19790830 TZHC Dodoma 1

:•• .I. 11 12T THE HIGH CCUR, OF TANZANIA ~ AT DODONA • '• • • t APPELL.WPB J1JRISD7TION \... - CRIMINAL AP PEAL No.215 OF 1977 '..- -- 4diginal Crmina1 Case No.293 of 1'976 of the District Court of Sinida, Before Vagesa, Esq., R.N.) D}RECTOR OP. PUBIiC PROSECUTION . . . . AppeTlit versus 1 PETER MAKRANGA ) 2 flfflOCENTNCHIMBI ) Respondent 3 JO NOAH GU1'TDA 4) H H1\T .01\TID SA BALILA s . . . . . . (Original Accused) Charge: Stealing by. servant c/s.271 and 265 of the Penal Code. 2nd Count Stealing by servant c/s.271. and 265 of the Penal Oo.de. . . JUDGMNT • JONkTHLN. J. In the District Court of .Singida the respondents were charged with stealing by.servant. After the case had dragged on for a very long time, in the end it 'was fixed for hearing before the learned resident magistrate. 4-. On that date, however, the fourth accused applied for an adjournment in orderto retain,.the services of an •vocate, but the court in its ruling refused the application and ordered_the case to proceod to hearing. PQrbLit. whe re up on the pocjtug_sa±. 44 no lle under s.81 of the C.P.C. But thiw_ resisted by a defence advocate in the course of whose submissions the learned state attorney walked out of the court room apparently in objection to óertain_remarks - - -by that defence. çpunsel._he court left the precincts of the court and could - not be found... whereupon the court, invoking the provisions of sectjn 198 of the C.P.C. dismissed the charge an.d acquittad the respondents. Against this-order the Republic has appealed. . .- It was contended i'or the Republie at the hearing •f the appeal that, once the Proseøutin.g state attorney had entered the nofle, the court had no discretion but to have the charge withdrai as a matter of course and to discharge the respondents and the alleged contempt by the state aflornQy suibsequently did not alter that position. That was conceded by both Mr. Kwikima and Mr. Mbezi for some of the respondents, They however .'dded that the, entering of the nolle effect ive2,y determined the proceedinr,,si only if the DIPP. had • -delegated the power conferred on him by sf 81 to the partiOular state áttor]aey as provided under s.82. The learned senior state attorney submitted, on the other hand, that the,i deleated those powers to all state attorneysand hat-in-t1iis case it should be so assumed Having heard the arguments I reserved judgment. •AL . 9 It -howeer occurred to me subsequently that I could not • adequately dispose of the appeaL, ,without ascertaining if the D.P.P. had in fact delegated those powers to the • particular state attorney. :. Accordingly, I directed that the D.P.P bo asked to furnish this court with a. photostat copy or , certified copy showing if the state attorney had at the relevant time been delegated those powers by the However, despited repeated reminders by this registry the. D.P.P. has shom noresponce whatever. Section 82 requires the deleat ion of the powers conferred upon the D.P.P. by s.Fi to be. done in writing without which, I an clear, a state attorney cannot aff e- • otually invode them. In this case it is a question of fact whether the state attorney had in writing been• delegated those powers by the .D.P.P. . The latter by his silenc,e is to be presumed as not 1iving done- so inf act. It follows the former when ie purported to withdraw the charge had no powers to do so and, accordingly, the ch.rge was still on when he walked out of the court room. ' Li the circumstances, the ref ore, the court was entitled to invoke the provisions of s.198. 'In the result, the appeal is dismissed. P.. M. JONATHAN 30/8/'79 . JIJDGE P.alivered in Court this Othday of September, 1979, n,t D'd'rwi. . ..... - I TR lOT RG.IS TR AR Mr. Alinwike, Senior State Attorney for the Republic -. Mr. Kwikirna, Counsel for the 1st - 3rd Respondents. Mr • Mbezi, Counsel for the 4th Respondent