ALLY HASSAN MPAPATA v REPUBLIC 1992 TLR 265 (HC)

 

ALLY HASSAN MPAPATA v REPUBLIC 1992 TLR 265 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mkude J

7 September, 1992

Flynote

Criminal Practice and Procedure - Pleas - Plea of autrefois acquit - Whether available

D where previous proceedings have been declared null and void

-Headnote

Consent for prosecution of an economic offence was given by a person who was not

authorized to do so. This point escaped the attention of the trial court, the trial E

proceeded and the accused was acquitted for insufficiency of evidence. The D.P.P.

appealed to the High Court. Preliminary objections were raised one of which was that

he was not competent to do so. The High Court upheld this objection and declared

the proceedings in the lower court null and void. The Court did not stop there. It F

considered the evidence adduced at the trial, upheld the acquittal of the accused and

dismissed the appeal by the D.P.P.

The D.P.P. then prepared a fresh charge whose particulars of offence alleged the same

offence and was word for word similar to the charge in the previous trial declared to

G be a nullity by the High Court. Consent for prosecution was duly given.

The accused persons, when required to plead, raised the plea of autrefois acquit. The

trial magistrate ruled that the defence of autrefois acquit was not available to the

accused. On appeal to the High Court. H

Held: The plea of autrefois acquit is not available to an accused person whose previous

trial has been declared null and void.

Case Information

Appeal dismissed. I

1992 TLR p266

MKUDE J

Matupa, for the respondent A

Rutabingwa, for the appellant

Editorial Note: The proper procedure which the D.P.P. should have followed in this

matter was to appeal to the Court of Appeal and not to re-charge the accused person

B as he did in this case.

[zJDz]Judgment

Mkude, J.: An interesting point of law arises in this appeal: Is the plea of autrefois

acquit available to an accused person whose previous trial has been declared null and

C void? The question as framed may be an oversimplification but that is the essence

of the point calling for decision in this case. The appellant, Ally Hassan Mpapata, was

charged with unlawful possession of Government trophies c/s 67 (l) of the Wildlife

Conservation Act, 1974 read with section 59 and paragraph 16 (d) of the Economic

and D Organized Crime Control Act, 1984 in the district court of Kilosa. The charge

alleged that on 2/7/89, at Msowero Village in Kilosa district he was found in

possession of 449 elephant tusks valued at Shs.28,540,000/= the property of the

Government. This is an economic offence for which the consent of the Director of

Public Prosecutions E (hereinafter the DPP) is necessary before a trial in respect of it

can be commenced. This is in accordance with the provisions of section 26 (l) of the

Economic and Organized Crime Control Act. Subsection (2) of the same section

empowers the DPP by notice published in the Gazette to delegate some of his powers

in this regard to State F Attorney by specifying economic offenses which require his

personal consent and those that can be consented to by State Attorneys. By

Government Notices N. 191 of 1984 the DPP reserved to his own consent the

prosecution of offences specified in part I of the schedule to the Notice and delegated

to State Attorney-in-charge of the zone or G region in which the economic offence

took place the power to consent to the prosecution of offences specified in Part II of

the Schedule. Offences under the Wildlife Conservation Act fall under Part II of the

Schedule and hence fall under the delegated power. The problem arose in this case

because the State Attorney who purported to H consent to the prosecution of the

offence was not a State Attorney-in-charge as required by the Government Notice.

This point escaped the attention of the trial court and so the trial proceeded and at the

conclusion of the trial the accused was acquitted for insufficiency of evidence. The I

DPP appealed against the acquittal. In the High Court (before Lugakingira J.)

arguments

1992 TLR p267

MKUDE J

on the merits of the appeal were preceded by two preliminary objection. The first A

objection question the competence of the appeal itself. The court held that the appeal

was competent and overruled the preliminary objection. The second objection

challenged the regularity of the proceedings in that the prosecution commenced on

the consent of a person not competent to give such consent. The court held that the

B proceedings were a nullity and issued a declaration to that effect. The court then

went on to consider the evidence adduced at the trial and came to the conclusion that

the learned trial magistrate was justified in acquitting the accused and dismissed the

appeal by the DPP. C

The DPP then prepared a fresh charge against the appellant and two others, annexed

to it his consent for the prosecution as well as his certificate conferring jurisdiction

upon a district court to an economic crime case and filed it in the District Court of

