19790830 TZHC Dodoma

.,' . 11/c. /rttiv r~ ··· ·. \;~- ··~ ·. '""IN THE HIGH COURT OF TA.1\J'ZANIA . ,rf~!' . ., ✓ · A: APPELL~ ::]~TION d \· ..... CRIMINAL APPE.A:t, No.215 OF 1977 _.-·- :·'# 1),/l~ina{ Cri]ilinal Case No .293 of· 1'976 of the Distr_ici; Court ~f Singida, Before F.agesa, Esq., R.M.) -. . Dm.E.CTOR OF PUBI1IC PROS:SCUT ION • • Appellant - ✓ versus . • • PETER M.AKJffiANGA ) nmOCENT NCHilIBI ) • • Respondent JOHN NOAH GUNDA ) • • • • {Orig-inal Accused) HARUN SAID BALILA) -Charge: Stealing by. servant c/s.271 and 265 of.the ·Penal Code. 2nd Count: Stealing by servant c/s.271 and 26'5 of the Penal Code.

JUDGMENT JON 1:..TH!i.N , J • In the District Court of S:i.ng:ida the .respondents were_ charged with stealing by. servant. . After the case had dragsed on for a ~~ry long time, in the end it • , was .fixed for hearing before the learned resident magistrate. • ~ , r On that da_te, however, the fourth accuse_d applied for, an .adjournment in order. to retain . ,.the services of an. . _aq,vocate,. but the court in its ruling refused the application and_ ordered the case to proceod to hearinp• Fortp..w.i:t.b.., whereupon the prosecu;tj.ng_s,;t..at.e...a;tt or,n~,y_e.nt~-a. nolle £ros~qui under s.81 of the C~P.C. But this_w~~- resist ed by a defence advocate in the course of whose submissions the learned stat_e attorney walked out of the court room a~parent:I.y in ·objection to certa'i!l. r·eniar.li§ -by _that defence. counsel!' '..l:he court then Qr,cle.re.d~-S- - -- a rrest ,b_ut_.be±:ox.e-tre-0.r..d..e.r_c~o.ll-.J.d-be-ef'fmrted--lm-had- -···- .. left the precincts of the court and could not be foun<l, ---- --=------------- -------- whereupon the._ co111:_-t, invoking the provisions of secti"n 198 of the c.P.C, dismissed t~ charge and acquitted the respondents. Against this -order the Republic h_as app_ealed ., It was contended £of the Republie at t~e ·hearipg ·ef the appeal that, once the 'Proseeuting state attorney had entered the nolle, the court had no discretion but to have

the charge withdrawn as a matter of course and to discharge the respondents and the alleged contempt by the state· a ~ y su.beequently did _not alter that positj.on. That was conceded by both Mr. Kwikima and Mr. rfuezi for some of the respondents. They ho:wever :?dded that the. ·entering of the nolle effectively, determmed the proceedings, only if "!;he DJ>,,~~• had , • . • : f ~ -delegated the power; . ; conferred .. . . on. him by s .81 to the particular state attq~l,WY as provided under s.82. The learned senior, .slq,tei· attorney submitted, on the other hand, that the.1D.P.P.'\has delegated those· powers to.all stat·e attorneys::Jind-.thet;:t:•·in:,this case it should be so assumed:' Having heard the arguments I reserved judgment. :¾\,:i·\ .. It 11owever occurred to me subsequently that I could not '·· '": .. adequately dispose of the appeal,., _w·ithout . ascertaining if the D.P.P. had in fact delegated those powers to the particular state attorney. :. Accorclingly, I directed . that the D.P.P,, be· asked to furnish this ·court with a photostat copy or a certified copy showing if the state attorney hc1.d at tbr::.; relevant time been delegated those powers by the D.P .Pc However, despited repeated reminders by this registry ·che D.P.P. has shown no responce whatever. Sect ion 82 re quires the delec::i;at ion of the pm-mrs conferred upon the D.P.P. by s.P1 to be done in

writing without which, I am cle.ar, a· state attorney cam1ot affe- ctually invode them. In this case _it is a question of fact whetj1.er the state· attorney had in writing been· delegated those powers by the D.J?.P. The latter by his silenc.e is to be presumed as not ~~ving done- so inf act. It follows the former when he purported to withdraw the charg0 · had no pm·rers to do so and, accordingly, the chare;e was sti11·on when he walked out of the court room. 'In the circumstances, ther::;foro, the court was entitled to invoke the·· provisions of s.198. · In the result, the appeal· is dismissed. P •. M ~ JON ATEA...l\J 30/8/'79 JUDGE p.e.-ij_vered in Court this ~· athday of September, 1979, _;-it D·~d,,.. r1n • .• 1 ~ Mr. Alimwi.ke, Senior State Attorney for the Republic I'v'.Ir. Kwild.ma, Counsel for the 1st - 3rd Respondents. Mr. Mbezi, Counsel for the 4th Respondent