Republic vs Michael Godfrey Senkoro & Others [1991] TZHC 10 (21 June 1991)


A Lugakingira J: This proceeding has suffered considerable mismanagement. Originally six persons were on 6 June 1988 charged before the District Court at Kisutu on one count of stealing by a public servant, it being alleged that in June 1983 they stole Shs 1,148,000/= the property of what B was then the Ministry of Communications and Works, their employer. They denied the charge and a ritual of adjournments ensued for one flimsy reason or another and in complete disregard of the provisions of s 225(4) of the Criminal Procedure Act 1985.
C On 5 March 1990 the prosecutor withdrew the charge and substituted another, this time charging one person with eleven counts of stealing by a public servant and, in the alternative, charging that person and seven others on two counts of occasioning loss to a specified authority. The alternative counts were laid under the Economic and Organised Crime Control Act 13 of 1984, and, in accordance with the provisions of s 12(3) of the said Act, the Director of Public Prosecutions D appended a certificate to the charge directing that the case be tried by a Resident Magistrate's Court. As if that made no difference, the proceedings were continued on the same District Court file.
E I pause to say that this was illegal. Subordinate courts have no jurisdiction to try offences triable under Act 13 of 1984 unless such jurisdiction is specifically conferred by the Director of Public Prosecutions. In the instant case the DPP conferred jurisdiction on a court of resident magistrate, not a district court. The two courts are distinct and each has its own registers; and although the F same set of magistrates could in certain circumstances serve both courts, it is not correct to imagine that a district court can lawfully take over a case jurisdiction over which is vested in a court of resident magistrate. The District Court had no jurisdiction to entertain the new charge and the G proceedings became void from the moment it did so. Oblivious of this the court went on to take pleas and once again to indulge in adjournments as if no law governed the matter.
On 30 May 1990 the saga took a new turn. The prosecutor stated to the court: `I ask for the court to H substitute an old charge for a new one.' Apparently the presiding magistrate understood what that meant and recorded: `A fresh charge sheet admitted.' It also seems that the `fresh charge sheet' joined the previous eight accused persons; hence the magistrate went on to take pleas from six persons then present and to order the arrest of two who were absent. He then adjourned the hearing to 30 June 1990. On that day the case was further adjourned to 30 July 1990 to enable the I prosecutor to

join another person in the charge. On 30 July 1990 there was no reference to this subject; instead A the prosecutor told the court that the Republic wished to withdraw the charge against the 6th, 7th and 8th accused. They were accordingly discharged and the case was further adjourned to 30 August 1990.
Before going further I should state that the `fresh charge sheet' is nowhere to be found in the case B file. Except for the assumption that the same eight persons were freshly charged, I do not know what they were charged with. It is then apparent that the `fresh charge sheet' contained a count or counts brought under Act 13 of 1984 for when discharging the 6th, 7th and 8th accused the magistrate C purported to cite `section 96' of that Act. But I have not seen the `fresh charge sheet'. I do not know whether the DPP's consent to prosecute was obtained in terms of s 26(1); I do not know whether, on this occasion, jurisdiction to try the case was conferred on a district court. But having stated this, let me turn to complete the saga. D
On 30 August 1990, the adjourned date, the prosecutor (a different one, to be sure) scanned the courtroom and was surprised to see that the 6th, 7th and 8th accused were absent. He promptly applied for their arrest. Somehow the presiding magistrate overlooked the application but it was E subsequently granted by another magistrate on 20 September 1990. I do not know whether they have been arrested to date, but adjournments continued at discretion until 27 April 1991 after which the record was called here.
It was originally expected to revise the proceeding from the standpoint of suspected unlawful F adjournments but the above review has uncovered additional scandals. That has widened the scope in which the matter may be dealt with. To begin with, I have already stated that it was unlawful for the District Court to preside in a matter over which jurisdiction had been conferred on a court of resident magistrate. The proceedings were for that reason void. The position would have changed if I were G assured that in the `fresh charge sheet' the Director of Public Prosecution had shifted the jurisdiction to a district court. I have not seen this charge sheet; above all, I do not know what offences it actually alleges. I am therefore not in a position to know that the District Court is lawfully seized of the H proceeding and that is sufficient reason to quash the same. I should add, however, that even if it turned out that the District Court regained jurisdiction under the `fresh charge sheet', I would still hold the proceeding void and quash the same on the ground that the adjournments ordered in the wake of this charge sheet did not comply with s 225(4) of the Criminal Procedure Act. I

A The proceeding is quashed in its entirety and the accused are discharged. The Republic is, of course, at liberty to prefer a fresh charge if there is any purpose in doing so.


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