Republic v. Banyanyirubusu Gaspary & 4 others Cr Rev no 18 of 2006 (Murder)

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM:   LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)

 CRIMINAL REVISION NO. 18 OF 2006

THE REPUBLIC …………………….……………………….…….… PROSECUTOR

VERSUS

1. BANYANYIRUBUSU S/O GASPARY

2. FELICIAN BATAKANYWA @ NZUNGU

3. MAPILAKIZA S/O JELANI                               ……….….. ACCUSED(S)

4. YOHANA BANYENIMANA @ NDABULIKE

5. ANDREA MBANYENIAMANA @ KABOYOKA

(Revision from the Order of the High Court of Tanzania

 at  Bukoba)

(Nchalla, J.)

dated the 30^th day of September, 2001

in

Criminal Sessions Case No. 62 of 2001

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RULING OF THE COURT

14 & 23 February 2007

LUBUVA, J.A.:

        This is an application for revision.  The Court is called upon to exercise its revisional jurisdiction in order to satisfy itself as to the correctness, legality and propriety of the proceedings and orders by Luanda, J. in Bukoba High Court Registry Miscellaneous Criminal Cause No. 36 of 2003, dated 4^th November, 2003, Mtotela, Principal Resident Magistrate exercising extended jurisdiction in Bukoba Resident Magistrate’s Court Criminal Sessions Case No. 40 of 2001 and Masanche, J. in Bukoba Resident Magistrate’s Court Criminal Sessions Case No. 40 of 2001 dated 20^th June, 2003.

        To facilitate an easy appreciation of the sequence of events leading to the matter before the Court, it is desirable to set out briefly its background.  The accused in this Criminal Revision, Banyanyirubusu s/o Gaspary, Felician Batakanywa @ Nzungu, Mapilakiza s/o Jelani, Yohana Banyenimana @ Ndabulike and Andrea Mbanyeniamana @ Kaboyoka were charged with the offence of murder contrary to sections 196 and 200 of the Penal Code.  Information was duly filed in the High Court Registry at Bukoba in Criminal Sessions Case No. 62 of 2001.  It originated from Bukoba Resident Magistrate’s Court Criminal Case No. 18 of 1998.

        On 30.9.2001, the High Court, Nchalla, J. made an order directing the case to be transferred to and be heard by Principal Resident Magistrate J. E. Mtotela, of the Resident Magistrate’s Court at Bukoba upon whom extended jurisdiction had been conferred.  The order of transfer was made under the provisions of section 173(2) of the Criminal Procedure Act, 1985 as amended by Act No. 17 of 1996 hereinafter, the CPA.

        Following the order of transfer, Bukoba Resident Magistrate’s Court Criminal Sessions Case No. 40 of 2001 was opened in the court of Resident Magistrate at Bukoba.  On 12.11.2001, Mtotela, Principal Resident Magistrate, with extended jurisdiction, commenced trial proceedings by reading out the charge to the accused.  A plea of not guilty was entered and the case was adjourned for preliminary hearing.  On 20.6.2003, Masanche, J. conducted the preliminary hearing to conclusion.  The case was to come for trial on a date to be fixed during the next sessions of the High Court.

        It is to be observed at this stage that Masanche, J. proceeded with the preliminary hearing in the same file of the Resident Magistrate’s court registry at Bukoba in which Mtotela, Principal Resident Magistrate (Extended Jurisdiction), had started conducting the trial.

        On 4.11.2003, in High Court, Bukoba Registry, Miscellaneous Criminal Cause No. 36 of 2003, Luanda, J. made an order under section 173(2) of the Criminal Procedure Act, 1985 re-transferring the case to the High Court at Bukoba for hearing.  Hence High Court Bukoba Registry Criminal Sessions Case No. 91 of 2003 was opened.  On 31.3.2006, the case was called on for hearing before Luanda, J.  It was then that it transpired that Masanche, J. had conducted the preliminary hearing of the case in the file of the Resident Magistrate’s court.  The learned judge remarked:

“This case was fixed for hearing during this session.  But the records (sic) shows that Masanche, J. conducted a preliminary hearing in the file of the Resident Magistrate’s Court.  Obviously that is not proper.”

