Kija v Msalika and Another (Criminal Appeal No. 11 of 1998) [2000] TZHC 665 (5 June 2000)

32 TANZANIA LAW REPORTS [2002JT.L.R. A Purohit (8). What is required is that there should be independent testimony corroborative of the evidence of the complainant in some material particular implicating the accused or tending to connect him with the crime with which he is charged. D For the above reasons the appeal is dismissed. NCHAMBI KI J A i. FRANCIS MS ALIKA AND MHELA KAYOKA D HIGH COURT OF TANZANIA ATTABORA (Mwita, J.) e CRIMINAL APPEAL No. 11 OF 1998 (Original Criminal Case No. 49 of 1997 in the District Court of Meatu District, at Meatu, MR Mlawa, Senior District Magistrate) F Criminal Practice and Procedure — Appeals — Whether an aggrieved victim of a crime can appeal against a decision of a District Court where the DPP does not appeal - Sections 20(1) and 25(1) of the Magistrates Courts Act 1984. Q Criminal Practice and Procedure — Appeals — Whether the High Court can order the DPP to lodge an appeal. The respondents were charged with cattle theft in the Meatu District Court. At the H conclusion of the trial they were found not guilty and acquitted. The DPP did not appeal against the acquittal. However Nchambi Kija who was the complainant and gave evidence as PW1, being aggrieved by the District Court ’ s decision appealed to the High Court. I Held: (i) In cases originating from District Courts, only the DPP has the right of appeal;

NCHAMBI KIJA v. FRANCIS MSALIKA AND MHELA KAYOKA (ii) The exercise of prosecutorial discretion appertains to the DPP and is not A subject to the judicial control except in rare cases where such discretion is exercised in such a way as to result in an abuse of the Court process. Appeal struck off B Cases referred to:

1. Fanuel Msengi v. Peter Mtumba [1992] T.L.R. 109
2. Sylvery Nkangaa v. Rafael Alberto [1992] T.L.R. 110 C
3. Umbwa Mbegu v. Republic [1969] HCD n. 312
4. Paul v. Republic [1971] HDC n. 124 Statutory provisions referred to: D

1. Magistrate Courts Act 1984, sections 20(1), 20(l)(a) and 25(1)
2. Penal Code, section 268
3. Criminal Procedure Act 1985, sections 90, 359, 359(1), 378(1) E
4. Criminal Procedure Code Chapter 20, section 312 Mr Mtaki, for the Appellant Mr Kayaga, for the Respondents F Mr Kabuguzi, appeared as a friend of the Court. JUDGMENT (Delivered 5 June 2000) G Mwita, J.: Francis Msalika and Mhela Kayoka stood trial at Meatu District Court charged with the offence of cattle theft contrary to section 268 of the Penal Code in that on 18 March 1997 at Mwabasalu H Village, Meatu District the said Francis Msalika and Mhela Kayoka did steal 8 cows the property of one Luhende Hunda. At the conclusion of the trial the accused persons were found not guilty and acquitted. The Director of Public Prosecutions did not appeal against the acquittal. I

34 TANZANIA LAW REPORTS [2002] T.L.R. A However Chambi Kija (Luhende Hunda ’ s wife) who was the complainant and gave evidence as PW 1, being aggrieved by the District Court ’ s decision, has appealed to this Court. At the hearing of this matter the appellant was represented by B Mr Mtaki , learned advocate ; Mr Kayaga, learned advocate , represented both respondents; and Mr Kabuguzi, learned State Attorney, appeared as a friend of the Court. Before hearing of the appeal on the merits, Mr Kayaga, advocate for the respondents raised a preliminary objection to the effect that the appeal is misconceived and incompetent in law and should be struck off the record on the ground that the appellant has no right of appeal. Mr Kayaga argued that since this was a public prosecution D and the respondents were acquitted by the District Court after a full trial, in terms of section 378(1) of the Criminal Procedure Act 1985 only the Director of Public Prosecutions has the right of appeal to this Court; that the appellant, who was a complainant at the trial, has E no right of appeal. Mr Kayaga referred this Court to Fanuel Msengi v. Peter Mtumba (1) and Sylivery Nkangaa v. Rafael Albertho (2) in support of his contention. Mr Kayaga went on to argue that the provisions of section 359 of the Criminal Procedure Act 1985 have F been interpreted to mean that a “ person aggrieved ” must be either the Director of Public Prosecutions or the accused person. He referred to Court to the case of Umbwa Mbegu v. Republic (3) which was dealing with section 312(1) of the repealed Criminal Procedure Code G Chapter 20. The provisions of that section are almost identical to the provisions of section 359 of the Criminal Procedure Act 1985. Mr Mtaki ’ s reply was to the effect that the preliminary objection is unfounded; that this appeal derives its legitimacy from section H 3 59(1) of the Criminal Procedure Act 1985 which gives the right of appeal to any person aggrieved by a decision of a subordinate Court. Mr Mtaki went on to argue that the case of Umbwa (3)is distinguishable from the circumstances of this case on the ground I that the Umbwa case (3)was decided per incurium because section 359

