dpp vs mcharo others 1999 tzhc 14 8 december 1999

ECON<J.iICCRIME APPEAL NO.5 OF 1999 (FRCM .. THE DECISION OF THE DISTRICT COURT OF HAM AT KISUTU IN ECONOUC CRIMES CASE NO. 6 OF 1996) TI1E D PP ••• 0 ••••• 0 ••• 0 0 a 0 0 •• 0 • 0 0 0 •• 0 " • 0 ••••• J\ PFE LlANT' (Original Prosecutor) 1.DEBOW'!.JOSEPH MCHARO ~ 2.HAWA MATEIEKA ~

I RESPONDENTS 3. HIIDA EMMANUEL MAKAIDiO (Original Accused) the ruling of the Principal Reside~t Magiptrate of Kiputu Resident Magistrates Court who, on 2nd Dec~ber, 1998 dismissed the charge and acquitted the accused persons und~ Section 230 of the Criminal Procedure Act, 1984. The ruling was made e~parte after the prosecutor from the Prevention of Corruption Bureau f~iled to enter appearance for the It was on 24th November, 199~ when the case was to proceed on hearing and the prosecutor wal5 ab~ent, without kn<Yrn reasons. Then the learned counsel for the respo*dents made a brief submission that He submitted further that the pro~ecution had failed to prosecute the , . ruling of no ease to answer as th~re was no prima faeie ca.se estab- lished against the accused ~rson~. Indeed, the learned Principal Re8~dent Magistrate acted upon th, prayers of the learned counsel for against the accused person,s to answer 0 He dismissed the charge and acquitted the accused persons under the powers and authority of Section 230 of the Criminal Procedure Act, No. 9/1985. That action did not please the Republic so th~t they fi10d this appeal againFt the ruling of the learned Principal Resident Magistrate v The two accused persons Debora Joseph Mcharo and Hilda Emmanuel Makaidi being 1st and 2nd accused resputively, were charged of corrup transactions connrary to Section 3(1) of the Prevention of

Corruption Act, No.16/1971 as read together with Paragraph of the first Schedule The facts of the case were briefly that the Ipt Debora John Mcharo on 26/10/1995 at Kimara Primary Court premises, Kinondoni District and Corruption Act, did corruptly solicit a sum of Shs.50,000/= from one Joseph Kaswizi as an inducemtne to provide bail in Criminal Case No. 1015/95 in which case the Said Jopeph Kaswiza was a~ accused person, a matter which was in relation to her principalts affairs. Both the accused were charged in the 2nd count that on the same date (26/10/95) and same place at Kimara Primary Court premises being a Primary Court Magistrate and a Clerk employed by the Judiciary in their respective capacities did corruptly receive the sum of Shs. 50,000/= from Joseph Kuswiza as an inducement to grant bail to Joseph Kaswiza who was a~accused person in Criminal Case No.1015/95 a matter which \-las in rel ... ~tion to their principalls affairs. The accused persons had all denied the charge. After the trial magistrate had dismissed the char~e and acquitted the accu!S!"dpersonlS, the Direcilor of Public Prosecutions prepared this appeal with four grounds of appeal. However, on reading the memorandum of npp@al, I have realisedth~t the 2nd ~d 3rd grounds of apn@al w@re • c •• /3.

1. That the learned Resident Magistrate erred in law and in fact in holding that the prosecution ca"e has been closed for non appearance of the public prosecutor.

2. Th~t the trial magistrate erred in la~ and fact in holding that the prosecution had failed to establish a prima facie case, 3. That the trial magistrate erred in law in dismissing the case under Section 230 of the Criminal Procedure Act, while the prosecution had not stated its case. lIclosedU and not tistatedtlas above stated. • • submission It is agreed from the L and the ruling of the trial court that the pro4eedings C11me into an end em 24/11/98 nnd by the words of I?The court is entitled to presume thnt the pro- secution case is clo8pd ",'hen the prosecution dcclim'ls to bring his witnesses .•II See the ca,'e of Uganda Vs. Hilenge and another (1970) EA 269. S~c())ndly the ca8e of DPP VS M~~in NgumDand o.nother (1977) LRT 38 where it ~ns held that willfully to call their witnesses and in Martin Ngumnbcase, the court had refused adjournment nt the request of the prosecutor and therefore, :it l).'1.d nothing more to do but to dismist'l the chnrge and acquit the is absent on the day and date and place "'.There the hearing is to proceed~ ~ection 222 of the 6riminal Procedure Act 9/1985 ie relevant. It pro- §.~ If, in any case'trhich Q subordin:3.tecourt has juris- diction to hear and determine, the accused person appears inrbe~icnte to the Summons served upon him at the time and place appointed in the sum~ons for the hearing of the case or is brought before the court under

arrest, then if the comI?lo.i- nant, having Cun~erline mine) h-ving had notice of the time and place appointed for the hearing of the charge does not appear, the court shall ~ismis~the charge and acquit the accused person, unlesp for some reason, it shall think it proper to adjourn the henring of the case until some other d~,te•• oo •••• ~." aJ:}d_::1~quit the accuped persons because of the failure by the prosecutor to appear ltlithlmowledge. I stJ.y so bec"lFe the recordsshows thr-t 19/10/98 The lenrned Principal Resident MngiRtrnte would have done what he • It" Cl' It ~ ~,,:/6. did, th~t is to sny dismissing the c~~rge and acquitting the accused persons under Section 222 of the Criminal Procedure Act, 1985 and not clos('d their case instc:2d of acqutting the accused persons under S.222 of the Criminal Procedure Act for want of prosecution. Though the end charge and acquiting the accused persons, the reasons for reaching at th~t decision are very much different. The records of the court have erred in dismissing the charge under 230 of the Criminal Procedure Act, 1985. Like wise, as I have held th~t the trial Principal Resident Magistrctte was 'Tong to dismiss the charge under S. 230 of the Criminal had not established a prima facie case agqinst the accused persons suffi- ciently to require then to make a defenc~ as the prosecution case had not · f;-;&·.---~,0 1,.0 R~· ivlXl'iENrro _-_. ..JUIX3E 8/12/1999 Coram: Ao R. Manento, Jo Hr. J. Luk;-rarofor the appellants Mr. Koneya: for the Respondent8c cc: Aza Court: - The juRgment is rend in the presence of the partips, including the apnella~ts. A. R. MANENTO J1JDGE 8/12/1999