Republic vs Shaban Madua

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SUMBAWANGA DISTRICT REGISTRY

AT SUMBAWANGA

CRIMINAL JURISDICTION

SITTING AT MPANDA CRIMINAL SESSION NO. 40 OF 2017 REPUBLIC ’’Hi. VERSUS % 1. SHABAN MADUA ft 2. JUMANNE SHABANI 3. SHABANI JUMA 14/5/2024-15/7/2024 'ft * 'ft ’ft ruling MWENEMPAZI, Ji- -1ft t. The accused persons named herein were arraigned and charged in this court for the offence of murder contrary to section 196 of the Penal Code, [Cap. 16 R.E.20O2, now R.E.2022]. It was alleged that on the 26th day of January, 2015 at Kambuzi Halt Village, within the District of Miele in Katavi Region, the accused murdered John Ntaja who was a nightwatchman at Kambuzi Halt Village Dispensary. Upon hearing the accused persons in a full trial, this i Court convicted them of the offence of Murder and subsequently sentenced them to the mandatory sentence of death by hanging. The case went to the court of appeal where the court ordered for a retrial. The order was issued by the Court of Appeal of Tanzania sitting at Sumbwawanga on the 5th day of October, 2023. Pursuant to that order the Deputy Registrar of the High Court- Sumbawahga Registry scheduled this case for hearing at the Criminal Session which bwas held at Mpanda commencing on the 14th day of April, 2024. The hearing of the case against r ; ' N.’c' ' ’’ V -.-Vc I- ’y.- ■ the accused persons was scheduledfor hearing bn the 18th day of April, 2024. On the day the prosecution, which was being handled by Ms. Flavia w ??l .? W Shiyo, learned

State Attorney prayed for adjournment of the hearing on the reasons that 'some of the exhibits have not yet been recovered'. The case was adjourned to 22/04/2024, 23/4/2024,10/5/2024 and 14/5/2024. On this last date, when the counsel for the Republic prayed for adjournment to another date so that they work on the exhibits and be allowed to call Witnesses on the date scheduled for hearing, the defence counsel Ms. Pendovera Nyanza, learned advocate objected to the prayer adjournment. 2 Ms. Pendoveera Nyanza, learned Advocate and Defence Counsel in this case gave the reason for adjournment that to take regard that this session was scheduled since 18/04/2024 for hearing expecting the case to be heard for two days. Due to reasons which was beyond resolve at the time, it was adjourned up to 22/04/2024 for hearing. On that date the Republic prayed for adjournment up to 23/04/2024 for hearing.;On the 23/04/2024, the Republic were not able to proceed, they prayed to adjourn up to 10/05/2024 for hearing. On the date again they could not proceed .and the matter was scheduled today, believing that this will be the date hearing will proceed. The fact that today the Republic is unable to proceed shows that the Republic have been overwhelmed to proceed With prosecution of the case. The counsel submitted that this is a normal thing for the prosecution to fail in prosecuting their cases. z As

it is in other case, the remedy for failure to prosecute the case is not to adjourn, the remedy is to withdraw the charge and allow the accused to be discharged. That is the position from other decided cases. A similar position was held in the case of DPP Vs« Haji Nyenje Kanyeluie and 3 Others, High Court of Tanzania at Songea, (Criminal Appeal No. 13 of 2022) in which 3 starting with page 5, last paragraph, the case refers to the case of DPP Vs. Martin Nguma and Others in which again the case of DPP Vs. Yahasa Upanga and Another [1983] TLR151. AH cases had one stand that the court has power to agree or deny prayer to adjourn as it has inherent powers to control its proceedings. ’V-? J- ■•jS-,- That has been brought by the common law.^VTh&.courtThas power to discharge and dismiss by exercising inherent powers provided it will be done in regard to the dictates of justice. The counsel submitted that at page three of the case, paragraph 3 refers to section 225(5) of the Criminal Procedure Act; [Cap 20 R.E 2022] whereby in .w-vy.- that section it shows that where the prosecution has failed to proceed with ■jjT the hearing of the case, this court has power to discharge the accused and the same can be done in the manner in which the prosecution cannot refile ■.a ' /if-!' the charge based on the same offence. In the same case, DPP Vs. Haji Nyenje Kenyelule, the court continued by

