HC AKENA ADOKO'S CHAMBERS v. MOHAMED MAGANGA (BiRoN, J.) 135 ii) when an advocate is a party in a lit his case from the bar as an advocate; Gv) where an advocate appears as a litigant conducting his own cese, whether in his own name or that of his firm, he is not entitled to costs, but only to his actual disbursements, such as court-fees, ete, ‘Order accordingly. ‘No Cases referred to. December 14, 1976, BIRON, J.: The learned resident magistrate of the District Court at Kisutu tas referred this case for the decision of the High Court under Order XLI r.2 of the Civil Procedure Code, 1966. tation, he does so as a litigant and is not entitled to conduct Statement of facts: 1. The plaintiff Mr. Akena Adoko is an advocate of the High Court of Tanzania and its subor dinate courts practising under the style of firm name of Akena Adoko's Chambers; 2. In the course of his legal practice, the plaintiff accepted a brief from the defendant to make a pail application in respect of the defendant's brother at an agreod fee of shillings two hundred (Shs. 200/-); 3, The plaintiff duly appeared before the High Court and argued for bail as instructed, but the defendant has, until this date, refused and/or neglected to pay the agreed fee; 4, Mr. Akena Adoko, has therefore filed this suit against his client claiming the agrood fees together with costs; 5, When the case came up for mention both parties were not present, but Mr. Akena Adoko had purportedly instructed another advocate to hgld his brief for the purpose of getting the case adjourned to another date, Opinion of the Resident Magistrate: In accordance with s.3(1) of the Advocates Ordinace (Cap. 341) an Advocate in Tanzania porforms all those functions which in England may be performed by a Barrister or Solicitor of the Supreme Court of Judicature. Is it not right, therefore, to expect from him that he would live up to the Code of professional etiquette as practised in England? Tn England (and it is submitted this is the unwritten law of Tanzania) a Barrister cannot sue a client for his foes, if he did he would be faced with disciplinary action. A Solicitor too cannot sue but is entitled to file a bill of cost. Questions posed: 1. Can an advocate professing to be governed by the English rules of professional etiquette sue his client in contract to recover his legal fees? 2. If the answer is yes, in what name will the suit be instituted; the Advocate's Chambers being & non-logal entity ? ‘Assuming that such suit is maintainable and the Advocate proceeds, has he got any right to ‘address the Court from the bar; he being an ordinary plaintift? DECISION: "An advocate practising in this country, cannot be equated to a barrister in England ; who is not inlaw entitled to a feo and thorefore cannot sue, but he receives an honorarium, A barrister in England has no direct contract with his client, but only with or through, the solicitor instructing him. Tronly for the completion of the record, it should be added that a dock brief where a prisoner in the dock picks upon a barrister who is sitting robed in court, to defend him, there being no intermediate solicitor, is a pocular unique institution, which has no parallel in this country. If Mr. Akena Adoko's Chambers are so registered as a firm undor the Business Names (Registration) Ordinance (Cap. 213—-Supp. 57), thon Mr. Akena Adoko can sue in the firm’s name, But if such name is not registered as a firm, Mr. Akena Adoko can sue only in his own name. ‘Where an advocate is a party in litigation, as in this case, the plaintiff, and he appears in person, be does so as a litigant, and he is not entitled to conduct his case from the bar as an advocate. “Where an advocate appears as a litigant conducting his own caso, whether brought in his own name, or that of his firm, he is not entitled to costs, but only to his actual disbursements, such as court fees etc. Order accordingly.136 TANZANIA LAW PEPORTS [1980] TLR. KIBORI RAMADHANI v. REPUBLIC -Hicu Court oF TANZANIA AT TANGA (SisvA, J.)- CriMINat APPEAL 9 OF 1980 Criminal Practice and Procedure—Pleas—A failure to call accused to plead in subsequent proceedings before another magistrate—Accused had pleaded not guilty in same court before the first magistrate—Curable irregularity—Criminal Procedure Code s.346(T). Tho appollant was charged with and convicted of stealing c/s 268 of the Penal Code. At the beginning of the procoodings he pleaded not guilty. Subsequently the proceedings were presided over by another magistrate of competent jurisdiction in the same court. ‘The appellant was not called upon to plead afresh. The appellant appealed against this irregularity. Held: the failure of the court to call upon the appellant to plead afresh was an irregularity which is curable and hence the arraignment was proper. Appeal dismissed. Cases referred to: (1) Rev. Venance Néali, [1977] LRT. n.44. Q) Akbarali Walimobamed Damji v. R. 2 T.L.R. (R) 137. W.R. Mrambs for the appellant March 31, 1981 SISYA, J.: The appellant, Kibori s/o Ramadhani, was chargod with and convicted of stealing cighty cows valued at Shs. 90,000/- and he was sentenced to the statutory minimum of five years, imprisonment. The offence was committed in Muheza District. The appellant was, however, charged, tried and convicted at Tanga, in the Court of the Resident Magistrate. He is now appealing, At the hearing of the appeal learned Counsel for the appellant, Mr. Mramba, with leave of the court, amonded the first ground of appeal so as to read and I quote: That the learned trial Magistrate erred in law in failing to take the appellant's plea. As can be gleaned from the record of proceedings of the lower court the appellant was first brought before the Resident Magistrate (W.N.B. Kapaya, Esq.) on 17/10/78 when the charge was “read over and explained to the accused” who then pleaded “it is not true”. A plea of not guilty was then duly and, I must add, properly recorded. The case was then adjourned to another date for mention. ‘Thereafter, as usual, followed a series of adjournments until 15/1/79 when the appellant was brought before Mr. Nindi, also Resident Magistrate, then, like Mr. Kapaya, stationed at Tanga. Without any further ado, such as reading over the charge to the appellant or even reminding him of the charge, Mr. Nindi proceeded with the trial which, as aforesaid, ended in the appellant's conviction. Inarguing out this appeal before me Mr. Mramba for the appellant submitted that since no plea was taken by the trial Magistrate, e.j., Mr. Nindi, the appellant cannot be said to have been properly arraigned. Mr. Mramba went on to contend that this was in contra- vention of s.203(1) of the Criminal Procedure Code whose provision is mandatory. The failure to take the appellant's plea by Mr. Nindi, added Mr. Mramba, is not an omission that can be cured by $.346 of the Criminal Procedure Code and, therefore, the end result is that the trial was a nullity, Mr, Mramba argued further that a second plea was necessary and in support of his submission he referred me to my decision in the case of Republic v, Venance Ndali [1977] L.R.T. n.44 which, on this aspect of the matter, is admittedly on all fours with this present case. In Ndali’s case, like the instant case, the Magistrate who first dealt with the accused arraigned him and recorded his plea of not guilty. The second and the trial Magistrate, however, did not arraign the accused. Relying on the provisions of s.203(1) of the Criminal Procedure Code and the decision in the case of AKbar Walimohamed Damji v. Republic 2 T.L.R. (R) 137 I ruled that siace the trial Magistrate had omitted to arraign the accused the omission was not curable under 5.346 of the Criminal Procedure Code. Now, ‘on reflection, I doubt whether I was right on that point. S.203(1) of the Criminal Procedure Code read:KIBORI RAMADHANI v. REPUBLIC (Sisva, J.) BT 203—(1) The substance of the charge shall be stated to the accused person by the Court, and shall be asked whether he admits or denies the truth of the charge. (The underscoring is mine and is provided for sake of emphasis). The operative word here for the purpose of the present exercise is “the Court”. To me, it certainly does sound significant that the section in question, i.e., 5.203 does not read: |The substance of the charge shall be stated to the accused person by the trial Magistrate or the Magistrate who is hearing the case. The fact that s.203 is couched in mandatory language is not in dispute. The material point for conside- ion here is what meaning is to be coined to the word Court. Does it mean the Magistrate in his personal! capacity or does it mean the Magistrate in his official capacity ? When I talk of the Magistrate I mean the Magistrate of competent jurisdiction. Without hesitetion, it must be the latter, that is the Magistrate in his official capacity That being so, and it indeed is, then when the appellant appeared before Mr. Kapaya on 17/10/78 he did so before the Court of the Resident Magistrate, Tanga, which as aforementioned, read over the charge to the appellant and, presumably, asked him whether he admitted or denied the truth thereof: The appellant pleaded, “it is not true” whereupon a plea of not guilty was entered. Likewise, when the appellant appeared before Mr. Nindi on 15/1/79 for trial he did so before the Court of the Resident Magistrate, Tanga, There was no requirement in law for the same Court of the Resident Magistrate, Tanga, to take the appellant's plea a second time. As to the applicability of the case of Damiji (supra) to circumstances of the present case I now say that the same is irrelevant. This is because upon a closer reading of the factual background to the decision in that case it does transpire that the Magistrate before whom Damji was first brought read over the charges to the accused but no pleas were taken, This, indeed, was clearly wrong because the taking of plea of an accused person under s.203(1) consists of two parts, (1) reading the charge to him and (2) asking him whether he is guilty or not. The accused in the Damji case cannot, indeed, be said to have been fully and properly arraigned at all. On the other hand, the appellant in the present case had the charge read over to him and he was asked to plead thereto. In the case of Ndali mentioned hereinabove, apart from the question of arraignment there were also some other serious procedural irregularities which prejudiced and consoquently vitiated the whole trial. T ordered a retrial in that case. In the present case I hold that the appellant was sufficiently and Properly arraigned by the trial Court, i.e., the Court of the Resident Magistrate, Tanga, However, at stations where there are more than one Magistrate attached to the same Court it is always advisable, as a matter of prudence, to arraign the accused again or, at the very least, to remind him of the substance of the charge. This disposes of the first ground of appeal. Now, turning to the facts of the case, evidence was given by one Ramadhani Solemani (P.W.1), @ herdsman employed ‘by one Juma Matimba (P.W.2), the complainant in the case, that on 25/7/78 while he was in the grazing fields ho was suddenly confronted by the appellant who then threw a stick at him, The said stick, however, missed the target and, instead, it hit a tree. At the same time the appellant drew out his “panga” and ordered him, i.e., P.W.1, not to ran away. The time was then 2.00 p.m. and P.W.1 saw and identified the appellant bocause he was a person whom he knew before that day: ‘The two of them used to mect at the cattle dip as well as at the butchery. Thereafter, the appellant ordered him to sit down. He resisted, At the samo time another person, whom P.W.1 identified as one Turiani but was not chargedwith the appellant, came out from his place of hiding in grasg Also at the same time P.W.1 noticed that the appellant and the said Turiani were not alone. They wore nine in all. The appellant then got hold of P.W.1 by his waist and, instructed Turiani to unfasten his, i., appellants, piece of cloth which he then had. on his person. This Turiani did and the two of them used the said piece of cloth for tying up P.W.1’s hands together. Meanwhile P.W.1 noticed that the others who also, eventually, emerged from the grass had a “panga" each in their hands. They were all Masai tribesmen and they started to round up and herd the ‘complainant's animals away. They drove the said animals, one hundred and sixty of them, towards some forest. P.W.I followed on the orders of his captors. At about 8.00 p.m. they arrived at Kinyatu forest where they decided to rest, Later four Masai tribesmen whom P.W.I could not identify took out eighty hhead of cattle and continued to drive them away. The appellant and Turiani remained with the other cighty head of cattle. P.W.1 remained behind with them. He overheard the appellant and Turiani say that they were to spend the rest of the night there because they were waiting for their colleagues who had gone to look for food. P.W.1 went on to state in his evidence that he noticed that the 80 animals which remained behind138 TANZANIA LAW REPORTS (1980) TLR began to disperse. Later, all these were recovered by the complainant. At about 11.00 p.m. both the appellant and Turiani fell asleep. P.W.1, whose hands had by then been unfastened seized the opportunity. He walked, overnight, seven miles to the villages. On his arrival at Kinyatu village at 4.00 a.m. he reported the matter to a local leader of ten houses, ono N’ganzi Ali (P.W.4). Eventually, P.W.1 reported the matter to Chumbageni Police Station where a report of the disappearance of the complainant's 160 head of cattle had already been made by the complainant. ‘Thereafter, P.W.1 and P.W.2 began to look for the appellant. They met him at their local dip threo weeks later. However when the appellant saw the two persons he took to his heels and escaped. One Charles Mhando (P:W.7) an employee at the said dip also saw the appellant run at the sight of P.W.l.and P.W2. “The appellant's bid for freedom was shortlived. He was later apprehended and subsequently brought to justice. ‘in his defence the appellant denied committing the offence. He argued that after all no exhibit in the form of cows wore produced to show that he stole thom. In his evidence-in-chief the appellant stated that hhe was not at home when the theft occurred. When cross-examined he changed his story and stated: ‘On 25/1/78 (N.B. This was the day the theft was committed) Iwas at home. “I did not herd cattle, I was athome.” He also denied that he was the person who ran away from the dip as testified by P.W.1, P.W.2 ‘and P.W.7 all of whom, he conceded, were not strangers to him. ‘The appellant called one witness at the trial, He is one Taibali Amri, His evidence is, however, of no probative value. Although after the appellant had been addressed in terms of s.206 of the Criminal Procedure Code he intimated that he had only one witness to call it later, however, transpired that he actually wanted to call two witnesses. The second witness did not appear in the lower court despite several adjournments to accommodate him. Eventually, the Court issued a Summons to the witness. He responded by writing to the Court that he was ignorant of the whole case. Tn his judgment the learned Resident Magistrate who tried the case rejected the defence of the appellant. Thasten to state that this was not surprising as the defence of the appellant sounds transparently false. The learned trial Magistrate accepted and acted upon the evidence of the prosecution, in particular P.W.1. In his second reason of appeal the appellant contends that the learned trial Magistrate erred in readily accepting the evidence of P.W.1 as the same should have been taken and accepted with great caution. With respect, itis not correct to say that the learned trial Magistrate readily accepted the evidence of P.W.1. From his lengthy and reasoned judgement it is cloar that he did subject the evidence of P.W.1 to sufficiont serutiny and he ended up by being satisfied that P.W.1 was a truthful witness. On my part T would not hesitate to state that the account by P.W.1 has a ring of truth. As conceded to by the appellant himself he and P.W.1 vere not strangers in the eyes of each other. They knew each other well. Further, nothing was established, albeit on a preponderance of probabilitics, why P.W.1 should deliberately lie and seek to implicate the appellant. ‘The incident took place in broad day light and P.W.1 had more than ample ‘opportunity not only to hear the appellant but also to see him by his face. Tf need be, the evidence of P.W.1 as to the appellant's guilt in connection with the mattor is supported in material particular by the evidence of P.W.2 and P.W.7 on the appellant's attempted fight from justice. The appellant denied that he ever attempted to ran away but his denial hardly raised any reasonable doubt in the mind of the trial Magistrate, nor does it raise any in my mind. P.W.7 is an independent witness in this case with nothing to gain or lose. In the light of the evidence before him I do not think that the learned trial Magistrate would have ‘come to any conclusion other than that of guilt. Thé mere fact that the appellant was not found with any of the stolen animals nor that none of the 80 animals has been recovered is irrelevant for purposes of guilt ‘The conviction is therefore proper as the sameis supported by the evidence. Asa matter of fact, the appellant has reason to consider himself lucky because he could, very well, have been charged with a comparatively more serious offence of robbery which carries the minimum period of seven years imprisonment. ‘Turning to sentence, again, the appellant must consider himself lucky to have got away with the bare minimum of five years imprisonment; particularly so when the 80 animals have not been recovered. Suffice it to say that this appeal fails and it is dismissed in its entirety. Appeal dismissed,HC. TADIJIN D. MIWANI v. REPUBLIC (Lucaxincira, J.) 139 *TADSIN D. MIWANI v. REPUBLIC Hictt Court oF TANZANIA AT Dopoma (LUGAKINGIRA, J.) CRIMINAL APPEAL. 6 OF 1980 Criminal law—Hoarding of goods—Meaning. Evidence—Evidence of accused’s previous conduct—Admissibility. ‘The appellant, holder of a retailer's om-licence for the sale of intoxicating liquors was charged with and convicted of hoarding. The police charged him because he did not display beer in the bar. In convicting the appellant the trial Magistrate partly relied on the appellant's previous conduct. Held: (i) the offence of hoarding arises only where a person who carries on the business of selling goods of any description, either wholesale or retail, and having such goods in stock, refuses to sell the whole or any quantity thereof to any person offering to purchase the same; (ii) evidence may be admitted of facts, not otherwise relevant, which may have a bearing on the fact in issue even if such admission would tend to show the commission of other offences. Appeal allowed, Cases referred to: Q) John Makindi v. R. (1961] E.A. 327. (2). Makin v. A—G, for New South Wales [1894] A.G. 57. Rey. Chandor [1959] 1 Al E.R. 702. October, 24 1980. LUGAKINGIRA, J: [remarked while admitting this appeal that neither the public prosecutor nor the trial Magistrate seemed to know what hoarding meant. I sill hold that view as the facts of the case will demonstrate, ‘The appellant, a Manyoni resident, holds a retailer's on-licence for the sale of intoxicating liquors. From information received, the police suspected him of hiding beer. Accordingly, on 19/10)79, at 3 p.m., they arrived at the appellant's premises with a search warrant and announced that they Wanted to search for beer. The appellant told them that he had beer in the store where, indeed, they found 21! cases of Pilsner and 10 cartons of Konyagi. They next proceeded to the bar where they found spirits and wines, but there was no beer or Konyagi there. They asked the appellant why he did not display beer in the bar. He told them it was not drinking time. He was charged with hoarding c/s 194(A) of the Penal Code before the District Court of Manyoni. In his defence the appellant stated that if the police had come at 6 p.m., when bars open, they would have found beer in the bar. He also called witnesses who had drunk beer at his bar the previous day, It was equally in evidence that when the police arrived they found two or three persons drinking beer at the premises. He was nevertheless convicted as charged and sentenced to a fine of Shs. 5,000]- which he paid. The trial Magistrate also ordered the beer and Konyagi to be sold at wholesale prices but the proceeds to be given to the appellant. This appeal is against the conviction and sentence. I now invite the trial Senior Magistrate to have another look at s. 194(A). He will find, if he has not done so, that the provision has nothing to do with the display or exhibition of goods. Even the Intoxicating Liquors Act, 1968 does not provide for the exhibition of liquors but the licensee's name and the licence. The offence of hoarding arises only where a person who carries on the business of selling goods of any description, cither wholesale or retail, and having such goods in stock, refuses to sell the whole or any ‘quantity thereof to any person offering to purchase the same. In other words, the offence may be committed even where the goods are conspicuously displayed. What is relevant is whether there has been a refusal to sell to a person offering to purchase the same. As already shown, there was in this case no offer to purchase beer or Konyagi. The question of refusal did not therefore arise. In fact, there was even no denial of the existence of the goods. We get this from the evidence of P,W.2 who stated: “We asked the accused whether he had beer when he admitted that140 TANZANIA LAW R™PORTS 1980) TLR he had beer.” One would expect that an offer to purchase would then have followed, But there was none, Instead, to quote P.W.2 again, “We then asked accused to let us see the beer in the store.” He obliged and let them in. They saw the stuff and seized it. Since they had an erroneous notion of hoarding, they went to the bar and were delighted to find no beer. Then, according to P.W.2 again, “We asked accused why he never displayed deer in the shelves of the bar but he told us he does so in the evening when the bar opens at 6 p.m.” From the above statements, and similar ones by P.W.1 and P.W.3, all police officers, there can be no doubt that the appellant had not committed the offence of hoarding, there having been no offer to purchase atall, And that was not all. There was no evidence that the appellant had on that day refused to sell beer ‘or Konyagi to any known person. On the contrary, and as already stated, the officers found two or three persons drinking beer at the appellant's premises. ‘Tt means that the appellant had in fact sold beer to those who had offered to purchase the same. He was therefore without blemish in so far as the offence charged was concerned. But, in the reasoning of the’ earned Senior District Magistrate, those found drinking beer were collaborators “tin black market racke~ teeing.” Nothing more could better demonstrate how thoroughly misinformed he is or was about the whole offence of hoarding, T would wish to add that the appellant would have been innocent still even if there had been an offer by the officers and he had refused to sell. They called on him at 3 p.m. I believe they know that a mere retailer's on-licence does not authorise the sale of intoxicating liquors between 2 p.m. and 6 p.m. on any day in urban areas. Between those hours, therefore, a licensee may lawfully refuse to sell, or sell at his ‘own risk, Needless to reiterate, he is also free to keep his liquors anywhere, not only between those hours but even during drinking hours. In short, the officers called on the appellant at a time when it was impos- sible for him to commit the offence of hoarding. Their efforts would have been meaningful had there been a person willing and truthful to testify that he had been refused service earlier in the day. That brings me to another and final matter. In convicting the appellant the learned Magistrate also relied on allegations by P.W.? and P.W.3 that on 17th and 18th of the same month the appellant did not serve or display beer. The magistrate hence reasoned: “It follows, therefore, that if there were no beers at accused’s bar on these two days, it is quite vindictive (sic) that there could have no (sic) any beer on 19/10/79.” By this, of course, he did not mean that the appellant possessed no beer on I7th and 18th but that he did not display or serve them. With respect to the learned Senior District Magistrate, even if it were proved, which it was not, that the appellant refused to sell beer on the two days, that would have been a different matter. It would have established hoarding on those days and would have constituted two independent offences. In this case the appellant was charged with hoarding on 19/10/79. It does not necessarily follow, even by way of circumstantial evidence, that because a person commits some offence today he would commit the same offence tomorrow. Tt may only point to his disposition for crime, but would not be proof of the offence charged. T should not be understood as saying that evidence may not be admitted of facts, not otherwise relevant, which may have a bearing on the fact in issue. Such evidence, as distinct from evidence of purely adverse character, may indeed be admitted even if it would tend to show the commission of other crimes. For instance, in John Makindi v.R. [1961] E.A. 327, the accused was convicted of manslaughter by assaulting the deceased. In the course of the trial evidence was admitted of a series of previous assaults by the accused upon the deceased. On appeal it was held by the Court of Appeal for Eastern Africa that the evidence had been rightly admitted to explain and substantiate the cause of death. In the course ofits judgment the Court cited with approval a proposition by Lord Herschell in Makin v. A.—G. for New South Wales [1894] ‘A.C. 57, part of which I consider relevant to the present discussion. His Lordship said: » the mere fact that the evidence adduced tends to show the commission of other Grimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to consti- ‘ute the crime charged in the indictment were designed or accidental ‘And in R. v. Chandor [1959] 1 AILE.R. 702, also cited in the John Makindi case, Lord Parker, C.J., said: ‘There are of course many cases in which evidence of a succession of incidents may properly be admissible to help to determine the truth of any one incident, for instance engi | | HC NYANGA MANYIKA v. REPUBLIC (LuGAKINGIRA, J.) 14t to provide identity, intent, guilty knowledge or to rebut a defence of innocent associa tion, On such issues evidence of a succession of incidents may be very relevant, but ‘we cannot say that they have any relevance to determine whether a particular incident ever occurred at all. From the above principles, I concede that evidence of the appellant's previous conduct was admissible, but for the purpose only of determining the probability of relevant facts or the fact in issue. Tt was not admissible as proof of such facts. Unfortunately, the trial Magistrate took a different view and literally convicted the appellant on allegations of previous misconduct. In doing so, he misdirected himself in law because he convicted the appellant not for the offence charged but for crimes he might have committed on 17th and 18th. It should I think go on record that even the allegations as regards these dates were themselves doubtful. The appellant called three witnesses, including a security officer, who testified that he was served, beer and Konyagi on 18th. ‘The trial Magistrate dismissed their evidence stating that they had been “hur- riedly approached by the accused (who) taught them what to say in court to shield his offence.” cannot imagine a bona fide security officer permitting himself to be used that way. [think if there was anyone more hurriedly approached, it was the prosecution witnesses and, with the greatest respect, the trial Magistrate himself. Tallow the appeal; T quash the conviction and set the sentence aside. I order that the appellant be rofunded the fine forthwith, Appeal allowed, NYANGA MANYIKA v’ REPUBLIC (Luaaxinoma, 1.) NYANGA MANYIKA v, REPUBLIC High Cour oF TANZANIA AT DonomA, (LUGAKINGIRA, J.) CrinivaL APPEAL 67 oF 1979 Criminal Practice and Procedure — Charge — Series of acts constituting a series of same offence — Circumstances are such that the committing of the offences forms a single transaction — One count, Appellant was convicted in the District Court on three counts of house-bt . on three counts of house-breaking and three counts of Stealing. ‘The appellant had broken the main door of the house and then broke into and stoie from the rooms therein. The prosecution preferred three separate counts of house breaking and three separate counts of stealing and the magistrate convicted the appellant as charged. ‘On appeal the appellant attacked the decision of the District Court. __ Held: (i) when a series of acts which constitute a series of the same offence are committed in such circumstances as to amount to one single transaction, there is com: aan mitted one offence which ought to be Gi) the appellant should have been charged with one count of house breaking and one of stealing, Appeal allowed in part. Cases reterrea 0: () R. ¥. Giddings C. & Mar. 634 (2) Mwambalafu v. R. [1966] E.A. 459, (3) Saidi Nsubuga ¥. R. (1941) 8 EACA. 81, (4) AR. Nathani vy, R. (1965) EA. 777, (5) Nga Po Ev. Emperor, A.LR. 1936 Rang. 94 (6) Marjaria v, R. [1972] B.A. 10.12 TANZANIA LAW REPORTS (1980) TLR ; May 15,1979. LUGAKINGIRA, J.: This appeal from the decision of the District Court of Dodoma, (Kajeri, R.M) is against convictions and sentences. It was alleged that on 6 December, 1978, here in Dodoma, the appellant broke into the dwelling houses of Simon Edward (P.W.1), Iddi Simon (P.W.2) and Violet Simon (P.W.3) and therein stole several items which I need not set out here, He was therefore charged with and convicted on three counts of house-breaking c/s 294(1) and stealing c/s 265 of the Penal Code. He had two previous convictions of a similar nature. Accordingly; he was awarded seven years’ imprisonment for each of the breaking and 18 months for each of the thefts. ‘The sentences were ordered to run concurrently as between themselves but consecutively to a three-week sentence the appellant was already serving for contempt of the trial court. Tam satisfied that there was such contempt, and continuing ‘contempt, and that the appellant was dealt with according to procedure, T think that the appeal as presented and argued by the appellant is without substance. The “houses” broken into were actually one. Each of the complainants occupied a separate room in it, P.W.1 being the parent of P.W.2 and P.W.3. It was not disputed that after the offender had gained ingress by breaking the main door then broke into the rooms from which he stole. P.W.1 reported the incident to the Police. On I! January, 1979 he was called to the Police Station and required to describe his stolen property. He did so. He was then shown a pile of items from which he easily picked out his trousers, a shirt and a sime, all according to description. In the pile he also found CCM cards, baptismal certificates and photographs belonging to his family. He did not find the rest of his property. P.W.2 and P.W.3 were called later on thesame day. After going through the same procedure of description they were also shown the pile, P.W.2 picked out his trousers, a bedsheet and his CCM card. P.W.3 picked out her sweater, skirt, a table cloth end “riseon” shoes, again all according to description The appellant’s house had been searched in connec- tion with some other matter three days before. [twas done in the presence of his landlady (P.W.5), among ‘others, and in his own presence. According to P.W.S the search unearthed, among other things, bedsheets, trousers, “riseon" shoes, a sime, various cards, photographs, etc.; in short, all the exhibits identified by the complainants, She also identified them in court. ‘That was the gist of the evidence for the prosecution. Unfortunately, the appellant elected to be uncooperative, He refused to cross-examine P.W.5, demanding that the Police produce his money fist, whatever that meant, He refused to take a proper oath, after electing to be sworn, by objecting to the phrase; “Mungu nisaidie.” He finally refused to testify stating: As [will not hope to raise any doubt to prosecution case in my defence I hereby close defence case by keeping quiet. I pray for judgement. It was in the course of these antics that the appellant earned for himself the penalty for contempt. I also had the misfortune of seeing and hearing the appellant. He can be a character. His baritone voice bas anobvious edge of truculence. He is also disposed to futile arguments. However, have given his represen- tations before this court the consideration they deserve. But in view of the evidence reviewed above and in the absence of evidence to the contrary, T concur with the court below that the complainants’ properties were recovered in the appellant's room. [have no reason whatsoever to doubt the credibility of P.W.5~ and the appellant suggested no reason other than saying that P.W.S was a woman! And some of the recovered items ~ certificates, cards and photographs — had an identity that permitted no disagreement, These are Stems that have no immediate value but to the owner alone, Theyre unlikely to change hands quickly. TThey were found in the appellant’s possession only a month after the breaking and theft. In these circumsta- tices | am satisfied that the trial Court rightly applied the doctrine of recent possession and rightly found, as it did, that the appellant was guilty of the offences charged. ‘At this juncture propose to revert to the facts ofthe case. We have seen that the appellant broke into and stole from the complainants’ rooms after breaking the main door. On the available evidence the logical presumption is that all this took place on the same occasion, An interesting question then arises: Did the appellant commit three or only one offence each of house-breaking and stealing? ‘There is a rule of practice, which has crystallised into a rule of aw, thata charge should not be duplex, which i to say thatasingle count should not charge the accused with the commission of two or more offences. 1 believe that the prosecutor had this rule in mind when he framed the present charges. I think, however, that there is a limitation to the application of the rule. [ respectfully hold the view that when a series of acts hich constitute a series of the same offence are committed in such circunistances as to amount to one single transaction then, in reality, there is committed one offence which ough< to be charged in one countHC. NYANGA MANYIKA v. REPUBLIC (LuGakincina, J.) 43 So, the indictment may charge the defendant, in the same count, with criminal acts with respect to several persons ~ as in robbery, with having assaulted A and B. and stolen from A one shilling, and from B two shilling ~ if it was all one transaction. R. v. Giddings, C. & Mar. 634. (Archbold, 38th Ed. para. 115.) It seems to me, therefore, that in deciding whether to charge one or more counts of the same offence the guiding factor is what I would call contiguity of time and place. If the acts are far flung in the matter of time and place it may not be possible, ut indeed undesirable, to charge one count, Thus says Sohoni in his Commentaries on the Indian Code of Criminal Procedure (13th Ed., p. 580) If... the property taken consisted of a number of articles so distantly or diversely situated as to require a distinct act of trespass or a distinct enterprise for the removal of each, the transaction must ordinarily be held to have been not single but complex and its achievement to have involved the commission of more than one separate thett I accept these propositions. They also find authority in Mwambalafu v. R. [1966] E.A. 459, a decision of the previous Court of Appeal. In that case the accused, intending to kill one Kassim Kilamula and his wife, set their two houses on fire. They escaped and found refuge in the house of a neighbour, one Nyambalafu Mwaluhonga, more than a hundred yards away. The accused followed and set that on fire as well. He was charged with and'convicted on one count of arson in respect of the three houses and also (although alternatively) on one count of attempting to murder Kassim and his wife. The charge had many irregularities which the court dealt with, Regarding the arson count it had this to say at p. 460: So far as arsoh is concerned, the burning of the two houses of Kassim Kilamula might have forshed the subject of one count, if the same act of arson caused both houses to ignite, but the house of Nyambalafu was more than one hundred yards from Kassim’s house, and caught fire as a result of a separate act of arson, and should therefore have been the subject of a separate count. ‘The question there is what series of acts may be taken to constitute one transaction? In Saidi Nsubuga ¥.R. (1941), 8 E.ACA. 81, they were said to be, acts... connected together by proximity of time, community of criminal intent, con- tinuity of action and purpose or by the relation of cause and effect. or what I endeavoured to call contiguity of time and place. The above words were reiterated by the Court of Appeal in A.R. Nathani v. R, [1965] E.A. 777 where it said at p. 780: Inorder that different acts should make up one transaction it must be inherent in them that from the very beginning of the earliest act the other acts should either be in con- templation, or necessarily arise therefrom, or, from the very nature of the transaction in view, form component parts of one whole. For example, in the Rangoon case of Nga Po Ev. Emperor A.LR. 1936 Rang. 94, six cattle were stolen from a grazing ground and two, which belonged to two owners, were later found in the appellant's posses- sion. For each of the animals he was separately charged and convicted under ss. 379 and 75 of the Indian Penal Code. On appeal ~ cum - revision it was held that he should have been charged with one count, ls “were lost at the same time and therefore one offence only was ¥. R. [1972] E.A. 10, the appellant received stolen goods which ware taken off lorry at three different places. The Court of Appeal said at p. 15: ‘The High Court on first appeal had held “all these acts of receiving formed part of the same transaction and were properly charged in one count.’ We agreed with that conclusion. The off-loading of the goods at three different points in three different lots was merely the mechanics employed in taking the goods off the lorry for conve- nience of storing and to avoid detection and wa’ part of the same transaction, and formed one offence.144 TANZANIA LAW REPORTS [1980] TLR These authorities have a pertinent bearing on the facts of this case and I wish to follow them. I have no doubt that they set out the law correctly apart from being unaware of any decision to the contrary. It will now be realised that in this case the breaking was in fact complete the moment the main door was broken, That is how I construe the definition of breaking in s. 293 of the Penal Code. It follows tbat the breaking of more doors inside the building were merely acts which from the nature of the transaction in view = stealing - formed component (and actually necessary) parts of the breaking into the building. They were therefore one transaction - A.R, Nathani v. R. (supra). Similarly, the thefts from the three rooms were so connected together by proximity of time, community of criminal intent and continuity of action that they were necessarily ~ single transaction ~ Saidi Nsubuga v. R. (supra). It is for these reasons that 1 consider the charge improperly framed. I believe that the appellant should have been charged with one count of house-breaking and one of stealing. In accordance with the provisions of s. 138(¢) (ii) of the Criminal Procedure Code it would have been sufficient to describe the properties stolen as belonging to Simon Edward, the first complainant, and others. Accordingly, I allow the appeal as regards the 3rd, 4th, Sth and 6th counts. { quash the convictions and set aside the sentences thereon. However, I dismiss the appeal and uphold the convictions on the first ‘and second counts. In view of appellant's past record I sustain and confirm the sentences in that regard. Appeal allowed in part. KABULOFWA MWAKALILE AND I! OTHERS v. REPUBLIC (Samarra, J.) KABULOFWA MWAKALILE AND I] OTHERS v. REPUBLIC “Hi Court oF TaNzanta ar Dopoma (Samarra, J.) CRIMINAL APPEAL 18 OF 1976 “Assessors— Substitution during trial - $.8 Magistrates Courts Act, 1963. Evidence ~ Evidence of children of about 15 years — Evidence not given under oath ~ Accused refused right to cross-examine ~ Irregularity. Evidence - Admitting written report of witness - Witness not called on witness box to testify - Procedure improper. Tkolo Primary Court convicted the twelve appellants of forcible entry. In the course of the trial assessors were substituted. Moreover two children of about 15 years of age gave evidence not under oath and the accused were not allowed to cross-examine them, Further, the ward secretary, after completion of his evidence prepared a report on the subject matter of the case and it was received without him self appearing in the witness box to testify on the report. ‘Appeals to the district court were unsuccessful. The appellants appealed to the High Court challeng- ing the lower courts’ decisions on the basis of irregularities. ‘Appeals allowed. Held: (i) neither common law nor s.8 of the Magistrates Courts Act, 1973 authorises substitution of aan assessor or assessors in the course of @ trial; Gi) asa general rule substitution of assessor or assessors during @ trial has the effect of rendering the trial a nullity; ii) a party to court proceedings has the right to cross-examine any witnesses of the opposite party regardless of whether the witness has given his testimony under oath (or affitmation,-as the ease may be) or not; (iv) save in cases of recognized exceptions a witness must give evidence orally. Cases referred to: (1) Joseph Kabui v. Reginam 21 E.A.C.A. 260 2) Jumanne sfo Ramadhani and Another v. R. [1970] H.C.D. n. 75. 3) Dominico Simon vy. R. [1972] H.C.D. n. 152. (4) Faustin Joseph v. R. [1968] H.C.D. n. 246i HC. KABULOFWA MWAKALILE AND I1 OTHERS v. REPUBLIC (Samarra, J.) 145 October 27, 1981. SAMATTA, J.: These twelve appeals, which I have consolidated, are from a decision of the District Court of Kyela district which affirmed the decision of the Primary Court of Ikolo whereby the appellants were convicted of forcible entry, contrary to s. 85 of the Penal Code, and each, except the first appellant who received a sentence of a fine of six hundred shillings or six months" imprison ment in default, was sentenced to a fine of four hundred shilings or four months’ imprisonment in default. After hearing Mr. Saffari, counsel for the Republic, I allowed the appeals, set aside the convictions and sentences, and directed that ifthe fines were paid the same be refunded. I now give my reasons for so doing. In spite of the fact that both courts below were of the settled view that the appellants’ guilt was proved beyond a rational controversy, I do not consider it necessary to go into the facts of the case. In my view the primary court slid into at !east three errors in law which are fatal to its decision. That court's record of the case reveals that there was substitution of assessors during the trial. On the first day of the trial the assessors were one I. Mohamed and S. Mwakipesile. The complainant's evidence was recorded on that day. On the following day the seat of Mr. I. Mohamed appears to have been occupied by one Mr. T. Mwakipesile. Evidence of two witnesses was heard on that day. ‘Three days later Mr. I. Mohamed re-occupied his seat. On that day the court heard the evidence of a ward secretary, one of the prime substitution of assessors took place. Ttisa basic principle of law, I thtok, that every member of a judicial tribunal must hear all the evidence which is tendered before the tribunal. Both justice and reason rebel against the idea that it is quite proper for a member of such a tribunal who has not access to all the evidence to play some part in deciding the case, Neither the common law nor s. & of the Magistrates’ Courts Act, 1963, authorises substitution of aan assessor or assessors in the course of a trial, Asa general rule the substitution of an assessor or assessors during a trial has the effect of making the trial a nullity: See Joseph Kabui v. Reginam 21 £.A.C.A. 260; Jumanne s/o Ramadhani and Another v. R. [1970] H.C.D. n. 75; and Dominico Simon v. R. [1972] H.C.D. n. 152. The fact that in a primary court it is the majority opinion which constitutes the decision of the court cannot and does not, in my view, affect the validity of that proposition, for the possibility that the assessor who hears only. part of the evidence tendered in the case may influence the rest of the members of the court in coming to their opinions cannot safely be. ruled out ‘The second error into which the trial Court strayed relates to the ‘evidence’ of P.W.2 and P.W.3. ‘These two witnesses were children of the age of about 15 years. Both of them gave ‘evidence’ without taking oath. ‘The primary court magistrate refused to allow the appellants to cross-examine them. He gave reasons for so deciding. Referring to P.W.2, he said: “Washitakiwa na Washauri hawakupewa nafasi kumhoji huyu shahidi sababu ni kijana wa miaka 15. Amecleza bila kiapo.” With unfeigned respect to the learned Magistrate, [ have no hesitation whatsoever in observing, as Ido, that his decision on this point was also an error in law. [ venture, with conviction, to suppose that itis a universally-recognised principle of law that a party to any trial before a court of justice has the right to challenge any evidence that is presented against him.’ The fact that a witness does not know the nature of an oath does not constitute a basis for not affording a party against whom he has testified the opportunity of testing the truthfulness or accuracy of his evidence. ‘A party to court proceedings has the right to cross-examine any witness of the opposite party regardless of whether the witness has given his testimony under oath (or affirmation, as the case may be) oF not. ‘This right is a fundamental one to any judicial inquiry, and the denial of it will usually result in the decision in the case being overturned. Only if the denial is regarded, in the circumstances of the particular case, to be a harmless error, will it be declared by an appellate court fo be a curable irregularity. According to the, law of this country the testimony of a witness cannot be taken as legal evidence unless itis subject to cross— examination, and testimony affecting a party cannot be the basis of a judicial pronouncement unless the party bas been afforded the opportunity of testing its truthfulness or accuracy by way of cross-examination. Nowhere, I venture to think, has the usefulness in the administration of justice of the weapon of cross— examination been better expressed than in a passage in Taylor's Evidence, 8th Ed. ‘The passage is cited (with approval) in Field's Law of Evidence, 10th Ed. Vol.VI, at p. 5637, as follows By means of [eross-examination], the situation of the witness with respect to the parties and to the subject of litigation, his interest, his character, his means of obtai- ning a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his power of discernment, memory, and description are fully investigated and ascertained and submitted to the consideration146 TANZANIA LAW REPORTS {19801 TER of the jury who have an opportunity of observing his demeanour and of determining the just value of his testimony. It is not easy for a witness subjected to this test to impose on a court or jury; for however artful the fabrication of falsehood may be, jit cannot embrace all the circumstances to which a cross-examination may be extended. Wigmore has described cross-examination as “the greatest legal engine forthe discovery of truth Ast venkarked in another case this morning, I devoutly hope that the day will never come when the right to ts, by way of eross-examination, the evidence brought by the opposite side is abolished or modified in this country, Trarn now to the third error. When he was answering questions posed to him by the court, after the last appellant had finished cross-examining him, the ward secretary sought and was granted per- aircon by the court to re-visit the farm which was the subject-matter of the criminal proceedings for the purpose of observing some notable physical features on it, do not pause to consider whether the court ear poee in law to give the permission. What [ propose to examine is the propriety of what followed aftes sae riery srorctary had revisited the farm. The witness did not go back into the witness-box. Instead peri the court a report containing his observations on the visit to the farm. The report ended with these crushing words:— ‘Tatizo hifi {ugomvi kuhusu shamba] ni gumu mno kwani watu hao [yaani washi- takiwa] ni wakorofi kupindukia. “The reception of the report in evidence was, to put it mildly, a strange procedure. There is ne pro- Vision in the law of Tanzania which authorises the adoption of that procedure in a trial before a court of Justice. “Asa general rule, evidence of a witness must be given orally. | None of the recognised exceptions se ule which is founded upon the plainest concepts of justice, renders any validity te the reception in aa of uke ward secretary's report. IC is, of course, fully appreciated that ward seer:taries are Very busy public servants, This fact does not, however, constitute a basis in law for receiving their evidence or part thereof in writing. Neither the aw nor reason approves the procedure the trial court adopted in this Par aria the learned District Magistrate and the primary court Magistrate are bound to find it a fruitful cae oto familiarise themselves with the decision of this court in Faustin Joseph v. R. [1968] HCD. A, 246. Thor the reasons [have endeavoured to state, hope not at an inordinate length, {allowed the appeals, quashed the convictions and set aside the sentences imposed thereon. {view of the fact that the case is spout six years old, [was not inclined to think that an order for a re-trial would be inthe interests of justice Appeal allowed. —— JUMBE S/O HAMISI v. REPUBLIC \ “EiGn Court of TANzaNta AT Maeva (SaMATTA. 1 CriMinat, APPEAL 68 oF 1979) idence — Ideatification — Finger-print expert's report — Whether finger-print method of identification good in Law. Criminal Law — Stealing — Stealing from a motor vehicle — Whether inludes stealing any part of the vebicte Minimen Sentences Act — Whether stealing from Tanganyika Farmers’ Association included. ‘The appellant was convicted by a District Court of stealing from a motor vehicle ‘The evidence was that some hours after theft of a windsereen from a motor vehicle belonging to Tanganyike Farmers’ Asso- Giation, the appellant was seen carrying it. After he was arrested his finger-prints were taken for examina-HC, JUMBE S/O HAMISE v. REPUBLIC (Samarra, J.) “7 tion. The finger-print expert's report was to the effect that the finger-prints appearing on the windscreen were the same as those of the appellant. On appeal the appellant challenged the decision of the District Court. Held: (j) the evidence in the scales proved beyond a sane doubt that the appellant's fingerprints on the screen did not get there legitimately; Gi) the offence of stealing from a motor vehicle does not inc:ude stealing any part of the vehicle; Gii) appellant should have been convicted of simple theft; (Gv) the offence the appellant was convic‘ed of does no fall under the Appeal dismissed, Case referred to: ‘Hassan Ramadhani v.R. [1968] H.C.D. n.244, jum Sentences Act. May II, 1981. SAMATTA, J.: This is an appeal from a decision of the District Court of Iringa district whereby the appellant, Jumbe Hamisi, was convicted of stealing from a motor vehicle, contrary to 8.265 and 269(c) of the Penal Code, and was sentenced to a term of three year’s imprisonment. Te was not in dispute at the trial that on the night of 12/13th April, 1978, a windscreen fixed to a motor vehicle belonging to the Tanganyika Farmers’ Association Ltd. was removed from the vehicle and taken away. Some hours after the (reft had been perpetrated, one Cestino Kisinda, an employee of the Association, saw the appellant; he (the appellant) was carrying a windscreen. A short time later the appellant returned from his destination, This time he did not have the windscreen with him; instead, he was carrying a maize leaf. Some hours later the stolen windscreen was found hidden in a maize farm not far from the place where the appellant was seen carrying a windscreen. ‘The windscreen was the one which hhad been removed from the motor vehicle of the Tanganyika Farmers’ Association Ltd. Some finger-prints were found on it. A finger-print expert's examination of them revealed that they were identical with the specimen finger-prints taken from the appellant. While cross-examining Cestino Kisinda the appellant did not, directly or otherwise, challenge the witness’ testimony that on the morning on April 13 he saw him (the appellant) carrying a windscreen. ‘The appellant's story was not an uninteresting one. This is what he said, inter alia: On 13/4/1973 I met P.W.3 (ic., Cestino Kisinda). I was going to see a friend at Kilimanjaro Guest House. P.W.3 was holding a windscreen. He told me T.F.A. motor vehicle had crashed with another motor vehicle while coming from Njombe, and the windscreen had been destroyed, and the one he had was to be fixed at the garage. [touched the windscreen... I'am an intellectual... never knew P.W.3 before. The learned trial Magistrate accepted the prosecution case in its entirety. He rejected the appellants defence as 4 cock-and-bull story. ‘The appellant now says that the learned trial Magistrate's decision robbed him of justice. The case against the appellant was based on two main planks: the finger-print expert's report and the testimony of Cestino Kisinda, Neither the law of the land nor the scientific law of nature says that finger-prints of two persons cannot be identical, But notwithstanding that fact, the finger-print evidence Temains the most reliable evidence that can be brought before a court of justice. Writing on the subject, HJ. Walls, the former Director of the Metropolitan Police Laboratory, say Finger-print evidence is universally admitted to be the best possible evidence, and is generally assumed to be based on a certainty—namely, that no two finger-prints can be identical. The “certainty” ‘hat all finger-prints are different exists merely because ‘the number of possible patterns is ernomously greater than the number of finger-prints that have ever been taken, so that the probability of finding two identical ones is too small to be worth considering. But thatis not certainty; it is merely an extremely large probability... The criminal courts would, no doubt, be rocked to their foundations if two persons were ever found to have the same finger-prints. Nevertheless, scienti- fically speaking, this should not affect the value of finger-print evidence if it did happen. The improbable ean happen, but itis no less improbable if it docs. (See the article: WHAT IS REASONABLE DOUBT? A FORENSIC SCIENTIST LOOKS AT THE LAW, in [1971] Crim. L.R. 458),148. TANZANIA LAW REPORTS (1980) TLR Like the natural science, the law does not regard the finger-print method of identification as being infallible, but no'one in either branch of learning has, as far as { know, doubted the validity of the assertion that it is the best @vidence a party can bring before a court of justice on the issue of idemtifcation, Since the method came into use no two persons in the world have ever been reported to have identical finger-prints. The appellant who, as willbe recalled, described himself as an intellectual, must have been aware of the shattering effect ofthe finger-print expert's report. He tried to avoid it by claiming that he had touched the windscreen under the circumstances he described. That story was never, however, put to Cestino Kisinda. In any case, itis, I think, a gross underestimation of the intelligence of those who sit on the Bench for the appellant to have expected oF hoped that his story was going to be swallowed. Why should Cestino Kisinda, total stranger to him, have taken the trouble to narrate to him the story he (the appellant) has associated with his lips? The appellant made no attempt to explain this, and T can think of no reason why the witness should have behaved in that most strange manner. I agree with the learned trial Magistrate that the evidence in the scales proved beyond a sane doubt that the appellant's finger-prints-on the windscreen did not get there legitimately, and that it was the appellant who stole the windscreen, I do not however agree with him that the appellant was guilty of stealing from a motor vehicle ‘The offence of stealing from a motor vehicle does not include stealing any part of the vehicle. If I were asked to cite an authority for this proposition, { would cite Hassan Ramadhani v, R. (1968) H.C.D. 2.244. Th that case, having cited the words “the thing is stolen from any kind of vessel or vehicle or place of deposit" used in paragraph (c) of s.269 of the Penal Code, Platt, J., as he then was, said:— | ‘This wording refers to things being conveyed or deposited in vessels or vehicles rather than to parts of the vessels or vehicles themselves. I do not know of any case in which that interpretation has been attacked or its validity doubted. With | respect, think that interpretation is incontenstably right. ‘The appellant in the case at the Bar should, therefore, have been convicted of simple theft. The conviction is varied accordingly T turn now to the appeal against sentence. Sentencing the appellant, the learned trial Magistrate saidis— ‘This theft was committed on T.F.A. This is covered by the Minimum Sentences ‘Act. [accordingly sentence the accused to 3 years’ imprisonment. With unfeigned respect to the learned Magistrate, I think he strayed into an error in law in thinking that the offence the appellant was convicted of fell to be dealt with under the provisions of the Minimum Sentences ‘Act, The Tanganyika Farmers’ Association Ltd. has always been, and is, a private organisation. Tax- payers (a tax-payers) have no shares in it. It would serve no practical purpose, in view of the fact that the appellant has already finished serving the sentences, to consider whether a term of three years’ imprison- | iment is excessive and, if so, whether itis so excessive as to warrant this court reducing it Save as for the variation of the conviction, this appeal is dismissed. fl Appeal dismissed. I ROMADI MKINI v. REPUBLIC -Hicn Court of TANZANIA AT Marya (Samarra, J.)- Crinisat, APPEAL 168 oF 1978 Criminal Practice and Procedure—Trial—Accused mo opportunity to defend himself—irregular. “The appellant was convicted by the lower court of cattle theft and sentenced to five years’ imprisonment. “After he had been addressed in terms of s.206 of the Criminal Procedure Code the appellant elected to give sworn statement, ‘The appellant was not afforded opportunity of exercising his election ‘On appeal the appellant challenged the procedure followed by the lower court.HC. ROMADI MKINI v. REPUBLIC (Samarra, J.) 149 Held: (f) every person charged before a court of law in this country has the right to defend himself, including giving evidence on his own behalf; i) the right of the accused to defend himself is a substantive right and not a procedural right. Appeal allowed. Cases referred to: (1). R. ¥. University of Cambridge [1723] 1 Stra. 557. John y. Rees and Others [1969] 2 All E.R. 274. (3) Kibangeny Arap Kolil v. R. [1959] E.A. 92. @) Sakila v. R. [1967] E.A. 403. ‘A.J. Saflari, Counsel for the Republic. pri 1o, 1981. SAMATTA, J.: About two and half centuries ago, that is to say before anyone who is Ioarned in law in this country was born, Vortescue, J., in a celebrated passage, emphasized the importance of giving a man charged with anything the opportunity of making his defence before his fate is determined, ‘The laws of God and man both give the party an opportunity to make his defence, if he has any. remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? ‘And the same question was put to Eve also. (R. ¥. University of Cambridge, [1723], 1 Stra. 557, cited with approval by Megarry, J., in John ¥. Rees and Others, [1969] 2 All E.R. 274), Today I am required to decide whether a district court (in Tanzania) can, in Jaw, convict an accused porson of an offence without giving him the opportunity of putting forward his defence, if any. ‘The appellant was convicted by the District Court of Iringa district of cattle theft, contrary to s.265 and 268 of the Penal Code, and was sentenced, in accordance with s.5(¢) of the Minimum Sentences Act, 1972, to a term of five years’ imprisonment. He thinks that decision is not a triumph for justice. The appellant's co-accused, who gave evidence on his own behalf, was acquitted of the charge. After he had bbeen addressed in terms of s.206 of the Criminal Procedure Code, the appellant sai Tolect to give a sworn statement. Ie was an clection which he was not afforded the opportunity of exercising! The learned trial Magistrate proceeded to write his judgment soon after the appellant's co-accused, who was the first accused in the case, closed his defence. He delivered the judgement on the same day. No one will think of disputing the elementary proposition that every person charged before a court of law in this country has the right to defend himself, including giving evidence on his own behalf. As far ax criminal proceedings conducted in subordinate courts are conestned, that right is specifically mentioned in 5.206(1) of the Criminal Procedure Code, which I proceed to read:— At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which, under the provisions of ss,181 to 189 (inclusive) of this code, he is liable to be convicted, the court shall again explain the substance of the charge to the accused and shall inform him that he has the right to give evidence on oath from the witness box and that, ifhe does so, he will be liable to cross-examination, or to make a ‘statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence if any. (the emphasis is supplied).150 TANZANIA LAW REPORTS 1980] TLR Itis more likely than not that the omission of hearing the appellant in his defence was justan oversight. If, however, it was a deliberate step, I cannot resist the temptation to say that it was one of the most irregular steps a court of justice can take. Even if the evidence laid in the scale against an accused person appears Linanswerable, the court is still under the legal duty to hear the other side, if that side is prepared to talk, In this connestion it is not inappropriate, I think, to recall the memorable words of Mogarry, J. in John ¥. Rees and Others [1969] 2 All E.R. 274, at p.309: As everybody who has anything to do with the law well knows the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswe- rable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained......Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that decision against them has been made without their being afforded any opportunity to influence the course of events. “The right to defend himself after a case to answer has been made out which the accused person enjoyes undor ‘our law is not, as some people would be inclined to think, a procedural right. It isa fundamental, substantive Tight, denial of which is a fatal irregularity. Nothing can cure that irregularity. I devoutly hope that ‘the day will never come when that right is denied to any person who enjoys the protection of our laws, | would allow the appeal. ‘Before I part with the ease I desire to say one word or two ona procedural point. One of the witnesses im this case was a twelve-year-old child, Even before last year, when the legislature defined the term “a child “of tender years,” it was well settled by case law, I think, that the term meant a child of any age or apparent ge of under fourteen years: see Kibangeny Arap Kolily. R. (1959) E.A. 92, and Sakilav. Republic, (1967) E> 403, a case in which (as counsel) | had, the priviloge of representing the Republic. Tn the case now at the Bar ‘the learned trial Magistrate received the evidence of the child without first conducting a voire dire exami Nation, This was an error, as a study of Sakila’s case will readily show. Before the court permits a child of tender years to become a witness in a criminal case it must conduct a voire dire examination. The court fas to make a decision, first, whether, in its opinion, the child understands the nature of an oath, and, then, if that question is answered in the negative, whether he is possessed of sufficient intelligence to warrant {he recoption of his evidence, and whether he understands the duty of speaking the truth. Tf the first question is decided in the affirmative, then the child’s evidence should be received under ‘oath or, as the case may be under an affirmation. If, on the other hand that question is decided in the nba ac and the other two questions are decided in the affirmative, then the child's evidence should be reccived ‘without any oath or affirmation being administered. As required by s.127(2) of the Evidence Act, 1967. te amended by s.11 of the Evidence (Amendment) Act, 1980, the opinions of the court on these matters should be reflected on the record of the case. ror the reasons T have endeavoured to state, F hope not at an inordinate length, | allow the appeal. quash the conviction andset aside the senteneeimposed thereon. |The order for compensation ig elso set side, Unless his personal liberty is otherwise lawTully assailed, the appellant be set at liberty forthwith Appeal allowed. MORIS ONYANGO v. THE SENIOR INVESTIGATION OFFICER CUSTOMS DEPARTMENT MBEYA “plicit Court oF TANZANIA AT MBEVA (SAMATTA, J.)- Misc. Criminal APPLICATION 25 oF 1981 ‘Mandamus—Order—Cireumstances under which order may issue. “The applicant applied for an order of mandamus directing the respondent to restore to the applicant thiety-fve bags of sh Ne seized from him. The applicant argued tha the seizure was in violation ofthe JaweT ar are er I HC. MORIS ONYANGO v. CUSTOMS DEPARTMENT MBEYA (Swarts, J.) 151 ofthe land. |The argument by the respondent was thatthe seizure was carried out because it was reasonably believed that the applicant was about to export the goods illegally to Zambia, Held: (i) an order of mandamus is a discretionary remedy; (ci) an order of mandamus will issue where there is no specific egal remedy for enforcing the specific {egal right claimed or where an alternative remedy is considered by the court to be less convenient, bonefcal and effectual; (i) in this case the order would not be granted as the apoticant had the alternative remedy to invoke 8.159(4) of the East Africa Customs and Transfer Management Act, Application dismissed, No cases referred to. A.J. Saffari, for the Respondent, T.H.M. Mwakilasa for the Applicant November 13, 1981. SAMATTA, J.: T have before me an application for an order of mandamus directing the respondent to restore to the applicant thirty-five bags of fish he scized from hin ‘The respondent is a senior investigation officer in the Customs and Excise Department of the Ministry Tapiuanes. The parties are at one that the thirty-five bags of fish were seized on September 6, 1981, at Tunduma, a small town at the Tanzenia-Zambia border, According to the applicant the seizure weg ne Wclation of the law of the land. “The respondent, on the other hand, asserts that the seizure was cunien fhe in accordance with the law because it was reasonably believed that the applicant was about to export the goods illegally to Zambia. {isan entirely correct proposition to say that an order of mandamus i a discretionary remedy. The sree Rot one of right, and itis not issued as a matter of course. The purpose of the order hws supply defects of justice. Tt will therefore issue where there is no specific legal remedy for enforcing the specific {£28} right claimed or where, although there is an alternative legal remedy, such mode of etna considered £2, he court to be less convenient, beneficial and effectual, As a general rule, the court wil ete issue the order if there is another convenient or feasible remedy within the reach of the spplicaat. “Te ah appli- Sesion at the Bar Mc. Saffari, counsel for the respondent, has submitted that such an alternave remedy PUN in this case. “Mr. Mwakilasa, counsel for the applicant, made no attempt to counter thar argument. Tacit the argument is well-founded. If the applicant believes that the seizure af hie préperty by the respondent is a violation of his legal rights, then it was open for him to invoke the Provisions of s.159(4) of the East African Customs and Transfer Management Act. The subsection reads ay fellowes Where anything liable to forfeiture under this Act has been seized, then, subject to Proviso (@) to sub-section (1) and sub-section (3)(a) the owner thereof may, within ene month of the date of the seizure or the date of any notice given under subsection (0). as the case may be, by notice in writing to the Commissioner-General claim such thing, After receipt of the notice in writing the ‘Commissioner-General’ is required to act in accordance with the Frage pe ett of the Act. Mr. Saffari informed me from the Bar that the applicant hae is teat already lodged a claim to the ‘Commissioner-General’ for the thirty-five bags of fish, he applicant's counsel did pai Pule the accuracy of this statement, Be that as it may, I think, for the reasone Thon given-albeit briefly, that the applicant has not made out a sufficient case to warrant this cours exercising its discretion in his favour, It follows that his application must fail. It is dismissed, Application dismissed.152 TANZANIA LAW REPORTS [1980] TLR REPUBLIC v. AKUTENDA MWAIPOPO AND OTHERS (Samarra, J.) -Hicn Court oF TaNzaNiA AT Maya (SAMATTA, CRIMINAL REVISION 1 OF 1981 Cximinal Practice and Procedare—Disobeying lawful order—Order given by District Court—Whether Primary Court has jurisdiction to try the case—S.124 of Penal Code—First Schedule to the Magistrates’ Courts Act, 1963. Jnrisdiction—Primary Court trying a case of disobeying lawful order—Order given by District Court—S.124 of Penal Code—First Schedule to the Magistrates’ Courts Act, 1963. ‘The accused were convicted by a Primary Court Magistrate for disobeying a lawful order given by a District Court. Or revision by the High Court. Held: a primary court has jurisdiction to try a case under s.124 of the Penal Code only if the order, warrant or command was given by a primary court. Convictions quashed, sentences set aside. No cases referred to. May 29, 1981. SAMATTA, J.: The nine accused persons in this case were convicted by the Lusungu Primary Court of disobeying a lawful order, contrary to s.124 of the Penal Code, Each of them ‘was sentenced to a term of nine months’ imprisonment. ‘These sentences were later confirmed by the district court of Kyela District. ‘The order which the accused persons were convicted of disobeying had been given by the district court in Civil Appeal No. 10 of 1980: The Chairman of tkulu Village v. Kulefya Mwanyama. Did the primary court have jurisdiction to try the case? T have no hesitation in answering that question in the negative. A glance at the First Schedule to the Magistrates’ Courts Act, 1963, which provides a list of offences which a primary court can try, will, I think, readily show that the jurisdiction of a primary court to try offences under 8.124 of the Penal Code is very limited. A primary court has jurisdiction to try an offence under that section only if the order, warrant or command was given by a primary court, If the order, as was the case in the case.now under consideration, is given by a court other than a primary court the offence cannot in law be tried by a primary court. It follows from this proposition, if logic is to prevail, that the Lusungu Primary Court had no jurisdiction to try the nine accused persons. ‘The proceedings which that court conducted in this case are, in the eye of the law, a nullity. The Director of Public Prosecutions has informed this court in writing that he does not wish to be heard in support of the convictions'of the accused persons, In exercise of my revisional jurisdiction, T quash the convictions and set aside the sentences imposed thereon, Unless they are otherwise lawfully held in custody, the accused persons be set at liberty forthwith, Convictions quashed. MWASEGILE SAMULI v. MAKANIKA KATATULA (SamaTTA, J.) MWASEGILE SAMULI v. MAKANIK KATATULA Hic Court oF TANZANIA AT Moeva (SAMATTA, J.)- Civit. APPEAL 11 oF 1978 Administrative Lan—Delegation of functions—Judicial functions cannot be delegated. ; Evidence—Expert evidence—Whether witchdoctors covered—Evidence Act 1967, s.47(T): and Magistrates Courts (Rules of Evidence in Primary Courts) Regulations 1964, r.10(30)(a). The appellant and respondent accused cach other of withcraft before a Primary Court, The PrimaryHC MWASEGILE SAMULI v. MAKANIKA KATATULA (SAMATTA, J.) 153, Court ordered the parties to submit themselves before a witchdoctor and on the basis of the witchdoctor’s evidence the outcome of the case would follow. On appeal Held: (i) a judicial function cannot be delegated unless expressly authorised by the law; i) a witchdoctor is not an expert witness. Case referred to: Packer v. Packer [1953] 2 All E.R. 127. T.ELM, Mwakilasa for the Appellant S.B.M. Tukunjoba for the Respondent eptember 5, 1979. SAMATTA, J.: Quod di omen avertant, That is what T would say on the possi- bility of the procedure which the trial court adopted in this case becoming an acceptable procedure in a court of justice in this country. Iam not unaware, in making that statement, that in Packer v. Packer [1953] 2 All E.R. 127, at p.129, Denning, L.J., said:— If'we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goss on, and that will be bad for both. The primary court magistrate was apparently determined to see that the law was in motion, but I would rather see the law standing still than serve as a servant of the law which recognises a role for witchdoctors in the dispensation of justice. The appellant, Mwasegila Samuli, appeals against the decision of the district court which set aside the decision of the primary court and entered judgment in the sum of Shs. 3,000/- for the respondent. Tcis not necessary, I think, to state the facts of the case in detail. The respondent had instituted civil Proceedings against the appellant in the primary court claiming damages for an alleged slander. Apparently the suit was based on customary law, and not on the English common law of tort. The respondent's case was that sometime in November 1976 the appellant had falsely accused him before a group of local leaders of ten cells as being a wizard who had killed two children by use of witcheraft. “ine appellant's defence was justification, After the appellant had given his evidence in which, apart from admitting that he himself was a wizard, he claimed that his accusation against the respondent was trae, the primary court magistrate ordered that parties submit themselves to an examination by a witchdostor as fo whether they were wizards, The assessors’ opinions as to whether that order should be made Bere apparently not sought by the magistrate. To enable the parties to comply with the magistrate’s order the hearing of the case was adjourned to another date, When the hearing resumed the court was informed that the examination of the parties by a witchdoctor had not taken place. ‘The appellant, blamed the fesondent for having made it impossible for the examination to take place. The respondent on the other hand, blamed the appellant. ‘The magistrate was of the view that the question as to who was to blame for {the non-compliance of his order was important in the determination of the case before the court. The court accordingly proceeded to hear evidence from the parties and their witnesses on that issue. At the end of that exercise the court proceeded to determine the case. Having formed the opinion that it wes the respondent who had made it impossible for the examination by a witchdoctor to take place, the court dismissed the slander action. Before coming to that decision the court did not give any opportunity tothe Appellant to adduce evidence in support of his defence. The primary court magistrate was of the view that, since the appellant did not deny having accused the respondent of practising witcheraft, the burning Baus in the case was whether in fact the respondent was a wizard. He thought this question could best Peanswered by a witchdoctor. Its apparent from the record of the case that the tagistrate was going to pal the witchdoctor as an expert in terms of r.10 (3)(a) of the Magistrates’ Courts (Rules of Evidence in Primary Courts) Regulations, 1964, and his word as conclusive on the outcome of the case, T enaue approve that approach. With respect to the primary court magistrate, I am happy to say that Iam not a convert to an opinion that witchcraft is a science.154 TANZANIA LAW REPORTS (1980) TLR, T know of no statute, judgment or law book in which that primitive practice has been recognised as a science, A witchdoctor cannot, therefore, be treated as an expert for the purpose of the application of the rule I mentioned a moment ago, or for the purpose of the application of s.47(J) of the Evidence Act, 1967. To ensure that the law continues to command the uncritical obedience of the man on the UDA omnibus the witchdoctor must never be treated as an equal of a medical doctor, chemist, physicist, biologist or engineer. To treat a witchdoctor as an equal of such experts would plainly defeat the intention behind the enactment of the Witchcraft Ordinance-to discourage, if not to bring to an end, the belief in potency of witchcraft. Be that as it may, it was wrong in law for the primary court magistrate to have delegated the task of deciding the truthfulness or otherwise of the appellant’s witcheraft accusation against the respondent to a witch- doctor, Unless authorised by law to do so, a judicial tribunal cannot delegate its task, Asa general rule, a judicial function, unlike an administrative function, can be performed only by the tribunal which is entru- sted with the task of exercising the function, It would be disastrous, in my view, if the law were different. ‘The learned District Magistrate did address his mind to the procedural irregularities which took place at the trial, He thought that, notwithstanding those irregularities, it was possible for him to decide the ‘appeal before him on its substantive merits. [cannot agree. In my settled view the irregularities were so grave as to vitiate the proceedings before the primary court. It cannot be said, in my judgment, that the case was tried, leave alone properly tried, by the primary court. What, then, is to be done now? I think the case should be remitted to the primary court fora retrial, Accordingly, [allow the appeal, set aside decisions of both courts below and order that the case be tried de novo by another magistrate of competent jurisdiction sitting with a new set of assessors. ‘Before parting with this case I should like to remind the primary court magistrate of the provisions of s.8(2) of the Magistrate's Courts Act, 1963, as amended by the Written Laws (Miscellaneous Amendments) ‘Act, 1973, which judging by the contents of the record of this case, the magistrate is not very familiar with, ‘The sub-section reads:— 2, All matters before a primary court including a finding on any issue, the question of guilt or innocence of any accused person, the determination of sentence, the assess- ‘ment of any monetary award and all other issues and questions whatsoever shall in the event of difference between a magistrate and the astessors or any of them, be decided by the votes of a majority of the magistrate and the assessors present, and in the event of an equality of votes the magistrate shall have a casting vote in addition to his deliberative vote. This provision is not there to decorate the statute; itis there to be complied with by courts. Tmake no order for costs as to the proceedings in the two lower courts and in this court. Appeal allowed. HOSIA LALATA v. GIBSON ZUMBA MWASOTE (Sawarta, J.) HOSTA LALATA y, GIBSON ZUMBA MWASOTE Evidence—Confession—Statement to police—Statement retracted during trial Statement admissible, Criminal law —Exchange control—fmporting into Tanzania Tanzania currency —Exchange Control 0, inace (Cap. 294, s.21(1)(a), and para. 1(i) part II of Sth Schedule (1). rrcagsbondent was charged with unlawfully importing into the country Tanzanian currency contrary SQEZLG) and paragraph 1(i) of Part Two of the Fifth Schedule to the Exchange Control Ordinence Cap. 294 of the laws. The respondent made a statement to a senior police officer admitting the offence. This | Satement was retracted during tril. Both the trial Court and the High Court decided in favour of tho j respondent. The D.P.P. was aggrieved and appealed | ' "naan mute Et i sh minsCA. THE Director oF PuBLIC ProsecuTIONs v. NoaH Kirenya (MustarA, J.A.) 213 Held (i) a confession to a police officer is admissible: (Gi) there was sufficient independent corroboration of the appellant's statement to sustain a conviction of the offence charged. Appeal allowed. No case referred to. ELK, Mwipopo for the appellant. S.B.M. Tunkunjoba for the respondent. ‘September 8, 1980. The following considered judgement ofthe court was read by MUSTAFA, J.A.: ‘Noah Kipenya was charged in the District Court of Mbeya for unlawfully importing into Tanzania. Shs. 49,000/- in Tanzanian currency contrary to s.21(1)(@) of the Exchange Control Ordinance and paragraph 1G) of Part Two of the Fifth Schedule to the Exchange Control Ordinance Cap. 294 of the Laws. He was acquitted by the District Court. The Director of Public Prosecutions appealed against such acquittal to the High Court which rejected the appeal. The Director of Public Prosecutions is now appealing to this Court. The prosecution evidence is straight-forward. P.W.| Frank, a bank officer, found Nosh at Mbeya, shortly after Noah had entered Tanzania from Zambia. When interrogated Noah said he had brought money, apparently Tanzanian money, from Zambia. Noah was holding a carton, P.W.! took Noah to a police station, and when the carton was opened, it was found to contain Tanzanian Shs. 49,000/- in notes, Noah told P.W.1 that he had changed the money at Nakonde, a Zambian border town. It was in evidence that there was no bank of Zambia at Nakonde. P.W.2 Msangi, a senior police officer, interrogated Noah when Noah was brought to the police station. After he was charged Noth made a statement which P.W.2 recorded and which Noah signed. P.W.2 gave a copy of the statement to Noah. P.W.2 said that Noah consented to make the statement and was in no way forced to do so. The statement Exhibit P4 was admitted at the trial Court and contains a clear admission by Noah that he had brought the sum of Tanzanian Shs, 49,000/- across the border from Zambia into Tanzania. The said statement amounted to a confession by Noah of the offence charged. The statements made by Noah to P.W.1 and to P,W.2 were admissible in terms of paragraph 6(a) of the Fifth Schedule to the Exchange Control Ordinance. When P.W.1 and P.W.2 gave their testimony, their evidence as to the statements made to them by Noah was not challenged by Neah’s advocate. When Noah gave evidence, he alleged that he never made any statement at all to P.W.2, nor did he recieve a copy of such statement. At the District Court Noah’s advocate relied mainly on the submission that the confession to P.W.2 was retracted and therefore corrobo- ration was needed. . The magistrate found as 4 fact that Noah did make the statement to P.W.2 and did receive a copy thereof. He however found that P.W.2 did not caution Noah before obtaining the said statement, and was of the view that if he had been duly cautioned Noah might have withheld makingany statement. Incidentally, Noah had made no such suggestion. The magistrate said in those circumstances he was not satisfied that the confession was wholly true and thet he would not convict without corrobation and he found none and therefore he acquitted Noah. It will be seen that the magistrate did not refer to the evidence of P.W.1 nor to the fact that the evidence of P.W.| and P.W.2.was unchallenged. ‘On first appeal the judge in his judgment said that the entire case for the prosecution rested on Exhibit 4 (the statement made by Noah to P.W.2} which Noah stad recanted in court, He thought that the issue whether the statement was made voluntarily was not canvassed at the District Court, and he was not satisfied that the statement was made voluntarily, If we understood him correctly he thought that the statement was wrongly admitted. In any event he said he would not have convicted without corrobation, and he could find none. He therefore dismissed the appeal by the Director of Public Prosecutions. He also did not refer to the evidence of P.W.1 As we said earlier, the evidence led by the prosecution was straight-forward. P.W.I's evidence is clear. It has not been challenged in any way. Noah admitted to him that he had brought the money into Tanzania from Zambia. The statement which amounts to a confession made by Noah to P.W.2 was clearly admissible. P.W.2 said Noah consented to making the statement after he was interrogated. He was not challenged on this evidence. Tt was only at a very late state that the defence took up the point that Noah never made any statement to P.W.2. Noah could not give any good reason why P.W.2 was not questioned on this crucial point. In any event P.W.1’s evidence was not considered by both the courts below. P.W.I's evidence has stood unchallenged and is obviously credible. The statement Exhibit P4 which was properly24 TANZANIA LAW REPORTS [1980] TLR admitted by the trial Court establishes the guilt of Noah beyond doubt. If corroboration was needed for that confession, it can be found in the sum of Shs. 49,000/- in Tanzanian notes in the possession of Noah at the material time. Both the courts below erred in holding that there was no corroboration. ‘We are satisfied that the prosecution has proved its case against Noah as charged. We allow the appeal, set aside the order of acquittal and order that the record be returned to the District Court with a direction to convict and to pass the appropriate sentence according to law. Appeal allowed. ‘Tne Attorney GENERAL v. Lesto! NDEINAI & JosEPH SALEYO LaizeR AND Two OTHERS (NYALALI, Cl.) Tue AtrorNey GENERAL v. LestNo! NDEINAI & JosePH SALEYO LAIzeR AND TWO OTHERS -COURT OF APPEAL OF TANZANIA AT ARUSHA (NvALALI, C.J., MWAKASENDO AND KISANGA, JUA)- CRIMINAL APPEAL 52 & 53 oF 1979 Practice and Procedure—Habeas Corpus proceedings—Attorney General not a party to proceedings in High Court—Whether he has locus standi in Court of Appeal. Criminal Practice and Procedure—Appeal—Memorandum of appeal filed out of time—Discretion of the Court ‘of Appeal. Constitutional law—Construction of constitutional provisions—Rale. 1977—Construction. ion—Devolution of powers—How powers devolve in Constitutional Iaw—S.8 of the Constitution—Absence from Tanzania by the President—Whether period of absence qualified oF limited—Construction. ‘Administrative law—Preventive Detention—Ouster of jurisdiction clause—Pawer and duty of the Court. Preventive Detention—Order—Order bears hand of President—Order has no Public Seal affixed to it—Effect of absence of Public Seal—S.2 of the Preventive Deteaticn Act, 1962, Cap. 490. Preventive Detention—Detention order—Right of detainee to see detention order at the time of arrest—S.4(1) of Preventive Detention Act, 1962. This is an appeal by the Attorney General against the order of the High Court at Arusha direct the release of the respondents from prison. ‘The respondents had each been arrested and detained under the authority of an order issued under s.2 of the Preventive Detention Act, 1962. The order in question was made by the Vice-President of the United Republic of Tanzania purporting to act pursuant to powers conferred on him by sub-section (1) of s.8 of the Constitution of the United Republic of Tanzania of 1977. ‘Although the detention order was under the hand of the Vice-President, it was not sealed with the Public Seal as required under the provisions of s.2 of the Preventive Detention Act, 1962. At the time this detention order was made the President of the United Republic of Tanzania was absent from Tanzania for about © week attending a Conference of the Heads of State and Governments of the Commonwealth of Nations at Lusaka. In the High Court Counsel for the applicants (now respondents) attacked the validity of the detention order mainly on the ground that the President had not delegated his powers to the Vice-President to make it. ‘Their attack was grounded on the interpretation of the provisions of s.8 of the Constitution. “They argued tbat since the absence of the President from Tanzania was for a short time (about a week) s.8) of the Constitution was applicable, in which case the President had to delegate his powers in writing. The learned High Court judge held that the detention order was invalid because it was not shown that the President had delegated to the Vice-President the power to make such order Tn the Court of Appeal the Attorney General attacked thé decision of the High Court judge arguing ‘ 4 j { }CLA. Tue ATTORNEY GENERAL v. LestNot NDEINAT (& JosePH LAIZER AND OTHERS (NYALALT, cry 25 that his interpretation of the provisions of $8 of Ihe Constitution was wrong. The Court of Appeal also ane J arguments on the effect of absence of the Pubic svn the detzation order, Tn addition to the ON heard ues some other legal points were raised. TRESS included the Tocus standi of the Attorney General athe Court of Appeal as he was not a party in the proceedings in the High Court: that che ‘appeal was out in triwee whether the Court had jurisdiction to question “jetention order made under the Preset: ofc petention Acti in the light of s.3 of the Act which ‘provides that no order made under the Act shall be {questioned in any court; and the right of a detaines {9 servis detention order at the time of arrest; | Held: (i by virtue of s.2 of the Criminal Procedure Code which defines “public prosecutor” te include the Attorney General and 1.4 of the Habeas Corpus Rules he Attorney General has locus standin eis °° Gi) the paramount public interest agfparent ‘7 his ease was good reason for whe Court exercise its digenstion to allow the memorandum of appeal to be filed out arrime by virtue of 15.8 and 45 of the Tanzania Court of Appeal Rules, 19795 (iii) a constitutional provision should not be construed so as to defeat its evident purps so as to give it effective operation; Guy of the Constitution provides for an effet constitutional machinery for preventing the dissolution and entire disintegration of society coeeriver there is a vacancy in the office of the President or srmesident isseriously incapacitated or the Presiden) thas left the country without delegating his.functions, (@) where the absence Irom Tanzania by (He ident falls under sub-section (1) of 38 of the Constitution the Viee-President would have presidential authority to detain by automatic operation of the camsitutiom: but where such absence falls under subsection {G) of 8 such authority must be delegated 10 itn in writing by the President: {vip the words used under sub-section (1) of s # of the Constitution, in so far as they relate to absence from Tanzania, do not qualify or limit the duration 3 pach absence, therefore the absence which arises fom Trortacts of this case falls within the ambit of sub-sector (1) of .8 of the Constitution: fi) an order for detention which is not aftixed on oe Public Seal as required by the provisions of 3.2 of the Preventive Detention Act. 1962, is & ‘complete nullity and therefore illegal: (ii) a person detained under the Preventive relccation Act has a right to be shoven the detention order at the ime of his arrest; (S.4(1) of the Act, construed) (ix) courts of law have power and a duty €0 set ‘that the powers of detention conferred on any person are exercised rightly, honestly and bona-fide Hotwithstanding ouster of jurisdiction clauses: ose, but rather prayer by the Attorney General rejected. Order of the High Court upheld but for a different reason- Cases referred to: (1). Rev. Thomas Petham Dale (1881] 6 0.8.0. 