REPUBLIC v SEIF SHARRIF HAMAD 1992 TLR 277 (HC)

 

REPUBLIC v SEIF SHARRIF HAMAD 1992 TLR 277 (HC)

Court High court of Zanzibar - Zanzibar

Judge Mmila Rm (Ext. J)

18th September, 1992 E

Flynote

Criminal Practice and Procedure - Bias - Disqualification on judicial bias - Grounds

for disqualification .

Criminal Practice and Procedure - Application for presiding magistrate to withdraw

from F the case - Duty of the court.

-Headnote

In an application by the accused for an order that the presiding magistrate withdraw

from presiding over the case, the learned trial Resident Magistrate with extended

jurisdiction found that no meritous grounds were established for the order to G

withdraw to ensue.

Held: (i) Whether or not the presiding Magistrate should disqualify himself from

hearing a case on the ground of bias requires an objective appraisal of the materials

before H the court, and to say that a party has a subjective (albeit firm) apprehension

of bias is not of itself sufficient to warrant, or require, the disqualification of the

magistrate.

I (ii) the duty of the magistrate to disqualify himself for proper reasons is

matched by an equal duty not to disqualify himself save

1992 TLR p278

MMILA RM (Ext. J)

for proper reasons, and parties not to be encouraged to believe that, by an A

application for the disqualification of a magistrate, they can have their case heard by a

magistrate thought to be more likely to decide a case in their favour.

Case Information

Application dismissed. B

[zJDz]Judgment

Mmila, RM (Ext. J.): On September, 8, 1992 I heard the submissions of both sides in

this case which centered on whether or not I, the Regional Magistrate with extended

jurisdiction should disqualify myself from presiding in this case on allegations made

by C the accused person which are as well supported by his counsels, that he has

feelings which destine him to the conclusion that he has no confidence in me.

The defence's submission stemmed from a letter Ref. No. S.S.H/03/108/92 dated D

August 28, 1992 written by the accused person addressed to me personally but

forwarded to me by his defence counsels vide their letter Ref. No. Y.A.M/Z/92/15 of

September, 1, 1992. Both these letters were to the effect that I should disqualify

myself from hearing this case. To be precise, the learned defence counsels Ordered me

to E disqualify myself before September 4, 1992. Quite a strange order, is it not! The

learned state counsel strongly resisted the application.

The first point taken up by the defence is that the circumstances under which the

accused person was granted bail in 1991, especially the conditions which were

imposed clearly show that the case has been deliberately dragged into political

latitude which F is, they argued, unfair. They argued further that the conditions

which were imposed were principally intended to isolate the accused person from

participating in politics. They impressed that he being a long time politician, and

having once been the Chief Minister G of Zanzibar until he was expelled by the

ruling party, the accused person is entitled to benefit from political changes which

have swept the whole world and this country in particular. They contended that after

all these conditions were not even suggested by the prosecution side. They argued

that to the mind of a reasonable man, this situation H clearly shows that the

presiding magistrate with extended jurisdiction is biased.

Counter - submitting on the point, the state counsel challenged that the conditions

which were imposed by the court when the accused person was released on bail do

not at I all portray that there was any bias. Mr. Mtembei submitted that since the

case facing the

1992 TLR p279

MMILA RM (Ext. J)

accused person concerns matters of national security, condition (d) for example was

A rightly imposed. He also argued that it was not absolutely correct to say that those

conditions were imposed by the court single handedly because some of those

conditions were suggested by the defence side. Similarly, Mr. Mtembei submitted that

it is a known fact that those conditions were imposed by the court before the political

changes cited B by the defence were in sight, and that since those conditions have

never been amended, it cannot be said they were imposed intently to isolate the

accused person from participating in politics, therefore it is an unfounded ground that

by imposing those conditions the presiding magistrate is, to the view of fairminded

persons, biased. C

It is true, as was observed by Lord Justice Denning, M.R., in Janes v National Coal

Board [1957] 2 Q.B.55 at pg. 67 that:

D There is one thing to which everyone in this Country is entitled, that is fair

trial at which he can put his case properly before the judge ... No cause is lost until

the judge has found it so, and he cannot find it without a fair trial, nor can we affirm

it.

