Category: Justice

{HIGH Court has dismissed grounds of objections by the Contractors’ Registration Board (CRB) Chairperson, Consolata Ngimbwa and four other defendants to challenge the suit lodged by Commercial Bank of Africa (Tanzania) Limited for repayment of 885m/- loan facility.}

Judge Eliezer Feleshi ruled against the defendants, including VC Tanzania Limited, Christom Ngimbwa Sebastian, Sherekwa Ngimbwa and Sherekwa Katisha, holding that the grounds presented were misconceived, with some being not pure points of law.

The defendants have denied the bank’s claims, arguing that it has no cause of action against Christom Ngimbwa Sebastian, Sherekwa Ngimbwa and Sherekwa Katisha while the suit was bad in law. The defendants further claimed that the case was bad in law for being preferred under the wrong name of the company and under nonexisting contracts in addition to suing Sherekwa Ngimbwa and Sherekwa Katisha, the one person, as two different people.

In his ruling, the trial judge upheld the impropriety of the suit before the court, saying the pleadings were clear and that the controversy was in respect of unpaid loan facilities and not in respect of land.

“The fact that landed properties were pledged as security cannot be said to have rendered the matter a land suit. Thus, that point has been misconceived and is hereby overruled,” the judge said. In respect of other remaining grounds, Judge Feleshi pointed out that thorough scrutiny reveals that the same covers mixed points of fact and law which could not safely be determined at this stage by preliminary objection, for they were not pure points of law.

“From all the above, all the sets of preliminary points of objection are not worth objection in the strict sense and in the precepts of the law, they are hereby overruled,” the judge declared.

On August 26, 2010, VC Tanzania Limited, which was trading as Electric International Company Limited, applied for and the bank duly approved facilities whereas Christom Ngimbwa Sebastian executed as security a property on Plot No. 228 at Jangwani Beach area in Kinondoni Municipality.

It is alleged that the bank advanced in terms of Bid Security 171m/- to enable the company undertake certain construction works with respect of New Matemwe and Mwande Secondary and extension of Chaani Secondary school. The security was valid for a six-month period.

{Two poachers, Gidamis Giyamu, alias Hamis, and Petro Kilo, alias Kinangai and Nanga, have been sentenced to a total of 40 years or pay a fine of over 900m/- for being found with four pieces of elephant tusks without a permit.}

Resident Magistrate Ally Mkama, sitting before the Karatu District Court, convicted the two accused persons in two separate cases they were facing after being satisfied by the evidence produced by prosecution witnesses. State Attorney Felix Kwetukia, for the prosecution, had called five witnesses in each case to prove the charge against the two convicts.

He also tendered several exhibits, including the certificates of seizure, trophy valuation certificate, detention register and the elephant tusks. Both convicts opted to go to jail having failed to pay the fine.escape the custodial sentence of 20 years, while Kilo had to pay 290,172,000/- if he was to avoid the same jail term.

During the trial, the prosecution had told the court that Giyamu committed the offence on December 23, 2012, at Oldean area within Karatu District, where he was found in unlawful possession of two pieces of elephant tusks weighing 70kg, valued at 60,791,500/-, property of the government.

The court heard that on December 23, 2012, a complainant, one Cosmas Kireti, who is a conservator from Ngorongoro Conservation Area Authority (NCAA), and his team found one dead elephant with its tusks removed or taken away at Lake Manyara National Park. Upon finding the said elephant carcass with tusks removed and getting information that there were some people transporting elephant tusks, the conservator and other officers laid a trap at Oldean area near Darajani within the district and saw the accused person carrying a loaded ‘salfeti’ bag.

The accused person was ordered to stop and on being searched was found with two elephant tusks. He was asked if he had any licence allowing him to possess such government trophies, but he had none. He was subsequently arrested and charged with economic sabotage.

On part of Kilo, the prosecution had told the court that he committed the offence on January 11, 2013 at Lake Manyara National Park within Karatu District, where he was found with two pieces of elephant tusks weighing 34kg valued at 29,172,000/-, the property of the government.

It was alleged that on the material day, while some officers of the national park were on patrol, they saw four people with some luggage and ordered them to stop.

But they disobeyed the order and instead and started to run away. The officers pursed them and managed to arrest the accused person, who was found with the two pieces of elephant tusks.

When asked whether he had any license allowing him to possess such trophies, the accused had none. He was arrested and taken to the police before being arraigned.

{The private criminal proceedings were instituted in Makindye Chief magistrate’s Court by two law firms Lukwago & Co Advocates and Namugali & Walyemera Co Advocates on Thursday.}

Court has sanctioned criminal summons to the Inspector General of Police, Gen Kale Kayihura, and other senior officers over the police brutality against civilians and supporters of Opposition leader Dr Kizza Besigye.

The summons are a result of criminal proceedings filed against Gen Kayihura and other senior police officers by private lawyers under a private prosecution process.
The private criminal proceedings were instituted in Makindye Chief magistrate’s Court by two law firms Lukwago & Co Advocates and Namugali & Walyemera Co Advocates on Thursday.

