REPUBLIC v DAMAS COSMAS NILAHI 1992 TLR 194 (HC)

 

REPUBLIC v DAMAS COSMAS NILAHI 1992 TLR 194 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

10 August, 1992

Flynote

Criminal Practice and Procedure - Appeal - State Attorney withdraws appeal without

B express authority from D.P.P. - D.P.P. applies to restore appeal - Whether Court

functus officio and with what effect.

-Headnote

A state Attorney who was instructed to go to Court and attend an appeal, without C

authority given by the D.P.P. withdrew the appeal from court. The D.P.P. applied to

have the appeal restored. It was considered whether the D.P.P. was duly represented

in Court and whether the Court became functus officio.

Held: (i) I have no hesitation in holding that the D.P.P. was duly represented in the

D appeal and that the D.P.P. withdrew the appeal;

(ii) although this court is functus officio, it has inherent jurisdiction to declare

the withdrawal a nullity and to restore the appeal; E

(iii) the withdrawal could only be revised if there was a genuine mistake or

fraud;

(iv) there being no mistake or fraud the withdrawal was in order and cannot

be revised. F

Case Information

Application dismissed.

Mr. Mallaba for the applicant

Dr. Lamwai for the respondent. G

[zJDz]Judgment

Bahati, J.: This is an application by the DPP for the restoration of the appeal in this

case which was withdrawn by Mr. Mwengela a State Attorney, on 14/10/91. The

application is supported by an affidavit of Mr. Teemba, a Principal State Attorney in

the Attorney General's Chambers. H

The affidavit avers that Mr. Teemba's duties as a Principal State Attorney include

assigning duties to State Attorneys in the DPP's Department. It goes on to aver that

on 14/10/91 Mr. Teemba instructed Mr. Abdul Mwengela a State Attorney to go to

Court and attend an appeal No. 123/90 filed by the DPP against Damas Cosmas Nilahi.

Mr. I Teemba never gave Mr. Mwengela the

1992 TLR p195

BAHATI J

instructions or authority to go and withdraw the appeal from court on that day. Mr.

A Teemba learnt subsequently from the Commissioner of Customs that the appeal

had been withdrawn from the Court. On 7/11/91 Mr. Teemba and the DPP

summoned Mr. Mwengela who admitted having acted contrary to Mr. Teemba's

instructions. Mr. B Mwengela admitted having withdrawn the appeal on his own

authority and withhelding that fact later. Mr. Mwengela under normal circumstances

ought to have reported back to the DPP or to Mr. Teemba what had transpired in

court. The appeal according to Mr. Teemba has overwhelming chances of success and

is of great public interest. He concluded that justice will only be met (done) to both

parties if the appeal is restored. C

In chambers, Mr. Malaba, learned State Attorney reiterated what is contained in the

affidavit of Mr. Teemba. He said that Mr. Teemba gave Mr. Mwengela instructions to

proceed with the appeal and not to withdraw it. He submitted that by applying to D

withdraw the appeal Mr. Mwengela was acting contrary to the express instructions he

had been given and that it was wrong for him to purport to act for the DPP. He

referred the Court to section 377 of the Criminal Procedure Act which defines the

DPP to include any officer subordinate to the DPP ..... in accordance with his general

or E special instructions. He stated that if a State Attorney has special instructions of

the DPP in relation to a particular matter, he will be acting contrary to the DPP's

authority if he does not comply with the DPP's instructions. He submitted that Mr.

Mwengela admitted to have noted contrary to the instructions of the DPP and that

after the F withdrawal of the appeal, he withheld information to that effect from the

DPP.

In reply, Dr. Lamwai, learned counsel for the respondent, submitted that the main

issue was to what extent is a State Attorney presumed to be able to bind the DPP in

what he does in court. He conceded that Mr. Mwengela was a junior State Attorney

and he G raised 2 fundamental questions namely: (1) Under what law can the High

Court revise its order entered on application of one of the parties to the proceedings.

The other question was not mentioned by Dr. Lamwai who only dealt at length with

the only question H raised. He submitted that there is no law which empowers this

court to restore an appeal which has been withdrawn. He referred to the Criminal

Procedure Act and commented that it talks of restoration of a dismissed appeal and

not a withdrawn appeal. He also submitted that the Court cannot use its inherent

powers and that even I the chamber summons does not seek inherent powers. He

1992 TLR p196

BAHATI J

said further that inherent powers are used to stop an abuse of process of court which

A was not the case here. He also submitted that an order granted on application for

withdrawal of an appeal is a final order and that the court was functus officio and

unable to reverse its decision.

Dr. Lamwai next argued the substance of the application on the basis of the affidavit.