There is no dispute that we also subscribe to this great proposition. Equally great is E

the proposition that:

The honesty and intergrity of a judge cannot be questioned, but his decision

may be impugned for error either of law or fact F

see Breams Legal Maxims 9th Ed, by W.J. Byrne, Sweet & Maxwell Ltd pg. 61, Of

course, there are exceptions. So that an order to withdraw from presiding in a case

may be made, there must be sound reasons to the effect that it is expedient to the ends

of G justice that is should be made.

Whether or not the presiding magistrate should disqualify himself from hearing a case

on the ground of bias requires an objective appraisal of the materials before the Court,

and to say that a party has a subjective (albeit firm) apprehension of bias is not of

itself H sufficient to warrant, or require, the disqualification of the magistrate. The

test to be applied, by objective standards, is whether there is material before the

Court to support a conclusion of actual bias on the part of the magistrate or a

reasonable apprehension either by parties, or exaction by plain, sober, simple, and

stable men and women of I the society that he might not bring an impartial and

1992 TLR p280

MMILA RM (Ext. J)

unprejudiced mind to the resolution of the issues in the case. In other words, there A

must be keen grounds that reasonable suspicion exists, or rather there must be serious

justification for the alleged mistrust.

It must be remembered however, that the duty of the magistrate to disqualify himself

B for proper reasons is matched by an equal duty not to disqualify himself save for

proper reasons, and parties right not to be encouraged to believe that, by an

application for the disqualification of a magistrate, they can have their case heard by a

magistrate though to be more likely to decide a case in their favour.

The question I have to pose therefore is that; to the views of fairminded persons, can

C it be said that those conditions were imposed with intents to isolate the accused

person from political participations. Are there any grounds to show that reasonable

suspicion exists?

The accused person was granted bail in 1991 when the United Republic of Tanzania

D was still a single party state. Equally true is the fact that those conditions were not

suggested by the prosecution side, but as properly submitted by Mr. Mtembei, most of

those conditions were suggested by the defence counsels. To be particular, the court

added only one condition out of those which were suggested, that is condition (d). E

The Court had the discretion to impose any other conditions as it deemed fit, a fact

which has been admitted. In that the said conditions were imposed before the cited

political changes, and in as much as they remain unamended, it is quite absurd for the

F accused person to complain that their imposition was a measure taken by the court

single handedly to make sure that he was politically isolated, hence that the trial

magistrate with extended jurisdiction is biased. The suspicion is thus unreasonable.

As to why there had to be condition (d), the accused person, as well as his counsels G

are expected to know. As was submitted by Mr. Mtembei, the accused person is faced

with a charge bearing on national security matters, which is no secret that it is a

sensitive issue. Who knows what the accused had in mind by having those secret

documents, should it be proved that he had them? If at all the court is duty bound to

see that it balances the facts (materials) before it in all respects, who will therefore

accept the H contention that condition (d) was in the circumstances unreasonable?

Is it justifiable therefore to argue that the presiding magistrate has dragged the case

into political latitudes? I sincerely find that there is no material whatsoever to

convince me that I fairminded men and women of the society would have said those

conditions are capable

1992 TLR p281

MMILA RM (Ext. J)

of attracting them to think that there has been or there is bias on the part of the A

presiding magistrate. This ground is thus spineless as it has failed to stand on the

available facts.

The defence's second ground was that their client was embraced when an accusing

finger was pointed at him, and that the presiding magistrate was of the impression

that B the accused person was in breach of the conditions of bail even without being

heard. They added that after the prosecution had cited the occasion which was

reported in the Daily News of August 20, 1992, the presiding magistrate pointed out

that he also saw such news in the Express news paper, after which the statement that

the accused C person was provoking the court was echoed. They alleged therefore

that by holding that the accused person was breaching bail conditions before hearing

him, the presiding magistrate was wrong, hence that the accused person's feelings

that he has no confidence in the presiding magistrate holds water. D

Mr. Mtembei did not say whether or not a finger was pointed at the accused person

by the presiding magistrate. However, he said that it was a serious lie that the defence

were not heard, challenging that the remark came after all of them were heard, and

that he was not sure if the complaint was intended to suggest that the accused person

was to E speak on his own, which he said would have been unprocedural.

