ramadhani kaniki another vs victa david kopa 2010 tzhc 260 18 august 2010

IN THE HIGH COURT OF TANZANIA AT TANGA PC. CRIMINAL APPEAL N O .ll OF 2008 (Originating from Korogwe District Court, Cr. App.No.12/2008) 1.RAMADHANI KANIKHl 2.HASSANI CHAUSA ................................... APPELLANT VERSUS VICTA DAVID KOPA............................................. RESPONDENT Date o f last order: 14/12/2009 Date o f Judgment: 8/2/2010 JUDGMENT Mussa, 3} This purported appeal emanates from Vugiri Ward Tribunal, situate in Korogwe District. The appellants were arraigned there for Dissuading persons from participating in a self-help scheme, contrary to section 89C of the penal code, chapter 16 of the laws. It is common place that the offence is scheduled under the Ward Tribunals Act, chapter 206 of the laws. The particulars were that the appellants, kind of, dissuaded a go slow with respect to the carrying of a secondary school project. At its initial inception the Ward Executive officer was cited as' the complainant but; it is noteworthy that in the record of proceedings, the WEO is referred to by name and; indeed, such was to prevail the situation throughout the proceedings. Whether such is the procedure obtaining there is not what I am anxious about, much as, it is not quite a matter of importance here. Suffice it to mention that, at the conclusion of the enquiry, the appellants were convicted and sentenced to a fine of shs. 10,000/= each; just as it was ordered that they should each release a sum of shs.5/000/= as their share of their contribution towards the project. It was further ordered that, in default thereof, each should serve a term of four months imprisonment. Upon record, both appellants were obligatory to the fine and the self-help contribution but; aggrieved, they, all the same, preferred an appeal to the District Court. It is not exactly clear as to what led the appellants' to leap out at the District Court but; if their petition of appeal is anything to go by, they acted upon the advise of the Resident Magistrate incharge comprised in a letter Reference NoJY/SRM/162/VOL.M/23 dated 3rd June, 2008. Whatever be the contents of the advise of which I was not opportuned to glean, rather, what is of momentous value is the relevant law, .that is, section 20(1) of the Ward Tribunals Act, which clearly spells out thus:- Subject to subsection (2), a person aggrieved by a decision o f a Tribunal may within sixty days appeal in writing to a primary court. Subsection 2 to which this provision is subjected, is primarily to do with limitations; so that in, for instance, criminal cases, an appeal cannot be entertained with respect to a conviction the result of which was a mere fine not exceeding five hundred shillings. The foregoing quite apart, there is a rider of significant jurisdictional impact as comprised in subsection 3 of that same provision:- Except on points o f law where the final appeal lies to the District Court, the decision o f a Primary Court on any appeal made to it shall be final and conclusive. And so, the foregoing provision tells it all; in that a District Court does not feature in matters originating from a Ward Tribunal; save where the appeal involves some points of law. Subsequent stipulations as contained in sections 23(2) and 3, are to the effect that when hearing an verdict and forward it to the District Court which, in turn, may apply its revisional jurisdiction under the Magistrates' Courts Act. To me, this latter provision is not necessarily in conflict with and; does not derogate from the cross-cutting command that, except on points of law, the decision of the primary court is final and conclusive. That said and; reverting to the situation at hand, upon presentation, the learned District Magistrate, rightly in my view, found the appeal before him incompetent; much as it was not channeled through a primary court, in the first instance. Agreeing, as I do, that the appeal giving rise to the one at hand was incompetently filed in the District Court; it follows, as day follows night, that the attempt before me is just as incompetent. Whatever be the impropriety to which the appellants are at odds with, it is imperative that they should have the matter presented in proper channels. As of now, I am left with no other option than to have this incompetent appeal struck o r ” ' )rdered. I ;a , 3. 5/02/2010 Coram: Mussa, J; Appellants: present Respondent: present Judgment delivered in the presence of the parties. IN THE HIGH COURT OF TANZANIA AT TAt^Ga MISC. CRIMINAL REVISION NO.3 OF 2009 (O riginating from Muheza DC Cr. Case No.19/2009) REPUBLIC...................................................... APPLICANT VERSUS QfxALL GU LAM (a) ABBAS HASSAML & 3 OTHERS RESPONDENT Date o f last order: 30/7/2010 Date o f Revisiona! Order: 18/8/2010 REVISIONAL ORDER/RULING MUSSA, J; These proceeding were opened and initiated by this court at the instance of a complaint from the state attorney-in-charge. As it turns out, the matter arises from Criminal Case No. 19 of 2009; presently, pending in the District Court of Muheza. Unto it, the accused persons are charged with Breaking into a building, theft and; with respect to the first and second accused; possession of suspect property as well. At some stage whilst the proceeding was in progress, when the matter came up. for hearing Mr. Safari, learned State Attorney, appearing for the Republic, was recorded to have said