Shiminimana Hisaya & another v. Republic, Cr app no 6 of 2004 (Rape)

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM:   LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)

CRIMINAL APPEAL NO. 6 OF 2004

 

1. SHIMINIMANA HISAYA 

2. SABIMANA FOKAS           ..………………….… APPELLANTS

VERSUS

THE REPUBLIC ….……..………………..……….…. RESPONDENT

(Appeal from the Judgment  of the High

Court of Tanzania at Tabora)

(Rusema, PRM, Extended Jurisdiction)

dated the 19^th day of June, 2003

in

Criminal Appeal No. 32 of 2003

-------------

JUDGMENT OF THE COURT

5 & 16 March 2007                               

MROSO, J.A.:

        This is an appeal against a judgment of the “High Court” which upheld a conviction for rape and sentence of 30 years imprisonment by the District Court of Kibondo District.  Unfortunately, the appeal cannot be heard on merit because what purported to be a High Court decision was not so in fact.  We will try below to show what had happened and why we say there was no High Court decision against which an appeal would lie to this Court.

        After the appellants were convicted and sentenced by the District Court of Kibondo they appealed to the High Court of Tanzania at Tabora.  A Criminal Appeal No. 32 of 2002 of the High Court District Registry was filed.  It would appear that, subsequently, that High Court appeal was transferred to the Court of Resident Magistrate under section 45 (2) of the Magistrates’ Courts Act, 1984, to be heard by a resident magistrate with extended jurisdiction.

        Mr. Rusema, Principal Resident Magistrate with extended jurisdiction, heard High Court Criminal Appeal No. 32 of 2002 and purported to hear it as the High Court.  We say so because his judgment which is before us has a title as follows:-

“IN THE HIGH COURT OF TANZANIA

AT KIGOMA

CRIMINAL APPEAL CASE NO. 32 OF 2002

(ORIGINAL CRIMINAL CASE NO. 141/1999)

OF KIBONDO DISTRICT COURT)

1.   SHIMIRIMANA S/O HISAYA

2.   SABIMANA S/O FOCAS          APPELLANTS

VERSUS

THE REPUBLIC – RESPONDENT

JUDGMENT

BEFORE:  K.T. RUSEMA, PRM

              (EXTENDED JURISDICTION)”

So, there can be no doubt that Mr. Rusema, PRM (Extended Jurisdiction) purported to sit as the High Court.  In other words, although the appeal was transferred to the Court of Resident Magistrate at Kigoma to be heard by a Resident Magistrate with extended jurisdiction, the learned Principal Resident Magistrate with extended jurisdiction did not sit in that court as directed by the High Court.

Section 45 (2) of the Magistrates’ Courts Act, 1984 as amended by Act No. 2 of 1996 says as follows:-

“45 (2)  The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate                          upon whom extended jurisdiction has been conferred by section 45 (1)”.

Sub-section (1) of section 45 referred to above provides that where a resident magistrate with extended jurisdiction hears an appeal which would otherwise be heard by the High Court, then –

“for the purpose of any appeal from his decision in the exercise of such jurisdiction, such resident magistrate shall be deemed to be a judge of the High Court, and the court presided over by him while exercising such jurisdiction shall be deemed to be the High Court”.

        The words which we have underscored are significant.  The resident magistrate exercising extended jurisdiction is deemed to be a judge of the High Court because he is not, in fact, a judge of the High Court and the court of resident magistrate in which he sits when exercising extended jurisdiction is deemed to be the High Court because it is not in fact the High Court.  If a resident magistrate exercising extended jurisdiction was expected to sit in the High Court then it would make no sense to say that such court would be deemed to be the High Court.  The rationale, therefore, is that a resident magistrate with extended jurisdiction to whom a High Court appeal is transferred to hear would sit in their court – the court of resident magistrate.  When he does so, then the court would be deemed to be the High Court in the event an appeal is preferred from his decision.  The appeal would go, not to the High Court but, to the Court of Appeal as if it had been a decision of the High Court.

        Where a resident magistrate with extended jurisdiction hears an appeal transferred to them and sits as the High Court that would make nonsense of the transfer order because the High Court would not transfer its own case to itself.

        Now, if a resident magistrate with extended jurisdiction who, of course, is not a judge of the High Court, purports to sit in the High Court to hear a High Court appeal which was transferred to them, the proceedings and decision will be null and void because of want of jurisdiction.  That position has been explained in several decisions of this Court such as Samwel Nikolai v. Republic, Criminal Appeal No. 59 of 2001; Manoma Malolela v. The Republic, Criminal Appeal No. 180 of 2003; Martin Muyape v. The Republic; Criminal Appeal No. 137 of 2003 and Masire Tarisi and 3 Others v. The Republic, Criminal Appeal No. 63 of 2003 (both unreported).

        In this appeal Mr. Rweyongeza, learned State Attorney for the respondent Republic, rightly submitted that since Mr. Rusema, PRM with extended jurisdiction had no jurisdiction to sit in the High Court to hear the High Court appeal which had been transferred to him, the proceedings were a nullity.

        The appellants being lay persons could not respond to the legal issue and, therefore, left it to the Court.

        For the reasons which we have attempted to give above, we quash the whole of the proceedings and judgment by Mr. Rusema, PRM and we order that High Court Criminal Appeal No. 32 of 2003 should be heard by the High Court of Tanzania at Tabora as soon as practicable but not later than three months from the date of this judgment.  If the High Court still considers it appropriate to transfer the appeal for hearing to a resident magistrate with extended jurisdiction, then such magistrate should hear it in the Court of Resident Magistrate.  There should be a separate register in that court for cases under extended jurisdiction and such cases should get their serial numbers from that register.

        DATED AT MWANZA this 16^th day of March, 2007.

D. Z. LUBUVA

JUSTICE OF APPEAL

J. A. MROSO

JUSTICE OF APPEAL

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(S. M. RUMANYIKA)

DEPUTY REGISTRAR

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