The general observation is that the allegations of the defence side and the accused

person in particular have been wantonly exaggerated for purposes best known to

them. To start with, I do not remember to have pointed a finger at the accused

person. F Even, had it been so, one would have expected them to make an instant

protestation so that the matter could have found its way into the record. They did not

do so. Again, they stressed that it was the most serious act the presiding magistrate did

which was G responsible to erode the accused person's confidence in the said

magistrate. If at all it was true and thus serious, why did they not file affidavits to that

effect? Is it proper in their good minds to bring such serious allegations in a form of

letters? I hastily observe that the so called serious act has been presented below the

standard expected of H them. One would have expected them to have filed affidavits

to show that the alleged act was actually committed and thus serious.

However, even if I were to admit that a finger was actually pointed to the accused

person, which I have said I do not remember, I dare say that it would not have been

fatal. It is clear that the reports contained in the Daily News of August 20, 1992 as I

well as the

1992 TLR p282

MMILA RM (Ext. J)

Express indicated that the accused person was in breach of conditions of bail. Those

A conditions were ordered by the court, and the court has the right to see that the

orders it makes are strictly followed. At the time the court imposed those conditions,

it did not venture a joke, the court meant a serious business. Since the court has

inherent power to see that its decisions are observed and strictly followed, it has an

equal right to B intervene whenever breaches are evident. Were it not so, the

existence of courts themselves would have been questionable.

The most awkward part of these allegations is their contention that the remark was

issued without giving chance to the defence to be heard. That is a huge lie! As C

correctly submitted by Mr. Mtembei, the remark was made after both sides were

heard, the record can tell. The remark referred to was versed as follows:

D Court: I am warning that pending the ruling which I will have to deliver, the

accused person must abide to the conditions which were laid down. The act of

contravening them is a sign of disrespect to the Court orders, indeed, an act of

provocation to the Court. E

Then came the order to the effect that ruling was to be delivered on September 4,

1992. With all due respect, I candidly revolt to the submission by the defence that the

remark was issued before they were heard. Seriously, basing on what I have quoted

above, their submission on the point was a deliberate huge lie. Perhaps the question

is; what F did they intend to achieve by such distinguished lie. Is it not to create the

non - existent bias on the part of the presiding magistrate? Is it what is expected from

officials of the court of their calibre? Advocates, as officials of the Court, have a prima

facie duty to G help the court reach justiful decisions on the footing of the law, a

task which can only be accomplished if they believe, and undertake to see that truth

is the yardstick. Not otherwise.

There are a number of other untruthful allegations which the defence counsels

swallowed H from the accused person without proper evaluations. There were high -

lighted by Mr. Mtembei in the course of his counter - reply.

In the first place, Mr. Mtembei argued that the accused person's allegation in his

letter that the court forced the Nairobi based lawyers to withdraw from defending

him was a lie, adding I

1992 TLR p283

MMILA RM (Ext. J)

that they did so on their own volition. The defence side did not respond to this A

allegation.

I entirely agree with Mr. Mtembei that the Nairobi based lawyers withdrew from the

case on their own volition. In essence, and as the record will support, those lawyers

made several futile attempts to deliberately mislead the court by forcing it into B

discussing its own decisions, something they know or, they ought to have known, was

unprocedural and/or ipso facto illegal. Where on earth did they hear such a practice

in respect of decisions of the kind? Not even in Kenya. Their conduct was a clear

example of disrespect to decisions of the court. This is because they knew, and were

canningly C adamant to appreciate that, if they felt dissatisfied with the decisions

this court had delivered, their only open forum was to proceed, by way of appeal, to

the Court of Appeal of Tanzania. Impatience could have been responsible to make

them blind to the laid down procedures. So that when one of them was stopped from

dragging the D court into what would otherwise have been grave misdirection, he

became suddenly vexed and decided to withdraw. The court had no other option but

to endorse the withdrawal. His colleague followed suit the next day. Under such

circumstances, where is the hand of the court on the stop they took? Is the defence

really justified to think E that they were actually forced out by the court? It would

be quite misleading were we to agree to the feelings of the defence on the point. Let

us agree that a spade will always remain a spade.

