nyawaje john others vs republic 2007 tzca 7 22 june 2007

Citation Parties Legal Principles Discussed CRIMINAL APPEAL NO.

1. NYAWAJE JOHN, 2. -Decision appealed NDALU CHILINGO, 14 OF 2007- COURT OF against made by a 3. JOHN MSELE Vs. APPEAL OF TANZANIA REPUBLIC- Appeal Resident Magistrate from the judgment AT DODOMA- MUNUO,J.A., with Extended of the Resident KAJI,J.A, And KIMARO, J.A Magistrate’s Court of Jurisdiction, while Dodoma- Criminal seated in the High Court Appeal No 20 of 2002-A.T.C at Dodoma. LYAMUYA- PRM/EXTENDED JURISDICTION Court record in Criminal Appeal No. 20 of 2002 has no document showing that the appeal was transferred by the High Court to the Court of Resident Magistrate to be heard by a resident magistrate with extended jurisdiction. Although a Resident Magistrate with extended jurisdiction has powers, under section 45 of the Magistrates’ Courts Act, 1984 to hear appeals filed in the High Court, such powers can only be exercised when the appeal is, under section 1 45 (2) of the same Act, transferred by the High Court to the Court of Resident Magistrate to be heard by the Resident Magistrate with such powers. Since Lyamuya, PRM/Extended jurisdiction heard Criminal Appeal No 20 of 2002 without the High Court, under section 45 (2)of the Magistrates’ Courts Act, 1984, transferring it to the Court of Resident Magistrate to be heard by her, she assumed powers which she did not have. Even if the case had been properly transferred, it would still be wrong for the Resident Magistrate with extended jurisdiction to sit in the High Court while determining the appeal. Under the circumstances the entire 2 proceedings by Lyamuya PRM/ Extended jurisdiction were a nullity and we declare the proceedings and the decision thereon null and void.

IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA (CORAM: MUNUO,J.A., KAJI,J.A, And KIMARO, J.A) CRIMINAL APPEAL NO. 14 OF 2007 1. NYAWAJE JOHN] 2. NDALU CHILINGO] 3. JOHN MSELE]……………………………………APPELLANTS

VERSUS THE REPUBLIC……………………………………..RESPONDENT (Appeal from the judgment of the Resident Magistrate’s Court of Dodoma) (A.T.C LYAMUYA-PRM/EXTENDED JURISDICTION) Dated the 11th day of December, 2002 in Criminal Appeal No 20 of 2002 3 ..........

RULING OF THE COURT 11 & 22 June, 2007 KIMARO, J.A. When the appeal was called on for hearing, the Court “suo motu” required Mr. Anselm Mwampoma, the learned Principal State Attorney who represented the Republic Respondent in this appeal, to state whether the appeal before the Court was competent. The Learned State Attorney said that the appellants are appealing against a decision of Mrs Addy Lyamuya, Principal Resident Magistrate with extended jurisdiction, but the appeal was heard in the High Court. He added that even the perusal of the court record did not give any indication that section 45 (2) of the Magistrates’ Courts Act, 1984 was complied with, and the defects made the entire proceedings before Lyamuya PRM/Extended jurisdiction a nullity. He prayed that the proceedings be nullified and the appellants be referred to the High Court for the hearing of their appeal. He cited the cases of Chihongwe S. Chihongwe Versus Kamwaya Mkonongo and Peter Mkonongo CAT Crimianl Appeal No. 200 of 2004 (Dodoma ) (Unreported) and Ikoi Sugaje Versus the Republic CAT Criminal Appeal No.201 of 2004(Dodoma) (Unreported) which segment his submission. 4 The appellants who, understandably, are laymen were not in a position to grasp the technical arguments of the learned Principal State Attorney and they ended up lamenting that the process will take too long. They prayed that the appeal be

heard. The learned State Attorney submitted correctly, that the decision appealed against was made by Lyamuya PRM/Extended jurisdiction, while seated in the High Court at Dodoma. Equally correct is the submission that the court record in Criminal Appeal No. 20 of 2002 has no document showing that the appeal was transferred by the High Court to the Court of Resident Magistrate to be heard by a resident magistrate with extended jurisdiction. Although a resident magistrate with extended jurisdiction has powers, under section 45 of the Magistrates’ Courts Act, 1984 to hear appeals filed in the High Court, such powers can only be exercised when the appeal is, under section 45(2) of the same Act, transferred by the High Court to the Court of Resident Magistrate to be heard by the Resident Magistrate with such powers. The Court underscored this position in the cases of Chilongwe (supra) and Ikoje Sigaje (supra) cited by the learned State Attorney for the Republic. Since Lyamuya, PRM/Extended jurisdiction heard Criminal Appeal No 20 of 2002 without the High Court, under section 5 45(2)of the Magistrates’ Courts Act, 1984, transferring it to the Court of Resident Magistrate to be heard by her, she assumed powers which she did not have. Even if the case had been properly transferred, it would still be wrong for the Resident Magistrate with extended jurisdiction to sit in the High Court

while determining the appeal. Under the circumstances the entire proceedings by Lyamuya PRM/Extended jurisdiction were a nullity and we declare the proceedings and the decision thereon null and void. The appeal will be heard by the High Court, expeditiously we hope, taking into consideration that the appellants are complaining over the delay and the High Court has a share of blame in the mistake which happened in this appeal. It is so ordered. DATED at DODOMA this 22nd day of June 2007. E.N.MUNUO

JUSTICE OF APPEAL S.N.KAJI

JUSTICE OF APPEAL N.P.KIMARO

JUSTICE OF APPEAL I certify that this is a true copy of the original. 6 ( S.M. RUMANYIKA )

DEPUTY REGISTRAR 7