19941227 TZCA Dar es Salaam

( COIW£ : JVI.A.KA.I!IE 1 J . A , 1 KI SANGA 2 J . .A • 1 .And LUEtJYA I J • A • ) I CHILINAL APPEAL NO •. 108 OJI' 1993 ·. BETWEEN TH8 DIIillCTOil OF PUJ3LIC PTIOSECUTION3 .APPELLANT .AND '-VILLIA!'il ED1.'!Ai.1.D IGBAf'~BA • • • • • , • • o • • • • • • REGPONDEN'I· (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) ',t. I (Mkude 9 J.) i' 'j, dated the 30th day of June, 1993 in Econo@ic Crime Appeal No. 3 of 1992 JUDGEJ\IBNT OF THE COT.THT ' ' \ KISANGA 1 J .A.: '.;rhe respondent was c;harged i_n the Ilesident :Magistrate's Court with offences under the Economic end Organized Control Act, the D,P.P. having given his consent for the respondent to be tried in that court. V/heri the case came on for hearin~ for the first time it did not take off, it was adjourned at the instance of the Counsel for the respondent. ".'hen it came on on the appointed day it did not talre off either. The prosecutor stated that he was unable to proceed because he was new to the case ao it had not been assigned to him. The magistrate then adjourned the case to 20.2.92 and warned that that was ·t;he last adjourrunent. Ye.t on 20. 2. 92 the same prosecutor appeared and stated that he could not proc·eed because, to quote his own words as recorded, ... 11 The Republic '-.s unaware of. this file< Both Courts 2 below understood this to mean that the prosecutor was unable to proceed because he did not have the case file. In response.to this the trial Court acquitted the respondent on the ground that "a Police Officer wi"t-hout -- a police case file is as good as being absent". In support of this decision he cited Section 222 of the c.:imina~ __?rocedure Act a.n,_(l__:the decision of r,~unyera, J. · in the case of R. v Mwita Nyagitimo /J98'ij TLR 317. On appeal by the Republic, the High Court upheld the decision of the lower Court, hence this second appeal. :Before us the Rapublic was represented by Mr. Tendwa, learned Senior State Attorney while the respondent appeared in person. The memorandum of appeal sets out only two grounds of appeal. Essentially they allege that both Courts below wrongly applied the law to acquit the respondent, and that the only proper course open to them was to discharge h.im. Section 222 of the Criminal Procedure Act which the tri.8-3-__magistrate rel.ied_ on t:O.::acquit the respondent provides that:- a222. If, in any case which a subordinate court has jurisdiction to hear arid determine, the accused person appears in obedience to the ,, . sr>J'.l@ons, served upon him at tho time and place appointed in the sumn1ons for the hearing of the case, or is brought before the court under arrest, then, if tho comp:i.ainant, having had notice of the time and place appointed for the hearing of the charge does ::1ot appear, • . / I 3 the court shall disr..1iss the charge ai~d acquit the accused person, / ·" I unles2 for some reason, it shall I 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 talce such security for his appearance as the court shall think fit. " During the first appeal the learned judge conceded to the arguments by Counsel for the Republic that the provisions of this section were not applicable to this case and .that the trial magistrate wrongly cited and relied on it to acq_uit the respondent. 'c"Je also aB-ree. We thinlc thatJ section 222 can properly be invoked only where, in a private prosecution, the complainant does not appear. But where prosecution is undertaken by the State, the public prosecutor becomes the. complainant and the actual complainant i.e. the victim of the offence, is only a :prosecution witness. Thus if, as in the present case, the public prosecutor was present on the appointe.d date, that took the case out of the ambit of section 222. ,, 11· However, the learned judge in effect took the view that the triaJ. magistrate was empowered to a·cqu{t· the respondent as he did acting under section 225 and 230 i ~ of the Criminal Procedure Act, and that his •citing of, : L• 'I I and purporting to rely on, section 222 did not detract from his powers undei~ sections 225 and 230 to acquit the respondent. We shall set out the provisions of these sections for closer exar11ination later on in this