ANDERSON SOLOMON v REPUBLIC 1994 TLR 119 (CA)

ANDERSON SOLOMON v REPUBLIC 1994 TLR 119 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Omar JJA, Mnzavas JJA and Lubuva JJA

CRIMINAL APPEAL NO. 42 OF 1993 F

14 February, 1994

(From the decision of the High Court at Dar es Salaam, Bahati, J)

Flynote

Criminal Practice and Procedure - Appeal - Appeals against interlocutory orders -

Whether G an accused person may appeal against an interlocutory order.

-Headnote

The appellant was charged with stealing by agent contrary to s 273 of the Penal H

Code Cap 16. After the case was mentioned in court on five different dates, a date for

hearing was set and hearing proceeded in spite of the appellant's request for an

adjournment so that he could attend a funeral.

The appellant also made an application to the presiding resident magistrate to have

his case transferred to another magistrate. Dissatisfied with the resident magistrate's

refusal to transfer the case the appellant filed an I

1994 TLR p120

A application before the High Court. It was not granted and the High Court ordered

the trial to proceed before the same magistrate. The appellant appealed to the Court of

Appeal.

Held: It is settled law that in criminal cases an appeal does not lie from an

interlocutory order and the application before the High Court should have been

rejected with directions to the District Court to continue with the case; accordingly,

there is no legal basis upon which to entertain this appeal. B

Case Information

Appeal dismissed: Case remitted to District Court to continue with proceedings.

Cases referred to:

C (1) Alois Kula and Leyandoi Lekoisa v R, CAT. Criminal Appeal No 121 of

1991 (unreported).

(2) Uganda v Lule, [1973] EA 362.

Senguji, for the Republic (Respondent).

[zJDz]Judgment

D Lubuva, JA, delivered the following considered judgment of the court:

Before the District Court of Ilala at Kisutu, the appellant was charged with the

offence of stealing by agent contrary to s 273 of the Penal Code. E

From the record, after the case was mentioned in Court on five different dates, it was

finally set for hearing on 28 July 1992. This was in spite of the appellant's request for

an adjournment in order to enable him to attend a funeral. From 28 July 1992, the

hearing of the case started and the prosecution had closed its case. F

The appellant had been addressed in terms of the law regarding his rights in defence

of his case. The matter rested there before the District Court.

G On the other hand, the appellant had made an application to the presiding

Resident Magistrate Ruhangiza to have the case transferred to another magistrate.

The reason advanced for the application to transfer the case was that following on the

magistrate's refusal to grant an adjournment, the appellant was apprehensive that the

case would not be decided fairly by that magistrate. Dissatisfied with the decision of

the presiding magistrate not to transfer the case, H the appellant filed an application

before the High Court (Bahati, J). The application was not granted and it was ordered

the trial to proceed before the same magistrate. Still dissatisfied with that decision of

the High Court, he has now appealed to this Court.

Arguing the appeal before us, the appellant said that it was wrong for the learned

judge to refuse his application. He explained that he I

1994 TLR p121

LUBUVA JA

had applied for the transfer of the case to another magistrate for two reasons: A First,

the date when the case was heard was initially set for mention. That day he asked for

an adjournment but was refused. Secondly, when the case was set for hearing, he

asked for time to prepare himself, this was again turned down by the learned

magistrate. For this reason, he claimed, he was convinced that justice B would not be

done to him in the case by that magistrate. He therefore thought he had a right of

appeal against the decision of the High Court refusing to grant his application.

Mr Senguji, learned State Attorney who appeared for the Republic, respondent in a

brief address firmly opposed the appeal. He argued that in the first place, this C

matter was wrongly entertained by the High Court. He submitted that as this matter

arose from an interlocutory order in a criminal case it is not appealable. He referred to

the decision of this Court in the case of Alois Kula and Leyandoi Lekoisa v Republic

(1). In that case, Mr Senguji submitted that this Court dismissed the appeal whose

facts were similar to the instant case on grounds of incompetence. D

We respectfully agree with the submission of Mr Senguji, learned State Attorney. It is

settled law that an appeal does not lie from interlocutory order in criminal cases. That

this is the legal position on this matter is evident from the numerous cases E decided

by the then Court of Appeal for Eastern Africa and this Court on this point. Among

other cases, the Court of Appeal for Eastern Africa in dealing with the case of Uganda

v Lule (2) EA 362 held:

`There is no appeal from orders of the High Court incidental to a criminal

appeal but not involving the decision of appeal'. F

And more recently, in the cited case of Alois Kula and Leyandoi Lekoisa (1) No 121 of

1991 (unreported) we held that no appeal lies from an interlocutory order in a

criminal case. G

In the case before us, which arose from somewhat similar circumstances, we think

with respect, the learned judge heard the application in error. The application should

have been rejected with direction to the District Court to continue with the case. In

the event of the case ending up with the appellant's (accused) conviction, he

(appellant) would be at liberty to appeal against the conviction. In the appeal, it

would be open for the appellant to include among other grounds the complaint H

against the magistrate's refusal to transfer the case. In dealing with the appeal, the

issue of impartiality which the appellant is canvassing before us would be considered

accordingly. I

1994 TLR p122

A This being the position of the law on interlocutory orders in criminal cases, there

is no legal basis upon which this appeal could be entertained. In the result, the appeal

being incompetent, it is dismissed in its entirety. It is further ordered that the case be

remitted to the District Court with direction to continue with the B proceedings.

The appellant would be at liberty to appeal to the High Court if he should be found

guilty of the offence with which he is now charged. In that appeal, the appellant may

wish to include his complaint against the magistrate's refusal to transfer the case

among other grounds of appeal. C

1994 TLR p122

E