hamis said luwongo vs republic 2023 tzhc 17269 28 april 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM MISCELLANEOUS CRIMINAL APPLICATION NO. 186 OF 2022 {Arising from the Dar es Salaam Resident Magistrates' Court in Preliminary Inquiry Case No. 5 Of2022) HAMIS SAID LUWONGO................................................................. APPLICANT

VERSUS REPUBLIC......... ................................................................................ RESPONDENT

RULING 22* March & 20h April, 2023 BWEGOGE, J. The applicant herein, one Hamis Said Luwongo, has instituted an application herein under the provisions of section 372 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2022] praying this Court to call for and examine the proceedings and records of the Dar es Salaam Resident Magistrates' Court in PI No. 05 of 2022 for the purpose of satisfying itself as to the regularity, correctness, i legality or propriety of any finding sentence or order recorded or passed, or of any proceedings of subordinate Court. The application herein is supported by the affidavit of Mr. Majaliwa Mohamed, counsel for the applicant. In the interest of brevity, the facts of this case as depicted in the pleadings filed herein are as thus: The applicant herein was charged and arraigned for murder in the Dar es Salaam Resident Magistrates' Court in 2019 where inquiry proceedings were conducted. Eventually, the applicant was committed for trial to the High Court whereas the case was scheduled for hearing during the High Court Session on 24th October, 2022. However, the prosecution had entered nolle prosequi, stating that the DPP had no further intention to prosecute the applicant. Consequently, the applicant was discharged but immediately re-arrested, charged with the same offence and arraigned before the trial court. And, after the arraignment, the

public prosecutor informed the trial court that investigation was still incomplete; hence, prayed for an adjournment whereas the trial court granted the prayer. Allegedly, to date, the case is still pending at the trial court. It is the pendency of the case at the subordinate court for reason of incomplete investigation that the applicant alleges is contrary to the law. Hence, this application. 2 The applicant was represented by Messrs Mohamed Majaliwa and Zidadi Mikidadi and Ms. Fatuma Abdul, learned advocates, whereas the respondent Republic was represented by Ms. Imelda Mushi, state attorney. I elaborating the facts deposed in the affidavit supporting the application herein, Mr. Majaliwa argued that the applicant herein was charged with murder contrary to section 196 of the Penal Code in Preliminary Inquiry Case No. 04 of 2019 whereas he was committed for trial in the High Court in Criminal Session Case No. 72 of 2020 before Hon. Ruboroga - Principal Resident Magistrate with extended jurisdiction. On 24/10/2023, the date scheduled for hearing, the prosecutor, having failed to procure witnesses, prayed to withdraw the case under the provision of section 91(1) of the CPA. The counsel charged that, the case having withdrawn on the pretext that the Director of Public Prosecution had no further intention to prosecute the applicant, the prosecution could not re-institute the case

at the committing court. That, strangely, the prosecution has been recorded stating that the investigation is incomplete and praying for further adjournment of the case whereas the applicant remains incarcerated in the remand custody. The counsel opined that the pending criminal proceedings at the committing 3 I court are illegal and in contravention of the law and sheer abuse of the court process. Further, the counsel argued that the pending criminal proceedings before the committing court offend the provisions of section 91(3) of CPA brought about by the Written Laws (Misc. Amendment) Act No. 1 of 2022 which was aimed to control the abuse of power by the office of the Director of Public Prosecution. On the above premises, the counsel prayed this court to find the proceedings pending at the committing court irregular, nullify the same and set the accused person/applicant herein at liberty. On the other hand, Ms. Mushi countered that though this court has the power to revise the order and proceedings of the subordinate court, in line with section 372 (1) and (2) of CPA; however, the power of this court is limited to the circumstances where there is an order or sentence which can finally dispose of the matter. That there is no order entered by the trial court which this court could call for, and examine or review the same. In tandem with the above, the attorney contended that,

the above argument notwithstanding, the case at the lower Court is committal proceedings which 4 this court has no power to medal with, unless the committal order is entered by the committing court. That, without committal order, this court cannot entertain the matter herein. The attorney referred the mind of this court to the case of Fortunatus Bernard Bundala vs Republic, Misc. Criminal Application No. 115 of 2022 HC (unreported) to bolster her point. Further, the attorney asserted that the provision of section 91 (3) of CPA cited by the applicant's counsel doesn't encompass the criminal proceedings involving murder cases which in nature require investigation prior to hearing. Based on the above premises, the attorney opined that the matter before this court is misconceived. In rejoinder, Mr. Majaliwa contended that the subordinate court has no power to preside over an application of this nature. That the conclusion made by the attorney is incompatible with the provision of S. 372 (1) of CPA under which the application herein is brought. The counsel asserted that the case cited by the attorney is irrelevant in the circumstances of this case. He reiterated his prayer that this application be granted. This is all bout the submissions by the parties herein. s The issues for determination by this court are as under: 1. Whether the alleged illegality of the ongoing inquiry