Consequently, the matter was forwarded to this Court for revision.

        In these revision proceedings before us, the above named accused appeared in person.  It being a legal issue which was explained to them by the Court, understandably, they did not have anything useful to say.  On the other hand, Mr. E.M. Feleshi, learned Senior State Attorney, appeared for the Republic.

        In his submission, Mr. Feleshi stated that the matter had been brought to the Court in order to rectify the irregularities in the order by Nchalla, J. and the subsequent proceedings.  He said to start with, there was no valid order of transfer of the case from the High Court to the Principal Resident Magistrate exercising extended jurisdiction.  In ordering the transfer of the case, Nchalla, J. wrongly invoked section 173 (2) of the CPA.  In his view section 256A (1) is the proper one to be invoked when the High Court directs that the taking of a plea and the trial of an accused person committed for trial by the High Court be transferred to and be conducted by a resident magistrate vested with extended jurisdiction.  In this case, the Senior State Attorney further submitted, as the order directing transfer of the case was based on a wrong inapplicable section of the law, the transfer was of no legal consequence.  Consequently, Mr. Feleshi went on in his submission, Criminal Sessions Case No. 62 of 2001 still remained in the High Court registry awaiting further proceedings after its committal to the High Court for trial.

        On the other hand, there was the second limb of Mr. Feleshi’s submission.  That is that with an invalid and inconsequential order directing the transfer of the case to the High Court by Nchalla, J. on 30.9.2001, all the subsequent proceedings were also a nullity.  These are the proceedings before Mtotela, Principal Resident Magistrate (Extended Jurisdiction) from 12.11.2001 to 4.12.2001 and Masanche, J. on 20.6.2003.

        With regard to the proceedings before Masanche, J. on 20.6.2003, Mr. Feleshi said, apart from the fact that the proceedings were based on an invalid order directing transfer of the case, there was another aspect of irregularity.  It was improper for the learned judge to conduct the proceedings relating to the preliminary hearing in the file of the Resident Magistrate’s court Bukoba in Criminal Sessions Case No. 40 of 2001.

        Finally, Mr. Feleshi submitted that the order of 4.11.2003 (Luanda, J.) re-transferring the Criminal Sessions Case No. 40 of 2001 to the High Court was also a nullity, it was of no legal consequence.  In elaboration, the learned Senior State Attorney submitted that for similar reasons relating to the order of 30.9.2001 (Nchalla, J.), section 173 (2) of the CPA had wrongly been applied.  He referred to the Court’s decision in the case of Juma Lyamwiwe v. The Republic, Criminal Appeal No. 42 of 2001 (unreported) in which the Court addressed the issue.  Mr. Feleshi urged the Court to quash and set aside the order of 30.9.2001 by Nchalla, J. and all the subsequent proceedings thereby leaving it open for Criminal Sessions Case No. 62 of 2001 to be proceeded with by the High Court from the stage after committal for trial.

From the background information and the sequence of events as reflected from the record, we are with respect, in agreement with the submissions by Mr. Feleshi, learned Senior State Attorney regarding the irregularities in the proceedings.  There is no denying the fact that the order of 30.9.2001 (Nchalla, J.) was based on a wrong section of the CPA.  This is section 173 (2) which gives power to the Minister responsible for legal affairs to invest Resident Magistrates with extended jurisdiction.  It provides:-

Nothing in this section shall effect (sic) the power of the High Court to order the transfer of cases.

From these provisions, it is to be observed at once that section 173 (2) of the CPA is not the correct one to be applied in ordering the transfer of cases.  The proper section to be invoked in directing the transfer of cases and be tried by a resident magistrate vested with extended jurisdiction is 256A (1).  It states:-

256A (1)  The High Court may direct that the taking of a plea and the trial of an accused person committed for trial by the High Court, be transferred to, and be conducted by a resident magistrate upon whom extended jurisdiction has been granted under sub-section (1) of section 173.