j1<1-dgement. I' • . ' 4 - The learned jud.:;e was clearly of tile view that the court has discretion whether or not to adjourn a case9 that where it refuses adjournment the only course open to it is to·acquit the accused and that the.only important matter for consideration is whether or not ' the discretion to refuse the adjournment was exercised r properly. It was in this connection that he oited with approval the decision of Munyera, J. in Mwita•s case already cited above and further relied on the decision of the Court of Appeal for Eastern Africa in the Uganda case, _of .llg!:'.J).da v. Hilenge and Another {i979} E.A. 269, Mwita•s case was one where the trial magistrate had acquitted the accused after refusing an.application by the prosecutor for adjournment and the prosecutor had failed to proceed. beau.use he did not have the case :file. In a£firL1ing that decision Munyera, J. held that the trial magi st rate had disci~etion under section 201 ( 1 ) of Criminal Procedure Code whether or" not to grant adjournment, thut the trial magistrate had properly exercised that discretion and that once the adjournment was refused the only course open to the magistrate was to acquit the accused under section 205 of the Code • .I,ik_ewise in I11ilc1;§.:__'_s ca.se the Court o:f Appeal for Eastern Africa upheld the concurrent decisions of the Resident 1'1o.gistratc Court and the High Court of Uganda acquitting the accused after the magistrate had refused an application by the prosecution for adjournment and, following such refusaJ. 2 the prosecutor declined to adduce evidence even though the ~-ritnesses were present •. • The acquittal was barJoe. on the provisions of. aection .. I' r I 5 It has to be pointed out that section 201 of the Criminal Procedure Code which t1unyera, J. relied on in deciding Mwita 1 s case was :r<:?..:::Cnacted with substantial / amendments by section 225 of the current Criminal Procedure Act No. 9 of 1985 which was already in force at the time the present case was decided. Section 225 of the Act now provides that:- "225 - ( 1 ) ·Subject to sub-sections (3) and (6) before or during the hearing of any case, it shall be lawful for (' the court in its discretion to adjourn the hec:.i.ring to a certain time and place to be then appointed and stat0d in tho presence and hearing of the ,. ' party or parties or their respective 4 ,,, advocates then present, and. in the moantili1c tho court may suffer the __ .R:E.!son to go at ..l..a.rg.e, or may commit hi.Ll to prison, or may release him _I if ,· upon entering into a recognizance with or v,i thout sureties at the discretion of the court, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned. (2) The provisions of ·sub- section ( 1 ) notwi thstandi1ig, no such 2- adj ourrunent shall be for more than thirty cJ.ear days, or if the; accused:.. person has been committed to prison, for ruore th8l1 fiftc0n clear days, the day following the.t on which th'" adj our:ru:nent is made being counted as tho first day.• (3) The court may commit the accused person to police custody - • 6 I (o.) for not more. tha.'1 three clear d~yc if thero is no prison within five miles of the court house, and may from time to time further commit such accused person_j;_Q police custody for a period of not ~ore th::m fifteen days in the aggregate; or I Cn) for not more than seven \ clear days if there is no f I _prison within five miles t@ of the cour~ house and the court doe.s not intend to sit again at such court house within three days, and may from time to time further commit such accused person.to i t police custody for a period i ! 1 . of not more than fifteen days in the aggregate; i or .,... I •· ) · (c) at thp re~uest of the accused person, for not more than ci. \..... fifteon clear days. \ ) (4) Except for cases involving l f offc:::ices under sections 39, 40, 41, ;1 I 43, 45, 48 (a) and 59, of tho penal I'. ! code or offences involving f~aud, con0piracy to dofrQud or forgei--y, · it shall not be l'"w,ful for a court to adjourn a case, in respect of offences specified in the First Schedule of this Act, under the pro- visions of subsection (1) of this section for an aggregate exceeding sixty de..ys except under the following circumstances·: ' ~ ---..:..