john christian waage vs smz 1996 tzca 27 12 june 1996

IN THE COURT OF APPEAL OF TANZANIA

AT ZANZIBAR {QORAM: RAMADHANI, J.A., MNZAVAS, J.A., And MFALILA. J.A«) CAfM'V#** *r7>/>#Tr*- 3 ? <&- /f?S' ■ JOHN CHRISTIAN WAAGE ............ APPELLANT AND S.M.Z, .................. RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Zanzibar) (Dahoma, J .) dated the 7th day o f Febriary,* 1995 in Criminal Appeal No, 20 c' 199^ SMftRI REJECTION MFALILA, J.A.: In the Regional Court of Zanzibar r: Vuga, the appellant i Jon Christian Waage was charged with thre „■ counts involving stealing by agent contrary to Section 2^8 '?)(b) of the Zanzibar Penal Decree Cap. 13 of the Laws of Zanzi1ar, He denied the charge in all the three counts. Before ‘■.he case was set down for hearing, one Mr. Awadh who appearing ' ir the accused, asked the court for permission to address it on a preliminary point of law that he was praying that the Court turn this case into a Civil Case, The reasons given by Mr, Awadh for this unusual prayer are not only so general in nature that 'it if impossible to give them any legal tou#ht but they cite no legal provision to back them, Mr, Awadh addressed the Regional Magistrate in support of his preliminary point of law as foliowe: "In our affidavit, there is a prayer that this case against the accused Is more of civil .nature than criminal. The. crux-of the-case is a civil debt, and nobody -sho-uld be allowed to recover.__ his wivil debts

through .criminal procedure. There is a special procedure used in- obtaining civil ..rights. This is a civil procedure. It is an abuse of court ..process to try to"recover your civil rights through criminal procedures* It is only through civil procedure that the rights of parties can be determined, - 4>- It is a law of the land that right of ..civil right cannot be obtcined through r' r;‘ ti- criminal procedure* It is a-wrong use of public time 'and tax payors1 money, to try to force civil case to criminal f , ► procedure. In civil cases there is a procedure of costs*. Therefore to use the public and tax payers* money to enforce your right in criminal .procedure is not a right, Onee there is a civil reaction, then any dispute-naturally gives right ■ 1 rfc; ■ to civil case criminal cu.se* ' It must be considered that all'civil case entails *' * ■' J.:' ■■ ' civil characteristic.'v It is technically difficult to make, a demarcation which is criminal and. which -is xivil; ' Even if it is the intention of the-complainant to - «$ •punish the accused, then in' civil matter he ca» do55it^.lIndeed it,.is a practice ;i of this court to prefer civil ‘whenever i,,•# it appears that the issues tackle by - 3 the court is in doubt* The most recent case was R v Trie Toyer (?) ... ... It was decided that thie case is a civil matter and the court decided to tackle the matter as civili? ...

••• These submissions speak for themselves and we fail to understand how Mr. Awadh could have quoted a decision of the Cegional Court as authority for his- propositions. Of course we do not know in what capacity Mr. Awaclli appeared in. the Regional Court. Surprisingly, the Regional Magistrate agreed with these submissions general as they are and without any legal basis to support them. He rejected the submissions of the prosecutor that he be allowed to prove the case against the appellant. The Matistrate then proceeded to make an order which is nowhere to be found in the Zanzibar Criminal Procedure Decree Cap, The learned Magistrate made the following order: "The Court having heard both sides arguments, it is of the opinion that since the accused person was a representing agent in Zanzibar as Zanzibar Estate and Property of which he was the share holder and Managing Director, it is certain that their relation is more of a civil relation than a criminal. The main claim in this case is about the -'-••’-'Tery of USD 15 f000 which can be easily -'Iaimed in civil suit. This Court is therefore ordered that the ....A ~ if - case should be opened in Civil Court as a civil case-** The S.M.Z. appealed to the .-Zanzibar High Court against this decision where they argued correctly that the Regional Magistrate had no power to make the kind of order he did and ad^ed the High Court to

restore the case so that the S.M.Z. can proceed with the criminal case against the appellant# The High Court (Dahoma, J.) allowed the appeal and ordered that the criminal case against the appellant be restored. Aggrieved, the appellant lodged this appeal complainir.g that the learned judge erred in law in ordering the trial contrary to the decision of the learned Regional Magistrate which he had correctly delivered after the evaluation of the facts as disclosed in the various affidavits* We are satisfied that this appeal has no merit at all. First of all in his ruling, the Regional Magistrate seemed to think that a director or shareholder cannot steal from the I company of which he is a shareholder, A company has a separate existence from its shareholders, its owners, therefore such share­ holders can oommit torts as well as criminal acts against the company. Secondly, we are not surprised that Mr, Awadh was not able to give any legal support to his extraordinary submissions because there is none. The Regional Magistrate had power to dispose of the criminal case before him in only three situations. After hearing the evidence, or upon withdrawal of the complaint under Section 172 and upon a nolle prosequi being entered by the Attorney-General under Section 75 of th« Criminal Procedure Decree, In the instant case, none of these events occurred, the order which he made converting the criminal case before him into a eivil case was without statutory power, it was null and void. The High Court therefore properly set it aside and ordered restoration' of the criminal case against the appellant. For these reasons and as we have already indicated this «ppoal has «n»r3_t and «w»narily re j«ct At* DATED AT DAR ES SALAAM THIS 12TH DAY OF JUNE, 1996. A.S.L. RAMADHANI

JUSTICE OF APPEAL N. S. MNZAVAS

JUSTICE OF APPEAL L. M. MFALILA

JUSTICE OF APPEAL I certify that this is a trtte copy of the original. ( M.S. SHffNdtALI )

DEPUTY REGISTRAR