Iddi Hassani Mgema Majebele vs The Republic (Economic Appeal No. 2 of 2000) [2000] TZHC 134 (25 October 2000)

' ,./ ,. 1 I~ THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM ECON. APPEAL NO. 2 OF 2000 _· (Original Kisutu Economic Crime Case No.46/96) IDDI HASSAN! MGEMA MAJEBELE ....... APPELLANT VERSUS THE REPUBLIC :................................... RESPONDENT JUDGMENT MANENTO,J: This is an appeal by Iddi Bassani Mgema Majebele who had been charged together with two others before the Kisutu Resident Magistrates court. The appellant was charge of two counts of being in unlawful possession of firearm, pistol No. l 098871 make Calibre and six rounds of ammunitions c/s13 of Cap.223 of the Laws, read together with paragraph 21 of the first schedule to Section 59 of the Economic and Organised Crime Control Act, 1984. The appellant was found guilty and convicted and sentenced to twelve years imprisomnent in each count and the sentence were ordered to run concurrently. The appellant felt that the trial magistrate was wrong in convicting him and sentencing him accordingly. So he filed an appeal before this court challenging both the conviction and sentence. His convictiori was on 14/4/2000 and the memorandum of appeal was filed on 22nd May, 2000. There has been filed six grounds of appeal which were filed by the la!e Abdul Mwengela and on the hearing date, the appeal was argued by Mr Ndumbaro learned advocate. The Republic was represented by Mr Kameya, learned state attorney. During the submiss1ons by Mr

2 Ndumbaro, learned counsel, he raised a legal point of jurisdiction which was not one of the grounds of appeal. The legal point he raised is that the trial before the Principal District Magistrate Mr Mwankenja was a nullity as the DPP had directed the case to be presided over by a Resident Magistrate at Kisutu Resident Magistrates Court. Mr Mwankenja, PDM is a magistrate stationed at Kisutu Resident Magistrates court. Besides other grounds of appeal, I have found it proper to deal with this legal issue, which I believe will lead to the termination of the appeal before this court, and that there would be no need to deal with the grounds of appeal on merits. For purpose of detennination of this legal issue, I have to see the order of the Director of Public Prosecution and then the Magistrates' Court Act No.2/1994 and in particular section six (6). In his certificate of orders for trial of an Economic offence in a subordinate court dated 14 July, 1998, he ordered that the case "be tried by the resident magistrate comi of Dar es Salaam at Kisutu. Indeed, Kisutu is a Resident Magistrates'' court. This means that this case should not be tried by any other subordinate court but the K.isutu Resident Magistrate's Court at Dar es Salaam. Mr Mwankenja, PDM is stationed at Kisutu Resident Magistrate's court, but he is not a resident magistrate. Section 6(1) of the Magistrate's court provides as follows: "S.6(1) subject tot he provisions of section 7, a magistrate's court shall be duly constituted when held by a single magistrate being:- (a) in the case of a primary court, a primary court magistrate; (b) in the case of a district court, a district resident or a magistrate; © in the case of a court of a resident magistrate, a resident magistrate.

3 The DPP had directed that this case be heard in a court of a resident magistrate and a court of a resident magistrate is duly constituted when it is presided over by a resident magistrate as per section 6(1) © of the Magistrate's Court Act. While as per section 6(1)(b) of the Magistrates' Courts Act, 1984 a district court can be presided over by a resident magistrate, a resident magistrate's court, caimot be presided over by a district magistrate of any grade or experience. Therefore it is per se grave mistake by the judicial administration to post and allow district magistrates to preside over in a court of a resident magistrate for the reason that trials by such district magistrates in the resident magistrates' court are but a nullity. There has been a number of authorities on this issue and one of them is that of John Agricola V. Rashidi Juma (1990) TLR 1 where, after citing various previous division of this court, the court held that lack of jurisdiction int he presiding magistrate is a fundamental deficit that is not curable at all. A trial bu a district magistrate who lacked jurisdiction in a court he was presiding was a complete nullity. In joining hands with the previous decisions of this court, I would add that the correct meaning of section 6(1) of the Magistrates' Courts Act, 1984 is that if a case is designated for a particular court, then it should be heard only by a magistrate of that com1 notwithstanding that a member of some other court has substantive jurisdiction over the offence and could hear it. For the reasons, it is my considered opinion that the Principal District Magistrate presided over a court of a resident magistrate when he was trying this case, the court was not duly constituted within the meaning of section 6(1) of the Magistrates' Courts Act, 1984. It would have been different if the Director of Public Prosecution (DPP) had just directed that the case be heard by a subordinate com1, which would have included the district court and hence the district magistrate, but the DPP was very much specific in his consent and ce11ificate. Therefore the

4 whole trial before a magistrate who lacked jurisdiction is nothing but a nullity. When the learned state attorney was replying tot he submissions by Mr Ndumbaro, learned state attorney, he said that the only remedy is to order a trial denoval. On the other hand, Mr Ndumbaro, learned counsel for the accused submitted that a retrial is an affair order to the accused person taking into consideration the period of time he has spent inremand custody and now in a prison. It is true that the accused has been in remand custody since 1/10/96 todate and legally, the case has not been heard due to the administrative mistakes done by the authority in stationing a magistrate without jurisdiction in a court of resident magistrate, and the resident magistrate incharge assigning the case to a magistrate without jurisdiction and the trial magistrate himself accepting a case which is not designated to him in law, though he is competent to try it. Though fair trial calls for speedy trial, yet I can not order any discharge to the accused taking into consideration the seriousness of the offence. Having said, so I come to the conclusion that the whole proceedings including the judgment of the lower court was and is a nullity as it was presided over by a magistrate who had no jurisdiction and therefore the whole proceedings and judgment of the lower court are quashed and set aside. It is ordered that the case be tried denoval by a resident magistrate at Kisutu Resident Magistrates court. It is further ordered that the accused be in Remand custody until fmiher orders are made by the Kisutu Resident Magistrates comi. The case file be forwarded to Kjsutu Resident Magistrates comi and the accused should appear before that comi on 7/11/2000. A.R. Manento JUDGE 25/10/2000