20090316 TZHC Dar es Salaam 1

F - IN THE COURT OF APPEAL OF TANZANIA ATDARESSALAAM (CORAM: RUTAKANGWA, J.A., MBAROUK, J.A., And LUANDA, J.A.) CRIMINAL APPEAL NO. 25 OF 2006 MWINULA KASSIMU @ MAISHA ] ADORICK REVOCATUS ] ...........................APPELLANTS VERSUS THE REPUBLIC ...........................................................RESPONDENI '(Appeal from the decision of the High Court of Tanzania at Dar es Salaam) . . (Mihayo,i) dated the 22 nd day of September, 2005 in HC. Criminal Appeal No. 64 of 2003 -------------- JUDGMENT OF THE COURT 4&25 March 2009 MBAROUK,J.A.: The appellants were jointly charged with the offence of robbery contrary to Sections 285 and 286 of the Penal Code in Criminal Case No: 156 of 2001 at the Resident Magistrate Court, Kisutu, Dar es Saiaam.. They Were convicted and sentenced to thirty (30) years imprisonment by the Senior District Magistrate (E. Mafuru). Being aggrieved, the appellants appealed to the High Court where it was • -• V 2 dismissed. Still believing to be innocent, this . appeal has been preferred. . In this appea', the appellants were unrepresented, whereas Mr. Kameya, the learned Senior State Atlorney, appeared for the respondent Republic. - CT The appellants preferred a joint memorandum of appeal containing ten grounds of appeal which can conveniently be summarized into five namely:- 1. That, the Honourable High Court Judge and the trial magistrate erred in law in grounding conviction based on •1 identification without description of the robbers advanced by the prosecution to. prove the purported identification of the appellants. - 3 2. That, the High Court Judge and the trial magistrate erred in law. by accepting the evidence adduced by PW1 who relied' on dock identification. 3; That, the High Court Judge and the trial magistrate erred in law and fact when he convicted the appellants relying on the evidence of a single witness without corroboration. That,. the High Court Judge and the trial magistrate erred in law and fact when he convicted the appellants on the weakness of the defence. That, the High Court Judge and the trial magistrate erred in law: and fact when he cOnvicted the appellants while the prosecution failed to call .the doctor who cured PW1 (complainant). At the hearing of the appeal, the appellants had nothing to add apart from what they have stated in their memorandum of appeal, understandably, so because they are unrepresented. I. 16 4 On his part, the learned Senior State Attorney for the respondent Republic, raised a very important point of law that, after going through the record and the memorandum of appeal, he has found out that the record is incompetent. He submitted that the case was filed at the Resident Magistrate's Court at Kisutu, Dar es Salaam. However, he said that, the Senior District Magistrate E. Mafuru conducted the proceedings and later wrote and delivered his judgment on 25.3.2003. Mr. Kameya, urged us to nullify the proceedings of the trial court and those before High Court. He said under Section 6 (1) (c) of the Magistrates Court Act, 1984 the proper magistrate for cases filed at the Resident Magistrates Court is Resident Magistrate and not District Magistrate as in this case. Mr. Kameya further submitted by reminding us that, even if the proceedings before the Senior District Magistrate were a nullity, but the charge against the appellants remains intact. In the circumstances, he urged us to nullify the trial courts' proceedings and 11 5 leave it to the DPP to consider whether to withdraw the charge or not. Without further ado, we think the learned Senior State Attorney for the respondent Republic correctly reminded us on this important point of law. Section 6 (1) (c) of the Magistrates Court Act, 1984 clearly states that:- 6 - (1) subject to the provisions of section 7, a Magistrates' Court shall be duly constituted when held by a single magistrate, being - • (c) in the case of a Court of a resident • magistrate, a resident magistrate". The general interpretation of the above referred provision is that when a case is filed and designated to a particular court, there should be no other member of another court accept the member of the designated court who should hear that case. This Court in the case of William Rajabu Mallya and Two Others v. Republic [1991] TLR 83 held that: "If a case is designated for a particular court, then it should be heard only by a member of that court notwithstanding that a member of some other court has substantive jurisdiction over the offence and could hear it". The case before us was flied at the Resident Magistrate Court at Kisutu in Criminal Case No. 156 of 2001, however the same was conducted by the Senior District Magistrate and later delivered the judgment. This surely is in contravention with the provisions of Section 6 (1) (c) of the Magistrates Court Act. In the result, that makes the court not to be duly constituted within the meaning of Section 6 (1) (c) of the Magistrates Court Act. Again this Court in the case of Thomas Elias, Paul Peter and -TMeng'olu - Ndamuniv. Republic [1993] TLR 263 held that: 7 "The Principal District Magistrate, though in terms of jurisdiction had the power to try the case for such offence as the law stands under the Magistrates' Court Act, 1984, was not competent to sit and preside over the case in the court of the Resident Magistrate." That being the position, without going any further discussing the grounds of appeal, we agree with the learned Senior State Attorney for the respondent Republic that the proceedings which were conducted by the Senior District Magistrate before the Resident Magistrates' Court were a nullity. In the event and for the foregoing reasons, we set aside the proceedings, quash the conviction and sentence. However, having regard to the nature of the offence and the fact that the appellants have served a substantial part of their sentence since 25.3.2003, we don't think it is proper for us to order a retrial. We accordingly leave the matter to the Director of Public Prosecutions for his action. 8 • At the moment, we order the appellants to be set free unless • otherwise lawfully held in custody. DATED at DAR ES SALAAM this 16th day of March, 2009. E.M.K. RUTAKANGWA JUSTICEOF APPEAL I- M.S. MBAROUK JUSTICE OF APPEAL B.M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. - .-, 7.4 -:--.. ,... •••.. iY';• , . ......... I : ........ . •• ;: u1 i.