The law firms are part of the civil political rights working group comprised of individual lawyers, law firms and civil society, whose objective is to handle public interest cases on behalf of aggrieved poor and ignorant public.

According to the charge sheet the Sunday Monitor has seen, the eight implicated senior police officers are indicted with the offence of torture contrary to sections 4, 7, 8, 9 and 10 of the Prevention and Prohibition of Torture Act, 2012.

The other police officers facing private criminal prosecution are; Andrew Kaggwa (Kampala South Regional commander), James Ruhweza (head of operations, Kampala Metropolitan), Samuel Bamuziibire, (Kampala Metropolitan Field Force Unit commander), Patrick Muhumuza, (operations commander of Field Force Unit, Kampala Metropolitan South), Wesley Nganizi, (Regional police commander, Kampala North), Geoffrey Kaheebwa (Deputy Regional Police Commander, Kampala South) and Moses Nanoka (Wandegeya Division police commander).

By Friday evening, the case file had been received by Makindye Chief Magistrate’s Court and criminal summons to Kayihura and his senior officers had been signed for them to appear before the court but the date for appearance was not readily set.

However, by close of court business on Friday, court had not yet fixed the hearing date for the application that is required to allow private lawyers to prosecute a criminal matter.

Normally, prosecution of criminal matters is the mandate of the Director of Public Prosecutions.

According to the charge sheet, it’s alleged that Gen Kayihura and his aforementioned senior officers and other police commanders still at large, being superior officers of the Uganda Police Force, in various places in and around Kampala, between 2011 and 2016 but most notably on 13/07/2016 and 14/07/2016, are liable for the acts of torture committed against Joseph Kaddu, Andrew Ssebitosi, Rogers Ddiba, and other members of the general public including boda boda riders and supporters of Dr Besigye.

The common practice in privately instituted criminal proceedings is that the Director of Public Prosecutions (DPP) who is mandated to prosecute all criminal cases in the country, invokes Article 120 of the Constitution to take over the such proceedings.

The private criminal proceedings followed another move by two victims of the same police brutality at Busabala Road junction who instituted civil proceedings against Gen Kayihura and majority of the implicated senior commanders.
The two victims, Mr Ronald Muhereza and Mr Michael Nyesiga, are seeking compensation of Shs50m each for torture, loss of their bikes, work and being humiliated.

This week, some of the officers and commanders named above and other junior officers were arraigned in the police disciplinary court at Naguru and charged with use of excessive force in dispersing Dr Besigye’s supporters in Najjanankumbi and Kalerwe on separate incidents between July 12 and July 13.

{{Kayihura applauds beatings}}

On July 13 police besieged boda boda riders at Busabala Road junction in Najjanankumbi before they descended on them and beat them up with sticks similar to the ones used to herd cattle.

The cyclists were following Dr Besigye who was heading to his FDC party headquarters in Najjanankumbi, a day after he was released on bail in the treason case.

Gen Kayihura later publicly applauded the officers for the beatings. He particularly applauded Mr Kaggwa and his team for stopping the crowds from ‘spilling over’ to the busy Kampala-Entebbe highway to disrupt traffic.

Gen Kayihura further revealed that the caning of curious supporters of Dr Besigye had been sanctioned by the police management as a replacement for tear gas and bullets to disperse crowds.

In in a special sitting on Thursday, Parliament saw both the Opposition and ruling party MPs condemn the police brutality against civilians and Besigye supporters.

{They maybe both out of their Arusha-based offices, but this hasn’t stopped the former Speaker of the East African Legislative Assembly and the just-retired Secretary General of the East African Community to hound each other in legal corridors.}

The East African Court of Justice will hold an extraordinary session from Monday to July 29 to hear oral evidence in a case filed on December 10, 2014, by the impeached former EALA Speaker, Dr Margaret Zziwa, against the former EAC Secretary-General, Dr Richard Sezibera.

In the case, the former EALA Speaker is complaining against certain actions and decisions of the East African Legislative Assembly and its Committee on Legal Rules and Privileges which pertained to investigations against her and consequential impeachment motion.

Hearing of the case could not take off in September 2015 because of a preliminary objection raised by the then Secretary General on grounds that the applicant and her witnesses could not give oral evidence without special leave of the Assembly under section 20(1) of the Privileges Act.

The First Instance Division of the Court by its ruling of 6th November, 2015 overruled the Preliminary objection on ground that it was not open to it to find that the evidence that Honourable Zziwa and her witnesses would adduce would be an affront to Section 20 of the Privileges Act, without first hearing them.

The Secretary General being dissatisfied by the said ruling appealed to the Appellate Division of the Court which by its ruling of May 27, 2016, dismissed the Appeal and found that the First Instance Division did not commit any error of law in arriving at its conclusion.