this:- The case is for Fhg and I have two witnesses present. We are not ready to proceed. We pray to w/d the charge against all the Four 'accused persons u/s 91 (1) CPA and pray the courc co inform mem that they will be charged afresh before the court of Resident Magistrate at Tanga. I have some transport to take them to Tanga a waiting outside. As regards reasons behind, learned state attorney did not allude to any but;, both Mr. Mramba and Mr. Kilule, counsel for accused persons had cause to raise eyebrows and; as such, requested for some time within which to counter the prayer. To this, Mr. Safari gave the following m c n n n c c ■_ i C jp v i . It is not that I object to their prayer but because this case has been filed in by the Republic\ I doubt as to what prayer different they may come up with. I have put up our prayer and that is it. Upon resumption, both learned counsel resisted the prayer on account that an oral expression of a nolle prosequi is ah exclusive personal reserve of the DPP; that is, if I read their submissions well. Coming to the resolve by the Magistrate, it is patently clear from the tone of Ruling that anger, a sense of despair and emotion had taken reign over passionate temperament expected of a judicial officer. I must be excused for having to extract the entire facial remarks of the trial magistrate; boring as they may tend to be:- I wasjust trying to comprehend as to why I had to end up with this r ruling. . without prejudice to the generality e£.- the case and having observed the trends in criminal case No. 61/2008 and the ones in this 2 come to the attention and knowledge o f young 'learned" Safari that there is no any iaw in this country that vests on the DPP autocratic or absolute * powers, his powers to prosecute any body end up being limited by court judgments after which he is no more, young Safari is grossly misdirected to hold that the powers o f the DPP to prosecute any person in court turns such prosecution DPP's properties that nobody can query or question. Let him be guided by the provisions S. 90(4) CPA to the extent that such powers be limited and have regard to public interest interests o f justice and need to prevent abuse o f the legal process. And above all, in the exercise o f these powers the DPP SHALL have, and exercise his own discretion, and SHALL not be subject to the directions or control o f any person OTHER that the President o f the country - S. 90(6) CPA. How can Mr. Safari himself or the office o f the state attorney in-charge Tanga convince this court or another court that they are NOT acting under the control and directions o f the tycoon Abdallah Saium Mohamed? Have they fallen victims o f what I managed to refrain from? Look at the conduct o f the two cases, starting with criminal case no. 61/2008 and this present one. One files his case with the police and the police go to the extent o f prosecuting the suspects in court. Tomorrow that person has no trust in the way the police conduct the case, the case is withdrawn without any regard to legal interests o f the suspect atcuseds. the following morning the police come in again with the same suspects and obedient as they are and expected o f them, they charge the same with the very offences, not one but a fleet o f sate attorneys come in. without regard to their competence and in total disregard to the granty o f the 4 offence itself and as if in fear of the two learned defence counsels msy- trade on. Under such force they even go to the extent o f trying to mislead the court to breach the requirements o f G.N.No.192/88, and me law as provided for in the case o f ANDERSON SOLOMON VS. R.(199Jl) T.L.R. 119. When the trial magistrate refuses to heed to such breach tne same 'tycoon comes in again and says he has no trust in the way he is conducting his case and so should disqualify himself from hearing the -------- x l. ____ — ^ r i -J : ---- ------------------- _ i r .—, 4 .,^ ,;^ ^ , /-, ,V bdliit^. m i iu l i e wa nt s s/tuuiu ± /c:/ uoiz lw UuLfUdiUy ifryz&i i;y;;;y ;/.o case then let it be known that such refusal would form one o f the grounds o f appeal should I decide the case against his wishes, given the flimsy contents o f that letter I could not afford to be flip part either, by tongue or bearing. I decided to contain myself as an example o f wisdom and good conduct I also believed if I were to react cause a breach the interests to the accuseds and in total abuse o f the legal process, the answer the Senior Resident Magistrate in-charge for Tanga Region have out in response to Abdaliah's complaints added more wine in the Kings glass. I would doubt if the answer was clearly and well understood by those concerned. "Learned" Mr. Safari now comes to court. He says, blatantly that he is the Republic. He instituted the case against the accused, and because the case belonged to the Republic he was now entering a nolle prosequi u/s 91 (1) CPA. He wants me not only to discharge the accuseds but to order them, just as they cross the doors o f the court, to match straight and board into a vehicle readily parked outside to take them to Tanga where they were to be re-charged, as if the accuseds deserved no any right in this case and before this court and in total disregard to the fact that they were *being defended, Mr. Safari did not expect anybody to challenge him on that. I will be very brief on this issue, there are two ways o f withdrawing a case from