19860710 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM "' MISC ELL A!'-1EOUS CRIMINAL CAUSE No~ 1/83 IN THI.:: ;·~ATTtR OF Al\l APPLICATION FOR INSPECTION AND DIRECTIOff THAT LO'i:L:rt COURT PROCEEDINGS BE HEARD AND FINALLY DETERMIN~ 13Y A MAGISTRATE OTHER THAN MISS LONGWAY & MRSo KAGANDA and IN THE XATTER OF CRIMINAL CASE NO. 586 OF 1982 IN THE DISTRICT COURT OF ILALA DISTRICT AT KIVUKONI LUJUNA SHUBI BALLONZI versus MOHAMED JAFFER JIRAJ R UL I NG BAHATI, J I ! i This is nn application for inspection and direction that ivukoni Di 7trict Court proceedings in Criminal case Noe586 of --, 982 at Kivukoni District Court be heard a~d determined by a ,, Magistrate other than Miss Longway and Mrse Kaganda. This application is supported_b.¥-~wo affidavits sworn by Mr. Ballon, ~--····~~ -----· - ttJe applicant and r;;ro Fo So Mbuya his advocate respectively. \ The history of this application is that a private pro- secution was commenced on 11th September, 1982 by Mr. L. Bo sallonzi thr: complainart in the case, who applied to the Dis'l;rict Court at Kivukoni tc allow Mro F .. So Mbuya an Advocate of the High Court to be a private prosecutor for the purpose ~t the case which Mr .. Ballonzi had instituted in the District court by filing a complaint in the District Court. Mr. F. s. Mbuya ·was appointed a private prosecutor ~y the court under section 87(1) of the Criminal Procedure code which was then in forceo The recora goes on to show that the accuse~ one Mohamed Jaffer Jiraj appeared in eourt ag~}n on 27th septernber, 1982, l~th October, 1982, 16th November, 1982, and 16th oec., 1982. Th~ private proseouto~ a~d the complainant did not appear on those dates. The ease was throo9l\out being fixed fo• mention and on 16th Novem~er, 1982 it w~s dismissed unde• seetion 190 of the Criminal Procedure Code for non-appearance of the complainant and the private prosecutor. The accused· was discharged. After the dismissal of the case the complainant wrote a letter to the court asking the case to be mentioned OPI l.6th December, 1986 so that the prosec\Jtion could apply for necessGry orderso The case was mentioned on 16th De~ember, 1986 but the complainant was again absent. The aecused appeared. The ease WGS dismissed again under Sectio• 198 of the Criminal Proc:edure Code. • 0 •• •• /~. - 2 - Yet on 18th December, 1982 the complainant appeared-tin . . court arid made his application in the absence of the accused· to have the case restored to hearing. The reasons for this application were that the complainant did not come to court on 16th December, 1982 as request1c;d by him in a letter when the case was mentioned because he knew that the court case file was missing. The District Court was not impressed with this reasoning and it dismissed the application& In this 2Dplication before me, the applicant does not give any r~~sons why he did not appear on 16th November, 1982 when the case was dismissed for the first time. He gives some reason why he did not appear on 15th De~ember, 1982 when the case was dismissed for· the second time.. The applicant also states in paregrLph 8 of his affidavit that at no time was he notified of the tir:e arid place of the hearing of the charge. The addition,:-:1 c.ffidnvit by Mr. F. s. Mbuya also states that since 24th S~Jtem~~r, 1982 when he and the complainant attended court just t.:J f:.nd the :-; 2se i'iL:: mL;s~.ng he has never 11 been · _ · . notified of th; ;::.ace:, e.rd time of hearing of the case nor ~ the tracing oi t~2 fil2.n In Chi.1':~:).::::..~s :-:.r.. Ballor.zI submitted that the public Prose- cutor who h~,d noth5 !:'1g 1·0 do with -chis case which was being prosecuted ~ya private prosecutor misled the court alleging that there had been an order for a last adjournment on 16th November, 1982" Mr. Ballonzi went on to argue that such an order could not be relied upon to dismiss the case since it was not addressed to the private prosecutor. The respondent on the other hand asked the court to consider this matter carefully because he had been coming to the District Court so often but the complainant never bothered to do soo Mro werema, learned state Attoeney submitted that the dismissal wns unreasonable because the trial magistrate could have waiteda There are a f0~ features in this matter which need some comment bef~r~ I ~e~l with the main issues. First of all, there is the ques-1-Jon of the second dismissal of the case under Section lSC of the Criminal Procedure Code on 16th December, 1982 whereas on 16th November, 1982 the same case , ... _ I ha~ be~~ dismissed on the same grounds and under the same s.e·ction and there hud not be8!'"1 any restoration of the case. aoo••/3. - 2 - This second dismissal was therefore meaningless because it was in effect dismissing a case which had already been dismissed. secondly, dismissal under Section 198 of the Criminal Procedure Code means thut the accused is acquitted and not just discharged as the order for dismiss~l reads. The order of dismissal is therefore revised to read that the accused was acquitted. Now, as for the main issues, section 198 of the criminal Procedure Code deals with a situation where a case is for hearing and the accused has appeared in answer to the summons but the complainant does not appear. The section has nothing to do with the situation where the case is set for further mention and the complainant does not appear on this mention dateo In this case the matter was never fixed for hearing nor Wv.S the complainant or the priv&te pros.ecut:or f'lotified of any hearing date or of any mention date for that matter prior to the dismissal of the case for non appearance on 16/11/02. section 198 was therefore not applicable in this case. The question here now is whether the dismissal of the charge can be supported by any section in the criminal Procedure Codeo I can see no section which can be the basis of this dismissal of the case. The District court should have fixed a hearing date before it could dismiss the case. AS things stand now there is no cogent reasor, to support such a dis1dssal of the charge. for dismissal of the case and order Co~secuently, I set aside the orderzthat the ease l:>e tried it11 t>ile District court as expeditiously as possible. The eaae should be fixed for hearing imrn.~diat~).y• bec.ause it is ~ow a very long time since it sta~ted! · AT DAR ES SALAAM A. BAHAT! DAT~: 30/7/1986 JUDGE court: Ruling delivered 1" ;rese~ee of •espondent ·• - on '30/'1 /J.986. A, BAWA'J'I ~;:~