Similarly, Mr. Mtembei submitted that the accused person lied when he said in his F

letter that soon after Nowrojee had dropped out, he had no other counsel to defend

him and was refused time to look for another lawyer, Mr. Mtembei submitted that on

the day Nowrejee dropped out, Mr. Jaffar was still in the employment of the accused

person, and that he was not in court for reasons which were never disclosed. He G

insisted that since Mr. Jaffar was the one who had particularly suggested the hearing

dates to which Mr. Mtembei himself consented, it could not be said that the case

proceeded without allowing the accused to be represented. Again, there was no

response from the defence on this point. H

Once again, I agree with Mr. Mtembei that the position was as he submitted. After

Nowrejee had dropped out, Mr. Jaffar was still in the employment of the accused

person. His failure to appear in Court on that day was not backed by any reasons.

Since he was the person who had suggested the hearing date, and it being true that I

justice delayed is justice denied, the case had to proceed. Far

1992 TLR p284

MMILA RM (Ext. J)

from the fact that the accused untruthful when he said he had no counsel by that day,

A he was also untruthful when he said that he asked to be granted time so that he

could engage another lawyer and that his request was turned down. The truth is that

such a request was raised on the day that followed and he was granted time. It appears

that the B accused person, with due respect, is fond of fabrications. Let truth prevail.

Further, Mr. Mtembei, submitted that the accused person lied when he wrote in his

letter that he was favoured in that he was given seven weeks by the court in which to

prepare his reply to the submission which was made by the defence counsels. Mr. C

Mtembei submitted that he had asked for two weeks time in which to prepare his

reply but that the defence counsels asked the court to extend the time further on the

ground that they had to attend other matters in other courts there in between. Again,

the defence did not respond to this point. D

As submitted by Mr. Mtembei, the question of favouritism here is another such

connection. The truth is to be sought from the Court record. The relevant part is as

follows:

E Mr. Mtembei: I pray for the time in which to prepare myself to respond to

their arguments quite clearly. I have to conduct a research. Two weeks time will do.

Mr. Mchora: We agree that the arguments we have raised are quite serious and

we feel F that it will not be proper for him to rush to reply. We also agree that

delaying the rights is not proper. We have been given responsibilities of other matters

for example in Dar es Salaam. The two weeks' time he has requested will take us to

1.7.1992. I, personally will be on 2.7.1992 in the High Court at Mtwara and so is G

my colleague. On 13.7.1992 I will be in the High Court at Tanga together with

this colleague of mine. That will be up to 24.7.1992. We pray that more time will be

required. H We propose 5.8.1992 when we shall proceed on the day to day basis.

Mr. Mtembei: No objection. I

Order: Hearing on 5 - 11.8.1992.

1992 TLR p285

MMILA RM (Ext. J)

Having attended to what exactly transpired on that day, I resolutely endorse the A

submission by Mr. Mtembei that once again, the accused person was untruthful when

he alleged that he was favouredly granted seven weeks in which to prepare himself.

The accused person know, or ought to have known that the hearing of the case was

fixed on 5.8.1992 on the request of his own lawyers, not because the court intended to

give B more time to Mr. Mtembei so that he could thoroughly prepare himself as

complained. After all, the ceaseless extortion of the court has always been to do

justice. It would not have been considered as something wrong even where for

example, the Court would have granted him such time. It appears that, by such

numerous connections, the C accused person is all set to mud sling the courts' good

image into peoples eyes. No fairminded persons are expected to say, on those

allegations, that the presiding magistrate was in any way biased.

To follow suit is their allegation that the presiding magistrate has formed sort of D

friendship with the state counsel. Their allegations are based on the erroneous belief

that the state counsel was supplied with proceedings by the presiding magistrate. Mr.

Mtembei told the court that he applied for the proceedings to the Registrar and that

he was supplied the said proceedings. He also revisited the administrative practice

earlier E on explained in the Court as to how a party may secure the proceedings.

With respect, this complaint is similarly baseless in that what Mr. Mtembei told the

court is the truth. The presiding magistrate had no hand in supplying the said

proceedings to F the state counsel as all such matters are in the hands of the

Registrar. It is equally true that I thoroughly explained this in one of the many rulings

I have so far written, but that once again, the defence is illegally questioning my

decision on the point. I observed the other time that the accused person himself has

on several occasions secured G proceedings of this case at various stages. He knows

better than I do how he obtained them. In that I was not the one who supplied them

to him, most probably he was supplied them by the Registrar. Then why not the

prosecution side? How does the questions of friendship between the presiding

magistrate and the state counsel arise? H Is the defence trying to imply that it is

justice to supply the proceedings of this case to them, but that it is injustice when

supplied to the state counsel? What is the supposed rationale for their allegation on

the point? It is on this basis that I find it quite ridiculous to be told that because the

state counsel was supplied with proceedings, then the I presiding magistrate has

established sort of

1992 TLR p286

MMILA RM (Ext. J)

friendship between him and the state counsel. It is time all of us know that it costs A

nothing to tell truth, Reality must always be faced courageously.

