20161213 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM REGISTRY) AT DAR ES SALAAM CRIMINAL REVISION NO. 15 OF 2013 (Originating from Criminal Case No. 403 of 2010 at Ilala District Court) 1. SEIF OMARY MWIMIRA 2. SIMON JEROME @JEROME SIMON CHEPILIA Versus REPUBLIC Date oflast Order 13/12/2016 Date ofRuling 13/12/2016 RULING W.B. KOROSSO, J The application before the .Court is made under Section 392(1) &(2) and ·Section 372(1) of the Criminal Procedure Act, Cap 20 RE 2002 as amended by Act No. 3 of 2011, Section 44(1)(a) of the Magistrate Courts Act, Cap 11 R.E 2002. The application was supported by four affidavits deposed by Mr. Gabriel Simon Mnyele the applicants learned Advocate, Julius Aloyce Msengezi, a legal officer in Marando and Mnyele Company Advocates; David Kahabi- the 1st applicant; and Seif Mwimira, the 2nd applicant. The relief sought was for the following: i. The Court be pleased to call for the records of Criminal Case. NO. 403 of 2010 now pending at the-District Court of Ilala so that it may examine the 1 same and satisfy itself as to correctness, legality or propriety of the proceedings therein ii. That the Court may be pleased to quash the proceedings therein and direct the same to proceed de novo before another competent magistrate. Before we venture into the merit of the case, it is important to present the factual scenario giving rise to the present application. The applicants, Seif Omary Mwimira and Simon Jerome @Jerome Simon Chepilia are accused persons no. 1 and 2 respectively in Criminal Case No. 403 of 2013 pending at Ilala District Court, Samora Avenue. Gabriel Simon Mnyele of Marando and Mnyele Company Advocates had instructions to represent both of the accused persons/applicants.· The presiding Magistrate in the said case originally was Hon. Kaluyende RM and later Hon. Luangwa RM took over and the parties were before him on the 23rd of February 2011. From the records on the respective date, the counsel for the applicants/accused applied for the case to start afresh and the Hon trial Magistrate ordered to rule on this on the 11th of March 2011. Several mentions ensured afterwards without the said ruling being delivered and on the 5th of July 2011, the Court fixed a hearing date for the 2nd of August 2011. It is on record that on the 2nd August 2011, the counsel for the applicants/accused was absent, allegedly because on that date he had another case, Commercial Case No. 105 of 2009_ before Hon. Bukuku J, HCT Commercial Division. This can be discerned from Annex GSM-1, a cause list annexed to the affidavit and from the oral submissions by the applicants counsel. The counsel, Mr Mnyele averred in his affidavit that he did inform the Court of his absence and prayed for adjournment as can be seen from 2 annexure GSM-1 which is a letter alluding to this fact. Despite this, the trial magistrate preceded hearing of the case in the absence of the counsel. Hearing of the application proceeded by oral submissions, and the applicant's counsel submitted that the Hon. trial magistrate had proceeded with hearing of the case in the absence of the advocate representing them and that the said order by the trial magistrate denied the applicants their right to be represented by an advocate. The counsel for the applicants further contended that the right to representation has been held by various cases that it is not to be infringed, the case of DPP vs. Abrogast Rugaimukamu (1980) TLR 139 was cited where Hon. Rubama Judge held that "legal representation for an accused is a statutory right, if the accused is denied the right and convicted such conviction cannot be allowed to stand on appeal". The other case cited by the applicants was Hassan Kingama vs. R (2000) TLR 200 where the High Court decided that "the trial magistrate erred in law by not availing the opportunity to the accused to get legal representation". For the applicants having regard to the anomalies presented, the justifiable remedy will be a retrial that is that the case should start hearing de novo before another magistrate, citing the case of Loswaki Village Council vs. Shibeshabebe and Hunay Langweni and 3 Others vs R (200/5) TLR 154, where the Court held, it was wrong for the trial court to continue where the 3 accused were unrepresented. The counsel for the applicants contended that in the present case, thought the applicants were represented, and despite the fact that reasons for the absence of the applicants_ counsel were advanced to the Court, the trial magistrate refused to consider the excuse for the absence · and proceeded hearing of the case in the absence of the legal representation . by the applicants. 3 The Republic on the other side, were of the view that the reasons advanced by the applicants related to the absence by their counsels were reasonable, since they had given evidence on the cause for the absence and that the trial Court should have proceeded to adjourn the case as prayed by the applicants· who were the accused persons. That the action by the trial Court to proceed hearing was not proper and led to denial of the accused persons (the applicants) the right to legal representation which they contended 1s a Constitutional Right under Article 13(6)(a) and (b) and under section 310 of · the Criminal Procedure Act, Cap 20 RE 2002. The Republic were of the view for this Court to proceed with the review to consider the legality proceedings in the context of the right to legal representation with section 44 of the Magistrates Court Act, Cap 11 RE 2002 and section 372(1) of the CPA. We feel it is pertinent to first consider whether this application is properly before the Court. given the stage it was. The parties were requested to address this, and it was submitted that section 372 of the Criminal Procedure Act, Cap 20 RE 2002 and section 44 of the Magistrate's Court Act, Cap 11 are applicable. Section 372 of the CPA reads: "The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any 'iinding, sentence or order .recorded or passed, and as to the regularity of any proceedings of any subordinate court'~ Section 44(1) (a) of the MCA states: 4 (. 