Judgment Angelina

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 17013 OF 2024 (Appeal from the decision of the District Court of Nyamagana at Mwanza (Hon. JA.Mpuya PRM) in criminal case no.89 of 2023) ANGELINA STEPHANO ……..………………………………...………… APPELLANT VERSUS THE REPUBLIC …………………...……………….….………………….… RESPONDENT JUDGMENT 28th, & 30th October, 2024 CHUMA, J. The Appellant was arraigned in the District Court of Nyamagana for contravening section 15A and (2)(c) of the Drug Control and Enforcement Act, Cap 95 RE.2019. It was alleged by the prosecution that the appellant on 6th October, 2022 at Kageye Lwanhima within Buhongwa area Nyamagana District in Mwanza Region was found in unlawful possession of 9 grams of marijuana. The appellant denied the charge but at the end of the trial, she was found guilty, convicted, and sentenced to imprisonment for thirty (30) years. The trial court’s decision has utterly aggrieved the 1 appellant. She has instituted this appeal, challenging both conviction and the sentence fronting two grounds of appeal as here under; 1. That the trial and conviction of the appellant were faulty as the trial of the case was subsequently presided over by another magistrate Hon. JA Mpuya, PRM without assigning any reasons on the record. 2. That the trial and conviction of the appellant were faulty and doubtful as the material witness (the police officer) who conducted the search and seizure of exhibit P2 was not called to testify in court. In this appeal, the appellant enjoyed the legal service of Mr. Mutalemwa Learned counsel while Ms. Matha Mtiti State Attorney appeared for the Republic. When the matter was placed before me for hearing Mr. Mutalemwa advocate for the appellant dropped the second ground of appeal remaining with only the first ground of appeal. In his submission, Mr. Mutalemwa contended that the lower court proceedings on page 27 of the typed proceedings the case was initially presided over by Hon. Manento, SRM and on the defence side the case was 2 heard by Hon. Mpuya, PRM without assigning reasons as per pages 28 to 29 of the typed trial proceedings. The omission contravenes section 214(1) of CPA RE 2019. On page 30 of the court record reveals that the court complied with section 214(1) of CPA but in a real sense, no reason was issued by the successor Magistrate. His position is backed up by the case of Petro Manhyakuwalwa Vs. R Criminal Appeal No. 561 of 2015 on pages 10 to 11 where it was emphasized on important for a second presiding magistrate to assign a reason for taking over the matter. Mr. Mutalemwa went on to argue that such omission is fatal and it vitiates proceedings. He urged this court to quash the trial court proceedings from 27.3.2024 to 6.5.2024 and order a retrial from 27.3.2024. Without prejudice from the foregoing, the trial court findings were reached without considering the defence evidence. And that since the appellant was bailed at the lower court, it was his prayer that if this court will order retrial the appellants’ right to bail should be maintained. In response, Ms. Matha Mtiti SA in her submission conceded the instant appeal because section 214(1) of the CPA was not complied with properly. On page 30 of Court proceedings the presiding magistrate who took over the 3 matter assigned no reasons for taking over the matter as per the cited provision of law. As rightly submitted by Mr. Mutalemwa the omission is fatal and vitiates proceedings. She invited this court to the case of Bashiri Ibrahim @ Joseph Vs. R Criminal Appeal No. 464 of 2015 on page 5 where the court insisted assignment of reasons for the predecessor magistrate. The record indicates that from Hon. Manento to Mpuya no reasons were assigned. She further argued that the appropriate remedy is retrial as provided under section 214(2) of CPA. The retrial order normally comes after quashing the proceedings that contravened the said procedure. She subscribed to the submission of Mr. Mutalemwa that the defence evidence was not taken into account in the trial court judgment. Though this court can step into the shoes of the trial court and re-evaluate the evidence since there are other procedural irregularities, she prayed this matter to be ordered retrial. On the issue of bail, she was of the view that that is the domain of the court to determine, she then left the court to decide. In his brief rejoinder Mr. Mutalemwa's advocate insisted on his prayer for bail, that in case the trial court proceedings will be quashed and set aside 4 the decision and orders, the appellants’ bail earlier granted by the trial court should be maintained. The parties’ contending submissions bring out