19741223 TZCA Dar es Salaam

.J •• At bAR ES SALAAM .,i . APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NOo 199 OF 1974 ORIGINAL CRIMINAL CASE NOo Ko168 OF 1974 OF THE DISTRICT COURT OF DAR ES SALAAM DISTRICT AT KIVUKONI DAR ES SALAAM Before Mrso Eo N. Munuo 0000000000000 Resident Magistrate DIRECTOR OF PUBLIC PROSECUTIONS 0000000000000000 APPELLANT versus lo SIGSMIND MICHAEL KAPINGA) 2o ISAAC MASUNGULWA ) 000•~ ■ 0 ■ 000 ■ 0000 RESPONDENTS 3. BLASSIS NDAJI ) 4o JUMA FUNDI ) Charge: Fraudulent false accounting contrary to so317(6) of the Penal Codeo JUDGEMENT KIMICHA, Jo - This is an appeal by the State against an order of the District Court, Kivukoni Front, Dar es Salaamo The four accused in this case were at the material time employees of a Cooperative shop at the Friendship Textile Mills Dar es _Salaam and were charged with seventy seven counts of fraudulent false accounting and stealingo They appeared ·before the District Court on 29th July, 1974 and the following Court order was made:- "Order: Hearing on 20th and 21st August, 19740 Accused to be charged separately as shown here- under: First Accused only - to be charged separatelyo ( 1) Count 4 ( 11) Count 23 (2) Count 7 ( 12) Count 25 (3) Count 8 ( 13) Count 27 (4) Count 10 (14) Count 29 (5) Count 11 ( 15) Count 31 (6) Count 13 (16) Count 33 ( 7) Count 15 (17) Count 35 (8) Count 17 ( 18) Count 37 (9) Count 19 (19) Count 39 ( 10) Count 21 (20) Count 45 Second accused only - to be charged separately: ( 1) Count 1 . ( 12) Count 12 (2) Count 3 ( 13) Count 26 (3) Count 5 ( 14) Count 28 ......... -- ( 15) Count 30 ( 16) Count 32 (6) Count 12 ( 17) Count 34 ( 7) Count 14 ( 18) Count 36 (8) Count 16 ( 19) Count 38 (9) Count 18 ( 20) Count 40 ( 10) Count 20 ( 21) Count 42 ( 11) Count 22 (22) Count 44 First, second, third and fifth accused: to be charged jointly: (1) Count 2 (for accused Noo 1, 2 and 3)o (2) Count 47 (accused Noc 1, 3 and 4)o (3) Count 49 -do- ( 4) Count 51 " (5) Count 53 II (6) Count 55 " (7) Count 57 " (8) Count 59 " (9) Count 61 " (10) Count 63 " (11) Count 65 II (12) Count 67 " ( ~.3) Count 69 II (14) Count 71 Ii (15) Count 73 " ( 16) Count 75 II Fourth accused only to be charged separatelyo ( 1) Count 46 (9) Count 62 (2) Count 48 (10) Count 64 (3) Count 50 .( 11) Count 66 ( 4) Count 52 (12) Count 68 (5) Count 54 ( 13) Count 70 (6) Count 55 & 56 ( 14) Count 72 ( 7) Count 58 (15) Count 74 (8) Count 60 ( 16) Count 76 The accused appeared again before the court on 21st August, 1974 and the Public Prosecutor made the following application: "The accused are employees of a cooperative shop at Friendship Textile Mills; so basically their transaction has a common stando Their actions are inter-related, so all the seventy seven counts must be heard togethero" The Court made the following order - "Order: Order of 20th August, 1974 still valid and operativeo Prosecution is at liberty to appeal on that order but not to invite or persuade this court to revise its ordero" l This order is the subject of this appeal by the State on the grounds that:- 111. There are forty two witnesses in this case and it would create great hardship to them if they were to testify four times in Court should separate trials be heldo 2o Witnesses may leave the country, some may forget the facts and others may not be avail- able during some of the trialso Besides, it would entail the work of four magistrates in- stead of one because of the three separate trials and one joint trialo There are seventy five counts altogethero Wherefore, the appellant prays that the order of the learned magistrate for separate trials be set aside and one trial for all the four accused be restoredo" I do not see any reason why there should have been this conflict between the prosecution and the magistrateo The conduct of criminal proceedings is governed by the criminal procedure code, The code binds and guides both the prosecution and the magistrateo The code provides for the joinder and non-joinder of accusedo The magistrate in this case has not given any reason for refusing the application of the prosecution and this court is, there- fore., unable to decide -.J1ether the order is justified by the criminal procedure code or noto The appeal is for the above reasons allowed and the order of the District Court is set asideo It is also ordered that both the prosecution and the magistrate are to conduct the case against the accused in accordance with the provisions of the Criminal Procedure Codeo In other words, this Court is deliberately declining_to restrict the prosecution to only one way of charging the accusedo That is either only jointly or only separatelyo They can use any of these methods provided that they comply with the provisions of the code and if they are of the opinion that this would be in the interest of justiceo Delivered in open court this 23rd day of December, 19740