THOMAS ELIAS, PAUL PETER AND MENG'OLU NDAMUNI v REPUBLIC 1993 TLR 263 (CA)

THOMAS ELIAS, PAUL PETER AND MENG'OLU NDAMUNI v REPUBLIC 1993 TLR 263 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Lubuva JJA

CRIMINAL APPEAL NO. 34 OF 1993 B

8 November, 1993

(From the conviction of the High Court of Tanzania at Arusha, Munuo, J.) C

Flynote

Magistrates Courts Act - Jurisdiction - A Court of Resident Magistrate presided over

by a District Magistrate - Whether Court properly constituted -

Criminal Practice and Procedure - Curable defects - Such defects must proceed from a

trial by a Court of D competent jurisdiction - Sections 387 and 388 of the Criminal

Procedure Act, 1985.

-Headnote

The appellants were charged with robbery with violence and convicted before the

Resident Magistrates Court, Arusha presided over by a District Magistrate. They were

each sentenced to E seven years imprisonment and were ordered to compensate the

complainant. The appellants' appeal to the High Court was dismissed. On further

appeal to the Court of Appeal the Court considered whether the Trial Court was

properly constituted and, if it was not, whether that was a defect which could be

cured by invoking the provisions of s 387 and s 388 of the Criminal Procedure Act,

1985. F

Held: (i) The Principal District Magistrate, though in terms of jurisdiction had

the power to try the case for such offence as the law stands under the Magistrates'

Courts Act, 1984, was not competent to sit and preside over the case in the court of

the Resident Magistrate. G

(ii) Proceedings and deliberations of a court which is not properly

constituted are a nullity;

(iii) The provisions of s 387 and s 388 of the Criminal Procedure Act, 1985,

cannot be invoked to cure such a defect because the irregularities, errors and

omissions curable under these provisions not have occasioned a failure of justice and,

more importantly, they must proceed from a trial by a Court of competent

jurisdiction. H

Case Information

Appeal allowed.

Case referred to:

1. William Rajabu Mallya and Two Others v. Republic [1991] TLR 83. I

J. Mono, for the respondent.

1993 TLR p264

[zJDz]Judgment

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

This is a second appeal. The appellants were charged and convicted before the

Resident B Magistrate's Court Arusha for the offence of robbery with violence

contrary to s 285 and s 286 of the Penal Code. The Trial Court having convicted them

imposed a sentence of seven years imprisonment against each of the appellants

together with an order of compensating shillings 2,370/= to the complainant. On

appeal to the High Court (Munuo J) their appeal was dismissed. The C conviction

and sentence were upheld. Dissatisfied with the decision of the High Court, the

appellants have now appealed to this Court.

At the hearing of this appeal, Mr J D Mono, Learned Principal State Attorney

appeared for the D respondent Republic. The First appellant (Thobias Elias) and

second appellant (Paulo Peter) appeared in person. The third appellant (Meng'olu

Ndamuni) did not appear though the Court was informed that he was duly served and

had not filed his Memorandum of Appeal. At this was the third E time that this

appeal was called up for hearing but still he (third appellant) could not only not

attend the Court but had not as yet filed the Memorandum of Appeal, the Court

decided to dismiss his appeal; a move which was also supported by the learned

Principal State Attorney Mr J D Mono on behalf of the Republic. This was done in

terms of Rule 74(4) of the Tanzania Court of Appeal Rules F 1979 with the liberty to

have it restored upon showing sufficient cause for not appearing when the appeal was

called for hearing. Otherwise, it would cause undue delay of the whole matter

including the first and second appellants who, apart from having filed their

Memorandum of appeal have also been appearing before the Court whenever the

Appeal was called for hearing. The hearing of the G appeal of the first and second

appellant was therefore proceeded with.

As a preliminary point, Mr J D Mono, learned Principal State Attorney raised the

point that the appeal H was incompetent. This was because, according to Mr Mono

the appeal was out of time in that the judgment was delivered on 19 July 1988 and the

Notice of Appeal was given on 16 May 1991 when the requisite time for giving Notice

of Appeal was long past, so urged Mr Mono. Finally, however, Mr Mono conceded

and correctly so in our view, that there was nothing in the record to indicate when I

the appellant became aware or was notified of the outcome of the appeal before the

High

1993 TLR p265

LUBUVA JA

Court. Without such knowledge, it is not possible to expect the appellant to initiate

action towards the A processing of an appeal against a decision which he had not

known. In the circumstances and for purposes of better meeting the justice of the

case, especially for the parties who had appeared in court when the appeal was called

(first and second appellants) we were satisfied that it was justified for the first and

second appellant's appeal to proceed. We accordingly overruled Mr Mono's B

preliminary point on limitation of time and therefore allowed their appeals to proceed

to hearing.

