nicholous sifuni mnzava two others vs director of public prosecutions 2024 tzhc 261 9 february 2024

UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO CRIMINAL REVISION NO. 28 OF 2023 (Originating from Criminai Case no. 25 of2023for the Resident Magistrates Gourds for Morogoro at Morogoro) NICHOLOUS SIFUNI MNZAVA APPLICANT PAUL MALSHERY MSUYA 2^^ APPLICANT MAGRETH PAMPHILY @MSUYA 3"^^ APPLICANT VERSUS DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT RULING Date of last order: 10/11/2023 Date of Judgement: 09/02/2024 BEFORE: G. P. MALATA,J Page 1 of 10 The applicants have filed this application for revision under section 372 of the Criminal Procedure Act, Cap. 20 R.E.2022 asking this court to invoke it revisionai mandates and call for and examine the legality and propriety of the proceeding in Criminal Case No. 25 of 2023 of the Resident Magistrate's court for Morogoro. The application is supported by joint affidavit sworn by the applicants. The application is resisted by the respondent through counter affidavit sworn by Simon Lameck Mpina learned State Attorney from the respondent. In nutshell, the applicants herein were jointly arraigned for the charges of conspiracy to commit an offence and stealing vide Criminal Case No. 150 of 2018 in the Resident Magistrate's court for Morogoro. On 20/09/2019 the respondent in the exercise of powers endowed under section 91 (1) of the Criminal Procedure Act, Cap. 20 R. E. 2022 withdrew the charges in favour of all the applicants herein. Upon the charges in Criminal Case No.150 of 2018 been withdrawn, the applicants were re-arrested and recharged in Economic criminal case no. 71 of 2019 in the Resident Magistrate's court for Morogoro. The charges were withdrawn by the respondent under section 91 (1) of the Criminal Procedure Act, Cap. 20 R. E. 2022 on 12/07/2021. Page 2 of 10 That afiter termination of charges in Economic Criminal Case No. 71 of 2019 in the Resident Magistrate's court for Morogoro, the applicants were arrested and charged in Criminal Case No. Ill of 2021 in the Resident Magistrate's court for Morogoro for allegedly stealing by servant. On 19/04/2023 Hon. T. Kaniki SRM of the Resident Magistrate's court for Morogoro dismissed the said criminal case under section 225 (5) of the Criminal Procedure Act for want of prosecution. Following dismissal of Criminal Case No.Ill of 2021 on 19/04/2023, the applicants were arrested and charged in Criminal Case No. 23 of 2023 of the Resident Magistrate's court for Morogoro for allegedly stealing by servant like in Criminal Case No. Ill of 2021 dismissed by the Resident Magistrate's court for Morogoro on 19/04/2023 for want of prosecution. That, upon been recharged in Criminal Case No. 23 of 2023 In the Resident Magistrate's Court for Morogoro, the applicants filed a preliminary objection on point of law based on position of the court of appeal in Criminal Appeal No. 415 of 2017 between Twaha Hussein Vs Republic, that when the matter is dismissed for want of prosecution the available remedy is to set aside the dismissal order and not to institute a new case. Page 3 of 10 The parties were ordered to dispose the matter by way of written submission and all parties complied with it and case was fixed ruling on 31/05/2023 by the Resident Magistrate's Court for Morogoro. As the ruling was not read the matter was lastly adjourned for ruling to 10/07/2023. Before delivery of ruling, on the same date in the morning, the respondent filed Nolle Prosequi under section 91 (1) of Criminal Procedure Act withdrawing Criminal Case No. 23 of 2023. Upon entering in court, the respondent prayed to withdraw the case under the afore stated section and that, he had already filed the Nolle prosequi to that effect. i i Finally, the court recorded the nolle prosequi and marked Criminal Case No. 23 of 2023 withdrawn. As stated herein above, the applicants are questioning the legality of mandates invoked by the DPP and that it was not backed by legal justification bearing in mind the procedure taken in contravention of the court of appeal position in the case of Twaha Hussein Vs Republic. Mr. Mklilya Daudi learned counsel for the applicant was of the view that, the conduct of the respondent in withdrawing and reinstituting criminal cases Page 4 of 10 No.lSOpf 2018, Economic Criminal Case. 71 of 2019^ Criminal Case No. Ill of 2021 and 23 of 2023 against the applicant was with no justification. He submitted that, worse indeed Criminal Case No. 23 of 2023 was dismissed for want of prosecution therefore instead of taking remedy as per the case of Twaha Hussein Vs Republic, supra decided to arrest the applicant charge them for similar offence and facts. He submitted that the available remedy was to set aside the dismissal order by Hon. T. Kaniki SRM dated 19/04/2023. He also referred this court in Criminal Application No. 40 of 2021 between Adjane Abubakar Vs Republic, at page 6 and 7. Finally, he submitted that, the circumstances traversed in this case demonstrates that the DPP's exercise of mandate under section 91(1) of th6 Act, Supra, was an abuse of court