REPUBLIC v NURU MASUDI MGAWE 1984 TLR 218 (HC)

REPUBLIC v NURU MASUDI MGAWE 1984 TLR 218 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

CRIMINAL REVISION 5 OF 1984 B

Flynote

Criminal Practice and Procedure - Withdrawal of charge - Prosecution applies to

withdraw charge u/s. 86(a) Criminal Procedure Code - Court refuses consent to

withdraw instead discharges accused u/s. 201 - Whether proper. C

-Headnote

The respondent was charged with causing death through dangerous driving c/ss.

40(8) and 63(2)(a) of the Road Traffic Act. After the case had dragged for one year

and nine months the prosecution applied to withdraw the case under s. 86(a) of the

Criminal Procedure Code. The court refused its D consent to withdraw the case

instead discharged the accused under section 201 of the Criminal Procedure Code.

During the revision proceedings the court considered whether the subordinate court

acted within its powers.

Held: (i) Section 201 of the Criminal Procedure Code under which the trial magistrate

purported to E dismiss the case and discharge the accused was the wrong section;

(ii) the error in citing the wrong section did not occasion any failure of justice

and was curable under s. 346 of the criminal Procedure Code; F

(iii) if there is no evidence led in support of the charge then the presiding

magistrate has no alternative but to dismiss the charge and acquit the accused person

under section 205 of the Criminal Procedure Code because failure to adduce evidence

implies that the accused has no case to answer; G

(iv) the District Court exercised its discretion judiciously to refuse consent to

the prosecution's application to withdraw the case;

(v) where the court refuses to adjourn a case under s.201 of the Criminal

Procedure Code then s. 205 automatically applies. H

Case Information

Order accordingly

Cases referred to:

1. R. v Kanji Kotecha [1976] LRT n.41 I

2. R. v Cleophas Katiti [1977] LRT n. 19

1984 TLR p219

BAHATI J

A 3. DPP v Mienda [1978] LRT n. 64

4. R. v Murinda and others [1971] H.C.D. n. 445

Nzali and Rutashobya for the Republic

B Kapinga for the Respondent

[zJDz]Judgment

Bahati, J.: This is a revision case. After one Jumanne Maneno Hangai had written to

the court complaining about the district court's order of discharging Nuru Masudi

Mgawe the respondent in this revision proceeding, this court called for the District

Court's case file for the purpose of C revision. The Director of Public Prosecutions

was served with a notice of hearing of this revision.

Mrs. Nzali learned State Attorney appeared on behalf of the Director of Public

Prosecutions and Masudi Mgawe the respondent who was the accused person in the

District Court case was served D as well and he appeared in person.

Mrs. Nzali submitted that the case at hand originated from Kivukoni District Court

where the respondent was charged with causing death through dangerous driving

contrary to section 40(1) E and 63(2) (a) of the Road Traffic Act. The case came to

court on 15th November, 1981 for the first time. Then it was adjourned on a number

of occasions either due to absence of the accused or because there was no Police Case

file or because there were no witnesses. The case was never heard until on 12th

August, 1983. The Prosecution applied to withdraw the charge under section F 86(a)

of the Criminal Procedure Code. But the trial Magistrate refused the prosecution's

consent to withdraw u/s 86(a). The learned trial Magistrate argued that the case had

been adjourned many times for lack of the Police case file and that the accused would

not be free if discharged u/s 86(a) of G the Criminal Procedure Code because he

would be waiting for a trial if the Police file was found. The learned Magistrate

discharged the accused u/s 201 of the Criminal Procedure Code. Mrs. Nzali went on

to submit that section 201 did not empower the Magistrate to discharge an accused

person. The section only gives power to a subordinate court to grant or refuse

adjournment. In this case the Prosecution was not applying for adjournment but for

withdrawal. She cited R. v Kanji Kotecha [1976] LRT n.41 which held that section

201 of the Criminal Procedure Code gives a discretion to a H subordinate court to

grant or refuse adjournment. Once an adjournment is refused then evidence I must

be led in support of the case. Failure to do so gives the trial court power to dismiss

the charge and acquit the accused under

1984 TLR p220

BAHATI J

section 205 of the Criminal Procedure Code. She went on to submit that unless a case

is withdrawn A by the Prosecution the trial court has no power to dismiss the case

for lack of prosecution. She cited R. v Cleophas Kateti [1977] LRT 19 where

Lugakingira, Judge held that unless withdrawn by Prosecution a court has no power

to dismiss a case for want of prosecution. She submitted further B that the accused

had a hand to play in the delay of this case and she prayed that the case be withdrawn

u/s 86(a) of the criminal Procedure Code as originally applied for.

