IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM
CRIMINAL APPEAL NO. 96 OF 2013
(CORAM: RUTAKANGWA, J.A., LUANDA, J.A., And MANDIA, J.A.)
DIRECTOR OF PUBLIC PROSECUTIONS...................... APPELLANT
VERSUS
FARID HADI AHMED & 9 OTHERS....................... RESPONDENTS
(Appeal from the Ruling of the High Court of
Zanzibar at Vuga)
(Mwampashi, J.)
In
Criminal Application No. 4 of 2012
-----------JUDGMENT OF THE COURT
25th October & 20th November, 2013

RUTAKANGWA, J.A.:
On 25th October, 2012 the appellant instituted criminal proceedings in
the High Court of Zanzibar at Vuga (vide Criminal Case No. 09 of 2012)
against eight accused persons (the accused). These were Farid H. Ahmed,
Mselem A. Mselem, Mussa J. Issa, Azan K. Hamdan, Suleiman J. Suleiman,
Khamis A. Suleiman, Hassan B. Suleiman and Ghalib A. Omar.

All the

accused were facing three counts, namely Sabotage (1st count), Soliciting,
1

Inciting and Persuading Persons to commit an offence (2nd count) and

Conspiracy to commit a felony (3rd count). In addition, Azan K. Hamdan,
was being singly arraigned with Conduct conclusive (sic) to breach to

peace (4th count). The 1st and 2nd counts were laid under sections 3 (a)
and 11 respectively of the National Security Act, Cap 47 R.E. 2002. The 3rd
and 4th counts were brought under sections 399 and 74(1) (b) respectively
of the Zanzibar Penal Act, No. 6 of 2004.

The accused made their first appearance in the High Court on the
same day before George Kazi, the Registrar of the High Court.

The

information was read over and explained to the accused persons. All the
same, the accuseds pleas on each count were not taken as the presiding
officer had no jurisdiction to record their pleas. He was not a judge and he
so plainly informed the accused.

Although the Registrar had clearly informed the accused persons that
he was not a judge, each accused person, one after the other, applied
orally to be granted bail.

The application for bail was opposed by the

Public Prosecutor, Ms. Raya Mselem, learned State Attorney.

The

prosecutor had two reasons in resisting the application. One, the Registrar
did not have jurisdiction to entertain the bail application at all. Two, the
2

Director of Public Prosecutions (now appellant) had filed a Certificate of

Bail Objection in terms of s. 19 (1) and (2) of the National Security Act.
The accused pressed the learned Registrar to accede to their prayer
insisting that they were innocent and they had a right to bail. The learned
State Attorney was adamant. She maintained that the learned Registrar
had no power to grant bail to the accused, asserting in conclusion that:-

It is only a judge of the High that have (sic) power

to entertain this application.

The learned Registrar gave his ruling on the contested matter on the
same day. Relying on a verbal Practice Directive allegedly given by the
Zanzibar Chief Justice in 2004, the learned Registrar ruled that he had
undoubted jurisdiction to entertain and determine the application for bail.
He literally questioned the bona fides of Ms. Mselem, who had raised the

objection. Having thus resolved the issue of his jurisdiction, the learned
Registrar proceeded to, borrowing his own words, board on the next

issue of whether accused persons are entitled to be granted bail. For the
sake of brevity and clarity we have found it convenient to state that after
considering the provisions of s. 19(1) and (2) of the National Security Act,
he was of the settled view that the right of the accused to bail had been
3

curtailed by the certificate of bail objection. He accordingly dismissed

the bail application. He ordered the accused persons to be remanded in
custody until when their case will be heard and finally determined or when

the D.P.P decided to withdraw a certificate of bail objection.

The accused, who by then were fending for themselves, were

aggrieved by that ruling. Acting through Mr. Rajab Abdalla Rajab, learned
advocate, they on 20th December, 2012, instituted Criminal Application No.
4 of 2012 in the same High Court.

