D.P.P vs Debora Joseph Mcharo & Others (Economic Crime Appeal 5 of 1999) [1999] TZHC 18 (8 December 1999)

IN THE HIGH COURT OF TANZANIA ' AT p a r es salaam ECONCMIC CRIME APPEAL NO.5 OF 1999 (FRCM THE DECISION CF THE DISTRICT COURT OF ILAIA AT KISUTU IN ECONCMIC CRIMES CASE NO. 6 OF 1996) THE DPP. . ............ .................... . .APPELLANT (Original Prosecutor) Versus 1.DEBORA JOSEPH MCHARO { 2.HAWA MATEIEKA j j . ..... 3. HILDA EMMANUEL MAKAIDlO J U D G M E N T MANENTO, J. This is an appeal by the Director of Public Prosecutions against the ruling of the Principal Resident Magistrate of Ki=-utu Resident Magistrates Court who, on 2nd December, 1998 dismissed the charge and acquitted the accused persons unde|r Section 230 of the Criminal Procedure Act, 1984. The ruling was made exparte after the prosecutor from the Prevention of Corruption Bureau failed to enter appearance for the continuation of the prosecution case after it had been adjourned, xt was on 2^th November, 1998 when the case was to proceed on hearing and the prosecutor was absent, without knor r n reasons* Then the learned counsel for the respondents made a brief submission that the case had not progressed since 4th June, 1998 due to failure of witmesses to come to court though they are residents of Dar es Salaam. He submitted further that the prosecution had failed to prosecute the case and so the court was asked to evaluate the evidence, and make a ruling of no case to answer as there was no prima fa«ie case estab- lished against the accused persons. Indeed, the learned Principal Resident Magistrate acted upon the prayers of the learned counsel for • • • ./ 2 . ...... RESPONDENTS (Original Accused)

the accused persons and came into a conclusion that there was no ase Against the accused persons to answer. He dismissed the charge and acquitted the accused persons under the powers and authority of Section 230 of the Criminal Procedure Act, No 9 / 1985 . That action did not please the Republic so thp.t they filed this appeal against the ruling of the learned Principal Resident Magistrate„ The two accused persons Debora Joseph Mcharo and Hilda Emmanuel Makaidi being 1st and 2nd accused resputively, were charged of corrup transactions contrary to Section 3(1) of the Prevention of Corruption Act, No.16/1971 as read together with paragraph of the first Schedule to Section 59 of the Economic and Organised Crimes Control Act No.13 of 1984. The facts of the case were briefly that the l^t Debora John Mcharo on 26/10/1995 at Kimara Primary Court premises, Kinondoni District and Dar es Salaam Region being a primary court Magistrate employed by the ♦ Judiciary hence a public officer.for the purposes of the Prevention of Corruption Act, did corruptly solicit a sum of Shs.50,000/= from one Joseph Kaswizi as an inducemtne to provide bail in Criminal Case No. 1015/95 in which case the Said Joseph Kaswiza was an accused person, a matter which was in relation to her principal’s affairs. Both the accused were charged in the 2nd count that on the same date (26/10/95) and same place at Kimara Primary Court premises being a Primary Court Magistrate and a Clerk employed by the Judiciary in their respective capacities did corruptly receive the sum of Shs. 50,000/= from Joseph Kuswiza as an inducement to grant bail to Joseph Kaswiza who was an accused person in Criminal Case No.1015/95 a matter which was in relation to their principal's affairs. The accused persons had all denied the charge. After the trial magistrate had dismissed the charge and acquitted the accused persons, the Director of Public Prosecutions prepared this appeal with four grounds of appeal. However, on reading the memorandum appeal, X liavs rfislissd thst ths 2nd fimd 3rd grounds of appeal were

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nothjjrg but a rep* 2 tition of each other. Hence they amount to one ground of appeal, making the total of three grounds of appeal leave alone the prayer for this court to allow the appeal and order the continuation of the case before the Resident Magistrate's Court. The three grounds of appeal are as follows

