19920617 TZCA Dar es Salaam

' ··/ •·/ . . ."' . , (2 • 1 I I BE1WEEN i· ,,·' i JOHN MAK ON YO @ M,'J<ORE. • • /.PP ELLA NT 'I A.NI) I · ?HE REPUBLIC. • • •. •Ii • • • RESPONDENT (AJ!l'P~al from ·the--lecision of the High CO'\trt "'.tf Tl!!-nlania at Oar··•• . I ( Msumi, &. ) : f dated the 10th dai of August, 199(1 :, '1 in I I 'i ,, it ii ,I tcoDomic Crime Arpeal No.~' of 1990 - - - - ·I'I JlJ:JGEMENT OF THE lCOUil.T 'I ;i 1· I I " 1, £½"~ J.-A.i '. I! ',, ,I (' The ,p;,,ellant John •-akonyt with eight other, 1' rre I ,, I ~ar~ed with v.arious counts under F.cortomic and &r!llinizcd {I j; I I Crimes Act and under· Penal. Co-'ie..... The.. offe'l"Ces were c=r:-J.ttec- ;11 I in the year 19"5• On Hi/2/90 the ----__l- - O accused rersnns ap;;-<?·a·re,i. I ' f I 1 I I Vefore the W':1.strict Court of Ilala at Kisutu and wefore e-,e l · II charges c0mpr1sin~ of 12 count~ cculd be read to t/•hem tr.-~ ;:c!ice I f I ·',I J.I officelf who wos the public prosecutor in the Cou»t roo1T, ! »eside~ I- I 1'y Resident Magistrate Mr. Maci1essa. stood u• and tid th:, U-.e . -11 . . ! prosecution of that case was ionductcd by the Sta~e Attcn-:;,y •nd he was net there. He then asked fer adjournmknt. u l I' I I Mr, Marando, the defence coun~el then prayed for !the cr.arge ' ' ... , . .112 I i ... ,f', I I i 2 to.»e dismisse~ and the accused rersons to »e acquitted • • ·Mr. Mchora another defence counsel also stood up and agreed with Mr •. Maran~o' s surmission. He further added that ... it was then 12;30 p.m. and the St~te Attorney was no ,. where tc be seen. Mr. Magessa then gave this order: Charge is dismissed under section 226 ( 1). c. P. /,. for; non-ap~earance of complainant. Accused·persons are acl!ui tted. The n·.r.p. Wo!!S dissatisfied with this crder an• , he a,-pealed tc the High Court which reversed the decision of the District Court and -ord,:rcd that the 8 accused .persons should stand their trial. Mr. Kalunga, learn~ ..advocate for the first accused has brought this appeal praying1for the I , order that the decision of the D1.strict Court dismissing the char,_es and acquitting the appell:mt be restored as it was not faulty to have acquitted them as was held by the I lc:1rnei Hi!h Court judge. Also that it was not proper tc have considered ~hillir Mgandile the.police ~rosecutor as a su~stitute I for Mr. Teemba the Principal State J\.ttcrney who had 1 ' ~o•e to 'tnat Court with his cases to prosecute. This i,ieunderi.tHmdino led the High Court judge to consider i the (!ar, to day !)rosecutcr in ·the District Court of Kis•t• as the Republic's representative cf all ca~es that appear ·):,efore that Coe.rt simply because he was presrmt in I the Court room. • ••••• /3 • • I I 3 We know that it is the usual pr~tice of the • C:ourt be it District Court, High Court or Court of Appea'l•• ·to have varicus representative8 cf the cases in the torm of State Attorneys /rem Attorney General's Chembers, pcl1ce proseeutors frem DCI <1.e. Director of Ctiminal who are legelly train,.~d and qualified. They l'!SSemale in the court i;-cx;ms. ~ 1 ting t ~ r .1ndi»1,du.,t . , In this pecticular case the pr0secutor was Mr. Te'emM • \he st~te Attor~ey; he had the files and was ex,ected to h~ve • pepart>d for; th.em and to be seized of all the inform;,_iticr, ...their · --·· · ecneer~ingi_ · state of prepl'!redness. The a~sence of Mr. Teemb?. was therefcre the abse~ce cf \he Complainant l'!nd this led to section 22, (1) Criminal Procedure Act t0 be rightly invoked. The whole ~rgument of the learned High Court judge wes based en reg~rding day ..• to day prosecutor of the fiJtrict Ccurt of Ilala at Kf~utu, Assistant Superintendent Phillip Mgandila, as alsd the plcsecutor of this particular Cnse and therefore C"'}t;ble of answerin9- ~uestions from the court concerning this case.· We therefere hold that the learned judge erred in this regard.· We allow the appecl, restore the d~cision of the District Court, thercay·confirming the dismiss~l of the tr. • I • - 4 charges end the -,,cquit~al of the accu=-0 pert;pns- DATED at DAR ES SALAAM this 17th day c,f June, 1992L --·L,.· M-. MfJ<.'-IME JUSTICE '&p· APPEiJ., R., H~ KIS;,NG/\ . JUSTICE OF APPEAL A. M. A. t M!iR JUSTICE ~fl APPEAL. 1 l'. ~erlify th6t. this. is a ti-u.e. eopy of the i:Jr'l.,ginli.l. I /.I/ }£~~?--_j_A/ vI L. J. K;\LEGE~l', J SE~ I8R DEPUTY RE:GtSTRi,R~ 1 •