The application was by Chamber

Summons under section 3(1) (a) of the High Court Act No. 2 of 1985 and
section 150(1) of the Criminal Procedure Act No. 7 of 2004 (the CPA). In
the application, the accused were seeking mainly a review of the
Registrars ruling dated 25th October, 2012 which they claimed contained

errors apparent on the face of the record, and further, the nullification of
the D.P.P.s certificate of bail objection. They also sought bail on lenient

and reasonable conditions. The chamber summons was supported by an

affidavit of one Abdalla Juma Mohamed, learned advocate.
The appellant, as respondent in the application, resisted the
application. He also challenged its competence and accordingly lodged a

notice of preliminary objection. The notice of preliminary objection cited

two points of law, namely:(a)

that the High Court had not been properly moved, and

(b)

that the application was incurably defective.

The application was heard by Mwampashi, J. on 28th February, 2013.

By this date, it is worth noting here, the D.P.P. had already, on 3rd January
2013, filed fresh information containing the same four counts, but with two
additional accused persons, namely, Abdalla S. Ali and Fikirini M. Fikirini.
Furthermore, the subject of the 4th count was no longer Azan K. Hamdan
but Farid H. Ahmed. The D.P.P. had also simultaneously filed another

certificate of bail objection in respect of these two accused persons.

Before Mwampashi, J. it was counsel for the applicants, Mr. Abdalla

Juma, who first addressed the court pressing for review of the Registrars
ruling. He impressed upon the learned Judge that the applicants were
entitled to a review order as the Registrar, being not a High Court judge,

had no powers to entertain the bail application. He also told the learned
judge that prohibition to granting bail under s. 19(1) and (2) of the
National Security Act is directed to police officers and not the court.

In response, Mr. Ramadhani Nassib, learned State Attorney, for the

D.P.P., first addressed the learned judge on the merits of their objection to
the competence of the application. He submitted that the cited enabling
provisions did not enable the applicants to bring the application before the

Court. He was emphatic in his submission that those powers do not give
the powers to the Court to entertain the application. It was his strong
submission that if the applicants had been aggrieved by the ruling of the
Registrar who had no jurisdiction to entertain the bail application, they
ought to have proceeded under s. 389 of the C.P.A.

He was equally

vehement in his opposition to resort to s. 150(1) of the C.P.A as that

provision can only be invoked by the court suo motu. More tellingly, the
learned State Attorney strongly contended that the learned judge had no
power to review the Registrars ruling. It was only the Registrar who could
review his own ruling, he concluded.

On the second point of objection, it was his submission that the

application was based on an incurably defective affidavit. The supporting
affidavit, he had argued, contained legal arguments and opinions and had
to be expunged.

Coming to the merits of the application, Mr. Ramadhani only agreed

with the applicants on their claims that the learned Registrar had no
powers to entertain the bail application. But he parted company with them
when it came to the issue of the validity of the certificate of bail objection.
It was his contention that it binds and prohibits the court from granting

bail to the applicants.

The rejoinder submission of Mr. Rajab A. Rajab, learned advocate,

was focused and for our purpose removed any lingering ambiguity
concerning the nature of their application. He said, and we find it
instructive to quote him:-

Our application is all about review of the

Registrar ruling who presided over the High Court
case. We do not apply for revision or reference.
[Emphasis is ours].
Regarding the issue of wrong citation he confidently asserted:-

...we do submit in reply that since we all agree

that there are no specific provisions on how review
can be brought before the High Court in criminal
matters then the cited provisions are proper... we
are not seeking for any writ but for review.
[Again emphasis is ours].

In his apparently detailed ruling the learned High Court judge had no
flicker of doubt on the competence of the application for review before
him. He was of that settled view because as he found it, neither the C.P.A.
nor any other Zanzibar law provided how a decision by the High Court

Registrar in a criminal matter triable by the High Court can be challenged.

Because of this anomaly, he went on to reason, he could not come to
terms with the contention that the application was not properly before him.

