REPUBLIC v NICOLAUS MAMUU 1996 TLR 154 (HC)

 REPUBLIC v NICOLAUS MAMUU 1996 TLR 154 (HC)

Court High Court of Tanzania - Moshi

Judge Mroso J

F

CRIMINAL REVISION NO 15 OF 1994

18 January, 1995

Flynote

Criminal Practice and Procedure - Charge of murder - How withdrawn - Sections

91(1) and G 98(a) of the Criminal Procedure Act, 1985.

-Headnote

While police investigations were still under way, and after he had been charged with

H murder, the Accused escaped from custody. About a year later, and on application

by the public prosecutor, the District Court of Rombo withdrew the charge against

the Accused in terms of Section 98(a) of the Criminal Procedure Act.

On revision to this Court, the Court restored the charge of murder against the

Accused. I

Held:

(i) Section 98 speaks of the withdrawal of charges in respect of `any trial

1996 TLR p155

A before a subordinate court'; and given that the crime of murder is

triable only before the High Court, the trial on the charge could only have been

properly brought before the High Court and thus Section 98 could not have been used

to withdraw the charge.

(ii) The withdrawal of the charge in question should have been brought in

terms of Section 91(1). B

(iii) The order of the District Court is quashed and set aside, and the charge

of murder against the Accused is restored.

Case Information

Ordered accordingly.

[zJDz]Judgment

Mroso JA: C

The accused Nicolaus s/o Mamuu was charged with murder contrary to s 196 of the

Penal Code. While police investigations were still in progress he escaped from

custody. About a year later the public prosecutor informed the District Court of

Rombo before whom the accused had been charged that the police though it was

futile to continue D looking for the accused and, therefore, applied to withdraw the

charge of murder against the accused under s 98(a) of the Criminal Procedure Act,

1985. That provision is in the following words-- E

`98. In any trial before a subordinate court any public prosecutor may, with

the consent of the court or on the instructions of the Director of Public Prosecutions,

at any time before judgment is pronounced, withdraw from the prosecution of any

person either generally or in respect of one or more of the offences with which such

person is charged; and upon such withdrawal-- F

(a) if it is made before the accused is called upon to make his defence, he

shall be discharged, but such discharged of in accused person shall not operate as a bar

to subsequent proceedings against him on account of the same facts;

(b) ...' (not relevant). (emphasis provided). G

It will be noted that s 98 speaks of `any trial before a subordinate court', which means

that it is applicable only in a case which is triable by a subordinate court. It is not

resorted to where the offence is not triable by a court other than a subordinate court.

H

According to the First Schedule to the Criminal Procedure Act, 1985 the offence of

murder (wrongly shown as s 197 instead of the correct s 196 of the Penal Code) is

triable only by the High Court (or by a subordinate court with extended jurisdiction

under s 173 of the Criminal Procedure Act, 1985). I

The District Court of Rombo was neither a High Court nor a

1996 TLR p155

subordinate Court with extended jurisdiction and, therefore, would not have

jurisdiction to A try a murder charge. It follows that since a murder charge is not

normally triable by a subordinate court, s 98 of the Criminal Procedure Act, 1985

would not be employed to withdraw it from the court. The appropriate legal

provision would be s 91(1) of the B Criminal Procedure Act, 1985 under which the

Director of Public Prosecutions can enter a nolle prosequi to terminate any case

before a court, at any time before judgment or verdict is given.

The termination of the murder charge against the accused under s 98(a) of the

Criminal C Procedure Act, 1985 was incompetent and, therefore, the order of the

District Court discharging the accused is quashed and set aside. The charge of murder

against the accused is restored. If the D.P.P. is minded to terminate the charge, that

would be done according to law. D

1996 TLR p156

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