Further, in his submission, Mr. Mtembei told this court that to him, the various

applications which were lodged and determined right from the time when the case

was B transferred to the presiding magistrate to date are indicative that the accused

persons' feelings were pre-hatched. He said that on September, 4, 1991 one of the

accused's counsels Mr. Jaffar wanted to know if the presiding magistrate had any right

to hear this case, a remark which was followed by an unsuccessful application to the

effect that C such magistrate had no jurisdiction to hear and determine this case. Mr.

Mtembei added that their appeal to the Court of Appeal of Tanzania failed on

technicalities.

Mr. Mtembei submitted similarly that the defence filed another application before

Dahoma, J., in which they asked for the trial magistrate to be disqualified, the D

application was refused. He added that this was followed by another such application

which was lodge in the High Court in Mainland Tanzania. Again, the application was

refused.

Mr. Mtembei submitted that on the basis of the trend of those applications he was E

quite sure that the arguments currently raised by the defence are baseless, only that

their interest has always been to make sure that the case does not proceed to hearing,

most probably because the accused person has no reasonable defence to offer. Mr.

Mtembei asked for the application to be dismissed. F

Judging from what has been taking place right from when this case was transferred to

the presiding Regional Magistrate with extended jurisdiction, one cannot avoid a

thrust support to Mr. Mtembei's submission that the accused person's feelings were

prehatched so that the case may keep on dragging in court. I may add that may be G

the accused person intends that this particular magistrate should not preside, which

will connote that the accused person is after a magistrate of his own choice. This

cannot be accepted. Otherwise, how does one explain the fact that the accused

person, with the aid of his counsels, keeps on raising the same matters which had

been adjudicated H upon? Or rather how does one explain those applications which

were based on connected facts such that which was heard and determined by his

Lordship justice Dahoma as well as that one which was filed in the High Court at Dar

es Salaam? I What about the various falsified allegations which have been discussed

above? It is on this basis that I agree with Mr.

1992 TLR p287

MMILA RM (Ext. J)

Mtembei that the intention of the accused person has always been to frustrate the A

progress of the case camouflaging this intention on such false allegations. The reasons

for doing so are best known to the accused person himself.

I must make two observations here. The first one is that by dictating a deadline that

the presiding magistrate should beseech to quietly divest himself of this case before

the B 4th September, 1992, the learned defence counsels gave an order to the

presiding magistrate to disqualify himself. Had they the right to make such an order?

Surely, they had no such right. That was a disrespect of the highest order to the

presiding magistrate C and courts of justice in general. Literally, they meant they did

not even want to receive the ruling the presiding magistrate was expected to deliver

on 4th September, 1992. In fact, that was not the conduct expected from the court

officials of their class.

Secondly, the learned defence counsels expressed unambigous support to the D

accused person's allegations levelled against the presiding magistrate. However, as

amply demonstrated above these allegations have turned out to be false. The question

is; why did the defence counsels support the allegations without conducting any

inquiry as to their truth? They could have easily ascertained most of these allegations

by E examining the proceedings, for which the Registrar could have been contacted

by them. In that they did not so ascertain the truthfulness of those allegations, their

act of supporting them places them in the same footing with the accused person that

they also unjustifiably made misrepresentations which depict hatred and

preconceived and F malicious attacks on the presiding magistrate. That is why they

even ventured to say that the words "This is yet another application ..." appearing in

one of my rulings mean I am supporting the prosecution side. Do those words really

connote taking a side? Justifiably, these words mean there have been several other

applications, and this is G just one of them. That is why, in my observation, their

action has been a more attempt by them all to soil and/or tarnish my name and

unjustifiably poison public opinion, which is indeed not to the broad interests of the

fairminded men and women of the society. H

It is on this basis that I dismissed this application on September, 8, 1992.

I Application dismissed.

1992 TLR p288

A