THE REPUBLIC v MGEMA MANYUYA 1992 TLR 48 (HC)

 THE REPUBLIC v MGEMA MANYUYA 1992 TLR 48 (HC)

Court High Court of Tanzania - Tabora

Judge Korosso J

26 March, 1992

Flynote

Criminal Practice and Procedure - Charges - Dismissal - Before lapse of 60 days illegal

E and void - Court may refuse adjournment - S. 225 (4) Criminal Procedure Act,

1985.

-Headnote

In a trial before a District Court the presiding magistrate dismissed the charge and F

discharged the accused under section 225(4) of the C.P.A after 55 days since

commencement of proceedings.

On revision the judge of the High Court found that the dismissal and discharge were

unlawful and void, but observed that court have power in appropriate cases to refuse

further adjournments of a case. G

Held: (i) The order for dismissal of the charge and discharge of the accused was null

and void. Such order can only be made after the expiry of sixty days;

H (ii) in the application of the provisions of section 225(4) (a) of the CPA, the

court has a discretion to refuse to adjourn a case even where a certificate has been

filed by the Regional Crimes Officer if satisfied that the certificate has not been able

to show an existence of a real need for an adjournment or the grounds are

unreasonable. I

1992 TLR p49

[zJDz]Judgment

Korosso, J.: This revisional file was ordered to be opened with a view to satisfying A

this Court as to the legality or propriety of the learned Principal District Magistrate

order dated 27/3/1991 in which he dismissed the charge and discharged the Accused

for failure by the prosecutor to file a certificate of the Regional Crimes Officer,

Shinyanga, asking for an adjournment of the case for a further aggregate period of 60

days as B provided under the provisions of section 225 (4) of the CPA No. 9/85.

Mr. Oswald, the learned State Attorney, who represented the Republic at the hearing

of the revision, submitted that the initial 60 days having not elapsed, the learned trial

Magistrate was not legally justified in dismissing the charge and discharging the C

Accused.

Indeed, the learned State Attorney, is right. The Accused had the charge formally

read over to him on 31/1/1991 so that on 27/3/1991 when the charge was dismissed,

there had elapsed 55 days or so in the aggregate. Self-evidently, the order was made

prematurely. The discharge of the Accused was consequently illegal and the order a

D nullity.

Be as it may, the learned trial Magistrate needs to be commended for being so mindful

about the magnitude of the provisions of section 225 (4) of the CPA. There can be no

room for compromise in the application of section 225(4) of the CPA. I may further E

observe that in the application of the provisions of section 225 (4) (a) of the CPA, the

Court has a discretion to refuse to adjourn the case even where a certificate has been

filed by the Regional Crimes Officer if satisfied that the certificate has not been able

to F show an existence of a real need for an adjournment or the grounds are

unreasonable. Take this case in point as an example. The Accused was charged with

the offence of giving false information to Mr. Magige, the Primary Court Magistrate

at Bumela Primary Court on 14/90. In a case of this nature the said Magistrate was the

only key witness. G It is difficult to really believe that it was not possible to secure

the attendance of the Primary Court Magistrate, working in the same District before

the District Court.

There may also arise a situation where all the witnesses but one have testified. If the

Court honestly believes that the evidence of the remaining witness will be just like "a

H fly on the coach-wheel', so that the case is bound to stand or fall on the evidence

given thus far, it will be doing justice to the case to refuse the application. The

position under the provisions of section 225 (4) (b) and (c) of the CPA has no

relevancy to my foregone observations for under those I

1992 TLR p50

paragraphs (b) and (c) adjournment is obligatory once appropriate certificates are A

filed on time.

I would emphasize here that the provisions of section 225(4) (a) (b) and (c) of the

CPA are essentially intended to control the speed of hearing criminal cases so that

proceedings are concluded within ascertainable period of time. The section is just like

B a reins which a rider uses to control the direction and speed of an unruly horse.

The final question is whether or not this Court should order the arrest of the Accused

so that the proceedings resume from where they stopped. C

I find myself overwhelmed by reluctance as a result of my surprise I expressed 'supra'

because of the prosecution's failure to secure the attendance of Mr. Magige, the

Primary Court of Bumela Primary Court, for 55 days.

Under the circumstances of this case, it would be violating the provisions of Article

13 D (6) (b) of the Constitution of 1977.

Consequently, I invoke the inherent powers of this Court by dismissing the charge

and discharging the Accused.

E The Lower Court's order is quashed.

1992 TLR p50

F