B He said that Mr. Teemba in his affidavit was conceding that Mr. Mwengela was

duly instructed to conduct the appeal which meant that he could either argue the

appeal or withdraw it. He submitted that it cannot be said that Mr. Mwengela did not

conduct the appeal on behalf of the D.P.P. He said that in the absence of specific

instructions to C the contrary the Court should conclude that a State Attorney has

power to proceed with an appeal or terminate it. He said that section 377 of the CPA

was irrelevant because it was only a definition section. He submitted that there

cannot be any dispute that Mr. D Mwengela had general or special instructions to

appear in the appeal and that the DPP was therefore in court, and the DPP decided to

withdraw the appeal. He argued that matters of instructions in the DPP's office are

internal arrangement and that the Court cannot act on such internal arrangements as

if they were law. E

With regard to paragraph 7 of the affidavit, Dr. Lamwai submitted that there was no

evidence that Mr. Mwengela acted contrary to instructions as nothing was produced

to show what the instructions were. He said that only Mr. Mwengela could solve this

riddle F by swearing or an affidavit stating the nature of instructions and admitting

going contrary to such instructions. He said further that to hold otherwise would be

putting Mr. Mwengela on trial without being heard. He prayed that paragraphs 7,8

and 9 be disregarded.

With regard to the question of overwhelming chances of success, Dr. Lamwai said G

that Mr. Teemba wanted to convince the Court to open a Pandora's box in that he

wants the Court to hold that when one State Attorney find that there is no evidence

and the other finds evidence, then the case should be reopen. He submitted further

that the H application amounted to putting the respondent in double jeopardy

because he was acquitted in 1990 and the appeal was withdrawn in 1991 and it was

now in July 1992. He referred to the record of the court which shows that on 25/9/91

an adjournment was sought by the DPP to consider withdrawal of the appeal. He

concluded that there was I no shoddy deal in this matter and that more suspicion

could not help in the administration of justice.

1992 TLR p197

BAHATI J

In reply to the above, Mr. Malaba submitted that there was no law requiring every A

application to be supported by the law under which it is made and that the Court had

inherent powers to deal with any legal matter in issue for the interests of justice.

With regard to the issue of "functus officio", Mr. Mallaba submitted that this applied

only where a matter had been heard on merits. With regards to the affidavit, he said

B that the affidavit is presumed to contain the truth until the contrary is proved by a

counter affidavit or in cross-examination. Dr. Lamwai intervened by stating that the

respondent filed a counter-affidavit. Indeed such counter affidavit is there. C

On the question of section 377 of the CPA Mr. Malaba reiterated that once a State

Attorney fails to comply with specific instructions of the DPP then he cannot be said

to be acting for the DPP and that once the DPP has directed a State Attorney to issue

instructions on his behalf then those instructions are of the DPP. He concluded that if

D a State Attorney decided to go contrary to specific instructions then there is no

DPP in court.

On the issue of 25/9/91, he said that it was Mr. Mwengela who appeared on that day

and he never briefed the DPP of his intention to withdraw the appeal. E

The issues to be determined in this application are interesting and may be

unprecedented. Here is the DPP who has withdrawn the appeal through his State

Attorney asking that the order for withdrawal be revised and the appeal restored

because the State Attorney in question did not have instructions from him to

withdraw F the appeal. In paragraph 4 of his affidavit, Mr. Teemba Principal State

Attorney is saying, "I never gave him the instruction or authority to go and withdraw

the appeal from court on that day." Does a State Attorney require instructions or

authority to withdraw an appeal (or a case for that matter) in order for his withdrawal

to be effective in law G when acted upon by the Court by making the appeal

withdrawn? Mind you, Mr. Teemba is not saying, "I gave him instructions not to

withdraw the appeal." From paragraph 4 of the affidavit it is clear that there were no

instructions to withdraw the appeal or not to withdraw the appeal. From the reading

of paragraph 3 of the I affidavit, it is also clear that the only instructions there were

to Mr. Mwengela from Mr. Teemba were to go to court and attend an appeal No.

123/90 which is the case in question; there were therefore no specific instructions not

to withdraw the appeal. Therefore, with respect to Mr. Mallaba, learned State

Attorney, his submission to the effect that Mr. Teemba instructed Mr. Mwengela

1992 TLR p198

BAHATI J

not to withdraw the appeal is not supported by anything in the affidavit. The A

instructions were to go to Court and attend an appeal (the appeal No.1 23/90.

Whereas in paragraph 4 of the affidavit Mr. Teemba avers that he never gave Mr.

