director of public prosecution vs kelvin stainton 2007 tzhc 147 16 may 2007

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 10 OF 2006 ORIGINAL CRIMINAL CASE N0.459 OF 2004. OF THE DISTRICT COURT OF IRINGA DISTRICT AT IRINGA (BEFORE Hon. MATOGOLO Esq. RESIDENT MAGISTRATE) DIRECTOR OF PUBLIC PROSECUTION............ APPELLANT VERSUS KELVIN STAINTON................................. RESPONDENT- RULING W erem a, 3 This appeal was filed to challenge a ruling made on 24th March 2005 by the Resident Magistrate Court of Iringa District at Iringa. That ruling was made pursuant to a preliminary point of law that was raised by Counsel to the accused, now respondent, to the effect that a charge that was lodged against him did not disclose any offence l known in law. The accused, now respondent, was charged with undertaking construction activities without using services of a registered contractor. That omission according to the charge contravened the provisions of section 22 (d) and 2(b) of the Contractors R egistration Act, [Cap 235 R.E 2002]. The Learned Resident Magistrate went further to say that he did not see any section or provision in the Act which expressly provide for criminal liability for a client who employ the contractor not legally registered. He continued to say that in his opinion it would be difficult for a client to investigate and ascertain as to who is a registered contractor and who is not if he parades himself as such. As a result of this thinking, the learned magistrate arrived at a decision that the charge preferred against Kelvin Stainton, the respondent herein, did not disclose the offence known or created by the relevant law and on that ending note upheld the preliminary point of objection and dismissed the charge. The appellant appealed to this court complaining that the learned trial resident magistrate erred in law in holding that the Contractors Registration Act only binds persons who trade as contractors while not registered and not persons who carry out construction of their own buildings or structures; and further that the legislature did not intend to bind private developers to use services of registered contractors. In this appeal they are intending to ask the Court to quash the decision and order contained in the ruling of the learned trial magistrate. Points of preliminary objections were taken against the appeal. The respondent through his advocate is of the opinion that this appeal is incompetent and improperly before the Court on account of non compliance with the provision of section 379(1) of the Crim inal Procedure Act, [Cap 20 R.E. 2002] and that it is time barred. I did allow the preliminary objection to be argued first in order to see whether or not it may defeat the need to go to the merits of the appeal. Let me first deal with the point of time limitation. The advocate for the respondent noted that the ruling being impugned was issued on 24th March 2005. This is a common ground for both parties. The appeal was filed on 4th July 2006. According to the respondent this was a span of one year and four months. It was the submission of counsel that since the appeal has taken long, the appellant ought, if he wished to rely on the exemption, to have obtained an affidavit from the court to the effect that « cobles of judgment and proceedings were yet to have been supplied to the appellant. The respondent is of the view that there is no explanation to explain the delay. The appellant on the other hand is of the view that this appeal was filed within the prescribed time. They are at one with the respondent that the ruling was read on 24/3/2005. Notice of appeal was filed on 1/4/2005. Copies of the ruling and proceedings were received by appellant on 2/6/2006 through a letter dated 25/5/2006. This appeal was filed on 4/7/2006. It is also patent from the record that the appellant had written to the Resident Magistrate In charge of Iringa District to request for the record and wrote several reminders to no avail. I am satisfied to the effect that the appellant's conduct was not dilatory. It is the court that failed to avail to them the record and failed even to acknowledge their letters. Reading sections 361(1) (b) and 379, I am satisfied that this appeal was filed within 45 days after receipt of the record. This part of the preliminary objection fails and is dismissed. ...... _ Let me turn to the second limb of the preliminary objection. It is about the incompetence of this appeal for want of an appropriate notice of appeal. The High Court is conferred with jurisdiction to hear appeals from the subordinate courts, including the District Court. The source of this power is section 370 of the Criminal Procedure Act. An appeal to this court must be initiated by the Director of Public Prosecutions. That is a mandatory requirement arising from section 379(1) upon giving notice to that effect to the subordinate court. No appeal under those sections shall be entertained unless the D irector o f P u b lic Prosecutions has given notice of his intention to appeal to the subordinate court within thirty days of the acquittal, finding, sentence or order against which he wishes to appeal. The second limb of the requirement under that section is that the DPP has to lodge his petition of appeal within forty five days from the date of such acquittal, finding, sentence or order; save that in computing the said period of forty five days the time requisite for obtaining a copy of the proceedings, judgment or order appealed against or of the record of proceedings in the case shall be excluded. The point of objection is that the person who lodged this appeal, Mr Mgayama Abdallah Matongo, was not the DPP or any other person envisaged under section 378 or 379 of the CPA. Mr Mkwata, Esq. the learned counsel for the respondent's view is that under the CPA the term Director of Public Prosecutions is defined to include any officer subordinate to him acting in accordance with his general or special instructions. According to Counsel, Mr Matongo does not ipso facto fall under officers who are subordinate to the DPP and is not a person acting either on general or special instructions. Mr Matongo is an employee of the Contractors Registration Board a regulatory body established by law, and is a public prosecutor by virtue of his