20060627 TZCA Dar es Salaam

VAA- 10 €-11-c czi- 1 Qof L4: , T1LN THE COURT OF APPEAL OF TANZANIA - AT DAR ES SALAAM J (CORAM: LUBUVA, 1A., MROSO, 3.A., and MSOFFE, IA.) c CRIMINAL APPEAL NO. 19 OF 2002 KWEYAMBAH RICHARD QUAKER ................................ APPELLANT VERSUS T H E RE P Li B LIC ........................................................ I.E S P0 t1 D E I'Fr (Appeal from the decision of the High Court of Tanzania at Dar es Salaam (Chipeta, 1) dated the 28th day of October, 2000 in Miscellaneous Criminal Application No.. 27 of 2000 JUDGMENT OF THE COURT 20 June & 3 July 2006 MROSO, J.A.: The appellant together with another were jointly charged in the Court of the Resident Magistrate at Kisutu, Dar es Salaam on two counts of conspiracy to defraud, contrary to section 306 of the Penal Code; he was charged alone on one count of forgery contrary to sections 333 and 335 (d) of the Penal Code and one count of uttering a false document contrary to section 342 of the Penal Code. He was also charged alone on one count of obtaining goods by false 2 pretences contrary to section 302 of the Penal Code and, together with another, on one count of uttering a false document contrary to section 342 of the Penal Code. Subsequently a nolle prosequi was entered against the charge of conspiracy to defraud. During the trial before Mr. A. Kibona, Principal District Magistrate, seven prosecution witnesses testified and the prosecution case was completed. The appellant intimated that he intended to make a submission of no case to answer. The trial court ordered that the appellant and advocate Taslima for the second accused in the case should make written submissions, which they respectively did. After the written submissions the trial court ruled that both accused persons had a case to answer. Although the appellant indicated to the trial court that he would then give his defence, the record shows that he did not do so in fact but instead applied to the High Court to revise the proceedings as well as the ruling of the trial court that he had a case to answer. He asked the High Court to decide that he had no case to answer and acquit him. 3 t The High Court, Chipeta, J., found no merit in the appellant's application and dismissed it. It was ordered that the trial court should proceed with the trial of the appellant. It was then the appellant who was dissatisfied with the High Court ruling decided to appeal against it to this Court. The memorandum of appeal did not address the reasons the High Court gave for dismissing the revision application. Rather, the complaints are that the trial before the Principal District Magistrate was a nullity and that the High Court erred in ordering that such a trial should proceed instead of acquitting him. At first it was thought that an appeal against a ruling in what was clearly an interlocutory proceeding would contravene the provisions of section 5 (2) (d) of the Appellate Jurisdiction Act, 1979, as amended by Act No. 25 of 2002. By that amendment no appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the criminal charge or suit. But on reflection we were satisfied that Act No. 25 of 2002 came to effect on 14th December, 2002, well after the 11 th October, 2000 and Ruling of the High Court which was given on 4 the appeal to this Court was filed on 6th May, 2002. This appeal, therefore, is not affected by the amendment to section 5 (2) (d) of the Appellate Jurisdiction Act, 1979 which barred appeals to this Court on interlocutory decisions. It is now appropriate to consider the two grounds of appeal. As indicated earlier in this judgment, the case was filed in the Court of Resident Magistrate at Kisutu in Dar es Salaam and was tried by a Principal District Magistrate - (PDM). Did the PDM have jurisdiction to sit in the Court of Resident Magistrate to try the case? The appellant, apparently a knowledgable lay person, submitted that the magistrate had no jurisdiction and that the proceedings before such magistrate were a nullity. The learned State Attorney for the respondent Republic, Mr. Masaju, conceded that, indeed, the magistrate had no jurisdiction in the Court of Resident Magistrate and that the proceedings before him were a nullity. 5 It is pertinent to state that courts are creatures of the law and magistrates and judges acquire their jurisdiction on cases from the law. The Magistrates' Courts Act, 1984 (the Act) is the law which provides for the jurisdiction of different categories of magistrates and that a magistrate's court with jurisdiction is properly constituted only when presided over by the appropriate magistrate. Thus, under section 6 (1) (c) of the Act a court of resident magistrate is properly constituted only when presided over by a resident magistrate. For the avoidance of doubt we shall quote here the provisions of section 6 (1) of the Act. It reads as follows - 6. - (1) Subject to the provisions of section 7, a magistrate's court shall be duly constituted when held by a single magistrate, being - in the case of a primary court, a primary court magistrate; in the case of district court, a district or a resident magistrate; in the case of a court of a resident magistrate, a resident magistrate. 