concurring with the decisions in other cases as we have seen by relying on the section 255(5) of the Criminal Procedure Act because the prosecution evidence was flimsy. 4 Although the Republic has shown reasons that the adjournment is due to the letter which was written to ask for the exhibit, that makes the evidence on the side of the Republic is not only flimsy but the reasons are intended to abuse the court process which will prejudice the accused persons, In the submission the counsel stated that, the Republic has been adjourning the case all the time; if you refer the case of DPP Vs. Joseph Mseti @ Super Ding! and Others, Criminal Appeal No. 549; pf 2019, the court had the same position as the above referred cases andadded that: "''■IL 'If the adjournments are many by theRepubiic, then the best way is to use inherent powers to dismiss the charge and discharge the respondents/' Where in the same case; three judges of the court of appeal met with similar situation of several adjournments by the prosecution and opined that the best way of dealing with the situation is not to adjourn but the court to use inherent powers by dismissing the charge and discharging the accused persons. The counsel for the defendant therefore prayed that the prayer to adjourn should not be admitted and this court should borrow the reasoning from the 5 referred decisions and be pleased to dismiss

charges and discharge all the accused persons. The counsel rested her case on behalf of the defendants. The Republic was being represented by Ms. Flavia Shiyo, learned State Attorney. She informed this court that she has a short rejoinder. She submitted that this case has been scheduled for this session for the first time. It has not been adjourned five times. Also, inregard to the submission that the Respondent has failed to prosecute the case, it is not true. The Republic brought five (5) witnesses and the said witnesses could not proceed to testify due to procedures which had to be followed. The prosecution had to obtain exhibits from the court so that the case could proceed with hearing. Up until today on 14/05/2024 that is when the prosecution has been able to receive the reply so that the prosecution can see the way forward depending on the response from Deputy Registrar the High court. The counsel stated that she has gone through the referred cases, both cases are incompatible to what the defence counsel has submitted to this court. In the case of DPP Vs. Haji Nyehje Kenyelule (supra) the Republic failed to bring witnesses for hearing. 6 The defence has prayed that this court discharge the accused person under section 255(5) of Criminal Procedure Act. The section cannot be used by this court. Also, the reasons the referred case is inapplicable to dismiss the present case

because the reasons for adjourning the present case are genuine. In the second case DPP Vs. Joseph Mseti and Others (supra). The case was adjourned several times and the evidence tendered was flimsy. The reasons are not compatible to our case. The Republic has never failed to prosecute the case; the same will be prosecuted on the scheduled date and she prayed that this court should take note that a person's life got lost. I have heard the submissions made by both parties to the case; that is the defence who have initiated the motion to indulge this court to exercise its inherent its powers to dismiss the charge against the accused persons and the prayer by the-prosecution that this court should grant the prayer for adjournment to allow them recover the exhibits necessary to prosecute the case. Atthe center of the case, it is the accusation that the accused persons did murder a person known by the name JOHN S/O NTAJA. They were prosecuted and convicted only the case to be ordered to be taken to the 7 High Court for retrial. That is based legal faults discovered by the court of appeal and had to be rectified by retrial. Since the case has been adjourned several times during the criminal session, the counsel for the defence has argued that the prosecution has been overwhelmed to proceed with prosecution of the case.'That is a failure and she has called upon the prosecution to

remedy the situation by withdrawing the charges and allow the accused to be discharged, for the point, the counsel for the defence has citedthecaseof Director of Public Prosecution vs. Haji Nypfije kanyelule and 3 othersf High Court of Tanzania at Songea(Criminal Appeal No: 13 of 2022). The key point introduced here is that this Court has/power to agree or deny prayer to adjourn as it has inherent powers to control its proceedings. In their prayer, • -JJ. AC> '•.'4•,>•'• the prosecution has prayed that they need time to obtain exhibits from the court so that the case could proceed with hearing. I have no dispute with the prayer by the defence that they would like to see i justice being dispensed in a speedy way and or without unreasonable delay. That is in conflict with the prosecution who are recollecting the exhibits in 8 order to prosecute the case. I refrain to act as asked by the defence counsel to invoke inherent powers of this court and discharge the accused persons. I understand a speedy trial is essential, but not at the expense of a fair one. Due process requires that legal matters be resolved according to established rules and principles, ensuring fairness for individuals^: In this case both parties must be able to see justice being done and my duty under the circumstances is to make sure a balance is struck between the needs of opposing interests. Under the

circumstances, I call upon the prosecution to seriously work on collecting the exhibits as prayed and be proactive to inform the Deputy Registrar of the High Court on their position so that the case is heard expeditiously. Otherwise, the Deputy Registrar is directed to schedule this case for hearing in the next session so that the case is disposed timely. It is ordered accordingly. ' •' ''r Dated and signed at Sumbawanga this 15th day of July, 2024 T.M. MWENEMPAZI

JUDGE 9 Ruling delivered virtually State Attorney, Ms. Flavia Shiyo and the accused persons being at Resident Magistrate Court Mpanda and the presiding judge being a the judges chamber High Court Sumbawanga. 10