20060724 TZHC Dar es Salaam

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IN THE HIGH COURT HIGH OF TANZANIA

AT DAR ES SALAAM CRIMINAL REVISION NO. 8 OF 2006 (Originating from District Court of Temeke Cr. Case 430/2003)

JOHN MARWA PHILIP MAZWAZWA APPLICATN

VERSUS

THE DPP RESPONDENT

RULING Mlay l, This ruling is on a preliminary objection on a point of law raised by Director of Public Prosecutions to an application for revision. The applicant through his advocate Mr. G.S Ukwong'a, filed_ an application for revision of the proceedings in Temeke Criminal Case No 430 of 2003. The application has been made under Sections 30 (1) (a) (c) and 44 (a) of the Magistrates Court Act 1984 "and any other Relevant provisions". The application is supported by the affidavit of the applicant, one JOHN MARWA PHILIP MAZWAZWA and of Mr. Ukongwa, Advocate. The Director of Public Prosecutions through Mr. ONORIUS JOHN NJOLE, State Attorney, filed a Counter- Affidavit as well as a NOTICE Of PRELIMINARY OBJECTION on the following points:- 1 Ir 1. The application is bad in law for being made under the wrong law.

2. The applicant has an alternative remedy apart from revision.

3. That the application is bad in law for contravening section 378 and 373 (1) of the Criminal Procedure Act Cap. 20, 2002" At the hearing of the preliminary objection, on the first point Mr. _ _Njol~ su_g_mitted that t_he aeplicatio_i:!_ should have been brought under the Criminal Procedure Act, 1985 and not under the Magistrates Courts Act.

1984. Mr. Njole argued that the provisions of section 30 and 44 of the Magistrates Courts Act govern proceedings originating in the Primary Court while the matter which is the subject of the application for revision, are proceedings in the District Court Temeke. Mr. Njole submitted that the application having been brought under.- the wrong law is not properly before this court and should be dismissed. On the second point, Mr. Njole submitted that the applicant was supposed to have proceeded by way of an appeal and not by revision. He cited the Case of IDD RASH! AND OTHERS V REPUBLIC CRIMINAL APPLICATION NO. 3 of 2003 (CA) (UNREPORTED) in which he said, the Court of Appeal has stated that if the applicant has an alternative of an appeal, he cannot proceed on revision. He concluded that the proper remedy to the applicant is an appeal and 2 not revision. Mr. Njole wisely in my view, dropped the third point after discovering that it was meaningless. Mr. Ukwong'a resisted the preliminary objection. He submitted that the application has been brought under proper provisions. He argued that the provisions of the Magistrates Courts Act which have been cited are proper because they empower this court to call for any proceedings be it from the Primary Court, the District Court or the Court of the Resident Magistrate, to find out if the matters in issue are correct or whether the lower

court has acted properly. He conceded that there are several provisions in the Magistrate's Courts Act which give power to carry out such functions. He said section 372 of the Criminal Procedure Act 1985 has similar wording as found in section 44 of the MagJstrates Court Act, 1984. He said he did not agree that the power of revision under the Magistrates Courts Act apply only to proceedings originating from the Primary Court, as argued by the State Attorney. Mr. Ukwong'a submitted that he is aware of several other provisions on similar powers, that is why in the chamber summons he has referred to "any other relevant provision". He argued that under normal circumstances it is for the Court to exercise the powers of revision but the court may not be aware of all cases that is why this application has been brought. He submitted that the application has not been brought under the wrong provisions of the law. That took care of the first point. 3 On the second point Mr. Ukwong'a submitted that the application is seeking for the calling of the District court proceedings and rectify errors which have been specified in the affidavit. He contended that he believed these errors can be cleared through inspection of the file. Mr. Ukwong'a conceded that the matters are appealable but argued that they can be dealt with by revision. He therefore submitted that the application is properly

before the court. The first issue for determination is whether this application for revisfon- fi~fs oeeh- b-ruughtunder--t:Re-wrong law_as sub_rtiitted --- by- -Mr. - --- - Njole, learned State Attorney. The application has been made under sections 30 (1), (a) (c) and 44 (a) of the Magistrates Courts Act, 1984. Section 30 (1), (a) and (c) provides as follows; ''30 (1) The High Court shall exercise general and supervision over all Courts in the exercise of their Jurisdiction under this Part and may at anytime- (a) Call for and inspect the record of any proceedings under this part in a district court or primary court and may examine records or register thereof, or (b) ............... [ not relevant] (c) [does not exist] 4 Section 44 (a) of the Magistrates Court Act 1984, which has been relied upon does not exist. What exists is section 44 (1) (a) which provides as follows; "44 - (1) In addition to any other powers in that behalf coffered upon the High Court, the High Court- (a) shall exercise general power of supervision on all district courts and courts of a resident magistrate and may, at any time call for and inspect or direct the inspection of the -retards- -of such- errors- -and- give _s_ucb _di_re_ct[ons as it considers may be necessary in the interest ofJustice, and all such courts shall comply with such directions without delay; (b) [notappllcable]n Section 30 of the

Magistrates Courts Act, 1984 which is the first provision which has been invoked by the appellant, falls under PART III of the Act; which deals with "JURISDICTION AND POWERS AND APPEALS, ETC FROM PRIMARY COURTS." Since the proceedings being considered for revision originates from the District Court, it was wrong to invoke section 30 to move this court to exercise its revisional powers. To this extent, I would agree with the learned States Attorney that the provisions relied upon relates to proceedings originating from Primary Courts and not from District Courts. This application was therefore brought under a wrong provision of the law. 5 Section 44 of the Magistrates Courts Act, 1984, however, falls under Part IV of the Act, which makes provision for "Original Jurisdiction and Powers of, and Appeals etc; from District Courts and Courts of a Resident Magistrate'~ The provisions of section 44 of the Magistrates Courts Act 1984 apply to proceedings in district courts as well as courts of the Resident _Magistrate. They do not therefore apply to proceeding in the Primary Court as argued by the learned-State-Atton:iey .. However _ in the chamber summons the applicant has cited section 44 (a) of the Magistrates Courts Act, 1984, a provision which does not exist. The chamber Summons has been drawn up and filed by an advocate who is well conversant with the law and who has access to

the Magistrates Courts Act. The citing of section 44 (a) of the Magistrates Courts Act, 1984 which does not exist cannot be attributed to unfamiliarity with the law. The application has been brought under the provisions of section 30 (1) (a) (c) which is a wrong provision of the law for reasons that it applies to proceeding originating for the Primary Court and also that paragraph (c) of subsection (1) of section 30 does not exist. It has also been brought under section 44 (a) of the Magistrates Courts Act which does not exist. The net effect is that this Court has not been properly moved by reason of citing a wrong 6 . • provision and a non _ existing provision of the law. The application is therefore improperly before this court and it is accordingly struck out. As a result of the decision taken on the basis of the provisions relied upon for this application, it is not necessary to consider whether an appeal was the proper avenue available to the applicant. I would however caution that, referring to "other relevant provisions of the law" without specifying the said enabling provisions is a _ practice which must be discouraged by this court. The party intending to move the court to ·take ·any action, -is bound to spec;:ify the provision under which the court derives the authority to take the action or other measure sought by the party concerned. It is not for this court to go on a fishing expedition to find out the so called "other enabling" or "relevant" provisions of the law. In the final analysis this application is in properly before this court and it is accordingly struck out. J.I.Mb JU ---- E Delivered in the presence Mr. Ukwong'a advocate, the Applicant and Ms Chilongozi State Attorney this 14th day of July 2006. J.I. JU 24/7/2006 7