Republic vs Damas Cosmas Nilahi [1992] TZHC 20 (10 August 1992)


Bahati, J.: This is an application by the DPP for the restoration of the appeal in this case which was withdrawn by Mr. Mwengela a State Attorney, on 14/10/91. The application is supported by an affidavit of Mr. Teemba, a Principal State Attorney in the Attorney General's Chambers. H
The affidavit avers that Mr. Teemba's duties as a Principal State Attorney include assigning duties to State Attorneys in the DPP's Department. It goes on to aver that on 14/10/91 Mr. Teemba instructed Mr. Abdul Mwengela a State Attorney to go to Court and attend an appeal No. 123/90 filed by the DPP against Damas Cosmas Nilahi. Mr. I Teemba never gave Mr. Mwengela the

instructions or authority to go and withdraw the appeal from court on that day. Mr. A Teemba learnt subsequently from the Commissioner of Customs that the appeal had been withdrawn from the Court. On 7/11/91 Mr. Teemba and the DPP summoned Mr. Mwengela who admitted having acted contrary to Mr. Teemba's instructions. Mr. B Mwengela admitted having withdrawn the appeal on his own authority and withhelding that fact later. Mr. Mwengela under normal circumstances ought to have reported back to the DPP or to Mr. Teemba what had transpired in court. The appeal according to Mr. Teemba has overwhelming chances of success and is of great public interest. He concluded that justice will only be met (done) to both parties if the appeal is restored. C
In chambers, Mr. Malaba, learned State Attorney reiterated what is contained in the affidavit of Mr. Teemba. He said that Mr. Teemba gave Mr. Mwengela instructions to proceed with the appeal and not to withdraw it. He submitted that by applying to D withdraw the appeal Mr. Mwengela was acting contrary to the express instructions he had been given and that it was wrong for him to purport to act for the DPP. He referred the Court to section 377 of the Criminal Procedure Act which defines the DPP to include any officer subordinate to the DPP ..... in accordance with his general or E special instructions. He stated that if a State Attorney has special instructions of the DPP in relation to a particular matter, he will be acting contrary to the DPP's authority if he does not comply with the DPP's instructions. He submitted that Mr. Mwengela admitted to have noted contrary to the instructions of the DPP and that after the F withdrawal of the appeal, he withheld information to that effect from the DPP.
In reply, Dr. Lamwai, learned counsel for the respondent, submitted that the main issue was to what extent is a State Attorney presumed to be able to bind the DPP in what he does in court. He conceded that Mr. Mwengela was a junior State Attorney and he G raised 2 fundamental questions namely: (1) Under what law can the High Court revise its order entered on application of one of the parties to the proceedings. The other question was not mentioned by Dr. Lamwai who only dealt at length with the only question H raised. He submitted that there is no law which empowers this court to restore an appeal which has been withdrawn. He referred to the Criminal Procedure Act and commented that it talks of restoration of a dismissed appeal and not a withdrawn appeal. He also submitted that the Court cannot use its inherent powers and that even I the chamber summons does not seek inherent powers. He