The respondent sought for an adjournment to engage an advocate and on the resumed

hearing of the case Mr. Kapinga learned counsel for the respondent submitted that

the respondent was C brought to court on 15th November, 1981 and he was set free

by the court on 12th August, 1983 - a year and 9 months later. Investigations were

completed by 15th December, 1981 and on 15th December, 1981 a hearing date was

fixed. Yet the record does not show any application for witness D summonses by the

Prosecution for the entire period of one year and 9 months. The reason advanced by

the Prosecution for failure to proceed with the hearing was that they could not trace

their Police file. Even the relatives of the deceased who moved the court to revise

this case did not E do so until 2 years and 6 months had passed since the respondent

was first charged. Mr. Kapinga went on to submit further that the case had a sad

picture of inefficiency and lack of interest on the part of the Prosecution. The Public

Prosecutor applied to withdraw the case u/s 86(a) for failure to trace the Police file.

The respondent was set free under section 201 of the Criminal Procedure Code. F

The Prosecution requires consent of the court in order to withdraw from prosecution

of any person. In this case consent was denied and also adjournment was refused by

necessary implication The Republic failed to adduce any evidence at all to prove the

charge, and the only G alternative left to the Magistrate was to set free the

respondent and acquit him u/s 205 of the Criminal Procedure Code. Mr. Kapinga

referred to Kanji Kotecha's case cited by the learned State Attorney above. Mr.

Kapinga argued that the trial court had no alternative but to acquit the respondent.

Alternatively, by acquitting the respondent the trial court exercised its discretion H

judicially and that there was no failure of justice. The court considered the gravity of

the offence in its ruling and it also considered how the relatives of the deceased

would feel if respondent were set free without trial. The Magistrate blamed the

Prosecution for failure to proceed with the case. The I Magistrate considered also

the respondent in this

1984 TLR p221

BAHATI J

A case, how he would suffer psychologically if the charge was left still hanging on

his neck. In the interest of justice he acquitted the respondent. Mr. Kapinga

submitted further that the trial Magistrate had inherent power to do so. He cited

DPP v Mienda [1978] LRT n.64 where it was B stated that justice should not be

defeated on account of the inefficiency of Police, Prosecutor or the court. Mr.

Kapinga submitted also that there was nothing to show by way of affidavit that the

Police file or anything else of the Prosecution which delayed the prosecution of this

case has been found. It would be unjust for the respondent to go back to the District

Court for an indefinite period. C It was in the interest of justice that cases ended as

soon as possible. Mr. Kapinga conceded that section 201 of the Criminal Procedure

Code as applied by the trial Magistrate was wrong. But, he submitted, this error was

curable under section 346 of the Criminal Procedure Code. The only D question was

whether the order of the Magistrate had occasioned any failure of justice. He

submitted that justice had been done here and he urged the court to equally do

justice.

In a brief reply, Mr. Rutashobya learned State Attorney submitted that Kanji

Kotecha's case cited by Mrs. Nzali and Mr. Kapinga was not relevant in this case

because it related to an acquittal under E section 205 of the Criminal Procedure

Code. In this case the trial Magistrate applied section 201 to acquit. Mr. Rutashobya

went on to submit that section 86(a) of the Criminal Procedure Code was not meant

to be used with a view of giving the accused the right not to be harassed again. The

F Public Prosecutor was not asking for an adjournment but to withdraw under section

86(a) and instead of considering the application the trial Magistrate imported

irrelevant considerations in the case and then he made the error of exercising the

powers under section 205 of the criminal Procedure G Code and purported to use

them under section 201 of the Criminal Procedure Code. He pointed out that the fact

that he was appearing in this revision case clearly showed that the Republic was

interested in the matter and that it would be a very bad precedent if what the trial

court did was to be endorsed by this court, for if trial courts could do as what was

done in this case it would make it H impossible for the prosecution to use section

86(a) of the Criminal Procedure Code.

After careful perusal of the district court case file and after hearing the parties in this

revision, I am satisfied that the Prosecution was to blame for the delay in the

finalization of this case. There was I certainly inordinate delay in finalising the case.

The question which comes to mind is whether the district court had power to dismiss

the

1984 TLR p222

BAHATI J

charge and acquit the respondent under any section of the Criminal Procedure Code.

