20060529 TZCA Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA {CORAM: LUBUVA, l.A., MROSO, J.A. And NSEKELA, J.A.) CRIMINAL APPEAL NO. 123 OF 2004 1. KUTOKA S/0 OMARI MFUKO @ FIDELIS } 2, CHIPANTA S/0 MILAMBO . · ........... APPELLANTS 3. SHABANI S/0 YUSUFU · . . VERSUS THE REPUBLIC .............................................................. RESPONDENT {Appeal from the decision from the High Court of Tanzania at Dodoma) {Lyamuya, PRM Extended Jurisdiction) dated the 06th day of June, 2003 in Criminal Appeal No. 15 of 2002 12 & 29 May, 2006 R U L I N G OF THE COURT NSEKELA, J.A.: The appellants, Kutoka s/o Omari Mfuko @ Fidelis, Chipanta . Mirambo; Shabani Yusufu and Mosi Tadei were convicted by the District Court, Kondoa of armed robbery contrary to sections 285 and 286 of the Penal Code and each sentenced to thirty (30) years imprisonment with twelve (12) strokes of the cane. The appeal against their convictions and sentences was dismissed by LYAMUYA learned Principal Resident Magistrate (Extended Jurisdiction). Still 2 dissatisfied with this decision, the appellants have preferred this appeal to this Court. The appellants appeared in person, · unrepresented whereas the respondent Republic had the services of Miss Neema Mwctnda, learned St:ate Attorney. When the appeal was called on for hearing it transpired that there was an apparent irregularity in the proceedings before the learned Principal Resident Magistrate excising extended jurisdiction. The Court felt that it was necessary to be addressed before the hearing of the appeal proceeded ·anyJurther. Miss Neema Mwanda, learned State Attorney, in her .brief address to the Court, submitted that the procedure prescribed under section 45(2) of the Magistrates' Courts Act, 1984 as amended, had not been complied with before the learned Principal Resident Magistrate (Extended Jurisdiction) assumed jurisdiction to hear and determine the appeal. First, there was no order transferring the appeal from the High Court to the Principal Resident Magistrate, (Extended Jurisdiction), and second, that she sat in the High Court instead of the Court. of the Resident Magistrate when hearing the appeal. 3 With respect, ·we are in entire agreement with the submissions of the learned State Attorney. Section 45(2) of the Magistrates' . . . ,• Courts Act, 1984 as amended by Act No. 2 of 1996 provides as follOW$- "45(2) The High Court may direct that an appeal instituted in _the High Court be transferred to and be heard by a Resident Magistrate upon whom extended jurisdiction has been conferred by section 45(1)." It is clear to us that before a Resident Magistrate with extended jurisdiction assumes jurisdiction to hear an appeal instituted in the High Court, the High Court must have directed that the appeal be transferred to him or to her to hear it. In the instant appeal, the learned Principal Resident Magistrate (Extended Jurisdiction) should have satisfied herself that the appeal in question had in fact been first transferred to her. This Court in Criminal Appeal No. 86 of 1999 Director of Public Prosecution v (1) Peter Kalifumu (2) Bunga Kalifumu (unreported) stated as under - 4 "Now, for the avoidance of doubt the phrase "may direct" in the. subsection refers to the discretion of the High Court itself to deal with an appeal or to · let it be dealt with by a Resident Magistrate with extended jurisdiction. Once the High Court has exercised its discretion and has decided that the appeal is ·to be dealt With ·by such a Resident Magistrate, then the appeal MUST be transferred to the Resident Magistrate Court and be titled as such" (emphasis added) There is no evidence on the record to show that the High Court had indeed transferred the hearing of this appeal to LYAMUYA, Principal· Resident Magistrate (Extended Jurisdiction). Thus, in hearing the appeal she acted without jurisdiction. As regards the second point raised by the learned State Attorney, the record shows that the learned Principal Resident Magistrate with extended jurisdiction sat in the High Court. ·on· page 61 of the record of appeal, it is titled "IN THE HIGH COURT OF TANZANIA AT DODOMA". The appeal was however heard by LYAM UYA, Principal 5 Resident Magistrate (Extended Jurisdiction). This was not correct. She_ should have sat in the Court of the Resident Magistrate and not in the High Court; lt is therefore ·evident that there was total non- compliance with section 45(2) of the Magistrates' Courts Act, 1984 as amended, referred to above~ At the last sitting of this Court here in Dodoma, section 45(2) of the Magistrates' Courts Act, 1984 -as amended was discussed in a number of decisions including Criminal Appeal No. 180 of 2003, (1) Manoma s/ o Malolela (2) Mosi s/o Malolela (3) Matilanga s/ o Malembo v Republic; Criminal Appeal No. 137 of 2003 Martin s/ o Mbuyape v Republic; Criminal Appeal No. 94 of 2004, Chisulugwe Charles v Republic; Criminal Appeal No. 24 of 1999; (1) Jeff s/o Manyoni (2) Maiga s/o John v Republic (all . unreported). In Criminal Appeal No. 94 of 2004 the Court observed as follows- "This is about the sixth appeal here in Dodoma during the current sessions faced with the same problem. Due to lack of ' .. •..i 6 . diligence. ad non-compliance with the law on . the part of the ·c:ourt, parties have been affected when their appeals end up in this way after considerable time taken waiting for the court sessions which take place once a year. It is trusted that a recurrence of this nature will be avoided in the future" We have been informed by the appellants in this appeal that the appeals referred to above have not been heard as yet. A quick check ori the appeals we disposed of in this way last year shows that only two appeals,- namely Criminal Appeal . No. 24 of 1999 and Criminal Appeal No. 180 of 2003 · are scheduled for hearing on the 12.6.2006 and 17.5.2006 respectively. Hopefully, the remaining appeals will be heard in the not too distant future. In the result, the proceedings before the learned Principal Resident Magistrate in the purported exercise of extended jurisdiction are declared a nullity and quashed. The appellants appeal therefore is still pending in the High Court and should be dealt with in accordance with the law. 7 DATED at DODOMA this ·29th day of May, 2006. ~~-~ ., D.Z~LUBUVA All( JUSTICE· OF ·APPEAL --- 0~ ""?1> \ J.A. MROSO N JUSTICE OF APPEAL .,. H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. IKA) RAR