DIRECTOR OF PUBLIC PROSECUTIONS v YAHAYA UPANGA AND ANOTHER 1983 TLR 151 (HC)

DIRECTOR OF PUBLIC PROSECUTIONS v YAHAYA UPANGA AND ANOTHER 1983 TLR 151 (HC)

Court High Court of Tanzania - Mwanza

Judge Korosso J

May 19, 1983

CRIMINAL APPEAL 329 OF 1982

Flynote

Criminal Practice and Procedure - Prolonged adjournments of criminal case -

Absence of E complainant/public prosecutor - Discharge of accused under section

198 of the Criminal Procedure Code, Cap. 20.

Criminal Practice and Procedure - Power of court to control and regulate own

proceedings - Power to grant or refuse adjournment - S. 201 of the Criminal

Procedure Code. F

-Headnote

This is an appeal lodged by the Director of Public Prosecutions against the decision of

the trial court which acquitted the respondents who had been charged with the

offence of stealing by public servant c/ss. 270 and 265 of the Penal Code. The case had

over a G period of five months been severally adjourned variously for the absence of

the magistrate, the public prosecutor and the witnesses. Ultimately the court

dismissed the charge and acquitted the respondents under the provisions of section

198 of the Criminal Procedure Code. H

Held: (i) If under any circumstances the court refuses to grant an adjournment then it

may dismiss the charge and discharge the accused in which case the prosecution

could subsequently recharge the suspect of the same offence based on identical facts:

I

(ii) if the court refuses to adjourn the case after an application for adjournment

whether or not the case was ready for hearing on

1983 TLR p152

KOROSSO J

the day on which the refusal is made and if the circumstances of the case are

exceptional A the court may invoke its inherent power by dismissing the charge and

acquitting the accused.

Case Information

Appeal dismissed.

Cases referred to: B

1. D.P.P. v Kunduchi Sisal Estate, Cr. App. No., 103/1980 (unreported)

2. D.P.P. v Leonard Rugemereza & 7 Others, Cr. App. No. 188/1980

(unreported) C

3. D.P.P. v Martin Nguma & Others, Cr. App. No. 48 & 69 of 1976.

M.M.K. Mtaki for the appellant.

[zJDz]Judgment

Korosso, J.: This an appeal lodged by the director of Public Prosecutions against the D

decision of the trial court which acquitted the 1st accused one Yahaya Upanga and

the 2nd accused one Zakaria Ngonyani who were charged with the offence of stealing

by E person employed in the public service c/ss. 270 and 265 of the Penal Code.

It is convenient that I give a brief history of these proceedings the subject of this

appeal. The accused were formally charged before the District court of Mwanza on

27/5/1982. F From then to 24/9/1982, the case had been fixed for hearing on

10/9/1982; 24/9/1982 and on 23/10/82. On 10/9/82 the hearing did not take place

because the trial Magistrate was reportedly on safari. The hearing was adjourned to

24/9/82 on which date the witnesses who had attended court on 10/9/82 had been

warned to attend court.

On 24/9/1982, the hearing did not take place because the witnesses who had been G

bound over to appear did not turn up. The hearing was consequently adjourned to

27/10.1982. On 27/10/1982 the prosecutor is recorded as being absent. The court

proceeded to dismiss the charge and acquit the accused under the provisions of

section 198 of the Criminal Procedure Code. H

Mr. Mtaki, the State Attorney representing the Republic cited the case of D.P.P. v

Kunduchi Sisal Estate, Criminal Appeal No. 103/80 decided by the late Sir Philip

Biron then the judge of the High Court and that the same case was followed in the

case of D.P.P. v Leonard Rugemereza and 7 Others, Criminal Appeal No. 188/80, I

decided by Mr. Justice Chua, (unreported). I have had time to read

1983 TLR p153

KOROSSO J

both judgments. Both appeals involved consideration of the provisions of section 198

of A the Criminal Procedure Code under which the subordinate courts had acted,

resulting in the discharge of the accused. In allowing the appeal in D.P.P. v Kunduchi

Sisal Estate case His Lordship observed, thus, I quote: B

As I think sufficiently demonstrated the person who failed to appear on 12th

May, 1980 when the case was set down for hearing was not the complainant. And

further still the case was not dismissed on the first day it was set down for hearing.

Therefore section 198 of the Criminal C Procedure Code couldn't have been

invoked. I must confess that I find it distasteful particularly on criminal matters to

determine a case on pure technicality, but as this case was never heard on its merits

which is the proper way a case should be disposed of but dismissed on technicality, I

have not the slightest compunction in applying the strict letter of D the law and

restoring it on a technicality.

Obviously this case is not relevant to the facts in the case the subject of this appeal as

the accused were acquitted under the provisions of section 198 of the Criminal

Procedure E Code on the absence of the Public Prosecutor who on the authority of

the case of D.P.P. v Martin Nguma and Others was held to be the complainant in all

cases in which the Republic is being represented by the State Attorney or the Public

Prosecutor.

