Shabani Mweni

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 121 OF 2023 (Arising From Criminal Case No. 02 0/2023 o f the District Court ofBabati at Babati) DIRECTOR OF PUBLIC PROSECUTIONS....................................... APPELLANT VERSUS SHABANI RAMADHANI MWENI................................... RESPONDENTS SUNGIMWINJUMA SELEMANI...................................... REASONS FOR THE JUDGMENT 22nd and 25thApril, 2024 MIRINDO, J.: This is an appeal by the Director of Public Prosecutions (DPP) against the trial court’s closure of the prosecution case and its ruling that dismissed the charge and acquitted Shabani Ramadhani Mweni and Sungi Mwinjuma Selemani of the charge of trafficking in a narcotic drug. Before Babati District Court, the respondents, Shabani Ramadhani Mweni and Sungi Mwinjuma Selemani, were jointly charged with trafficking of narcotic drug contrary to section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act [Cap 95 RE 2019] as amended by the Written Laws (Miscellaneous Amendments) (No 5) Act, 2021. At the end of the preliminary hearing on 6/1/2023, prosecution stated it will have seven witnesses. The trial commenced on the same date and the first prosecution witness testified. Hearing was adjourned to 24/1/2023 but it could not take place, the Republic did not call witness because it was Law Week. Hearing was adjourned to 2/2/2024 when the second and third prosecution witnesses testified. On the adjourned hearing date of 7/3/2023, the public prosecutor was absent. Hearing was adjourned to 21/3/2023 but took place on 6/4/2023 when the fourth prosecution witness testified. After the fourth prosecution witness has testified, the trial court reminded the Republic that it had ordered all remaining prosecution witnesses be present. It gave the prosecution three hours to call the remaining two witnesses. When parties reassembled in Court, the public prosecutor informed the Court that “We do not have witness your honour”. Upon receiving this information, the trial court observed that the Republic had not complied with its order of 16/2/2024 and for that reason adjourned the case for ruling on a case to answer. On 11/4/2024, the trial court ruled that the prosecution has not established a prima facie case. The Court dismissed the charge and acquitted the accused persons. 2 As already stated, the DPP was aggrieved with that decision and has appealed to this Court. At the hearing of the appeal, Ms Rhoida Kisinga, learned State Attorney, appeared for the DPP and the first respondent appeared in person. The Court ordered that the appeal be heard ex parte against the second respondent who upon being duly served did not appear. After the hearing the on 22/4/2024, I allowed the appeal, quashed the order dismissing the charge and acquitting the respondents. I ordered that both respondents be rearrested and placed under remand custody to await their trial. I reserved reasons for doing so which I now proceed to give. Ms Kisinga, learned State Attorney, argued that in case of the prosecution’s failure to produce a witness, the trial court should have proceeded under the provisions of section 225 (5) of the Criminal Procedure Act [Cap 20 RE 2022]. The trial court erred in acquitting the respondents. She also argued that the right to close prosecution’s case rests with the prosecution itself and not the trial court. In support of her arguments, she drew the attention of this Court to the case of Director o f Public Prosecutions v Joseph s/o Mseti and Others (Criminal Appeal 549 of 2019) [2020] TZCA 1917 (18 December 2020). The issue of recalcitrant and dilatory prosecutors to call witnesses have been considered by the Court of Appeal on several occasions. In a frequently cited case of DPP v Feruz, Criminal Appeal 154 of 2011, Court of Appeal of Tanzania at Zanzibar (2012) (unreported), two witnesses testified for the prosecution and 3 afterwards the prosecution sought several adjournments from one to three months. The trial judge, noticing that five months have passed since the last prosecution witness had testified, closed the prosecution case. On appeal, the Court of Appeal held that the High Court’s power under these circumstances is confined to discharging but does not extend to closure of the prosecution case. This holding was followed in another often-cited case of Abdallah Kondo v R (Criminal Appeal 322 of 2015) [2016] TZCA 189 (28 September 2016). Over five months the prosecution sought adjournments to produce its last witness and the trial magistrate finally closed the prosecution case. The trial magistrate ruled that there was a prima facie