20151026 TZHC Arusha

p · IN THE UNITED REPUBLIC OF TANZANIA ' I IN THE HIGH COURT OF TANZANIA i (DISTRICT REGISTRY) I AT ARUSHA CRIMINAL APPEAL NO. 10 OF 2015 I I · (Originating from the Urban Primary Co~rt of Arusha Criminal Case No. 466 of 2015, and Arusha District Misc Criminal Application No. 20 of 2015) , I I KASIMU KAZIMOTO LOMBO ................................ APPELLANT I VERSUS I HALIMA MOHAMED MUSHI .•........................... RESPONDENT Date of last order: 2/11/2015 l Date of judgment: 26/11/2015 JUDGMENT MASSENGI, J. l The appellant KASIMU KAZIMOTO LOMBO being aggrieved by the 1 ruling of the District Court of Arush a (Hon. NGOKA, DRM) in Misc. Criminal I Application No. 20 of 2015 appealed before this court on the ground that; 1. That the trial Magistrate erreb in law and in fact to refuse to transfer I Criminal Case No. 466 of 2015 from Urban Primary Court of Arusha 1 to itself so as the appellant can be presented by the private advocate against the Criminal Case. I In this court the appellant was represented by Mr. Rumende learned ' counsel while the respondent was represented by Mr. Osujack learned 1 Advocate. Parties agreed to argue this appeal by way of written submission and this court granted the prayer. The appellant was ordered to file his submission in chief by 12/11/2015, the respondent to file reply submission by 19/11/2015 and rejoinder if any to be filed by 23/11/2015. Both parties complied with the scheduling order. Arguing the first ground of appeal, the appellant's counsel submitted that the appellant was charged in Arusha Urban Primary Court, contrary to provision of the Penal Code. Since appellant has rio legal knowledge of the law, he opted to hire a private advocate for the representation. It was further stated that after being approached by the appellant, he filed a Misc Criminal Application to pray to the District Court to transfer to itself the Criminal Case so that he can offer services to the appellant. The application was heard inter parties and finally determined, from which the decision was not in favour of the appellant. Learned counsel for the appellant further stated that we are all aware that advocates are not allowed to represent clients in Primary Courts and referred this court to section 33(1) of the Magistrates' Courts Act, [Cap 11 R.E 2002] which provides that; "S.33 (1) No advocate or public prosecutor as such may appear or act for any party in a primary court" He contended that from the above legal provision he prayed to transfer the Criminal Case so as they can offer legal services to appellant. He contended that, the representation of an accused is a legal right, which is clearly shown or provided in the provisions of Criminal Procedure Act, [Cap 20 RE 2002] particularly S. 310 and added that there is series of· 2 I j I I precedents which provide for a legal- right to be defended and engage i advocate and cited the case of HASSAN MOHAMED MKONDE & I ANOTHER V REPUBLIC 1991 TLR (HCt PASCHAL KITINGWA VS R 1994 65 (CA) and the case of YUSUFU GIITA VS R 1958 E.A 211. Basing on the above, he prayed this G:ourt to allow this appeal so that the . Criminal Case instituted in Urban Primary Court be transferred to the I j District Court for trial where the adyocate shall have an opportunity to I defend the accused person. 1 I Opposing the appeal, learned counsel for the respondent started by . attacking the case of HASSAN.' MOHAMED MKONDE VERSUS ' REPUBLIC (1991} TCR 148 as cited by the appellant's counsel in his submission contending that, that ca~e I is distinguishable from the case at hand in several ways;- / Firstly, the High Court was 'dealing with the matter where the I Advocate has been engaged but due to persistent defaults to appear, the I subordinate Court decided to procEjed in his absence, while the case at ' hand relates to refusal of the District Court to transfers from Primary Court ' 1 to itself for the only reason being to engage an advocate. I Secondly, the Court was expounding the right to legal representation I in provision of section 310 of the Civil Procedure Act No. 9 of 1985 which is I inapplicable in Primary Court hence not applicable at the case at hand. He further added that eveh where the above cited case was ' applicable to the case at hand, it would have been in support of the respondent position since the High Court dismissed the appeal and I I j I 3 I l I j required the right to engage an Advocate to be considered along with other rights.