director of public prosecution vs thomas mollel askofu 2001 tzca 21 14 september 2001

IN THe! COUKT OF ;J l'S ii OF 'iVJJLANIA AT /JUJpiLi (GOiiAM: KAK/iKiilj J j KIoiiNG*^ J d\v^ ±*ncl IjUG&juVXIn011^*) J_»**•_) CSBIIR^L A m iJ L NOo 30 OF 1998 ■Bxii'XVfi;ixjN THE DIRSCTOK OF PUBLIC PRCofiCUTIONB. . . APPELLjiNT AND THOMAS MOLLiiL @ i-iSKGFU. TuiKPCND^NT (ij>pp^Al from the Judgement of the High Court of Tanzania at ^rusha) (P*ii» Kugpsi^ dat^d the 2nd day of December, 1997 in Cjrminal .appeal No. 3 o_i 1_§§7 iOL RJL A M E N T KL.8iJ'?GL\1 J . A . i The Director of Public Prosecutions is appealing against the decision o f the High Court (Rugazia, F3M ^ixt. J.) striking out an appeal on the ground that the said appeal was not properly before the court because the notice o f intontion to bring i t had not bv.cn given by the Director o f Public Prosecutions. Section 370 o f the Criminal Procedure Act, 19&5 (hereinafter referred to as the Act) confers on the :ligh Court jurisdiction to hear appeals from the subordinate courts; and section 379 (a) of the Act provides that an appeal to the High Court is to be in itiated by the Director o f Public Prosecutions giving notice o f his intention to do so. That provision says:- ■•375• No appeal under section 370 shall be entertained unless the Director of Public Prosecutions - ■•• ,../ 2 2 (a) shall have given notice o f his intention to appeal to the subordinate court within thirty days of the acquittal, finding, sentence or order against which he wishes (to) appeal;-' In this case the notice of intention to appeal was given by the Regional Grimes O fficer (RCO) o f jirusha Region, and the question both in the High Court and in this Court was whether that constituted notice o f intention to appeal within the meaning o f the above quoted provision. As already stated the High Court held that i t did not. Before us the appellant Republic was represented by Mrs. Lyimo, Principal State Attorney while Mr. Jundu, advocate, was for the respondent. Mrs. Lyimo maintained that the notice given by the RCO constituted the requisite notice under section 379 (a) o f the .ii.ct, that the appeal was properly before the High Court and that the Court therefore erred in striking i t out.' She cited various provisions of the law includingsections 2, 95» 377 and 396 o f the Act and Government Notices Nos. 135 o f 19^1 and 382 of 19*+3 to support her thesis that the RCO was a public prosecutor acting under general directions o f the Director o f Public Prosecutions and therefore entitled to give the requisite notice. Mr. Jundu took the opposite view and supported the decision of the High Court. We agree with Mrs. Lyimo that the RCO was, or can be said to have been appointed public prosecutor by the Director o f Public Prosecutions either under General Notices Nos. 135 and 382 o f I 9VI .../ 3 3 and 19^3, respectively, or under section 95 c f the Act, Indeed this question was not seriously in issue either before us or in the court below. However, it is apparent that not every public prosecutor so appointed is empowered to give the requisite notice* This is apparent from reading section 377 of the Act which fa lls under Part X (c) thereof with the heading Appeals by Director Public Prosecutions •" Section 377 which conics iruinediately after that heading says:- “ 377♦ In the following section of this Part unless the context otherwise requires ~ 'Director o f Public Prosecutions' shall include any o ffice r subordinate to him acting in accordance with his general or special instructions ;s‘ Our construction of this provision is that for purposes o f appeals under the Act by the Director o f Public Prosecutions, the la tte r is interpreted to include a public prosecutor only i f such a public prosecutor is' an o ffic e r subordinate to the Director of Public Prosecutions, and is acting under his general or special instructions For, i t is conceivable that while the Director of Public Prosecutions may have appointed public prosecutors in different ministries, departments or> sections throughout the country, a ll such appointees are not necessarily officers subordinate to him; some axe subordinate to some other o ffic ia ls , in which case in our view, they would not be competent to give the requisite notice. In the instant case there was no evidence to show that the RCO who purported to give the requisite notice was subordinate to the Director o f Public Prosecutions. He was therefore not the Director of Public >A 4 Prosecutions within the meaning o f the section, and on that account the High Court was perfectly ju stified to hold as i t did that there was no notice given by the Director of Public Prosecutions o f his intention to appeal. Before we take leave of the matter, we have to deal with a supplementary issue which arose in the course o f our interpretation of section 377 o f the Act which is quoted above. This is in connection with the word '••section'1 appearing in the fir s t line o f that section# We thought that there was a typographical error and that the word should read -sections1' instead. Mr. Jundu, however, took the view that the word should be read in its present form. He contended that that is what the drafters o f i t had intended i t to be and that i f it was a typographical error, the Parliamentary draftsman would have already corrected i t since 1985 when i t was enacted. With respect, however, v/e disagree. I f Mr. Jundu*s interpretation is adopted, it would mean that the provision is targeting or is directed to. only the section immediately after it i . e . section 378. Such formulation, however, is grammatically unsound and indeed clumsy. For, i f the provision had section 378 only as its target, then the use o f the words "o f this Part unless the context otherwise requires1- is both superfluous and meaningless* We increasingly fee l that the framers o f the section cannot have intended such consequences. There is yet another ground which is even more important* Rea.ding the word in its present form would mean that the interpretation o f Director o f Public Prosecutions applies only to section 378 which deals only with conferring on the Director of Public Prosecutions the power o f appeal to the High Court. In other words it means that the .../ 5 - 5 Director o f Public Prosecutions and any o ffic e r subordinate to him acting under his instructions in terms o f section 377 would be empowered to appeal to the High Court, but that in terms o f section 379 o f the Act (quoted earlier) the notice of intention to appeal can only be given by the Director of Public Prosecutions himself* We can find n* justification for adopting such a restrictive interpretation a£ '“Director o f Public Prosecutions^ in section 5^9 o f the Act. We fe e l ju stified to say that the word should read “sections5' to mean that the interpretation o f ■■Director -of Public Pro&esjitions‘* applies to the remaining sections o f Part X (c) of the Act* We reject Mr. Jundu's contention that i f i t was a typographical erT#r the Parliamentary draftsman would have already corrected it# For* in practice there are a number o f typographical errors which remain uncorrect&d on the statute books, may be duo to pressure o f v/ozk> and this is one o f them. In the result we are satisfied th.it the High Court.Xightly struck out the appeal before it for being incompetent, and the present appeal from that decision is accordingly dismissed. DATiD at ARUSHA this 1^th day of September, 2001i •. ./ 6 - 6 L.M . MAKMiS JUS TIGill OF APPEAL R .H . K IS a NGA JUSTICES CF JJr'P-uAL K.S.K.LUGAKUIGIEA JUSTlGiTOF APPEa L I c e rtify tlrrt this i* a true ce?y. o f th« -original t ( F .L .K . WANBa L I )