Court name
High Court of Tanzania

Magesa S/O Mjunja vs Republic () [1986] TZHC 28 (12 December 1986);

Law report citations
1986 TLR 10 (TZHC)
Media neutral citation
[1986] TZHC 28

Mwalusanya, J. The appellant Magesa Andrea s/o Mjunja was charged and convicted under s.  B 25(2) of the Pharmacy and Poison Ordinance Cap. 416 for being in unlawful possession of Part I poison. He was sentenced to three years imprisonment. He is now appealing against conviction and sentence. Apparently the learned  C District Magistrate of Ukerewe District is not yet aware that the statute under which the appellant was charged has been repealed by the Pharmaceutical and Poisons Act. No. 9 of 1978. And so the immediate issue is whether the conviction under the repealed statute is curable. In a similar quandary in the case of Omari Said v R. [1972] H.C.D n. 183 Mfalila J. held that the irregularity was curable. In fact he was echoing the ruling of the Court of Appeal for Eastern Africa in th  D e case of Matu s/o Gichuma v R. (1951) 18 E.A.C.A. 311 where it was held that such irregularity is curable if the repealed section is re-enacted in identical words in the current statute such that it cannot be said that the accused has in   E anyway been prejudiced by the irregularity. Following that respectable authority I find that the offence with which appellant was charged has been re-enacted in identical words under s. 37(1) of the new statute. In the circumstances the appellant could not have been prejudiced by the irregularity. In other words the irregularity is curable. F
The next important question to explore is whether chloroquine injection is in the list of Part I poisons. At the trial there was a report (Exh. P4) by one Dr. Led Nyerembe to the effect that chloroquine injection was Part I poison. In order to satisfy my curiosity I began to scan the Poisons List (Declaration) Order GN.22/1980 to see if in that long list there is a  G name of chloroquine injection. I could not see chloroquine injection in the list. But I saw chloroquine (natural salts of chloroquine and chiniofon) in the list.
It is significant to note that the doctor was not called at the trial as a witness, perhaps if he had been called he would have clarified to us laymen whether chloroquine injection is the same thing as chloroquinate. Without that evidence I am not  H prepared to so hold. It is also significant to note that under the repealed statute, chloroquinate was not in the list of Part I Poison. It does not appear that the new statute has declared the whole chloroquine to be Part I poison but that only  I chloroquinate has been so declared and that

A should be proved in court to contain natural salts of chloroquine and chiniofon. But that has not been done in this case.
Under s.60 (1) of the Pharmaceutical and Poisons Act No.9 of 1978 a certificate by a Government Analyst that a certain substance is Part I Poison is final. However the doctor in this case Dr. Led Nyerembe is not a government analyst as it  B does not appear in any government gazette that he has been so appointed by the Minister of Health. Therefore the medical report of an ordinary doctor is not final as to whether a substance is Part I poison although of course it is entitled to some respect.
C In the event I need not go into detail as to whether appellant was found with the chloroquine injection bottles or not. However I might observe in passing that evidence was overwhelming indeed that he was so found.
Consequently I am constrained to allow the appeal. I quash the conviction and set aside the sentence. The appellant   D should be released forthwith unless held for any other offence.
Order accordingly. E

F