PETER THOMAS alias PETER TOSHI v REPUBLIC 1996 TLR 370 (HC)

 PETER THOMAS alias PETER TOSHI v REPUBLIC 1996 TLR 370 (HC)

Court High Court of Tanzania - Tabora

Judge Mackanja J

B

CRIMINAL APPEAL No. 38 [cf.39] OF 1996

2 September 1996

Flynote

Criminal Practice and Procedure - Consent of the Director of Public Prosecutions to

commence C criminal proceedings - Prosecution of appellant commenced without

the consent of the Director of Public Prosecutions as the law requires - Consequences

thereof - Section 34(4) of the Police Force Ordinance, Cap 332.

-Headnote

The appellant and two others were convicted of burglary and stealing. They were D

prosecuted as a result of a search, ordered under s 34 of the Police Force Ordinance,

which led to the seizure of one radio set stolen from the house burgled. On appeal it

was argued for the appellant that the trial leading to his conviction was null and void

because s 34(4) of the Police Force Ordinance requires all prosecutions conducted as a

result of E any exercise of powers under that section not to be commenced save with

the leave of the Director of Public Prosecutions:

Held:

(i) Section 34(4) of the Police Force Ordinance provides that `no

prosecution' such as the one in the instant case `shall be commenced without the

leave of the Director of Public Prosecutions'; F

(ii) In order to protect people against possible abuse of the due process of

the law it is mandatory that s 34(4) of the Ordinance be construed strictly;

(iii) As the prosecution of this case was commenced without the consent of

the Director of Public Prosecutions, the provisions of s 34(4) of the Police Force G

Ordinance were contravened, rendering the proceedings before the lower court null

and void.

Case Information

Conviction quashed and sentence set aside.

No cases referred to. H

Mahuma, for the appellant

Kabuguzi, for the respondent

[zJDz]Judgment

Mackanja, J: I

The appellant and one Geras Jeremia were convicted of burglary contrary to s 294(1)

of the Penal Code in respect of the first count.

1996 TLR p371

MACKANJA J

These two men and the third accused, a young woman aged 20 years, were convicted

A on the second count in respect of stealing contrary to s 265 of the Penal Code.

Only the appellant, who featured as the second accused during the trial, has appealed.

He has raised four grounds in his appeal. Mr Mahuma, who represents him, was

granted leave to argue the fourth ground first. It is there contended that the trial of

the appellant in B the lower court is a nullity for non-compliance with s 34(4) of the

Police Force Ordinance Cap 332 as amended by s 397 of the Criminal Procedure Act 9

of 1985. Mr Mahuma's submissions will be understood if the events which led to the

prosecution of the appellant are brought out. C

The events are fairly brief. It was found as a fact by the lower court that the appellant

and the said Geras Jeremia burgled the residential house of one Leonard Daud at 3.00

am on the night of 21 February 1996. In tandem with that burglary the appellant and

his D co-accused persons were found to have stolen one radio from that house. The

recovery of the radio is the genesis of the fourth ground of appeal.

According to the record of proceedings before the lower court the radio was seized

from the room in which the third accused spent nights. The seizure of the radio came

about E after that room was searched by D/C Sembulya (PW2) who was armed with

a search order, Exh P2. A search order is Police Form (PF) 91 which is issued under s

34 of the Police Force Ordinance. PF 91 with serial No 304842, Exh P2 tells it all. It is

Mr Mahuma's contention that no prosecution should have been commenced without

the F consent of the Director of Public Prosecutions as required by ss (4) of s 34 of

the Police Force Ordinance, and that non-compliance with these provisions has

rendered the prosecution of the accused persons null and void. For this reason he has

invited me to quash the conviction and to set aside the sentence. G

Mr Kabuguzi, learned State Attorney, has conceded that he finds a fundamental point

of law and fact from the record of proceedings of the lower court which has been

raised in the fourth ground of appeal. He admits that it is mandatory to comply with s

34 of the H Police Force Ordinance. He intimated, however, that the construction of

that section should be such that where there are circumstances proving the

commission of an offence the Court should desist from interfering with a conviction.

He believes that the non-compliance was a technical error which can be overridden

by the larger interest in I justice. Thus he prayed that the appeal be dismissed.

1996 TLR p372

MACKANJA J

The provisions which are the subject of these contentions are these: A

`34(4) No prosecution resulting from the exercise of powers under this section

shall be commenced without the leave of Director of Public Prosecution.' (The

emphasis is mine.) B

The operative word is `shall'. What is the effect of this word when used in statutes?

The word `shall', according to The Collins English Dictionary, second Ed, is used in

documents to indicate compulsion. Black's Law Dictionary (Abridged sixth ed) goes C

further, the learned authors say thus:

`Shall. As used in statutes, contracts, or the like, this word is generally

imperative or mandatory. In common or ordinary parlance and in its ordinary

signification, the term "shall" is a word of command, D and one which has always or

which must be given a compulsory meaning as denoting obligation ...'

MP Tandom, the learned author of Interpretation of Statutes, fifth ed says at 97 that:

E

`From the mere use of the word "shall" it does not necessarily follow that the

provisions are mandatory for all purposes. The meaning of the word "shall" has to be

determined by looking at all the provisions of the section and in particular the

context in which it is used. The word "shall" is F mandatory if certain penal

consequences ensue the failure to take action under the particular provisions ...'

It may be safely stated that generally the word `shall' does not always mean that the

enactment is obligatory; it depends upon the context in which the word `shall' occurs

G and the other circumstances. In fact authorities on the use of the word `shall' are

agreed that, although the word in ordinary usage means `must', it is not inconsistent

with discretion. Where, however, its application or use infringes on an individual's

basic rights, its use should be restricted to its natural and ordinary meaning. H

A criminal trial involves a number of basic rights the most immediate one being the

right to a fair trial. A trial will not be fair if it is not in conformity with the law. In

the instant case the prosecution was commenced without the consent of the Director

for Public Prosecutions. It is not for nothing that the consent was made a precondition

for any trial. I Speaking for myself I find that the intention to legislate on

a consent was intended to protect indivi-

1996 TLR p373

duals against unwarranted and sham trials. In order to protect people against possible

A abuse of the due process of the law it is mandatory that s 34(4) of the Police Force

Ordinance be construed strictly in the ordinary and natural meanings of words

employed in its provisions. In this connection the argument by learned State Counsel

is untenable, B for justice is not just if the accused is not accorded a fair trial. The

contravention of the provisions of ss (4) of s 34 of the Police Force Ordinance has

therefore rendered the proceedings before the lower court null and void. I would

therefore quash the proceedings and order a fresh trial according to law if the

Republic is still interested. C

The convictions against Geras Jeremia, Peter Thomas alias Peter Toshi and Halima

Mussa alias Kase are quashed and sentence set aside. Because the accused persons have

served only a minor part of the sentence in respect of the first count I direct that they

be tried afresh in conformity with the law if the Director of Public Prosecution still

D desires to do so. Unless, therefore, their continued incarceration is justified on

account of other lawful matters, each of the accused persons is discharged from prison

forthwith. E

1996 TLR p373

F