In the course of hearing of the appeal filed by the first and second appellants Mr J D

Mono learned Principal State Attorney raised yet another important point of law. He

submitted that this being a C second appeal it should not be entertained as there was

no point of law involved. Section 6(7)(a) of the Appellate Jurisdiction Act, 1979 sets

out the conditions for such appeals to the Court which if not fulfilled, should not be

entertained so urged the learned Principal State Attorney Mr Mono. With D respect,

we agree with him on this submission. Furthermore, Mr Mono, learned Principal

State Attorney raised the question of jurisdiction. He urged that though at the High

Court when the appeal was heard, his office on behalf of the Director of Public

Prosecutions was represented and E supported the conviction, upon further scrutiny

and researching on the matter the issue of jurisdiction had cropped up. In his view

this was a very vital aspect which goes to the very root of the case. He urged that the

record of the case (pages 2 and 6) quite clearly shows that it was entitled `In the

Resident Magistrate's Court at Arusha'. The record further shows that the proceedings

were F presided over by one W Nathan, Principal District Magistrate. That means

that the Court of a Resident Magistrate was presided over by a District Magistrate

who had risen to the rank of Principal District Magistrate. As such Mr Mono argued

convincingly that the trial was a nullity, it having been G tried by a Magistrate who

had no jurisdiction. In support of this argument he referred us to the provisions of s 6

of the Magistrates Courts Act, 1984 which provides for the Constitution of the

Magistrates Courts in Tanzania. In that section, it is provided: H

6(1) Subject to the provisions of s 7, a Magistrate's Court shall be duly

constituted when held by a single Magistrate being -

(a) and (b) are not applicable and s 7 deals with primary courts sitting with

Assessors.

(c) in the case of a Court of a Resident Magistrate a Resident Magistrate. I

1993 TLR p266

LUBUVA JA

A Under such legal position Mr Mono submitted that unlike the case of a District

Court where the trial can be presided over by either a Resident Magistrate or District

Magistrate in the case of a Court of a Resident Magistrate by law it must be presided

over by a Resident Magistrate. In the case before us, Mr W Nathan being a District

Magistrate was not competent to sit and preside over a trial in the Court B of a

Resident Magistrate. In order to reinforce his submission, Mr Mono referred to a

recent decision of this Court in William Rajabu Mallya and Two Others v Republic

(1)

In that case the proceedings in the Resident Magistrate's Court were presided over by

a Principal C District Magistrate. As the Principal District Magistrate had no

jurisdiction to try the case in the Court of a Resident Magistrate Court, the court was

not properly constituted as required under the Magistrate's Courts Act 1984. We

declared the proceedings a nullity thereby setting aside the D conviction and

sentence.

We have very carefully and closely considered the submission of Mr Mono, learned

Principal State Attorney. As an officer of the Court, we have no hesitation in

commending him for the valuable E contribution and assistance he has rendered to

the court in this matter. With respect, we agree with his submission that the Court

when trying the case was not properly constituted. The Principal District Magistrate

Mr W Nathan, though in terms of jurisdiction had the power to try the case for such

offence but as the law stands now under the Magistrate's Courts Act 1984 he was not

competent to sit and preside over the case in the Court of the Resident Magistrate.

That was the F wrong Court for him. Consequently, proceedings and deliberations of

such a trial are but a nullity. The provisions of s 6(1)(c) of the Magistrate's Court's

Act, 1984 are so clear and unambiguous that the provisions of s 387 and s 388 of the

Criminal Procedure Act, 1985 cannot be invoked to cure such a defect. This is

because, in our understanding of these provisions, the irregularities, errors and G

omission that can be cured by invoking these provisions of the Criminal Procedure

Act are of such a nature as not to have occasioned a failure of justice and more

importantly they must proceed from a trial by a Court of competent jurisdiction. This

was not the case in the instant appeal. The proceedings were a product of a court

which was not properly constituted. The result was a nullity H which cannot be

saved by any of the abovementioned provisions of the Criminal Procedure Act 1985.

This is an aspect which it would appear from the record was not looked into by the

High Court on I appeal and the learned State Attorney on behalf of the Republic did

not allude to it either.

1993 TLR p267

For these reasons and without going further into the other grounds of appeal we agree

with Mr Mono, A the learned Principal State Attorney who did not support the

conviction that the trial having been conducted by a court which was not properly

constituted, was therefore a nullity. Accordingly, we set aside the proceedings, quash

the conviction, sentence and the order of compensation. The first and B second

appellants are to be set free forthwith unless otherwise lawfully held in custody.

In the result, with this decision, having regard to the nature of the offence and the

fact that the appellants have since (19 March 1986) served a substantial part of their

sentence of seven years C imprisonment, we are not minded to order a retrial; we

leave the matter open for the Director of Public Prosecutions to exercise his

discretion on whether or not to institute fresh charges against the appellants.

As regards the third appellant whose appeal we had ordered at the hearing of this

appeal to be dismissed (under Rule 73(4)) it is accordingly ordered that he (third

appellant) should be served with D a view to have his appeal restored in terms of the

Rules in order to be dealt with in similar manner. It is accordingly ordered.

1993 TLR p267

F