1.9 Section seven (7) which is mentioned above relates to the requirement for assessors to sit in the primary court and is not therefore relevant to this appeal. It is observed that while a resident magistrate (who is also a district magistrate by virtue of the definition of a "district magistrate" in section 2 of the Act) can sit in the district court, a district magistrate cannot also sit in a resident magistrate's court. The question then is whether the appellant and the learned State Attorney are correct in their respective submissions that the proceedings before the PDM were a nullity as a result of the magistrate sitting in the court of resident magistrate contrary to section 6 (1) (c) of the Act. The appellant cited two cases in support of his submission. These were William Rajabu MalIya and 2 Others v. Republic [1991] TLR 83 and Jaffer Mohamed Dada v Republic, Criminal Appeal No. 12 of 2002, unreported. The learned Senior State Attorney, Mr. Masaju, on his part cited the case of Thomas Elias and 2 Others v Republic [1993] TLR 263 in support of the same submission. 7 The facts in the William Rajabu Mallya case are materially similar to the facts in the present appeal. In that case the appellant's case was tried by a Principal District Magistrate who sat in the Court of Resident Magistrate. When the case went on appeal to the High Court the error was not noticed. On further appeal to this Court the appellant challenged the validity of the proceedings in the trial court, arguing that those proceedings were a nullity. This Court agreed with that appellant that the trial court was not duly constituted because the Principal District Magistrate sat in the wrong court in violation of the provisions of section 6 (1) (c) of the Magistrates' Courts Act, 1984. The Court proceeded to declare the proceedings a nullity and were set aside. Similarly, in the case of Thomas Elias and bivo Others v Republic, [1993] TLR 263 the appellant was tried and convicted in the Court of Resident Magistrate presided over by a Principal District Magistrate. An appeal to the High Court was dismissed. In a further appeal to this Court the question whether the trial court was properly constituted was considered. This Court held that although the Principal District Magistrate had jurisdiction to try the case had it 8 been filed in the district court where he had jurisdiction to sit, he was not however competent to sit in the Court of Resident Magistrate to preside over the case. Since the court was not properly constituted in terms of section 6 (1) (c) of the Magistrates' Courts Act, 1984, the proceedings were declared a nullity. In two recent decisions of this Court, Makwizi Msuko and two Others v Republic, Criminal Appeal No. 8 of 2001 and Dar es Salaam Airport Co. Ltd. v Ally Ikoki, Civil Application No. 66 of 2004, both cases unreported, the first decision of 15th April, 2005 and the second decision dated 2nd June, 2006, this Court held that lack of jurisdiction by a presiding magistrate rendered the proceedings a nullity. The circumstances in the two above cited cases however were different from those in the appeal before us. In the Makwizi Msuko case a criminal offence had been committed in Magu District, Mwanza Region. The case however was tried in Mwanza District Court, by a Resident Magistrate where the appellant (in that case) was convicted and sentenced to imprisonment sentence. His appeal to the High Court was dismissed. On further appeal to this Court the question of jurisdiction of the trial court was considered. It was held by this Court that although a resident magistrate had jurisdiction over the whole of Mwanza region, the District Court of Mwanza where he sat had no jurisdiction over offences committed in Magu District. The court with jurisdiction should have been Magu District Court. The proceedings were declared a nullity. In Dar es Salaam Airport Co. Ltd, a civil matter, a Principal District Magistrate heard an Employment case in the Court of Resident Magistrate. When the matter went to the High Court for revision the Judge, Luanda, J., referred it to the Court of Appeal because apparently there was already a decision of the High Court on the same case and Luanda, 1, considered that he had no power to overrule his fellow High Court Judge. This Court referred to a decision of the Court in John Agricola v Juma Rashid [1990] TLR 1 in which it was held:- 10 Lack of jurisdiction in the presiding magistrate is a fundamental defect that is not curable at all. A trial by a District Magistrate who lacked jurisdiction in a court he was presiding was a complete nullity. It is abundantly clear therefore, going by the many decisions of this Court, that where a magistrate hears a case in a court in which they have no jurisdiction, the whole of the proceedings are a nullity, even if the magistrate is competent to hear the case had it been filed in a court in which they had jurisdiction to sit. We have no option, therefore, but to quash and set aside the proceedings before the Principal District Magistrate which were a nullity. The case may proceed to hearing before a Resident Magistrate who is competent to sit in the court where the case was filed. This means that the appellant cannot be acquitted by this Court as prayed by him in his second ground of appeal, although we agree with him that the High Court erred to order that the Principal District Magistrate should resume the hearing in the Resident Magistrate's Court. 4 1< jI DATED at DAR ES SALAAM this 27th day of June, 2006. D.Z. LUBUVA JUSTICE OF APPEAL J.A. MROSO JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original. (S.A.NMUA) SENIOR DEPUTY REGISTRAR