1. That the learned Resident Magistrate erred in law and in fact in holding that the prosecution ca~e has been closed for non appearance of the public prosecutor.
2. That the trial magistrate erred in law and fact in holding that the prosecution had failed to establish a priraa facie case, 3* That the trial magistrate erred in law in dismissing the case under Section 230 of the Criminal Procedure Act, while the prosecution had not stated its case. Before I proceed vith this judgment, I think I should first put it correct the lart but three word of the 3rd ground of appeal as it is not proper to say that the ’ ’ prosecution hod not stated its case" but that the prosecution had not closed its cape. I think it vas ment to me«n "closed" and not Kstated, } as above stated. ' submission It is agreed from the ^ and the ruling of the trial court that the proceedings come into an end on 2 ^/ 11/98 and by the words of the trial court, it was an abrupt ending of the ^proceedings due to failure by the prosecution to enter appearance for the hearing of the case as previously ordered. The proceedings also show that on 19/10/98 when the case was called for heaping the prosecutor from the Prevention of corruption Bureau vas not prent. However, Inspector Minga told the court that he had been informed by the officials from the Prevention of Corruption Bureau ijhat their prosecutor was on leave and that she would be back sometimes in November, 1998. Then the case was fixed for hearing on 2k/Tl/98. When it was dismissed as there was no appearance by either a prosecutor from the police force or the Prevention of of Corruption Bureau. In making submissions for the fir^t ground of appeal, the learned State attorney submitted that the prosecution had called on four witnesses who had testified «nd they had not closed their case. Soae more were to bs called, but the court closed their case for

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• J the reason that th. prosocrtor absent. However, the case -as not dismissed for want of pcwoutioatat it was dismissed for no case to answer. The l e a r n e d State attorney urgued that a prima facie case can only be determed after the prosecution has closed their case under Section 250 of the Criminal Procedure Act, 1985. farther that the trial magistrate was to evaluate the prosecution evidence and come to a conclusion aft-r the prosecution had closed their case and not just after some witnesses had testified in court. On this ground of ap eal, the learned defence coun el, Mr. Lukvaro submitted that the trial magistrate had the powers to bring into an end the prosecution case the non appearance of the prosecutor, and that as the court was net prepared for further adjournments, it had no option other than presuming that the prosecution case was closed and therefore it was entitled to proceed to look at the evidence before it and found that even a prima facie case had not been established against the respondents/ accused persons. The i M B u d defence counsel strongly u r g ^ d in support of the of the trial magistrate in presuming that the prosecution case vss closed, and so he went on to urgue his case with a support of a decision of the Court of Appeal for Eastern Africa where it was held that:- , ? The court is entitled to presume that the pro secution case is closed when the prosecution declines to bring his witnesses.” See the case of Uganda Vs* Milenge and another (1970) EA 269. Secondly the case of DPP VS Martin Nguma and another (197?) 1®T 38 where it was held that where adjournment is not ordered dismissal of a charge and acquittal of person becomes mandatory.” Though I agree with the holding of the decisions of the cases quoted above* I am of the considered opinion that they are distinguished from this case. The Uganda case shows that the prosecution were deftlmms willfully to call their witnesses and in Martin Ngumafe case, the court had refused adjournment at the request of the prosecutor and therefore, it had nothing more to do but to dismiss the charge and acquit the

accuse* persons The court w-s complying to its own previous orders of lo.pt adjournment. But the facts in this case is that the prosecutor vas not present.Gould the court prefnaoe that the prosecution case is closed when the prosecutor was not present in court? The crse had previously been adjourned for the reason that the prosecutor was on leave. That is all. It was not known whether he had returned from her leave or not. But what is the procedure provided by the Criminal Pro cedure Act, 1985 when the prosecutor, for this matter, the complainant is absent on the day and date and place where the hearing is to proceed? Section 222 of the Qriminal Procedure Act 9/1985 is relevant. It pro vides as follows:- S.222 If, in any case which a subordinate court has juris diction to hear and determine, the accused person appears in-rbe<3i«nfce to the Summons served upon him at the time and place appointed in the summons for the hearing of the case or is brought before the court under arrest, then if the complai nant. , having ( ’ underline mine) having bad notice of the time and place appointed for the hearing of the charge does not appear, the court shall dismiss the charge and acquit the accused person, unless for some reason, it shall think it proper to adjourn the hearing of the case until some other date ....... ».n Under this section, the court is empowered to dismiss- the charge and acquit the accused person if the complainant, with knowledge didn't come to the court for the hearing. Tne word complainant includes a Public Prosecutor as per interpretation in Section 2 of the Criminal Procedure Act, 1985 . It would be very proper and legally right for the trial learned Principal Resident Magistrate to dismiss the charge and^a^quit the accused persons bdoause of the failure by the prosecutor to appear with knowledge. I say so cec-u-e the recordsshows that 19 / 10/98 Inspector Min a had represented the prosecutor from the Prevention of Corruption Bureau and the hearing d^te was f;ixed on his presence <~nd hearing, so it is correctly presumed that Inspector Minga had communi cated to the Prevention of Corruption Bureau the order of the court. The learned Principal Resident Magistrate would have done what he