44. -(1) In addition to any other powers in that behalf conferred upon the High Court, the High Court- (a) shall exercise general powers of supervision over all district courts and courts of a resident magistrate and may, at any time, call for and inspect or direct the inspection of the records of such courts and give such directions as it considers may be necessary in the interests of justice, and all such courts shall comply with such directions without undue delay". It is clear from both the above sections that the exercise of powers conferred to the High Court may be exercised at any stage of the proceedings pending in a subordinate Court. Under section 372 of the Criminal Procedure Act it empowers the High Court to call for records of a subordinate (magistrate's) court for the purpose of examining such record and satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by that court. In any case the cited provision by the applicants is section 372(1) of the Criminal Procedure Act, Cap 20 RE 2002. Unfortunately there is no such section in the Criminal Procedure Act, Cap 20 RE 2002 nor is there any amendment under Act No. 3 of 2011 relating to section 372 of the CPA, therefore there is no doubt that this was a wrong citation. Section 392A (1) and (2) relate to the application being by way of chamber summons with an affidavit or oral submissions. We only remain with Section 44 (1) of the MCA to consider whether it may move the Court to consider and determine the application. From the said provision, as also alluded by the counsel for the applicants section 372 of the CPA though does not provide for the time when the Court can call a matter suo motu for purpose of examining the records and satisfy 5 . I itself of correctness, legality of any finding, sentence or order, the High Court may call the file at any time, that has not be controverted. What is obvious is that it has to be the initiative of the Court itself, and not to be moved by any party by way of an application as the one filed before the Court. Even looking at the provisions of section 44(1) of the Magistrates Courts Act, it is the High Court itself which has to exercise the powers conferred to it. In the case of Abdallah Hassani vs. Juma Hamisi Sekiboko, Civil Appeal No. 22 of 2007 (unreported) the Court of Appeal stated: "Looking at the quoted provision, we are of the settled view that the mode by which a matter comes to the High Court and the type of powers to be exercised under one subsection differ from the other. Under subsection 1 (a) the court acts suo motu and of course this can be ignited by a complaint, a tip-off from a law abiding citizen or a discovery of undeserving element in the course of its inspection of lower court's records. Here, the High Court's powers are mainly administrative and not judicial as such. We are fortified in this view by the wording used. The court would ''give directions': where necessary in the interest of justice and the "Courts shall comply with such . directions without undue delay'~ This cannot be on merits of the case because the High Court cannot direct a lower court what decision it should make and how. In our view, directions envisaged here are the ones related to the supervisory role of the High Court and which would include for example, transferring a case from one court to another or from one magistrate to another or directing that it be put on first track during scheduling for hearing. Under this subsection, in giving its orders, the High Court is not enjoined to contact any of the parties involved. However, the Court's action which goes ipto the merits can only come under subsection 1 (b). Again, here the High Court may act suo motu or on 6 application by a party as was the case here. · Unlike under subsection 1 (a) however, the High Court cannot alter the parties' rights without hearing them". In the case on hand, the application was made under section 44(I)(a) which presupposes the Court to act suo motu after being tipped or during supervision, and not upon a formal application by the present one in Court. It· should also be remembered while applying section 44 (I) (a) of the MCA the provisions of Section 43 (I) and (2) of the MCA should be considered. That the provisions of the Criminal Procedure Act, shall apply to appeal and revisions in proceedings of criminal nature from a district Court or Courts of resident magistrate and also that no appeal or application for revision shall be made in respect of any preliminary or interlocutory decision or order unless it has the effect of finally determining a criminal charge or suit. So while this Court shall not venture at this juncture in determining that, it is important for the parties to bear that in mind in any future endeavour they undertake. As stated before, the fact that the applicants have failed to cite proper provisions to move this Court, in the premises of citation of wrong provisions to move the Court, this Court finds the application to be incompetent, and the only available remedy being for the application to be struck out and the Court proceeds to do so. The file should be returned to the trial Court so that the matter can proceed accordingly. It is so Ordered. Winfr~orosso Judge 13th December 2016 7