proceedings at the subordinate court has substance. 2. (If the above in affirmative then) Whether this court has jurisdiction to exercise its revisional jurisdiction on the pending proceedings at the lower court and, or grant orders prayed for. In substance, the complaint lodged in this court is to the effect that: One, the applicant having appeared before High Court for hearing during the High Court hearing session and set at liberty following the prosecution entering nolle prosequi indicating that the DPP has no further intention to prosecute him, the same could not be re-arrested and charged on the same facts. Second, having re-instituted the charge at the committing court, the prosecution could not be heard praying for further adjournment on the ground that investigation is incomplete as it is in contravention of the law. I prefer to quote verbatim the provisions of S. 91 (1) and (3) of CPA, which are relevant in this matter as under: 6 "Section 91; 1. In any criminal case and at any stage thereof before verdict orjudgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in Court or by informing the Court concerned in writing on behalf of the Republic that the proceedings shall not continue, and thereupon the accused person shall at once be discharged in respect of the charge for which the nolle prosequi is entered, and if he had been committed to prison shall be released, or if on bail his recognizances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts. 2 inapplicable.

3. Where the accused person is discharged under subsection (1) he shall not be re­ arrested and charged on the same facts unless there is sufficient evidence and that the hearing proceedings shall commence on his first appearance before the Court." Emphasis mine. The above provisions are clear needing no further interpolation. It is the spirit of the law under the provision of S. 91(1) of CPA that discharge of an accused person upon the prosecution entering nolle prosequi shall not operate as a bar to any subsequent proceedings against him on account of the same facts. Therefore, the 1st limb of the applicant's complaint is patently misconceived. 7 Now, I attend the 2nd and pertinent limb of the allegation lodged by the applicant in that the ongoing proceedings at the committing court are contrary to the law and, or abuse of the court process. In this respect, I have the following observations: First, it is an uncontroverted fact that on 24th October, 2022, the applicant appeared before Hon. Ruboroga - Principal Resident Magistrate with Extended Jurisdiction in Extended Criminal Session Case No. 72 of 2020. Second, it is uncontroverted fact that the prosecution had entered nolle prosequi, intimating that the DPP had no further intention to prosecute; and, the applicant was consequently discharged whereas he was re-arrested and charged on the same facts. Third, the record

entails that on 24/01/2022 the applicant was charged and arraigned on the same fact at the Dar es Salaam Resident Magistrates' Court in the Preliminary Inquiry Case No. 05 of 2022 whereas the prosecution enlightened the court that investigation was incomplete. Fourth, the proceedings of the committing court in respect of the dates of 07/11/2022, and 27/11/2022 entail that the prosecution has been informing the committing court that investigation was still ongoing and prayed for further adjournment whereas the committing court graciously and unquestioningly granted the prayer. 8 Having made the above observations apparent on record of this case, I revert to the provisions of S. 91 (3) of CPA afore reproduced. It is self-evident that wording of the relevant provision in no uncertain terms commands that: "Where the accused person is discharged under subsection (1) he shall not be re-arrested and charged on the same facts unless there is sufficient evidence and that the hearing proceedings shall commence on his first appearance before the Court". Emphasis mine." The word used in the relevant provision afore reproduced is "shall" which is imperative. Arguably, the nature of criminal proceedings facing the applicant being committal in nature, involving the charge of murder, cannot be heard unless committed to the High Court vide the provision of section 246 (1) of CPA. Therefore,

based on the circumstances of the case, it was expected that the prosecution would have informed the committing court that investigation was complete, and prayed for adjournment only to be afforded room to file information before the case was committed for trial in the High Court. It is my considered opinion that, having entered nolle prosequi in the case scheduled for hearing in the High Court session and re-instituted the same in the subordinate court, the prosecution could not be heard stating that investigation was still underway. I need not address the fact that the contention by the attorney for the respondent in that the provision of section 9 91 (3) of CPA was not intended to apply to the cases involving murder cases is patently misconceived. There is no such exception in the provisions mentioned above. Based on the foregoing, I am of the firm view that the criminal proceedings pending before the lower court for the reason of incomplete investigation contravenes the provision of section 91 (3) of CPA. The amendment of the law brought about by the Written Laws (Misc. Amendment) Act No. 1 of 2022 was aimed to cure the infinite pendency of cases at the subordinate court on the pretext of pending/incomplete investigation in respect of the case which nolle prosequi was previously preferred by the prosecution. The subordinate courts should be shrewd and vigilant to ensure