376. (2) Rex ¥. Browne (1686) Shower (KB 184, G)_Liversidge ¥. Sir John Anderson [1942] A.C. 206. G) Greene ¥. Secretary of State for Home Affaim [1942] A.C. 984. (5) _H_ Das +, District Magistrate, Cuttack [1969] A-LR. 43 S.C. () Mohamed Shaft v. The State of Jammu and Kashmir [1970] A.LR. 688. (7) Uganda ¥- Commissioner of Prisons Ex Parte Matovu [1966] E.A. 514, (@) William Musala Chipango v. The Attorney vaeral “(Selected Judgement of Zambia n.28 of 1970 H.P. CONST/REF-/2 (9) Uganda v. Commissioner of Prisons (1960) EA. StS. (10) Bell ¥. United States, 249 U.S. 81, 8% {1955}. (11). Pyx Granite Co, Ltd. ¥. Ministry of Housing ‘And Local Government [1960] A.C. 260. (12). Laker Airways v. Department of Trade [1977] Q.B. 643. (13) Anisiminie Ltd, v. Foreign Compensation Commission and Another [1969] 2 W.LR. 163- (14) Re Akoto and Seven Others (1961) VolITT panel of the International Commission of Juriss, 86 ‘A. Haka and F.G. Miawa for the appellant. F.B. Mahatane and J.J.A. Male for respondents. July 23.1980. ‘The following considered judzmens Were read: NYALALT, CJ. This is an appeal ‘he High Court at Arusha in an application for directions 'n216 TANZANIA LAW REPORTS (0980) TLR At the consolidated hearing ofthe application inthe High Court 4 photostatic copy of a detention order Penigenlly made under s.2 of the Preventive Detention Act, Cap. 490 and apparently signed by the Vice. President of the Republic was produced as justification ter the detention of the applicants. The order Produced in court did not bear the Public Seal. I Messrs Mirambo and Mwale learned Advocates for the applicants in the High Court attacked the {lidity of ‘the detention order mainly on one ground. they On the ground that the Vice-President Bas no power to make the detention order unless the Presideet of the United Republic delegates in writing such power to him. Mr. Mwale also mentioned in Passing the requirement for the detention order to bear {He Public Seal but neither he nor Mr, Mirambo pressed the Point to challenge the order producéd in the High Court. As to the admissiblity of the photestatie Copy of the order the matter was neither raised nor tically the constitution operates in such a way that the Honourable the Vice-President al along tans BOWES Of His Excellency the President. This seems te be the stand al along adopted and pursued by the respondents assisted an it were by their learned Counsel the learned State Attorney. (On my part with the greatest respect to all concerned with this stand I do not of course subjecting myself to correction by the Come uf ‘Appeal yet to be constituted nd wea ended the said constitution to operate so simply auto- doorully as this stand seems to allude to. In my very humble opinion the above 1uoted extract must be read together with as rightly pointed out by Mr. Mirambo learned Counsel for the two applicants sub-section 3 aut sub-section 4(a) of the said s.8 of the Constitution 1977. of His Excellency the President shou! Side the Government HeadquartersCA, Tas ArrorNty—GENERAL v, Eesinot NpEINAr & JostrH ‘Latzer AND OTHERS (NYALALL, CJ.) 217 delegation of powers must be done by His Excellency in writing and the said written elceation should specify which powers exercisable by His Excellency the President ate being delegated to the person named inthe said written delegation. ‘The absence af His Excellency the President during the time when this, “detention order” was promulgated gathering from the press news which we as judges aft also allowed and PXpected to read. was a very reasonably short one when His Excellene) Ws heading CAPecrcroania delegation to the Commonwealth's Heads of State and Heads of Cavornments Conference at Lusaka which took approximately one week. This 08 concoms to be the short absence from office by His Excellency which is contemplated by the legislature in sub-section 3 and 4 of s.8 of our Constitution. (The learned Judge continues in another part of his ruling?) ‘As rightly pointed out by Mr. Mirambo one of the to learned Counsel for the two applicants there is no provision for delegation of His ‘Excellency's powers within tee pe nentive Detention Act 1962 itself. ' Therefore anybody claiming to exercise powers under that Act can only sustainably do so i iis Excellency is out of the country especially so for only a brief period as was ‘the position in this case by: specific Gelogation oF such powers in writing as generally provided for Jn our Constitution as I believe, amply demonstrated above (Furtheron in his ruling the learned Judge stated:) aerom reant case it was upon the respondents to prove that the powers rested in 1s Ticcelleney the President were atthe tnaterial time only delegated to the Honourable Haccrrecdent and not for the applicants to prove the contrary and defintely not for Nhe court to share a presumption entertained by the respondents that the assumption ae ounid powers was in written delegation, The question stil lingers on, “Where is erarseritten transferor call it delegation of powers.” Worse still where is an HOE: tat ee Ruthority or Power that at the material time the Honourable Vice ren ont was the President ofthe United Republic of Tanzania as contended By the earned State Attorney for the respondents “Tha Memorandum of Appeal of the Attorney—Genera states five grounds of appeal as follows: 1 tthe learned Trial Judge erred in law in holding that “Katiba ya Jamburi ya Moungano wa Tanzania, ya Mwaka 1977” hereinafter referred to as the Cov fitution, did not, under the circumstances of this case, provide for the ‘automatic Saar the Presidential Powers by the Hon. Viee—President in absence of His Encelleney, the President of the United Republic of Tanzania from the county: a. The learned Trial Judge erred in law in failing to appreciate the fact that when the President does not delegate his powers to the Vice-President in writing as pet 5G) of the said Constitution, then in his absence, the provision of s-8(1) of the Constitution applies automatically 5 3, The larned Trial Judge erred in law in filing to appreciate the fact that the provisions of s.8(1) and 8(3) of the Constitution are two distinctive provisions, aa eeacrecy providing for automatic exercise of Presidential Powers under the aaa sanees stipulated therein: and s.8@2) giving the President option of when ceslelogate his powers and furthepthat he erred in holding that interpretation of teach of these sections should be done in the context of the others 4, ‘Thelearned Trial Judge erred in holding that the applicable section in the case was 5.8(3) of the said Constitution; sae reed rial Judge erred in fact in holding that the President's one wesk see eetram the country during the material time was a short one as contemp/a- wy in s.8G) of the Constitution and hence the necessity of invoking the Pro” visions of that section so as to give Presidential powers to the Viee~President- In short, these five grounds of appeal relate to a single issue ~ that is — whether s.8(1) of the Consti- tution gives the Vioe-President of the United Republic automatic authority to ext Presidential Powers, including the power to make an order directing the detention of a person under s.2 of the Preventive Deten- aan ace With the permission of the court, 2 second issue was raised and argued ip the course of the bearing of the appeal and that is— whether the absence of the Public Seal om the detention order is fatal to218 TANZANIA LAW REPORTS (980) TLR hat order. The issue Of admissibility of the photostatic copy of the order was inadvertently not raised or argued in the High Court or in the course of the appeal! and I will not express any opinion on that issue, Since to do so would be violative of a cardinal principle of justice embodied in the Latin maxim: “Audi ‘Alteram Partem, Audiatur Et Altera,” meaning that “no man should be condemned unheard or Without having had an opportunity of being heard.” The same principle is perhaps, more relevantly to this case stated in another Latin maxim thus: “Qui Aliquid Statuerit Parte Inaudita Altera, Aequum Licet Dixerit, Haud Aequum Fecerit,” meaning that “He who shall decide anything without the otherside having been heard, although he may have said what is right, will not have done what is right. Twill therefore confine my judgment to the two main issues raised and argued for and against the appeal. Before I do so however, I have to dispose of two preliminary matters raised at the commencement of the appeal. Meats Mahatane and Mwale, learned Advocates for the respondents in this Court objected to the appeal on two grounds, fistly in effect that the Attorney-General has no ‘locus stand” in this case since he ‘was not a party to the proceedings in the High Court, and secondly in effect that the appeal was out of time Ie the Memorandum of appeal was filed in court after the expiry of the period prescribed under ¥.65 of the Tanzania Court of Appeal Rules, 1979. T will start with the second ground of objection. We heard submissions from both sides and we were of the unanimous view that this Court by virtue of rs.8 and 45 of the Tanzania Court of Appeal Rules, 1979, has even on oral application and for sufficient reasons, a discretion, even at that stage, o extend the time for Todging @ Memorandum of appeal in criminal proceedings. We were of the view that the paramount public interest which is indisputably apparent in this case, has sufficient reason for extending the time and we decided accordingly. It scems to me that this particular de +.65(1) and (5) of the Rules which state: jon may not have been necessary because of the provisions of 65 (il) The appellant shall, within fourteen days after service on him of the record of appeal, lodge a meme.andum of appeal, in sixtuplicate, with the Registrar or with the deputy Registrar at the place where the appeal is to be heard. @ @) @ -. (5) _ Tino memorandum is lodged within the prescribed time, the Court may dismiss the appeal or may direct that it be set down for hearing; but where an appeal is dismissed under this sub-rule, the appellant, if he can show sufficient cause may apply to the court to restore it for hearing. “The words which I have underlined mean, inter alia, that: where a memorandum of appeal is lodged cout of time, the court may decide to hear the appeal notwithstanding the memorandum of appeal being lodged out of time. ‘With regard to the second ground of objection, we unanimously overturned it after hearing arguments from both sides but we reserved our reasons until now. Teiscommon ground that the title ofthe case in the High Court cites the applicants as being the present respondents, whereas the respondents then were cited as being the Regional Prisons Officer and the Regional Police Commander. The Attorney-General is not cited anywhere in the ttle heading of the case. “The proceedings in the High Court show that a State Attorney from the Attorney Generals Chambers appeared on behalf of the Regional Prisons Officer and the Regional Police Commander. No objection was raised then against his appearance. 7 Mi Mahatane has submitted in this appeal in effect that the State Attorney properly appeared in the High Court in his capacity as a public prosceutor as the proceedings were in the nature of riminal pro- ceedings. rer th due respect to Mr. Mahatane, the same argument sustains the personal appearance in criminal proceedings by the Attorney-General, who is by virtue of s.2 of the Criminal Procedure Code included in the definition of the terminology “public prosecutor.” However, the real answer to the objection is to be found in rs.2, 3 and 4 of the Habeas Corpus Rules which state: # H(A. Tue ATTORNEY GeNenal.v. Lesinot NoEINA! & Josepn LAIZER Two OmneRs (NVALALLC J) 219 2. An application tor the issue of directions in the nature of a Habeas Corp shall aocane sn the fret instance Loa Judge in Chaimbersexparte supported by affidavit in triplicate: 4, Ir the application is not dismissed the judge shall order summons to hstt vited to the person in whose custody the person alleged to be improperly sched i said to be, requiring his uppearance in person oF by advocate together seth the original of any warrant or order for the detention, at a place and ine aya therein to show cause wily the person so detained should not be forthwith released 4. Thesammons shall be accompanied by a copy of all afidavits lodged in support af the appligation and where the person detained is in public custody # duplicate Of the application, the summons, and of all alfdavits lodged in suppor thereof shall be forwarded to the Attorney-General On a proper construction of these rules, and especially 4 it seems that the Alton) General, by necessary implication, iy 4 party 10 every Habeas Corpus proceedings “where the person detained is in public custody,” otherwise there is no reason for requiring him to be served with copies of application, roams and affidavits, ‘The failure to cite the Attorney General in the title ofthe ease ip the High Court does not therefore alter this basic position Fvust now turn to the merits of the appeal by starting with the frst main issue concerning aNvomee authority of the Hon. Vice President to exereive Presidential Powers, including the power 0 make detention arders under the Preventive Detention Act, $s.2 and 3 of that Act state: 2) Where (a) "_ It is shown to the satisfaction of the President that any person is conducting himself so as to be dangerous to peace and good order in any part of Tanganyika or is acting in a manner prejudicial to the defence of Tanganyika or the security of the State; or (b) The President is satisfied that an order under this section is neces sary to prevent any person acting in a manner prejudicial to peace land good order in any part of Tanganyika, or to the defence of Tanganyika or the Security of the State, the President may, by order under his hand and the public seal, direct the detention of that person. (2) Unless the President is satisfied that itis not feasible or practicable to re quire that any particular item of information shall be given on oatb. he shall require that any information on which he satisfied himself that personal, is conducting himself or acting in any such manner aforesaid br that it is necessary that an order be made, s the case may be, shall bbe given on cath. (3) No order made under this Act shall be questioned in any court. It is apparent from the above quoted sections that only His Excellency the President may make 2 detention omer under the Preventive Detention Act. But then. what does the terminology President” sereriyoriche Act does not define it, However, under s.3 of the Interpretation of Laws and General Clauses thet, 1972, Cap. 1, which applies “to, and in rlation to, every Act, whether enacted before Co after the tet necment of” the Interpretation of Laws and General Clauses Act, itis stated that “President” corre the President of the United Republic, and includes any person performing the functions of the President tinder s.9 of the Constitution, (the emphasis is mine) Ieis important to note that 5.9 of the Constitution cited in the above definition, refers 40 s-4 of the Interns Constitution of Tanzania of 1965 which continued to be in force wail it was replaced with effect from 26th April, 1977 by the present Constitution of 1977. 1t is also to be noted that the provisions of 5.9 of ror actin Constitution of 1965 which provide for the exercise of Presidential functions by curesin persons tinder certain circumstances are now embodied in s.8 of the present Constitution, | At mult therefore follow Uta the meaning of “President” isto be taken as including the persons exercising Presidential functions in aaa Mdanee with the provisions of +8 of the present Constitution. Such persons include the Hon. Vice- President, who comes first in the list.220 TANZANIA LAW REPORTS. (1980) TLR S.8 of the Constitution has seven sub-sections, the first four of which deal with the various situations nder which persons, other than His Excellency the President of the United Republic may exercise Presi- ential functions. Sub-section (1) states: Endapo Baraza la Mawaziri litaona kuwa Rais hawezi kumudu kazi zake kwa sababu ya maradhi, basi Baraza hilo laweza kuwasilisha kwa Jaji Muu azimio la kumwomba Jaji Mkuu athibitishe kwamba Rais hamudu kazi zake kwa sababu ya maradhi, Baada ya kupokea azimio kama hilo na baada ya kufikiria maclezo ya daktari, Jaji Mkuo atawasilisha kwa Halmashauri Kuu ya Taifa ya Chama taarifa ya kuthibitisha kwamba Rais hamudu kazi zake kwa sababu ya maradhi, na iwapo Halmashauri Kuu ya Taifa haitabatilisha tamko hilo kutokana na Rais kupata nafou nna kurcjea kazini, basi itahesabiwa kwamba Rais hayupo. Katika hali hiyo na pia ikitokea kuwa kiti cha Rais kiwazi, au kwamba Rais hayupo Tanzania, basi wakati wote Rais atakapokuwa hayupo kazi na shughuli za Rais zitatekelezwa na mmois- wapo wa watu wafuatac, kwa kufuata orodhs kama ilivvopanewa yaani (@) Makamu wa Rais, au kama naye hayupo. basi (b) — Waziri aliyeteuliwa na Rais kwa ajili hivo, au kama naye hayupo, basi (©) Waziri aliyechaguliwa kwa ajili hiyo na Baraza la Mawaziri Lis apparent that there are three distinct situations under which a person other than the President of te United Republic may exercise Presidential functions under sub-section (I). The first situation arises hhen the President is unable to perform his functions by reason of infirmity. the second arises whenever the Tice of President is vacant and the third when the President is absent from Tanzania. However the question arises whether any formality or procedure is necessary to vest or transmit esidential authority to the person concerned when the relevant situation arises, The answer is to be found the words, “basi wakati wote Rais atakapokuwa hayupo kazi na shughuli za Rais zitatekelezwa na mmoja- apo wa watu wafvatao, kwa kufuata orodha kama ilivyopangwa.” This means in the given situations, esidential authority vests in the person concerned by automatic operation of the Constitution Sub-section (2) states: Endapo itatokea kuwa kiti cha Rais ki wazi kutokana na Rais kujiuzulu au kucariki, au kwamba Rais hayupo Tanzania, au kuwa Rais hamudu kazi kwa sababu ya ma- radhi, na Jaji Mkuu, baada va kufikitia mactezo ya daktari, atawasilisha kwa Halma- shauri Kuu ya Taifa taarifa ya kuthibitisha kwamba Rais hamudu kazi zake, wakati ambao hayupo Makamu wa Rais wala Waziri anayeweza kutekeleaa shughuli 2a Rais kwa mujibu wa masharti ya ihara ndogo ya (1), na ikiwa hawapo Mawaziri wengine katika Baraza la Mawaziri wanaoweza kukutana kwa shughuli yoyote, basi katika hali hiyo mambo yatakuwa ifuatayy. (a) Tarifa ya kuthibitisha itakayowasiishwa na Jaji Mkuu kwa Halmashauri Kuu ya Taifa itahesabiwa kuwa ni halali kama kwamba imetolewa naye baada ya kupokea azimio la Baraaa la Mawaziri la kumwomba atoe taarifa hiyo, na haitachungurwa katika Mahakama yoyote japokuwa imetolewa bila ya Jaji Mkuu kupokea kwanza azimio la Waraza la Mawaziri, na () Hatmashauri Kuu ya Taifa ya Chama itamchagua mtu atakayeonekana anafaa, kt.ckeleza kazi na shughuli za Rais wakati wote Rais atakapokuwa hayupo kazini au mpaka atakapopatikana Makamu wa Rais au Waziri atakayetekeleza ka7i na shughuli hizo ka mujibu wa masharti ya ibara ndogo ya (1). ‘A comparison between the provisions of sub-section (2) and sub-section (1) shows that the situations sisaged under sub section (2) go beyond those stipulated under sub-section (1) in that the persons who y exercise Presidential functions in the situations listed under sub-section (1) that is, the Vice ssident and the Minister appointed by the President for the purpose do happen to be absent, and thermore the Cabinet is unabie to meet to elect the appropriate Minister or to pass the appropriate resolu- tas the case may be. In those circumstances, the Constitution empowers the National Executive Com- tee of Chama Cha Mapindu7i, hereinafter called the Party, to appoint a suitable person to exercise the setions of the President during the period when the President is absent or until the Vice-President or the sroprinte Minister is available to exereise Presidential functions under the provisions of sub-section 1.CLA, Tue Attorney—Generat v. Lesinor Npeivat & Josep Laizer ano OTHERS (NYALALL, C.J.) 221 Iv is apparent that Presidential authority vests in the person concerned under sub-section (2), not by automatic operation of the Constitution but upon such person being elected by the National Executive ‘Committee of the Party. AS to sub-section (3), it states: Iwapo itatokea kuwa — (@) Rais hayupo katika mii wa Makao Makuu ya Setikalis (b) Rais hayupo Tanzania kwa muda ambao analikitia utakuwa si meetus (© Rais ni mgonjwa na anatumaini kuwa atapata natin baa ya nuda si meet, na Rais akiona kuwa inafua kuwabilisha kwa muda huo madaraka yake, basi faweza kutoa magico kwa maandishi ya humteua Makamu wa Rais, au akiona Kova sababu yoyote ile kuwa inafaa cali kumteua Waziri, basi atamnteus Wazici koa ajili ya kutekeloza Kai na shughuli ct Rais wakati Rais hayupo, na Makamu wa Rais au Waciri anayehusika, kadri itakavyokuwa atutekelezt madaraka hayo ya Rais kwit kufuata masharti yoyote yatakayowekwa na Rais Isipokuwa mashartt yaliyomo katika bara hii ndogo yafahamike hayapuusi wala kuathiri uweao wa Rais alionae kwa ouajibu wa Sheri nyingine yoyote ya kuwakilisha madaraka yake kwa mtu mvingine yeyote. The situations stipulated under sub scetion (3) are three, that 1s, firstly whenever the President is ‘absent form the City where the seat of Governinent is situated: secondly whenever the President is absent From Tanzania for a perionl which he believes willbe of short duration; and thirdly, whenever the President is ill but believes such illness fo be of short duration, Under any of those situations, the President is empowered to delegate in writing his functions to the Vice President or any Minister,and in doing so, the President may attach conditions concerning the exercise of such delegated functions, Itis clear that Presidential authority under sub section 3 vests upon the Vice - President or the Mi concerned not by automatic operation of the Constitution but upon the President delegating his functions in writing, Next, there is sub-section (4) which provides Rais aweza, akiona inafaa kufanya hivyo, kumwagiza kwa maandishi Waziri yeyote Kutekeleadt Kazi na shughuli zozote za Rais ambazo Rais atazitaja katika maagizo yake, na Wav aliyeagizwa hivyo kwa mujibu wa masharti ya ibara hit ndogo, atakuva na mamlaks ya kutekeleza kari na shughuli hizo kwa kufuata masharti yoyote yaliyowekwa na Rais, lakini bila ya kujali masharti ya Sheria nyingine yoyote Isipokuwa kwamba (a) Rais hatakuwa na mamlaka ya kuwakilisha kwa Waziri kwa mujibu wa ma- shacrti ya ibuca hii ndogo kazi yoyote ya Rais iiyotajna katika Sheria yoyote ya Jumuia ya Afrika ya Mashariki ikiwa kisheria haruhusivi kuwakilisha kazi hiyo kwa mtu mwingine yeyote: (©) twapo Rais amemwagiza Waziri yeyote Kutekeleza kazi na shughuli zozote 2a Rais ka mujibu wa masharti ya ibare hii ndogo, basi ifahamike kuwa maagizo hayo hayatamzuia Rais kutekeleza kazi na shughuli hizo yeye mwenyewe. The situation envisaged under sub-section 4 is surely a matter of expediency as determined by the President. Whenever the President considers it expedient to require a Minister to exercise certain Presi- dential functions, he may by directions in writing require the Minister to exercise the specific functions. Such specific Presidential authority does not vest in the Minister concerned by automatic operation of the Constitution but upon written directions being made to the Minister concerned. Now, neither the Attorney-General nor learned Advocates for the respondents have suggested that the Facts of this ease give rise to the situations stipulated under sub-section 2 or sub-section 4. They are right in not making any such suggestion. The Attorney-General has submitted, that the facts of this case give rise to one of the situations laid down under sub-section (1) — that is — when the President is absent from Tanzania. On the other hand, learned Advocates for the respondents have argued that the facts give rise to one of the situations mentioned under sub-section (3) — that is — when the President is absent from Tanzania for a period which he believes would be of short duration. As [ have already demonstrated earlier in this judgment, the learned Trial Judge held the same view as that advocated by learned Advocates for the respondents. He therefore held in effect that the Vice—22 TANZANIA LAW REPORTS {1980} TLR President could exercise Presidential functions under the Preventive Dentention Act only upon the President delegating in writing such Presidential functions, and not otherwise. It is common ground to both sides of the case that His Excellency the President was absent from Tanzania during the time when the respondents were detained apparently by order of the Hon. Vioe~Presi- President made under the Preventive Detention Act. Thc important question which arises here is whether this absence from Tanzania by the President is one which falls under sub-section (1) or under sub-section 3 of s.8 of the Constitution. As I have already shown, if this absence falls under the provisions of sub— section (3), then Vice-President would have no authority to detain the respondents without written delega- tion of authority to him by the President. But ifthe absence falls under sub-section (1), the Vice-President would have Presidential authority to detain the respondents by automatic operation of the Constitution. The particular absence will have to be construed as falling under sub-section (3) if it is covered by the meaning of the words used in the Constitution, The words read: (3) Iwapo itatokea kuwa Oo. (b) Rais hayupo Tanzania kwa muda ambao Rais anafiki meefu; These words given their ordinary meaning clearly refer to an absence from Tanzania which the Presi- dent himself thinks or believes would be of short duration. In that situation, the Vice-President would need written delegation of authority by the President before he can be in a position to exercise Presidential functions, But is there any evidence or anything to suggest that His Excellency the President thought or believed that his absence from Tanzania would be of short duration? For all that may be said, His Excel- leney the President might not even have thought about it at all due to pressure of work. So, this absence cannot be said to fall under sub-rule (3). ‘The words used under sub-section (I) in so far as they relate to absence from Tanzania read: utakuwa si _ na pia ikitokea kuwa kiti cha Rais ki wazi, au kwamba Rais hayupo Tanzania, basi wakati wote Rais atakapokuwa hayupo kazi na shughuli za Rais zitatekeleawa na mmojawapo wa watu wafuatao, The absence from Tanzania envisaged here is not qualified or limited by its duration. It must follow therefore that the absence which arises from the facts of this case falls squarcly within the ambit of sub section (1) and consequently, during such absence, the Hon. Vice President was automatically vested with Presidential authority and he had authority to detain the respondents under the Preventive Detention Act With regard to the second issue concerning the absence of the Public Seal on the detention order. Tam aware that this matter has given this Court considerable anxiety and much research and thinking has gone into it, and hence the delay in giving judgment ‘On a matter of this nature it is always very helpful to consider what solutions to the problem other courts, in other countries have found, since basically human beings are the same though they may live under different conditions. Unfortunately we got practically: no assistance on this matter from learned Counsel on both sides. Our own research was also not far reaching since it was limited hy the unavailability of reported cases from a number of countries. The essence of the issue on this aspect of the case is one of irregularity concerning the detention order. “The earliest case that has come to my attention that can be said in some way to concern irregularity in respect of an order of detention or imprisonment is the English case of the Rev. Thomas Pelham Dale [1881] 6 Q.BD. 376. Tn that case the Rev. Thomas Pelham Dale was arrested and detained in jail on @ writ or warrant which was irregulary issued. The irregularity lay in the failure to open the writ or warrant in the presence of the justice of the Court of Queen’s Bench before it was handed to the Sheriff for execution, The English Court of Appeal held that the irregularity was fatal and ordered the prisoner to be released. The view of that court is perhaps reflected in the words of Brett, J, at p.436 of the report where he stated I desire to state that although in this case I consider that irregularity a matter of sub- stance, f shall be of the same opinion if it were only a matter of form, because, as T said before, {take it to be a general rule that the Courts at Westminister will not allow any individual in this Kingdom to procure the imprisonment of another, unless he takes care to follow with extreme precision every form and every step in the process 4C.A, Ts ATTORNEY—GeNERAL V. Lesinot NDEINAI & JosePH LAIZER AND OTHERS (NYALALI, C.1.) 223 on io po which is to procure that imprisonment. I consider this to be a wholesome an Tule, and to be in accordance with the great desire which English Courts have already had to protect the liberty of every one of her Majesty's subjects. This case appears to be authority for the necessity for strict compliance with procedural requirements before a person is deprived of his or her personal liberty in England. Iman cri car dried by the Court of King’s Bench that is, Rex v. Browne (1686) Shower: (K-B.) 484, it is reported briefly that: ‘A warrant of commitment under the sign manual is bad; and the Court of King's Bench will discharge the party on Habeas Corpus. ‘The defendants appeared on an habeas corpus:— Corbet being an attorney, had, ‘at Browne's suit, arrested a soldier without leave and was committed to a messenger's custody thereupon, and he was now discharged; because the warrant was under the King’s own hand, without seal, or the hand of any secretary, or officer of state or Justice. So far as it can be made out from this very scanty report, it seems that the irregularities in that case concerned procedural requirements of a formal nature. Although the warrant of commitment was under the King’s own hand, the court found it to be defective in that it had neither seal nor hand of an appropriate Public official and the defect invalidated the warrant. The basis for the decision is not given in the report. On the other side of the coin, there are English cases which show the eflect of strict compliance with procedural requirements of depriving a person of his or her liberty. There is for example the case of Liver. sidge ¥. Sir John Anderson [1942] A.C. 206, in which Sir John Anderson, as Home’ Secretary of State, made an order under the Defence (General) Regulations, 1939, for the detention of one Liversidge. The order correctly recited the grounds upon which the Home Secretary acted under the Regulations. The said Liversidge brought a suit for damages for false imprisonment, and the case finally came to the House of Lords which held by a majority of four to one: The production by the Secretary of State of an order of detention, made by him and ex facie regular and duly authenticated, constitutes a defence to such an action unless the plaintiff discharged the burden of establishing that the order is invali The collorary of this view would appear to be that in such a suit or action, the production ofan order of detention which is ex facie irregular and not duly authenticated will not constitute a defence. The decision in Liversidge’s case was followed by another decision of the same members of the House of Lords in the case of Greene v. Secretary of State for Home Affairs (1942) A.C. 984, In this case one Greene was detained on similar grounds as the said Liversidge. There was however some irregularity concerning procedural requirements that had to be complied with after the person had been detained. Under the Defence (General) Regulations, 1939, the detainee is entitled to make representations to an Advisory Committee against his dention and the Advisory Comrnittee is required to inform the detainee of the grounds for his detention. ‘The said Greene exercised his rights but the Advisory Committee misinformed him about the grounds for his detention. When the case came on appeal in the House of Lords, Lord MacMillan at p.298 explained the position as follows: On a comparison of the reason for the appellant's deiention as stated by the advisory committee with that which is set out in the Secretary of State’s detention Order, a most unfortunate discrepancy is at once apparent. ‘The Secretary of State believed that the appellant was a person of hostile associations and that by reason of this it was neces. sary to exercise control over him. The advisory committee, on the other hand, investigated the appellant's case on the footing that it was something else and some. thing much graver than the Sccretary of State believed against him. No explanation is forthcoming of this very serious error. Nothing could be more unfortunate than that in a matter in which scrupulous accuracy is imperative the impression should be created that the safeguards prescribed for the protection of detained persons are carelessly observed and administered. The Court of Appeal has found that the appellant has not suffered any material prejudice by reasons of the error, but this does not condone it, nor does the Court of Appeal in any way condone it. I have, how- ever, to point out that what is before your Lordships is an application for a writ of24 ‘TANZANIA LAW REPORTS {1980} TLR habeas corpus and that the appellant's complaint is that he has been and is being detained without any legal warrant, The mistake, the occurence of which your Lord. ships deplore, does not in any way affect the validity of the detention order which is the answer to the appellant’s application. It affects the due observance of the pro- ‘cedure prescribed for the further consideration of the case of a person who is ex hypo- thesi under lawful detention: Consequently the mistake affords no ground for in- validating the detention order and does not help the appellant in his present applica- tion. The error is fortunately not irremediable, and your Lordships have the con- solation of an assurance from the Attorney-General that an opportunity will be given to the appellant, if he so desires to lay his objections afresh before another advisory committee which will have before it the true reason for his detention. This case appears to be authority for saying that in England, an irregularity concerning procedural requirements that have to be complied with subsequent to detention of a person does not necessarily in- validate the detention. In India, though no case has come to my attention on the specific problem posed by'a detention order having no public'seal, I am aware of a case which relates to the general problem of procedural irregularit in detaining persons. There is for example the case of H. Das v. District Magistrate, Cuttack (1969) ALR. 43, S.C. which raised a number of issues including one of procedural irregularity. The facts of the case in so far as they are relevant to the problem appear in the judgmient of the Supreme Court given by Shah, J. at S.C. 43, where it is stated: On December 15, 1967, the District Magistrate, Cuttack, served an order made in exercise of power under s.81(1) (a) (ii) of the Preventive Detention Act (4 of 1950) directing the appellant to be detained on grounds that he P the appellant — was acting ina manner prejudicial, to the maintenance. of public order by committing breaches of public peace, indulging in illicit business in opium, Ganja, Bhang, country liquor, riotous conduct, criminal intimidation and assault either by himself or through his relations, agents, and associates as set out in the order. On December 19, 1967 the appellant filed a petition in the High Court of Orissa challenging the validity of the order of detention on the grounds, inter alia, that the order and the ground in support thereof served upon the appellant were written in the English language which the appellant did not understand. On January 18, 1968, the District Magistrate, ‘Cuttack, supplied to the appellant an Oriya translation of the order and the grounds, Under s.7(I) of the Preventive Detention Act No.4 of 1950 of India it is provided that the detainee should be informed of the grounds for his detention within a period not exceeding 5 days from the date of detention. The Supreme Court of India held, inter alia: The order made by the District Magistrate, Cuttack, not having been followed up by service within five days as provided under s.7(1) of the communication to him of the ‘grounds on which the order was made must be deemed to have become invalid and any subsequent detention af the appellant was unauthorised. Ina similar case, that is the case of Mohamed Shafi v. The State of Jammu and Kashmir (1970) A.LR. 688 in which the appellant was detained under the‘Jamimu and Kashmir Preventive Detention Act No.13 of 1964 as amended by the Jammu and Kashmir Preventive Detention (Amendment) Act of 1967, but was not informed of the grounds for his detention within the period prescribed by the Act, The Supreme Court hheld the detention invalid. ‘These cases appear to be authority for the view that in India, failure to inform a detainee of the grounds for his detention as required by law is fatal to the detention. These particular cases of course do not deal with the absence of a public seal on a detention order. They however throw light on the approach adopted by the courts in India on related matters. Nearer home, there is the Ugandan case of Uganda'y. Commissioner of Prisons Ex Parte Matova [1966] E.A. 514 in which the High Court of Uganda, considered various very important constitutional issues, as well as the effect of a failure to furnish a detainee with an adequate statement of the grounds of his detention as required by Article 31(1)(a) of the Constitution of Uganda. Sir Udo Udoma, C.J. as he then ‘was, delivering the judgment of the court stated at p.546:C.A. Tar ATTORNEY—GeNerAt v. Lesnot NDEINAI & JoseeH LAIZER AND Oriters (NYALALI, CJ.) 225 Insufficiency of the statement of the grounds of detention served on the applicant is mere matter of procedure. It is not a condition precedent but a condition sub- sequent. We hold therefore that it is not fatal to the order of detention made by the Minister. Tt is curable because the High Court under Article 32(2) of the Constitu- tion has the power to give directions as it may consider proper for the purpose of enforcing or securing the enforcement of any of the provisions of Articles 17 to 29 inclusive or clause (1) of article of the Constitution. ‘Then there is the Zambian case of William Musala Chipango v. The Attorney Generall | Sclected Judgment of Zambia No.28 of 1970 — 1970 H.P. CONST/RFF/2. In this case, there was a failure to inform the detainee of the grounds for detention within 14 days, and a failure to publish a notice of the detention in the official Gazette within a month as required by the Constitution, Although the relevant legislation in Zambia is apparently similar to the Uganda legislation applied in the case of Uganda v. ‘Commissioner of Prisons [1966] E.A. 515, the High Court of Zambia, Magnus, J. disagreed with the view hheld in the Uganda case by stating: Tagree with Mr. Baron's submission that Dale’s Case deal with constitutional condi- tions precedent to a lawful imprisonment on the facts of that case, but I cannot agree with him that the converse necessarily follows, and if the initial imprisonment is valid, then the infrigement of constitutional conditions subsequent to arrest cannot in- validate that imprisonment as from the date of non-compliance. It would appear that the Upanda case is at variance with this finding of mine. I do not know what constitutional powers the High Court of Uganda have to correct errors of procedures, but in so far as the decision of the learned Chief Justice in that case is at variance with my finding in the present case, I must regretful disagree with the learned Chief Justice, particularly as he seems to base his finding on a distinction between condition precedent and condition subsequent, which I have already said is more appropriate to the Jaw of contract than to cases relating to the liberty of the subject, even if non— compliance were a mere matter of procedure, and here I must find itis more than that. Dale’s Case is authority for saying that failure to follow a mere matter of form is fatal. Here the requirement of s.26A are far more than mere matters of form. As Thave.said.... they are fundamentai rights of the subject. This case does not specifically deal with the problem raised by the absence of a public seal on a deten- tion order, but is reveals the approach of the Courts in Zambia on a related problem. ‘What is the appropriate approach then to be taken by this Court on the issue raised by the absence of the public seal on the detention order in question? Unlike the legal provisions which were found to have been breached in the Zambian and Indian cases, the legal requirement for a public seal on a detention order under the Preventive Detention Act of this country cannot be construed as creating a constitutional or fundamental right of the detainee to have the public seal placed on his detention order. It can however be construed in line with the Ugandan authority as being a condition precedent, since the words of the Preventive Detention Act, that “the President may, by order under his hand and the Public Seal, direct the detention of that person” clearly mean that the directions of the President flow from the order bearing his hand and Public Seal and not otherwise. Without such an order therefore, there can be no directions to detain a person under the Preventive Detention Act. Since this conclusion is purely logical, it provides the answer to the issue at hand. In other words, the will of the Vice-President to detain the persons concerned was blocked by the absence of the Public Seal. The detention was thus unlawful. - One is bound to be led to the same conclusion by another approach. In countries where people believe in the liberty or freedom of their citizens as being fundamental, public policy requires that no citizen shall be deprived of his or her liberty or freedom except by due process of law. This is the basis for the rule in England where in the words of Lord Justice Brett in Dale's Case. “It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue. The scope of this rule in English law does not cover irregularities which in the words of Lord Macmillan in Greene's Case, only “affects the due observance of the procedure prescribed for further consideration of the case of a person who is ex hypothesi under lawful detention.” ‘The question arises whether in our country people are firm believers in the liberty or freedom of the226 TANZANIA LAW REPORTS [1980] TLR individual person. I find no dificulty in answering this question. Had there been no such firm belief there could have been no struggle for independence from colonial rule, and no continued support for freedom throughout Africa — Support which has been given sometimes at the cost of human lives. There would have been no firm declaration in the Preamble to the Constitution of the United Republic that:— LENGO NA MADHUMUNI YA KATIBA HII NI UHURU, HAKI, UDUGU NA ‘AMANI, MAMBO AMBAYO MISINGI YAKE Ni HII IFUATAYO: A. KWAMBA — @ wend Gi) ‘Kila mtu anastahili heshima ya Kutambuliwa na kuthaminiwa utu wake; Gi) (iv) _kila mtu anayo haki ya uburu wa kuamini dini anayotaka, uhuru wa kkutoa mawazo yake, whuru wa kwenda anakotaka na uhuru wa kushi- rikiana na watu wengine, ili mradi havunji sheria au taratibu zilizo- wokwa kwa mujibu wa sheria; o wi) B. KWAMBA kila jamii inayo wajibu wa (@kuheshimu na kutbamini utu wa ki snyinginezo;, binadamu pamoja na haki zake Kaweka na kudumisha heshima ya binadamu kwa kufuata barabara Kanuni za Tangazo la Dunia kubusu Haki za Binsadamu; (vii) Kubakikisha kwamba katike nchi hakuna namna yoyote ya dhuluma, 1, ubaguzi, rushwa, uonevu au upendeleo, ‘That being the position, it must follow that the courts in this country are duty bound to apply the law in keeping with these fundamental beliefs of the people. In other words no person in this country shall te regarded as having been lawfully deprived of his freedom except through strict compliance with the requirements of the law of the country. This approach does not however signify approval for any person to use his or her personal freedom in a manner which endangers the freedom of others, or which eddangers peace and good order or the security of the state, There can be no personal freedom except in peace, good order and security. What this approach means simply is that personal freedom in this country js guaranteed by law and cannot be taken away except as allowed by law, that is, by any law of the country including the Preventive Detention Act. In the present case, the Preventive Detention Act required an order directing the detention of a person to bear the Public Seal. There was no Public Seal. There was therefore no lawful detention of the persons concerned. There is a third approach which also leads to the same conclusion. This involves interpretation of the relevant provisions of the Preventive Detention Act. The operative part of s.8(1) states: sc. the President may, by order under his hand and the Public Seal, direct the detention of that person. And 8.3 states: No order made under this Act shall be questioned in any court. ‘Whereas s.4(1) Provides: ‘An order under this Act shall constitute an authority to any police officer to arrest the person in respect of whom it is made and for any police officer or prison officer to Getain such person as a civil prisoner in custody or in prison; and such person shall, while detained in persuance of the order, be in lawful custody. ‘These provisions make one point clear — and that is — that the validity of an order of detention made under the Preventive Detention Act is determined solely by its face value and not by its background. | In Stherwords, the order is to be judged by its appearances. If it appears to be an order made under the Act, then it is valid unless the appearances are shown to be false.C.A. Tae ArrorNey—GENEral Vv, LesiNot NDEINAI & JOSEPH LAIZER AND Orurs (NYALALI, CJ.) 227 ‘The question then arises whether the order in this case has the appearance of an order made under the Preventive Detention Act. The answer is that there is no such appearance since the Public Seal is missing. It must follow therefore, that since its validity is determined by its face value, the order produced in the High Court was invalid and did not, in the words of s.4(1) of the Act, “constitute an authority to any police officer to arrest the person in respect of whom it is made and for any police officer or prison officer to detain such person as a civil prisoncr in custody or in prison. ...” and consequently the Prison Autho- rity should have observed the provisions of s.25 of the Prisons Act No.34 of 1967 which state that: 25 —(I)_ No prisoner shall be admitted into prison unless accompanied by 2 ‘warrant, certificate, warrant or order of detention, or warrant of con- viction oF” of committal, Qa 3) The officer-in-charge shall verify that the prisoner is the person named in the warrant, certificate or order, and that such warrant, certificate or order bears the signature and in all other respects complies with the ‘requirements of the law. (U have underlined the relevent aspect) Its apparent from the proceedings in the High Court that, although the order of detention in question was made practically two weeks before the detainees were arrested and detained, nobody told them that there were being arrested and detained under the Preventive Detention Act or on any other apparently reasonable ground ad the detainees continued to be ignorant of their position until the detention order was Produced in court. This state of affairs appears to have given rise to unnecessary feelings of panic on the part of the detainees and their relatives. In the light of this and in the interests of smooth administration of the Preventive Detention Act, aud in keeping with the fundamental beliefs of the people of this country about human dignity, itis better that those detained should always be informed of the authority under which they are detained, and whenever practicable, should be shown the relevant order of detention. Tt is apparent however from the record of the High Court, that a new order was made by His Excellency the President for the detention of the persons concerned just a day before the High Court directed their release on the 22nd August, 1979. ‘The new order was made on the 2st August, 1979 under a different law, that is under s8.2 and 5 of the Deportation Ordinance, Chapter 38 of the Revised Laws. The result is that the detainees were not released as directed by the High Court but continued to be detained under the new order. “Messrs, Mwale and Mirambo, learned Advocates for the detainees objected in subsequent proceedings in the High Court for the continued detention under the Deportation Ordinance. The Jearned trial Judge after hearing arguments from both sides refrained from deciding on the new order made by stating:— Courts of law are as important as the United Nations Organisation in the implemen- tation of their decisions if they do not receive cooperation from the Executive arm. ‘Admittedly this Court, on the 22nd August, 1979 did pronounce an order to the offect that the applicants involved in Miscellaneous Criminal Causes Nos. 22 and 23 of 1979 be immediately released unless further interned in due process of the law. ‘To my subsequent knowledge that order was not implemented by those who were directed to do so. This Court does not have a mechanism of its own to put into effect its orders. The Court is at the mercy of the Executive by its different branches including the Prisons and the Police to mention but a few of them. Ata later stage the order of this Court was so to speak superceded by another order by the Fxecutive arm using the Highest Authority in the land. ‘Under such circumstances this Court is of a view that any further engagement into legalistic gymanastics is a futile exercise in view of the clear demonstration that the Executive has come to a settled conclusion of what its stand isin this matter. Itis for that reason that this Court now will not labour at any appreciable length to resolve the legal contentions presented during this third leg of the hearing of this, chamber application for the outcome is already apparent, The cour: feels inclined to reserve its brain for some other court work which might be acceptable to the imple- menters of its decisions.3 28 TANZANIA LAW REPORTS {19801 TLR Itis unfortunate that the learned Judge adopted this attitude to the issues before him. . The Executive, ¢ the Judiciary, is entitlted or bound to do what the Constitution and the laws of the country provide. Tong as the Executive and Judicial organs of government act in accordance with the Constitution and the es can be no question of one of them interfering or not cooperating with the other. Each organ will be iying its legitimate role. ‘In the present case, the Executive acted under the Deportation Ordinace. Since the learned trial dige made no suggestion that there was, and I do not think there is, any law which precluded the Executive sm thus acting while Habeas Corpus proceedings were pending, it was unfortunate to give the impression at the Executive was not cooperating but interfering with the court. The learned trial Judge should have ten faithful to his oath of office which requires him: “to do justice in accordance with the Constitution of $ United Republic of Tanzania as by law established, and in accordance with the laws and customs of the spublic without fear or favour, affection or ill will.” In the final analysis therefore, I am fully satisfied that at the time of detention of the persons concerned ¢ Hon. Vice-President had authority to exercise Presidential functions under the Preventive Detention Act * virtue of the provisions of s.8(1) of the Constitution. This means in affect that the Attorney-General ‘coeeds on all his stated grounds of appeal. But, since the order made by the Hon. Vice-President under ¢ Preventive Detention Act on the Ist August, 1979 wa invalid, for lack of the Public Seal, the High Court as correct in discharging the detainees from that order though it did so for wrong reasons. “This means in effect that the prayer by the Attorney-General “that the order of issuing the writ of abeas Corpus against them together with that of ordering the release of the respondents be set aside and te respondents be detained accordingly,” cannot be granted and we hereby rejectit. But since it is common ‘ound that a new order was made on the 21st August, 1979 under the Deportation Ordinance, the decision ‘this Court will not benefit the detainees so long as that new order continues to be in force. MWAKASENDO, J.A.: Ihave reached the same conclusion as the learned Chief Justice. Needless . remark that ordinarily it would be sufficient for me in a criminal appeal to do no more than express my \ncurrence with his judgement but as the learned Chief Justice feels that the present case raises important fal issues on which it would be desirable for each member of the court to express his views separately have prepared the following judgment. “ie this case the Attorney-General appeals from a ruling of the High Court of Tanzania at Arusha, cdering the release from prison of the three respondents, namely: (i) Lesinoi Ndeinai alias Joseph Saleye sizer (i) Masai Zekasio alias Laizer Samora and (il) Omar Jamaluddin Ukaye-vide Arusha High Court iminal Applications No. 22 and 23 of 1979. As the legal issues raised by the ruling in the two cases RX xa samme, tis Court has directed, asthe trial Coust also did, that the two appeals be consolidated and they te a0 considered in this Judgment. 