did, th-^t is to say dismissing the charge and acquitting the accused persons under Section 222 of the Criminal Procedure Act, 1985 and not under Section 230 of the srme Act, as the provision he used needs a close of the prosecution case and there is no any element of facts to show that he had the support of the Uganda care VSC Milenge and another (1970) EA 269 quoted above. He had no basis for the presumption that the prosecution had declined or failed to call their witness. This case could be of help if the prosecutor was present on 2b/ll/9& without a witness. But that was not the case. He jumped the hudles; before he reached then, and hence he grossly erred in law in invoking the provisions of Section 2.30 of the Criminal Procedure Act, 1985 hy acquiting the accused persons on a no case to answer while the prosecution had not closed their case instead of acqutting the accused persons under S.222 of the Criminal Procedure Act for want of prosecution. Though the end re'sult of the t’ - ' o sections are the s^me, that is to say dismissing the charge and acquiting the accused persons, the reasons for reaching at that decision are very much different. The records of the court have therefore to be put correctly by this court when it is seen that the subordinate court misdirected itself in the use of the procedure which are to be complied with. What I have so far said above disposes the grounds •• one and four of the petition of appeal, th-t the trial learned Principal Resident Magistrate erred in law in holding that the prosecution case was closed in non appearance of the prosecutor and secondly that he erred in dismissing the charge under 230 of the Criminal Procedure Act, 1985 . Like wise, as I have held that the trial ft?incipal Resident Magistrate was ’-rong to dismiss the charge under S.230 of the Criminal Procedure Act, it goes without saying that he was wrong to evaluate the prosecution evidence and reach to a conclusion that the prosecution had not established a prima facie case against the accused persons suffi ciently to require then to make a defence as the prosecution case had not

been closed and he was not, in the absence of the prosecutor, ■ entitled to presume that the prosecution had declined or failed to call their remaining witnesses. I s o n therefore not, under the circumstances enti tled to comment as to whether there was a case to answer made against the accused persons or not. I sincerly simpathise with the accused persons who had been out of work for so many years, since 1995 when they were arrested, without the case facing them being condluded, First it is due to the prosecution in failing to complete the hearing of the case in short period, despite of the fact that their witnesses are all at easy reach as it was a pre planned case, and secondly the failure by the learned Principal Resident Magistrate to follow the procedure laid do^n by the Criminal Procedure Act, 1985 which necesitates this court to allow the appeal and quash the ruling. In the final analysis, and for the reasons stated above, the appeal is allowed, the ruling of the subordinate court is quashed and set aside. It is ordered that the case proceed from where it ended, by the prosecution to call their other remaining witnesses, and if they fail, the consequence to follow and that the trial to be before another Resident Magistrate where the accused persons will have to hove their rights addressed to them under section 214 of the Criminal Procedure Act, 1985. The fact that the case has delayed for so long, the District Registrar has to see to it that the judgment is typed as early as possible so that the Kisutu Case file No.6/96 is returned to the court for further actions. > .1 A. R. MANGNTO JUDGE

• 7 - 8/12/1999 8/12/1999 Coram: A. R. Manento, J. Mr. J. Lukwaro for the appellants Mr. Koneya: for the Respondents_ CC: Aza c / 8

• 8 - Court; - The judgment is read in the presence of the parties, including the appellants. A. R. MANENTO JUDGE 8/12/1999