REPUBLIC v D 4527 D/C ASHERY AND THREE OTHERS 1994 TLR 125 (HC)

REPUBLIC v D 4527 D/C ASHERY AND THREE OTHERS 1994 TLR 125 (HC)

Court High Court of Tanzania - Moshi

Judge Mroso J D

CRIMINAL REVISION NO. 4 OF 1994

16 March, 1994

Flynote

Road Traffic Act, 1973 - Definition of a motor-vehicle - Whether a `motor cycle' is a

`motor E vehicle' - Section 284 of the Penal Code.

Magistrate's Courts - Revision - Reference to the High Court for revision - Powers of

resident magistrate in charge to initiate revision of decision of a district magistrate -

Section 44(2) of the Magistrates' Courts Act 1984. F

-Headnote

This was a reference proceeding for revision of a decision of a district magistrate to

the High Court initiated by a resident magistrate in charge seeking guidance of the

High Court on the correctness of the decision of the district magistrate. The reference

was made by the resident magistrate under s 30(2) of the Magistrates' Court Act, 1984.

G

Held:

(i) The resident magistrate employed the wrong provision in instituting

the reference as s 30(2) of the Magistrates' Court Act, 1984 relates to proceedings

originating from the Primary Court and not from the District Court. The proper

provision in this matter is s 44(2) of the Magistrates' Court Act, 1984; H

(ii) In matters of revision from a District Court the law does not empower

the resident magistrate to open a revision record in his court instead he forwards the

subject record together with his report to the High Court for it to consider whether or

not to make a revision of the District Court proceedings;

(iii) As the District Court record was not forwarded to the High Court the I

1994 TLR p126

A court is unable to give the requested guidance or make a revision of the

decision of the District Court;

(iv) A `motor cycle' is a motor vehicle because it is self-propelled,

compared to a bicycle, which is usually mechanically propelled; therefore a motor

cycle, being a self propelled vehicle, does not fall under s 84 of the Penal Code.

Case Information

B Revision record is quashed and set aside.

No case referred to.

[zJDz]Judgment

Mroso, J:

C The Senior Resident Magistrate in charge of Kilimanjaro Region has forwarded to

the High Court a court record titled:

`In the Court of Resident Magistrate at Moshi Criminal Rev C No 1/94

D C/F Same D/C Cr C No 110/93

D 4527 D/C Ashery

E 5535 P/C Jacob

E 5953 P/C Mugendi

Richard Muhanza.'

E The proceedings in that record are dated 23 February 1994 and were before Mr

BM Muilla, SRM in charge with Applicant and Respondent shown as absent. The

proceedings are entitled:

`Reference to the High Court Made under Section 30(2) of the Magistrates'

Courts Act No 2 of 1984' F

It would appear that there have been criminal proceedings in the District Court of

Same in which four accused persons, three of whom are policemen, were charged

with the offence of conversion not amounting to theft, contrary to s 284 of G the

Penal Code. The four accused person are alleged to have unlawfully converted a

motor cycle belonging to CCM to their own use without authority from CCM. In the

course of the trial the question was raised whether conversion of a motor cycle is an

offence under the section cited in the charge sheet, since it was not a `draught or

riding animal or any mechanically propelled cycle of any description or any vessel....'

H

I gather from the senior resident magistrate in charge in his reference proceedings

that the trial district magistrate ruled that according to the Road Traffic Act, No 30 of

1973, a `motor cycle' is a `motor vehicle' by definition and that having so found, the

district magis- I

1994 TLR p127

MROSO J

trate dismissed the preliminary point which had been raised, questioning the A

propriety of the charge.

Before I proceed any further, let me point out to the senior resident magistrate in

charge that, in the first place, he has employed the wrong section of the Magistrates'

Courts Act, 1984 in this reference. Section 30(2) which he employed does not relate

to proceedings originating in District Courts. If the learned senior B resident

magistrate in charge would care to look again at the provision he will note that it says:

`A resident magistrate in charge may call for and inspect the record of any

proceedings under C this Part.... (emphasis added).

The words `this Part' refer to Part III of the Magistrates' Court Act which is on - D

`Jurisdiction and power of, And Appeals, Etc from Primary Court'.

That part starts with s 18 and ends with s 39.

Proceedings in the District Court of Same referred to in the reference do not

therefore fall under Part III of the Magistrates' Courts Act, 1984 Original proceedings

in District Courts and Courts of Resident Magistrate came under Part IV of the Act

and the relevant section would have been s 44(2) of Act. There it is E provided:

`A resident Magistrate in charge may call for an inspect the record of any

proceedings in a F district court and may examine the records or registers thereof for

the purpose of satisfying himself as to the correctness, legality or propriety of any

decision or order and as to the regularity of any proceedings therein; and may, in any

case in which he considers that any decision or order is illegal or improper or any

proceedings are irregular, forward the record with a report to the High Court in order

that it may consider whether or not to exercise its powers of revision' (emphasis

added). G

So, in the second place, the senior resident magistrate in charge does not himself open

a revision record in his court as he did in this case. Rather, as the words I H have

underlined show, he forwards the subject record (that of the District Court) together

with his report (regarding that record) to the High Court for that court to consider

whether or not revise those District Court proceedings, decision or order believed to

be irregular, illegal or improper. In the present matter the District Court record was

not forwarded to the High I

1994 TLR p128

MROSO J

A Court. What was forwarded is a record of the Court of Resident Magistrate at

Moshi titled Criminal Revision No 1 of 1994. Indeed, the contents in that record were

not even revision proceedings as one would have expected but a reference report,

albeit under the wrong section of the Magistrates' Courts Act, 1984. Now back to the

substance of the record. B

I presume the senior resident magistrate in charge found the proceedings or ruling of

the District Court on the question whether the charge which faced the accused

persons in Same District Court Criminal case No 110 of 1993 was not correct.

C Unfortunately the District Court record, as I already said, was not forwarded to

the High Court and from the report of the senior resident magistrate in charge, I am

unable to understand how if the presiding district magistrate found that a `motor

cycle' is a `motor vehicle' he would proceed to dismiss the preliminary point raised

by the advocate that the charge under s 284 of the Penal Code was D inappropriate.

In the absence of the District Court record, therefore, I am unable to give the

requested guidance.

Even so, let me hazard to say that a `motor cycle' is indeed a motor vehicle of some

sort because it is self propelled, compared to, say a bicycle, which is E usually

mechanically propelled. I do not know the state to which the proceedings in the

District Court have reached but a motor cycle being a self propelled vehicle, does not

fall under s 284 of the Penal Code.

F Since the senior resident magistrate in charge should not have opened a revision

record in his court in respect of Same District Court Criminal Case No 110 of 1993,

that revision record is quashed and set aside. If the learned senior resident magistrate

still needs the opinion of the High Court on the propriety of the proceedings in Same

District Court, he should follow the guidance I have given above. G

1994 TLR p129

A