~_...;,/4~ / 1 (a) 1'/hercvor a certificate by a Regioml Crimes Officer is filed in court stating the need and grounds for adjourn- ing the cnse, the court may adjourn the case·for a fu.rlher period not exceeding an aggregate of sixty days in respect of offences stated in the. First Schedule to this Act. (b) Wherever. a certificate-is filed .in court by the .State Attorney stating the-need· and grounds for seeking a · fu_rthcr c.:dj·ourrim.ent beyond · tho.adjournment made under paragraph (a), the court \ 1 shall adjourn the case for a further period not exceed-· ing in aggregate of sixty days. ( C) Wherever a certificate is ! ,a,, filed in court by tho .i • .• J ,\ Director of Public :·l· ,;--/_;,, ........ ~ Prosecu.ti~~s or a person 'i' ·i' . ~uthorised by him in that " {_,. f. ·: · behalf stating tho need for and grounds for a further adjournment beyond the adjournment made under fnragraph (b), the court shall not (sic) adjourn such case for a po.riod exceeding an aggregate of twcr..ty four :c1onths since .. I the date of the first adjournment given under para.gra.r,;h ( c. ) • • f / / T -~ .,.·.A, '." J ... :~·L , ::._;: :,:: "; 8 !_:;\ :/ ,t:'.:'.,1•. , ( 5) ;711erc no cortificato is filed ' . 1' ~ ,/ under tho provisions of sub-section .r ·:t.i 'r' (4) tho court shall proceed to hear the case or discharge the 3,ccused in tho court where tho prosecution is unable to proceed with tho hearing ; save th3.t any discharge under this ~ i section shall not operate as~ bar to a subso~uent charge being brought against tho accused for tho snme offence. (6) Nothing in this section shall --r-·· "' .-,/~.'1/ - -·--be construed as-·-IJroviding for the application of this section to any proceedings in a subordinate court in rol3.tion to any offence triable only by the High Court or triable under tho l~conomic end Organised ·l,' Cri:u1c Control Act, 198A. 11 :;,. Under the amended lnw, like under tho 0ld 12.w, tho trial > ,\,, magistrate has discretion whether or not to gre.nt .. ,.a, adjournment before or during the hearing of cases. That ' discretion is provided for in sub-section (1) of :L/\ ~,\ i ;.-.:~_;::, i ;ji section 225 of t11c Act. However under the present law 1zl I th0 court has groc1ter powers of controlling adjournments than it had before the amondm0nt. Thus sub-section (4) liys dovm____t:"_ time table or-s·chcme for graiiting adjournments { ' ~ ' with refer0nce to the majority of the offences under the / !\: l Penal Code. Under this scheme the Court is empowered to I; \:' refuse adjournment unless certain requirements are met, tt; and in any event adjournments can only be granted for . Iti ,. ! ' specified periods. · The Court is further empowered '( ;i. '~ fl j.! l1!'l under sub-section (5) t:> discharge tho accused if the •I •\1I, scheme for•gre.nting adjournments under .sub-sectio~ (4) 'j has been exhausted and the prosecution is unable to f,l~ I ¼ 'f ,:._ I ! I 11 I:,!_ \'l:.'.=:--- = :: - - ----c-j~ --------, ~~;::·~ ,-.. ~~~?-~?:~~~~':'!_ .. .. I l. ·1· I ,... • ~.,i . . 'I 'l •·:; ~,. r) \ ·, ;J . ··'.,..'1' ,t• -i: I :, proceed with the hec..ring. Gub-ooction (4) ~d (5) wore / introduced by the arnendmcmt. : tJ As intimo,tod c2.rlicr the 1carncd judge on first :1 a1;;-:.;ieal, adopting tho reasoning in Uwita's c2.so9 took .i the .view that once the mc..gistrate had re.fused adjournment • ! i· and the prosecutor was unable to proceed then the only_ t l I course open t-o him (the magistrate) wa.s to acquit the ' accused. That view is wholly un.,cenable }:aving regard to the provisi.ons of sect:i_on 225 ( reproduced above) ... (, r· which were in force at the materia:l tiri'.e. i.:Yhether or not that wa0 the coTrect; view o.f the law at the time I1iwita 1 s case was decided, i.e. bef.ore the amendment 9 is not relevant to consideration of the present appeal and we need not go into it. Under the present law 9 however 9 i t is clear that in the circumstances stated au0v-e i t was open to the magistrate to discharge the accused~// . In affirming the ;res~ondent's acquittal _the learned judge again followed 11wi ta' s case :tn which it ,vas held ,.