said further that inherent powers are used to stop an abuse of process of court which A was not the case here. He also submitted that an order granted on application for withdrawal of an appeal is a final order and that the court was functus officio and unable to reverse its decision.
Dr. Lamwai next argued the substance of the application on the basis of the affidavit. B He said that Mr. Teemba in his affidavit was conceding that Mr. Mwengela was duly instructed to conduct the appeal which meant that he could either argue the appeal or withdraw it. He submitted that it cannot be said that Mr. Mwengela did not conduct the appeal on behalf of the D.P.P. He said that in the absence of specific instructions to C the contrary the Court should conclude that a State Attorney has power to proceed with an appeal or terminate it. He said that section 377 of the CPA was irrelevant because it was only a definition section. He submitted that there cannot be any dispute that Mr. D Mwengela had general or special instructions to appear in the appeal and that the DPP was therefore in court, and the DPP decided to withdraw the appeal. He argued that matters of instructions in the DPP's office are internal arrangement and that the Court cannot act on such internal arrangements as if they were law. E
With regard to paragraph 7 of the affidavit, Dr. Lamwai submitted that there was no evidence that Mr. Mwengela acted contrary to instructions as nothing was produced to show what the instructions were. He said that only Mr. Mwengela could solve this riddle F by swearing or an affidavit stating the nature of instructions and admitting going contrary to such instructions. He said further that to hold otherwise would be putting Mr. Mwengela on trial without being heard. He prayed that paragraphs 7,8 and 9 be disregarded.
With regard to the question of overwhelming chances of success, Dr. Lamwai said G that Mr. Teemba wanted to convince the Court to open a Pandora's box in that he wants the Court to hold that when one State Attorney find that there is no evidence and the other finds evidence, then the case should be reopen. He submitted further that the H application amounted to putting the respondent in double jeopardy because he was acquitted in 1990 and the appeal was withdrawn in 1991 and it was now in July 1992. He referred to the record of the court which shows that on 25/9/91 an adjournment was sought by the DPP to consider withdrawal of the appeal. He concluded that there was I no shoddy deal in this matter and that more suspicion could not help in the administration of justice.

In reply to the above, Mr. Malaba submitted that there was no law requiring every A application to be supported by the law under which it is made and that the Court had inherent powers to deal with any legal matter in issue for the interests of justice.
With regard to the issue of "functus officio", Mr. Mallaba submitted that this applied only where a matter had been heard on merits. With regards to the affidavit, he said B that the affidavit is presumed to contain the truth until the contrary is proved by a counter affidavit or in cross-examination. Dr. Lamwai intervened by stating that the respondent filed a counter-affidavit. Indeed such counter affidavit is there. C
On the question of section 377 of the CPA Mr. Malaba reiterated that once a State Attorney fails to comply with specific instructions of the DPP then he cannot be said to be acting for the DPP and that once the DPP has directed a State Attorney to issue instructions on his behalf then those instructions are of the DPP. He concluded that if D a State Attorney decided to go contrary to specific instructions then there is no DPP in court.
On the issue of 25/9/91, he said that it was Mr. Mwengela who appeared on that day and he never briefed the DPP of his intention to withdraw the appeal. E
The issues to be determined in this application are interesting and may be unprecedented. Here is the DPP who has withdrawn the appeal through his State Attorney asking that the order for withdrawal be revised and the appeal restored because the State Attorney in question did not have instructions from him to withdraw F the appeal. In paragraph 4 of his affidavit, Mr. Teemba Principal State Attorney is saying, "I never gave him the instruction or authority to go and withdraw the appeal from court on that day." Does a State Attorney require instructions or authority to withdraw an appeal (or a case for that matter) in order for his withdrawal to be effective in law G when acted upon by the Court by making the appeal withdrawn? Mind you, Mr. Teemba is not saying, "I gave him instructions not to withdraw the appeal." From paragraph 4 of the affidavit it is clear that there were no instructions to withdraw the appeal or not to withdraw the appeal. From the reading of paragraph 3 of the I affidavit, it is also clear that the only instructions there were to Mr. Mwengela from Mr. Teemba were to go to court and attend an appeal No. 123/90 which is the case in question; there were therefore no specific instructions not to withdraw the appeal. Therefore, with respect to Mr. Mallaba, learned State Attorney, his submission to the effect that Mr. Teemba instructed Mr. Mwengela