process as he did withdraw the case when 0 it was coming for ruling, thus pre-empting it. In reply thereof, Mr. Simon Mpina learned State Attorney admitted that, following dismissal of Criminal Case No. Ill of 2021 under section 225 (5) of the Criminal Procedure Act, the correct remedy was to be pursued as correctly submitted by Mr. Mkilya Daudi learned counsel. Page 5 of 10 As to the withdrawing of criminal cases under section 91 (1) of the CPA, the respondent is not legally barred from doing so at any stage, thus not an abuse of court process. He referred to the case of Gachungu and others Vs R,(1962) E. A 673, that DPP has no obligations to give reasons for withdrawal of a criminal charges. He thus prayed for dismissal. Mr. Mkilya Daudi made no rejoinder to the submission by Mr. Mpina learned State Attorney. Having gone through the submission for and against, parties are in agreement that; one, the DPP is legally mandated to withdraw charges in court at any stage as per section 91 (1) of the CPA, two, that following dismissal of Criminal Case No. Ill of 2021 by Hon. T. Kaniki, SRM for want of prosecution, the available remedy was to apply to the same court to have the dismissal order dated 19/04/2023 set aside, three, the DPP is not legally required to expressly provide reasons for withdrawal of the criminal case or charges before the court of law, four, the parties are in agreement that, what the DPP did by filing Criminal Case No. 23 of 2023 in the Resident Magistrate's Court for Morogoro in respect of the same parties, facts and charges following the dismissal of the same in Criminal Case. No 111 of 2021 Page 6 of 10 for want,,of prosecution was invalid as principled in,the cases of Twaha Hussein Vs Republic, supra and Adjane Abubakar Vs Republic. Certainly, having noted that, the DPP missed the proper boat and having been attacked by preliminary objection by the applicants decided to hide himself to the powers conferred to him under section 91 (1) of the CPA thence withdrew the case. This court finds that, the DPP's vested mandates under section 91 (1) of CPA, was misapplied as the correct procedure if he so wished as submitted by both counsels that, following dismissal of Criminal Case No. Ill of 2021 on 19/04/2023 the remedy was to apply and set aside the dismissal order and not to file Criminal Case No. 23 of 2023. In other words. Criminal Case' No. 23 of 2023 was invalidly preferred and in contravention of law. This court therefore hereby confirm the above position that, the DPP.wrongly applied the supremacies bestowed to him under section 91 (1) of the CPA. Additionally, the court of appeal in the afore cited cases, with precision, stated that, the DPP's sovereign powers under section 91 of CPA, is discharged in order to preserve public interest, to prevent abuse of court process and observance of interest of justice. Page 7 of 10 Thus, the invocation of the said mandate is not a favour to the accused but something required to be done in accordance with the law after the DPP having satisfied beyond sane of doubt on the existence of one or all of the afore stated circumstances. It is so because, justice is what one is entitled as right under the law not as favour, thus if one is entitled to be convicted and sentenced, then that is the entitlement under the law. Therefore, Justice will be seen to be following in a well-established channel called law like blood passing through a human blood vessels. Therefore, section 91 (1) of the CPA, is applied for the purposes of ensuring that, criminal justice is travelling through that provision as well with due' regards to limits under which it should be invoked. In the event therefore, I hereby rule that, as Criminal Case No. 23. of 2023 was invalidly preferred as against the dismissal order in Criminal Case No. Ill of 2021, then the DPP could have withdrawn it through other means not in the exercise of the DPP's sovereign supremacies under section 91(1) of the CPA. Page 8 of 10 Further, .as to the complaint that, the matter was withdrawn on the judgement date under section 91 (1) of the CPA, thus tantamount to an abuse of court process, this court is of the opinion, much as the DPP can withdraw a case at any stage before the judgement is delivered, such mandate should be timeously acted upon rather than waiting to exercise such mandate at latest stage considering the fact that, the court could have as well spend much time and resources in reading court proceedings and composing judgement, which become a futile exercise. By so doing, it will as well eliminate the existing discernments of misuse of the said provision of the law. IT IS SO ORDERED. Dated at MOROGORO this 09^"^ February 2024. -Ll 09/02/2024 Page 9 of 10 RULING.delivered, at MOROGORO in chambers this February 2024 in the presence of Mr. Jackosn Mashankara, learned Advocate for the applicant and Mr. Simon Mpina, learned State Attorney for the respondent. S. p. K A A ) DEPUTY REGISTRAR > / // 09/02/2024 - />• Right of appeal explained to the parties. P- I^WWA /( K DEPUTY REGISTRAR -.a .V t •• . .:4 ,■ /nIj /f Page 10 of 10