20130430 TZHC Mbeya

1:, ., ✓· .~. "' IN THE HIGH COURT OF TANZANIA ATMBEYA PC CRIMINAL REVISION NO.3 OF 2011 (Originating from Mbalizi Primary Court Criminal Case No.12/2011 Mbeya District Court Misc. Criminal Appeal No. l of 2011 Before: K. A. Majinge, RM SE KELA MWAKI KUTI ......................... APPLICANT VERSUS · LUKAS MWAKIKUTI. ...................... RESPONDENT RULING Date of last Order: 30/04/2013 Date of Ruling: 18/06/2013 KARUA, J. The respondent, Lucas Mwakikuti, stood charged before the .Mbalizi Primary Court, with contempt of court, contrary to section 114 (1) of the Penal Code, Cap 16. However, before the case was called f6r hearing, the respondent applied under the 1 prov1s1ons of section 4 7 ( 1) (b) of the Magistrate Court Act, Cap 11 [R.E. 2002], . to have the case transferred to the District Court. Instead of dealing with the application which was before it, the District Court dismissed the application. In getting rid of the application and discharging the respondent, the Court said: "Now, before I make a final order regarding this application as whether to grant it or not, I think it is proper to entertain the legal issue raised by the applicant ·that the trial magistrate had no jurisdiction to issue, the said eviction order. I had the very opportunity to peruse the said eviction order. It was defective. That the Mbalizi Primary Court Magistrate had no territorial jurisdiction_ to issue an eviction order to the applicant residing in a house in issue situate within Mbozi District. That the execution for that eviction order was unlawfully and illegal for lack of jurisdiction. 2 n ! l, I' r j ~ I I1 ! I d I r I 'f Ij 1 I,. ( -, I 1 1 l 't I( I ' 'I I' I h d'' -1 \ r1 I I: • 1 J '1 I ;1 • ,1 'I 11 i ~ .! II If I I I. i I! I -1 ' ! I' I I I !l I •1 i ' I; !1 ii q 1! I !' I !! • i . f' I I"' ' . ! j I. ' LI 1i .' ~ I; j . ! ' I d I i ( ! 1 J . i ,I !i 1 r :1 1 i :i !-: 1 ~ ii 1: I! I .1 l'I I 'I t I' The Mbalizi Pri~ary Court Magistrate is reminded to read section 38 of the Magistrate Court Act Cap 11 (RE) 2002 which direct that the said eviction order issued by him was supposed to be endorsed by the Mbozi District Magistrate for execution within his territory jurisdiction. In such circumstances I find that since the said eviction order was illegally executed then the than the (sic) applicant was wrongly charged for that offence. That it is unlawfully for this case against the applicant . to proceed either before the primary court or at this court. ·Accordingly I dismiss the charge and discharge the applicant with .the charged offence". It is this order that has aggrieved the applicant, Sekela Mwakikuti, who was the complainant in that cas·e. Assisted by Mr. Godluck Sanga, learned 3 c: i'· II t I, I• I' d l ii'\ I• 1, tj 11 .. , ; ! ) I \j ! E' •l fI '. :I r· 11 r lI. lj I I !j !! . ! 'I .,'l i! I· 1!,; I I·. ! \ '1 j a I' ,, 11 :lq Ii: I. ' !·-~ ! j, '· ji, 1! !. i f ,j ·•' 11 i I I JL""! .~ ' ~ ! l advocate, the applicant is asking this court to revise the said order, under the provisions of section 43 of the Magistrate Court Act. The application on the other hand, is resisted by the respondent, who stands by the decision of the District Court. The parties argued the application by way of written submissions. I have had sight of the lower court record. I have also gone through the· parties submissions. With respect, I agree with Mr. Sanga. The matter that was before the District Court was an application to have the criminal case, which was before the primary court, removed to the District Court. Indeed, the law permits transfers of proceedings that were instituted in a primary court, to either the District Court or the Co'urt of Resident Magistrate, at any time before judgment. The circumstances under which such transfers, may be . made; are listed in section 4 7 of the Magistrates Court Act. 4 r r I r ! H lj I I I ' I )I ;1 j i,I i'' '1 ·, , :\ I ' 1 I 'I ,, ,! i 1/ I! ,/ I! ,, j1 I '\ I I I II l i I l; l In dismissing the application, the way it did, the District Court missed the point. After noting the irregularity in the way the case was handled by the Primary Court, in my considered view, the District Court should have dealt with. the matter, either, in its revision capacity or after the transfer was made. As a matter of law, the Court should have drawn the attention of the parties to the flaw made by the lower court and allow the parties to address the Court on the irregularity. As it were, the parties were indeed, condemned unheard. If there is a principle better \ revered or rather deeply respected 1n the administration of justice in this country, is that no one should be condemned unheard. In the. event, I allow the application, quash the proceedings and set aside the orders made by the District-Court and hereby direct that the application for transfer commence afresh before another Magistrate of competent jurisdiction. 5 S.V.G.KARUA JUDGE DATED AT MBEYA 18th June 2013 Appearances: Appellant: Present Respondent: Present 6