Lamwai told the Court that in his submission the

references to the constitution in the application to I

1995 TLR p250

MFALILA JA

A the effect that the applicant's detention infringed the constitution of the United

Republic raised the issue of the constitutionality of the Preventive Detention Act

under which the detention was ordered. The learned judge did not make any ruling

on this but in our view Dr Lamwai's reply had no validity. In the application, it is B

stated that the detention of Nurdin Akasha on 20 May 1994 infringed his rights as a

freeman and this (i.e. the infringement of rights) infringed or was in violation of the

C constitution of the United Republic of Tanzania. The Court was therefore asked to

quash this detention which infringed the constitutional rights of the appellant and

order his immediate release. The Court was being asked to order the immediate

release of the appellant not because the Act under which he was detained is

unconstitutional, but because the detention was ordered following his acquittal by a

court of law and that this violated his basic rights to personal freedom under the D

constitution. In other words what was being challenged by the application was not

the constitutionality of the Act used to detain the appellant, but the legality of his

detention following an acquittal by a court of law. It is therefore our task to bring the

whole case back on track and determine the appeal solely on the basis of the

application before the High Court - namely that the application in the High Court

was in the nature of a habeas corpus. E

In support of his argument that the Preventive Detention Act was wrongly used after

a court order acquitting the appellant, Counsel cited the decision of this Court in DPP

v Mehboob Akber Haji and Others (1) in which this Court stated that the F

Preventive Detention Act was not meant to supplement the Criminal Law and that

the two should not be used in tandem as it were. In Dr Lamwai's view, this is what

the Government did in this case, they were pursuing criminal and administrative

measures at the same time. Mr Sengwaji countered this argument by G

distinguishing the two cases. In his submission, the Mehboob case is different from

the present case in that in the Mehboob case the Government invoked administrative

measures to detain the accused while their case was pending in court. In the present

case the Court proceedings had been terminated by the acquittal of the accused. H

We are satisfied that this distinction is valid. In the Mehboob case the decision to

detain the accused was taken following the court order releasing them on bail. Thus

the accused were detained while their case was pending in court. The detention order

was issued to counteract the court order releasing them on bail. In the present case

the accused was arrested and detained after his case was termi- I

1995 TLR p251

MFALILA JA

nated in his favour. There was thus no case pending against him when he was A

picked up by the police as he left the court house. It cannot therefore be said that

parallel methods were being used simultaneously, so as to bring this case within the

principles enunciated in the Mehboob case. Considering what the appellant's B

mother had done, i.e. escaping from hospital while under guard, and the dubious

circumstances in which the appellants was acquitted, there were genuine fears that

the appellant would escape before the state filed the appeal against his acquittal.

In the circumstances we are satisfied that the appellant was properly detained and

this fact did not conflict with the Court orders. There was no interference with court

C decisions as the courts had at that stage terminated the proceedings against the

appellant. This is the basis on which the High Court should have made its decision in

upholding the appellant's detention rather than on the constitutionality of the Act

which was not before it. It was brought in through the back door. Whether D or not

the Preventive Detention Act is constitutional will have to await a relevant occasion.

Accordingly we dismiss the appeal in its entirety. E

1995 TLR p251

F