that the dictates of the provisions of section 91(1) and (3) of CPA are complied with lest the objective of the amendment of relevant provisions is rendered nugatory. I, therefore, find the 2nd limb of the applicant's complaint with substance. I subscribe to the assertion made by the counsel for the applicant that the ongoing committal proceedings at the subordinate court contravene the law and amount to abuse of the court process. io I now proceed to attend the 2nd and equally pertinent issue herein on whether this court is clothed with the power to revise the proceedings of the subordinate court and grant the prayers made herein. From the outset, I am constrained to admit that it is the cardinal principle that the jurisdiction of the court to act upon the matter brought before it must be expressly given, not implied or assumed. See the cases of Fanuel Mantiri Ng'unda vs Herman Matiri Ng'unda (Civil Appeal 8 of 1995) [1995] TLR 155 and Republic vs Farid Hadi Ahmed & others, Criminal Appeal No. 59 of 2015 CA (unreported) in this respect. Unarguably, the provision of S. 372 (1) of CPA enjoins this court with power to call for, and examine records of any criminal proceedings before the subordinate court for the purpose of satisfying itself as to the regularity, correctness, legality or propriety of any finding sentence or order recorded or passed, or of any proceedings of

subordinate Court. However, the power of this court aforestated is not without limitation. It is settled law of this land that the High Court has no power to meddle in committal proceedings pending in the subordinate court before the case in question has not been committed for trial. I wish to borrow a leaf from the case of Republic vs Dodoli Kapufi and Another, Criminal Revision No. 1 and 2 of 2008 ii CA (unreported) whereas in determining whether the High Court has jurisdiction to grant bail to the accused before the case was committed to it, the apex Court held as thus: "... it is difficult to appreciate how the High Courtin the instant revision could have the power to grant bail to the applicants, pre-committal and in the absence of any committal order under section 246 (1) of the CPA, which would have submitted them to its jurisdiction. Not only that, save for exhibit to the High Court of information by the D.P.P. under section 93 (l)o the CPA, section 178 creates a bar against the taking of cognizance by the High Court, of a criminal case, unless the same has been properly investigated by a subordinate court and the accused person has b been duly committed to it for trial." In the same vein, in the case of DPP vs Bookem Mohamed @ Ally and others (Criminal Appeal 217 of 2019) [2021] TZCA 188, the superior Court in determining the validity of the order and direction entered

by the trial judge in respect of the case which committal proceedings were still pending in the subordinate court, held: “.................. it is our view that, if the High Court, in Dodoli Kapufi's case (supra) was found to have no powers to grant bail to the applicants on a matter which was still under committal proceedings without prior order which could have vested jurisdiction on it, the matter at hand is even more serious. We say so because, one, there was no illegality, incorrectness or improprieties which ought to be 12 corrected in terms of section 372 of the CPA. Neither was there any order, finding or sentence which needed to be corrected in terms of section 373 (1) (a) of the CPA... Two, there was no committal order by the subordinate court as the matter was still in the pre-committal state which the High Court was prohibited even to take cognizance of it.” Therefore, it is obvious that the application before this court in strict legal sense, is unmaintainable. The issue pertaining to the legality of the pending committal proceedings has been brought up in the wrong forum. The issue herein ought to have been raised before the very trial resident magistrate presiding the impugned committal proceedings who would have made findings thereon. I, therefore, purchase wholesale the argument made by the attorney for respondent Republic in that the prayers made by

the applicant in this court are untenable. In the event, this court finds that though the allegations on the legality of the proceedings in the subordinate court are meritorious, the application herein has been misplaced. I hereby enter orders as follows: 1. The application herein is dismissed for want of jurisdiction to preside the same. 13 2. The applicant is hereby instructed to raise his allegation on the legality of the ongoing committal proceedings before the presiding resident magistrate who shall be obliged to rule thereon with immediate dispatch in the interest of justice. Order accordingly. DATED at DAR ES salaam this 28th day of April, 2023.

0. F. BWEGOGE

JUDGE 14