NCHAMB1 KIJAv. FRANCIS MSALIKA AND MHELAKAYOKA 35 is to be read independently. It should not be read together with other a provisions relating to private or public prosecutions. Mr Mtaki submitted that it would be unconstitutional to limit the provisions of section 359 of the Criminal Procedure Act 1985 as contended by Mr Kayaga because the spirit of the constitution is to give unrestricted access b to the Courts of law to any person. Mr Mtaki went on to submit that should the objection be upheld this Court should direct the Director of Public Prosecutions to exercise his powers under section 90 of the Criminal Procedure Act 1985 to take up this appeal. c Mr Kabuguzi fully supported the submission by Mr Kayaga. With regard to Mr Mtaki ’ s submission that the Director of Public Prosecution be directed by the Court to take up this appeal Mr Kabuguzi argued that the exercise of prosecutorial discretion of the DPP is not subject D to judicial review. On his part Mr Kayaga argued that the DPP can only take over proceedings in the case where such proceedings are properly before the Court; that since this appeal is incompetent, the DPP can not take over an incompetent appeal. e The issue of persons other than the Attorney-General or Director of Public Prosecutions having the right of appeal to the High Court against acquittal by subordinate Courts has been canvassed before East African Courts for $ considerable length of time now. The'answer F has always been the same: All criminal prosecutions are conducted on behalf of the State. With the exception of cases where a statute expressly provides otherwise, only the state has the right of appeal to the High Court from an acquittal by a subordinate Court. g In Umbwa Mbegu and another v. Republic (2) it was held that the conduct of any criminal case is in the hands of the Republic and that despite a private person conducting the prosecution, and despite a complainant having by his complaint instigated the proceedings, H the two parties before the Court are in reality the Republic and the accused. It was also held that “ person aggrieved by an order ” spoken of in section 312 of the Criminal Procedure Code are the Attorney- General and the accused; the reason being because it is established i

36 TANZANIA LAW REPORTS [2002] TLR. A law that a right of appeal can only be given by statute and in that only by words which are clear, express and free from ambiguity. The wording of section 31 2( 1) of the Criminal Procedure Code was not so clear as to give a private prosecutor or complainant the right B to come before this Court as a person aggrieved. The wording of section 31 2( 1) of the Criminal Procedure Code, Chapter 20 is identical to the wording of section 359(1) of the Criminal Procedure Act 1985. c In Paul v. Republic (4) it was held that a complainant has no right of appeal. Similarly in Fanuel Msengi v. Peter Mtumba (1) it was held that by virtue of section 378(1) of Criminal Procedure Act 1985 a complainant has no right of appeal in a public prosecution conducted by the DPP; and that where the criminal case originated . from the Primary Court, under section 20(1 )(a) of the Magistrate Courts Act 1984 the complainant or the DPP may appeal to the District Court and to the High Court against an acquittal. E In Sylivery Nkangaa v. Raphael Albertho (2) it was again held that in public prosecutons originating in the District Court only the DPP can appeal against an acquittal. Mr Mtaki ’ s contention (hat the decision in Umbwa ’ s case to the effect that “ person aggrieved by an order ” spoken of in section 312 of the Criminal Procedure Code, Cap. 20 means only the Attorney-General and the accused was given a right of appeal in that the section might have been read together with other provisions relating to public and private prosecutions instead G of being read independently, is, in my opinion, not sound. The reason given by Hamlyn, J. For his interpretation of section 312 is that a right of appeal can only be given by a statute and in that case by words which are clear, express and free from ambiguity. The learned H judge found section 312(1) of the Criminal Procedure Code not so clear as to give the appellant the right to come before the Court as a “ person aggrieved ” . In so holding the learned judge did not read section 312(1) together with any other provisions. I

