Republic vs Juma Digalu (HC Criminal Appeal No 24 of 1984) [1990] TZHC 32 (17 November 1990)

RUBAM.ii,J. ·• IN TH.I!,; HIGH COUET OF TLNZ/,Nili AT DAR ,li;S SALiAlvl H/C CRIIvlIN.'l.1. c; F'?EAL NO. 24 OF 1984 ORIGINAL CRHHNAL CASE NO .1123 OF 1982 OF THE DISTRICT COURT OF ILALA DISTRICT AT KISUTU · TIE.1?UBLIC VERSUS JU11.l DIGALU JU.iiGiAbNT JUMA DIGALU was on 28/8/82 charged with stealing o/s 265 of the. ?enal Code. The cnse was mentioned several ties for various reasons up to 7/1J/83 wh~n the trial magistrute dismissed the charge and acquitted the accused under s. 205 of Criminal Procedure Code. Aggrieved by this decision the Republic has appealed to ~his court and has filed three grounds of appeal. These are:

1. That the learned Senior Resident Magistrate without due consideration of the distance the itnesses were to come fro hurriedly deprived the Republic a reasonable period of tiwe to present its Ccise.
2. That the learned Senior Resident M~gistrate very ouch.erred in law to dismiss the charge and acquit the accused person .,. ···1;1nder section 205 of the Cri □ inal i'rocedure Code as the Republic had not called any witness to testify before hiw in ~curt.
3. Tt the learried Senior Resident Magistrate had no power to dismiss the charge and acquit tho accused under section 205 of the Criminal 2rocedure Code before the prosecution had closed \ its ·cas·e. Miss Swai, ·learned State l1ttorney for the Repu0lic in. arguincl the appeal subuitted \hat the trial oagistrate had no power to iule that there ws no cse to answer before the irosecution hd led the evidence. She went on to state that no evidence hd in this oase been led as the court had hot provided the Republic with the opportunity1 it, the court, having refused. t) grant the )rose cu ti on an adjournment. to facilitdte the sumon:ing of witnesses from.Zanzibar. She concluded by asking this court to allow the appeal against the trial magistrate's ruling and order retrial of the case. Mr. Kashumbugu, learned'advo5ate, in slpporting the decision of the trial court, sub~itted that the trial court had :inpereri.t powers- to sef reasonable li □ i ts within whioh the .?rose cu ti on way present its case. If those lhli ts are no-b c·.:iwplied with by -t·he ?ro,secuti.on, .. then the court had the duty. to end the prooeedings. -ije detailed the chequered history of the case, ~ointing out the several occassioni the Prosecution had themselves pre7iousl? accepted as hearing date-.On these set hearing dates the Prosecution for one reason or another sought adjournwents.

2 -·- ~ μ~ 1 maintained that the Prosecution had been given more than enough time to bring their witnesses and their exhibits, The record clearly_pears out Mr. Kashumbugu 1 s submission that the Prosecution had been granted enough time, in fact in 2y opinon more than enough time, to bring their witnesses and their exhibits for trial. On several hearing dates either for absence of witnesses or exhibits or both they sought adjournwents whict were generally readly granted by-the trial Qagistrate. On the last such adjournraent before the day that the trial magistrate had rejected the prayer for further adjournment and had thereupo_called the Prosecution to present its case, th9 trial magistrate had set that as the last adjournent to be granted to the PoseRJtion. Perhaps because the iroseution had routenly been getting adjournwents for what, for wanr of better term".lausy reasons" it did not take the decision of the trial oourt seriously enough. The Proseotion sought further adjou.p:-n@ent. I can read no other reason from the Aonduet of -blii·s case by the Prosecution than the lack of seriousness in its work, This lack of seriousness was putting into disrepute the trial court. It was the responsioility and indeed oardinal duty of thG trial conrt to put a stop to this lazy fare attitude by the Prosecution. The rial □ agistrate had the duty to control the proceedings to ensure that justice was not only· done but was seen to be done. In criwinnl proceedings,· the interest of the Prosecution as well as of an accused person have to be safe guarded by tho trial ourt. The Criwinal Procedure Code then in operation proided standards for the afe-guarding of both the interests of the Republi'and the accused• Section 205 was in r:iy opinion properly invoked by -bhe -.rial court in this particJlar case. To safe-guard t'he interests of both the __ Republic to tave its institution taken seriously tirtd the accused. The I • ' - j • tral magistrate was entitled to reject the application for adjournuent by the Republic and was further entitled to 0311 upon the Prosecution to present its eidence against the ac0used. On this parlcular case Prose,ution could have voided dismissal of its case ~~dar a; 205 of the16rioina1 ~~oocdua Code then in operation by wihdrawing the case under s. b6 of Criminal Procedure Code then in operation. But the Republic entrenched in its mistaken belief that endlss adjournments were its entitlement continued· to pray for further adjournments forgeting -!}he ob·Tious haii • . '1 • ~ . ' justice delayed is jsti,se denied. The =l _is ~ ·-·:' YAMA ~ : JUDGE Coram i_ RUBAI,LA, J· Parties absent Judgment delivered 17 /11/90 (-· .. ::: ~~· ,...----~-- • .. . ~ YAHYA RU' Ml. . JUDGE 17/11/90 .,·

PRDBR: Registrar to j_ nf(··,.,111 ·u, 0 ."f'3.:':' c-] .. es oi trd s decision. JUDGE n/11/90