In the course of writing judgment in the case of D.P.P. v. Leonard Rugemereza and 7

F Others, Criminal Appeal No. 188/80, Mr. Justice Chua referred to the celebrated

case of D.P.P. v Martin Nguma and Others, Criminal Appeal Nos, 48 and 69/76

decided by the defunct Court of Appeal of Eastern Africa.

In the case of D.P.P. v Martin Nguma referred to previously supra, the meaning of the

G word complainant found in section 198 of the C.P.C. was fully dealt with. It was

held that where a person complains directly to the magistrate in a criminal matter

then that person is a complainant in that particular case. If, however, the same person

goes and complains directly to the police and the police take such a complaint to the

Court then H the Republic or the Public Prosecutor representing the Republic

becomes the complainant and the victim of the wrong complained of becomes a

witness for the purpose of proving the alleged wrong. Undoubtedly Mr. Justice Chua

had in mind the real meaning of the word complainant as found in section 198 of the

C.P.C. when I dealing with the case of D.P.P. v.

1983 TLR p154

KOROSSO J

Leonard Rugemereza referred to above. He made the following observations. I quote:

A

...there is no rule of law that requires that the same prosecutor who appears at

the time of fixing a hearing date should appear or conduct the hearing; and surely for

purposes of B representation the Republic cannot be said to have been absent solely

because the person who was anticipated to conduct the case was absent. The presence

of prosecutor Mbulu constituted presence by the Republic. C

On the authority of the celebrated case of Martin Nguma and Others referred to

above it is now settled that a Public Prosecutor or a State Attorney or the Director of

Public Prosecutions for that matter representing the Republic in any criminal

proceedings is the D complainant, and further that the presence of the complainant

must be physical presence and not constructive presence. The relevant portion of the

Eastern Africa Court of Appeal's Judgment reads thus, I quote:

We think that presence must be physical presence and cannot be constructive

presence or E non-presence. the advocate for the appellants would construe

appearance to mean physical appearance combined with the ability of the

complainant there and then to proceed with the conduct and hearing of the case. We

are not satisfied that such an extended meaning can be F put on the words

appearance.

Coming now to the instant appeal, I find that the facts in this case are clearly

distinguishable and distinct from those obtaining in the case of D.P.P. v Leonard G

Rugemereza and Others referred to supra in the judgment. In the instant case the

subject of this appeal the public Prosecutor then the statutorily recognised complaint

was not physically present in court and nobody appeared to explain or plead for his

absence. Conversely, in the case of D.P.P. v Leonard Rugemereza and 7 Others, one

Public H Prosecutor was physically present in court. Mr. Mtaki, the State Attorney

representing the Republic in this appeal submitted before me that the case was a

serious one and so the trial Magistrate should not have very lightly dismissed the

charge and acquitted the accused. He went on to say that it is possible for one public

prosecutor to conduct I prosecution before two Magistrates. He stated that the trial

Magistrate should

1983 TLR p155

KOROSSO J

have adjourned the case so as to find out what had actually caused the prosecutor's A

absence. He concluded by saying that the trial magistrate should have made an effort

to look for the prosecutor.

It is common knowledge that at the Mwanza Resident Magistrate's Court there are

more Magistrates than one. Invariably the Magistrate in charge of the station prepares

a B weekly case list showing cases assigned to each and every Magistrate. These

weekly case lists are distributed to the prosecutors. The prosecutor in charge of other

prosecutors is responsible for ensuring that there is a sufficient number of prosecutors

for assigning to every magistrate. It is also a long established practice for court

proceedings C to start at 9.00 a.m. or thereabouts. If the public prosecutor was not

physically present in the court at the usual time where was he? If the prosecutor

assigned to the trial magistrate had problems why could he not see the trial

Magistrate before the court work started? If there were not sufficient number of

prosecutors at the station it was the D inescapable duty of the officer in charge of the

prosecutors to so inform the trial Magistrate. It is both highly derogatory and

ridiculous to expect the trial Magistrate to have gone about chasing and hunting for

prosecutors in their offices or in the corridors of the court building. The Magistrate's

role is the adjudication of cases and not the E mobilisation of public prosecutors.

Court should never allow itself to be placed in a position where it is forced to conduct

its court proceedings according to the whims, likes and dislikes of Public Prosecutors.

A Public Prosecutor attached to the court is equally an officer of the court, junior to

the Magistrate and he must perform his court work F under the superintendence,

direction and guidance of the Magistrate and not vice versa.