From our reading of these provisions, it is clear that the order of 30.9.2001 (Nchalla, J.) was made under section 173 (2) of the CPA which is inapplicable.  In Juma Lyamwiwe (supra) this Court had occasion to address this point.  In that case two issues were contended.  First, that the order of the High Court transferring the case to the Resident Magistrate vested with extended jurisdiction was made after the preliminary hearing had been conducted.  Two, that the order of transfer was wrongly made under the provisions of section 173 of the CPA.  The Court inter alia observed:-

…  where the High Court desires to direct a transfer then an order for such transfer should be made under s. 256A                                                                                                                                                    (1) of the Criminal Procedure Act, 1985, as amended.  Certainly, it is not correct to make an order under s. 173 of the said Act.

The Court also underscored this point in Samwel Nikolai v. The Republic, Criminal Appeal No. 59 of 2001 (unreported).   In this light and as urged by Mr. Feleshi, it follows that the order of transfer of 30.9.2001 (Nchalla, J.) was of no legal consequence.  That means that Criminal Sessions Case No. 62 of 2001 in the District Registry of the High Court at Bukoba still remained pending.

        We also agree with Mr. Feleshi that subsequent proceedings  based on the invalid order of 30.9.2001 transferring the case to the Resident Magistrate’s court were invalid.  These are the proceedings conducted by Mtotela, Principal Resident Magistrate, exercising extended jurisdiction from 12.11.2001 to 4.12.2001; Masanche, J. on 20.6.2003 and the order of 4.11.2002 by Luanda, J. re-transferring Criminal Sessions Case No. 40 of 2001 to the High Court.  They are all a nullity.

        With regard to the proceedings of 20.6.2003 before Masanche, J. it is to be pointed out that apart from the fact that the initial order of transfer of 30.9.2001 (Nchalla, J.) being irregular, there is another dimension.  That is, that the learned judge conducted the preliminary hearing in the file of the Resident Magistrate’s Court which is improper.  With the transfer of the case to the Court of Resident Magistrate Bukoba, a new file had to be opened in the Registry of the Resident Magistrate’s Court Bukoba for Criminal Sessions Case No. 40 of 2001.  In the circumstances, it was wrong for the learned High Court Judge to conduct proceedings in the file of the Resident Magistrate’s Court.  The High Court and the Court of Resident Magistrate are two distinct courts each with its own registry.  This fact alone would render the proceedings a nullity.

        As for the order of 4.11.2003 Luanda, J. re-transferring Criminal Sessions Case No. 40 of 2001 to the High Court, we need not be delayed in this issue.  As correctly submitted by Mr. Feleshi, it is common knowledge that since the order of 20.9.2001 transferring Criminal Sessions Case No. 62 of 2001 (Nchalla, J.) was a nullity, effectively the case (No. 62 of 2001) was not transferred, it still remained in the High Court pending after the committal order.  It follows therefore that Luanda, J’s order for the re-transfer of the case from the Court of Resident Magistrate to the High Court was of no legal consequence.  If anything at all, it was superfluous as the case had not been transferred.

        For the foregoing reasons we declare a nullity the following orders and proceedings:  the order of 30.9.2001 (Nchalla, J.) directing transfer of Criminal Sessions Case No. 62 of 2001 to the Court of Resident Magistrate Bukoba; proceedings before Mtotela, PRM (Extended Jurisdiction) of 12.11.2001 to 4.12.2001; and Masanche, J. of 20.6.2006 as well as the order of 4.11.2003 (Luanda, J.).  The High Court is directed to proceed expeditiously with the trial of Criminal Sessions Case No. 62 of 2001 from the stage after committal for trial.  However, in the event the High Court decides to direct the case to be transferred to and be conducted by a Resident Magistrate vested with extended jurisdiction, such transfer should be done in terms of the law.

        DATED at MWANZA this 23^rd day of  February, 2007.

D. Z. LUBUVA

JUSTICE OF APPEAL

J. A. MROSO

JUSTICE OF APPEAL

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(S. M. RUMANYIKA)

DEPUTY REGISTRAR