director of public prosecutions vs peter kalifumu and another 2001 tzca 25 30 march 2001

IN THE COURT OF APPEv'iL OF TANZANIA (CORAM: RANADI-L^II, J.A,, LUBUVA. J.A. And LUGiKINGIRA, J.A.) CRIMINAL APPEAL NO. 86 OF 1999 Bii/Tv/EEN THE DIRECTOR OF PUBLIC PROSECUTIONS .... APPELLANT AND 1. PETER KALIFUHJ jj 2. BUNGA KALIFUl'U 0 ..... ............ (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Wambura-PRM/Extended Jurisdiction) dated the 27th day of July, 1999 in Criminal Appeal No. 99 of 1998 RULING RAMADHANI, J .A. The Director of Public Prosecutions filed an appeal against the decision cf the Principal Resident Magistrate (Extended Jurisdiction) in an appeal from the judgment of the District Magistrate of Mpanda District. The DPP later withdrew the appeal when the matter had already been caused listed. So, when the matter came up for hearing Mr, 14bago, learned Principal State Attorney, told the Court that the DPP was withdrawing its appeal. Fir. Fkumbe, learned advocate for the respondent, raised no objection. However, the attention of this Court was caught by an Irregularity which appears to be common among Resident Magistrates with Extended Jurisdiction, So, we decided to invoke our power of revision to rectify the error. ♦.. /2 2 Subsection (3) of Section 4 of the Appellate Jurisdiction Act. 1979j as amended by Act No. 17 of 1993? provides as follows: ^Without prejudice to subsection (2), the Court shall have the power, authority and jurisdiction to call for and exairine the record of proceedings before the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision made thereon and as to the regularity of any proceedings of the High Court." So, we agreed to the withdrawal of the appeal by the DPP and by using section 4 (3) of the .act we assumed revisional jurisdiction. The file of the appeal frorr the District Magistrate, is titled: :iIn the High Court of Tanzania at Mbeya:! but it was handled by 3.A.N. WAFBURA, PRF (Extended Jurisdiction). Now, that was wrong. The appeal was properly filed in the High Court but as a PRM (Extended Jurisdiction) was going to deal with it, then it should have been transferred to the Resident Magistrate's Court. Subsection (2) of section 45 of the Magistrates’ Courts Act, 1984, (Act No. 2 of 1984), as arrended by Act No. 2 of 1996, provides: *../ 3 3 ;2fhe Ki^h Court ircy direct that an appeal —' u X X' instituted in the High Court be transferred to and be heard by a Resident Magistrate upon whor extended jurisdiction has been conferred by section 45 (l)." Now, for the avoidance of doubt the phrase 11nay direct*1 in the subsection refers to the discretion of the High Court itself to deal with an appeal or to let it be dealt with by a Resident Magistrate with extended jurisdiction. Once the High Court has exercised its discretion and has decided that the appeal is to be dealt with by such a Resident Magistrate, then the appeal FUJI be transferred to the Resident Magistrate Court and bo titled as such. In this case WAFBURA, PRK (Extended Jurisdiction) had the jurisdiction to deal with the appeal but in the Resident Magistrate’s Court and not in the. High Court. Since shedealt with it in a wrong forun1, the proceedings were nullity. We, therefore, nullify and quash the entire proceedings and the decision purpotedly by the High C^urt. DATED at M3EYA this 30th day of March, 2001. A. S. L. Rarradhani JUSTICE OF APPEAL D . Z. Lubuva JUSTICE OF APPEAL K. S. K. Lugakingira JUSTICE OF APPEa L I certify that this Is a true copy of the original. /.y»- / ( k . G. Mwarija ) DEPUTY REGISTRAR