Referring again to the case of D.P.P v Leonard Rugemereza, Mr. Justice Chua had

time to refer to the inherent power of the court on the principle enunciated in the

case of G D.P.P.v Martin Nguma and Others. In his judgment Mr. Justice Chua

observed thus, I quote:

I agree, however, that a period of over two years is inordinately long to have

to prosecute such a case. The remedy, however, is not in acquitting them. The trial

Magistrate could have invoked H the inherent power of the court to discharge the

accused, but the effect of such an order has been held to have the effect as an order

under Section 86 (a) of the C.P.C. in which case the prosecution could bring the same

charge the next day. I

1983 TLR p156

KOROSSO J

I fully agree with His Lordship's observation about the court's inherent power that

can be A invoked say where after repeated adjournments the court refuses to grant

further adjournment. However, I have a feeling that his Lordship has restricted very

much the applicability of the court's inherent power. Its applicability is wider than

that envisaged in B that judgment. In this respect it is appropriate that I quote the

relevant portion of the Court of Appeal's judgment in the case of D.P.P. v Martin

Nguma and Others. It reads thus:

The fact that the legislature has empowered the court in terms of section 201

of the C.P.C. to C grant or refuse an adjournment necessarily implies that a court has

power and authority to enforce an order, it makes. To hold otherwise would make the

power granted to the court meaningless or illusory. A court must within reason have

the power to control and regulate its D own proceedings in order to prevent itself

from being emasculated or rendered impotent. Some of these regulatory powers

derive from a court's inherent power to control its own proceedings which originate

from Common law or the very nature of its function not E necessarily from status;

such as the power to punish summarily for contempt. We believe that a court can in

such circumstances of emergency clothed as it with inherent power to control its own

proceedings, dismiss the charge and discharge the accused despite lack of statutory F

provisions to that effect. We think that such a discharge and dismissal would be

sufficient exercise of the courts inherent power to regulate its own proceedings and

that an order of acquittal unless in the most exceptional circumstances is unnecessary

and unsuitable for that G purpose. (The underlining is mine). An order of the court

in the exercise of its inherent power must be fair and reasonable and in exercising it a

court must look at a matter realistically and keep in view and in balance the rights of

an accused person and the duty of the prosecution to bring miscreants to justice.

As I see it the quoted passage of Court Appeal's judgment has two sets of rules. The H

first rule is that if under any circumstances the court refuses to grant the application

for adjournment then it may dismiss the charge and discharge the accused in which

case the prosecution could subsequently recharge the suspect of the same offence

based on I identical facts. The second rule which I have

1983 TLR p157

KOROSSO J

emphasized by underlining it is the court refuses to adjourn the case after an

application A for adjournment whether or not the case was ready for hearing on that

day on which the refusal is made and if the circumstances of the case are exceptional

the court may invoke its inherent power by dismissing the charge and acquitting the

accused. The court emphasises that the invocation of the inherent power should be

resorted to when it is B strictly necessary and desirable, and that it should be

exercised judicially.

The question to ask is whether we have in our courts cases which may suitably

qualify as being exceptional circumstances. The answer to my knowledge must be an

emphatic C "yes". There are hundreds of cases in many of our courts which are of

exceptional circumstances. In many courts in this country there are many cases

pending for months and even years in the traffic registries, while the unfortunate

accused keep on paying frequent pilgrimage to the court. Some of them may only

involve the offence of driving D motor vehicle with defective brakes or some minor

accidents occasioning damage to the accused's own motor vehicle. There are cases of

simple thefts involving hundreds of shillings as well as offences of pick pocketing.

There are offences of being found in possession of stolen property or property

suspected of being unlawfully obtained. There E are offences of unlawfully being

found within the harbour premises; being found in possession of bangi; being a rogue

and vagabond. The suspects of these offences are more often than not destitute

persons whom nobody would dare stand surety for. The result being that they are

invariably remanded in prison at great government expense. F There should be no

justifiable cause for these petty criminal cases to be adjourned for more than three

times without the court taking an action by invoking one of these two rules

enumerated in the case of D.P.P. v Martin Nguma and Others. Many years since G

the inception of post independence legal system in the country the courts have always

found themselves in a dilemma in certain very trying and exceptional circumstances

mainly for complete absence of an express statutory provision purposely legislated to

enable the courts in the country to regulate and effectively control their judicial H

proceedings. The courts should henceforth not allow this inexcusable stagnation of

the cases filed in court because this is not at all compatible with an administration of

justice worthy of a good reputation. The Magistrates, one and all, are urged to

carefully review their congested traffic and criminal registries and see if there are

cases for which there are exceptional circumstances demanding immediate action by

sweeping clean their long I pending cases after prior

1983 TLR p158

caution and warning to the prosecutors. This is particularly desirable bearing in mind

the A prevailing obvious notorious fact that our prisons today all over the country

are appallingly over-crowded; apparently constituting a potential danger to the lives

of the inmates who, after all, are an essential part of our reliable human resources so

vital for development in the country. B

With the foregone grounds I feel resolutely inclined to uphold the trial magistrate's

order for acquittal.

C Appeal dismissed.

1983 TLR p158

D