Mwengela instructions or authority to go and withdraw the appeal from the court on

that day, it is B also correct to say that Mr. Teemba never gave instructions not to

withdraw the appeal to Mr. Mwengela. On the basis of the above, it cannot be said, as

Mr. Malaba has submitted, that Mr. Mwengela was acting contrary to express

instructions which he has been given and hence not representing the DPP. The fact

that Mr. Mwengela did not C report to the DPP that he had withdrawn the appeal

cannot alter anything, because, as submitted by Dr. Lamwai, that would be internal

arrangements in the DPP's office. I have no hesitation in holding that the DPP was

duly represented in the appeal and that the DPP withdrew the appeal. I also agree

with Dr. Lamwai that it would be wrong for D this court to hold that Mr. Mwengela

admitted to have acted contrary to instructions of Mr. Teemba without giving Mr.

Mwengela the right to be heard because such a finding would be prejudicial to him.

Paragraphs 7 and 8 of the affidavit of Mr. Teemba are charging Mr. Mwengela with a

serious infraction of regulations and as such these E paragraphs are controversial.

This court can only act on them if Mr. Mwengela himself confirmed the truth of

these paragraphs. Indeed if these paragraphs are true then he would have expected

either an admission in writing or an affidavit from Mr. Mwengela himself. Short of

that I am not prepared to accept them at their face value. This court F has the duty

to scrutinize what is in the affidavit or any evidence and it cannot take for granted or

presume that an affidavit is true even if there is nothing to challenge it in writing.

There is the point raised by Dr. Lamwai concerning the power of the court to revise

an G order entered in circumstances such as the present. Dr. Lamwai has argued that

the court is functus officio in such a situation. Mr. Mallaba on the other hand has

argued that the court has inherent powers to entertain any matter when the interests

of justice so require and that the court become functus officio only when a matter has

been determined on merits. H

After diligent search for a case in point, I have come upon a Ugandan case of Scrisito

Luyombya v Uganda [1965] EA 618. This case concerned a notice of abandonment of

an appeal given under section 328 A(3) of the Uganda Criminal Procedure Code. The

appellant made an application for leave to withdraw the notice of abandonment I

although there were no provisions in the Criminal

1992 TLR p199

BAHATI J

Procedure Code to that effect. The Chief Justice dismissed the application as A

incompetent on the ground that the appeal was already deemed to have been

dismissed by operation of law under S.328A (3) and the Court was functus officio. On

appeal to the Court of Appeal for the East Africa it was held that:

B (i) the appellate courts in Uganda have an inherent jurisdiction to allow an

abandoned appeal to be restored, if it can be shown that the notice of abandonment

was given by mistake or fraud such as to involve a possible failure of justice in the

event of the appeal not being restored; C

(ii) an application to withdraw notice of abandonment is not necessarily an

abuse of legal process, because there may be cases in which, although functus officio,

an appellate D tribunal will use its inherent jurisdiction to declare such notice a

nullity, and allow the appeal to be restored.

The matter was remitted to the High Court to hear the application on its merits. E

Since the above case is from Uganda, it is only of persuasive authority although it is a

Court of Appeal decision. However, I entirely agree with the decision arrived at

which can be applied even in the case before me. Going by the above cited case, I

hold that although this court is functus officio, it has inherent jurisdiction to declare

the F withdrawal a nullity and to restore the appeal. I cannot see why the position in

Tanzania should be different from that in Uganda on this issue.

I will therefore examine now whether there is any justification for declaring the

application for withdrawal or the withdrawal itself a nullity in this case. G

One thing is clear in this case, and it is that the withdrawal of the appeal by the State

Attorney Mr. Mwengela was not expected by the DPP nor was it wanted or desired

by the DPP. the withdrawal was certainly not by mistake. Was it fraudulent? There is

no H evidence that it was fraudulent. I have already ruled above that the

controversial parts of the affidavit which purport to charge Mr. Mwengela with an

infraction of the regulations cannot be accepted without more because that would

amount to condemning Mr. Mwengela without giving him a hearing. Therefore we

go to the next and possible the I last question in this matter which is whether

1992 TLR p200

Mr. Mwengela had power to withdraw the appeal from the court. My answer to this

A question is in the affirmative because Mr. Mwengela as State Attorney duly

representing the DPP had power to do what was within his power when he appeared

in the Court. The withdrawal of the appeal was a matter within his powers. That the

DPP did not like B the step taken buy Mr. Mwengela cannot mean that Mr.

Mwengela had no such power.

It follows therefore that the withdrawal was in order and the appeal is deemed to

have been duly dismissed. It could only be revised if there was a genuine mistake or

fraud which is not the case here. C

I agree with Dr. Lamwai that this application should be dismissed. I dismiss it

accordingly.

D Appeal dismissed.

1992 TLR p200

E