Court name
Court of Appeal of Tanzania

Thomas Elias, Paul Peter & Meng'olu Ndamuni vs Republic () [1993] TZCA 31 (08 November 1993);

Law report citations
1993 TLR 263 (TZCA)
Media neutral citation
[1993] TZCA 31

A Lubuva, J.A., delivered the following considered judgment of the court:
This is a second appeal. The appellants were charged and convicted before the Resident B Magistrate's Court Arusha for the offence of robbery with violence contrary to s 285 and s 286 of the Penal Code. The Trial Court having convicted them imposed a sentence of seven years imprisonment against each of the appellants together with an order of compensating shillings 2,370/= to the complainant. On appeal to the High Court (Munuo J) their appeal was dismissed. The C conviction and sentence were upheld. Dissatisfied with the decision of the High Court, the appellants have now appealed to this Court.
At the hearing of this appeal, Mr J D Mono, Learned Principal State Attorney appeared for the D respondent Republic. The First appellant (Thobias Elias) and second appellant (Paulo Peter) appeared in person. The third appellant (Meng'olu Ndamuni) did not appear though the Court was informed that he was duly served and had not filed his Memorandum of Appeal. At this was the third E time that this appeal was called up for hearing but still he (third appellant) could not only not attend the Court but had not as yet filed the Memorandum of Appeal, the Court decided to dismiss his appeal; a move which was also supported by the learned Principal State Attorney Mr J D Mono on behalf of the Republic. This was done in terms of Rule 74(4) of the Tanzania Court of Appeal Rules F 1979 with the liberty to have it restored upon showing sufficient cause for not appearing when the appeal was called for hearing. Otherwise, it would cause undue delay of the whole matter including the first and second appellants who, apart from having filed their Memorandum of appeal have also been appearing before the Court whenever the Appeal was called for hearing. The hearing of the G appeal of the first and second appellant was therefore proceeded with.
As a preliminary point, Mr J D Mono, learned Principal State Attorney raised the point that the appeal H was incompetent. This was because, according to Mr Mono the appeal was out of time in that the judgment was delivered on 19 July 1988 and the Notice of Appeal was given on 16 May 1991 when the requisite time for giving Notice of Appeal was long past, so urged Mr Mono. Finally, however, Mr Mono conceded and correctly so in our view, that there was nothing in the record to indicate when I the appellant became aware or was notified of the outcome of the appeal before the High

Court. Without such knowledge, it is not possible to expect the appellant to initiate action towards the A processing of an appeal against a decision which he had not known. In the circumstances and for purposes of better meeting the justice of the case, especially for the parties who had appeared in court when the appeal was called (first and second appellants) we were satisfied that it was justified for the first and second appellant's appeal to proceed. We accordingly overruled Mr Mono's B preliminary point on limitation of time and therefore allowed their appeals to proceed to hearing.
In the course of hearing of the appeal filed by the first and second appellants Mr J D Mono learned Principal State Attorney raised yet another important point of law. He submitted that this being a C second appeal it should not be entertained as there was no point of law involved. Section 6(7)(a) of the Appellate Jurisdiction Act, 1979 sets out the conditions for such appeals to the Court which if not fulfilled, should not be entertained so urged the learned Principal State Attorney Mr Mono. With D respect, we agree with him on this submission. Furthermore, Mr Mono, learned Principal State Attorney raised the question of jurisdiction. He urged that though at the High Court when the appeal was heard, his office on behalf of the Director of Public Prosecutions was represented and E supported the conviction, upon further scrutiny and researching on the matter the issue of jurisdiction had cropped up. In his view this was a very vital aspect which goes to the very root of the case. He urged that the record of the case (pages 2 and 6) quite clearly shows that it was entitled `In the Resident Magistrate's Court at Arusha'. The record further shows that the proceedings were F presided over by one W Nathan, Principal District Magistrate. That means that the Court of a Resident Magistrate was presided over by a District Magistrate who had risen to the rank of Principal District Magistrate. As such Mr Mono argued convincingly that the trial was a nullity, it having been G tried by a Magistrate who had no jurisdiction. In support of this argument he referred us to the provisions of s 6 of the Magistrates Courts Act, 1984 which provides for the Constitution of the Magistrates Courts in Tanzania. In that section, it is provided: H
6(1) Subject to the provisions of s 7, a Magistrate's Court shall be duly constituted when held by a single Magistrate being -
(a) and (b) are not applicable and s 7 deals with primary courts sitting with Assessors.
(c) in the case of a Court of a Resident Magistrate a Resident Magistrate. I