2. The bare facts of the case can be stated quite simply. Each of the respondents was arrested and stained in prison between 7th and the 13th day of August, 1979, under an order made by the Honourable, Vice-President of the United Republic of Tanzania, the Honourable Mr. Aboud Jumbe, then allegedly srorming the functions of the office of President pursuant to the provisions of sub-section (I) of 5.8 0 Constitution of the United Republic of Tanzania of 1977, otherwise cited in Kiswahili as “Katiba ya uhari ya Muungano wa Tanzania ya Mwaka 1977,” and hereinafter referred to as “the Constitution.” te order directing the detention of the respondents was made under powers conferred on the President by 2 of the Preventive Detention Act, 1962, Cap.490 ~ hereinafter referred to as “the Detention Act” or ‘mply as “the Act.” The order is dated the Ist day of August, 1979. *. The respondents who challenged the validity of their detention applied to the High Court of Tanza- ia at Arusha for an order of Habeas Corpus supported by affidavits sworn by them and their counsel posing 10 facts which, if accepted, would make their detention utterly misconocived and illegal, A ‘At the hearing of the chamber application, facts were elicited indicating beyond doubt that the sree respondents were detained under the authority of orders issued under 5.2 of the Preventive Detention 2b, 1962, that the orders in question were made by Honourable Vice-President of the United Republic of Sania, that Honourable the Vice-President in making the said orders, was purporting to act pursuant > powers conferred on him by sub-section (1) of sof the Constitution; that at the time these detention dors wore made His Excellency the President of the United Republic of Tanzania was absent from Tanza- ‘a attending a Conference of the Head of State and Governments of the Commonwealth of Nations at maka and. that although the detention orders made by Honourable the VicerPresident were under his ‘and (that is, Bore bis signature), they were not sealed with the Public Seal as required under the provisions f 8.2 of the Preventive Detention Act, 1962. } | |CA, ‘Tae ATToRNeY—GENERAL V. LesiNot NDEINAI & JOSEPH LAIZER AND OTHERS (NYALALL, C.J), 229 5. Messrs Mirambo and Mwale, learned Counsel representing the three respondents at the hearing of the chamber application, submitted that the detention of the respondents was illegal because at the time (hen Honourable the Vice-President made the orders directing their detention under s.2 of the Preventive Detention Act, 1962, he was not the President of the United Republic of Tanzania, in terms of the provisions of the Constitution of the United Republic. Elaborating on this point at great length, counsel for the respondents argued that while the Constitution, in sub-section (1) of s.8 thereof, provided for the machinery for an orderly transmission or devolution of the powers and duties of the President when the office of Presi- for an orderly transmission or devolution of the powers and duties of the President when the office of Presi- dent is vacant or the President is suffering from mental or physical incapacity or the President is merely ‘absent from the United Republic, this provision of the Constitution, the respondents’ counsel contended, did not provide for automatic assumption of the political capacity and authority of the President, in as much as the provision does not say so in clear and unambiguous terms. The two counsel went on to submit that according to their understanding of the true construction of s.8 of the Constitution, particularly with refo- rence to sub-sections (3) and (4) thereof, the only way the Vice -President could have assumed the functions of the office of President in the circumstances then prevailing was under the provisions of sub-section (3). Sub-section (3) of s.8 of the Constitution reads in Kiswahili as follows:— (8) Iwapo itatokea kuwa — (@) Rais hayupo katika mji wa Makao Makuu ya Serikali (b) Rais hayupo Tanzania kwa muda ambao Rais anafikiria utakuwa si mrefu; au (© Rais ni mgonjwa na anatumaini kuwa atapata nafuu baada ya muda si marefu, na Rais akiona kuwa inafaa kuwakilisha kwa muda huo madaraka yake, basi anaweza kutoa maagizo kwa maandishi ya kumteua Makamu wa Rais, au akiona kwa sababu yo yote ile kwamba inafaa zaidi kumteua Waziri, basi atamteua Waziri kwa ajii ya kutekeleza kazi na shughuli 2a Rais wakati Rais hhayupo, na Makamu wa Rais au Waziri anaychusika, kadri itakavyokuwa atatekeleza madaraka hayo ya Rais kwa kufuata masharti yo yote yatakayo- wekwa na Rais: Tsipokuwa kwamba masharti yaliyomo katika ibara hii ndogo yafaha- mike kuwa hayapunguzi wala kuathiri uwezo wa Rais alionao kwa mujibu wa, sheria nyingine yo yote wa kuwakilisha madaraka yake kwa mtu mwingine ye yote. 6. An unauthorized English version of sub-section (3) reads as follows: 13) Whenever the President (@) _ isabsent from the city which is the scat of the Government; (b) _ is absent from Tanzania for a period which he believes will be of short duration; or (© by reason of illness that he_has reason to believe will be of short duration, considers it desirable so to do, he may, by directions in writing, appoint the Vice-President, or if for any reason he considers it expedient sa.to do, some other Minister, to discharge, subject to such restrictions and exceptions as he may specify, the functions of the office of President during such absence or illness: Provided that nothing in this sub-section shall be construed as derogating from the power of the President contained in any other law to delegate any function to any other person. 7. To revert to counsel’s submissions on the issues of delegation and validity of the detention order made by Honourable the Vice-President, counsel for the respondents urged the High Court judge to hold that since the public officials detaining the three respondents had failed to produce before the High Court any instrument made by the President under sub-section (3) of s.8 of the Constitution delegating his functions generally or specifically’ relating to his powers under the Detention Act, the detention order produced ‘on behalf of the State purporting to have beon made under the provisions of s.2 of the Act, were null and Void, and, accordingly, the three respondents were entitled to an immediate release from prison. That was230 TANZANIA LAW REPORTS (1980) 27 mainly the submission advanced before the High Court by the three respondents in support of their applica ton for an order for directions in the nature of Habeas Corpus — see s.348 of the Criminal Procedure Code, Cap.20. wd 8. The other point that could have been taken up on behalf of the respondents but was not seriously pursued in argument by their counsel or satisfactorily dealt with by the learned High Court judge, relates t0 | the’question: ‘whether the failure to affix the Public Seal to the detention order as required by s.2 of'the Act hhad any effect on the validity of the order or not. This question has been canvassed before this Court and hhas been fully and ably argued before us by counsel of both sides. 4 ‘ 9. ‘The learned High Court judge, in a wide ranging ruling touching on our country's political ethos, beliefs, the independence of the Judiciary and personal liberties, upheld the respondents’ submission 4nd ‘accordingly directed: the immediate discharged of the three respondents from prison: » The respondents? victory however, was to be a very short one, a pyrthic victory, as it were, for as-soon as the learned Judge hhad delivered his ruling the respondents learnt to their utter consternation that an order for their deportation from Arusha Region had been made by the President the previous day, that is, the 2ist day of August, 1979. 10. Be that as it may, these then are the facts which form the basis of the appeal before us by the Attorney-General. 11. The learned Attorney-General in his Memorandum of Appeal sets out five grounds of appeal which read as follows: (1) The learned trial Judge erred in law in holding that. ‘‘Katiba ya Jamhuri ya Muungano wa Tanzania, ya Mwaka 1977, hereinafter referred to as ‘the Constitution’ did not, under the circumstances of this case, provide for the automatic exercise of the Presidential powers by the Hon. VicepPresident in absence of His Excellency the President of the United Republic of Tanzania from the country. (2) The Iearned trial Judge erred in law in tailing to appreciate the fact that when the President does not delegate his powers to the VicepPresident in writing as Per s.8(3) of the said Constitution, then in his absence, the provisions of s.8(1) of the Constitution applies automatical (3) The learned trial Judge erred in law in failing to appreciate the fact that the provisions of s.8(1) and 8(3) of the Constitution are two distinct provisions, that is s.8(1) providing for automatic exercise of Presidential powers under the circumstances stipulated therein; and.s.8(3) giving the President option of when to delegate his powers and further that he erred in holding that interpreta- tion ot each of these sections should be done in the context of the other, (4) The learned trial Judge erred in law in holding that the applicable section in the case was 8.8(3) of the said Constitution. () The learned trial Judge erred in fact in holding that the President's one week | absence from the country during the material time was a short one as contemp- i lated in s.8@) of the Constitution and hence the necessity of invoking the i | | provisions of that section so as to give: Presidential powers to the Vice-Presi- dent, 12. In support of these grounds of appeal the Hon. the Attorney-General who appeared in person assisted by Messrs Huka and Mlawa, State Attorneys, started his long and learned submission by giving | what he said was a short historical origin of s.8 of the Constitution, The Attorney-General in his historia ! narrative said that s.8 of the Constitution is derived from the Tanganyika (Constitution) Order in Council, 1961 (Statutory Instrument 1961 No.2274), the Second Schedule thereof, which contained the details of the Independence Constitution of Tanganyika, hereinafter referred to as “the 1961 Constitution.” Under the 1961 Constitution Her Majesty the Queen became the Head of State of Tanganyika exercising her execu- tive functions through her representative, the Governor-General. Besides beinig the Commander-in-Chief of the Armed Forces, the Governor-General also carried out many or the executive functions which are now conferred on the President. _$s.13 and 45 of the 1961. Cotistitution provided for the devolution of the powers and functions conferred on the GovernoreGeneral and Prime Minister respectively, when either the office of Governor-General or that of the Prime Minister was vacant or the holder of either office was absent from ‘Tanganyika or was for any reason unable to perform the functions conferred on him by the 1961 Constitu- tion. Interesting as I found the Attorney -General’s historical exposition on the origins of +.8, I do notCA. ‘Tae ArrorNay—GENERAL v. Lesinot NDEINAr & JosePH LAIzeR AND Oruers (NYALALI, C.J.) 231 think we need dwell any further on it, since I am satisfied that his assertion that the text of s.8 of the Constitu- tion has its roots in the 1961 Constitution is incorrect. One has in fact to look to Ghana to find the structural roots of s.8 as well as that of a number of the important provisions of the 1962 Republican Constitution which were subsequently re-enacted with necessary modifications in the Interim Constitution of 1965 and farther re-enacted in the present Constitution in 1977. Tracing the origins of s.8, for example, one dis- covers that the text of this section was inspired and modelled on the provisions of Article 18 of the Ghana Republican Constitution of 1960. It appears under our 1962 Republican Constitution as s.7 and under the Interim Constitution of 1965 as s.9. So much for the historical origits of s.8 of the Constitution. 13, However, to understand the general scheme of our present Constitution it is important to appre~ ciate the political sentiments which prompted the TANU Party and Government to opt for a Republican system of Government only one year after independence. The Government's views at the time, which reflected the general feeling of the population as a whole, was that the 1961 Constitution left the ardent desires of the people of Tanganyika for real independent and sovereign existence unfulfilled. By and large, informed opinion of most people in Tanganyika then was that the 1961 Constitution was an artifical, and undesirable British autochthonal creation, which was incapable of being understood by the ordinary people of Tanganyika, many of whom could hardly distinguish between the role of the GovernoraGeneral and that of the Cabinet headed by the Prime Minister. . To remove such doubts and confusion in the minds of the people it was important that Tanganyika should have an executive President. “The honour and respect accorded to a Chief or a King or, under a Republic, to a President, is for us indistinguishable from the power he wields,” 50 stated the Government in its proposals for a republic ~ vide Proposals of the Tanganyika Government for a Republic (Govt. Pap. No. 1 — 1962, 2)and The New Commonwealth and Its Constitutions by S.A. de Smith, 1964, at p.248. 14, Thus, it was in order to satisfy the genuine and universal desire of the people, that the framers of the 1962 Constitution decided to devise a Republican Constitution which would be an effective scheme for Governing the country. The results of their labours is the 1962 Constitution which, although textually and structurally follows the Ghana precedent, may be said without any equivocation to be essentially home- grown or autochthonous. 15. A notable feature of the 1962 Constitution, which is also to be seen in the Interim and the present Constitution, is the dominant role of the President under the Constitution. The President in all the three Constitutions is the national leader in every sense of the word — he is the Head of State, Head of the Execu- tive, Commander-in-Chief of the Armed Forces and the Fountain of honour. In view of this dominating and elevated role of the President it became necessary for the framers of the 1962 Republican Constitution to bear in mind that Tanganyika as a Republic had to have a machinery of devolution of executive authority different from that which operated under the Monarchical 1961 Independence Constitution. Under a Republican type of Government unlike a Monarchy, there is no natural successor as such to the Presidency. Indeed, there is no heir apparent or heir presumptive to the Presidency who could take over the executive functions of the State if the holder of the office dies or is absent or is suffering from mental or physical infirmity. It therefore follows that under the Presidential system of Government it is necessary that the Constitution should provide for a special scheme or. machinery whereby the executive functions of the President are to be exercised in the event of the President dying or becoming incapacitated by reason of serious mental or physical illness or being absent from the country. The general scheme of devolution devised by the framers of the 1962 Republican Constitution was enacted as s.7 of that Constitution and subsequently re-cnacted with modifications as s.9 of the Interim Constitution of be United Republic of ‘Tanzania of 1966. The substance of s.9 of the Interim Constitution is what now appears as s.8 of the Con- stitution of 1977. 16. Since the Attorney-General’s submissions before us hinge on the construction of the provisions of 58 of the Constitution it will be convcnient here to set out in full the provisions of s.8 of the Constitution ‘Tho section reads in Kiswahili as follows: 8.—(1) Endapo Baraza la Mawaziri litaona kuwa Rais hawezi kumudu kazi zake Kwa sababu ya maradhi, basi Baraza hilo laweza kuwasilisha kwa Jaji ‘Mkuu azimio la kumwomba Jaji Mkuu athibitishe kwamba Rais hamudu kazi zake kwa sababu ya maradhi. Baada ya kupokea azimio kama hilo na baada ya kufikiria maclezo ya daktari, Jaji Mkuu atawasilisha kwa Hal- mashauri Kuu ya Taifa ya Chama taarifa ya kuthibitisha kwamba Rais bamudu kazi zake kwa sababu ya maradhi. Kila itakapotokea taarifa ya232 @ ® © TANZANIA LAW REPORTS (3980) TLR namna hiyo, Halmashauri Kuu ya Taifa itatoa tamko kwamba Raié hamudu kazi zake kwa sababu ya maradhi, na iwapo Halmashauri Kuu ya ‘Taifa haitabatilisha tamko hilo kutokana na Rais kupata nafuu na kurejea kkazini, basi itahesabiwa kwamba Rais hayupo, Katika hali hiyo na pia ikitokea ikuwa kiti cha Rais ki waai, au kwamba Rais hayupo Tarizania; basi wakati wote Rais atakapokuwa hayupo'kazi-na shughuli za Rais, itatekelezwa na‘ mmojawapo wa watu wafuatac, kwa kufuata 6rodha kama ilivyopangwa, yaani — (@) Makamu wa Rais, au kama naye hayupo, basi (b) © Waziri aliyeteuliwa na Rais kwa ajili hiyo, au kama naye hayupo, basi (©) Waziri sliyechaguliwa kwa ajili hiyo na Baraza la Mawaziri. Endapo itatokea kuwa kiti cha Rais ki wazi kutokana na Rais kujiuzulu au kknfariki, au kwamba Rais hayupo Tanzania, au kuwa Rais hamudu kazi zake kwa sababu ya mardhi, na Jaji Mkuu baada ya kufikiria maclezo ya daktari, atawasilisha kwa Halmashauri Kuu ya Taifa taarif tisha kwamba Rais hamudu kazi zake, wakati ambao hayupo Makamu wa Rais wala Waziri anayeweaa kutekeleaa kazi na shughuli za Rais kwa, mujibu wa masharti ya ibara ndogo ya (1), na ikiwa hawapo Mawaziri vwengine katika Baraza la Mawaziri wanaoweza kukutana kwa shughuli yoyote, basi katika hali’hiyo mambo yatakuwa ifuatavyo — (@) _taarifa ya uthibitisho itakayowasilishwa na Jaji Mikuu kwa Halma- shauri Kuu ya Taifa itahesabiwa kuwa’ni halali kama kwamba imetolewa naye baada ya kupokea azimio la Baraza la Mawaziri Js kumwomba atoe taarifa hiyo, na haitachunguzwa katika maha- kama yo yote japokuwa imetolewa bila ya Jaji Miku kupokea Kwanza azimio la Baraza la Mawaziri; na (®) Halmashauri Kuu ya Taifa ya Chama itamchagua mtu atakaye- onckana anafaa, kutekeleza kazi na shughuli za Rais wakati wote Rais atakapokuwa hayupo kazini au mpaka atakapopatikans Makamu wa Rais au Waziri atakayetekeleza kazi na shughuli hizo Jkwa mujibu wa masharti ya ibara ndogo ya (1). (This provision has already been set out above). Rais awema, akiona inafaa kufanya hivyo, kumwagiza kwa maandishi ‘Waziri ye yote kutekeleza kazi na shughuli zozote za Rais ambazo Rais ataritaja katika maagizo yake, na Waziti aliyeagiawa hivyo kwa mujibu ‘wa masharti ya ibara hii ndogo, atakuwa na mamlaka ya kutekeleza kazi na shughuli hizo kwa kufuata masharti yo yote yaliyowekwa na Rais, lakini bila ya kujali masharti ya sheria nyingine yo yote: Isipokuwa kwamba— (@) Rais hatakuwa na mamlaka ya kuwakilisha kwa Waziri kwa mujibu ‘wa masharti ya ibara hij ndogo kaai yo yote ya Rais iliyotajwa atika sheria yo yote ya Sumuiya ya Afrika Mashariki ikiwa kisheria Rais haruhusiwi kuwakilisha kazi hiyo kwa mtu mwingine ye yote; (©) _twapo Rais amemwagiza Waziri ye yote kutekeleaa kazi na shughuli zo zote za Rais kwa mujibu wa masharti ya ibara hii ndogo, basi ifahamike kuwa maagizo hayo hayatamzuia Rais kutekeleza kaz na shughuli hizo yeye mwenyewe. ‘Kanuni zifuatazo zitatumika kwa madhumuni ya ufafanuzi wa ibara ndogo (1) na ya (2)— . 15 Kia madbtuniyaibaranidogo ya) na ya (2), Rais hatahesnbiva kuwa hayupo Tanzania kwa sababu tu ya kupitia nje ya Tanzania wakati yuko safarini Kutoka sehemu nyingine, au kwa sababu kwamba ametoa maagizo kwa mujibu wa masharti ya ibara ndogo ya @) na maagizo hayo bado hayajabatilishwa;|A, Tal ATTORNEY—GENERAL v. LesiNot NDEINAI & JOSEPH LAIZER AND OTHERS (NYALALI, C.J.) 233 (b) ka madhumuni ya ibara ndogo ya (1) peke yake, mkutano wa Baraza la Mawaziri uliofanywa kwa ajili ya kuwasilisha kwa Jaji ‘Mkuu azimio kuhusu hali ya Rais utahesabiwa kuwa ni mkutano halali hata kama mjumbe mmojawapo wa Baraza hilo hayupo au iti chake ki wazi, na itahesabiwa kuwa Baraza limepitisha azimio hilo. ikiwa litaungwa mkono, kwa kauli ya wajumbe walio wengi walichudhuria mkutano na kupiga kura, © Bila ya kujali, masharti yaliyoelezwa hapo awali katika ibara hii, mtu atakayetekeleza kazi na shughuli za Rais kwa mujibu wa ibara hii hata- kuwa na mamlaka ya kumwondoa Makamu wa Rais katika madaraka vyake. (1). Waziri, Mbunge au mtu mwingine ye yote atakayetekeleza Kazi na shughuli za Rais kwa mujibu wa masharti ya ibara hii hatapoteza kiti chake katika Bunge wala hatapoteza sifa zake za kuchaguliwa kuwa Mbunge kwa sababu tu ya kutekeleza kazi na shughuli za Rais kwa mujibu wa masharti ya ibara hii, 17. An unauthorized English version of s.8 reads as follows: 8—{(I) Whenever the Cabinet considers that the President is, by reason of physical ‘or mental incapacity, unable to discharge the functions of his office, it may by resolution passed in that behalf, request the Chief Justice to certify that the President is, by reason of physical or mental incapacity, unable to discharge the functions of his office. The Chief Justice after receiving such resolution from the Cabinet and acting in his discretion, after consi- dering medical evidence, certify to the National Executive Committee of the Party that the President is, by reason of physical or mental incapacity, unable to discharge the functions of his office. When the Certificate of the Chief Justice made as aforesaid is received by the National Executive ‘Committee of the Party, the National Executive Committee of the Party shall declare that the President is, by reason of physical or mental incapa- city, unable to discharge the functions of his office and if the National Executive Committee has not subsequently withdrawn such declaration on the ground that the President has recovered his capacity and resumed the functions of his office, then in any such event, the President shall be deemed to be absent, In such event and in the event of the office of President falling vacant or when the President is absent from Tanzania, the functions of the office of President shall be discharged by the first of the following Ministers who is present and able to wot— () the Vice-President; (®) some other Minister appointed by the President in that behalf; (© some other Minister appointed by the Cabinet in that bebalf. (2) Ifthe President dies or resigns office, or is absent from Tanzania, or is, by reason of physical or mental incapacity, unable to discharge the functions of his office, and the Chief Justice acting in his discretion after considering medical evidence certifies to the National Executive Committee that the President is, by reason of physical or mental incapacity, unable to dis- ‘charge the functions of his office, at any time when, due to vacancy in any office, absence or inability to act, there is no Vice-President and no Minister is empowered by subsection (1) to discharge the functions of the office of President and there are no other Ministers in the Cabinet present and able to act— (@) the certificate of the Chief Justice to the National Executive Commi- tee shall have effect as ifit had been exercised by a resolution of the cabinet requesting him to exercise his powers in that behalf and shall not be questioned in any court notwithstanding that it was not preceded by such resolution; and (b) the National Executive Committee of the Party shall appoint234 TANZANIA LAW REPORTS 11980] TLR, suitable person who appears to it able to discharge the functions of the office of Presideitt during the vaciticy in the office, or the absence for incapacity, as the case may be, of the President, or, if such an appointment is made during the absence or inability to act of the Vice-President or any Minister empowered by subsection(1) to discharge the flinctions of the office of President, until the Vice- President or sich Minister is present anid ble ti act. (3) (This provision has already been set cut above). @ The President may, ifin his opinion it is desirable so to do, by directions in writing, authorize a Minister to discharge, subject to such limitations and restrictions as he may direct, such of the functions of the office of President ‘as he may specify, and where directions under this subsection are given the Minister specified therein shall be entitled to so discharge such functions notwithstanding the provisions of any other written law: Provided that— (@) the President shall not, by directions given under this subsection, authorize a Minister to discharge any function conferred upon the office of President by any Act of the Community where such function cannot otherwise be lawfully delegated by the President; (b)_ where by directions under this subsection the President has * ‘authorized a Minister to discharge any function of the office of President, such directions shall be construed as precluding the President from discharging such function himself. (9) (@) For the purposes of subsection (1) and (2) the President shall not be regarded as absent from Tanzania by reason only of the fact that he is in passage from one part of Tanzania to-another or where he has given a direction under subsection (3) and that direction is in force; (b) For the purpose of subsection (1), the Cabinet shall be deemed to be duly constituted notwithstanding any vacancy or absence of any member, and, a resolution of the majority of the members of the Cabinet ‘who are present and voting shall be deemed to be a resolution of the Cabinet. (© Notwithstanding the foregoing provisions of this section, a person discharging the functions of the office of President under this section shall not have the power to remove the Vice-President from office. () A Minister, a member of the National Assembly or other person shall not, by reason of his exercising the functions of the office of President under this section, vacate his seat in, or be disqualified for election as a consti- tuency member of the National Assembly. 18, As properly, and, with respect, correctly submitted by the learned Attorney-General, the framers of our Constitution of 1977, realising the grave dangers that are likely to befall the body politic when there is a vacancy in the office of President or the President is absent from the country or is incapable of exereising the functions of his office for any cause whatsoever, wisely provided for an effective and convenient coasti- tutional arrangement whereby in the event of any of the situations mentioned above arises, the functions of the office of President would automatically be exercised by another fitand proper person. $.8 of the Constitution therefore, as rightly pointed out by the learned Attorney-General, provides for an effective ‘constitutional machinery for preventing the dissolution and entire distintegration of society whenever there js a vacancy in the office of President or the President is seriously incapacitated or the President has left the ‘country without delegating his functions to the Vice-President or any other Minister who is present and able to direct the machinery of Goverament. This section, as it will no doubt be noted from a proper reading of its provisions, provides for two distinct methods of devolution of the functions of the office of President. The first scheme of devolution is automatic and is only dependent upon the happening of one or the otherCA. ‘Tar ATToRNey—GENERAL v. Lesinot NDEINAI & JOSEPH LAIZER AND OTHERS (NYALALL, C.J.) 235 of the situations or circumstances which are outlined in great detail in subsections (1) and (2); whereas the second scheme of devolution depends entirely on the discretion of the President and only comes in operation when the President considers it desirable to delegate and in fact delegates all or any of the functions of the office of President to the Vice-President, or a Minister — See the provisions of subsection (3) and (4) of s.8 of the Constitution, supra, 19. In answer to the Attorney-General’s formidable submission, Mr. Mahatane, learned Counsel, who appeared before us on behalf of all three respondents, assisted by Mr. Mwale, learned Counsel, has put up an equally strong argument urging us to reject the Attorney-General’s:submissions on this point as am untenable and unnatural construction of s.8 of the Constitution. And, if I understood Mr. Mahatane’s argument correctly, I think what he is contepding amounts to this, that the circumstances as disclosed in this case could by no stretch of the ordinary nfeaning of the words used in s.8 amount to a situation entitling the Vice-President of the United Republic to an automatic exercise of functions of the office of President under subsection (1) of s.8 of the Constitution. Mr. Mahatane, of course, concedes the fact that the intention of the framers of's.8 of our Constitution was to devise a convenient and effective scheme of devolution of the office of President. He-has no quarrel whatsoever with the intention of the framers of our Constitution. “What however, he vigorously disputes is the contention of the Attorney-General that subsection (1) of 5.8 deals with a scheme of automatic assumption of Presidential functions at all. In any case, Mr. Mahatane contends, of devolution in the scheme outlined in s.8 of the Constitution there can be no room for automatic of Presidential functions when the President has merely left the country for a short period, such as the one week's absence of the President in Lusaka, in July/August 1979. Tn such situation, Mr. Mahatane submits, the only course of devolution open is by way of delegation as contemplated by the provisions of subsection (3) of s.8 of the Constitution, 20. Although at first I found it difficult to resist Mr. Mahatane’s overwhelming and exceedingly persuasive and fascinating argument, I have however, after considerable vacillation, comé to a firm opinion that his construction of the provisions of s.8 of the Constitution is untenable and must be rejected. To hold, as the learned High Court judge did, that on the facts found established in this case, the Honourable the Vice-Preisenent, in’ the absence of the President in Lusaka for a week attending the Commonwealth Heads of Goverment Conference, could not exercise the functions of the office of President pursuant to the powers conferred upon him under the provisions of subsection (1) of s.8 of the Constitution, would, as it seems to me, defeat the whole object of the provisions of subsection (1) of s.8 of the Constitution. Indeed, if the learned High Court judge is right in his construction of s.8 of the Constitution, it means that in the circumstances of the present case the nation’ would have found itself without anybody present and able to exercise the functions of the office of President. As already stated earlier in this judgement, such a vacuum of executive authority m the State was clearly the kind of situation that the framers of the Constitution wanted to avoid by providing for automatic devolution of powers and function of the office of President lunder subsection (1) of 5.8 of the Constitution. Inany case, seems to me that the learned High Court judge has fallen into a common, though unforgivable error, of trying to construe the provisions of subsections (). 2), G) and (4) of 8.8 of the Constitution in isolation and out of context of the rest of the section. 21. Inthis connection suffice here to refer t the provisions of subsection (5)(a) of's.8, which provides, inter alia: (5)(a) For the purpose of subsections (1) and (2) the President shall not be regarded as absent from Tanzania by reason only of the fact that he isin passage from one part of Tanzania to another or where he has given a direction under subsection () and that direction is in force; ‘The words Ihave undelined: For the purpose of subsection (1) and (2) the President shall not be regarded as absent from Tanzania where he has given a direction under subsection (3) and that direction is in force, shows clearly the futility of respondent's argument. Conceding, as they have undoubtedly done in this case, that at the time when the President left for Lusaka he had given no directions under subsection (3)— an important condition for the devolution scheme prescribed under subsection (3) to operate, I cannot see how he can now be heard to contend that in the circumstances the Honourable Vice-President was not empowered to exericse the functions of the office of President under the provisions of subsection (1). With respect, to accede to respondents’ construction s.8 of the Constitution would, in my considered view, be to overlook a long established principle of interpretation of constitutional provisions. This salutary rule of interpretation was stated by Chief Justice Marshall more than a hundred years ago in these memorable terms:236 TANZANIA LAW REPORTS. [1980] TLR ‘A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation. .. Speaking on the same subject, Mr. Justice Frankfurter of the United States Supreme Court, reminds us in Bully. United States, 349 U.S. 81, 83 (1955), to read all enactments “with the saving grace of common sense.’ 22. To conclude this part of my judgement, I think, I have sufficiently shown in the preceding paragraphs that the concerted attack by the Honourable the Attorney-General on the ruling of the learned High Court judge in so far as itis based on the judge's erroneous construction of s.8 of the Constitution, is fully justified and, as it appears to me, if that was all there was to this appeal, Twould havehad no hesitation in granting the Attorney-General's prayer and allowing this appeal in toto. But, in my opinion, the matter goes further than merely finding fault with the learned Judge's reasoning on the construction of s.8 of the Construction. ‘That this is in fact the position in this case, is evidenced by the animated arguments and counter-arguments that we have heard in this case on the issue of the public seal and what, if any, is the consequence of omitting to affix it to a detention order as required under s.2 of the Detention Act. 33, Now then, since I have held in favour of the Attorney-General that during the one week absence of the President from the United Republic in July/August, 1979, the Honourable the Vice-President properly Sssumed the functions of the office of President under the provisions of subsection (1) of s.8 of the Consti- tution, the question that immediately presents itself is this? Whether in those, circumstances, the Vioo- President could properly make an order under the provisions of s.2 of the Preventive Detention Act, 1962, directing the detention of the three respondents. I think the answer to this question must be: Yes, be could properly do so, because in terms of the provisions of the Constitution, the Vioe-President at the ‘material time, was a person performing the functions of the office of President and as such person, in terms of s.3 of the Interpretation of Laws ‘and General Clauses Act, 1972, and subsection (2) of s.94 of the Consti- tution, he was empowered not only to exercise the executive power of the United Republic but also to cxercise any other powers and duties conferred or imposed on the President by the Constitution or any other faw, that is, including powers and duties of the President conferred or imposed on him by the Preventive Detention Act, 1962. For ease of reference the relevant part of s.3 of the interpretation of Laws and General ‘Clauses Act, 1972, and subsection (2) of s.94 of the Constitution are set out below: ( Subsection (2) of 3.94 of the Constitution reads in Kiswahili as follows: (2) Kanuni zifvatazo ritatumika kwa madhumuni ya ufafanuzi wa masbarti ya Katiba hii, yaani— (@) Kila yanapotajwa madaraka ya Rais ifahamike kuwa madaraka ya kuteke- Jeza shughuli na kazi mbali mbali na vile vile wajibu wa kutekeleza shughuli na kazi mbali mbali kama Mkuu wa Serikali ya Jamburi ya Muungano, na pia mamlaka mengine kama hayo au wajibu mwingine kama ikiwa imeclezwa katika Katiba hii au katika Sheria nyingine yo yote kwamba mamlaka hayo mengine ni ya Rais au kwamba wajibu huo mwingine ni wa Rais. Gi) An unauthorized English version of this provision reads as follows: (2) In this Constitution, references— (@) to the functions of the office of President shall be construed as references to his powers and duties in the exercise.of the executive powers of the United Republic and'to any other powers and duties conferred or imposed on the President by this Constitution or by any other law; (ii) Therelevant parts of .3 of the Interpretation of Laws and General Clauses Act, 1972, ‘Act No. 30 of 1972, reads: 3 (1) In this Act and in every other Act, and in all public documents enacted, made or issued before or after the commencement of this Act, the following words and expressions shall have meanings assigned thereto respectively in this section, unless it is therein expressly or by necessary implication other- wise provided — ‘President’. means the President of the United Republic, and includes ‘any person performing the functions of the President under s.9 of the Constitution. 4C.A. THE ATroRNEy—GrNmAL v. LestNot NDEINAI & JOSEPH LAIZER AND OTHERS (NYALALL, C.J.) 237 It should be noted here that s.9 of the Interim Constitution has been re-enacted, with necessary modifications, not affecting substance, as s.8 of the Constitution of 1977. 24. Thus in view of the foregoing conclusions, the only major question left to be resolved in this case is whether the order made by Honourable the Vice-President directing the detention of the three respondents is valid or not. But before deciding this issue, I propose first to deal with the question of jurisdiction. This Court has to decide whether courts have jurisdiction to examine and determine the propriety of the order made by the Vice-President pursuant to the provisions of s.2 of the Preventive Detention Act in view of the Provisions of's.3 of the Act saying: “*No order made under this Act shall be questioned in any court.” 25. The provisions of s.3 of the Preventive Detention Act, 1962, are a classic example of an ouster-of Jurisdiction clause. This type of provision excluding the right of an individual to challenge executive action in the courts has regretably become a common feature of'a number of our recent statutes. Be that as it may, does the provision of 5.3 of the Act mean that courts of law in this country are completely powerless to inquire into an executive order made under the Preventive Detention Act, the authenticity of which has been impugned. Although the learned trial Judge did not deal with this question in his ruling, I do not think that there can be any doubt in my mind that a court of law can inquire into the authenticity of an order under the Preventive Detention Act, 1962. That courts of law should have such power is, I think, a well ‘established fundamental principle of law which cannot now be jettisoned except by clear and explicit statu- tory provision in that behalf. A number of eminent judges have spoken about this matter with a clear and firm voice. Lord Simonds in Pyx Granite Co. Ltd., v. Ministry of Housing and Local Government [1960] A.C. 260 at p.286 has said of this principle: It is a principle which is not by any means to be whittled down that the subject's recourse to. courts for the determination of his rights is not to be excluded except by clear words, And Lord Denning in his usual lively style has spoken of this fundamental principle in these terms: It is a serious matter for the courts to declare that a minister... has exceeded his Powers. So serious that we think hard before doing it. But there comes a point when it has to be done. These courts have the authority — and I would add, the duty — ina proper case, when called upon to inquire into the exercise of a discret nary power by a minister or his department. If it is found that the power by a iinister has been exercised improperly or mistakenly so as to impinge unjustly on the legitimate rights or interests of the subject, then these courts must so declare. They stand, as ever, betwoen the executive and the subject, alert, as Lord Atkin said in a famous passage — “alert to see that any coercive action is justified in law: See Liver- sidge ¥. Anderson [1942] A.C. 206, 244. To which I would add, alert to see that a discretionary power is not exceeded or misused.” See Lake Airways v. Department of Trade [1977] QB. 643. 