the court. One is by invoking the provisions o f 5.91 CPA and the other is by invoking the provisions o f S.98 o f the CPA. the DPP may use any o f these provisions to discontinue any criminal proceedings in court, whether or not the same were initiated and undertaken by him. Common practice has shown that in mot trials prosecuted by S'late Attorneys before subordinate courts, most o f them alienate from calling themselves public prosecutors. And now when it comes to withdrawing a case they completely forget to take into consideration the fact that Parliament very purposefully enacted S. 98 to deal in withdrawal o f cases, before subordinate courts be it by a state attorney, the DPP himself or any other officer appointed by him under Part IV(B) o f the CPA. And let us not forget too, while S. 92 talks o f Delegation o f power by the DPP, S. 95 talks o f the Powers o f the DPP to appoint public prosecutors, but without much ado, a point o f emphasis here is that the withdrawal o f cases from courts is a judicial process as apposed to mere administrative measures by the prosecution side, for this therefore the courts must be satisfied that there are concrete reasons for such withdrawal and the same should go in record before granting the request to withdraw. 6 The foregoing was simply to demonstrate how the presiding officer was obviously, unimpressed, perturbed and; perhaps, infuriated' by the mannerism of Mr. Safari's presentation; to the extent of devoting an entire treatise on it. Admittedly, learned state attorney made his presentation with a sense of self-worthiness; characterized by quite unnecessary flashes of pomp, arrogance, flamboyance and; a sort of, so be it sarcasm. Quite frankly, it was not pleasant reading Mr. -Safari's showing off and; obviously, such is not expected of any person worth the name of a court officer. Nonetheless, it was no use erecting a monstrous edifice out a molehill, 3 5 did the trial Magistrate. Having devoted the bulk of his ruling lamenting about learned state attorney's showing off; who knows if the resultant verdict was not tainted with a personal vendetta. The unfortunate reality is that, at times, we are confronted with the arrogant types but; rather than succumb to loss of self control, as I said, a passionate approach is what should always accompany a judicial mind. Above all, guidance should be sought and; only sought from the factual setting and the governing principles of the law. Coming now to the resultant verdict, the trial Magistrate appears to have taken the view that a court must be satisfied that there are concrete reasons behind a nolle prosequi; that is, to be furnished by the prosecutor, ahead of the order discharging an accused. There was, then, some concern as to why section 91 (1) and not 98 was sought into application and; it appeared as if the Magistrate felt th^t the latter should • m have been more appropriate much as it specifically relates, to 1summary trials. I need'not enter that arena of argument in so far as there is 7 nothing novel about the power to enter a nolle prosequi. It is elementary that, in terms of the law, the DPP could always exercise the power and; for that matter in any court within our'judicial structure. The same may be prosecuted in writing or orally by standing and pronouncing in court. For avoidance of doubt, either way and upon general instructions, the power is exercisable by the rank and file of law officers in the Attorney General's Chambers. To my understanding, behind the court room scene, the commonest reason for the power being exercised has been insufficient evidence; although there may be, occasionally, other exceptional situations in which a nolle prosequi is the best means of halting a proceeding. The quite remarkable attribute of this power is that the DPP need not assign, any reason for so invoking and; as a matter of general principle, courts have never sought interference. I should interject here that distinction must be to section 91 (1) which does not admit to an expression like; "with the consent of the court" such as accompanies the provisions of section 98. But, I have said courts have restrained intervention as matter of general principle, purposely giving allowance to the fact that there may crop up a situation in which bad faith or improper exercise of discretion is alleged and; on which account, a court is called into enquiry. On such occasion, I should suppose, the DPP may well be compelled to account for the exercise of the power. I am, nevertheless, of the settled mind that such situation did not, at all, arise here. All what comprised the proceedings below were, first, the self-styled and quite unnecessary outbursts of learned st3te attorney; second, an erroneous submission from the defence to the effect that, in the circumstances, the power was only exercisable by the DPP in person and; third, the verdict of the court founded on a wrong premise, rather, that the DPP was required to assign reasons for the withdrawal. To the extent that the decision was derived of a wrong principal; the same is set aside. The assumption being that no bad faith was involved and; the result will be to effectuate the nolle prosequi and the accused are, accordingly discharged in terms of the law. It is so ordered. K M . Ml^SSA, J 18/08/2010 Coram Mussa, 3 Mr. Iboru: State Attorney for the Republic Mr. Mramba: For 1st and 2nd accused Mr. Kilule: For 3rd and 4th accused 9