On who was the appropriate authority to review the Registrars

ruling, the learned judge disagreed with the argument of Mr. Ramadhani
Nasib to the effect that it was the Registrar himself. Since the Registrar
had firmly held that he had jurisdiction to entertain the bail application in
the High Court case and also that the court is barred to grant bail by the

D.P.P certificate, he found no good reasons for the same issues to be

taken before him again for review. He accordingly dismissed the two
points of preliminary objection and proceeded to determine the application
for review on merit.

In his considered ruling the learned judge was in concurrence with

counsel for both sides in the application, that the Registrar of the High
Court had no jurisdiction to hear and determine the applicants bail
8

application.

He accordingly nullified, quashed and set aside the bail

proceedings before the Registrar and his decision thereon. The learned
judge made other findings in his ruling which are not relevant to this
appeal. We see no good reason to discuss them here.

The D.P.P. was dissatisfied with the ruling of the learned High Court
judge which was delivered on 11th March 2013. On 12th March, 2013 he
lodged a notice of appeal, and the memorandum of appeal was lodged on
15th April, 2013. The memorandum of appeal lists only two grounds of
complaint against the ruling of the learned High Court judge. They are as
follows:
(a) That the Honourable Judge erred in law to

allow application without enabling provision.

(b)

That the Honourable Judge erred in law and

fact to entertain and determine review which
he had no jurisdiction.

Long before the appeal was scheduled for hearing, the respondents
lodged a notice of preliminary objection, challenging the competence of the
appeal. This challenge is predicated on two grounds. One, the purported
appeal is not maintainable. It is barred by section 5(2) (d) of the Appellate
Jurisdiction Act, Cap 141 R.E. 2002 (the Act). Two, the notice of appeal
9

and the memorandum of appeal are not in conformity with the High Court
impugned ruling.

Following the settled salutary rule of practice when the appeal was
called on for hearing we first heard oral submissions of counsel for both
sides on the preliminary objections and reserved our ruling thereon. We
proceeded to hear the submissions in support of and against the appeal
and reserved our judgment.

This judgment, therefore, contains our

reasoned decisions on both aspects of the appeal.

We should note in

appreciation from the outset that both the written and oral submissions of
counsel for both parties, were brief, focused and objectively presented.
Alive to their obligation to assist the Court in reaching a fair and just
decision, they did not argue for the sake of argument.

They readily

conceded the obvious where others would have put up uncalled for stiff
resistance. We are grateful to them all.

At the hearing, the appellant was represented by Ms. Fatma A.

Hassan, Mr. Abdalla I. Mgongo and Mr. Ally R. Ally, learned State
Attorneys. Mr. Salim Toufiq, Mr. Abdalla J. Mohamed, Mr. Rajab A. Rajab
and Mr. Suleiman S. Abdalla, learned advocates, represented the

10

respondents.

The respondents who appeared before us were the first

eight (8) accused persons.

It was Mr. Toufiqs contention in support of the first point of

preliminary objection that inasmuch as the case against the accused is still
pending in the High Court the impugned ruling was an interlocutory one.
For this reason, he argued, the appeal ought to be struck out as it is barred
by s. 5(2) (d) of the Act as amended by the Written Laws (Miscellaneous
Amendments) (No. 3) Act, 2002 [Act No. 25 of 2002].

He cited as

authority, our decision in Yohana Nyakibari & 22 others, Criminal

Reference No. 1 of 2006 (unreported).

Regarding the second point of objection Mr. Toufiq gallantly argued

that whereas the challenged High Court ruling was in respect of only eight
(8) accused persons, the notice of appeal is defective so long as it cites

Farid Hadi Ahmed and 9 others. The defect, Mr. Abdalla added, rendered
the appeal incompetent.

Responding to these challenges Ms. Fatma confidently asserted that

the appeal having been instituted by the D.P.P and no other person, is
competent and maintainable. She premised this uncompromising stand on
11

s. 6(2) of the Act, which she stressed was not affected by the amendments
introduced by Act No. 25 of 2002. She relied on the decisions of this Court
in Seif Shariff Hamad v. S.M.Z., [1992] T.L.R. 43 and Joseph Chuwa
v. R. Criminal Appeal No. 75 of 2006 (unreported).