· It was further submitted that the counsel for the appellant submitted much on the right to be represented by advocate and avoided the fact that his appeal was not a denial of representation but dismissal of an application for transfer of the case from Primary Court to District Court. He added that, although section 47 (1) of the Magistrate's Court Act (Cap 11 R.E 2002) allow transfer of cases from Primary Court to District or Magistrate Court, there must be genuine reasons to move the court to effect such transfer and cited the case of A.M MLENDA V JUMA MFAUME (1989) TLR 145. He argued that the District Court had the opportunity to hear and finally determined the application but it found neither good nor sufficient reasons to transfer the case to itself and he was of the opinion that the District Court was justified · to dismiss the Application. Basing on that he prayed this appeal be dismissed with costs. After considering the submissions of both parties and having gone through the records of the District Court. I will start by referring to section 47 (1) of the Magistrates' Courts Act, Cap. 11 R.E 2002 which provides that; "(1) Where any proceeding has ~een instituted in a primary court it shall be lawful, at any time before Judgment for- (a) the primary court with the consent of the district court or a court of a resident magistrate having Jurisdiction to transfer the proceeding to such district 4 court or court of a resident magistrate or to some other primary court; (b) the district court or a court of a resident magistrate within any part of the local Jurisdiction of which the primary court is established, to order the transfer of the proceedings to itself or to another magistrates' court; or (c) the High Court to order the transfer of the proceeding to itself or to a magistrates' court" Provision of the law as referred above, allow a transfer of the case from the Primary Court to the District Court/ Resident Magistrate Court provided that there is consent from the District/ Resident Magistrate Court or order from the District/ Resident Magistrate Court or High Court. It is well known that section 33 (1) of the Magistrates' Courts Act (supra) prohibit appearance of Advocates to appear or act for any party in a primary court. The section reads that; ''No advocate or public prosecutor as such may appear or act for any party in a primary court. " In this appeal, the appellant was charged before Urban Primary Court with the offence of theft c/s 265 of the Penal Code, Cap. 16 R.E 2002. As such the appellant seek to be represented by an Advocate. He filed application before the District Court seeking consent from that court to allow the transfer of that case to itself in order for him to be represented but the District Magistrate withhold the consent by dismissing the application basing on the reason that the reason presented by the Applicant to engage 5 an Advocate did not hold water and the same is not a genuine reason to transfer the case. I agree that ignoranc~ of the law is not a defence and it has never been a defence in law but that principle does not apply in the circumstances of this case. I say so basing on the reason that right to representation is an accused's right as stated in a number of cases including the case of PASCAL KITINGWA VS. R 1994 TLR 65 (CA). As appearance of Advocates before the Primary Court is prohibited, then the ' appellant was correct to apply for a case to be transferred to the District Court in order for him to be represent~d. In the case of A.M MLENDA VS. JUMA MFAUME (supra) it was stated that; 11 ........ a party seeking for a transfer of a case from Primary Court to District Court or that proceedings commence in a other than a Primary Court sf?ould show good or sufficient reasons which are qualified and which the court will I consider whether or not to grant the application. " ' Considering the above, now the iss,ue before this court is whether the appellant advanced sufficient of good reasons to justify transfer of the case from Primary Court to the District Co~rt. To me I find the reason advanced I by the appellant to engage an advocate was a sufficient reason to justify ' transfer of the case to the District :court provided that even the District j Court has jurisdiction to hear the case which the appellant was charged ' with (offence of theft). I I Basing on the above reasons, I find that there was no justified reason for the District Magistrate to dismiss the appellant's application for transfer of the case to the District Court in· order for him to engage an Advocate. I' 6 j " On that basis, I therefore allow this ppeal and order transfer of Criminal 1 Case No. 466/2015 from Urban Prima ry Court to the District.Court so as to I give an opportunity to the appellant . t6 I engage an Advocate in his case. Order accordingly. j ' I (S~D) F.H. MASSENGI JUDGE 26/11/2015 I · Judgment delivered in Court this ~6th day of November, 2015 in the absence of both parties. / (S~D} F.H. M~SSENGI JUDGE I 26/11/2015 l I hereby certify this to be a true copt of the original. DEPUjEGISTRAR I . ARUSHA I Words 1,613 7