19770321 TZHC Dodoma

IN THE HIGH COURT OF TANZii.NIA i~1' DOIX)MA

APPELLATE JURISDICTION HIGH COURT CRIMINLL l~PPEhL WO. 13 OF 1977 ORIGINL.L CRIMINAL Ci.S:is WO. 163 OF 1976 OF THE DISTRICT COURT OJ!' HAHYONI DISTRICT AT l.\1.ANYONI BEFORE S. U. S. MWli.ILUNGA • • • • • RESIDENT MAG I STRATE DIRECTOR OF Fq'BLIC PROSECUTOR ••••••••• APPELLANT

VERSUS PROTAS s/o NG' ThIBWA RESPONDENT CHLRGE: Stealing by person enployecl in the public service c/ss 270 and 265 of the Penal Code. l,j2 D G M E N T l.\'U.TZA Vii. S 2 J. \. In this case the Director of Public rrosecutions is appealing against the decision of the resident L'1agistrato in Manyoni Criminal Case No. 163 of 1976, in. which the trial court acquitted the respondent u/s 205 of the •crininal Procedure Code on tre ground that the prosecutor had failed to appear and pro- ceed with the case on 20/11/76 the day the caseffwas fixe~ for hearing. The respondent was charged with stealing by person eoployocl in the public service c/ss 265 and 270 of the Penal Code. There were a m.mber of rentions and finally on 13/10/76 tho case was fixed for hearing on 20/11/76. On that day the pros ccutor did net turn up. Another prosecutor told the court: 11 The prosecutor fron Railways Police has left thinking this case was also to be adjourned 11 • Mr. Chan~akare, advocate for the accused objected to an adjournnent saying: "There are no reasons why this case should be adjourned. 11 In his ruling the lGarned trial nagistrate said inter alia: "I had the q>portuni t;y of talking ·to the prosecutor fron the Railway Police on 18/11/76 about this case. I told him to appear before this court on 19/11/76 so that we could fix a day for nenti on in respect of Crininal Case No. 67/76 because, as

he told ne, exhibits in that case were not seen at :Manyoni Police station. His absence today re-e.1:Jins unex- plained. He cannot be heard •••.•• saying that I told hin that this case was also to be adjourned ••.• I decline to adjourn because the prosecutor fron Railways Police has shown gross negligence in dealing •••• 2 2 with these natters. 1-.ny adjournnent is in court's discretion. And when adjournnent has· been refused the Repub+ic has to adduce evidence. The Republic has adduced no evidence in thi8 caso. Because no evidonco has boen adduced I ho1d that no prima fncie caso has been established against the accused who, in terns of soction 205 of the-Criminal / Procedure Coc1e is acq_ui ttcd." Mr. Lyi □ o, who appeared for tho Repub lie arguod that the learned resident nagistr~to erred in acquitting the nccused u/s 205 of the Criminal Procedure Code. It was the learned state attorney's subr:1ission th2.t the provisions of section 205 of the Crininal Procedure Code can only be invoked 2-fter the prosecution has adduced evidence in support of the charge and closed its case. It was argued th?.t in tho present cnse the prosecution did not e,dduce evidence at all E'..nd therefore, it was argued, the trial nagistraie w~s wrong in holding that the prosecution h~d failed to establish a pri□a facie case against the respondent .. In support of this argunent, the Court w~s referred

to the recent decision by the Court of Appeal in MARTIN NGIDJL:';. and two others V. R. - Crir:linal appee..ls No~i§_and 49 of_.1..21.§.. Mr. Chanbel{are for the respondent conceded thn.t the learner] □agistrQte erred in acquitting the respondent u/s 205 of the Crir.1ine:.l Procedure Code; but, it was argued that the trioJ. r.:1agistro.te actually rwant acquitting the respondent u/a 198 of the Crininal Procedure Code but that he by nistake acquitted hi□ u/s 205. With respect to the learned defence ccunsol, the argu□cnt that the □ ngistrato had in nind the provisions of section 198 -~ of the Criminal Procedure Code when he acquitted the respondent u/s 205 of the Criminal Procedure Code has no leg to stand on. As rightly argued by the learned state attorney in acquit- ting the respondent the learned mgistrate anply shows that ho based the acquittal u/s 205. He says: 11 I do hold that no prioa facie case has been established against the accused who in terns of section 205 of the Crininal Procedure Code is acquitted 11 • Such l:).!lgu.age leaves no doubt that the trial court based the acquittal u/s 205 of the Crininal Procedure Code. Dealing with acquittals which were based u/s 205 of the Criminal Procedure Code the Court of Appeal in the recent decision - above quotted.J had this to say: "We have no dou. bt in our nind that this section presupposes that the ~)rosecution has

adduced evidence, whether by calling witnesses or other- . ••• 3 3 wise, in su?port of the charge and has. closed its case. It is then that on considering the- evidence before hio tho Dagis trate nay, if he considers the evidence insufficient to require the accused .to defend hinsolf acquit the accused at that stage of the trial. In other words the nagistrate oust be SRtisfied thE,t no prina facj.Q case has been ~...a.de out against ih o accused". I This decision binds this court. As I have, I hope, aoply denons:tratod above, in this case the trial nagistrate erred in - ~ holding that the prose cu ti on had closed its case whereas no evidence was adduced against tho respondent. Indeed no witnesses for the pres ecution were present. I agree with the learned state attorney's argunent. that the rmgistratc had no power to acquit the respondent u/s 205 o:f the Crininal Procedure Code.. As our courts are creatures of Statute they exercise such powers as are given to then by Statute. 1'he provisions of section 205 of the Crir.1inal Proco-::.1.,.2·. Code do not give a court power to acquit an accused person the way the learned resident uagistrate did. As to the question whether the trial nagistrate could haVEJ acquitte<I. the respondent u/s 198 of the Crioinal Procedure Code I would say that an acquittal u/ s 198 is only perrassible where there is evidence that the cooplainant having

had notice of th(; tine and place appointed for h0aring of the case fails to turn up. In the present case it would appear that there was a ois- understanding between the trial I12.cistrate and the Railway Police prosecutor regarding the hearing of the case - Crininal Case No. 163 of 1976. The prosecutor was of the inpression that both cases agains-::; the respondent - Crininal C~e No. 163/76 and Cri□inal Caso No. 67/76 ·-were to be adjourned on 20/11/76 h~nce his departure to ·Tabora leaving one of the prc,secutors in Manyoni to appear on his behalf on 20/11/76 when, as ho believed, the cases woulc be adjourred. The trial naeistrate on the other hand believed that he had allowed adjourn□ent in Crininal Case No. 67/76 onl;y and that Cri□inal C2se No. 163/76 the subject natter of this appeal was fu be heard on 20/11/?q. On these facts the respondent could also not have been acquitted u/s 198 of the Crimnal Procedure Code. In the circu. stances I agree with the Republic's arguoent that the learned resident nagistrate's order of acquittal should be set aside and I so order. The trial in Manyoni Crioinal Case No. 163 of 1976 to continue in tho lower court before another nugistrute. ---~-- DODOMA N. S 21st March, 1977 . Lyimo for the Republic. Chanbakare for the responden .•