Court name
Court of Appeal of Tanzania

Abdallah Hamed vs Republic () [1993] TZCA 13 (17 June 1993);

Law report citations
1993 TLR 156 (TZCA)
Media neutral citation
[1993] TZCA 13

Makame, J.A., delivered the following considered judgment of the court: D
This is a second appeal. The appellant Abdallah Hamed was sentenced by Kulolela, Senior District Magistrate, to be jailed for thirty years after he was found to have participated in a daylight robbery in the municipality of Morogoro. His co-accused, Kasimili Faustin Mogela, was similarly rewarded and E did not appeal. The present appellant did appeal, to the High Court, where Magessa, Principal Resident Magistrate, exercising Extended Jurisdiction, dismissed his appeal. Dr Lamwai, learned Advocate, represented the appellant in the appeal before us. Mr Kamba, learned State Attorney, F supported the Lower Court's decision.
Dr Lamwai did not have much room for argument, and we reckon he knew as much. This is a second appeal so there was hardly any scope for his intended effort in two of his three grounds of G appeal, touching on the burden and standard of proof. Both the Trial Court and the First Appellate Court were satisfied that the appellant, at the material time a driver employed by the National Bank of Commerce at Morogoro, took part in the robbery by facilitating the flight of his co-accused, and other participants, from the scene of crime by driving them away in the National Bank of Commerce Land H Rover he was employed to drive. Dr Lamwai was left with only one ground - the first one, which sought to challenge Mr Magessa's jurisdiction to hear the first appeal. Dr Lamwai submitted that the Order which invested Mr Magessa with the appellate jurisdiction, ordinarily exercisable by the High Court, did not comply with s 45(1) of the Magistrate's Court Act. I

A Section 45(1) of the said Act provides:
`The Minister may after consultation with the Chief Justice and with the Attorney-General, by order published in the Gazette -
(a) invest any resident magistrate, in relation to any category of cases specified in the order, with the appellate B jurisdiction ordinarily exercisable by the High Court.'
Now, the Order investing Mr Magessa with extended jurisdiction, GN 121 of 1988, was couched in the following terms:
1. This Order may be cited as the Magistrates' Courts (Extension of Appellate Jurisdiction) Order 1988.
C 2. Subject to s 46 of the Magistrates' Court Act 1984, the Magistrates specified in the Schedule to this Order, are hereby invested with the appellate jurisdiction ordinarily exercisable by the High Court.
D 2.
. . .
8. I H Magesso . . . Principal Resident Magistrate Grade I
. . .
Dar es Salaam. D Z LUBUVA
E 6th April, 1988 Minister for Justice'
Dr Lamwai's complaint is that the order quoted above is bad for being too general. Learned Counsel submitted the category of cases Mr Magessa was empowered to hear appeals from should be F mentioned in so many words. We fail to appreciate the logic of this when the Order clearly intended that Mr Magessa should exercise all appellate jurisdiction ordinarily exercisable by the High Court. It would in the circumstances be not only unduly cumbersome but also obviously pointless to list out all the categories of cases. It would be different if it was intended that jurisdiction should be exercised by G Mr Magessa only in one category or only certain categories of cases. Then we would agree that such category or limited categories should have been specified, but as indicated, not otherwise.
H We respectfully agree with Mr Kamba, learned State Attorney that GN 121 of 1988 was not faulty in the circumstances. The appeal has not merit and accordingly we dismiss it.