I should, A perhaps , state here that section 201 of the Criminal Procedure Code

under which the learned trial Magistrate purported to dismiss the case and discharge

the respondent is the wrong section. It is even conceded by the counsel for the

respondent that this section is for the discretion of the court B to adjourn a case

which had come for hearing. It has nothing to do with the dismissal of a case and

discharge of an accused person. Sections which deal with dismissal of the charge and

acquittal of accused or simply acquittal of accused are sections 198, 202 and 205 of the

Criminal Procedure Code. Section 198 refers to a situation where the complainant

does not appear at the hearing. It C empowers the court to dismiss the charge and

acquit the accused person. Section 200 applies when the complainant is permitted by

the court to withdraw his complaint. It empowers the court to acquit the accused

after allowing the withdrawal of the complaint. Section 202 applies where the D

complainant does not appear at an adjourned hearing of a case. It empowers the court

to dismiss the charge and acquit the accused. And section 205 applies where there is

no case to answer. It empowers the court to dismiss the charge and acquit the accused

person. E

In the present case there was an application by the Public Prosecutor to withdraw

from the prosecution of the accused u/s 86(a) of the Criminal Procedure Code because

the Police case file could not be traced. The learned Magistrate declined to give

consent to such withdrawal and instead he apparently dismissed the case under

section 201 of the Criminal Procedure Code, and F discharged the accused person.

It has been urged on this court by Mr. Kapinga for the respondent that the relevant

section here was Section 205 of the Criminal Procedure Code and that it was wrong

for the trial Magistrate to apply G section 201 of the Criminal Procedure Code

because it did not occasion any failure of justice. Mr. Rutashobya, learned State

Attorney said that section 205 was not relevant here. With due respect to both

counsels, I agree with Mr. Kapinga that the error in citing the wrong section did not

occasion any failure of justice and the error is therefore curable under section 346 of

the criminal H Procedure Code. I also agree that the learned trial Magistrate acted

under section 205 of the criminal Procedure Code after he refused the court's consent

to withdraw from prosecution of the accused on the part of the public prosecutor and

did not adjourn the case. The case of R. v Kanji Kotecha I was cited to the court.

The question

1984 TLR p223

BAHATI J

A is whether Kanji Kotecha's case was rightly decided in view of subsequent

decisions to the contrary such as R. v Cleophas Kateti and DPP v Mienda cited by

learned counsels. In Kanji Kotecha's case it was held that once an application for

adjournment by the prosecutor has been B refused, evidence must be led in support

of the charge; failure to do so gives the presiding magistrate no alternative but to

dismiss the charge and acquit the accused under section 205 of the Criminal

Procedure Code. Maganga, Ag. J., as he then was, argued that the legislature could not

have given the court power to refuse to grant an adjournment and then failed to

provide for the C consequences of such refusal. He argued further that failure to

adduce evidence implied that the accused had no case to answer and as such the case

would come under the ambit of section 205. Barely a year later Lugakingira, Ag. J., as

he then was held in Rep. v. Cleophace Kateti, cited above, D that unless withdrawn

by the prosecution a court has no power to dismiss a case for want of prosecution.

This holding was in respect of a situation where the complainant is present but unable

to offer evidence against the accused and not where the complainant or public

prosecutor was absent, Lugakingira, Ag. J., cited the case of R. v. Murinda and others

[1971] HCD n.445 where a trial E Magistrate dismissed the charge and acquitted the

accused after he had fixed a final date for hearing but the prosecution were not ready

to proceed. On revision it was held that a case cannot be dismissed for want of

prosecution.

F An even more recent case was decided by Biron J. in D.P.P. v Mienda also cited by

learned counsel for the respondent. In this case of Mienda, Baron J. said this:

As I have often reiterated, the subordinate court is the creation of statute and

it has no power other than those G conferred upon it by statute. In fine, a

subordinate court has no right to dismiss a charge and acquit an accused, where the

prosecution is represented and does not agree to such dismissal of the charge or

acquittal of an accused.

H In D.P.P. v Mlienda, the trial court had dismissed the case and acquitted the

accused because the prosecution failed to adduce evidence because of lack of Police

file. The case was dismissed u/s 200 of the Criminal Procedure Code. In R. v

Cleophase Kateti, the trial court dismissed the case u/s 198 I and acquitted the

accused after refusing further adjournment and after the prosecution had failed to

offer more evidence. And in R. v Kanji Kotecha the trial court

1984 TLR p224

BAHATI J

acquitted the accused person because the trial court refused further adjournment and

no more A evidence was adduced by the prosecution.