case. The principle that the trial court has no mandate to close the prosecution case has been reaffirmed by the Court of Appeal in series of cases most notably in Matimo Sagila and Another v Republic (Criminal Appeal 7 of 2015) [2018] TZCA 351 (24 December 2018) and Frenk Benson Msongole v R (Criminal Appeal 72 of 2016) [2019] TZCA 317 (19 August 2019). In the leading case of DPP v William Edward Kibamba, Criminal Appeal 108 of 1993, (1994) (unreported), the Court of Appeal held that a magistrate faced with a recalcitrant or dilatory prosecutor who fails to produce a witness must first exhaust the time table for adjournments created under section 225 (4) of the Criminal Procedure Act, before discharging the accused. In this case, the trial failed to commence because the prosecutor claimed that he had just been 4 appointed to conduct the case. The trial magistrate gave the last order of adjournment but when the same prosecutor appeared on the adjourned date, he stated that “The Republic is unaware of this file.” The trial court understood this to mean the prosecutor was unable to proceed because he had no case file and acquitted the accused. On a further appeal to the Court of Appeal, it was held that there was no evidence that trial magistrate observed the scheme of adjournments provided under the Criminal Procedure Act and that the trial court had no power to acquit the accused where the prosecution is unable to produce further witnesses. In its judgment delivered by Kisanga JA, the Court of Appeal held that trial had no power of acquittal under these circumstances but is only authorized to discharge the accused under section 225 (5) of the Criminal Procedure Act: Under the amended law, like the old law, the trial magistrate has discretion whether or not to grant adjournment before or during the hearing of cases. That discretion is provided for in sub-section (1) of section 225 of the Act. However, under the present law the court has greater powers of controlling adjournments than it had before the amendment. Thus, subsection 4 lays down a timetable or scheme for granting adjournments with reference to the majority o f the offences under the Penal Code. Under this scheme, the Court is empowered to refuse adjournment unless certain requirements are met, and in any event, adjournments can only be granted for specified periods. The Court is further empowered under sub-section (5) to discharge the accused if 5 the scheme for granting adjournments under sub-section (4) has been exhausted and the prosecution is unable to proceed with the hearing .... In Robinson Mwanjisi and three Others v R [2003] TLR 218 at page 227; (Criminal Appeal 154 of 1994) [2001] TZCA 28 (13 July 2001), the Court of Appeal restated that: .... The purpose of section 225 generally and subsections (4) and (5) in particular is to expedite trials but not to clear accused persons from criminal liability.... These principles were restated in Abdallah Kondo ('above) to the effect where the relevant certificates for adjournment have been exhausted the trial court may invoke the provisions of section 225 (5) to dismiss the charge and discharge the accused. I would like to point that in Martin Nguma v R, Criminal Appeal 48 of 1976, (unreported) and DPP v Matemane Masamba, Criminal Appeal 90 of 1991, the Court of Appeal for Eastern Africa and the Court of Appeal of Tanzania, respectively, established that in exceptional circumstances a trial court may acquit the accused person on account of the dilatory acts of the prosecution. After revisiting various authorities on this subject, it is clear that the trial court erred in several respects: (1) the prosecution had not exhausted the time table for adjournments notwithstanding the trial court’s order demanding presence of all prosecution witnesses in court; (2) the trial court had no mandate 6 to close the prosecution case and making a ruling on prima facie case; and (3) the trial court had no mandate to acquit the respondents for the dilatory acts of the prosecution. It was for these reasons that I allowed the appeal on 22/4/2024, and made the above orders. It follows that I remit the case file to Babati District Court for re-assignment to a different magistrate for continuation of the hearing of the prosecution case from where it ended. DATED at BABATI this 23rd day of April, 2024 f .Mt m i r i n d o JUDGE Court: Reasons for judgment delivered this 25th day of April, 2024 in the presence of Ms Rhoida Kisinga, State Attorney for the Appellant and in the presence of the first respondent, and in the absence of the second respondent. F.M. MIRINDO JUDGE 25/ 4/2024 7