People v Phiri (HPR 372 of 1985) [1985] ZMHC 6 (29 August 1985)

THE PEOPLE v DAUTI TIYESANJE PHIRI (1985) Z. R. 201 (H. C.) HIGH (BWEUPE, 30TH (CASE NO. HPR/372/ 1985) AUGUST J. ) COURT Flynote Criminal Law and Procedure - Acquittal - Whether court can acquit where it has no jurisdiction to try a case. Criminal Law and Procedure - Acquittal - Circumstances where court may acquit. Criminal Law and Procedure - Subordinate court - Procedure - Alternatives in dealing with cases triable by the High Court. Headnote The accused was changed before a Subordinate Court with aggravated robbery, an offence triable Court. by High the On twenty-four separate occasions stretching over a period of one year the accused appeared before a subordinate court and on go each occasion an adjournment was made at the instance of the prosecution because the Director of Public Prosecutions had not issued certificate to enable the trial. court the High Court for summary the accused to commit to On the twenty-fifth occasion the court refused to grant the prosecution any further adjournment and acquitted the accused for want of prosecution. The prosecution applied to the High Court for acquittal. review order the of of Held: (i) (ii) (iii) p202 A court cannot acquit or convict in a case which it has no jurisdiction to try. An acquittal can only be entered where evidence has been led or if not led where the prosecution has offered no evidence. In dealing with cases triable by the High Court, if it thinks that waiting for a certificate of committal for summary trial would occasion injustice to an accused person, a subordinate court may either order the immediate holding of a preliminary inquiry or order the the accused person for want of prosecution. summary discharge of Legislation referred to: Criminal Procedure Code, Cap.160, ss.224, 230. __________________________________________ Judgment BWEUPE, J.: This case has been sent to the High Court for review. The accused was charged with aggravated robbery contrary to section 294 of the Penal Code. On 10th October, 1984, he appeared before the subordinate court of the first class for the Lusaka District for committal to the High Court for summary trial. He was not so committed because the Director of Public Prosecutions has not issued a certificate committing the accused to the High Court for summary trial as is required by the Provisions of the Criminal Procedure Code. On twenty-four different dates the learned Senior Resident Magistrate graciously granted an application by the Public Prosecutor for an adjournment on similar grounds namely that the Director of Public Prosecutions had not given instructions to have the accused committed to the High Court. When the 25th application was made on similar ground the Senior Resident Magistrate's, patience ran out and summed up the case in these words- "The Director of Public Prosecutions does not seem to make up his mind, I could make up their mind. The accused had been brought to court for nearly a year awaiting instructions. What is being there is perpetration of injustice through indecision. I acquit accused for want prosecution." of I totally endorse the first part of the learned Magistrate's sentiments and concern that the learned Director of Public Prosecutions suffered from unwarranted indecision resulting in justice being accused. denied the to However, the learned Magistrate seriously misdirected himself when he said "I acquit accused for want prosecution" reasons: two for of Firstly, the Magistrate had no jurisdiction to try aggravated robbery. He cannot, therefore "acquit" so. (or where convict) powers has no do he to Secondly, "acquittal" can only be entered where evidence has been laid or if not laid where the prosecution has offered no evidence. In this case the prosecution could not lay or offer no evidence because this case was not within the jurisdiction of the learned Magistrate. In the circumstances of this case the Magistrate had one of the two alternatives open to him. These are: Firstly, the learned Senior Resident Magistrate should have ordered a Preliminary Inquiry to be conducted under section 224 of the Criminal Procedure Code. And if at the end of the day the court considers that the evidence against the accused not p203 sufficient to put him on his trial the court shall forthwith "Discharge" the accused: Section refers. Procedure Criminal Code the of It can clearly be seen that even where evidence has been adduced the Magistrate has no power to "acquit" for the simple reason that one can only "acquit" where one has jurisdiction to "convict" and punishment. mete out Second, if the learned Senior Resident Magistrate satisfied himself that injustice was being deliberately perpetrated he should have simply made the observations as he rightly did and then accused. "DISCHARGE" the For reasons aforegoing I hold that the learned Magistrate fell in a serious error. Under the revisionary powers conferred upon me under section 338 (1) (a) (i) of the Criminal Procedure Code I set aside the order of the Magistrate and direct that any of the procedures laid down in section 222 Procedure Code should be complied with. or the Criminal 245 of Order set aside on review ___________________________________________