26. The attitude of the courts on this matter may perhaps be best highlighted by Lord Reid’s apt illustration in the case of Anisminic Ltd. v. Foreign Compensation Commission and Another [1969] 2 W.L.R. 163, at p.169. He said: Let me illustrate the matter by supposing a simple case. A statute provides that a certain order may be made by a person who holds a specified qualification or appoint- ment and contains a provision..... that such an order made by such person shall not be called in question in any court of law. A person aggrieved by an order alleges that it is a forgery or that a person who made the order did not hold that qualification or appointment. Does such a provision require the court to treat that order as a valid order? It is a well established principle that a provision ousting the ordinary Jurisdiction of the court must be construed strictly ~ meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court. Lord Reid then concludes his statement of the principle involved in these words: If the draftsman or Parliament had intended to introduce a new kind of ouster clause238 TANZANIA LAW REPORTS {1980} TLR. T would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court. 27. It is quite clear from cases decided on this very important matter that courts of law have power and a duty to see that the powers of detention conferred by statute on any perso are rightly exercised under the statute and to ensure that the powers so conferred have been exercised honestly and bons fide, and not merely under some preterice of using the statutory power for the purpose of detaining a pérson on groundd \other than those laid down under the statute. Further, according to these authorities, it seems that the ‘courts would have power to inquire whether the detaining authority has detained the right person, that is the person aimed at by the order; and the courts may also properly inquire whether the detaining authority has adhered to the procedure and all necessary requirements laid down by the Statute which governs the executive authority's power on the matter. In the light of the correct principle enunciated in decided cases \it appears to me that the High Court properly examined the propriety of the order which directed the deten- tion of the three respondents. T now turn to deal with the respondents’ contention that the order made by the Vice-President on Ist August, 1979 directing their detention is a nullity and therefore illegal. 28. As already indicated hereinabove, the three respondents allege that the order for their detention made by Honourable the Vice-President is a nullity because, as they allege, a valid order under the Act ‘must not only be under the hand of the President but it must also have affied to it the Publie Seal, which, as conceded by the learned Attorney-General, the order directing the detention of the three respondents did not have. |The learned Attorney-General in reply to the respondents’ contention has argued that while itis desirable that an order under the Act should both be under the hand of the President and be affixed with the Public Seal, failure to seal such an order is not fatal ~ it does not invalidate the order, so long as the President has signified his intention that the person named in the order should be detained by appending his signature to the document. With respect, I am unable to accept the contention by the learned Attorney- General. From immemorial times sealing a document has been accepted as a solemn mode of expressing Assent to a written instrument and when done with that intention the instrument becomes a deed. Although the practice of expressing assent to written instruments by the formal affixing of a seal has been greatly curtailed in recent times, the law may still require certain documents relating to matters of great consequence to the State such as the declaration of war, entering into treaties, making certain appointments of State or authorising certain executive action to be taken, to be executed by signature of the Chief Executive and Head of State and the Public Seal. Under our law, for example, both the appointment and revocation of appointment to Ministerial office is required to be by instrument under the Public Seal, the emblem of Sovereignty. See ss. 12(3) and 15(a) of the Constitution, respectively. In view of the importance that the law attaches to the Public Seal, I find it difficult to accept the contention by the learned Attorney-General ‘that when the law says that an executive action shall be authorized by an instrument under the hand or signature of the Chief Executive and Head of State and shall be affixed with the Public Seal, failure to affix the Public Seal to such an instrument does not affect the nature and legal consequérices flowifig from such @ defective instrument, if I may so term it. Surely, Parliament would not trouble itseif in enacting a law requiring the use of a Public Seal to authorize executive action if, in fact, its intention was that failure to comply with this requirement would not affect the validity of any executive action taken without such Authority or imprimatur. I cannot accept that, that could have been the intention of Parliament when it decided to enact the Preventive Detention Act, 1962, and prescribed conditions under which the preventive Justice which it sanctions, would be invoked by the Executive Authority of the United Republic. ‘The Proposition now edvanced by the learned Attorney-General was clearly rejected by the Court of King's Bench nearly three hundred years ago in the Case of Rex v. Browne, Corbat, etc. (1686), 2 SHOW. 484; 16 Digest 258, 497. In that case the defendants appeared on an Habeas Corpus: Corbet being an attorney, had, on Browne's suit arrested a soldier without leave and had him committed to a messenger’s custody. The law then appears to have required that a warrant of arrest had to be under the sign manual or the King's own hand and Seal or thie hand of any Secretary of State or officer of State or Justice. The Court of King” Bench found the warrant of arrest to be bad because it was under the King's own hand, without Seal, and it was not under the hand of any Secretary of State or officer of State or justice and the soldier was accor- dingly discharged. The point of this case is that it underscores the fact that an order or warrant which is bad on its face, can give no legal justification for imprisonment of a person. See Greene ¥. Secretary of State for Home Affairs [1942] A.C. 284 at p.307, per Lord Wright. "29. The requirement that those who procure the imprisonment of others must strictly abide by every form and every step prescribed for procuring such imprisonment was described by Brett, E.J. in the case ofCA. Tae Artorney—Gevenat v. Lestot NDeINAI & JoserH LAIZER AND OTHERS (NYALALI, C.J.) 239 ‘The Reverend Thomas Pelham Dale, [1886] 6 Q.B.D. 376 ps.d61 — 463, to be “a general rule which has always been acted iipon by the courts of England.” Brett, L.J., then continued: “That ifany person procures the imprisonment of another he must ake care todo so by stops, all of whichare entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue. ‘And concluding the matter, Brett, L.J., said:— j I desire to state that, although in this:case I consider that irregularity a matter of substance, I should be of the same opinion if it were only a matter of form, because, as I said before, I take it to be a general rule that the courts at Westminister will not allow any individual in this Kingdom to procure the imprisonment of another, unless he takes care to follow with extreme precision every form and every step in the process \which is to procure that imprisonment. I consider this to be a wholesome and good tre, and to be in accordance with the great desire which English Courts have always had to protect the liberty of every one of Her Majesty's subjects. : 30. In the instant case, it cannot with respect, be gainsaid that the failure by the Executive to affix the Public Seal to the instrument directing the detention of the three respondents is a matter of mere form land not one of substance. Incarceration of a person without trial cannot by any distortion of language be said to bea matter of mere form, The liberty of the individual isso precious and fundamental to the concept of the Rule of Law that the Courts are duty bound to see that it is not taken away except under express provisions of the law of the land, In this case the making of the order purporting to detain the three respon Gents under the provisions of s.2 of the Preventive Detention Act, 1962, did not, as conceded by the learned ‘Attorney-General, strictly comply with all the requirements that are laid down under the Act ~ the Act clearly says that where grounds, which are described in the Act, exist for the preventive detention of @ person: “the President may, by order under his hand and the Public Seal, direct the detention of that person,” and then goes on to provide that an order made as aforesaid, “shall constitute an authority to any police officer to arrest the person in respect of whom it is made and for any police officer or prison officer to detain such person.” It scems to me obviously to follow from these provisions, as night follows day, that an order for detention which is not affixed with the Public Seal is a complete nullity and therefore illegal. Tt cannot found any authority for the arrest of any person by the police and his subsequent detention by them of by the prison authorities. This is what the learned trial Judge found, though as indicated supra, he arrived at this conclusion on the basis of the construction of the provisions of the constitution which we have found to be erroneous. That error apart, there can be no doubt that the result that he reached, that the order made by Honourable the Vice-President was bad on its face is correct. The learned trial Judge accordingly allowed the respondents’ application for an order of Habeas Corpus and ordered their immediate release from prison. Tentirely agree with him. Accordingly the prayer by the learned Attorney-General that “the order of issuing the writ of Habeas Corpus against them together with that of ordering the release of the respondents be set aside and the respondents be detained accordingly,” should, in my view, be denied. ‘This conclusion is, of course, without any prejudice to any steps that may bave been taken or are contempla- ted to be taken by the Executive to put right the defective detention order. 31. Tcannot leave this matter without referring briefly to Mr. Mahatane’s final ingenious, if mis- conceived, submission. Mr. Mahatane has attacked the Preventive Detention Act, 1962, as a serious violation of the inalienable rights declared in the Preamble to the Constitution and has invited this Court to say that this Act which gives extensive powers to the Executive to imprison people without trial in time of peace is unconstitutional. In support of his contention, Mr. Mahatane referred us to the Preamble to the Constitution which affirms and specifies the inalienable rights of all members of the human family, spells ‘out their aspirations, objectives and moral obligations and, declares that these directive principles are best protected in a democratic society where the Government is responsible to a freely elected representative Parliament and where the courts of law are independent and impartial. With respect to Mr. Mahatane, T do not think the directive principles contained in the Premble to the Constitution create any legal obliga- tions enforceable through the medium of the courts. They are mere moral obligations which as observed by Chief Justice Korsah of the Supreme Court of Ghana in Re Akoto and Seven Others, (1961), Vol.ll Journal of The International Commission of Jurists, 86 at p.99, provide a political yardstick by which the conduct of statecraft can be measured by the electorate. The people’s remedy for any departure from these240 TANZANIA LAW REPORTS (1980) TLR directive principles lies through the ballot box, and not through the courts. And while I agree sith Mr. Mahatane that ideally it is desirable that fundamental rights especially the right to personal liberty Should be written and entrenched in the Constitution and that such personal liberty should not in peace | ime be restricted without tria'in a court of law, it seems to me, quite unarguable that every sovereign nation bas the right, an absolute one, in its wisdom to choose either to entrench such rights in ts Constitu- Tan or not. Our Government rejected suggestions for a constitutional Bill of Rights as early as 1962, fand explained the omission of any justifable guarantees from the 1962 Republican Constitution in these Mords: “A Bill of Rights merely invites conflicts between the executive (sic) and the judiciary; that is the Tied of luxury which we could hardly afford to entertain.” See S.A. de Smith: ‘The New Commonwealth and Its Constitutions, 1964 at ps.213 and 250; and Proposals of the Tanganyika Government for a Republic (Govt, Paper No.1 1962, 6). Jo. One may, of course, with quite understandable justification find the Government's stand on this matter unsatisfactory but that, with respect, is another issue altogether, a discussion into which T find it Tanevewary to enter. Finally, a brief comment on the Tast issue raised by Mr. Mahatane, This issue waintes to the validity of the Preventive Detention Act, 1962, in the light of the directive principle contained Fiithe Preamble to the Constitution, I find Mr. Mahatane's arguments in this connection completely in aeeable and accordingly, Thave no hesitation in rejecting them. There is perhaps no better answer to his Contentions on this matter than the following apt comment made by the Supreme Court of Ghana when ‘ejecting a similar contention advanced before it with regard to the Ghana Preventive Detention Act, 1958 ‘The court said, in Re Akoto, ‘We do not accept the view that Parliament is competent to pass Preventive Detention ‘Actin wat time only and not in time of peace. The authority of Parliament to pass law is derived from the same source, the Constitution, and by it Parliament can pass qaws to detain persons in war time there is no reason why the same Parliament cannot ‘herve the same powers to enact laws to prevent any person from acting in & manner prejudicial to the security of the State in peace time. ‘To conclude, I think it will nét make my judgment unduly long, if I refer very briefly to one other matter which has caused us a great deal of concern. This matter is the question whether the person for Who a detention order is made under the Preventive Detention. Act is entitled to be shown before his arrest, the original of the detention order or not. The learned Chief Justice and my learned brother Kisanga, TTA. have dealt with this matter at some length in theit judgments and I think properly so. There should, T ‘think, be no doubt in anybody's mind that out law requires that where an arrest proceeds on a warrant, the warrant should state the reason why the arrest is made. And since preventive detention under the Preve- wtive Detention Act, 1962, proceeds on the authority of a detention order made under the Act, there, can, jn my opinion, be no valid ground whatsoever for incercerating any person in prison when such an order is an enes of when in existence, it isnot in the actual possession of the prison authorities. If, as suggested by my learned brothers, the law enforcement officers ensured that before prooseding to arrest anyone under the Preventive Detention Act, they had lawful authority,to do so, it seems to me that a situation such as Cecurred in connection with the respondents in this case, would never arise. The reason for insisting that law enforcement officers should follow the procedure which my learned brothers have outlined in detail in their judgments, is not far to seek, The procedure we approve is designed to secure nothing less than the liberty of the individual against any form of arbitrariness. “With these final remarks, I agree that the order proposed by the learned Chief Justice should be made, in the manner and in terms indicated in his judgment KISANGA, J.A.: This is an appeal by the Ajtorney-General from the ruling of the High Court at ‘Arusha granting an application for Habeas Corpus. The background to this matter may be tet owt Ver Chelly as follows: By an order dated Ist August, 1979, the Hon. the Vioe President directed the detention en i ber of persons, including the three respondents, in pursuance of the powers conferred by s.8() Of the Constitution of the United Republic of Tanzania, 1977, (hereinafter to be refered to simply as he Rone ction) and in further exercise of the powers under s.2 of the Preventive Detention Act (Cap. 490). ‘This happened ata time when His Excellency the President was away in Lusaka for about a week attending the Conference of the Commonwealth Heads of States and Heads of Governments, ‘The respondent Omar Jamaluddin Ukaye was arrested on 7th August, 1979, and his co-respondents were arvested’on 13th August, 1979, after which they were all detained at the Arusha prison but they were ser est he onder or given reasons for the arrest and detention, Therefore quite naturally they fledCA. Tae ATTORNEY-GENERAL v, LestNot NDEINAT & JOSEPH. LAIZER AND OTHERS (NYALALL, CJ.) 241 the application for Habeas Corpus against the Regional Prisons Officer who had custody of them and the Regional Police Commander who arrested them. ‘The order for their detention was shown to them or their counsel on 20th August, 1979, in the course . of hearing the application. However, counsel for the respondents after viewing the order took the view that it was invalid on the ground that the President had not delegated his powers to the, Vice-President 19 make it, This submission was upheld by the learned Judge who found that not only was the order not under the Pres'dent’s hand and the Public Seal as required by the Preventive Detention Act but alto {hit it was not Shown or proved that the President delegated his powers to the Vice-President to make the order. | Con- sequenily the writ of Habeas Corpus issued but it was frustrated or rendered ineffective because it later censoifed that the respondents were now detained on afresh order made under the Deportation Ordinanbe (Cap, 38) and signed by the President himself one day before the writ of Habeas Corpus issued. Further Gttemapts were made by counsel for the respondents to challenge the validity of the said deportation order, but the learned Sudge declined to rule on the matter holding in effect that it was a futile exercise to do s0 in view of the cleat intention by the Executive to detain the respondents in any event. Therefore the matter Was left at that. But although the writ of Habeas Corpus is thus lying idle in the sense that it was not en- Forced nor is it being sought to enforce it now, the Attorney-General, nevertheless, appealed abainst it on the ground that a matter of public importance turns on it, namely, the interpretation of the constitution, ‘At the hearing of the appeal the Attorney-General appeared in person assisted by Mr. G.F. Mlawa and Mr. A. Huka, while the respondents were represented by Mr. F-B. Mahatane and Mr. 3 Muvalc. " Counsel fot the respondents raised a number of preliminary objections. “Mr. Mahatane objected to the Attorney-General appearing. Referring to ss.348 and 349 of the Criminal Procedure Code, be argued that in Tanzania Habeas Corpus application is in the nature of eriminal proceedings. | Since criminal proceedings in this country are controlled by the Director of Public Prosecutions and since the later has not appointed the Attorney-General under 8.84 of the Code as a public prosecutor to exereise any powers: of the Director of Public Prosecutions, then the Attorney-General has no “locus standi” in the matter. However, learned Counsel abandoned this contention when his attention was dravn to s.2 of the Criminal Procedure Code which provides, inter alia, that a public prosecutor includes the Attorney-General. Tt is dosired to further draw learned Counsel's attention to the provisions of r.4 of the Habeas Cotpus Rules, 1930, G.N. 150/1930 which provide that where the detained person is in public custody, as was in this case, then’the duplicate of the application, the summons and the affidavits lodged in support thereof shall be Forwarded to the Attorney-General. "Tt would seem that the object of serving the Attorney-General is to inform him ofthe complaint or the application lodged with the court. to enable him to decide whether or not hhe wishes to be heard on behalf of those having public custody of the prisoner. It is an implied invitation to him, as it were, to appear. And if he chooses to appear and to be heard it is difficult to see on what ‘ground be can properly be refused. ‘Tt seems that one further comment need be made in connection with Mr. Mahatane's submission when he said that in this country habeas corpus application is in the nature of criminal proceedings in which the Director of Public Prosecutions or his duly appointed representatives do appear. Counsel here would appear to give the impression that since the right is provided for under the Criminal Procedure Code then ‘ean only be applied for in criminal matters and that it is not open to an applicant in a civil matter. If this is what counsel meant, then with respect, I cannot agree. For although the right is provided for under $5348 and 349 of the Criminal Procedure Code, there is nothing contained in those sections to show or Suggest that the right is limited only to criminal matters. . There can be no doubt whatever that the writ is 4 very important one which is used to challenge even the act of the Executive ifit infringes upon the liberty of the individual unjustifiably. [think there can be little or no ground for thinking that the writ would not be favailable to an applicant in a civil matter, for instance, where he or'a member of his family is being illegally or improperly confined by another. Indeed, this is the practice obtaining in, at least, some of the Common- ‘wealth jurisdictions. For instance in England where the writ of habeas corpus was first developed Rt common law and later confirmed and regulated by Statute, the writ is equally available in criminal and Givil cases where there has been infringement of personal liberty without legal justification. I think that on principle the same applies inthis country so that the writ is open to an applicant, whether in criminal oF Eivil case, on grounds of infringement of personal liberty without legal justification. ‘Mr. Mahatane’s next objection was as to the caption or title of this appeal. The caption to the pro- ‘ceedings before the High Court did not cite the Attorney-General as a party. Only the Regional Prisons Officer and the Regional Police Commander were shown as the respondents. In this appeal, however,m TANZANIA LAW REPORTS {1980] TLR the Attorney-General has substituted his title for those of Regional Prisons Officer and Regional Police Commander. Mr. Mahatane contends that since the Attorney-General was not cited as a party in the ttle to the proceedings before the High Court, he cannot now appear in the title to proceedings before this Court, The same caption before the High Court shoitld be retained in this appeal so that the Regional Pricong Officer and the Regional Police Commander should be cited as the appellants and not the Attorney-General. Once it is held that the Attorney-General had “locus standi” in this matter, it sees that he could properly substitute his own title in the heading to this appeal as he did. For, it is he who is appealing anid not the Regional Prisons Officer or the Regional Police Commander. The situation here scems analogous with one where the Director of Public Prosecutions appeals from the decision of a trial Court. The proceedings at the trial would be headed the Republi versus so-and-so, and in the case ofa private prosecution the heading would bear the name of the prosecutor or prosecutrix versus so-and-so. If, in the event of an acquittal, the Director of Public Prosecutions wishes to appeal therefrom, he appeals using his own title: he does not retain the caption to the proceedings at the trial. This has been the established practice in our courts for years. Similarly it seems that in the instant case the citation of the Atto‘ney-General was proper evea though he was not cited as a party in the proceedings before the High Court. To insist that he should fot appeal using his own ttle when he is appearing in person would seem mot to accord with the dignity and importance of his office. And lastly, Mr. Mahatane raised the objection that the appeal was out of time. Although it was conceded by the opposite side that the appeal was out of time, the delay was explained on the ground that this matter involving an issue of public importance required consultations with the Attorney-General personally before the appeal could be lodged, but that such consultations could not be held because the Attorney-General was absent from the country for long periods. ‘The claim that the Attorney-General ‘was out of the country for long periods was not challenged, and the fact that the Attorney-General has appeared in person to argue this appeal seems to lend support to the view thatthe issue involved is of public importance which required his attention personally. It could not be said that the explanation offered for the delay was unreasonable in the circumstances, and accordingly leave was granted to file the memorandum of appeal and to argue the appeal out of time. Turning now to consider the appeal on the merits it will be recalled that the learned Judge held that the detention order was invalid because\it was not shown that the President had delegated to the Vice— President the power to make such order. \Refering to the provisions of s.8(1) of the Constitution on which the Vice-President acted in making the order, the learned Judge took the view that the Vice-President could validly exercise the power of the President in pursuance thereof only if the President delegated that power in writing to him. After quoting the provisions of s.8(1) the learned Judge said:— Reading the above extract one can be tempted to jump into a conclusion that immediately after His Excellency the President is out of the country, then automati- cally the constitution operates in such a way that the Honourable the Vice-President assumes all the powers of His Excellency the President. This seems to be the stand all along adopted and pursued by the respondents, assisted as it were by their learned Counsel, the learned State Attorney. ‘On my part with the greatest respect to all concerned with this stand I do not, of course subjecting myself to correction by the Court of Appeal yet to be constituted, think that the legislature intended the said constitution to operate so simply automati- cally as this stand seems to allude to. In my very humble opinion the above quoted extract must be read together with, as rightly pointed out by Mr. Mirambo learned Counsel for the two applicants, subsection 3 and subsection 4(a) of the said s.8 of the Constitution 1977. Those subsections provide for delegation of powers of His Excellency the President should His Excelleney be out of the country or outside the Government Headquarters or somehow sick fora short time. ‘Then such delegation of powers must be done by His Excellency in writing and the said written delegation should specify which powers exerciseable by His Excellency the President are being delegated to the person named in the said written delegation. But since he found that there was no such written delegation of powers by the President to the Vice-President he concluded that the order must be invalid. It was undisputed that there was no delegation of powers by the President to the Vice-President. The Attorney-General, however, contended that under subsectionC.A., Tue ArrorNey—GENERAL v. Lestvot NDEINAI & JOSEPH’ Latzer AND. O1HERS (NYALALI, CJ.) 243 It would be convenient to set out the provisions of s.8 of the Constitution in so far as they.are relevant to the present argument: 8.—(1) Endapo Baraza Ia Mawaziri litaona kuwa Rais hawezi kumudu kazi zake : ‘kwa sababu ya maradhi, basi Baraza hilo laweza kuwasilisha kwa Jaji Mkuu azimio la kumwomba Jaji Mkuv athibitishe kwamba Rais hamudu kazi zake Jowa sababu ya maradhi. Bada ya kupokea azimio kama hilo na baada ya Kufikiria maclezo ya daktari, Jaji Mkuu atawasilisha kwa Halmashauri Kuu fa Taifa ya Chama tearifa ya kuthibitisha kwamba Rais hamudu kazi zake kowa sababu ya maradhi. Kila itakapopokea taarifa ya namna hiyo, Hal- —° mashauri Kuu ya Jaifa itatoa tamko kwamba Rais hamudu kazi zake kwa sababu ya maradhi, na iwapo Halmashauri Kuu ya Taifa haitabatilisha tamko hilo kitokana na Rais kupata nafuu na kurejea kazini, basi itahesabiwa kwamba Rais hayupo. Katika hali hiyo na pia ikitokea kuwa iti cha Rais ki wazi, au kwamba Rais hayupo Tanzania, basi wakati wote Rais atakapokuwa hayupo kazi na shughuli za Rais zitatekelezwa na mmo} ‘wapo wa watu wafuatao, kwa kufuata orodha kama ilivyopangwa, yaa (2) Makamu wa Rais, au kama naye hayupo, basi (b) — Waziri aliyeteuliwa na Rais kwa ajili hiyo, au kama naye hayupo, bas (©) Waziri aliyechaguliwa kwa ajili hiyo na Baraza la Mawaziri. Qo. ) Iwapo itatokea kuwa — (@) Rais hayupo katika mji wa Makao Makuu ya Serikali; (b) Rais hayupo Tanzania kwa muda ambao Rais anafikiria utakuwa si mrefu; au (© Rais ni mgonjwa na anatumaini kuwa atapata nafuu baada ya muda si mrefu, na Rais akiona kuwa inafaa kuwakilisha kwa muda huo madaraka yake, basi aweza kutoa maagizo kwa maandishi ya kumteua Makamu wa Rais, au akiona kwa sababu yoyote ile kwamba inafaa zaidi kumteua Waziri, basi atamteua Waziri, kwa ajili ya kutekeleza kazi na shughuli za Rais wakati Rais hayupo, na Makamu wa Rais au Wariri anayehusika, kadti itakavyokuwa, atatekeleza madaraka hayo ya Rais kwa kufuaia masharti yo yote yatakayowekwa na Rais: Tsipokuwa kwamba masharti yaliyomo katika ibara hii ndogo yafahamike kuwa hayapunguzi wala kuathiri uwezo wa Rais alionao kwa, ‘mujibu wa sheria nyingine yo yote wa kuwakilisha madaraka yake kwa mtu mwingine ye yote. Ttis quite clear that subsection (3) provides for delegation of powers by the President in certain circumstan- ces, The circumstances under which he may delegate his powers are as follows: (a) if he is outside the Government capital; or (©) if eis outside Tanzania for a period which in his opinion is only a short one; or (©) if he is unwell and he thinks he will get better before long; and (@)_ if he thinks it fit to delegate his powers during such period. Tn these situations he may delegate in writing his powers to the Vice-President or to a Minister. On the other hand, itis equally plain that subsection (1) is silent on the question of delegation of powers by the President. "The subsection simply provides for assumption of Presidential powers upon certain contingen- cies happening. The contingencies leading to such assumption of Presidential powers are as follo (@) if the National Executive Committee certifies that the President is incapable of performing his functions by reason of illness; or (b) if the office of the President falls vacant (© if the President is outside Tanzani In the event of any one of these things happening the powers of the President become exerciseable by the ‘Vice-President or by a Minister who was appointed by the President in that behalf or by a Minister who was244, TANZANIA. LAW REPORTS (1980) TLR chosen by the Cabinet for the purpose, following that order of priority, ‘The learned Judge took the view that although subsection (1) makes no provision for delegation of Powers it must, nevertheless, be read subject to or together with, subsection (3) s0.as to import the require- ‘ment of delegation of powers from subsection (3) into it. In arriving at that conclusion the learned Judge contended that the framers of the Constitution cannot have intended automatic assumption of Presidential powers under subsection (1) when the President is outside the country. . To'some extent one may sympa- thize with this view. For, it may be argued that since the office of the President is the highest office in the land, the exercise of the powers pertaining thereto must be regarded very jealously, that is to say those powers ‘ust be exercised by the most trusted person who is the President himself whom the people have elected o a person to whom the President acting on behalf of the people, has delegated the powers of his office. But as against this one may argue very simply that if the framers of the Constitution really intended that there ust be delegation of powers by the President under subsection (1) then they would have expressly said $0, ‘which was all too easy, especially considering the importance which is attached to those powers and the need to regard the exercise of them with extreme jealousy. x Looking at these two subsections they seem to be fairly separate and distinct, and they each appear to have been designed to fit or cover different situations. It appears that subsection (3) was designed to ensure that the exercise of the powers or functions of the Head of State does not cease when the President is temporarily unable to perform his duties owing to short illness or short absence from the country or from the Government capital. In other words, subsection (3) was designed to cover situations which are esten- ally temporary in nature to ensure that during such temporary inability or absence of the President there should be no gap in the exercise of the functions of the Head of State. Thus, for example, the President may delegate his powers when he is outside the country for a short period, or when he is outside the Govern- ment capital, in the hope of returning to the country or to the capital soon. Or he may delegate his powers when he is unwell in the hope that he will be well again soon. The rationale for this provision is fairly apparent. It seeks to facilitate or secure the smooth working of the Government machinery. For, if there ‘were to be tin:es when the exercise of Presidential powers ceases, this would create a gap which could paralyse Government business and even precipitate a crisis. Unlike subsection (3), however, subsection (I) appears to have been designed to cover situations which are not essentially temporary in nature. It envisages situations when the President is unable to act or is absent for long periods. Thus the National Executive Committee will certify that the President is inca- pable of performing his duties by reason of illness if the nature of the iliness is such that recovery is likely to take long or is not likely at all. Similarly when the office of the President falls vacant following his death of resignation, the President is absent and his absence is for a long time — in fact permanent. This is true also when the President is out of Tanzania for a long period, say, in self-exile. .When any one of these ‘things happens then the powers of the President automatically become exerciseable under subsection (1) by’ ‘one of the persons specified therein in that order of priority. Once again the idea is to ensure that there 4s no gap in the exercise of the functions of the Head of State. Under subsection (3) the President has discretion to decide whether of not it is fit to delegate his powers during any of the periods specified therein and also whether to delegate his powers to the Vice President or to a Minister during any of such periods. But having regard to what was said in the last preceding paragraph it would seem that if, on going out of Tanzania, he does not exercisethe discretion to delegate his powers to anyone, then subsection (1) operates so that his powers become automatically exerciseable by the Vice-President even if the period of the President's stay outside Tanzania be not long. This would be in concordance with the principle that there must be continuity in the exercise of the functions of the Head of State. For, if for instance the Presiden€ went out of Tanzania without delegating his powers to anyone and in the meantime there was foreign invasion, it would be idle, to say the least, to imagine that the situation would,have to await the return of the President to Tanzania to come and declare war and.to mobilize the armed forces into action to repel the enemy. Quite clearly logic and common sense dictate that action Gught to be taken, more promptly than that. It is considered that in such circumstances sub- section (I) operates so that the Vice-President is able to exercise the powers of the President and to deal with the situation accordingly. It seems that under subsection (I) the President has no discretion which he enjoys under subsection (3). Once a specified event happens it is no longer for the President to decide whether or not itis fit to have his powers exercised by another person. Thus upon the National Executive Committee certifying that the President is incapable of performing his duties by reason of illness, it would be impracticable, and indeed pointless, to look to the President again to decide whether or not itis fit to have his powers exercised byCAA. ‘Ta Arrorney—GENerat ¥, Lesinot NDEINAr & Jossr LAIZER AND ‘Ormtens (NvataLi, CJ.) 245 another person. First, the certificate by the National Excoutve Committee implies that the President is by another Petloare no longer capable of making sound decisions and thes ov that account it is in the interest ie guntry that he should cease to make decisions which affect the life of the nation. Secondly, if it were ‘pen to him to exercise the diseretion he might well decide, for one A or another, that itis not fit to have tus powers exercised by someone else. In that event then it ‘would make complete non-sense of the whole a en by the National Executive Committee, and it may well lead to a constitutional dead-lock where the Sree at is ill and incapable of discharging his duties and yet his pow cannot be exercised by another Person, It becomes difficult to say that the framers of the Constitution intended to enact a law which pore produce such results. The same is true also when the ofcs of the President falls vacant following bis. Sonne rretsignation or where he is outside Tanzania for a long time, <0); self-exile. In such situations ‘tis equally impracticable and meaningless to Took to the President to decide on whether or not it is proper to have his powers exercised by another person “i ie eyually apparent that under this subsection the President has Do. discretion to decide who is to exercise his powers, As was stated before, under subsection (3) the President could by-pass the Vice~ seer ant and appoint a Minister to exercise his powers during the short ‘period of his inability to perform his saeagent Absence from the country or capital. But under subsection (1) it seems clear that there can be duties oF eeetion, Once any one of the specified events happens not only Fe ‘the persons who are entitled aac presidential powers specified, but their order of priority is also stated, ‘Thus top on the list is the View President, If he is not present then the Minister who was appointed by the President in that te Nand if be is also absent then the Minister who was chosen for that PUrPor by the Cabinet, The Clement of discretion is further excluded by the provision that ‘only if the person first mentioned is absent ‘will the next person assume the powers. To this respect it seems necessary to make a further comment on paragraph (b) of subsection (1) which: provides that a Minister appointed by the President will exercise ithe powers if the Vice-President is absent. eevee that this does not mean the Minister who was appointed By the President in pursuance of the pro- eet of subsection (1), because bearing in mind the foregoing argument ‘such a view would be comple- {aly untenable. Tt seems to mean the Minister to whom the President ‘acting under some other provision, hhad delegated his powers some time before the specified event ‘happened. Such a situation may arise, for Instance, where the President being unwell delegates his powers fo & Minister under subsection (3) but sastaefore he recovers. In a situation like that the Minster will continue /o exercise the powers of the gies ent but only if the Vice-President is absent. If the Viee President present, however, it seems plain that he will automatically assume power under subsection (1) notwithstanding that the President had Gelegated those powers to the Minister before he died. ‘From this analysis it becomes apparent that the two subsections are fairly separated and distinct, each being designed to fit different situations. The scope for reading of construing them together is fairly Tastea and in my opinion it arises only in relation to the contingency when the President is away from the country. As regards the other contingencies, however, the subsections e quite distinct and independent saan ther, and T could see nothing in them to suggest that they should be read one subject to the other. Sea where the President is away from the country, T.can find nothing in the subsections to support the parses Judge's view that the person assuming powers under subsection (') mast hhave those powers delega- aeaet anit the manner provided for under subsection (3). Om the contrary it seems that the true meaning «er the two subsections when read together is the exact opposite of the View taken by the learned Judge. Read together I think they really mean that whenever the President leaves ‘the country, even for a short period only, his powers become automaticaly exercisable by one of the persons specified under subsection (1) eesioe he had delegated those powers under subsection (3) before leaving the country. In otherwords ‘Bulording to the learned Judge, when the President leaves the country the ‘assumption is that no one shall sepals the Presidential powers under subsection (1) unless the President delegated those powers to him Tee the true postion is the reverse ofthat, namely, that upon the President lea,le ‘the country, the assump- Ron is that his powers shall be automatically exercisable by one of the persons ‘specified under subsection (1) unless he had delegated those powers under subsection (3). “Anplying these principles to the facts of the present case, since the President did not delegate his powers to anyone when he went out of Tanzania for what was admittedly only 8 short period, then subsection (1) STa8 of the Constitution operated and the Vice-President automatically assumed the powers of the Presi- ot othe exercise of those powers the Vice-President could detain the respondsls in this case.acting sett did under the Preventive Detention Act. For, although under the Preventive Detention Act the power to detain is vested in the President only and is not delegatabe, s.31) of the Interpretation of Laws and246 TANZANIA LAW REPORTS 11980] TLR General’Clauses Act defines the President to include any person performing the functions of the President under s.9 of the Interim Constitution 1965 (corresponding to s.8 of the present Constitution — 1977) which covered the Vice-President in this particular case. With the greatest respect therefore, I think that the learned Judge erred in coming to the conclusion that the Vice-President had no power to make the deteiition order. Consequently it follows that the Detention Order.could.not be impugned on the ground that the ‘Vice-President had.no power to make it. ‘The second and last ground for, holding the detention order to be inyalid was the lack or absence of the Public Seal on it, The learned Judge touched on this aspect only very briefly in the course of which he said: * ‘The document which is before this Court is admittedly not under the hand of His Excellency the President ofthe United Republic of Tanzania dnd to my understanding cof what the Public Seal pertaining to the office ofthe President is, this photostatic copy of the purported order bears no public seal of it. S.2 of the Preventive Detention Act which provides, inter alla, for the requirement as to the Public Seal says: 2—(1), Where — (@)_ it is shown to the satisfaction of the President that any person i8 conducting himself so as to be dangerous to peace and good order in any part of Tanganyika or is acting in a manner prejudicial to the defence of Tanganyika or the security of the state; or () The President is satisfied that an order under this section is necessary to prevent any person acting in a manner prejudicial to peace and good order in any part of Tanganyika, orto the defence of Tanganyika or the security of the State, the President may, by order under his hhand and the Public Seal, dtect the detention of that person, The provision requires the order to be under the President's hand and the Public Seal. In the instant case the order was signed by the Vice-President but as was said before this did not affect the validity thereof because the Vice-President had the power to make and sign such an order when exercising the powers of the President. As to the Public Seal it was conceded that this was not affixed’on the detention order. But the Attorney-General urged that this was a mere irregularity which was not fatal. 