ABDALLAH HAMED v REPUBLIC 1993 TLR 156 (CA)

 

ABDALLAH HAMED v REPUBLIC 1993 TLR 156 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JJA, Kisanga JJA and Omar JJA

CRIMINAL APPEAL NO. 43 OF 1990

G 17 June, 1993

(From the decision of the High Court of Tanzania at Dar es Salaam, Magessa, PRM,

Ext. Jur.)

Flynote

H Magistrates' Courts Act - Extension of Appellate jurisdiction to magistrates -

Order investing magistrate with extended jurisdiction not specifying categories of

cases the magistrate may entertain - Whether the order is proper.

-Headnote

I In a second appeal the learned advocate for the appellant challenged the

jurisdiction of the Principal Resident Magistrate who had been vested

1993 TLR p157

with extended appellate jurisdiction. His main attack was that the order investing the

appellate A jurisdiction did not comply with s 45(1) of the Magistrate's Courts Act

1984, in that it was too general. Counsel argued that the order ought to have specified

the categories of cases the magistrate vested with appellate jurisdiction could hear and

determine.

Held: (i) The order clearly intended that the magistrate should exercise all

appellate jurisdiction ordinarily exercisable by the High Court; B

(ii) The Order, G.N. 121 of 1988, was not faulty.

Case Information

Appeal dismissed.

No cases referred to. C

M.R.M. Lamwai, for the appellant.

Kamba, for the respondent.

[zJDz]Judgment

Makame, J.A., delivered the following considered judgment of the court: D

This is a second appeal. The appellant Abdallah Hamed was sentenced by Kulolela,

Senior District Magistrate, to be jailed for thirty years after he was found to have

participated in a daylight robbery in the municipality of Morogoro. His co-accused,

Kasimili Faustin Mogela, was similarly rewarded and E did not appeal. The present

appellant did appeal, to the High Court, where Magessa, Principal Resident

Magistrate, exercising Extended Jurisdiction, dismissed his appeal. Dr Lamwai,

learned Advocate, represented the appellant in the appeal before us. Mr Kamba,

learned State Attorney, F supported the Lower Court's decision.

Dr Lamwai did not have much room for argument, and we reckon he knew as much.

This is a second appeal so there was hardly any scope for his intended effort in two of

his three grounds of G appeal, touching on the burden and standard of proof. Both

the Trial Court and the First Appellate Court were satisfied that the appellant, at the

material time a driver employed by the National Bank of Commerce at Morogoro,

took part in the robbery by facilitating the flight of his co-accused, and other

participants, from the scene of crime by driving them away in the National Bank of

Commerce Land H Rover he was employed to drive. Dr Lamwai was left with only

one ground - the first one, which sought to challenge Mr Magessa's jurisdiction to

hear the first appeal. Dr Lamwai submitted that the Order which invested Mr

Magessa with the appellate jurisdiction, ordinarily exercisable by the High Court, did

not comply with s 45(1) of the Magistrate's Court Act. I

1993 TLR p158

MAKAME JA

A Section 45(1) of the said Act provides:

`The Minister may after consultation with the Chief Justice and with the

Attorney-General, by order published in the Gazette -

(a) invest any resident magistrate, in relation to any category of cases

specified in the order, with the appellate B jurisdiction ordinarily exercisable by the

High Court.'

Now, the Order investing Mr Magessa with extended jurisdiction, GN 121 of

1988, was couched in the following terms:

1. This Order may be cited as the Magistrates' Courts (Extension of

Appellate Jurisdiction) Order 1988.

C 2. Subject to s 46 of the Magistrates' Court Act 1984, the Magistrates

specified in the Schedule to this Order, are hereby invested with the appellate

jurisdiction ordinarily exercisable by the High Court.

SCHEDULE

1.

D 2.

. . .

8. I H Magesso . . . Principal Resident Magistrate Grade I

. . .

Dar es Salaam. D Z LUBUVA

E 6th April, 1988 Minister for Justice'

Dr Lamwai's complaint is that the order quoted above is bad for being too general.

Learned Counsel submitted the category of cases Mr Magessa was empowered to hear

appeals from should be F mentioned in so many words. We fail to appreciate the

logic of this when the Order clearly intended that Mr Magessa should exercise all

appellate jurisdiction ordinarily exercisable by the High Court. It would in the

circumstances be not only unduly cumbersome but also obviously pointless to list out

all the categories of cases. It would be different if it was intended that jurisdiction

should be exercised by G Mr Magessa only in one category or only certain categories

of cases. Then we would agree that such category or limited categories should have

been specified, but as indicated, not otherwise.

H We respectfully agree with Mr Kamba, learned State Attorney that GN 121 of

1988 was not faulty in the circumstances. The appeal has not merit and accordingly

we dismiss it.

1993 TLR p159

A