On June 24, 2016, the First Instance Division dismissed Margaret Zziwa’s application to have the Court issue her and her witnesses Witness Summons to attend court and give evidence and/or produce documents.

The court held that the applicant and her witnesses had voluntarily chosen to give evidence in support of the case and therefore do not require summons to attend Court.

On whether the Applicant and her witnesses can lawfully be compelled to produce documents within the purview of Section 20 of the EALA (Powers and Privileges) Act 2003, the Court held that even if it could issue summons to voluntary witnesses, the summons cannot be used to circumvent, defeat or act as an appeal or review of the Assembly’s decision made under Section 20 rejecting her application to have the witnesses testify and produce certain documents.

{The Judiciary has decided to engage all legal stakeholders to provide their views on the best way under which the High Court’s Economic, Corruption and Organised Crime Division would operate, the Chief Justice, Mr Mohamed Chande Othman, has said.}

Opening the Seventh Annual General Meeting of the Tanzania Institute of Arbitrators (TIA) in Dar es Salaam yesterday, Mr Othman disclosed that preparations for the establishment of the special division of the court were at an advanced stage.

“As you know, the National Assembly has already passed the bill establishing the special court dealing with economic crime and corruption cases in the country. Therefore, the president will anytime from now assent to the bill to become law,” he said.

On the part of the judiciary, the chief justice reported that they have already presented the first draft of the rules and regulations that would regulate the operation of the court to all legal stakeholders so that they can provide their opinions and views on the best way regarding the conduct of the proceedings before the court.

“I think after two weeks we’ll be in a better position to proceed with this matter. We want to see that the intention of establishing the court is achieved to the required standard. That is why we want all stakeholders to be involved,” he remarked.

Earlier, the Chairman of the Tanzania Institute of Arbitrators, Engineer Kesogukewele Msita, briefed the chief justice on the historical background of the institution and the way it was operating in the country.

He said that in 1995, he said, the National Construction Council (NCC) consulted the Attorney General’s Chambers and the Tanganyika Law Society regarding the establishment of a multi-sectoral and commercial arbitration institution.

Originally, NCC had been resolving construction– related disputes only. However, according to him, NCC saw the importance of spearheading the establishment of an institutional framework for resolving not only construction related disputes but also other types of commercial disputes.

Eng. Msita said, therefore, that on July 6, 1995, the NCC had organised a brainstorming meeting involving 20 invitees, which subsequently formed the steering committee, to develop a framework for the settlement of all types of commercial disputes.

The steering committee, he said, prepared a draft constitution, which was reviewed by the first General Meeting held on October 25, 1995, as the guiding framework of a new arbitration organisation. On July 15, 1997, the Tanzania Institute of Arbitrators was registered by the Registrar of Societies.

He told the head of the judiciary that two years later, on December 10, 1999, the Tanzania Institute of Arbitrators was formally launched by the then Chief Justice, Mr Francis Nyalali. Currently, the Institute has 168 members, comprising mainly lawyers, engineers, architects and quantity surveyors.

The main function of TIA is to promote and facilitate the expedient resolution of commercial disputes in Tanzania through arbitration and other alternative dispute resolution mechanisms.

{Four police officers who are alleged to have beaten up supporters of Opposition leader, Dr Kizza Besigye, last week, have been charged in the police court with unlawful exercise of authority and discreditable conduct.}

The officers who appeared at the Naguru-based police court are; Wandegeya Division Police commander Mr Moses Nanoka; Field Force Unit Commander for Kampala Metropolitan Police, Mr Samuel Bamuzibire; Kampala Metropolitan Police South Commander, Mr Andrew Kaggwa; and Katwe Police Station Operations Commander, Mr Patrick Muhumuza.
All the officers entered a plea of not guilty and they were allowed to be released on police bond.

On procedure of court, the chairman Mr Denis Odongpiny said the accused officers will not be allowed representation by any attorney.

“This is an administrative court so you are not allowed legal representations, prepare your own defence,” he said.

Mr Kaggwa, Mr Bamuzibire and Mr Muhumuza were charged with unnecessary exercise of authority and engaging in events that brought discredit to the reputation of the police force by beating Besigye’s supporters at a junction near Namasole Road in Najjanankumbi.

While Mr Nanoka charged with the same offences that were done at Kalerwe, he however claimed not to understand the charges.
It is alleged that the accused acted contrary to Section 44 (11) code 24b of the Police Act that prohibits unlawful exercise of authority. They are also accused of violating Section 44(1) code 12 of the Police Act that prohibits discreditable or irregular conduct.

The punishments for each of the two charges range from demotion and imprisonment in police custody to dismissal. All the suspects pleaded not guilty, before court was adjourned to Monday July 25 at 2pm for hearing.

On Monday, five police constables and a crime preventer Mr Dan Tandeka, a former guard in Iraq were charged with the same offences when under the command of a senior police officer, they allegedly beat up civilians, who were cheering Dr Besigye after release from Luzira on treason charges.