10 But upon reading the subsection it seems plain that the President’s signature and Public Seal are essential to the validity of an order under the Preventive Detention Act. The signature of the President and ‘the Public Seal are what constitute the order. . The sigrature alone cannot do, neither can the Public Seal alone; both of:them must be there to constitute a valid order. ‘The view was taken at the hearing of this appeal that what really mattered was the Vice-President’s intention to detain the respondents which inten- tion was signified by affixing his signature on the document. So that, the argument went on, since the Vice President's signature was not disputed or doubted the absence of the Public Seal was a mere irregularity of a formal nature which could not be said to invalidate the order. On the face of it.the argument sounds attractive but upon reflection it seems untenable. For, if Parliament intended that itis merely the intention Of the President that matters then it was easy to say so simply by providing that the President may detain a person if he is satisfied that the circumstances stipulated under the.Act do exist. Then his order could take any form, and perhaps even an oral order might suffice. But there is nothing to show or suggest. that the present legislation is capable of any such construction or interpretation. The Act expressly requires an order under it to bear the signature of the President and the Public Seal and it makes no provision for any discretion in.the matter. It cannot be said that Parliament mentioned President's signature and Public Seal for nothing or merely for the sake of doing so. Parliament must be taken to have intended those words to have effect and the courts must interpret them accordingly. I think that the provision must be given the meaning which promotes the intention of the Legislature. Giving effect to those words, therefore, that a detention order must have the President's signature and the Publie Seal affixed on it. Omission to affix either of them is fatal to the order. “There is yet another reason for holding this view. There can be'no doubt that the Preventive Deten- tion Act confers vast powers of curtailing the liberty of the individual, It empowers the President to detain ‘2 person if he is satisfied that certain circumstances specified under it do exist. The issue as to whether sistsnk C.A. Ta AtroRNEY—GENERAL v. Lesmot NpeINat & JosePH LAIZER AND OTHERS (NYALALI, C.J.) 247 those circumstances do exist is entirely subjective and his decision to detain a person in pursuance thereof cannot be tested or questioned in any court unless his order be defective on the face of it, or is otherwise not in accordance with the law. The Act empowers the President not only to detain a person bilt to continue to detain him for an indefinite period. Quite clearly, the provisions of the Act are very stringent on the individual. ‘On the other hand, the liberty of the subject is a very serious matter, that isto say, itis a very precious thing or right, Indeed this right has been declared in the preamble to the country’s Constitution as an ‘open acknowledgement of the importance which the nation attaches to it. Viewed in that light I think that the Act which seeks to curtail such a fundamental right should be construed strictly. THA is to say the ower to detain under the Act shoud exerted wth the utmost aecarcy in compliance with the provisions Of the Act confering those powers. Phere should be no carelessness or negligence in applying or observing those provisions. I have not been able to find any local case which is decided on the point, but the English Case of Rex v. Browne Cobbet and Others (1686) Shower K.B. 484 appears to be of some relevance. In ‘that case it was held that a warrant which was under the King’s own hand, without Seal or the hand of any Secretary or officer of State or Justice was bad and that the Court of King’s Bench would discharge the party fon habeas corpus. Admittedly the report is very brief and the grounds for the decision are far from elabo- rate. But the clear principle which is discernible from subsequent cases touching on the question of en- ‘croaching on individual freedom is that there must be strict compliance with the law before depriving the ‘subject of his liberty. ‘Thus, for instance, in the oft quoted Dale’s Case [1881].6 Q.B.D. 376 the Statute required that a writ from ecclesiastical court should be brought into the Court of Queen’s Bench and there opened in the presence of the judges before a person was arrested on it. The omission of this was held to be fatal to the validity of an arrest made in pursuance of the writ. In the course of the judgment the court held at p.461 of the Report that It isa general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue. Tt may be mentioned in passing that the court further held that the principle requiring strict compliance with the law equally applies even where the provisions of the law relate to matters of form only. I mention this only in passing because in the present case, as I have indicated sufficiently, Lam of the opinion that the requirements of the President's signature and the Public Seal are matters of substance and not of mere form. They are the two things which constitute the validity of a detention order under the Act. I think that this principle which has been laid down and applied by the English Courts is good law which we in this country can adopt with advantage. For, it seems correct on principle to insist that the application of such a stringent Act to curtail the freedom of the subject is a matter which should not be done only casually or lightly. It is a matter which ought to be undertaken with all seriousness in observing those provisions which confer the powers to curtail that freedom. Tn other words, justice demands that in order to take away ot to curtail that which is so precious to the individual, the power to do so must be exercised with scrupulous accuracy. Those were the main points in this appeal, but Mr. Mahatane in a further attempt to challenge the detention order also submitted in effect that the Preventive Detention Act on which the order was based contravened the country’s Constitution in that it purports to take away or limit the right of freedom to the individual which is enshrined in that Constitution. Put in another way, counsel was saying that the Pre- ventive Detention Act is unconstitutional and so any order, stch as the present one, purporting to be made under it is necessarily ultra vires and hence of no effect. With respect to learned Counsel, I can find no substance in this submission and so I propose to dispose of it only very briefly. Tt is true that a number of: rights have been enumerated in the preamble to the Constitution. These include the right of freedom to the individual. But this amiounts only to a declaration of our belief in those rights. It is no more than just that. The rights themselves do not become enacted thereby such that they could be enforced under the Constitution. In other words one cannot bring a complaint under the Constitution in respect of a violation of any of those rights as enumerated in the preamble. That being so, there can be no valid basis for saying that the Preventive Detention Act which was duly passed and enacted by competent authority is ultra vires the Constitution. It is an Act of Parliament like any other, and consequently the order made in pursuance thereof cannot be said to be of no effect. If Parliament in its wisdom found it fit to enact a law which goes against what the nation openly believes, then I desire to say no more than just that this is no forum for248 TANZANIA LAW REPORTS [1980] TLR, questioning that wisdom. Once the law was properly enacted, the duty placed on the courts and the officers thereof is to administer it giving effect to the intention of the Legislature, even though in one's private capacity as a citizen, one might have one's own feelings or views about the matter. I'am therefore satisfied that the order could not properly be attacked on that ground either. ‘That was sufficient to dispose of this appeal but there is one aspect in the administration of the law of Preventive Detention which it seems desirable to comment upon generally —albeit only briefly. It concerns, the need to disclose to the detainee the authority for his detention. It appears that the respondents in this case were arrested and detained in prison without being shown the order on which they were arrested an detained. The respondent Masai in his afidavit, for instance, clearly said that he was arrested by the poli and later received in prison without any detention order. His co-respondent Omar in his affidavit also went further and said that on asking the police the reason for his arrest he was told by the Officer Commanding District (O.C.D.) that he had just been ordered to lock him up, and on being sent to prison he was told by the Regional Prisons Officer not to ask him why he was sent there because he himself was only commanded by the O.C.D. to receive him there. Then Mr. Mwale, counsel for the respondents also in an affidavit, deposed that there was no detention order against which the three respondents were held. These affidavits were not contradicted or challenged at any stage, and so this leads to the conclusion that the allegations made therein are admitted as true. This state of affairs is objectionable because it does not seem to accord with the provisions of sub- section (1) of s.4 of the Preventive Detention Act. That subsection provides: 4.1) An order under this Act shall constitute an authority to any police officer to arrest the person in respect of whom it is made and for any police officer or prison officer to detain such person as a civil prisoner in custody or in prison; ‘and such person shail, while detained in pursuance of the order, be in lawful custody. T think the subsection properly construed means that the order should be in possession of the police officer at the time of effecting the arrest. It could not mean-that a person can be arrested and detained provided, that an order exists somewhere. For instance, it could not mean that a person can be arrested and detained in some remote town up country upon a detention order allegedly lying at the State House in Dar es Salaam, To my enind, such a construction would be over-stretching the meaning of the subsection, It would not make much sense and certainly it does not make good administration either. Because upon a person being arrested, the police officer could not properly be heard to say to the detainee that the detention otder is it Dar es Salaam when the arrest takes place, say in Arusha, But what is even more is that such interpretation would be inconsistent with the principle stated earlier that a law such as this one which infringes on the freedom of the individual should be construed strictly; so that even if the provision was capable of different interpretations, which in my opinion its not, there should be assigned to it that interpretation which protects the rights of the individual. Now since it was undisputed that the 0.C.D. did not have the detention order, it follows that he had no authority within the meaning of the subsection to arrest the respondents and to the extent that was so the arrest was clearly objectionable. The receipt of the respondentssinto prison in those circumstances was equally objectionable on similar grounds. I shall say more on that aspect a little later on but suffice it now to say that a person detained under the Preventive Detention Act should be shown the detention order at the time of his arrest in accordance with the construction of the provisions of s.4(1) of the Act. Yet I am prepared to go further and to say that a person detained under the Act should be shown the detention order as the authority for his detention not only because the Act requires so but also because it is most desirable on a number of practical grounds. First, considering the detention order in this case, it is shown to have been made on Ist August, 1979. As was said earlier the respondent Omar was arrested on 7th August, 1979, and his co-respondents were arrested on 13th August, 1979, But although the order was made long before the respective dates of their arrests, the order was not shown to them of their counsel, despite requests. They were kept in the dark, so to speak, till 20th August, 1979, when the order was shown to their counsel at the hearing of the application. For the respondent Omar this was @ period of thirteen days of being Kept in the dark without knowing the authority for his arrest and detention, The pertinent question to ask is why? Because if the order was in existence, it having been made on Ist August, 1979, and if it concerned the respondents as indeed it did, then what was objectionable abdut showing it to them or their counsel as the authority for their arrest and detention, especially as they had asked for it? [ must confess I could find no possible grounds for objection. If a person is being detained it seems propermo CA, Ta Arronney GENERAL. Lasinot NDEINAI & Josern Larzen aND Oriens (NYACAL cs) 249 that he should be shown the authority for his arrest and detention. He is entitled to see it in order to satisfy rane that it is directed against himself and not some other person. He is entitled 10 know a least whether isis preventive detention or whether it is in connection with an ordinary ‘criminal offence where he can fhope fot tral. think that to give him this kind of information would belP hhim a great deal to settle down peychologically. It would tend to lesen or alleviate the mental strain duc to speculation and the state of revtety brought about on him by the arest and detention. Also when he knows the mitur® of his confine- aoe is puts bim in a position to determine the nature of his defence and to plan it accordingly. But ment thi Pinee, such as Omar in this case is told not to ask why he is sent to prison and his unexplained sro on continues for some thirteen days to my mind this js clearly undesirable and improper, especially stem uniry like Tanzania where we are striving to build ajust society. Itshould be Borne in mind that in ia cainy at least, a detainee is only a suspect who may or may not be guilty and who may De released if so her investigation he is found to be innocent. But what is even more is that whether guilty or not {think that as a human being he is atleast entitled to know the authority for infringing upon his precious ‘and fundamental right to freedom. ‘Secondly, its noted that the application in this case was filed simply because the respondents OF their counsel did not know the reason or authority for their detention. That isto say, ifthe detention order were soanmeio them when they asked for the authority for thei detention, that would have been the end of the snow nless, for instance, the order was defective on the face of it, and the matter would not have come canart, But it came to court in th first instance simply because the authority for the detention Ws denied to the respondents or their counsel, It is true that after the order was produced in court on 20th August, 197D, the question then turned on the iregularty of the order on the face of it, But this is beside the point, cette even if there were no such an irregularity, the matter would have already been brought 10 Cut, at aoa recat producing the order, any way. Yet this was not an isolated incident. There have beso other eae o before too where the detention ordér was produced only ia court during habeas corpus PY Seedings and as soon as the order was produced that ended the matter. Quite clearly, such court procee= Sings are absolutely unnecessary and at times embarrassing, and the suggested practice ‘would certainly help to cut them down or eliminate them altogether. eae ast ground for this view is ths, The respondents alleged, and they were not contradicted, Hat following their arrest by the potice they were detained at the Arusha prison without there being @ detention rider, “The question which arises is, under what authority were the respondents reccived in prison? $.25(1) of the Prisons Act provides that: 25-{1) No prisoner shall be admitted into a prison unless accompanied by a remand warrant, certificate, warrant or other order of detention, or warrant of conviction or of committal, ‘Again, t was shown earlier that an order under the Preventive Detention Act would be sufficient authority panies ing a detainee in prison. The Regional Prisons Officer Arusha who was respondent before the High Court did not say or suggest that he had any authority under either Act so reset the respondents in his custody, and I have not been able to discover any other provision of the law under which he could claim wis cvs authority to receive them. And gathering from the affidavit of the respondent Omar, the Regional BaNe Officer received the respondents on the command of the O.C.D. It seems plain that (he ‘command reine O.C.D. did not constitute an authority within the meaning ofthe subsections. Therefore the Regional cen ees clearly acted illegally in receiving the respondents into his eustody. It is equally apparent that the tesional Prisons Officer was commanded by the O.C.D. to thus act illegally because there was 10 the Reziontiier which could accompany the respondents, This is most sad, to say the least, because the Very officers who are depended upon to enforce the law are themselves being used as instruments of breaking Heo orice suggested practice, therefore, would help remedy this kind of situation. "For, if the order is ie a the detainee as the authority for his arrest, the same order will be available to the prison officer as sre en hority for receiving the detainee into his custody and this would obviate the chances of a prison scar being commanded to act illegally as was done inthis case. I hardly need to repeat that it would also Sbviate the chances of the police officer acting unlawfully in effecting the arrest. ‘This judgment would be incomplete without saying a word on the issue of jurisdiction of the cours to question a detention order made under the Preventive Detention Act, inthe ight of s.3 of the Act which provides that no order made under the Act shall be questioned in any court. ‘Admittedly there was no objection raised to the court’s jurisdiction in this case. But it is ‘considered that the issue is relevant and is sathcieaty important such that itis desirable thatthe courts should be very clea of the basis on which they250 TANZANIA LAW REPORTS [1980] TLR assume jurisdiction in such a matter. "The issue was dealt with by my brother Mwakasendo, J.A. in his judgment. Tentirely agree with his views and I desire only to emphasize one point, It is well established now that there are certain cifcumsta- ‘nces in which the courts will assume jurisdiction even though the Statute says that the courts shall fiave 10 jurisdiction. The clearest example is where itis alleged that the Executive in doing the act autho¥ized by Statute acted in excess of its powers or failed to comply with the requirements thereof. The latter was the case in point in these proceedings. That raises the question as to the legality or validity of the order. In such circumstances the courts will assume jurisdiction in order to ascertain the legality dr validity of the order and if the allegations are proved the purported order will be declared mull and void or invalid and of no effect at all. Further examples include cases where itis alleged that the Executive acted notin good faith or has committed a breach of natural justice. But the list is not closed. It is conceivable that other circumstances may be added as time goes on, and the circumstance in each case will depend on the facts of the particular case. But the point to emphasize is that in assuming jurisdiction the courts are not concerned ‘with whether the decision or act of the Executive is right or wrong because that is exactly what the Statute forbids them to do. In other words, the courts are not an appellate tribunal to review the acts or decisions ofthe Executive. But the courts are simply concerned to ascertain whether the Executive in doing the act or in taking the decision authorized by Statute, did so in accordance with the law or the requirements of the Statute Having made. those observations, T would now conclude the appeal by saying that although the detention order could not be impugned for want of authority om the part of the Vice-President to makeit, it was none-the-less defective for want of the Public Seal on it. That defect was fatal and it rendered the order invalid. I am of the view that had the learned Judge properly directed himself on the law he could equally have granted the writ of habeas corpus on the sole ground of invalidity of the order for want of the Public Seal, On that ground f agree with the learned Chief Justice and my brother Mwakasendo, J.A., that there can be no justification for disturbing the writ. T would accordingly dismiss this appeal Appeal dismissed. WaziRI AMANI V. REPUBLIC (MWAKASENDO, J.As): Waziri AMAN. v. REPUBLIC COURT OF APPEAL OF TANZANIA AT ARUSHA (NYALALI, C.J., MWAKASENDO AND KISANGA, TTA) CRIMINAL APPEAL 55 OF 1979 Evidence — Eyewitness identification — Reliability. ‘The appellant was convicted of murder. On appeal it was contended that the trial Judge relied on unreliable eyewitness testimony in convicting appellant. Held: (i) evidence of visual identification is of the weakest kind and most unreliable; Gi) no court should act on evidence of visual identification unless all possibilities of mistaker identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight; ii) in this case the visual identification left no doubts as to the correct identity of the accused as the cone who killed the deceased. Appeal dismissed. Cases referred to: “"() Ri ¥. Bria Sebwatol (1960) E.A. 174, (2) Lejzor Teper v. The Queen, (1952) A.C. 486. (3) Abdalla Bin Wendo and Another v. R., (1953) 20 E.A.C.A. 166.rr... CA. Wazmmt AMAN, v. REPUBLIC MWAKASENDO, JA.) 251 (4) Rv. Kabogo wa Nagungu, (1948) 23 K.L-R- a) 56. (5) Mugo v. R,, (1966) EA. 124 (K). D.N. Kapoor, for the accused. GIF. Mlawa, for the respondent. May 6, 1980, The following considered judament of the court was tead by MWAKASENDO, J.A.:” Wazici Amani is appealing to this Court against his ‘conviction and sentence of death passed by the igh Court for the mgrder of one Daudi s/o Mekasi. Messrs Kapoor ‘and Mlawa appeared as counsel for the appellant and respondent Republic, respectively. Pe. Kapoor, making his submisfions on behalf of the appellant, has attacked the findings of the learned tial Jodge on two main grounds. His first submission reates 0 the issue of the identification of the appellant as the asailant of the deceased. According to Mr. Kaper the trial Judge erred in accepting the evidence of P.W.1 and P.W.2 as sufficiently cogent and qualitatively good so as to found an unimpea- ue be identification of the appellant as the deveased’s assailant. is other submission relates to the un- ceefactory post-mortem report which the prosecution tendered in evidence at the trial. We will deal with Mr, Kapoor's submissions in the order they are set out supra: sro incidents leading to the deceased's death took place at nights and since it may well be thought, as Mr. Kapoor presumably did, that the conditions prevailing 2° the time of commission of the offence 38 Me Anlavourable as to make any fair and correct identification of the assailant of the deceased impos- Mole, we wish to deal with Mr. Kapoor's complaint in this ‘connection by first looking at the facts found sore ed at the tral before turning to discuss the law zelating to this important question. ee ain this case are rather scanty and simple, They are these. The 26th day of December, 1975, was for most. peasants of MWwangalile village, Kahe, Moshi District, & day of festivities marking @ very Special event if the Christian Calendar, the Christian rite ‘of baptism. Simon Masai (P.W.1) had on this special day laid a special party to celebrate the baptism of this son, To this party Simon invited his relatives seer ends among hom were his uncle, the deceased Daud Mekasi, asi Masai (P.W.2 and Simon's ate, Judica Daud (P.W.3 and wife of the deceased), he ‘appellant Waziri Amani who is Simon’s tte). Jaclaw, although uninvited, came to the party at 7.30 p.m. We are {old that as soon as he arrived peouked those he found in Simon’s house “what are you doing?” +0 which the deceased answered saying That they were celebrating the baptism of Simon's son. Whereypett, it is alleged, the appellant said ‘what reply are you giving me” and then leaving the room to sit outside the house added: “Your reply has shade me feverish." Half an’hout later, so we are informed, the deceased went outside Simon's house to aid a call of nature and as he was about to re-enter the room he ae accosted by the appellant who, holding the deceased by his collar, asked him “what were you saying? I will show you.” Then the appellant was seen stabbing the deceased with a knife om the eit side of the chest and shortly after threatening those present “You will see me tonight” the appellant sap 200 ‘and disappeared into the night. He was coos again until June 1977 when he was apprehended by the police ‘and charged with the murder of the ‘Mesenced. ‘This in brief is Simon's account of the events leading to the ‘deceased's killing by the appellant. ‘The other material witnesses to the tragedy are Losina Masai (P.W.2) and’ Mejoloi Medukenya (P.W.6)._Their accounts of the events which took place on ‘the fateful night of the 26th December, 1975, are, part from minor variations of detail, more or less similar 1 the narrative of events given by Simon. How- ape Counsel for the appellant has vigorously attacked theit recollection of the events and contended as coer coped events occurred at night the conditions then existing could Tot by any means be said to beideal for a proper and correct identification of the person who perpetrated the murder. Before deciding whether eoaaear Bright in this submission we pause here to consider the principles of law to which a trial court cost have regard whenever a case against an accused person depends ‘wholly or substantially on the correct- ns Hone of more identifications of the accused which the defence alleges to be mistaken. Toate to observe that in this case itis agreed by all that the presen ‘appeal raised an important problem relating to evidences of identification of the Killer Of the deceased Daud Mekasi. Such evidence, as ere aurtis fully aware, is notoriously subject to error and has often Ted to a miscarriage of justice. Hence the necessity for the trial Court to warn itself of the special need for caution before convicting in reliance on the necrectnese of the identification of an accused. How then is the ‘trial Court to be guided in resolving this problem? Tne st point we wish to make is an elementary one and this is that evidence of visual identification, as Courts in East Africa and England have warned in a number of eases, of the weikest kind and most ws chable. It follows therefore, that no court should act on evidence of visual identification unless all ™”252 TANZANIA LAW REPORTS (1980) TLR possibilities of mistaken identity ae eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. (See R. v, Bria Sebwato (1960)-£.A. 174; Lejzor Teper v. The Queen [1952] A.C. 480; Abdalla Bin Wondo and Another v. R., [1953] 20 EA.CA. 166; Ren, Kabogo wa Nagungu, (1948) 23 K.L.R. (1) 50; Mugo v. R., [1966] E.A. 124 (K), Now, the extent to which the possiblity of the danger of an affront to justice ‘occuring in this type of ass depends entirely on the manner and care with which the tral Judge approaches his tae analysis and Gamination of evidence. If the judge does his job properly and before accepting any evidence of identifica- tion hie goes through a process of examining closely the circumstances in which the identification of each witness came to be made, the dangers of convicting on such evidence are greatly lessened. Althou; hard and fast rules can be laid down as to the manner a trial Judge should determine ques identity, it seems clear to us that he could not be suid to have properly resolved the na resolved by him: the time the witness had the accused under observation; the distance at vation occurred, for instance, whether it was day or night-time, Whether there was good ot poor lighting at the scene; and further whether the witness kee o. had seen the Accused before or not. These matters are out a few of the matters to which the trial Judge should direct bis mind before coming to any definite conclusion on the issue of identity, Irat the ond ors ‘examination je Judge is satisfied thatthe quality of identification is good, for example, when the identification wae made Py & witness after a long period of observation or in satisfactory conditions by a relative neighbour, a close end, a workmate and the like, we think, he could, in those tircumstances, safely conviee or the evidence of identification. “On the other hand, where the quality of identification evidence ie oor, for example, would be perfectly entitled to acquit 2'ith that, ve may now pass on to consider whether the trial Judge inthis case was mistaken as con- tended by Mr. Kapoor, in accepting the identification evidence given by Simon Masai (P.W.1), Losina Masai (P-W.2) and Mejoloi Medukanya (P.W.6). ‘The learned trial Judge in summing up the case to the assessors explained the issue of identity of the accused in these words: The question you have to decide on the evidence is whether the three prosecution ‘witnesses properly and without any doubt identified the person who attacked aod Hed the deceased on the material night as the accused in court, In deciding this ‘most important qiestion you have to take into account the fact that it was a dark night when the offence was committed. You have also to consider the evidence that there was light from a hurricane lamp outside where the stabbing took place and the evidence that the attack was committed about 2 paces from the door which was said to have been open at the time. Tt is aot disputed that the accused was well-known to the witnesses before the incident. He is in fact brother-in-law of ~ on, (P.W.1). On the other hand, you have heard accused's defence of alibi, If'you believe his. defence that he was in fact in Same when the deceased was attacked and killed in Kahe then he certainly could not have been deceased’s assailant. If you accept the defence of alibi or even if you think it is possible that the accused was no where near the scene of crime the law requires you to resolve the doubt in favour of the accused and find him not guilty ofthe offence. On the other hand, if you are satisfied in your own minds that the three witnesses could not have been mistaken in their identity of the accused as the one who attacked and killed the deceased you will have to find that the killing was unlawful. With respect, we can find no fault with this charge to the assessors and as it seems to us, nor did the assessors. The learned trial Judge in a considered judgment dealt with the issue of identification as followse All the three'witnesses told the court that they saw the accuser! when he arrived at the party, they heard his utterances and they saw him attack the deveased with knife. ‘When Simon, (P.W.1), was cross-examined by the learned defenc. :, ‘sel'as to how he could identify the accused in darkness he suid inter alia: ‘It was x dark night but there were lamps outside the house where children were celebrating.” When asked as d ai itCAL ‘Wazint AMAN, v. REPUBLIC (MWAKASENDO, JA.) 253 to how he could see the accused attacking the deceased outside while he was inside the house be replied: “The door was open when the accused arrived. It was open ll the the time we were there.....-He was stabbed two paces from the door.’ Losina Masai, (P.W.2), also said (when crossexamined by the defence): *....It was a dark night but there was a hurricane lamp burning outside the house. “There was no dispute that the accused is well-known to the three witnesses. He is in fact brother-in-law of Simon, (P.W.1). As clerly demonstrated in the evidence of the three witnesses soon after his arrival at the party he talked to the people at the party including the deceased. According to the evidence the stabbing took place ‘about 2 paces outside the door of the house in which the witnesses were sitting. ‘The door was wide open and there was a lamp burning outside where the attack took place. ‘ “There is also the evidence that soon after the stabbing the accused rotreated to five paces away and threatened to attack any person who dared to approach him. ‘This being the evidence I... .agree with the opinion of the judges of fact that the three witnesses could not have failed to identify the accused as the person who, on the material night, attacked the deceased. ‘This analysis of identification evidence by the learned trial Judge is, in our view, as good as one could expect to find ina case of this kind. We entirely agree with the learned trial Judge that the evidence estab Tished by the prosecution left no doubts whatsoever as to the correct identity of the accused as the one who Killed the deceased. And like the learned trial Judge, we are of the firm view that the alibi put forward by the accused was a palpable lie, which he had advanced for the sole purpose of deceiving the court. Tn the result, ‘we have no hesitation in rejecting Mr. Kapoor's first submission. ‘We now tur to consider Mr. Kapoor's second submission. This related to an apparent contradiction in the evidence of the doctor and that of the other witnesses for the prosecution who deposed as to the loca- tion of the fatal wound on the body of the deceased. The three eye-witnesses - Simon, Losina and Mejoloi - were quite emphatic that the deceased was stabbed on the left side of the chest, ‘Their evidence finds strong support in the evidence of George Mwakapola (P.W.8) the police investigating officer who went to Mwanga- lile Village on 27th December, 1975, George told the court that on arrival at the scene of crime he saw a dead body of an adult male Aftican. He examined the body and noticed a wound on the deceased's chest George accompanied the body of the deceased to K.C.M.C. Hospital at Moshi and was present when the body of the deceased was identified, before a doctor attached to the Hospital, by Simon as that of Daud Mekasi of Muangalile Village, Kahe. We have carefully looked at both the post-mortem report and the testimony given by the doctor who performed the post-mortem examination and can find no basis for the doctor's dogmatic finding that the wound which caused the death of the deceased was located on the back, fat the left hand side of the deceased's body. Although the learned trial Judge endeavoured to rationalise the doctor's evidence, we do not think the doctor's explanation as to how he could have found the wound on- the back of the deceased's body when everyone else saw it on the left hand side ofthe chest can easily be ration alised or accepted having regard to the strong evidence on this point deposed by the four other witnesses for the prosecution whose credibility the trial Court accepted without question. ‘On careful consideration of this aspect of the case, we are of the opinion that the doctor's evidence as to the location of the fatal wound is completely untenable in the circumstances of the case. We are in the vent satisfied that the wourad found on the deceased's body was as described by Simon, Losina, Melojoi and George located on the left hand side of the chest. If follows, therefore, that Mr. Kapoor's second submission also fails. ‘Accordingly, we dismiss this appeal. Iti so ordered. ‘Appeal dismissed.Seen a 254 TANZANIA LAW REPORTS, [1980] TLR. Bowmo Tomota v. RepusLic NvaLau, C.J.) Bomso Tomora v. Repupiic “COURT OF APPEAL OF TANZANIA, AT ARUSHA (NYALALI C.J, MWAKASENDO AND KisANGA, ILA) CRIMINAL APPEAL 56 oF 1979 Criminal Law—Manslaughter—Causation—Meaning of —Penal Code (Cap.16) 5.203. Criminal Law—Manslaughter—Common inteat—Death caused by assault by two assailants—Courts unable fo say who struck the fatal blow—Penal Code (Cap.16) 5.22, 23, einely: Whether the trial court was justified in admitting the repudiated confession; and whether the appellant did cause the death ofthe deceased. Also, whether failure to ca persons to identify the body of deceased to the doctor rendered the evidence of the doctor as to the identity of the deceased inadmissible, Overy Person who ads and abets another person in committing an offence is a principal offender; Appeal dismissed. Sentence for manslaughter reduced, Cases referred (« @) Encoclea Ewal v. R., (193134) T.L.R.65, @) Rv, Sirahi Bachumbira (1936) 3.E.A.C.A. 40, (3) _R.v, Mpande s/o Ndele (1938) 5:E.A.C.A. 44, (4 Tumbo s/o Ngalishi v. R., (1953) 20 E.A.CA. 173, J.W. Kirritta, for the appellant. GF. Mlawa, for the respondent. November 30, 1980. The considered judgement of the court was read by NYALALI, CI. The SpPellant, Bombo Tomola, was jointly charged with her sister, namely, Tab Tomola, in the High Court at Arusha for the offence of murder - contrary to s.196 of the Penal Code but wen convicted, jointly with her sister forthe lesser offence of manslaughter contrary to s.195 of the Penal Code, and was sentenced to twel- Te pare imprisonment like her sister. She was aggrieved by the conviction and sentence ag hence this appeal fo this Court. “Her sister is, apparently, not appealing. Mr Kirita, learned advocate, appeared for the ‘Ppellant in this appeal and the Republic was represented by Mr. Mlawa, learned Suare Attorney.CA Bomno Tomora v. Repusiic (Nyataut, C5) 255 courae ofthis quarrel the sister ofthe appellant, who appeared as the secorid accused at the trial, assaulted the, qeeeased who died soon afterwards atthe scene ofthe assault; thas ‘the sister of the appellant, who was the second accused at the trial, then left the scene, apparently to go and report to ‘the police, but before she could reo Found by her brother who is the husband of the deceased ‘and who escorted her to the police station, siere she found the appellant already in custody; that Iter the police visited the scene of crime and drew ® ‘sketch plan of the scene; that oe Doctor "Aloisi Mruashwa, who gave evidence at the trial as P,W.1, alsa. areited Uhe soene of erime and did arcautopsy atthe scene; that Subsequently both the appellant and her sister, Who was the second accused at the trial, were taken ‘before a justice of the peace, that is P.W.6, to whom each made an extra-judicial statement, sate gecording to the proceedings both inthis Court and at the trial court, the following primary and secondary facts appear to be in dispute between the parties: it is the prosecution case that when the aoe nce was paying a visit atthe homestead of P.W.2 she uttered derogatory ‘mocking remarks regarding aeteness of the appellant’ Father to the effect that the old man was pat sick but would soon undergo ae iGfforing; and that as a result of such remarks both the appellant ‘and her sister (the second at the trial) eat up the deceased to death. Furthermore, it is part of the prosecution case that in the extra-judicial brtements, made by the appellant and her sister, each confessed t0 killing the deceased. rete asther hand, the appellant in her defence put up an alibi to the effect that she was away washing her clothes when the deceased was beaten up and that itwas her sister (the second:accused) who beat up the wet sed. ‘The defence of the second accused at the trial was consistent ‘with that of the appellant. ses fiat point for consideration and decision is whether the appellant confessed to the Justice of the Peace inher extrajudicial statement, The appellant admits making a statement fo the Justice of the Peace, that is P-W.6, but she says that what she told the Justice of the Peace is ‘the'same as what she narrated in her sareave atthe trial and the magistrate who recorded her statement made Up his own story. P.W.6, the Justice of the Peace, gave evidence at the trial and produced the extra-judicial statement which he cleims to have been made by the appellant. fn that statement produced at the trial as Exhibit p.6 cracnaker of the statement clearly confessed to killing the decsased. ‘The leained trial judge considered the issue whether the statement produced at the trial was actually made by the appellant and stated: [After fll consideration ofthe evidence in this ease as far as it was given by the Justice athe Peace (P.W.6) Tam fully satisfied thatthe Primary Court Magistrate 07s true seen ot what was narrated to him. In other words 1 fully join hands with one of {he gentlemen assessors or generally that all of them that the Justice of the Peace told us exactly what transpired in his office. We have also evaluated evidence on record and ve find no ground for difering from the conclusion of the area aul judge, After all, no objection was made against the production of the extra-judicial statement at the trial and we can see no reason why the Justice of the Peace transformed an alibi into a confession. Moreover, there was evidence to the effect that before the appellant was handed over by villagers to police wrerody, che had earlier made a similar confession to P.W.4, who is het ten-cell leader. dys She hatha the confession was repudiated by the appellant at the trai and the learned trial judge was aware of this and he therefore proceeded to look for corroborative evidence as & matter of practice. He found it in the testimonies of P:W.2 and P.W.3. PW 2, wi is the sister ofthe appellant, testified to the effect that she stw the appellant and the second accused, who is not appealing, dragging the dead body of the deceased into ‘the compound of P.W.2's home~ sae Wr testified tothe effect that on the material day she was passing >y P.W.2's homestead when she Aer the appellant and the second accused beating up the deceased. P 1W.3 thereafter proceeded to report the matter to the appropriate village authorities. ‘We agree withthe learned judge that the testimonies of P.W-2 and P.W.3 provide ample corroboration of the repudiated confession, Iti also our considered opinion that ‘since the appellant had made an earlier oles confession to her ten-cell leader, that is P.W.4, the learned trial judge ‘could have based his conviction entirely on the repudiated confession without looking for corroboration since, under the circumstances, the confession could not be anything but true. “The next point for consideration and decision in this case is whether the appellant caused the death of fhe Ane learned trial judge was satisfied that the appellant caused the death of the deceased. The Me rautimantae af eve-witnesses Who claim to have256 TANZANIA LAW REPORTS {1980] TLR, known the deceased, those are P.W.2 (the sister of the appellant), P.W.3 (a neighbour of P.W.3) and P.W4, (the ten-cell leader). _ These witnesses claim to have seen the dead body of the person whose death is the Subject of this case and whom they knew, Secondly, there are the testimonies of persons who claim to have seen the dead body of a person who was identified to them as being that of Ada d/o Bombo. There is P.Wal the doctor who performed the autopsy on the dead body of the person identified to him by one Bura Ntomola and Patrice Cyprian-both of whom were not called to give evidence at the trial -in the presehcs of ‘one Detective Sergeant Charles. There is also P.W.5, Detective Sergeant Hamisi, who visited the scene of crime and drew a sketch plan of the scene on.information given to him by P.W.2. He dlso claims to have ‘been accompanied by the doctor who performed the autopsy at the scene of crime, : On the evidence of the eye-witnesses, there can be no doubt that the deceased Adaa d/o Bombo died soon after being beaten up by the appellant and the second accused. Mr. Kiritta, learned advocate for the appellant, has submitted in effect that on the evidence of the eyewitnesses there can be no finding that the death of the deceased was a result of the beating administered to the deceased by the appellant and the second accused. He also submitted, in effect, that in the absence of evidence to show a common intention between the appellant and the second accused and the absence of evidence to show which of the two assailants administered the fatal blow, the appellant cannot be held to have caused the death of the deceased. Furthermore, Mr. Kiritta submitted vigorously that the failure to call at the trial the persons who identified the dead body to the doctor renders the medical evidence valueless in so far as the issue of identity of the dead body and the cause of death are concerned. He argues that the identity of the body examined by the doctor is not established as being that of the person whose death is the subject of this case. We propose to deal with this last submission first. We do not agree that the failure to call the two Persons who identified the dead body to the doctor results in a failure to establish the identity of that body as being that of the lady whose death is the subject of this case. We say so because there is circumstantial evidence which irresistibly points to the identity of the dead body as being that of the lady whose death is the subject of this case. There is the evidence of P.W.1 (Doctor Aloisi Mruashwa) and P.W.5 (Detective Sergeant Charles Hamisi) who testified to the effect that both of them visited the scene of crime and ‘the doctor performed the autopsy in the presence of one police Sergeant Charles and that the said Detective Police Sergeant Charles Hamisi drew a sketch plan of the scene which shows quite clearly the location of the house of the lady whose death is the subject of this case, and also the location of P.W.2's homestead. Since, on the evidence, the body of the deceased remained at the scene of crime until the arrival of P.W.1 and P.W.5, the circumstantial evidence is such that it gives rise to an irresistible inference that the body on which P.W.1 did an autopsy is the body of Adaa d/o Bombo, whose death is the subject of this case. We find it fanciful the suggestion by the learned advocate for the appellant that police sergeant Charles Hamisi (P.W.5) cannot be the same police sergeant Charles mentioned by the doctor (P.W.1). The authorities cited by the learned advocate appear to support the view that circumstantial evidence, where available, can be used to establish the identity of the dead body in the absence of direct evidence on the issue. In the case of Enoclea Ewal v. R. (1931—34) T.L.R.65 the brief judgement of the Court of Appeal for Eastern Africa states: ‘The appellant has been found guilty of murdepand sentenced to death. The evidence in our opinion amply supports the conviction. In his examination in the Lower Court which was read as evidence in the High Court he said: “What I have said to the police officer is what I saw with my own eyes and that is all I want to say.’ What he said to the police officer reads as follows: ‘T then held the woman by the chest while Yoweri took the spear and thrust it into the woman’s vigina. He drew it out and dug it in the ground. He then told me to take the spear and hide it. I told him to do it himself. He said he had not a good house to hide it in and said “Take the spear and hide itin the roof at the back of your house. Yoweri then again got on to the woman's stomach and I went away quickly and hid the spear in my house.” That the appellant was beside the woman Akechi shortly before her death is borne out by the evidence which further shows that he was carrying a spear which according to the medical evidence had blood on the shaft. The evidence of Sgt. Zekeri Makuda is that he found this spear hidden in the thatch of the appellant's roof and that the appellant voluntarily said to him: “That is the spear with which accused one and I killed deceased’ adding “Accused one and I killed deceased because she was bewitching us.’ Daudi Makuda,CA Bompo TomoLa v. RePuBLic (NYALAL!, CI.) Chief of Lubonge, also gave evidence of the appellant having said: “That is the spear accused one and I killed the ‘deceased with.’ All this evidence is clearly'suffi- Gent to convict the appellant provided that the evidence of identification is satis- factory, Not only at this Session of the Court of Appeal ‘but at many sessions it has been necessary to point out the care that should be ‘exercised in recording satisfac- tory evidence identifying the body ‘of a deceased person.as that of a particular person who was seen to have received the injuries resulting in death. If for instance 'A gives evidence of B having been mortally i juredand the lattet’s body is brought to hospital where Dr. .C conducts @ ‘postmortem examination on it A should be i called as a witness to identify the ‘body and the doctor who conducted the postmo- tem examination; and the doctor should be asked to identify A as a person Who was present when the examination was conducted. Inthe pcosent case ‘Dr. McDaniel, who conducted the post-mortem examination; said: ‘I performed post-mortem on body of adult native (female) brought to Tororo Hospital Ped identified to me by Yowana as being that of one ‘“Akechi of Apeipei." | The lacuna here is that Yowana was not called asa witness. ‘The learned Acting Solicitor General while drawing attention to this defect addressed to us a.convincing argument, viz.; that Akechi had been ‘injured in a peculiar and brutal manner according tothe ‘eyewitnesses and that the woman. ‘examined by the doctor bore signs of having been injured in a similarly peculiar and brutal manner. This fact taken ‘together with evi- dence of death of persons who had seen the woman inan injured condition prior to her death and were present at her death is in our opinion sufficient evidence of Sdentification but the cases where such evidence would not be available can well be imagined, The appeal is dismissed.” Tis clear in that case that the identity of the dead body was established not by direct evidence but by circum stantial evidence of the peculiar injuries. In the next case of R. ¥. Sirasi Bachambira (1936) 3 E.A.C.A. 40 the brief facts of the case are con- tained in the headnote of the report which state: ‘The appellant was convicted of ‘the murder of one Mutundi. Witnesses who were present when he stabbed Mutundi gave evidence and there was evidence that seven days later a person called Mutundi was admitted to hospital suffering from @ ‘wound ‘caused by a sharp instrument, but there was no evidence identifying this person with the person. stabbed by the appellant. On page 41 of the judgment of the Court of Appeal for Eastern Africa the Court stated: ‘No person was called to say that the Mutundi who died in hospital was the same asthe Mutundi who was stabbed by the appellant, and the question for us to decide is whether the death of a man alleged to have been murdered has been properly proved. tis hardly necessary to say that the onus of proving this is upon the Crown: ‘Counsel for the Crown submits that there is a strong inference from the circum- stances that the Mitundi who died in the hospital is the same as the Mutundi who was Stabbed by the appellant, We are of the opinion that to establish such a fact from circumstances an irresistible inference must be shown. Is there such an irresistible fnference. The facts are that on the 19th October one Mutundi in the district of ‘Masindi was admitted to the hospital suffering from a wound in the left side. All the witnesses who saw the stabbing on the 19th October refer to the victim of the assault as the deceased and in all probability think him dead. We do not think that we can say that there is an irresistible inference of the identification. ‘This judgment isa clear authority for saying that circumstantial evidence which is suficient in identiicaton of a dead body must be such as to give rise to an irresistible inference of identity. Tn the third case cited by the learned advocate for the appellant, that is the case of R. v. Mpande s/o Ndele (1938) E.A.C.A. 44 the Cour of Appeal for Eastern Africa adopted and applied the principles stated in the first two cases. ‘i the fourth case cited by the learned advocate for the appellant, thats the case of Tumbo s/o Ngalishi258 TANZANIA LAW REPORTS [1980] TLR YR. (1953) 20 E.A.C.A. 173, the bref facts of the case are contained in the headnote of the judgment where it is stated: . The appellant was convicted of the iurder Of his mother. A witness identified the deceased at the mortuary, giving only her name without adding anything more by which she cotld be identified. ‘The Court-of Appeal for Eastern Africa stated at page 173: ‘The learned Cotinsel for the Crown has pointed out that the evidence as to the identi fication of the deceased body’ after it had been taken to the mortuary was not satis- factory, in that the.witness gave only her name and did not add anything more by which she could be identified. This court has on occasions before observed that the meré giving of the name is not sufficient. Actually in this case there are sufficient Pointers in the other evidence’ to establish beyond doubt that the body of the dead ‘woman, described by the identifying witness as Agnes d/o Sauka, was in fact the wife Of the witness Mshenzi and the mother of the appellant. It is clear in this case that though the direct evidence was not found to be sufficient to establish the identity of the dead body, the deficiency was made good by circuinstantial evidence. It is probable, though not quite certain from the judgment of the Court of Appeal for Eastern Africa, that the direct evidence was found to be insufficient on the basis that the name of the deceased was given by a witiess who did not disclose how he came to know the deceased, for otherwise we cannot see how the identification by name of the de- ‘ceased by a close relative or a person who previously knew the deceased would be found to be insufficient identification. ‘The medical evidence accepted by the learned trial judge in the present case shows that the deceased died of cardiac and respiratory arrest which could have arisen from a broken spinal cord in the neck. On ‘the eye-witness’ testimony of P.W.3, who corroborates the confession of the appellant as well as the con- fession of the second accused ~ a confession which implicates the appellant ~we are satisfied and find as a fact, like the learned trial judge, that the deceased sustained a broken spinal cord in the neck in the course of being beaten up by the appellant and the second accused. : ‘The question which arises is who was the author of the fatal blow or blows which broke the spinaf cord? Obviously, if the appellant was the author of the fatal blow or blows, she could be found to have caused the death of the deceased; but if, on the other hand, the fatal blow or blows were administered by the situation falls either under the provisions of s 22 or s.23 of the Penal Code, which deal with parties to a ‘criminal affence and offences committed by joint offenders in the prosccution of a common purpose. (On the evidence adduced at the trial, and accepted by the learned trial judge, there is nothing to show that the appellant was the author of the fatal blow or blows in the neck. However, in the appellant's ‘confession to the Justice of the Peace (P.W.6), there is the following statement in Kiswal ‘Mimi nakumbuka mnamo tarehe 20/10/76 kama sasa 10.30 jioni marehemu alikuwa anapigana na dada yangu ndipo na mimi nikaenda kumsaidia dada yangu kumpiga marebemu. It is evident from this statement that the role of the appellant in the incident, which resulted in the death of the deceased, was that of giving help to the second accused in beating up the deceased. In common legal parlance, the appellant aided and abetted the second accused in beating up the deceased, anid she is covered iby the provisions of s.22(c) of the Penal Code. and she therefore caused the death of deceased. ‘We have reached this conclusion after considering the medical evidence along with the confessions of the appellant and the second accused — confessions which are corroborated by the testimonies of P.W.2 and P.W.3. We do not, however, accept Mr. Kiritta’s submission that the appellant could not have been convicted in this case without the medical evidence regarding the cause of death of the deceased. The medical evidence in this case is direct evidence of the cause of death; but direct evidence does not preclude the cause of death being proved by circumstantial evidence. There may well be cases where the medical evidence as to cause of death is essential for a conviction, but in our considered opinion this is not such a ‘case since, according to the confessions of the appellant and that of the second accused, the deceased died ‘on the spot very soon after being beaten up with sticks by the appellant and the second accused. It is our considered opinion that the circumstances in this case are such as to point irresistibly to death being due toee —————— CA ‘Bowpo ToMoLA v. REPUBLIC (NYALALI ch) 259 the beatings administered by the appellant and the second accused. It makes no difference that the beatings Gould have trigerred off some other factor dich as a heart attack which Killed the ‘deceased, since the situation could fall within the provisions of s.203(4) nf the Penal Code under which ““® perseh "is deemed to have Caused the death of another person “although his act is not the immediate of sole cause of death... if by Shy act or omission he hastens the death of a person suifering under any disease oF injury which apart from sey gct or omission would have caused death.” ‘With regard to malice aforethought, the nin nod trial judge agreed with the lady and gentlemen asses- sors who sat with him to the effet that fhe appellant and the second. ‘accused did not intend to all the deceased. The appellant and the aa ad accused were therefore acquitted Om ‘the charge of murder tut convicted for the lest: offence of it slaughter — contrary to section 195 of the Penal Code — as there but cor ustification for Killing the deceased, ‘With regard to the sentence, the earned ‘al judge imy con the appellant and the second accused. soa very serious manslaughter case almost bordering murder.” With due resi edo not think this was “a very serious Translaughter case almost bordering Marder” since, as the learned trial judge noted, death occurred in the Coun ‘of a minor squabble. Moreover, 10 vicious weapons were Yeed.. We are convinced that had the ‘earned trial judge properly directed imeelf on the issue, he would wet have passed what he considered to be an exemplary sentence. . We will, therefore, reduce the sentence. wre he final analysis, therefore, the appeal meainat the conviction is dismissed, ‘but the appeal against sentence partly succeeds to the extent that we reduce the sentence to five ‘years’ imprisonment. ‘The appellant's sister, that js the second accused at the trial and who has ‘not appealed, also falls in the same position as the appeltant with regard to sentence. But since the jurisdiction of this Court is er SHasively appellate, we are not in a position to ‘grant any relief to the appellant's ‘sister unless she appeals against the sentence. We note that by now it would be very much tate in making an appeal, but we will exercise our dis- ceetion in granting her leave to appeal out of time to this Court if she so wishes. ‘And we order accordingly. Appeal dismissed.250 TANZANIA’ LAW REPORTS (1980) TLR’ DAMIANO PETRO AND JACKSON ABRAHAM v, REPUBLIC (MwaxaseNDo, J.A;) DAMIANO PETRO AND JACKSON ABRAHAM v. REPUBLIC "TCourt oF ApPEAL-OF TANZANIA ATARUSHA(Nyalali,CiJ., Mwakasendo and Kisanga, JJ.A)] ‘CRIMINAL ‘APPEAL 57 oF 1979 Criminal Lan—Aiding and Abetting—Suficiency of presence at scene and of flight with fringipal and, ‘advice to principal to discard weapon, m ‘The appellants were convicted of murder. On appeal it was contended that eyewitness identification. ‘was insufficient as to the first accused, and that there existed insufficient evidence of aiding and abetting by the second accused; Held: (i) in this ase, eyewitness identification of the first accused left no doubt to-establish his participation having regard to the circumstances surrounding the stabbing of the deceased: @_ second accused should not have been convicted as aider and abettor as mere presence at the scene’ of crime is not enough to constitute @ person an aider and abettor; the person must also participate in the crime to some extent; Gi) @ person present at ‘the scene of crime ‘cannot ‘become a principal in the second degree merely because he does not prevent the offence or apprehend the offender. Appeal dismissed as to first accused, allowed as to second accused. Cases referred to: (1) Zaberi s/> Rashid, [1957] E.A. 455. Q) Rav. Coney and Others, [1882] 8 Q.B.D. 534. (3) Wileox. Jeffrey, [1951] 1 AIE.R. 464, @) Maria s/o Wamai and Others, (1955] 22 E.A.C.A. 417. (S)_ Velezi Kashizha v, Reg,, 21 E.A.C.A. 389, J.W. Kiritta, for both accused. GF. Mlawa for the respondent. May 6, 1980. The considered judgment of the court was read by MWAKASENDO, J.A.: The ,two appellants, Damiano Petro and Jackson Abraham, were convicted of the murder of Shabani Miyombo on Lith day of September, 1975, and sentenced to death by the High Court of Tanzania sitting at Moshi. Mr. Mlawa, counsel for the Republic, supported the finding of the trial High Court. The two appellartts however, are aggrieved by this finding of the trial High Court on the following grounds: (@) That the learned trial Judge erred in accepting the testimony of P.W.3 as being sufficient in ‘establishing the identity of the appellants as assailants of the deceased; (b) That the learnéd trial Judge erred in holding that the case for the prosecution had been proved ‘beyond reasonable doubt on.the purely ciggumstantial testimony of P.W.2, whose testimony was, not corroborated, an issue the learned trial Judge failed to address himself to or put to the assessors; and (© That the learned trial Judge erred in convicting the second appellant of the offence charged, on the mistaken finding that the second appellant by telling Damiano “throw away the knife” ‘amounted to aiding and abetting the commission of the offence under s.22() of the Penal Code. The facts in this case are quite simple. Shabani Miyombo at the time he met his death ved and: worked at Kiriri mine situated in the Landani area of Kiteto District. He was a miner. And so were the ‘two appellants. On 11th September, 1975, the deceased left his homestead at the mine camp intending to visit his wife who was living in Landanai town. On his way he passed the camp at which Josephat Antony, P.W.3, was working asa guard. Josephat in his testimony before the trial High Court described the incident leading to the deceased's death thus:CAS DAMIANO PETRO AND JACKSON ABRAHAM v. REPUBLIC Mwaxasenpo, 5 Ay 261 Sometime in 1975 was at the camp working as guard. On this day the deceased assed at my camp from their camp looking for a persin. ‘to accompany him pe tandanai town. Itold him that there was no one from my came going to town as fll people were stil at work. Deceased’ wife lived in the fovtt ‘After failing to get aaecee to accompany him to the town he decided to return to his AP. ‘He started returning back to his camp. As he finished the boundaries of our camp I heard an vier saving “Tam dying | have been stabbled.” Tt was only 6 few minutes after he thal eft ne that T heard the alarm, Tran towards where the alarm Wt coming from td T saw two people standing beside the deceased. One of them vs holdingaknife | ‘and looking at the deceased. ‘The two people were ‘Damian and Jackson. Damian | ‘was the person who was holding a knife, The knife was ‘blood-stained. Jackson wae pening by. Hewas unarmed. The deveased was lying on the ground already wetted He was not armed. 1 knew Damian and Jackson befor the incident. ‘They were working at Landanai mine.... It was about > Pt when I saw them ne ihe deceased. I raised an alarm and they started running avay, Villagers bese eT Ae started chasing them. As we were chasing them Jackson said (0 Satan ‘throw away the knife.’ Damian threw the knife on the ground. (he underlining has been made by the trial court). Josephat then tells of the chase, the apprehension of the two appellants and their interrogation. The other two witness ‘Juma Hassan (P.W.1) and Ibrahim Shaban (P.W.2) who gave evidence at the trial add only a litle ‘colour to Josephat's evidence. ‘nthe trial the frst appellant, Damian Petro in an unsworn statement denied killing the deceased but gave his own version of what took place on the day the deceased met his death. remember on 11/9/75 I was working at the Landani Mine owned BY 00% Ali Suu yawatu, On that day T had gone to one Yusufu’s mine 1 get some flour. T a yaevod atthe mine for a while waiting forthe man responsible for distributing flour. “Then we decided to look for the man in nearby house. We wont to & house where vase yas*pombe’ and we started drinking. Twasaccompanied with one ‘person who seer Teontinued drinking. As T was there two people started quarreling over wroney. Then they started quarreling over a gallon full of pombe: ‘The gallon of pombe fel and the pombe poured on me. Other people also £0% their clothes soiled by the pombe, These people thought that it was I who had started the fracas and they started attacking me. As they were attacking me T ‘heard one of the man saying ‘Lam dying I have been stabbed.” Then people arrested me. | They searched me and took ‘ay knife and Shs. 300)-. One Joseph is the one who searched me. Joseph said that eee who stabbed the deceased. They tied my arms and attacked me- Twas then sent to the police station... “The learned trial judge considered the defence put up by the fist appellant Demee Petro but rejected it. We think the learned trial judge was perfectly justified in rejecting fist ‘appellant's story and convicting him ee charged. Mr, Kiritta, appearing for both appellants, bas attacked this finding of the trial judge presu- ‘mably on the ground that the circumstantial evidence in the cave AS, ‘acoording to him, insufficient to ground a conviction of the first appellant. We do not agree. Again. ‘Mr, Kiritia complained about the Guality of identification evidence by Josephat but we think his complaint in this connection groundless. Sean ened tial judge correctly observed after a detailed consideration of the circumstances surrounding fhe stabbing of the deceased, there could not be in this ease any doubt ‘whatsoever as to the identity of woe aean Peco as the man Josephat saw standing atthe ene of erime holding & blood-stained knife. In the pati, we uphold the conviction of Damian Petro for the murder of Shabani Miyombo and dismiss his appeal. “Tne case against the second appellant, Jackson Abraham. is, in OUP view, slightly different. As rightly ‘pointed out by Mr. Kiritt the conviction of the smsond appellant was based on two crucial factors. First, ont gecond appellant was seen by Josephat in the company of the first appellant and although the second appellant was unarmed, it was argued on air of the prosecution and accepted by the tial court that the fe of his mere presence at the scene of crime in cireumstances which indicated that he did not dissociate Lisnself from the actions of the frst appellant coupled with his ‘running away from the scene of crime whenns are The question whether or not the appellant's conduct amounted to “ ing” the offence is a auestion of fact. In R. ¥. Coney and Others [1882] 8 Q.B.D. 534 at page $57 Hawkins, J,, stated the position as follows: fact by his presence, by interference, or he may appro intentionally by expressions, gestures, ‘or actin intended to. signify nected cit latter case he aids and abets, in the fone he does not. It is Zo criminal offence to stand by, a mere passive Spectator ofa crime js Crime. But the fact that a person was Noluntarily and purposely present witnessing the commission of a crime, and offered no Opposition to it, though he might reasonably be expected to prevent and had power so to do, oF at least to express his dissent, right under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged aad so aided and abetted. But it ‘would be purely @ question for the yury whether he did sy we not. The Court of Appeal approving the trial judge's direction on the law applicable to cases of principals in the second degree said at page 459: circumstances impose a duty which the law Tecognises actively to dissociate oneself from what is about to be done, We think this duty would arise if there had been any antecedont factor which might fairly lead the intending principals to believe that the Totive for non-interference was a desire to afford encouragement, Wileox v. Jeffrey [1951] 1 All E.R.464, In the instant case we cannot see anything in the circumstances of the case to establish that the conduct of the second appellant, Jackson Abraham, was such as would have induced a reasonable belief in Damianaw cA ABDUL MUGANYIZI v. REPUBLIC (Mustara, JA) 263 Consequently, we are unable to accept the view of the learned tia) judge that Jackson Abraham was, an terme of the provisions of paragraph (cof s.22of the Penal Code, an aider ‘and abettor of the crime commi-_ {ted by Damian Petro. Having reached this conclusion we have ‘Considered whether in view of the second appellant's subsequent advice to Damian to throw away the Knife we would be entitled to substitute a apPaition of being an accessory after the fact (ss.387 and 388 of the Penal Code) to murder for that orien, ut we have finally rejected such a course because the law does not permit it—See judgment of the een eE Appeat for East Africa in Murin s/o Wamai and-Others (1955) 2 E-AC.A. 417 at page 418 and” ‘Velezi Kashizha v. Reg. 21 E.A.C A. 389. ; ret the foregoing reasons, we allow the appeal by the second appellant, Jackson Abraham, quash his conviction for murder and set aside the sentence. He should be ‘eleased from prison forthwith unless he is detained therein on some other matter. We order accordingly - _ ABDUL MUGANYIZI v. REPUBLIC MUSTAFA, 3.4.) ABDUL MUGANYIZI v, REPUBLIC [Court oF APPEAL oF TANZANIA Ar DAR 5 SALAAM (Mustafa, J/Aw Mwakasendoy JA and Makame, J.A)] CRIMINAL APPEAL 66 OF 1979 Pridence Conviction based solely on uncorroborated circumstantial evidenoe—Test (0 ‘be applied before inferring guilt. “The appellant was charged and convicted of theft. The conviction was based 0” purely circumstantial cvidence, The eircumstances were that a bicycle belonging to the appellant's felow ‘employee was found ‘vssing, The bicycle was being Kept in one of the rooms of the premises where both appellant and complai- re xed. A set ofthe keys tothe room was kept at police station while another oe! kept elsewhere rae or lshed that the appellant had gone to collect the keys atthe police station ates office hours on the day on which the theft took place. The issue was whether these circumstances constituted sufficient evidence to sustain the conviction. Held: in a case depending purely upon circumstantial evidence, the inculpatory facts must be inco- patible with the innocence of the accused, and incapable of explanation upon 28Y reasonable hypothesis other than that of guilt. Appeal allowed. No cases referred to. ELK. Mwripopo for the Respondent. May 22, 1981. The considered judgement of the court was read bY MUSTAFA, J.A.: This is a second appeal, The appellant was convicted of theft of a bieyele in a District Cow® and his first appeal was soee san. The conviction was based purely on circumstantial evidence. He was the Chief Clerk in a labour department at Lfakara. A bicycle belonging to one of his colleagues was Kept Ih the department's store, and ceoaevidence that the area labour officer P W.3 had instructed the appellant that the bicycle could be so seed There is also evidence that the offices of the said department comprised five Forms four for offices stores fon the store, and that a set of keys for the five rooms was kept at a nearby police suuen wheu sie are ce are closed and the doors locked after office hours at 2.30 p.m. daily | There is ‘also evidence that no Gepartment official was supposed to collect the office keys after office hours in order to use the offices, owing to certain thefts from the office store “The appellant apparently was not on particular good terms withthe ownet ofthe bicycle. His attitude towards the storing of the bicycle was that it had nothing to do with him, and he even denied knowing any-~ 26s TANZANIA LAW REPORTS [1980] TLR sing about it. “it early was an unofficial storage, as it was not entered in any book, as required if the vorage was official. “There is evidence that on or about the 27th of December, 1978, the offices of the labour department ‘ere duly locked at 2.30 p.m. and the keys deposited at the nearby police station, At about 3 p.m. the ppellant went to the police station and collected the keys as he wanted to enter his office for some task. “he police woman who was aware of the instructions concerning office Keys, nevertheless gave them to the ppeliant. The appellant returned the keys about half-an-hour later. ‘There is evidence that P.W.2, a watchman discovered in the late afternoon of 27th Decembery 1978 hat the store door was not locked but ajar. He peeped inside and found that the bicycle stored in the tore was missing. He reported the matter to the appellant who allegedly told him that the owner perhaps sight have taken the bicycle. The appellant told P.W.2 that he had been back at the office after 2.30 p.m. o collect his files. ‘The trial magistrate found the appellant guilty of theft because (1) he had collected the keys of the sffices after 2.30 p.m., despite the directive; (2) that he had told a lie when he denied that there was such a lirective; (3) that he told a lie when he denied knowledge that the bicycle was in the store. The trial magis- rate was of the opinion that they only person who could have stolen the bicycle was the appellant as he had he office keys on that day after office hours. ‘On first appeal, the judge also referred to the appellant's possession of the office keys after office hours, lespite standing instructions. The judge referred to P.W.2's discovery of the store door being ajar, and teld that the store door must have been opened by a key and that the appellant had the keys. The appellant 1m bis way to the Police Station to collect the keys, had met P.W.5 Salvina, who had just deposited the keys, vith the Police, and the judge thought that if the appellant had wanted the keys he should have asked P.W.5 Jalvina for them, instead of going direct to the Police Station to collect them himself. ‘The judge, on those circumstances, found that it was the appellant and nobody else, who had stolen he bicycle and confirmed the conviction of the trial court. Tn this Court, Mr. Mwipopo for the Republic has strenously attempted to support the conviction. He referred to the circumstances which were already dealt with in the trial court and the first appellate court, nd asked that the appeliant’s appeal be dismissed. We are of the view that the circumstances relied on by the Republic do not, and cannot, support & sonviction. There is the circumstance of opportunity, in respect of the keys. But the appellant had openly gone to get the kys and never attempted to conceal that fact. There is indeed no attempt by the prosecution xp establish that there was only one set of Keys to the offices. Even ifthe appellant has told lies about his ‘nck of knowledge about the bicycle in the store, about the reasons for his return to his office after 2.30 p.m. sn that day, and about what P-W.2 the watchman had told him, there was nothing in the evidenoe which, binted to him as the thief of the bicycle to the exclusion of any.other reasonable hypothesis. In fact the snly circumstance against him is that he had the opportunity of opening the store where the bicycle was stored. ‘There’ was no other material evidence against him. Opportunity by itself cannot be enough to found a conviction of theft on circumstantial evidence. Indeed in this case apart from the fact that he had the office keys, there was nothing of any material importance against him. His lies, assumingyh® did lie, have no relevance to the offence of theft as such. ‘We do not think that there was sufficient evidence to convict the appellant of theft; in fact the evidence adduced falls far short of the standard required. We allow the appeal, quash the conviction of theft and set aside the sentence imposed on him and order that be released forthwith if he is still in detention. ‘Appeal. allowed.en] cA. SADRU H. SAIDI C/O SIDI v. REPUBLIC (Mwaxasenpo, J.A.) 265 “SADRU H. SAIDI C/O SIDI y. REPUBLIC (Mwaxasenoo, JA.) SADRU H. SAIDI @ SIDI v. REPUBLIC [Court oF APPEAL oF TANZANIA (Mwakasendo J.A., Makame, J.A. and Kisanga, J.A.)] CRDUNAL APPEAL 67 oF 1979 Criminal law—Theft—Vehicle sold by appellant ¢o.complainant—Appellant removed vehicle from place of sale to-another place—Whether theft in terms ofs.265 Penal Code (Cap: 16). oe Sale of Gests Famine of property—Unconditional contract for the sale of specific goods in a deliverable state—Sale of Goods Ordinance (Cap. 214) s.20 rule 1. The appellant was convicted of thefl of a motor vehicle contrary to s.265 of the Penal Code. The appellant had sold his motor vehicle to complainant. No formal contract of sale was drawn up. Subsequently the appellant removed the vehicle from the place where it had been lying to another place. The facts are set out fully in the judgment. Held: ()) in a contract of unconditional sale of specific goods in a deliverable state the property in the ‘g00ds passes to the buyer at the time when the contract is made; Gi) the removal of the vehicle from the spot constituted a theft, Appeal dismissed. No case referred to. R.C. Kesaria for the appellant. S.S. Sadallah for the respondent. March 12, 1981. |The considered judgement of the court was read by MWAKASENDO, J.A.:. The appellant, Sadru H. Saidi alias Sidi, a transporter, resident of Dar es Salaam at Aggrey Street House No. 69, was charged before the Resident Magistrate's Court in Dar es Salaam, with stealing, to wit, a motor cay registration No. DSY 70 valued at shillings 7,000/- belonging to the complainant, Sanbabu ‘Shivji Barot, contrary to 5.265 of the Penal Code. At his trial, he was convicted of the offence and sentenced to ning months’ imprisonment. The trial court also ordered the motor car returned to the complainant. Being ‘aggrieved by this finding, the appellant appealed to the High Court which, apart from varying his conviction from one under s.265 of the Penal Code to that under s.273(b) of the same Code, dismissed his appeal. He hhas now appealed to this Court. The facts folind established by both the Resident Magistrate's Court and the High Court are quite short. They are these: |The complainant, Sunbabu Shiyji Barot, who like the appellant, is @ transporter, resides in Dar es Salaam at the corner of Msimbazi and Uhuru Streets. He isa friend of Amiral J. Harj (P.W.3). Late in July or early August, 1977, Barot approached Amiral with a request that Amiral should _assist him in finding a person ready and willing to sell him a second-hand car which he (the complainant) ‘could cannibalise for spares. Amiral who knew that the appellant was looking for buyers of his defective second-hand car, a Zephyr Consul, registration No. DSY 70, introduced the complainant to the appellant and was present as a witness when the appellant agreed to sell to the complainant a defective second-hand car, registration No. DSY 70 for shillings 7,000/-. Hie also witnessed the complainant pay to the appellant the sale price of Shs. 7,000/-. When this transaction took place the motor ear, registration No. DSY 170, was as already stated, not in. proper mechanical working order and was parked near the complaint’: residence at the corner of Msimbazi and Uhuru Streets. After concluding the deal, the complainant asked ithe appellant forthe Certificate of Registration but he was informed that as he had bought the ear withace 'Certificate of Registration, he would provide him with “a written document regarding the sale later.” ‘This, however, the appellant never did. Four months later, the complainant found the motor car he had purchased from the appellant missing from the spot it had been parked. He went to report to the police at Msimbari police Station and subsequently, accompanied by a detective police corporal of the Msimbazi Police Station, he found the motor car parked along Swahili Street. The motor car was towed t0 the Msimbari Police Station on or about 21st November, 1977. ‘The appellant who had visited the Msimbazi Police Stationen 266 TANZANIA LAW REPORTS (1980) TLR claiming ownership of the motor car, registration No. DSY 70, was arrested and charged with the theft of the car on 8th June, 1978. ‘At his tril, the appellant denied ever selling the motoréar, registration No. DSY 70, to the complai- nant. He explained how Shs. 7,000/- was paid to him by the complainant “in respect of a flat and furniture which I had left for the occupation of P.W.2.” The learned trial Magistrate rejécted the appellant's story as palpable untruth and convicted him of stealing the motor car and sentenced him to nine months’ imprison- ment. On-appeal to the High Court, Mr. Kesaria, learned counsel who argued the appeal for the appellant contended that on the evidence adduiced in the case it was improper and the trial Magistrate was not justified, in inferring that a sale of the motor car, registration No. DSY 70, had taken place between the parties... He submitted further, that even if one were to assume that a sale had taken place, it was his contention that no property in the motor car had passed and vested in the complainant at the time of the transaction... As Mr. Kesaria has raised more or less similar arguments before us, we will deal with this matter when we come to consider the appellant's appeal before us. Be that as it may, the learned first appellate judge did not accept Mr. Kesaria’s arguments as sound. He had no doubt on the evidence that the appellant sold his motor car, registration No. DSY 70, to the complainant for Shs. 7.000/- and that the contract of sale being an uncodi- tional one, the property in the motor car passed at the time when the contract was made. However, as the learned first appellate judge thought that the appellant was under @ duty to deliver the motor car to the complainant and had not done so at the time of the theft, he was of the view that the offence committed by the appellant was one of stealing by a bailee and therefore, the appellant was guilty of stealing the motor car under the provisions of paragraph (b) of 8.273 of the Penal Code. Appellant's conviction was varied accordingly. ‘The appellant being a1ssatisfied with the judgment of the Lligh Court has appealed to this Court. fn ‘his memorandum of appeal the appellant raises the following alternative grounds of appeal: 1, The appellate court erred in law in not holding that the property in the vehicle had not passed to P.W.2, S.S. Barot from the appellant and hence the appellant could not have stolen his property; 2, Alternatively, the appellate court should have held in law that the said P.W.2 SS. Barot was not given delivery of the vehicle which was in possession of the appellant as bailee, and hence no offence was committed by the appellant in removing the vehicle from the corner of Uhuru and Msimbazi Street, Dar es- Salaam to another place in Dar es Salaam. Mr. Kesaria who argued appellant's appeal before us, in his usual vigorous and animated style submitted on the first ground of appeal that since the appellant did not hand over the Certificate of Regis- tration, which in this country is commonly called “the registration card”, to the complainant when the contract was made, that was some evidence indicating that the property in the motor car did not pass ‘and vest in the complainant when the transaction of salé took place. In support of this proposition, Mr. Kesaria cited to us a number of statutory provisions from the Sale of Goods Ordinance, Cap. 214 and the Road Traffic Act, 1973. As regards the Road Traffic Act, 1973, Mr. Kesaria referred us to ss. 15 and 16 of the Act, as supporting his contention that a sale of a second-hand motor car, albeit, one which is in a defective mechanical working order, without a Certificate of Registration or “registration card,” was prima facie evidence that property in the motor car has not passed or is not intended to pass until the Certificate of Registration is delivered to the buyer. ith respect, we cannot accept counsel's contention on this matter. While it is true to say that possession of a Certificate of Registration of a motor vehicle is evidence of Registration of the vehicle in question with the Registrar of Motor Vehicles and the best evidence of title to a motor vehicle we have, itis, we think, erroneous to argue, as counsel for the appellant appeared to do, that no motor cars can therefore be sold without their Certificate of Registration. They can and they often are. (See subsection (10) of 5.39 of the Road Traffic Act, 1973.) It all depends on the purpose for which one requires the motor vehiclehe purchases. If, far instance, a person buys a motor car which he intends to use on the road, he would clearly be unwise not to insist on the Certificate of Registration being handed to him at the time of purchase. On the other hand, no one would rationally expect a person buying a motor car for the purpose of cannibs lisation to insist that a Certificate of Registration of the car be delivered to him with the car. In the latter case, it would appear to us, a completely pointless exercise for the buyer to raise any fuss about the deliveryCA. HUSSEIN T. KABEKE and THREE OTHERS v. REPUBLIC (Mwaxasenpo, J.A.) 267 of the Certificate of Registration when the law says: “If any registered motor vehicle... . is broken up ot destroyed the registered owner shall, within thirty days of such occurrence, notify such fact in writing to the Registrar with whom the vehicle is registered and shall return the Registration Certificate relating to the vehicle to such Registrar.” (See sub-section (3) of s.14 of the Road Traffic Act, 1973). ‘Be that as it may, on consideration of all the circumstances in this case, we are satisfied that the inference that the property in the motor car, registration No. DSY 70, passed and vested in the complainant, SS. Barot, ‘at the time when the car was sold to him, can properly be sustained. The matter, as properly submitted by Mr, Sadallah learned State Attorney, is governed by the provisions of s.20, Rule 1, of the Sale of Goods Ordinance, Cap. 214 which provid 20. Unless a differéit intention appears, the following are rules of ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer Rule 1.—Where there is an unconditional contract for the sale of specific ‘goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery or both be postponed. In our view of the evidence, the present case clearly relates to an unconditional contract for the sale of specific ‘goods, in a deliverable state, and as we can see nothing on the facts proved to show that the intention of the parties was to exclude the application of the prima facie rule set out above, we are constrained to hold, as the earned first appellate judge did, that the property in the motor car, registration No. DSY 70, passed and vested in the buyer when the contract of sale was made, "Now, as regards the appellant's alternative ground of appeal, we are unable to see any merit what soever in Mr. Kesaria’s contentions on the question of delivery. We think it an untenable argument. to say that in the circumstances and statein which the motor car, Registration No. DSY 70, was, any sensible person would have expected the vendor physically to deliver the vehicle to the vendee. In out considered opinion, it seems quite plain on the facts proved, that the parties in this case intended, in terms of the provisions of s.30 of the Sale of Goods Ordinance, that the payment and delivery of the motor car were to be concurrent conditions of the contract of sale. In any case, since to the knowledge of both parties at the time when the sale was concluded the motor car registration No. DSY 70, was parked near the vendee’s premises at the comer of Msimbazi and Uhuru Streets, it is our opinion that the spot where the motor car ‘was parked was the place of delivery in terms of the proviso to.3 of the Sale of Goods Ordinance (Cap. 214). On the facts, we are left in no doubt that the complainant took delivery of the motor car, registration No. DSY'70, as required by law at the corner of Msimbazi and Uhuru Streets. In our opinion therefore, when the appellant, without the consent of the complainant, removed the motor car from the spot where it had been parked at the corner of Msimbazi and Uhuru Streets, to Swahili Street, he was guilty of stealing the motor car in terms of s.265 of the Penal Code, We cannot see how on the facts proved it can be seri- ously asserted that at the time when the appellant was engaged in this felonious activity he was a bailee of the complainant. We can find no title of evidence to support any such relationship between the parties. ‘We vary appellant's conviction accordingly and dismiss this appeal. Appeal dismissed, ee HUSSEIN T. KABEKE and THREE OTHERS v. REPUBLIC (Mwaxasenvo, J.A.) HUSSEIN T. KABEKE and THREE OTHERS v. REPUBLIC [Court oF APPEAL oF TANZANIA AT ARUSHA (Nyalal . C.J., Mwakasendo and Kisanga, JJ.A.) CRIMINAL APPEAL 73 OF 1979 Criminal Practice and Procedure—Sentence—Alternative verdict founded on same facts—Conviction of obtaining property by false pretences substituted for simple theft—Whether practice is proper. S.302 (Cap. 16) Penal Code; and s.187 (Cap. 20) Criminal Procedure Code. Criminal Practice and Procedure—Sentencing—Concurrent sentences—Meaning of. Criminal Law—False Pretences where there is knowledge of lack of funds in a bank account and that there ‘would not be funds to meet cheques on presentation—Whether ingredient of false pretence is established.268 TANZANIA LAW REPORTS (1980) TLR ‘The four appellants were charged and convicted of stealing contrary to ss.265 and 271 of the Pena). Code. The evidence adduced in court did not support the offence of stealing in respect of the first appellant. but a lesser offence of obtairiing goods by false pretences. The trial court did not convict him of the latter offence. The facts are set out fully in the judgment. Held: (i) where a person is charged of stealing and the facts support a lesser offence of obtaining by false pretence, hie may be convicted of the latter offence although he was not charged with it; Gi) concurrent sentences are non-commutative Gii) in making payment by cheque the necessary ingredient of false pretence under s.302 of the Penal Code is established if at the time of issuing a cheque one does not genuinely believe or think on reasonable grounds that funds would be available when in the ordinary course of business the cheque reaches his bank for payment Conviction of obtaining by false pretence substituted for simple theft. Case referred to: Rw. Prince (1868) LR. LC.C.R. 150. ‘NULN. Manno, for the first appellant. J.C. D'Souza, for the second and third appellants. F.B. Mahatane, for the fourth app: tlant. P.B. Nyangarika, for the respondent. April 30, 1981. The following considered judgement of the court was read by MWAKASENDO, J.A.:_ When the appeals by the four appellants—Husscin Ibrahim Kabeke, Benjamin Alute, Justin Barnabas Tesha and Bernard Saidi Shayo—came for hearing on 18th November, 1980, we allowed the appeals against conviction and sentence imposed.on the second, third and fourth appellants, but reserved our reason thereof to a later date. We also reserved judgment in respect of the first appellant. We now give our, reasons for allowing the appeals by the second, third and fourth appellant. In May 1976 the four appellants were brought before the District Court of Siagida and charged on thirteen counts of stealing by servant—contrary to ss.265 and 271 of the Penal Code. The charges laid against the four appellants alleged that on various dates between 26th May, 1975, and 29th July, 1975, the four appellants stole moneys belonging to the Singida Regional Trading Company Limited. It was alleged? ‘that the four appellants committed these offences while working as employees or servants of the Singida Regional Trading Company. - After a long and protracted trial the learned trial Resident Magistrate found the second, third and fourth appellants guilty on two or more counts of indictment. He also found the first appellant not guilty of stealing by servant on all counts where he was so described but found him guilty of simple theft on all thirteen counts on the charge. Each of the appellants was then sentenced to various concurrent terms of imprisonment. On appeal to the High Court, the learned first appellate judge, apart from varying the order of compensation, could find.no fault in the trial court's decision, He dismissed their appeals. They then appealed to this Court. ; Mr. N.LN. Munuo, learned counsel, who appeared before us to argue the appeal for the first appellant, Hussein Ibrahim Kabeke, contended at some length that his client was not guilty of any of the offences for which he had been tried and convicted. Mr. Munuo argued that when Kabeke, a small town businessman, issued cheques to the Singida Regional Trading Company either in payment of goods collected or for cash, hhe was doing a perfectly legitimate business, even though subsequently these cheques were dishonoured on resentment at his bank. Although Mr. Munuo vigorously defended his client's conduct in this case and” cited to as a humber of decided’cases as authority for his line of argument, we find ourselves, with respect, tunable to accept his reasoning and conclusions in this case. We are perfectly satisfied that Mr. Munuo’s argument on the facts of this case is erroneous. We will now briefly state the facts. Hussein Ibrahim Kabeke, the first appellant, was at all material times, a small businessman resident at Nzega Minor Settlement, Tabora Region. In January 1974, Kabeke began to buy his trade goods at the Singida Regional Trading Company's premises, paying for them in cash. ‘This-manner of doing business between them went on until February or March 1975 when presumably Kabeke was allowed to make payment for goods purchased from the Singida Regional Trading Company, by his personal cheques. However, between 26th May, 1975, and 29th July, 1975, Kabeke issued a number of cheques to the Singida Regional Trading Company, which were either in part-payment of goods purchased and partly represented moneysCA: HUSSEIN T. KABEKE and THREE OTHERS v. REPUBLIC (Mwaxasenpo, LA.) 269 handed to Kabeke in cash or were merely cheques issued for the purposes of encashment. The thirteen ‘counts laid against Kabeke and the three officials of the Singida Regional Trading Company arose from this Hannes uation, The three employees of the Singida Regional Trading Company Benjamin Alu Justin seat a resha and Bernard Saidi Shayo, fll foul of the law because as alleged by the Republic they f cat Kabeke in obtaining money from their employer, the Singida Regional Trading Company, 1 that they allowed him to obtain goods and/or eash by giving “dud” cheques, In so Ging: the Republic alleged, they were, together with Kabeke, guilty of theft. We may pose here and look briefly at the charges laid against the four appellants. Sno ar he hearing ofthis appeal there arose the issue of the propriety of the charges laid inthe indictrent Mr. Nyangarika, learned State Attorney for the