appointment by the DPP to act for the Board in prosecution of offences for the breach of the Act. He is gazetted as such. 6 There is no controversy on the fact that Mr. Mgayama Abdallah Matongo was appointed by the DPP to be a public prosecutor. The DPP has powers to do so under section 95 of , the Criminal Procedure Act. The section reads:"'* ' "The D irector of Pu blic Prosecution may, by notice published in the gazette, appoint public prosecutors fo r Tanzania or fo r any specified area of Tanzania, e ith e r generally or fo r any sp ecified case or category o f cases" There is therefore no doubt that Mr. Matongo is an appointed public prosecutor and was acting as such. But the point of objection is that Mr. Matongo is not an officer who is subordinate to the DPP. In this case therefore, according to the respondent, the DPP had no interest to pursue this appeal because he did not file the notice and the notice of appeal was filed by a person who is not subordinate to the DPP. It was filed by an incompetent person in the eyes of the law. In reply, Mr. Salehe Ramadhani Njaa assisted by Ms Angela Kileo, learned State Attorney for the appellant were of the view that Mr. Matongo is subject to the DPP's directions by virtue of section 95(3) of the Criminai Procedure Act. They went on to state that having been aggrieved by the decision of the learned trial magistrate he reported to thelDPP and was directed to file a notice of appeal. On that basis, the appellant submitted that the notice of appeal was filed by a competent person actiag under the requirements of section 379(1) of the Criminal Procedure Act. I have an issue to determine out of these acrobatic legal arguments that are before me. That is whether or not the notice of appeal was filed by a competent person. That point can be sustained if Mr. Matongo was an officer subordinate to the DPP and if he was acting under the general or specific instructions of the DPP. It is an interesting issue that requires careful interpretation. It is gratifying to note that it is not a virgin area of jurisprudence. The term "D irector o f P u b lic Prosecutions" is defined in section 377 of CPA to include any officer subordinate to him acting in accordance with his general or special instructions. The problem before me arose and' was determined by the Court of Appeal in DIRECTOR OF PUBLIC PROSECUTIONS V THOMAS MOLLEL @ ASKOFU (Crim inal Appeal No. 30 o f 1998). The facts of that case are similar with facts here. In the former case, it was Regional Crimes Officer who issued notice of appeal. He was an appointed public prosecutor and gazetted. In construing section 377 of the CPA, the Court had this to say: "our construction o f th is provision is that fo r purposes o f appeals under the A ct by the D irector o f P u b lic Prosecutions, the latte r is interpreted to include a public prosecutor only if such a public prosecutor is an officer subordinate to the .Director of Pu blic Prosecutions, and is acting under his general or special instructions. For it is conceivable th at w h ile the D irector o f Public Prosecutions may have appointed public prosecutors in different m inistries, departm ents or sections throughout the country, all such appointees are not necessarily o ffice rs subordinate to him; some are subordinate to som e other o fficia ls, in w hich case in our view , they w ould not be com petent to give the re q u isite notice. In the instant case there w as no evidence to show that the RCO w ho purported to give the requisite notice w as subordinate to the D irector o f P u b lic Prosecutions. He w as therefore not the D irector o f P u b lic Prosecu tions w ith in the m eaning o f th e section, and on th a t account the High Court w as perfectly ju stifie d to hold as it did th a t th ere w as no notice given by the D irector o f P u b lic Prosecutions o f his intention to appeal" It seems to me that there are two conditions that have to be fulfilled in order for the notice of appeal to qualify as having been given by the DPP. First is that the giver must be subordinate to the DPP. Second, that giver must be acting under the general instructions of the DPP or acting under 10 special instructions of the DPP. I think, Mr. Matongo was acting under special instructions on cases involving offences created by the Contractors Registration Act and under which law the Contractors Registration Board is' established. The area is a specialised branch of construction industry which requires special skills that the office of the Director of Public Prosecutions may not have handy. His letter of appointment by the DPP directs him, in case of being dissatisfied with a decision of the Court to inform the D irector o f Public Prosecutions w ith a copy o f th e notice o f appeal fo r his further action. This is what Mr. Matongo did with that notice. But the wording of the letter of appointment is not by virtue of section 377 compliant with the law. The letter of appointment does not make Mr. Matongo to be a subordinate officer to the DPP. The requirement may defeat the purpose of having public prosecutors in technical fields of regulatory bodies like Contractors Registration Board but that is not for 11 the Courts to rectify. It is for the legislature to remove the mischief. I must note that this appeal raises issues of high public interests about the extent or scope of the Contractors Registration Act in regulating contractors and safeguarding the interests of consumers of services provided by contractors and protecting Construction Industry from people masquerading as contractors. People who take advantage of ignorance of consumers to engage in a business they have no technical expertise in and therefore putting life and limb of consumers in danger. But I am duty bound to interpret procedural law as it is. The procedural law must be followed to the letter. It was not followed in this case. I am satisfied that there are merits on the second limb of a point of preliminary objection and I will uphold it. In the upshot therefore this appeaLis incompetent before me and it is dismissed. The appellant may, if still interested to pursue this appeal follow the dictates of the law. 12 Ruling delivered on this 16th day of May, 2007 in the presence of the parties and Court Clerk F.M.Werema, ' . A JUDGE 13