I have searched for a decision of the Court of Appeal on this question of whether a

subordinate court has powers to dismiss a case for failure to offer evidence but I was

unable to find any. I am B therefore left with the three decisions cited above two of

which are at variance with the first decision namely that in Kanji Kotecha's case. My

own interpretation of section 201 of the Criminal Procedure Code is as contained in

the decision of Kanji Kotecha's case. I fully agree with my C brother Maganga that

under section 201 of the Criminal Procedure Code the trial court has a discretion to

adjourn a case or not when it comes up for hearing. I also agree with my brother

Maganga's reasoning that the legislature could not have given the court power to

refuse an adjournment and then failed to provide for the consequences of such

refusal. This argument can be amplified by reference to sections 198 and 202 of the

Criminal Procedure Code Section 98 provides D this, inter alia:

.... if the complainant, having notice of the time and place appointed for the

hearing of the charge, does not appear, the court shall dismiss the charge and acquit

the accused person, unless for some reason it shall think E it proper to adjourn the

hearing of the case until some other date, ...

Section 202(1) provides, inter alia, thus: F

... and if the complainant shall not appear the court may dismiss the charge

and acquit the accused ...

Section 202 refers to a situation where the hearing or further hearing may be

adjourned. Section 198 G refers to a situation where a hearing date is set and the

accused appears but the complainant does not appear. Both sections are substantially

the same. The result of non-appearance of the complainant and the failure of the

complainant to adduce evidence is the same namely that no evidence is adduced.

Indeed, the purpose of the appearance of the complainant at the time of H hearing is

so that evidence may be led in proof of the charge. Now, if no evidence is led due to

non-appearance of the complainant or failure or inability by the complainant to

adduce evidence although the complainant is present and in each case the court does

not think it proper to adjourn I the hearing of the case until some other date, why

should the results being different whereby

1984 TLR p225

BAHATI J

A refusal to adjourn under sections 198 and 202 leads to acquittal of the accused and

dismissal of the charge whereas refusal to adjourn under section 201 leads to nothing,

i.e., to no refusal to adjourn.

Bearing in mind what I have said above I am in complete agreement with the decision

in Kanji Kotecha's case that where the court refuses to adjourn a case under section

201 of the Criminal B Procedure Code then section 205 applies and the case

automatically falls under the ambit of section 205. If there is no evidence led in

support of the holding charge then the presiding magistrate has no alternative but to

dismiss the charge and acquit the accused person under section 205; for failure C to

adduce evidence implies that the accused has no case to answer.

For the above reasons, I must differ from the holdings in the cases of R. v Cleophas

Kateti and D.P.P. v Mlienda cited above. With due respect to the learned judges who

dealt with the above D cited cases, I am unable to agree that the court is unable to do

anything about a case which is not withdrawn by the Prosecution under section 86(a)

or 86(b) of the Criminal Procedure Code or which does not fall under sections 198,

200, 202 or 81 of the criminal Procedure Code even if the court has E refused to

adjourn a case or to withdraw a case at the request of the prosecution.

I therefore answer the first question I asked in the affirmative that the district court

had power to dismiss the charge and acquit the respondent under section 205 of the

Criminal Procedure Code. I also answer the 2nd question whether Kanji Kotecha's

case was rightly decided in the affirmative. F As to whether it was just in the

circumstances of this case for the district court to act as it did I have no doubt in my

mind that the district court exercised its discretion to refuse further adjournment

judiciously. I need not repeat what has been said by learned counsel for the G

respondent about the inordinate delay in prosecuting this case. I can see no

justification for the prosecution to withdraw the charge against the respondent under

section 86(a) and then start the prosecution of the respondent all over again after the

prosecution had completed investigations right on the first day the respondent

appeared in court and after it had taken the prosecution a year H and 9 months to

decide to withdraw the case. I am satisfied that the learned trial Magistrate

considered all relevant factors and came to the right conclusion. There is a law in our

statute books requiring the completion of cases in the district court within 60 days. It

would be circumventing I such a law if the prosecution were allowed to withdraw

cases and then file the same cases again. This could lead to persecution and not just

prosecution,

1984 TLR p226

for, if the argument of the Republic is taken to be correct then it means theoretically

the prosecution A can withdraw a case under section 86(a) and later on file the same

case again in court under a different number and then withdraw it and file it again

and so on and so forth ad infinitum. What is to prevent the prosecution from the

abuse of court process if all the court may do when an B application to withdraw a

case under section 86(a) is presented, is to either grant the application or refuse the

application and adjourn the case to another date?

For the above reasons the application to revise the proceeding in this case is granted

to the extent C that the respondent is acquitted under section 205 of the Criminal

Procedure Code and the charge is dismissed. The order of the learned Magistrate

dismissing the charge under section 201 of the Criminal Procedure Code and

discharging the accused person is set aside. In its stead it is substituted the order of

dismissing the charge under section 205 of the Criminal Procedure Code and D

acquitting the accused person. Therefore the accused person is acquitted and the

charge is dismissed under section 205 of the Criminal Procedure Code.

Order accordingly E

1984 TLR p226

F