On the second point of objection, Ms. Fatma argued that both the
notice of appeal and the memorandum of appeal relate to the ruling of
Mwampashi, J. dated 11/3/2013 and was for all intents and purposes in
conformity with the essential requirements of Rule 68 of the Tanzania
Court of Appeal Rules, 2009 (the Rules). She accordingly pressed for the
dismissal of the preliminary objections.

After carefully reading sections 5 and 6 of the Act, Rule 68(2) of the
Rules (on the contents of a notice of appeal) and digesting counsels
submissions, we are of the settled opinion that the two points of objection
need not necessarily detain us. They are rooted, we respectfully hold, on a
misapprehension of the statutory provisions on which they are premised.
To vindicate this our stance, we have found it illuminating to reproduce the
whole of sections 5(2) and 6 of the Act.

12

Section 5 of the Act, which caters for appeals to this Court in civil
cases only from the High Court and subordinate courts with extended
powers, provides as follows:5-(2) Notwithstanding the provisions of subsection

(1)
(a)

except with the leave of the High Court, no

appeal shall lie against
(i) any decree or order made by the consent
of the parties; or
(ii) any decree or order as to costs only where
the costs are in the discretion of the High
Court;

(b)

except with the leave of the Court of Appeal,

a party who does not appeal against a
preliminary decree shall not dispute
its
correctness in an appeal against the final
decree;

(c)

no appeal shall lie against any decision or

order of the High Court in any proceedings
under Head (c) of Part III of the Magistrates
Court Act unless the High Court certifies that
a point of law is involved in the decision or
order;

(d)

No appeal or application for revision shall lie

against or be made in respect of any
preliminary or interlocutory decision or order
of the High Court unless such decision or
order has the effect of finally determining the
criminal charge or suit.
13

The whole of section 6 reads thus:

6(1) Any person convicted on a trial held by the

High Court or by a subordinate court

exercising extended powers may appeal to
the Court of Appeal.
(a)

where he has been sentenced to death,

against conviction on any ground of
appeal; and

(b)

in any other case

(i)

against his conviction on any

ground of appeal; and

(ii)

against the sentence passed on

conviction unless the sentence is
one fixed by law

(2)

Where the Director of Public Prosecutions is

dissatisfied with any acquittal, sentence or
order made or passed by the High Court or by
a subordinate court exercising extended
powers he may appeal to the Court of Appeal
against the acquittal, sentence or order as the
case may be, on any ground of appeal.

(3)

Where, in proceedings under the provision to

subsection (1) of section 26 of the Penal
Code relating to the conviction of a woman
who is pregnant, the High Court or a
subordinate court exercising extended powers
has found that the woman in question is not
pregnant, the woman may appeal to the Court
of Appeal against the finding.

14

(4)

An appeal shall lie to the Court of Appeal

against any directions of the High Court or of
a subordinate court exercising extended
powers for the release of a person detained in
proceedings for those directions in the nature
of habeas corpus under section 390 of the
Criminal Procedure Act against a refusal to
give those directions.

(5)

An appeal shall lie to the Court of Appeal

from any order of the High Court awarding
costs under section 350 of the Criminal
procedure Act and the Court of Appeal shall
have power to award the costs of the appeal
as it shall deem reasonable

(6)

Any person sentenced by the High Court in

pursuance of the provisions of section 171 of
the Criminal Procedure Act may appeal to the
Court of Appeal against the sentence, unless
it is one fixed by law; but if the High Court
imposes a sentence which the court which
committed the offender had power to impose
no appeal shall lie against such sentence

(7) Either party

(a)

to proceedings under Part X of the

Criminal Procedure Act may appeal to
the Court of Appeal on a matter of law
(not including severity of sentence) but
not on a matter of fact;

(b)

to proceedings of a criminal nature

under Head (c) of Part III of the
Magistrates Courts Act, may if the High
Court certified that a point of law is
15

involved, appeal to the Court of Appeal,

but where the order appealed against is
a declaratory order, the determination
of the Court of Appeal on it shall also
have effect only as a declaratory order.