Republic, although at first hesitant, finally annie that the charges as laid in the charge sheet were wrong for on the facts disclosed on the record it ‘vas quite clear that the Singida Regional Trading Company, the owner of the money alleged to have been ware all times intended through its agents the three officials charged with Kabeke, to pass the property inthe money alleged to have been stolen, to Kabeke, although, as it may be observed, it was induced to do so by Kabeke's fraud. Mr. Nyangarika accordingly suggested that the proper charges that should have been aid against the appellants should have been those of obtaining money by false pretences contrary {0 5.302 of the Penal Code. With respect, we think Mr. Nyangarika is only partly right. Neat, letus took at the law. It is, of course, quite clearly established on authority that a person who obtains goods or services by giving a cheque in payment makes atleast thee representations of facts (a) That he has an account with the paying bank () That he has authority to draw on itfor the amount shown on the cheques and (© That the cheque as drawn, is a valid order for the payment of the sum shown on the chee, P other words, what the drawer of the cheque represents is, according to the learned author of Kenny's Outlines of Criminal Law, 19th Edn. 1966, page 359, para 346, that the present state of affairs is such that, {a the ordinary course of events, the cheque will on its Tuture presentment be duly honoured. It follows from this that a person who gives a cheque in respect of an account in which there are no immediate Funds to mest it, does not necessarily act dishonestly or fraudulently if he genuinely believes on reasonable grounds that ‘when the cheque is presented to the paying bank there will be funds to meet it. “Thus, in the instant case, if, as persistently argued by Mr. Munuo, Kabeke thought om reasonable grounds that when the cheques he ad given to the Singida Regional Trading Company were presented to the Nzvga N.B.C. Branch there would be funds to meet them, then, we would have had no hesitation whatsoever in accepting Mr. Munuo’s submission and holding his client innocent. | But, with respect, we do not think i fact in this case areas urged upon us by Mr. Munud, The facts as found established in the case indicate dite clearly that Kabeke at no time when issuing the thirteen cheques to the Singida Regional Trading Company did genuinely believe or think on reasonable grounds that funds would be available when in the Seditary course of business each of the thirteen cheques reached his bank for payment. It seems ta Us Gite plain on the facts of the case that Kabeke when issuing the thirteen cheques knew perfectly well that que Mere no funds in his bank account and that there would not be funds to meet these cheques on presen ain these circumstances, we think the facts disclosed in the caseestablish the commission by Kabeke inthicteen offences of obtaining by false pretences contrary to 5.302 of the Penal Code: and the learned cal Resident Magistrate could therefore, have properly convicted him of these offences under the provisions vial TSI) of the Criminal Procedure Code. As the Magistrate did not do this, we quash Kabeke's oF action for simple theft in respect of each of the thirteen counts and substitute therefore a conviction of Staining by false pretences contrary to 5.302 of the Penal Code in respeet of each of the thirteen counts trie reeult, his appeal against conviction is dismissed. We will deal with the question of sentence Ieter in this judgment. ‘Ve now turn to consider the appeals by Benjamin Alute (second appellant), Justin Barnabas Tesha (third appellant) and Bernard Saidi Shayo (fourth appellant). Mr. J.C. D'Souza, learned counsel, appeared Suter te for the second and third appellants, while Mr. F-B. Mahatane, learned counsel. represented the fourth appellant, | Counsel for these three officals of the Singida Regional Trading Company argued beetly that as the thret appellants were employees or servants of the Regional Trading Company and ts tach authorised agents of the Regional Trading Company, had authority to deal with the property of the Regional Trading Company and if need be, part with it, the property so parted with could not be said to be stolen, in as much as they intended to part with the property in it, See the judgment of Blackburn, }. i Rev. Prince [1868], LRU. C.CR. 150at p.155. Counsel then went on to submit that on the facts established20 TANZANIA LAW REPORTS (19801 TLR ithe case the three appellants’ offence, if any, would have been that of obtaining by false pretences contrary eyo? of the Penal Code. Weare, with respect, unable toagree. We do not see how a charge of obtaining Mroney by false pretences or for that matter, any charge involving fraud, could have been successfully main, ‘aimed against the three officals of the Singida Regional Trading Company, in so far as the facts disclosed ‘how no fraud on their part. There is clearly no evidence inthis ease that any of the three convicted official tthe Singida Regional Trading Company knew of the state of Kabeke's financial position or the stats of srsvunt with the Nzega N.B.C. Branch... Thus, reprehensible as their conduct is in this matter, their conduct saeeir considered view falls short of any criminal wrongdoing. Its noted thatthe prosecution case contends thatthe three officials acted in concert in defrauding the company ofits money.,, We think thatin that case the proper charge should have been one of consipiracy to defraud. In view of this conclusion, We allowed the Eppeal of the three officials ofthe Singida Regional Trading Company, quashed their convictions aside ap Pesiiences imposed on them and directed their immediate discharge from prison unless they were lawfully detained therein on some other matter. "Finally, we wish to comment on the sentence imposed on Kabeke. In imposing sentence the learned trial’ Resident Magistrate said as follows: ‘Taking this into consideration and mindful of what the prosecution has said above, ( sentence each accused to seven (7) years’ imprisonment on each count, under s.5(b) of the Minimum Sentences Act, 1972 ‘Sentences which are to run concurrently will be of the following total: Ist Accused—total 14 years’ imprisonment: 2nd Accused—total 70 years’ imprisonment; 3rd Accused—total 21- years’ imprisonment; 44th Accused—total 91 years’ imprisonment: From this quoted passage it seems obvious to us that the learned trial Resident Magistrate was utterly confused as to what is meant by the term “‘concurrent sentence.” As we understand it, concurrent sentences sornon-cumulative in effect and are therefore supposed to be executed at the same time. If, as in this ease, dhe sentencing court passes concurrent sentences on an offender, itis wrong for the court.to add up those Sentences as if they were consecutive. A sentencing court will never go wrong if on deciding to pass seesarrent terms of imprisonment on an offender it inflicts sentence on each offence and then directs the seatences so passed to run concurrently and no more, To do more, as the trial Magistrate in the instant case 4id, can only create confusion in people’s minds and bring the law into disrepute. For the avoidance of doubt we quash the trial Magistrate's direction for sentence and set aside the order of compensation and substitute therefore the following: ORDER: Kabeke is sentenced to seven (7) yeers’ imprisonment on each count to run concurrently. | He js also to compensate the Singida Regional Trading Company for the money he obtained from the Company by false pretences. Order accordingly. Ss KANGANJA ALLY AND JUMA ALLY v REPUBLIC {Count oF APPEAL OF TANZANIA AT DaR &5 SALAAM (Mustafa, Makame and Kisangs, 313-4. CRIMINAL APPEAL 81 oF 1979 vidence—Identification by voice and sight—Sufficient evidence. Evidence—Extra-Judicial statement made to a magistrate under oath—Admissible, ‘The appellants were convicted of murder. On appeal it was contended that insufficient evidence had teen presented at trial of their participation in the crime, and that extra-judicial statements they had made toa magistrate should not have been admitted into evidence at tral since the magistrate required them to make the statements under oath.CA. KANGANJA ALLY AND JUMA ALLY v. REPUBLIC (Mustars, TAD mn Held: (9 there was sufficient evidence of guilt, as appellants had been identified by voice and sight by two witnesses, and as deceased made a dying declaration identifying appellants ts having attacked him; (Gi) an extra-judicial statement to a magistrate is not rendered inadmissible by virture of the fact that the magistrate induced the declarant to make it under oath. Appeals dismissed. Case referred to: Kapemba Andrea v. R., 2 T-L.R. 345. ‘August 13, 1981. ‘The considered judgement of the court was read by MUSTAFA, J.A.: The deceased’ Selemani Sarai, was called outside his house one late evening by the ‘appellants, who were his nephews, appellant 1 Kanganja and appellant 2 Juma. When he went ovt he spoke very briefly to appollant 1 Kanganja and then he was out to death, His cause of death was 8 depressed fractured skull and tratiple cut wounds which caused a great loss of blood. ‘The appellants were convicted of murder and sentenced to death: oe Mwanamkasi, the deceased's daughter, stated that she was awakened by a knoe the door of the howe and got up. She said in reply to her querry appellant 1 Kanganje answered and P.W,1 informed ae ase ed who thea went out to meet appellant 1 Kanganja. P.W.1. stated that she ‘heard-the deceased asking appellant 1 Kanganja whether be had come alone, and she stated, she heard appellant 1 Kanganja say that he was with Juma, appellant 2. Shortly thereafter P.W.1 heard the deceased shouting that he was Gylng, P.W1 went out and saw the two appellants running away. She said she was only about 3 paces way when she saw them, There was no moonlight, but there was starlight, and she said she recognised the appellants. P.W.1 identified appellant 1 Kanganja both by his voice and by sight, and appellant 2 Juma by sight. * P.W.2, Njanu, the wife ofthe deceased, was at home on the material night. She stated that she heard appellant 1 Kangaja calling out for the deceased, and then the deceased went out She recognised the voice crappellant 1. Then she heard the deceased crying out that he was being killed by Kanganja and Juma, the two appellants. Me ae eeand had made a dying statement or declaration, He was heard by P.W.! and P.W.2, and two neighbours who came in rexponse to the alarm, P.W.3 Tua and P.W.4 Zakaria, to say that it was the appellants who had killed him. ‘The two appellants made extra-judicial statements to a justice of the peace. The statements Wet admitted in court without objection. Both the appellants made unsworn statements. But the statements ‘id not challenge the extra-judicial statements they had made. Neither of them called witnesses. “The entra judicial statements amounted to confessions. The first appellant stated categorically that hoand the nuord appellant had killed the deceased. ~The second appellant also stated that he and appellant ne aa ilea the deceased and also gave their reason for doing so. He said the deoeased was a witchdoctor ‘and was responsible for the death of several members of his family. Feeeeecmion an examination of the extra-judicial statements it appears thatthe appellants had made hele eter Cinder oath, Tt is not clear whether the appellants offered to make ther statements under cath or were requested to do so, after of course they had offered to make statements, If the appellants made an rere reais at the instance of the Justice of the Peace or against their will, then the question whether seer teenents were made freely of voluntarily may arise. There is an old case Kapemba Andrea y. bo reported in Tanganyika Law Reports Vol.2 p.345 which held chat if « person was compelled to makesucha vermont on oath at the instance of the magistrate, then it would be inadmissible as not being entirely voluntary. (ary is case, even if we assume, for the benefit ofthe appellants, that they were induced by the justies of the peace to make the statements on oath, the statements would still be admissible in terms of 5.29 of the Evidence Act, which reads ‘No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing unless the court is ofthe opinion that the inducement was ‘made in such circumstances and was of such a nature or was likely to cause an untrue admission of guilt to be made.2m TANZANIA LAW REPORTS (1980] TLR Here there is not the slightest suggestion that the circumstances surrounding the making of the state- ‘ments could result in an untrue admission of guilt. In our view, the evidence against the appellants is sufficient to convict them of murder. The confes- sions were corroborated by the identification of P.W.1 and P.W.2 and the dying declaration. The appeal is without merit and is dismissed. ‘Appeal dismissed. JOSEPH MARWA CHACHA v. REPUBLIC [Court oF APPEAL oF TANZANIA AT MWANZA (Nyalali, C.J., Makame and Kisanga, JJ.A.)} CROMNAL APPEAL 87 oF 1979 Criminal Law — Murder — Self-defence — Sufficiency of circumstances substantiating claim of self- defence, Criminal Law — Murder — Provocation as defence — Threat by deceased against accused as provocation. ‘Criminal Law — Murder — Provocation as defence — Effect of intoxication of accused. Criminal Law — Murder — Malice aforethought — Intoxication as circumstance to negate malice afore thought. Criminal Law — Murder — Malice aforethought — Circumstances establishing malice forethought, Criminal Practice and Procedire — Assessors — Whether assessors must be from same tribe as accnsed where accused asserts provocation as defence to murder. The appellant was convicted of murder. On appeal it was contended that the killing was done either in self-defence or under provocation, that there was insufficient evidence to establish malice aforethought, and that assessors should have been drawn from the tribe of accused in order to be able to assess evidence as, to provocation. Held: (j) in this case appellant had nothing from which to defend himself and therefore did not kill in self-defence; 7 (i) where appellant asserted that a threat constituted provocation, even ifthe threat annoyed appellant, in this case the annoyance should have ended when appellant disarmed deceased; a Gi) where the accused asserts provocation as defence to murder, he may not rely on his intoxication as heightening his likelihood of being provoked; : (Gv) in this case malice aforethought was established by the fact that appellant made sure the coast was cleir, by the nature of the attack, by appellant's conduct immediately after the killing, by his having covered deceased’s body, and by the existence of a. motive; (¥) in this case there was nothing in the circumstances alleged to constitute provocation that are peculiar to the tribe of which appellant is a member (vi) for purposes of assessing sufficiency of provocation, the community of a Tanzanian is fellow Tanzanians, not members of the tribe of the accused. ‘Appeal dismissed. b Cases referred to: (1) Justo Odima y. R., [1941] 8 E.A.CA. 29 (C.A.) - (2) Alphone Philibert v. R., Court of Appeal of Tanzania, Criminal Appeal No. 27 of 1979 (unreported). (@) Yovan v. Uganda, [1970] E.A.L.R. 405 (C.A.). W.K. Butamballa, for the accused. Y. Mchora, for the respondent. ‘April 2, 1980. The considered judgement of the court was read by MAKAME, J.A.: _Itis not contro- verted that during the night of the 27th February, 1977, at Hamgembe, Bukoba Township, the appellant[sl cA JOSEPH MARWA CHACHA v. REPUBLIC (Makane, 1A.) 23 think therefore that the new s. 4 of the Penal Code although unhappily drafted permits us to discard principles of the English Common Law which in our considered opinion Keep CH aw at a standstill and Principe ance to 2 healthy development of out law of crime. For the foregoing reasons we Drops in Geeling with the legal submissions ventilated by learned Counsel for the appellant to follow the lead given by the Australian Courts in Howe and adopt the sensible doctrine enunciated in Howe in preference to the present stance taken by the English Courts on the matter of self-defence and excessive use of lethal force. “vith that said, we may now revert to consider Mr. Rugarabamu's submissions on the question whether in the present case the appellant is entitled to be convicted of manslaughter beoavse, #5 urged by his counsel, Ey honestly and reasonably believed he was defending himself, even though on the facts on record he used {proportionate force in doing so. Although Mr. Loomu-Ojare for the respondent Republic put up a Vigorous and articulate argument to the contrary, we are perfectly satisfied that of & fair and 1 NigoTdoration of the evidence on record in this case, there can be litte doubt that the appellant hhad reaso- rable and we believe, honest grounds for supposing that his life was in danger thus ‘entitling him to use lethal cae te protect himself. While we arc left to conjecture as to why an expgrienced police offcor such as re ceerped, would choose to ignore the order given by the appellant to,put up his hands and stop, 6 PO, fectly lawful order in the circumstances then prevailing, we are left in no doubt. that deceased’s conduct se aval tn was such that it was likely to cause and did infact cause in the mind of the appellant #0 sereee and reasonable belief that deceased's refusal to put up his hands orto stop when ordered or to ence tones from his coat pockets was a clear indication that the deceased wanted to grab his gun and (© use ton him or perhaps that the deceased was concealing a deadly small gun in his pockets. But that be as 4 it may, we are not persuaded that it was necessary for appellant's protection in the circumstances existing i he rnateral time to shoot the deceased in the head. S. 29 of the Police Foree Ordinance, Cap. 322 is Gite clear in its terms as to what police officers who have to protect themselves by use of rearms have.to sre nenever firearms are used by the police, the fire should be directed, when feasible, atthe legs only. ai provisions of s. 29 of the Police Force Ordinance applies equally in our view to armed! members of the Peoples’ Militia whenever they are engaged in police duties-as was the case with the present appellant We aecpreingly hold that although the appellant was entitled to use force in exercise of his undoubted right eee eee ane ye had no reason whatsoever in using more force than was reasénably necessary in the ¢ir= ce atnactee tn the result, therefore, applying the principles of law discussed above, we are satisieg that the appellant's conviction for murder in the present case cannot be sustained. We think in hy Fa that Nit is hardly worth remarking that to convict a man of murder, who did not possess the heart bent off mis- Ghiof” would be contrary to our cherised principles of justiceand @ melancholy stato of affairs, ‘Aeao- Siingly, we quash the conviction of the appellant for murder and set aside the sentence of death and sub- stitute therefore a conviction of manslaughter. rie Court has considered what is the appropriate sentence in this case. Tn coming to our decision we havi Sion into account the notorious fact that the appellant in this case may well have besn a viet Sia trap badly conceived and executed by people unskilled inthe art of detection and investigation of serious cree eech as corruption. Our minds have further been exercised and greatly agitated by the fact, a note inne one too, that in Tarimo town as is the case nowadays in many localities in Tanzania, there appea’s co on jell aid down rules relating to the issue of firearms from armouries and their strict supervision Recher “These are serious matters which call for remedial action by the appropriate national caereatGes, All inall, we think a sentence of three years’ imprisonment will meet the justice of the case and accordingly order. ‘Appeal sllowed.24 TANZANIA LAW REPORTS [1980] TLR NAIMAN MOIRO v. NAILEJIET K.J.:ZABLON (Nvatats, C.J) NAIMAN MOIRO v. NAILEJLET K.J. ZABLON [Count or APPEAL OF TANZANIA AT ARUSHA (Nyalali, C.J., Mwakasendo’ and Kisanga, JJ.A.)) Civ. Appeat 13 oF 1979 i Defamation - Communication - Alleged defainatory letter copied to various people - No proof the- copies reached the people - No proof of communication. Defamation’ Defence - Qualified privilege Destroyed where malice proved. Defaimation ~ Defence - Qualified privilege ~ Self-defence or repulsion of an attack, ‘Defaniation - False allegations Finding malice on basis of false allegations. Power of attorney - Representation by attorney — Party concerned resident in Tanzania ~'Tanzania Court of ‘Appeal Rules, 1979, Rule 28(2). : Power of attorney Representation by attorney - Attorney conducting a:case where the party concerned pre sent in court. ‘The appellant was suicd by the respondent for damages in respect of defamation. Respondent sought to be represented by a person holding a power of attorney. Respondent was present in the High Court when the case was being conducted: In the High Court the appellant raised the defence of qualified privilege but the court did not accept it holding that the statements by the appellant were actuated by malice due to falsehood of the allegations. ‘The High Court also rejected the appellant's argument that mere indication in a letter that it was copied to other people did not amount to communication. In the Court of Appeal the appellant argued that the trial judge misdirected himself by not accepting the defence of qualified privilege and also by holding that there was communication on the basis of merely indicating that the letter was copied to other people. Held: (power of attorney does not apply where the person to be represented is resident in Tanzania = Rule 28(2) of the Tanzania Court of Appeal Rules 1979; Gi) "power of attorney in the High Court of Tanzania and lower courts does not apply where the arty concerned is also present in court; (ii)__ where a person is under a moral or social duty to make certain statements and does make state- ments which appear to be defamatory the defence of qualified privilege would be available provided such statements are made without malice; (iv) a person whose character or conduct has been attacked is entitled to answer such attack and any defamatory statements he may make about the attacker will be privileged provided they were published Doma fides (¥) falsehood is one of the factors which constitute defamation but is not per se a factor which con- stitutes malice; (vi) copying letters to different persons does not amount to communication unless there is evidence that the persons to whom the letter has been copied have received them. Appeal allowed Cases referred to Q) Adam y. Ward [1917] A.C. 309. @) Williamson Diamond Ltd., v. Brown [1970] E.A. 10 CM, Ngalo for the appellant. May 6, 1980. The following considered judgements were read. NYALALI, C.J.: The appellant ‘Naiman Moiro was sued by the respondent Nailejlet Zablon in the High Court at Arusha for damages in respect of defamation allegedly committed by the appellant towards the respondent. The trial Court gave Judgment for the respondent in the sum of shs. 20,000/- plus costs of the suit. The appellant was aggrieved| cA. LUSABANYA SIYANTEML y. REPUBLIC (Nvatatt, C3.) 25 , ot We are of the considered view that the conduct ofthe tri was proper and that the appellant's guilt was proved beyond reasonable doubt. , We therefore dismiss the appeal. | ‘Appeal dismissed. a LUSABANYA SIYANTEMI v. REPUBLIC (Nyataut, C.J.) LUSABANYA SIYANTEMI v. REPUBLIC {Count oF APPEAL OF TANZANIA AT MWANZA (Nyalali, C.J.,.Makame and Kisanga JJ.A.)] CRIMINAL APPEAL 89 oF 1979 Criminal Law — — Failure of accused to call witness to support alibi. Criminal Practice and Procedure — Assessors — Judge indicating to assessors his assessment of the testimony of a witness. Evidence — Requirement of corroboration of eyewitness identification made under unfavourable conditions. ‘The appellant was convicted of murder. It was contended on appeal that the trial judge failed to consider an asserted alibi and that he gave undue regard to an eyewitness identification of the accused made under unfavourable conditions. Held: (@° in ignoring asserted alibi, trial judge properly took into account the fact that the wife of the accused did not give evidence to support the alibi, where accused claimed to be at home with wife at the time of the offence, and where no reason was evident for wife's failure to give evidences i) if was improper for the trial judge to make his impression of the testimony of an eyewitness known to the assessors, as such conduct was likely to improperly influence assessors; Gii) it is a rule of practice, not of law, that corroboration is required of the evidence of a single witness of identification of the accused made under unfavourable conditions; but the rule does not preclude a conviction on the evidence of a single witness if the court is fully satisfied that the witness is telling the truth; ‘Gv) in this case, where conditions for correct identification of accused were unfavourable, the evidence of the single witness contradicted another witness and no corroborative evidence existed, the trial judge should not have acted on identification of a single witness. ° ‘Appeal allowed. Cases referred to: (1) Lalatikwa sjo Kabaile alias Rutababa s/o Kasase v. R, (1941) 8EACA. 46. @) Waswa Gamashi, Kanundo Gamashi and Kanyalali Sanyenge v. R, E.A.C.A. Cr. App. Case No. $1 of 1975 (unreported). (3) Abdattah bin Wendo and Another v. R., (1953), 20 E.A.C.A, 166. (4) Abdu Ludova y. Uganda, E.A.C.A. Cr. App. Case No. 68 of 1975 (unreported). GS) Roria v. R., [1967] EA. 583. (6) Magongwa Busagala v. R., Court of Appeal of Tanzania Cr. App. Case No. 31 of 1979 (unreported). . Matemba, for the accused. ‘oomu-Ojare for the respondent. April 2, 1980. The following considered judgment of the court was read by NYALALI, C.J The appellant Lusabanya s/o Siyantemi was charged and convicted in the High Court sitting at Mwanza with the serious offence of murder contrary tos. 196 of the Penal Code and was sentenced to the only penalty allowed by law, that is, death by hanging. He was aggrieved by the conviction and sentence and hence this appeal to this Court. "His appeal was argued by Mr. Matemba, learned Advocate, and the Republic was represented by Mr. Loomu-Ojare, learned State Attorney. Primary facts are not really in dispute between the parties: that is, one Bugalama sfo Luhondo died by violence dufing the night of the26 TANZANIA LAW REPORTS {19801 TLR. 24th/25th August, 1977, at Shigumulo village, Kwimba District, within Mwanza Region; that prior to his death he had been sleeping in a room in his house together with P.W.3, his son, who was also sleeping in another room in the same house; that P.W.1, who is the mother of the deceased, happened also to be sleeping in a second house in the same homestead; that & gang of robbers then broke into the house in which the deceased was sleeping, attacked the deceased with a sharp axe and killed him while P.W.3 escaped through a window to safety; that the same gang of robbers also went to the second house where P.W.1 was sleeping, assaulting her and stole some clothes before going away; that thereafter an alarm was raised by P.W.I and P.W.3 and many people came to the scene and subsequently the police were informed and the appellant was arrested some time later. From the proceedings in the High ‘Court and in this Court the procecution alleges that the appellant was one of the robbers who invaded the deceased’s homestead and killed him and the appellant later dis- appeared for a long time from his village. On the other hand, the appellant at his trial denied the allegation of the prosecution and set up an alibi to the effect that at the material time of the robbery and'the killing he was at his home with his wife. ‘The first point for consideration and decision in this case concerns the alibi raised by the appellant is trial. The learned trial Judge specifically considered the alibi and stated in his judgment: ‘The prosecution had submitted that failure by the accused to call his wife to testify that he had been at home on the night of the commission of the alleged crime when he (accused) fully knew that he was charged with a grievous offence of murder whose only sentence is death by hanging, is corroborative evidence that the accused had been ‘one of the robbers and killers of the deceased. This submission may have been based on the decision of the East African Court of Appeal in the case of Lulatikwa s/o Kabaile alias Rutahaba s/o Kasase v. R., (1941) 8 E.A.C.A. 46. A portion of the Headnote of this case is sufficient for our purpose to provide the facts of the case: ‘Appellant appealed from conviction of murder which had been committed by one Lulatikwa about a year before appellant's arrest. Lulatikwa and his father had left the district... positively identified the appellant as Lulatikwa. The defence was that the accused was not Lulatikwa and that he was a man from a different district. Appellant calléd no evidence other than his own evidence to substantiate the suggestion that he was living in another district at the time of the murder.” The Court of Appeal for Eastern Aftica observed at page 47: “If a person charged with a serious offence alleges that at the time when it was comhitted he was in some other place where he is well known, and yet makes no effort to prove that fact, which, if true, could easily be proved, the Court must necessarily attach little weight to his allegation, particularly in the face of such definite evidence of identity as there was in this case.’ We agree with the law as stated in Lulatikwa s/o Kabaile’s case regarding the weight to be attached to the alibi of the appellant. There was indeed nio reason given, or suggested, for the failure of the appellant to call his wife to give evidence on the appellant's behalf, On that basis, we are satisfied that the alibi is baseless. The next point for consideration and decision in this case is whethet the appellant was sufficiently identified as being one of the gangsters. It is apparent from the evidence that P.W. | is the only witness who claims to have seen and fecognised the appellant. The issue arises whether the conditions at the material time were favourable to a correct identification of the gangsters. The learned trial Judge specifically con- sidered this point and ‘stated as follows:— T fave already stated that I find P.W.1, Ngoro Musobi, a truthful witness but not- withstanding this, this Court must ‘advert to the dangers inherent in convicting on the evidence of a single witness as to identity especially when the condi favour correct identification.’: Waswa Gamashi, Kanundo Gamashi and Kanyalali Sanyenge v.R., E.A.C.A. Cr. App. Case No. 51 of 1975 (unreported). The identification which P.W.1, Ngoro Musobi, has testified to. in this. Court was done under unfavourable conditions. It was during the night and the witness must defi- nitely have been frightened. She was confronted by two robbers both of whom hit her; one on the head and another on the’mouth. She maintained that she was hurtCA. LUSABANYA SLYANTEMI v. REPUBLIC (Nyataut, CJ.) a deat flow directly from the allegations made by the respondent against the appellant. With due respect, I find myself unable to agree with the view of the learned trial judge on this point. : “The question arises whether the self-defence or ropulsion of an attack amounts to an occasion of aie litied privilge, if in the course of self-defence or repulsion of an attack defamatory words Sf= made in self- Beer ee Ngalo was, again helpful to this Court inciting the case of Williamson Diamonds Lid v. Brown [1970] E.A. 10.where the Court of Appeal for East Aftica stated at page 10:—— ‘The law of defamation in Tanzania is, of course, largely derived from the common law of England. This Court in the case of Hoare v. Jessop, [1965] E.A. 218 fully considered this question of qualified privilege and malice and also reviewed the vari- tous English authorities, This was an appeal from the High Court of Kenya, but it qually well applies, on the facts of this case, to the law in Tanzania. T would here quote from the leading judgment given by CRABBE, J.A., when he was considering the question of the defence having written the “libel letter” in self-defence and he said, “With all due respect to the learned judge T think he erred atthis point of his judgment, for having appreciated that the question of self-defence might fairly arise From the facts he should then have proceeded to consider whether the statements ‘contained in the ‘libel leter’ were necessary for the vindication of the defendant, or mere offensive recriminations. In GATLEY ON LIBEL AND SLANDER (Sth Fan.) at p.255, para 433, itis stated as follows: __a person whose character oF conduct has been attacked is entitled to answer such jttack, and any defamatory statements he may make about the person who attacked hima will be privileged, provided they are published ona fide and aro fairly relevant to the accusations made. “The law justifies a man in repelling a libellous charge by Genial or an explanation. He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, itis privileged, though it be false. 1 accept that thisis stillthe law inthis country and therefore the defence of qualified privilege is available to the appellant in the present case unless malice is proved on his part. T must now consider the question of malice on both limbs upon which the defence of qualified privilege arises in this case, ‘The learned trial judge specitically considered the point of malice and concluded: if Tam wrong and the offending words transpire to have been used on a privileged occasion T would say firstly, that, the defendant in using those words had malice, thereby destroying the privilege. | Such references in the defendants ‘letter to the plaintiff as being a thief, an exploiter and a hypocrite seem to have been made with Bat the defendant having any real foundation for so describing the plaintifl. The Goceased’s estate at Moshi had been heavily burdened with debts, this to the know- Jedge of the clan council and the defendat and, in agreement with the plaintiff, T am jnclined to think that those who might have taken out letters of administration, including the defendant, were shirking that responsibility on account of those debts. ‘The plaintiff in her own letter to the defendant referred to the heavy indebtedness of the estate and the sole efforts she had been making to pay off those debts. The pla~ intiff in shouldering such responsibility was doing just what every one else had avoi- ded to do and there could have been little occasion for the defendant to tur round ‘and allege she was selfish, a hypocrite, a sucker and a thief. I would think, there- fore, the defendant had malice. Tewould appear that the learned trial judge found malice on the basis that the allegations made by the appellant against the respondent had no foundation, in other words, they were false allegations. | am of qereow that the learned trial judge misdirected himself in law in finding malice on the basis ofthe falsehood Of the allegations. Falsehood is one of the factors which constitute the tort of defamation but is not pet se & froter which constitutes malice. Since this isa first appeal, I have asked myself whether there is evidence to show any malice on the part of the appellant. Mr. Ngslo has submitted that even if the language used by the appellant in countering the allegations made by the respondent is considered too strong, it is not sufficient evidence of malice. He cited the same.28 TANZANIA LAW REPORTS (1980) TLR case of Williamson Diamonds Ltd., v. Brown where the following words used by Lord ATKINSON in the case of Adam v. Ward, (1917) A.C. 309 at p. 339 were cited with approval:— “ ‘These authorities, in my view, clearly establish thata person making 2 communication ‘oni & privileged ocoasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foun- dation of his privilege; but that, on the contraty, he will be protected, even though hhis language should be violent or excessively stfong, if, having regard to all the circumstances of the case he might have honestly and with reasonable grounds belie- ved that what he wrote or said was true and necessary for the purpose of his vindi- cation, though in fact it was not so. T accept the law as stated by Lord ATKINSON as being still applicable in this country. Since there are no circumstances in this case to suggest that the appellant had no reasonable grounds to believe that what he wrote was true and necessary to vindicate himself, the language used in this letter is not sufficient evidence of malice on his part. Since I can find no other evidence of malice on the part of the appellant, it must follow that the defence of qualified privilege effectively protects the appellant in this ease, and the learned trial judge was wrong to hold otherwise. With regard to the other submission made by Mr. Ngalo that there was no evidence of communication in fhis case, I notice that the learned trial judge did not direct his mind on this aspect of the case. From the letter written by the appellant and tendered at the trial as Exhibit P2, itis apparent that it was copied to the Area Commissioner of Moshi District, the Chairman of TANU, Moshi District, the Ward Secretary of Hai South and the Ten-cell leader of Maili-sita locality — that is the same persons to whom the respondent hhad copied her letter. I have asked myself whether this mere indication of copying the letter is sufficient evidence to show that the copies were actually communicated to the persons concerned. No evidence was adduced at the trial to show that the persons to whom the copies were supposed to be sent had actually eotived those copies, There was not even the slightest suggestion that the copies were posted. So, in short, there was no ovidence that the defamatory letter was communicated to any other person apart from the respondent herseff. The law is quite clear that there can be no defamation if the defamatory matter is not communicated to persons other than the person complaining of defamation. On this basis alone, the suit of the respondent ought to have failed at the trial. . T need not consider the last submission made by Mr. Ngalo concerning the quantum of damages since, as I have already fully demonstrated, the judgment of the High Court cannot be sustained on several grounds. I thus allow the appeal. Since my learned brothers, Mwakasendo and Kisanga, JJ.A also concur, itis ordered that the judgment and decree of the High Court be and are hereby set aside with costs to the appellant. MWAKASENDO, J.A.: I concur with the judgment of the learned Chief Justice, which I have read in draft, and agree with the proposed order. KISANGA, J.A.: Ihave had the advantage of reading in draft the judgment of Nyalali, Chief Justice, and I agree that this appeal be allowed with costs to the appellant. Appeal allowedCA. MOHAMED KANINGO v. REPUBLIC (KisaNcA, J.A.) 219 MOHAMED KANINGO v. REPUBLIC (Kisanta, J.A.) MOHAMED KANINGO vy. REPUBLIC [Counr oF APPEAL OF TANZANIA AT DAR £5 SALAAM (Nyalali, C.J., Makame and Kisanga, JJ.A.)] CRIMINAL APPEAL 20 oF 1978 Criminal Practice and Procedure ~ Conviction of obtaining goods by false pretences substituted for that of stealing ~ Proper Criminal Practice and Procedure~- Défective charge — Role of those presiding over criminal trials. ‘Criminal Practice and Procedure - Offence set out in statement of offence ~ Offence not disclosed in particulars of offence ~ Evidence adduced discloses the offence as set out in statement of offer ‘V,Conviction improper. ‘The appellant was charged with 3counts of forgery, uttering and stealing under the Penal Code. He ‘was acquitted on the count of forgery but convicted for uttering and got a substituted conviction for obta- ining goods by false pretences on the count of stealing. (On appeal on the second count of uttering a false document the court first noted that the offence is not created under ss. 335(b) and 337 of the Penal Code as the charge alleged but under s.342 of the Penal Code. Secondly the court found that the particulars of the offence as set out did not disclose or even suggest the offence of uttering a false document but that the evidence adduced disclosed the offerice as set out in the statment of offence, On the third count of stealing the appeal judge gave a substituted convigtion of obtaining goods by false pretences. The appellant had used a forged requisition voucher to obtain and did obtain goods. The Court of Appeal considered whether the substituted conviction was proper. __ Held: (§) to convict an accused person of an offence as set out in the statement of offence but not disclosed in the particulars of offence offends against the basic principle of criminal practice that the accused must know clearly what the charge against him is; Gi) where a person obtains goods on the strength of a forged document the offence committed is not theft but one of obtaining goods by false pretences. Observation: while it is the duty of the prosecution to file the charges correctly, those presiding over riminal trials should, at the commencement of the hearing, make it a habit of perusing the charge as a matter of routing to satity themselves that the charge is lnd correctly, and if it isnot to require tha it be amended ‘Appeal allowed in part. No case referred to. October 3, 1980. KISANGA, J.A., read the following considered judgement of the court: The appellant was charged with three counts of forgery, uttering a forged document and stealing, all being offences under the Penal Code. He was acquitted on the count of forgery but was convicted as charged on the second count, and a substituted conviction for obtaining goods by false pretences was entered on the third count. ‘He was sentenced to three years’ imprisonment on the second count and to three years’ imprisonment on the third count, the sentences to run concurrently. He appealed to the High Court but his *ppeal was su- mmarily rejected. Subsequently he applied to that same court for leave to appeal to this Court out of time and a8 pauper and th® application was granted on the grounds which willbe apparent later on inthis judg- The facts as found by both courts below were short and simple and may be briefly stated as follows:— ‘The appellant was employed by TANESCO as a driver. In the morning of the day of the incident he took out a recquisition voucher No, 190522 for 45 litres of petrol for his motor vehicle, which recquisition voucher ‘was issued by one Mary Wambura, a duly authorised agent for TANESCO. The appellant presented the Teoquisition voucher at a petrol station owned by Caltex and accordingly received the 45 litres of petrol280 TANZANIA LAW REPORTS {1980] TLR that he also joined in the raid but did not kill although he intended to because he found no chance to kill. ‘Accused 18, Gisiwehida Henga, also joined the group which raided the Wanyaturu. He stated he did not kill although he had a spear because he was afraid of killing the Wanyaturu, Tt would be necessary at this stage to give a brief background of the events as a result of the massacre of the Wanyaturu by the Barbaigs. In early Janvary 1976 the police were investigating the murder of the Barbaig woman and her two children, the mother of accused 2 Noya Gumusba, and accused 2 was helping the police in the investigation. "When the Barbaig raid took place the police suspected accused 2 Noya and arrected him on or about 10th January, 1976, Accused 2 Noya was alleged to have admitted to instigating find taking part in the raid and named certain others. The police proceeded to arrest the persons named ane thoes iv turn named other alleged participants. However, during the course of these investigations the Party and the Government took a certain course of action: On or about 16th January, 1976, an operation named by one of the witnesses “operation Barbaig” was amounted by the Government and it was alleged that many’ Barbaigs were arrested, men and women, and that cattle confiscated. It seems that twenty bead orcattle were taken from each Barbaig household. It is not clear why the cattle were seized. It was said that the operation was in order to settle the Barbaigs in the villages; it was also said that the operation was to prevent a warlike situation developing between the Barbaigs and the Wanyaturu. It seems thet not only Rove Barbaigs of Singide Region rounded up, but also those of three other regions—Arusha, Dodoma and “Shinyanga, -Tealso seems that after the massacre Barbaig elders were holding meetings, ip order to help the police discover the culprits, However, it was in evidence that these meétings in the beginning produced fo results and that they went on for several, months. And it was towards the end that the edors were alleged fo have asked some Barbaig youths to volunteer to surrender and admit that they were ‘a the group which raided and killed the Wanyaturu on the 6th January, 1976. However all these appellants ane a cated much earlier, before the Barbaig elders allegedly urged some youths to volunteer. Five of the versed were arrested in January 1976, eight were arrested in February 1976 one in March 1976 and one in early April 1976, and the extra-judicial statements were made in the months they were arrested Ye have metioned this because all these appellants have retracted their extra-judicial statements and stated that they had admitted Killing because they were'complying-witr the orders of the Barbaig elders so siete elders and the women could be released from custody and the confiseated cattle could be returned to the Barbaig tribe. : “The ral Judge dealt with this issue in great detail, and he examined the statements and the circurn- stances in which they were made. All the three magistrates who took down the statements of the appellants sratihed, ae well as the police officers and on a consideration of all the factors as well as the contents of the vestements ofthe appellants the tral judge came to the conclusion, after a tral-within-a-tial in respect of all the extra-judicial statements, that they were voluntarily made, that they amounted with one exception, 10 ne eecions, that they were not induced by the police or by the elders as the appellants alleged, and that they’ cong not but be tre, Hee warned himself of the rule of practice eonceming corroboration of retracted co sons but he was fully satisfied that in the case of these confessions he would be quite justified in geting on them without corroboration because he was convinced that the contents therein were 1rus. "Accused 2 Noya gave sworn evidence in his defence and stated that he confes#ed’ so that his father’s cattle could be released. As we have stated, the trial Judge rejected this partly because of the detailed nature.

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