MAGESA s/o MJUNJA v THE REPUBLIC 1986 TLR 10 (HC)

 

MAGESA s/o MJUNJA v THE REPUBLIC 1986 TLR 10 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

12 December, 1986

CIVIL APPEAL 186 OF 1985

Flynote

D Criminal Practice and Procedure - Charges - Charge under repealed legislation - Irregularity

- Whether curable.

Criminal Law - Pharmaceutical and Poisons Act 1978 - Accused convicted of being in possession

of Part I Poison - Accused in E possession of chloroquine injection - Chloroquine injection not

on Poison List - Whether a report by a medical doctor to the effect that chloroquine injection

was Part I poison was final.

-Headnote

The appellant was charged and convicted under a repealed law for being in possession of Part I

poison. The District F Court relied on a report by a medical doctor that chloroquine injection is

Part I poison.

Held: (i) A charge and conviction under a repealed law is an irregularity which is curable if the

repealed section is G re-enacted in identical words in the current statute such that it cannot be

said that the accused has in any way been prejudiced by the irregularity;

(ii) under s.60(1) of the Pharmaceutical and Poisons Act, 1978 a certificate by a

Government Analyst that a certain substance is Part I poison is final. A report by an ordinary

doctor as to whether a substance is Part I poison is not H final.

Case Information

Order accordingly.

Cases referred to:

1. Omari Said v R. [1972] H.C.D. n. 183 I

1986 TLR p11

MWALUSANYA J

A 2. Matu s/o Gichumu v R. (1951) 18 E.A.C.A. 311

Mr. Mataba for the Republic

[zJDz]Judgment

Mwalusanya, J. The appellant Magesa Andrea s/o Mjunja was charged and convicted under s. B

25(2) of the Pharmacy and Poison Ordinance Cap. 416 for being in unlawful possession of Part I

poison. He was sentenced to three years imprisonment. He is now appealing against conviction

and sentence. Apparently the learned C District Magistrate of Ukerewe District is not yet aware

that the statute under which the appellant was charged has been repealed by the Pharmaceutical

and Poisons Act. No. 9 of 1978. And so the immediate issue is whether the conviction under the

repealed statute is curable. In a similar quandary in the case of Omari Said v R. [1972] H.C.D n.

183 Mfalila J. held that the irregularity was curable. In fact he was echoing the ruling of the

Court of Appeal for Eastern Africa in th D e case of Matu s/o Gichuma v R. (1951) 18 E.A.C.A.

311 where it was held that such irregularity is curable if the repealed section is re-enacted in

identical words in the current statute such that it cannot be said that the accused has in E

anyway been prejudiced by the irregularity. Following that respectable authority I find that the

offence with which appellant was charged has been re-enacted in identical words under s. 37(1)

of the new statute. In the circumstances the appellant could not have been prejudiced by the

irregularity. In other words the irregularity is curable. F

The next important question to explore is whether chloroquine injection is in the list of Part I

poisons. At the trial there was a report (Exh. P4) by one Dr. Led Nyerembe to the effect that

chloroquine injection was Part I poison. In order to satisfy my curiosity I began to scan the

Poisons List (Declaration) Order GN.22/1980 to see if in that long list there is a G name of

chloroquine injection. I could not see chloroquine injection in the list. But I saw chloroquine

(natural salts of chloroquine and chiniofon) in the list.

It is significant to note that the doctor was not called at the trial as a witness, perhaps if he had

been called he would have clarified to us laymen whether chloroquine injection is the same

thing as chloroquinate. Without that evidence I am not H prepared to so hold. It is also

significant to note that under the repealed statute, chloroquinate was not in the list of Part I

Poison. It does not appear that the new statute has declared the whole chloroquine to be Part I

poison but that only I chloroquinate has been so declared and that

1986 TLR p12

A should be proved in court to contain natural salts of chloroquine and chiniofon. But that has

not been done in this case.

Under s.60 (1) of the Pharmaceutical and Poisons Act No.9 of 1978 a certificate by a

Government Analyst that a certain substance is Part I Poison is final. However the doctor in this

case Dr. Led Nyerembe is not a government analyst as it B does not appear in any government

gazette that he has been so appointed by the Minister of Health. Therefore the medical report of

an ordinary doctor is not final as to whether a substance is Part I poison although of course it is

entitled to some respect.

C In the event I need not go into detail as to whether appellant was found with the

chloroquine injection bottles or not. However I might observe in passing that evidence was

overwhelming indeed that he was so found.

Consequently I am constrained to allow the appeal. I quash the conviction and set aside the

sentence. The appellant D should be released forthwith unless held for any other offence.

Order accordingly. E

1986 TLR p12

F