It must be obvious to all now that in the entire section 6 which

clothes this Court with jurisdiction to hear and determine criminal appeals
from the High Court and subordinate courts with extended powers, there is
no provision similar to, leave alone one identical with s. 5 (2) (d)
reproduced above. For this very obvious reason, we have found ourselves
constrained to accept without any demur, Ms. Fatmas irresistible
contention that the right of the D.P.P. to appeal against any acquittal,

sentence or order made or passed by the High Court or by a subordinate

court exercising extended powers, was left unfettered by the total
prohibition against appeals or revision applications to this Court in relation
to any preliminary or interlocutory decision or order. This conclusion finds
strong support from the observation of this Court in the case of Yohana
Nyakibari (supra), in respect of the reasons behind the passing of Act No.
25 of 2002.

16

In Yohana Nyakibaris decision dated 15/8/2007 the Court made

this apt observation;

At this juncture it may be observed briefly that the

intention of the legislature in enacting the law
under the Act, was to ensure speedy expedition of
trials particularly with regard to civil suits. Hence
the amendments effected under the Act of section
5(2) (d) of the Appellate Jurisdiction Act, 1979,
section 74 of the Civil Procedure Code 1966 and
section 43 of the Magistrate courts Act, 1984.
To this list, we may as well justifiably add sections 78 and 79 of the same
Civil Procedure Code.

This list of amended sections has led us to the

conclusion that s. 6(2) of the Act was by design left untouched by

Parliament.

In the face of these unambiguous provisions of s. 6 of the Act, we

respectfully hold that the first point of preliminary objection premised on a
statutory provision not related to appeals in criminal cases, as is the appeal
under scrutiny, is totally misconceived.

It is accordingly overruled.

All

other things being equal, the appeal ought to be held competent.

In disposing of the second point of objection we shall begin by

agreeing with the appellant, that the notice of appeal on record is
17

substantially in the form B in the First Schedule to the Rules.

It contains

all the essential requirements of Rule 68 (2) of the Rules. The admitted
fact that it is shown therein that the respondents in the appeal are Farid
Hadi Ahmed and 9 Others is in our considered view, an unavoidable
reflection of the true state of affairs. It is common ground that this appeal
has its origin in Criminal Case No. 09 of 2012 of the Zanzibar High Court at
Vuga.

The bane of both the appellant and respondents in this appeal are
the ruling and orders of the High Court Registrar which were admittedly
given in that case.

There is no gainsaying here that this case is still

pending in the High Court.

It is equally undisputed that by the time

Mwampashi, J. heard and determined the application which gave rise to

the ruling, the subject of this appeal, the accused persons in the case were
ten (10) in number.

Therefore, the notice of appeal in citing 10

respondents leaves no remote doubt as to the true identity of the case

which is still pending and upon whose existence the first point of objection
was pegged.

For this reason we hold that the notice of appeal is not

defective at all. Indeed the notice of appeal would have been equally valid

18

by citing Farid Ahmed & Others.

The second point of preliminary

objection should in the interest of justice, be overruled as we hereby do.

Having overruled the points of preliminary of objection, it behoves us

now to dispose of the appeal itself. We shall canvass the 2nd ground of
appeal first as on the face of it, if allowed, it is capable of conclusively
determining the appeal.

As already shown, the appellant is reproaching the learned High

Court judge with clothing himself with the powers to review the ruling of
the learned High Court Registrar. It is the appellants contention that the
learned judge had no such jurisdiction and we are therefore, being called
upon to nullify the entire proceedings in the High Court.

In disposing of this crucial ground of appeal, we have found it

instructive to begin by stating categorically that it is now trite law that the
issue of jurisdiction for any court is basic. As this Court succinctly stated in
Fanuel Mantiri Ngunda v. Herman M. Ngunda and Others, Civil
Appeal No. 8 of 1995 (unreported), it goes to the very root of the

authority of the court to adjudicate upon cases of different nature. The

Court went on to hold that the question of jurisdiction is so fundamental
19

such that it is risky and unsafe for the court to proceed on the assumption
that the court has jurisdiction to adjudicate upon the case.

