Ahamad Minachi vs Republic (High Court Criminal Appeal No. 34 of 1998) [2000] TZHC 608 (30 June 2000)

.. ~ ·' MACKANJA 1 ,,._..,. IN THE HIGH COURT OF TANZANIA HIGH COURT CiUVI.'fAL APPEAL NO .34/1998 (ORIGINAL ECON. CiL- .• CASE NO. 14 OF 1996 OF THE DISTRICT CCURT OF WNGEA DISTRICT) Before: H.J. i•;wankenja, Sen. District Mag. MT. 9590 !!D'.3 AHAMAD l"JINACHI ••••••n•••••••••••••• APPELLANT Versus: THE REPUBLIC 0000000000000000 RESPONDENT -RU L I N G J.

This is an application for review, It is the ,Hneurrent view e,f Mr. Manyanda, learned State ... ,Htorney, and Mr 0 Mbogorg, '!.earned defen.ee ,. counsel, that the tr;fal court acted ultra vires its jUl"isqiction when it tried Eonomic Crimes Case No. 14 of 1996 of the Court of Resident Magistrate • at Songea. That this is so is brought out in the argumentsfjf both learned counsel. It is conr.rrently submitted that the State Attorney In-Charge, exercising his powers undr s. 12 (3) of the Economie and Organized Crime Control Act, 1984, as delega.ted to him by the Director of PublH Prosecutions, directed that the prosecution of that case be removed into the tourt of Resident J,1agistrate at Songea and there tried by a Resident Magistrate as by " law provided. The case was correccly registered at the :.. . .;_ · ·· · Court ' of Resident lfagistrate which had jurisdiction out it was tried by Mr. H.J. Mwankenja, learneqSenior District Magistrate, who laeked the requisite juri- . . sdiction. . Having been a 6 grieved the prisoner a1Jpealed to this·• eeurt. It is argued, correclly in my view, that fbe iS--sue of lack of jurisdiction by the • trial court escaped_ the careful eye of this Court. Hence this application, with the prayer that', I be mine" s:i to quash the record of the trial court as it is wholly a nullity, and set the prisoner free. By necessary inference it also am means that Iicalled upon to nullity the judgment and proceedings of this court. 2

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. 2 \ Now when the Economic Crime Contr0l Act, No. 13 of 1984, came into force section three 3 (1) gave exclusive juri.sdiction to the High Court. However, subsection (3) of section 12 of the Act gave discretion to the Director of Public Prosecutions, and any ,State Attorney duly authorised by-him - 71 0 • • • • • • in any case he deems it necessary or appropriate in the public interest, by certificate under his hand 1 order that any offence triable by the High Court under this Act be tried by a court of resident magistrate.n . And so in the exercise of the above powers the State Attorney In-Charge here· ordered that Economic Crimin&.l Case No. 34 of the Court of Resident Magistrate a at Songea ·be tried by that Court. Mr. Viwankenja,fSenior Pistrict Magistrate attached to that court tried it~ convicted the appellant and sentenced him to~· under~· ten years of imprison:n(,::1t with six strokes of the cane that were to be administered upon medical certification that the convict was medir.cally .. fit to ·un:.'.e:rgo that kind of punishment. As it is now clear the appellant l lost his appeal when he challenged the conviction and sentence before this Court. I have carefully gone through tha records of prbeeedings and I am satisfied that indeed Mr. IV.ivanken_ja acted without jurisdiction when he tried this case. Hence this applica.tion. The application for review has been brought under section 43 (1) of the Magistrates Courts Act, 1984 and section 372 of the Criminal Procedure Aet,

1985. Obviously sec~ion 43 (1) of the Magistrate Courts Act is not applicable ,· here, as it relates to appellate and revisional jurisdiction of this court over proceedings originating in courts of Resident lfagistrates and District Courts. Similarly, section 372 of the Criminal Procedure Act, 1985 empowers this Court to call for and examine records of criminal proceedings before any subordinate courts. The two provisions cited by counsel do not empower this court to review its decisions the same way it may do in civil proceedings under section 78 and Order XLll of the Civil Procedure Code. 3

_} 0 I I .,- -· 3 ~ Although, therefore,· if is clear from the record of this Court that the learned trial Senior.District V2-.3istrate acted without jurisdictio!l, and since the ffppeal has already been decided by this court, I am functus .... efficio as the High C0tirt de;.'::· --ct h,:·.ve ::ower to review its de c.i tions in proceedings of a Criminal n2.tu--- ,:;'.J.cb as• this one. The application would, therefore, fail. . - ..... Upon the foregoini; cons.i.,::erations th0 application for e review in this matter is dismissed in as ;;mch as it is untel'lable at law., This ruling J.M. J-;ackanja, J. 29/6/2000 -..;. For Appellant~ absent For Respodent: hr. Many::i.nda ,'.:'.t;.'te Attorney - present e/c Christer Kapinga. Court: Ruling is deli ver2d by me DR this 30/6/2000 ·in the presence · of presence of F:r. J 1 :anyanda S~ate Attorney .for Republic ~nd in the .. . absence of the applicant a.i1d his advocate. DISTRICT REGISTRAR 30/6/2000 .... ..