~. ( Q(:. ., . ,1 ... that in the circumstances such as stated above the magistre.te had rightly invol;:8d ·che provision.s of section i I 205 of the Criminal Irocedure Code v1hich is a1nost identical to sect~.on 230 of the C:i:-:i.n:i:1"'· ?rocedure 1ict, #;_Ml.. ' ·li'f.,i'tf' .•.,. -,~ .. fj. t} Again, he relied 011 J!iil~~~e' s case whe~:-e ·i:;he Court o:f . \c,,!fi,: _, .•~..;:<-.'." Appeal for Eastern :\f:i..•ica also too:: the vi8w that snch circumstanc~s-~nti tlecl the ma0istrate to act under section 202 of the Uc;anda Criminal Procedure Code which again is substantially the same as section 230 of our ',\ ·Criminal Procedure Act. Section 230 of the Criminal Procedure Act providep tha,t ~ • I l, '''t l ) !,, t, ____ .- I 10 n230. If at the close of the evidence in support of the charge 9 it appears to the court that a case is not made out ac;ainst Ufe- accused person sufficiently to require him to mak~ a defence either in relation to the offence with which he is charged or in relation t o ~ other offence of which he is charged or in relation ·co any other offence of which under provisions of sections 312 - 321 inclusive of this Act, he is.liable to be convicted, t~e court shall dismiss the charge and acquit the accused person." A difficult question arising here is whether-where, as in this case, the Court refuses an adjourzunent and the prosecutor fails to adduce any evidence, this amounts .t.o- closing the p.:i::osc.cution case thus bringing the case within the ambit of section 230 of the Criminal Procedure Act. In answering that question in the affirmative the Court of Appeal in r,iilenge' s case found that the prosecutor, in refusing to lead any evidence from the witnesso~ who were present, had put the Court in a position where, having regard to the Ugandan taw as it stood then, the Court could do nothing else but to acquit the accused. But that was not so in the present case where the witnesses were not present and the prosecutor did not ·even have the case file. Howeve-r, the more important consideration j_s that the Court in the present case cannot be said to have been put in a .po_si:ti.on__where it could_..do. nothing else except to acquit. . For, as amply demonstrated befo:cG it was clearly open to it to dischar.30 the accused. ~ The case, therefore, is ' I 11 / clearly distinguishable from milongo's case. On the other hand Mwi ta I s case has now been overtaken by events. For,. at the time of deciding the pr6sent case the law had already been amended by clearly providing for the power by the magistrate to discharge the ac(:used. · ·1t.. therefore :follows that in -this case· the question of closing the case for the. prosecution· did not arise,. ·and· could in fact have arisen~ For, tho·prosecutor had not led any evidence, nor were any of his witnesses · ·present. In those circumstances. we. are satisfied that the provisions of section 230 of tho Criminal Procedure Act were completely inapplicable, and there was no basis ·at all for tho respondent's acquittal •. The case was governed wholly ·by tho provisions of section 225 of the !: l Act.. That section docs not provide for tho pov,er to f:: :, acquit·. · Ar.ting under it the magistrate should first of fe• ... 'i; all have exhausted the time table for adjournments as provided for in sub-section (4). There is no evidence that he did this. If, after the magistrate had done that the prosecutor was· 1,mable -~o proceed with the hearing of the case, 'then he should have dis~harged the accused under sub-section ( 5) which makes it ·clear that such discharge does not operate as a bar to subsequent prosecution against the accused for the same offence. For the reasons we have given heroin we arc satisfied that tho respondent was wrongly acquitted, and the learned judge erred in dismissing the appeal before him. In the result we allow tho appeal by the Republic. vie set aside the acquittal a...r1d direct that . • - 12 - the respondent be tal{cn back to the trial Court for that Coi,trt to proceed with the. matter in accordance with the law, .. ·. • L. M~_J.!WW!E J!{STI CE., pF APPEAL R. H• . ICI&NGJ. JUSTIOj OF APPEAL ~ Z. Ltr.BOV A JUSTICE OF APPEAL •; _' I• ~ . ,. \ (/ ~- ~ i f y -~--~a a u,w copy of tho original. \.) \· .. \·•<-:.- '•:..:..: •