We are

accordingly of the settled view that jurisdiction to adjudicate must not be

presumed or taken for granted. It must be traced to unequivocal statutory
provisions and in some rare cases from the Constitution: See also, Richard
Julius Rukambura v. Issack N. Mwakajila and Another (CAT) Civil
Appeal No. 3 of 2004, Baig and Batt Construction Ltd. V. Hasmati
Baig (CAT) Civil Appeal No. 9 of 1992 (all unreported), etc. Settled law is
that proceedings entertained by a court or tribunal without jurisdiction, and
a judgment, decision, ruling, etc. emanating from those proceedings, are
all a nullity: see, Tanzania Revenue Authority v Kotra Co. Ltd. (CAT)
Civil Appeal No. 12 of 2009 (unreported).
In the light of this clear stance of the law, we are now in a good
position to canvass objectively the second ground of appeal. As we have
already sufficiently demonstrated, the respondents were before the High
Court seeking not judicial review of the Registrars orders but a review of
his ruling. In that case, we entertain no doubt that that application was
totally misconceived.

20

As correctly argued by Mr. Mgongo before us, a review of that nature

is only made or done by the very court which gave the decision or
judgment. More often than not, that jurisdiction is exercised by the very
magistrate or judge who rendered the judgment. This principle applies to
both civil and criminal applications for review. Assuming without deciding
here that the learned Registrar had the necessary jurisdiction to entertain
and determine the respondents bail application, he himself or his
successor in office would have been the only person with jurisdiction to
review the ruling dated 25th October, 2012.

For this reason, we

respectfully hold that the learned High Court judge erred in law in holding
as he did that as the Registrar had conclusively decided the issues before
him, he saw:

no good reasons for the same issues to be brought

before him again for review.
In so holding, we most respectfully hold, he missed the true import or
nature of the review of judgment process.

For the above conclusion, we find support from previous judgments

of the Court. In Richard Rukamburas case (supra), for instance, the
Court lucidly stated thus: 21

the question of jurisdiction is fundamental in

court proceedings and can be raised at any stage,
even at the appeal stage. The court suo motu can
raise it. In Baig and Batt Construction Ltd v
Hasmati Ali Baig this Court raised suo motu
in an appeal to it, the question of the High Court
not having jurisdiction to hear a review case
regarding an order made by the District Registrar.
It said the judge of the High Court had no
jurisdiction, as only the District Registrar could
review the order he had made earlier (Emphasis
is ours.)
Need we say more? We believe not. We are convinced that this tells it all,
lest we be reproached with over-egging the pudding.

On the basis of

these authorities we hold that the proceedings before Mwampashi, J. were

totally misconceived. The learned judge, therefore, we respectfully hold,
had no jurisdiction to hear and determine the application for review. It
was the Registrar who could review his own ruling. We accordingly allow
the second ground of appeal.
Having conclusively held that the learned High Court judge had no
jurisdiction to entertain the review application, we hereby nullify, quash
and set aside the entire proceedings before him as well as his ruling which
22

gave rise to this appeal.

The respondents are at liberty to take other

remedial measures available in law if they are still aggrieved by the ruling
and orders of the learned High Court Registrar.

Taking into consideration our decision on the second ground of

appeal, we find no compelling reason to canvass the first ground of appeal.
That would be a futile academic exercise. It will await another fitting
occasion. Once it is accepted, as we have done, that the learned judge
had no jurisdiction, then the issue that he was improperly moved does not
arise.
All said and done, we allow this appeal.
DATED at DAR ES SALAAM this

12th day of November, 2013.

E.M.K. RUTAKANGWA
JUSTICE OF APPEAL
B.M. LUANDA
JUSTICE OF APPEAL
W.S. MANDIA
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
Z.A. MARUMA
DEPUTY REGISTRAR
COURT OF APPEAL
23