not to withdraw the appeal is not supported by anything in the affidavit. The A instructions were to go to Court and attend an appeal (the appeal No.1 23/90. Whereas in paragraph 4 of the affidavit Mr. Teemba avers that he never gave Mr. Mwengela instructions or authority to go and withdraw the appeal from the court on that day, it is B also correct to say that Mr. Teemba never gave instructions not to withdraw the appeal to Mr. Mwengela. On the basis of the above, it cannot be said, as Mr. Malaba has submitted, that Mr. Mwengela was acting contrary to express instructions which he has been given and hence not representing the DPP. The fact that Mr. Mwengela did not C report to the DPP that he had withdrawn the appeal cannot alter anything, because, as submitted by Dr. Lamwai, that would be internal arrangements in the DPP's office. I have no hesitation in holding that the DPP was duly represented in the appeal and that the DPP withdrew the appeal. I also agree with Dr. Lamwai that it would be wrong for D this court to hold that Mr. Mwengela admitted to have acted contrary to instructions of Mr. Teemba without giving Mr. Mwengela the right to be heard because such a finding would be prejudicial to him. Paragraphs 7 and 8 of the affidavit of Mr. Teemba are charging Mr. Mwengela with a serious infraction of regulations and as such these E paragraphs are controversial. This court can only act on them if Mr. Mwengela himself confirmed the truth of these paragraphs. Indeed if these paragraphs are true then he would have expected either an admission in writing or an affidavit from Mr. Mwengela himself. Short of that I am not prepared to accept them at their face value. This court F has the duty to scrutinize what is in the affidavit or any evidence and it cannot take for granted or presume that an affidavit is true even if there is nothing to challenge it in writing.
There is the point raised by Dr. Lamwai concerning the power of the court to revise an G order entered in circumstances such as the present. Dr. Lamwai has argued that the court is functus officio in such a situation. Mr. Mallaba on the other hand has argued that the court has inherent powers to entertain any matter when the interests of justice so require and that the court become functus officio only when a matter has been determined on merits. H
After diligent search for a case in point, I have come upon a Ugandan case of Scrisito Luyombya v Uganda [1965] EA 618. This case concerned a notice of abandonment of an appeal given under section 328 A(3) of the Uganda Criminal Procedure Code. The appellant made an application for leave to withdraw the notice of abandonment I although there were no provisions in the Criminal

Procedure Code to that effect. The Chief Justice dismissed the application as A incompetent on the ground that the appeal was already deemed to have been dismissed by operation of law under S.328A (3) and the Court was functus officio. On appeal to the Court of Appeal for the East Africa it was held that:
B (i) the appellate courts in Uganda have an inherent jurisdiction to allow an abandoned appeal to be restored, if it can be shown that the notice of abandonment was given by mistake or fraud such as to involve a possible failure of justice in the event of the appeal not being restored; C
(ii) an application to withdraw notice of abandonment is not necessarily an abuse of legal process, because there may be cases in which, although functus officio, an appellate D tribunal will use its inherent jurisdiction to declare such notice a nullity, and allow the appeal to be restored.
The matter was remitted to the High Court to hear the application on its merits. E
Since the above case is from Uganda, it is only of persuasive authority although it is a Court of Appeal decision. However, I entirely agree with the decision arrived at which can be applied even in the case before me. Going by the above cited case, I hold that although this court is functus officio, it has inherent jurisdiction to declare the F withdrawal a nullity and to restore the appeal. I cannot see why the position in Tanzania should be different from that in Uganda on this issue.
I will therefore examine now whether there is any justification for declaring the application for withdrawal or the withdrawal itself a nullity in this case. G
One thing is clear in this case, and it is that the withdrawal of the appeal by the State Attorney Mr. Mwengela was not expected by the DPP nor was it wanted or desired by the DPP. the withdrawal was certainly not by mistake. Was it fraudulent? There is no H evidence that it was fraudulent. I have already ruled above that the controversial parts of the affidavit which purport to charge Mr. Mwengela with an infraction of the regulations cannot be accepted without more because that would amount to condemning Mr. Mwengela without giving him a hearing. Therefore we go to the next and possible the I last question in this matter which is whether

Mr. Mwengela had power to withdraw the appeal from the court. My answer to this A question is in the affirmative because Mr. Mwengela as State Attorney duly representing the DPP had power to do what was within his power when he appeared in the Court. The withdrawal of the appeal was a matter within his powers. That the DPP did not like B the step taken buy Mr. Mwengela cannot mean that Mr. Mwengela had no such power.
It follows therefore that the withdrawal was in order and the appeal is deemed to have been duly dismissed. It could only be revised if there was a genuine mistake or fraud which is not the case here. C
I agree with Dr. Lamwai that this application should be dismissed. I dismiss it accordingly.
D Appeal dismissed.


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