director of public prosecutions vs hamida mussa another 2005 tzhc 295 22 march 2005

IN T H E D IS T R IC T C O U R T O F BUKOBA

AT BUKOBA H /C C R IM IN A L A PPEA L NO. 63/2003. (Arising from Original Criminal Case No. 95/2003 o f the District Court o f Bukoba (Before: P. D. Ntumo Esq. RM.) THE DIRECTOR OF PUBLIC PROSECUTIONS=========APPELLANT Versus HAMID A M USSA AN D ANOTHER=================RESPONDENTS

JUDGMENT LUANDA, .1. The Director of Public Prosecution is aggrieved by a decision of Bukoba District Court in acquitting H A M ID A MUSSA and ELIA S N Y A LU CH A I NTUBIKA (hereinafter referred to as the 1st and 2nd Respondent respectively) under Sections 222 and 225 (4) of the Criminal Procedure Act, 1985, hence the appeal. The background history giving rise to this appeal is to this effect:- The Respondents were charged in the said court with offences involving corruption. The Respondents pleaded not guilty to the charge. Both were granted bail. That was on 28/4/2003. The case was adjourned to 13/5/2003 for conducting Preliminary hearing. Mr. Kabunga, learned defence counsel defended the Respondents. On 13/5/2003 the Prosecutor was not prepared for the preliminary hearing, the case was adjourned to another date, namely on 2/6/2003. On 2/6/2003 the preliminary hearing couldnot be conducted as Mr. Kabunga was attending High Court Session. The case was adjourned to 23/6/2003. On 23/6/2003 the Public Prosecutor and Mr. Kabunga were absent; the Respondents were present. The case was adjourned to 28/6/2003. On 28/6/2003 the record is dead silent; it doesnot show the activity conducted on that day. The case came on 30/6/2003. On that day the Public Prosecutor was absent. The record doesnot show whether he was duly notified in view of what had been said above on the day preeceding

30/6/2003. Be that as it may, Mr. Kabunga and the Respondents were present. It was on that day where Mr. Kabunga invited the court to apply sections 222 and 225 (4) of the Criminal Procedure Act, 1985 because one, sixty days had elapsed; and two, the case be dismissed for non appearance of the Public Prosecutor. Ruling was reserved till on 10/7/2003. On 10/7/2003 Ruling was not delivered. It was not ready. The case was adjourned to 28/7/2003. On 28/7/2003 Ruling was not ready. The case was adjourned to 11/7/2003! Finally the Ruling was delivered on 5/9/2003. However, the record is dead silent as to whether it was delivered on that day and whether it was delivered in the presence of the parties. Despite what I have narrated above, the learned Resident Magistrate swallowed the prayers whole. He said this, in his concluding remarks; I quote: “It is for the reasons as per sections 222 and 225 (4) of the CPA, 1983 (sic) that I hold the charge liable for dismissal and I hereby dismiss the charge and accordingly acquit the accused person”. Mr. Vitalis learned State Attorney who represented the DPP raised four grounds in the memorandum of appeal namely: 1. That, the learned Resident Magistrate erred in law in holding that the proceeding, after the expiry of an aggregate of sixty days period without requisite certificate of adjournment renders the proceedings a nullity in terms of section 225 (4) of the Criminal Procedure Act, 1985.

2. That the learned Resident Magistrate erred in law in acquitting the respondents under section 225 (4) of the CPA, 1985.

3. That, the learned Resident Magistrate erred in law in holding that a hearing date in terms of section 222 of the CPA 1985 includes a date appointed for preliminary hearing.

4. That, the learned Resident Magistrate did not judiciously exercised the discretionary power of the court under sections 222 and 225 of the CPA, 1985. As regards to ground one, Mr. Vitalis said, the court of Appeal has ruled out that the subsequent proceedings after the expiration of 60 days without certificate to adjourn does not renders the same a nullity unless it is shown that the adjournment occasioned miscarriage of justice. He cited Jo h n Joseph O nenge & A n o th er VR r 19931 T L R 131 a t 136. In this case, he said, no miscarriage of justice had been shown. Elaborating on ground two, Mr. Vitalis said S. 225 (4) of the CPA, 1985 does not confer the court powers of acquittal. It confers powers of discharge. With regard to ground three, Mr. Vitalis said a date of preliminary hearing is not a hearing of a charge envisaged under S. 222 of CPA, 1985. And the purpose of conducting preliminary hearing is to identify undisputed facts so as to speed trials. And it is no wonder that failure to conduct the same is not fatal. He cited H aii M sem akw eli VR T19971 T L R 331. And further to that he said a hearing of a charge cannot be conducted on the very day of the preliminary hearing as spell out under Rule 6 (not Rule 7 of GN 192/1988) as no witnesses are called. Finally, Mr. Vitalis submitted that both provisions mentioned above give discretionary power to the Court. But in

