REPUBLIC v MICHAEL GODFREY SENKORO AND FIVE OTHERS 1993 TLR 55 (HC)

REPUBLIC v MICHAEL GODFREY SENKORO AND FIVE OTHERS 1993 TLR 55 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Lugakingira J

CRIMINAL REVISION NO. 21 OF 1991 B

21 June, 1991

Flynote

Economic and organized crime control - Jurisdiction of subordinate Courts - Director

of Public Prosecutions C confers jurisdiction on a Court of Resident Magistrate -

Case tried by a District Court - Whether lawful.

Criminal practice and procedure - Adjournment not in compliance with section

225(4) Criminal Procedure Act, 1985 - Whether Proceedings valid. D

-Headnote

This case was brought before the High Court in order to revise the proceedings from

the standpoint of suspected unlawful adjournments. Going through the file the

learned Judge found that at a certain E stage the accused were charged under the

Economic and Organized Crime Control Act, No. 13 of 1984, whose offences are

triable by the High Court unless the Director of Public Prosecution appends a

certificate to the charge directing which other court should try the case. In this case

the certificate directed that the case be tried by a Court of Resident Magistrate. The

proceedings, however, continued on the same District Court file. The court record

also showed that there were F many adjournments in contravention of section

225(4) of the Criminal Procedure Act, 1985.

Held: (i) Subordinate courts have no jurisdiction to try offences triable under

Act No. 13 of 1984 unless such jurisdiction is specifically conferred by the Director of

Public Prosecutions; G

(ii) In the instant case the DPP conferred jurisdiction on a court of

Resident Magistrate not on a District Court;

(iii) It was unlawful for the District Court to preside in a matter over which

jurisdiction had been conferred on a Court of Resident Magistrate; H

(iv) The adjournments ordered in the wake of this charge sheet did not

comply with the provisions of section 225(4) of the Criminal Procedure Act, 1985.

Case Information

Proceedings quashed.

No cases referred to. I

1993 TLR p56

[zJDz]Judgment

A Lugakingira J: This proceeding has suffered considerable mismanagement.

Originally six persons were on 6 June 1988 charged before the District Court at Kisutu

on one count of stealing by a public servant, it being alleged that in June 1983 they

stole Shs 1,148,000/= the property of what B was then the Ministry of

Communications and Works, their employer. They denied the charge and a ritual of

adjournments ensued for one flimsy reason or another and in complete disregard of

the provisions of s 225(4) of the Criminal Procedure Act 1985.

C On 5 March 1990 the prosecutor withdrew the charge and substituted another,

this time charging one person with eleven counts of stealing by a public servant and,

in the alternative, charging that person and seven others on two counts of occasioning

loss to a specified authority. The alternative counts were laid under the Economic and

Organised Crime Control Act 13 of 1984, and, in accordance with the provisions of s

12(3) of the said Act, the Director of Public Prosecutions D appended a certificate to

the charge directing that the case be tried by a Resident Magistrate's Court. As if that

made no difference, the proceedings were continued on the same District Court file.

E I pause to say that this was illegal. Subordinate courts have no jurisdiction to try

offences triable under Act 13 of 1984 unless such jurisdiction is specifically conferred

by the Director of Public Prosecutions. In the instant case the DPP conferred

jurisdiction on a court of resident magistrate, not a district court. The two courts are

distinct and each has its own registers; and although the F same set of magistrates

could in certain circumstances serve both courts, it is not correct to imagine that a

district court can lawfully take over a case jurisdiction over which is vested in a court

of resident magistrate. The District Court had no jurisdiction to entertain the new

charge and the G proceedings became void from the moment it did so. Oblivious of

this the court went on to take pleas and once again to indulge in adjournments as if

no law governed the matter.

On 30 May 1990 the saga took a new turn. The prosecutor stated to the court: `I ask

for the court to H substitute an old charge for a new one.' Apparently the presiding

magistrate understood what that meant and recorded: `A fresh charge sheet

admitted.' It also seems that the `fresh charge sheet' joined the previous eight accused

persons; hence the magistrate went on to take pleas from six persons then present and

to order the arrest of two who were absent. He then adjourned the hearing to 30 June

1990. On that day the case was further adjourned to 30 July 1990 to enable the I

prosecutor to

1993 TLR p57

LUGAKINGIRA J

join another person in the charge. On 30 July 1990 there was no reference to this

subject; instead A the prosecutor told the court that the Republic wished to

withdraw the charge against the 6th, 7th and 8th accused. They were accordingly

discharged and the case was further adjourned to 30 August 1990.

Before going further I should state that the `fresh charge sheet' is nowhere to be

found in the case B file. Except for the assumption that the same eight persons were

freshly charged, I do not know what they were charged with. It is then apparent that

the `fresh charge sheet' contained a count or counts brought under Act 13 of 1984 for

when discharging the 6th, 7th and 8th accused the magistrate C purported to cite

`section 96' of that Act. But I have not seen the `fresh charge sheet'. I do not know

whether the DPP's consent to prosecute was obtained in terms of s 26(1); I do not

know whether, on this occasion, jurisdiction to try the case was conferred on a

district court. But having stated this, let me turn to complete the saga. D

On 30 August 1990, the adjourned date, the prosecutor (a different one, to be sure)

scanned the courtroom and was surprised to see that the 6th, 7th and 8th accused

were absent. He promptly applied for their arrest. Somehow the presiding magistrate

overlooked the application but it was E subsequently granted by another magistrate

on 20 September 1990. I do not know whether they have been arrested to date, but

adjournments continued at discretion until 27 April 1991 after which the record was

called here.

It was originally expected to revise the proceeding from the standpoint of suspected

unlawful F adjournments but the above review has uncovered additional scandals.

That has widened the scope in which the matter may be dealt with. To begin with, I

have already stated that it was unlawful for the District Court to preside in a matter

over which jurisdiction had been conferred on a court of resident magistrate. The

proceedings were for that reason void. The position would have changed if I were G

assured that in the `fresh charge sheet' the Director of Public Prosecution had shifted

the jurisdiction to a district court. I have not seen this charge sheet; above all, I do not

know what offences it actually alleges. I am therefore not in a position to know that

the District Court is lawfully seized of the H proceeding and that is sufficient reason

to quash the same. I should add, however, that even if it turned out that the District

Court regained jurisdiction under the `fresh charge sheet', I would still hold the

proceeding void and quash the same on the ground that the adjournments ordered in

the wake of this charge sheet did not comply with s 225(4) of the Criminal Procedure

Act. I

1993 TLR p58

A The proceeding is quashed in its entirety and the accused are discharged. The

Republic is, of course, at liberty to prefer a fresh charge if there is any purpose in

doing so.

1993 TLR p58

C