NCHAMB1 K1JA v. FRANCIS MSALIKAAND MHELAKAYOKA 37 I am also of the opinion that Mr Mtaki ’ s contention that it would a be unconstitutional to restrict the provisions of section 359 of the Criminal Procedure Act 1985 on the lines of the decision of the Umbwa case because the spirit of the constitution is to give unrestricted access to the Courts of law to any person seems attractive, but not b necessarily sound. It should be remembered that the Constitution makes express provisions for the protection of basic human rights including the right to personal freedom. Construction of the law to the effect that only the DPP on behalf of the Republic should have c the right of appeal against an acquittal is the construction most favourable to personal liberty. The Republic would only appeal in cases of some importance or where there has been a miscarriage of justice of a very grave nature, thus preventing an accused person being put in jeopardy a second time except upon the soundest grounds. When the right of unrestricted access to the Courts of law is balanced against the right to personal liberty it is clear which way the scale will tip. £ From the above authorities it appears well established: (i) All criminal prosecutions are conducted on behalf of the Republic. (ii) A right of appeal from an acquittal can only be given by statute and by words which are clear, express and free from ambiguity; (iii) In terms of sections 20(1) and 25(1) of the Magistrates Courts Act 1984 in cases originating from Primary Courts the complainant as well as the DPP have right of appeal to the District Court and further appeal to the High Court from an acquittal. At the Primary Court a complainant is the prosecutor where the prosecution is not conducted by the police on behalf of the DPP. (iv) In appeals originating from the District Court only the DPP has the h right of appeal. (v) In public prosecutions a complainant has no right of appeal. I

3 8 TANZANIA LAW REPORTS [2002JT.L.R. A In the instant appeal the prosecution was conducted by the public prosecutor, it was thus a public prosecution and originated from the District Court, the appellant was merely a complainant. He thus has no right of appeal to this Court. The appeal is consequently incompetent. B I must now consider Mr Mtaki ’ s contention that should the objection be upheld, in order for justice to be done, this Court should direct the DPP to take over this appeal under section 90 of the Criminal Procedure Act 1985. The issue is whether the exercise of prosecutorial c discretion by the DPP is subject to judicial control. Section 90(1) of the Criminal Procedure Act 1985 provides inter alia-. The Director of Public Prosecutions shall have powers in any case in which he considers it desirable so to do: D (a) to institute and undertake criminal proceedings against any person before any Court (other than a court-martial) in respect of any offence alleged to have been committed by that person; E (b) to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority. Sub-section (3) of section 90 provides: p The powers conferred on the Director of Public Prosecutions by paragraphs (a) and (b) of sub-section (1) shall be vested in him to the exclusion of any other person or authority, see that where any other person or authority has instituted criminal proceedings, nothing in this sub-section shall prevent the withdrawal of these proceedings by or at the instance of that person or authority and with the leave of the Court. It is clear from the above provisions that the exercise of prosecutorial discretion appertains to the DPP and is not subject to judicial control. H As if that were not enough, sub-section (5) of section 90 provides: In the exercise of the powers conferred on him by this section, the Director of Public Prosecutions shall have and exercise his own discretion and shall not be subject to the directions or control of any person except the I President.

MARWA WANGITIMWITA AND ANOTHER v. REPUBLIC 39 Thus the legislature has given the DPP an almost unfettered discretion a in the exercise of his powers. In my opinion the Court may intervene only in rare cases where such discretion is exercised in such a way as to result in an abuse of the Court process. In view of the above provisions this Court has no jurisdiction to B direct the DPP to take over this appeal. The objection is upheld; consequently the appeal is struck off for in competency. MARWA WANGITI MWITA AND ANOTHER v. D REPUBLIC COURT OF APPEAL OF TANZANIA ATMWANZA E (Makame, Kisanga and Lugakingira, JJ. A.) CRIMINAL APPEAL No. 6 OF 1995 F (From the conviction of the High Court of Tanzania at Musoma, Masanche, J., dated 5 December 1994, in Criminal Case No. 181 of 1991) Criminal Practice and Procedure - Defence of alibi - Failure to give notice of intention to plead alibi - Consequences of failure to give notice of intention to rely upon alibi - Section 194 of the Criminal Procedure Act 1985. The appellants were convicted of murder. They each had intended to rely upon an alibi in their defences but they did not give notice of that intention to the Court and the „ prosecution. The trial judge directed the assessors, as he subsequently did himself, that since the appellants did not give notice of intention to rely on alibi to the Court and the prosecution of their, the alibis should be rejected. On appeal to the Court of Appeal, the trial judge ’ s outright rejection of the alibi was considered.