A Under such legal position Mr Mono submitted that unlike the case of a District Court where the trial can be presided over by either a Resident Magistrate or District Magistrate in the case of a Court of a Resident Magistrate by law it must be presided over by a Resident Magistrate. In the case before us, Mr W Nathan being a District Magistrate was not competent to sit and preside over a trial in the Court B of a Resident Magistrate. In order to reinforce his submission, Mr Mono referred to a recent decision of this Court in William Rajabu Mallya and Two Others v Republic (1)
In that case the proceedings in the Resident Magistrate's Court were presided over by a Principal C District Magistrate. As the Principal District Magistrate had no jurisdiction to try the case in the Court of a Resident Magistrate Court, the court was not properly constituted as required under the Magistrate's Courts Act 1984. We declared the proceedings a nullity thereby setting aside the D conviction and sentence.
We have very carefully and closely considered the submission of Mr Mono, learned Principal State Attorney. As an officer of the Court, we have no hesitation in commending him for the valuable E contribution and assistance he has rendered to the court in this matter. With respect, we agree with his submission that the Court when trying the case was not properly constituted. The Principal District Magistrate Mr W Nathan, though in terms of jurisdiction had the power to try the case for such offence but as the law stands now under the Magistrate's Courts Act 1984 he was not competent to sit and preside over the case in the Court of the Resident Magistrate. That was the F wrong Court for him. Consequently, proceedings and deliberations of such a trial are but a nullity. The provisions of s 6(1)(c) of the Magistrate's Court's Act, 1984 are so clear and unambiguous that the provisions of s 387 and s 388 of the Criminal Procedure Act, 1985 cannot be invoked to cure such a defect. This is because, in our understanding of these provisions, the irregularities, errors and G omission that can be cured by invoking these provisions of the Criminal Procedure Act are of such a nature as not to have occasioned a failure of justice and more importantly they must proceed from a trial by a Court of competent jurisdiction. This was not the case in the instant appeal. The proceedings were a product of a court which was not properly constituted. The result was a nullity H which cannot be saved by any of the abovementioned provisions of the Criminal Procedure Act 1985. This is an aspect which it would appear from the record was not looked into by the High Court on I appeal and the learned State Attorney on behalf of the Republic did not allude to it either.

For these reasons and without going further into the other grounds of appeal we agree with Mr Mono, A the learned Principal State Attorney who did not support the conviction that the trial having been conducted by a court which was not properly constituted, was therefore a nullity. Accordingly, we set aside the proceedings, quash the conviction, sentence and the order of compensation. The first and B second appellants are to be set free forthwith unless otherwise lawfully held in custody.
In the result, with this decision, having regard to the nature of the offence and the fact that the appellants have since (19 March 1986) served a substantial part of their sentence of seven years C imprisonment, we are not minded to order a retrial; we leave the matter open for the Director of Public Prosecutions to exercise his discretion on whether or not to institute fresh charges against the appellants.
As regards the third appellant whose appeal we had ordered at the hearing of this appeal to be dismissed (under Rule 73(4)) it is accordingly ordered that he (third appellant) should be served with D a view to have his appeal restored in terms of the Rules in order to be dealt with in similar manner. It is accordingly ordered.

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