EX TEMPORE
PATEL JA: This is an
appeal against the judgement of the High Court in Case No. HC5569/17
in which the High Court dismissed an urgent chamber application
seeking the stay of the appellant's detention, which was ordered by
the Commissioner-General of Police (the second respondent), pending
the finalisation of an application for review by the High Court of
the proceedings before the single trial officer (the first
respondent).
The High Court dismissed the
urgent chamber application on the basis that the appellant had
already appealed against the decision of the single trial officer to
the Commissioner-General of Police and could not therefore seek a
review of the decision of the trial officer. The High Court also
found that the appellant could not seek the stay of the detention
order imposed by the Commissioner-General as he had not questioned
the decision of the Commissioner-General.
At the hearing of the appeal, the
Court took the position that the present appeal should be confined to
the specific facts pertaining to the appellant himself and the
determination of the court a
quo in that regard.
The other questions raised on appeal were purely academic, relating
as they did to other cases before the High Court, and were therefore
not properly before this Court.
As agreed with counsel, the
issues to be determined herein were as follows:
(i)
Whether the appellant was entitled to approach the High Court on
review of the trial officer's decision after the dismissal of his
appeal by the Commissioner-General.
(ii)
Whether the appellant was entitled to approach the High Court to stay
the order of detention imposed by the Commissioner-General without
having appealed his decision, pending the review of the trial
officer's decision by the High Court.
During the course of submissions
by counsel, it became apparent that the review proceedings in Case
No. HC5385/17 were not actually pending at the time that the urgent
chamber application was heard and determined by the court a
quo. It was common
cause that the decision of the trial officer was made on 29 March
2017. However, the application for review of that decision was only
filed on 15 June 2017, well beyond the eight weeks prescribed by the
High Court Rules.
Mr Mugiya,
for the appellant, claimed that he had filed an application for
condonation, for the late noting of the application for review, on 23
June 2017 and that the former application was still pending. He later
contradicted himself by stating that the application for review had
been amended by consent and therefore did not require any
condonation. All of these claims were categorically refuted by Mr
Chimhiti,
for the respondents. To further compound the matter, none of the
documents relied upon by Mr Mugiya
to support his contentions formed part of the record before us.
Mr Mugiya
eventually sought an order striking the matter off the roll with a
tender of wasted costs. Mr Chimhiti,
on the other hand, sought the dismissal of the matter with costs.
In our view, there was no review
properly pending before the High Court at the time that the urgent
chamber application was heard and determined by the court a
quo. Therefore, the
entire proceedings before the court a
quo were premised on
an erroneous factual background. Consequently and by the same token,
the present appeal was also predicated on the same erroneous set of
facts. In the result, we are of the unanimous view that the appeal,
having been lodged on an improper footing, should be dismissed rather
than being struck off the roll.
It is accordingly ordered that
the appeal be and is hereby dismissed with costs.
BHUNU JA: I agree.
BERE JA: I agree.
Mugiya & Macharaga Law Chambers, appellant's
legal practitioners
Civil Division of the Attorney-General's Office,
respondents' legal practitioners