the light of the above narrated facts, the court did not exercise its powers judiciously. In any case an order of acquittal before hearing should not be exercised lightly. It should be exercised in very exceptional cases. He prayed the appeal be allowed and case be remitted to the district court for continuation of hearing. Mr. Kabunga on other hand said the words used in S. 225 (4) of the CPA, 1985 are very clear. The court has no power to adjourn the case after the elapse of 60 days without the certificate. The court has power to dismiss the charge and acquit the accused. He cited RV M w ita N yangotom a f19821 T L R 317 He went on to say the court had powers. He cited RV N uru M asudi M gawe 119841 TL R 218. And the court exercised its powers judiciously, he said. As regards to S. 222 of the CPA, 1985 Mr. Kabunga said the court had inherent powers to acquit. He thus prayed the appeal be dismissed. In reply Mr. Vitalis said their concern is that the powers were not exercised judiciously. I have carefully considered the submissions of both learned counsel. I start with the first ground. It is crystal clear that the section is mandatory. But failure to file a certificate after the expiry of 60 days doesnot render the proceedings a nullity. The court ought to go further and ask itself whether, the adjournment has occasioned miscarriage of justice. That is the test put forward by

the Court of Appeal of Tanzania in Jo h n Joseph O nenge case cited supra by Mr. Vitalis which decision is binding upon this court. In this case nothing has been said. I turn now to the second ground. S. 225 (4) of the CPA, 1985 does not confer the subordinate courts powers to acquit for failure to file a certificate after the elapse of 60 days. The powers of the court for such failure is provided for under sub-section (5) of the same section. The subsection reads: 225 (5) W here no certificate is filed under the provisions of sub-section (4) the court shall proceed to h e ar the case o r discharge the accused in the court where the prosecution is unable to proceed with the hearing save that any discharge under this section shall not operate as a bar to a subsequent charge being brought against the accused for the same offence, (underscoring mine). From the clear wounding of the above quoted subsection, the subordinate courts have no powers to acquit. They have powers either to try the case or discharge the accused and no more. As regards ground three, the pertinent question is:- what is the meaning of hearing of a case/charge? Does it include a preliminary hearing? Section 222 of the CPA, 1985 which is he subject matter of this ground reads: 222. If, in any case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the

summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest then, if the c o m p lain an t, having had notice of the tim e and place appointed for the hearing of the charge does not appear, the court shall dismiss the charge and acquit the accused person, unless for some other reason, it shall think it proper to adjourn the hearing of the case until some other date, and pending the adjourned hearing, either admit the accused person to bail or remand him to prison, or take such security for his appearance as the court shall think fit. (Underlining mine) However, there is no definition of hearing of a charge/case in the CPA, 1985. According to O sb o rn e’s Concise Law D ictionary Sixth E d itio n , it defines what a hearing is. It says:- Hearing - A trial or a motion for judgment. And the O xford A dvanced L e a rn e r’s D ictionary Sixth E dition defines what is a criminal hearing. It reads:- An official meeting at which the facts about a crime, complaint etc are presented to the person or group of people who will have to decide what action to take. And the word preliminary has been defined thus: an action or event that is done in preparation for. From the foregoing therefore it is clear that preliminary hearing is a preparation for trial; it is not a hearing as envisaged under S. 222 of the

CPA, 1985. So the phrase “for the hearing of the case” doesnot mean and include preliminary hearing. Assuming for the sake of argument that preliminary hearing is hearing of the case, was S. 222 of CPA, 1985 complied with? In otherwords was the complainant aware of the hearing? We have seen earlier that on 28/6/2003 the record is silent. From undisclosed source the case came on 30/6/2003. The Public Prosecutor was not aware of that date, as no summons was issued to him. In view of that, therefore the decision cannot stand. Lastly is about ground four. We have seen the learned Resident Magistrate did not stick to the letter of the law. The question of discretion is not there. Before I conclude, let me say a word or two about two cases cited by Mr. Kabunga and one by Mr. Vitalis namely M w ita case, N uru case and Y ahaya U panga case respectively. These case are no longer good authorities as they referred to the repealed Criminal Procedure Code, Cap 20 whose contents are not pari materia with the current law. In fine, I do agree with Mr. Vitalis on the three grounds of their appeal. The appeal has merits. The appeal is allowed. The decision of the district court is quashed and set aside. Judgment delivered in the presence of the Respondents. Mr. Kabunga for