This is an application for review of the decision of the first respondent
(the trial officer) to convict the applicant on two (2) Counts for allegedly
contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10] for
“acting in an unbecoming or disorderly manner or in any manner prejudicial to
good order or discipline or reasonably likely to bring discredit to the Police
Force.”
The applicant is also aggrieved by the decision of the Commissioner
General of Police, on appeal, wherein he upheld the decision of the trial
officer.
The grounds upon which the applicant seeks this court to review the first
and second respondents' decisions are those which delve into the merits of the
case. The applicant is complaining about the non-production of exhibits,
admission of evidence from witnesses without proof beyond a reasonable doubt,
admission of contradictory evidence, the calling of some witnesses and leaving
out some other witnesses that the applicant considered were key witnesses in
the matter. The applicant is also complaining of the fact that the trial
officer threw out his defence without merit.
All these reasons, despite the fact that they are not concise, they
relate to the merits of the matter and can therefore not be the subject matter
of a review but an appeal.
On appeal, the Commissioner could have interfered with the decision of
the trial officer, if he was of the view that the factual findings of the trial
officer defied logic.
The assessment of evidence remains the dominion of the trial court for
the simple reason that the trial officer lives through the drama of the case
and is better placed to determine the factual issues as well as issues of
credibility.
The Commissioner General of Police, on appeal, could only have
interfered with the findings of the trial officer if he was satisfied that his
(the trial officer) findings defied reason and common sense. There has to
be something grossly irregular in the proceedings to warrant such interference. This
court has wide review powers given to it in terms of section 26 and 27 of the
High Court Act [Chapter 7:06].
Section 27 of the High Court Act [Chapter 7:06] provides thus:-
“(1) Subject to this Act and any
other law, the grounds on which any proceedings or decision may be brought on
review before the High Court shall be –
(a) Absence of jurisdiction on
the part of the court, tribunal or authority concerned.
(b) Interest in the cause, bias,
malice, or corruption on the part of the person presiding over the court or
tribunal concerned or on the part of the authority concerned, as the case may
be.
(c) Gross irregularity in the
proceedings.
The grounds for review, as stated in the application, are not the ones
envisaged by section 27 of the High Court Act [Chapter 7:06].
If the applicant wants a revisit into the merits of the case, the
credibility or otherwise of the witnesses, the assessment of the probative
value of the evidence that was presented before the tribunal, then his remedy
is by way of appeal not a review….,.
On review, it is not enough to simply contend that the decision was
wrong, special grounds must exist before a court will enquire into the
merits. Refer to Makoni v Liquor
Licencing Board 174 (2) RLR 1; Quintas
v Controller of Customs and Excise 1976 (1) RLR 208; and Ministry of Labour Manpower Planning and
Social Welfare and Others v Pen Transport Pvt Ltd SC45-89.
No such special grounds have been exhibited in this application
warranting an interference with the respondents' decision on the merits. I
accordingly find no basis upon which I can exercise my review powers in this
case.
The application is accordingly dismissed with costs.
