20140918 TZCA Dar es Salaam

---~ IN THE COURT OF APPEAL OF TANZANIA I l T ..DAR 'E·S , SALtAM ~-- - - CRIMl~AL APPEAL NO. 354 OF 2009 . .· ,. ~ (CORAM: KIMARO, J.A., MJASIRI, J.A. And MASSATI, J.A.) SAAD OMAR SAAD @ MATEO ........................ :........ APPELLANT • VERSUS THE REPUBLIC ................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania At Dar es Salaam) (Shaidi, J.) Dated 18th day of August, 2009 in Criminal Case No. 94 of 2007 JUDGMENT OF THE COURT 16th September & 10th October, 2014 MASSATI, J.A.: i The appellant was charged with and convicted of the offence of armed robbery by the Court of the Resident Magistrate of Dar es Salaam .. at ,Kisutu on 17th April, 2007. It was alleged there, that, on the 23 rd day of November, 2000, at Undali Street, Upanga, in Ilala District, Dar es Salaam Region, he forcefully stole one motor vehicle with Registration No. TZN 8144 Make Toyota Corolla, valued at Tshs. 4,000,000/= the property of one SARFARAZ IBRAHIM BORA by pointing a pistol to ·• one HAMZA ANNULD. He unsuccessfully appealed to thecHigh Court . . · .... and has now knocked the doors to this Court, to protest his innocence . 1 .•, ., . .._. "',:} Af th~ hearing .of the:-appeai, the appellant appeared in perso·n .. ···· to agitate his six grounds of appeal. Mr. Mutalemwa Kishenyi, learned ., State Attorney appeared ·for the respondent/Republic. The main issue that has to be decided in this appeal is whether or not the trial of the appellant was lawful. This arises from the appellant's fourth ground of appeal which reads as follows: "That the learned appellant (sic) Judge grossly effed (erred) in law by sustaining conviction and sentence on to the appellant in a case which was not properly constituted as it· were partly presided over by a District Magistrate in a (RM's) Court contrary to Section 6(1) (c) of the Magistrates Court Act 1984'~ Conceding to this ground of appeal, Mr. Kishenyi, submitted that since the charge was_ filed in the Resident Magistrate's Court at Kisutu, it'was wrong for Mrs. Chande, District Magistrate, to preside over, conduct a preliminary hearing (and take a plea) and take the testimony of 3 prosecution witnesses, before the case was passed over to Mingi SRM and Mwankenja Resident Magistrate for :, c9ntinued hearing and composition of the judgment respectively. This was contrary to section 6 (1) (c) of the Magistrate Court's Act. ·. Therefore the trial was a nullity, and so were the proceedings and judgment of the first appellate court he argued. He therefore prayed 2 i ✓ to~.this Court, to qua_sh those proceedings . -and··iea'{e· -:.-it toithe '. : ,,. ' ' . .... . . . Director of Public ,Prosecutions to decide over whether or not to reinstitute the proceedings against the appellant. The learned counsel referred us to the unreported decision of this Court in THE DPP V OWDEN KASANJA AND OTHERS (Criminal Appeal No. 305 of 2009) for inspiration. On his part the appellant agreed with the respondent/Republic that on account of the irregularly in procedure, the trial was a nullity but argued that there was no sufficient evidence on record at present to secure a conviction on retrial. So he urged us not to order a retrial. The jurisdiction of magistrates' courts and magistrates in Tanzania, is governed by sections 5 and 6 of the Magistrates' Courts Act (Cap 11 R.E. 2002). The constitution of the various designations of magistrate's courts is set out in section 6(1). Section 6(1) (b) and (c) are relevant to District Courts and Courts of Resident Magistrates. They are set out below:- 6. (1) Subject to the provisions of section 7, a magistrate's court shall be duly constituted when held by a single magistrate/ being- (a) In the case of a primary court a primary court magistrate; 3 .- . . (b) In"tlie .-case rJ(i(qistnct . ?;, - court a district magistrate; or a resident magistrate, (c) In the case of a court of a resident· . magistrate, a resident magistrate. On the strength of this wording it has been 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. Otherwise, the court would not be duly constituted, within the meaning of section 6(1) (c) of the Magistrates Courts Act, 1984. (See WILLIAM RAJABU MALLYA AND TWO OTHERS v REPUBLIC (1991) TLR.) In the present case, the charge was designated for the Court of - the Resident Magistrates of Dar es Salaam at Kisutu. So it could only be -tried by a Resident Magistrate. Although Mrs~ Chande, District Magistrate had substantive jurisdiction over the offence and could hear it, she could not do so in this case as she had nq jurisdiction to sit in a Resident Magistrate's Court. So, all the proceedings she conducted including the taking of the testimonies of PWl, PW2 and. PW3 were a nullity as the court was not duly constituted. , : ·:· - Consequently, although the subsequent proceedings were conducted 4 • • by Resident'. Magistrates, they-would also be·\iit1ated as long· as .they · . . rested 011; the wrong .assumption that the evidence of PWl, PW2 and PW3 was~properly t_aken, and could be acted upon. Similarly, the proceedings and judgment of the High Court on first appeal cannot be, spared. Since part of the proceedings in the trial court were a nullity, there was no judgment and therefore _no conviction to uphold. The High Court proceedings and judgment were also a nullity. Accordingly, all the proceedings and judgments of the courts below are hereby quashed and the sentence set aside. The· next question is what is the way forward? Mr. Kishenyi has agitated that we leave it to the discretion of the Director of Public Prosecutions (DPP) to decide what to do. The appella.nt however is the view that since the evidence on record is discrepant, there be no order for retrial. As this Court said in THE DPP V OWDEN KASANJA AND OTHERS (supra) .in deciding whether·· or not to order a retrial both the appellanfs and public interests have to be considered guided by the overriding . interests of justice. (See FATEHALI MANJI v REPUBLIC (1966) E.A. 344.) But as in the case of the DPP v OWDEN KASANJA AND OTHERS, we also believe that in this case, the OPP is better placed to decide whether or not to 5 ·reinstitute tt}e· e~oc:eedings againstthe appellant. VVe have two reasons . - for holding so. Firstly, the DPP is practi~ally in command of real situation .,, on the ground in terms of availability of witnesses, and· evidence generally to justify a retrial. Secondly, in deciding one way or the other, the DPP is constitutionally enjoined to be guided by the principles of interests of justice, prevention of abuse of process and public interest which are now enshrined in Article 59B (4) of the Constitution of the United Republic of Tanzania 1977. We therefore allow this appeal to the extent shown above. We quash all proceedings of the lower courts, and the subsequent conviction and set aside the sentence. We direct that the appellant be . released from prison forthwith, unless he is otherwise lawfully held. However we leave it to the wisdom .of the DPP to decide whether or not to reinstitute proceedings against the appellant DATED at DAR ES SALAAM this 18th day of September, 2014. N. P.KIMARO JUSTICE OF APPEAL . S. MJASIRI JUSTICE OF APPEAL 6 . · ... •. :·•. ·']. . • S. A. MA9SATI OF A'PPEAC· )r•,. . ' JUSTICE I certify that this is < tr r; 7 ' .. ...... . .