Kilosa. The charge and particulars of offence alleged the same offence and was word

for word D similar to the charge in the previous trial declared to be a nullity by

Lugakingira J. While the case was still pending at the Kilosa District Court the

appellant filed an application for bail in the High Court, and when the file was

pleased before Lugakingira J. for hearing he declined to hear it and gave his reasons as

follows: E

Court: The arrest and re-arraignment of the applicant rises either from a

misunderstanding or a disregard of the judgment in which I upheld his acquittal. I

cannot embark upon hearing this application without appearing to be a judge in my

own cause. F The matter should be placed before another judge.

The authorities obliged and placed the matter before Kyando, J. who proceeded to

hear the application and ordered that the matter should be handled by the trial court

since G it has been given jurisdiction to try the case under the certificate issued by

the DPP. Before leaving the matter Kyando J. made the following observations:

H Thirdly it does certainly not appear to me that Lugakingira J. only nullified the

first proceedings in this case. As shown above already he considered also the evidence

in the case and was satisfied that even if he were to hold that the proceedings were

valid he would still have upheld the acquittal on the evidence - which was weak and

could not I sustain a conviction.

1992 TLR p268

MKUDE J

A On all these above points, it is clear that to all intents and purposes, the appeal

by the Director of Public Prosecutions in the first proceedings was dismissed on its

merits. The reinstitution of the case therefore amounts to an abuse of the process of

the courts. However, as is clear, I am here dealing with a bail application. The matter

whether the B applicant has already been acquitted in the case is to be properly dealt

with by the district court which is trying him. He may deem it necessary to plead

autrefois acquit before that court. (emphasis supplied.) C

Armed with the observations of two judges of this court, Mr. Rutabingwa, learned

advocate, appeared before the District Court at Kilosa and pleaded autrefois acquit.

The learned Resident Magistrate who presided was not impressed by this plea; he

rejected it and said: D

I totally concur with Mr. Kamba that the appeal was not heard on merit. The

defence of autrefois acquit does not arise in this case. The fact that Hon. Lugakingira

J. did not order for retrial of the case did not mean that the Prosecution could not

recharge the accused. E

It is the opinion of this court that the acquittal as entered by Hon. Lugakingira

J. was if the proceedings were valid but they were not VALID AND HAD NULLIFIED

them at the beginning of his judgment. F

The application for defence of autrefois acquit for 1st accused is dismissed. The case is

to proceed as scheduled.

The appeal before me now is against this last order of dismissal. Mr. Matupa, learned

G State Attorney who appeared for the Respondent/Republic, raised the question

whether the order rejecting the plea of autrefois acquit is appealable. He argued that

if the plea is accepted by the court and upheld then it is final and appealable

immediately but if it is rejected then it is merely interlocutory and therefore not

immediately appealable. This H is an interesting point very much like that covering

the submission of no case to answer but I find it unnecessary to decide in this appeal

and so I refrain from expressing any opinion on it, if only to learn a lesson or two

from the observations of my two learned others.

Mr. Rutabingwa faithfully referred to and relied on the observations of Lugakingira J.

I both in his judgment and in the

1992 TLR p269

note he wrote declining to hear the bail application, as well as the observation of A

Kyando J. reproduced above in which he regarded the action of the DPP in filing

fresh charges against the appellant and his two friends as an abuse of the process of

the courts. While I have every sympathy for his arguments I am unable to accept

them. One cannot eat one's cake and have it. Once Lugakingira J. disagreed with Mr.

Matupa, B learned State Attorney, on the power of Miss Korosso to consent to the

prosecution of the appellant, and declared the trial null and void then, ipso facto,

there was no "acquittal" for his lordship to uphold. This is so because the purported

acquittal is a necessary part of the very trial that has been declared a nullity. It could

not, and, like C those by Kyando J. in the ruling on the application for bail, were not

at all necessary for determination of the appeal.

For the above reasons this appeal fails and I dismiss it.

D Appeal dismissed.

1992 TLR p269

E