the pertinent question of whether the guilt of the appellant was established to support the conviction from which this appeal arises. As rightly submitted by the parties the lower courts’ record is amply clear that the matter was initially heard by Hon. Manento, SRM and later transferred to Hon. Mpuya, PRM. It is equally clear that Hon. Mpuya assigned no reason for taking over the matter though page 30 of the lower court proceedings indicates compliance with section 214(1) of CPA for the following words; “Court: This court do hereby apply S. 214(1) of CPA to proceed with this case”. The foregoing proceedings do not amount to compliance with such provision. In the case of Priscus Kimaro Vs. R Criminal Appeal No. 301 of 2013, the court held that; “...where it is necessary to reassign a partly heard matter to another magistrate, the reason for the failure of the 5 first magistrate to complete the matter must be recorded. If that is not done, it may lead to chaos in the administration of justice. Anyone, for personal reasons, could just pick up any file and deal with it to the detriment of justice”. None adherence to the dictate of the provision of section 214(1) of CPA vitiates proceedings. A similar stance was decided in the case of Abdi Masoud@ Iboma and three others Vs. R Criminal Appeal No 116 of 2015 thus; “In our view, under s.214(1) of CPA, it is necessary to record the reasons for reassignment or change of trial magistrate. It is a requirement of the law and has to be complied with. It is a prerequisite for the second magistrate’s assumption of jurisdiction. If this is not complied with, the successor magistrate would have no authority or jurisdiction to try the case”. Guided by the above authority, I am at once with the Learned advocate and Attorney for the republic that since the successor magistrate did not assign reasons as per the law requirement, the proceedings associated with were nothing but nullity that might lead to retrial as suggested by the parties. 6 I however distance myself from the parties' submission regarding the non-consideration of defence evidence in the trial court's judgment because that ground was not among the advanced grounds of appeal. As suggested by the parties I would have ordered a retrial as a result of the lower court procedural irregularity here in the above point, however, the record reveals several evidential gaps left unfiled. Ordering a retrial is to cause another denial of justice against the appellant as the prosecution might take that advantage to fill in gaps. The circumstance under which retrial may be ordered was explained in the case of Fatahel Manji Vs. R. (1966) EA 343 where the court held that; “In general, a retrial will be ordered only when the original trial was illegal or defective, it will not be ordered where the conviction is set aside because of insufficiency of evidence or to enable the prosecution to fill gaps in its evidence at the first trial; even where the conviction is vitiated by mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and order for retrial should only be 7 made where interest of justice require it. {Underscoring is mine}”. To prove the offence of trafficking in narcotic drugs, the prosecution must be able to prove that the accused persons were found in possession of narcotic drugs, and that there was an act of trafficking the said drugs, within the meaning of section 2 of the Act, and that the government chemist must prove that the substance found in the accused's possession is really narcotic drugs. For clarity, section 2 defines trafficking as hereunder: "trafficking “means the importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution, by any person of narcotic drug or psychotropic substance any substance represented or held out by that person to be a narcotic drug or psychotropic substance or making of any offer but shall not include...." See a case of Hamis Mohamed Mtou Vs. Republic, CAT-Criminal Appeal No. 228 of 2019. From the quoted definition and my scrutiny on record no doubt the accused was found in possession of the said drugs and were certified as such. But the last ingredient in my view was not established by prosecution witnesses. The available lower court evidence does not suggest existence 8 of an act of trafficking in narcotic drugs by the accused person now appellant. More so in the instant appeal basically, the conviction against the appellant was grounded on the evidence of PW2 WP. 7407 D/C MWAJUMA whose evidence was associated with the tendering caution statement of the accused which was not objected to in its admission in court. This fact was interpreted by the trial court to connote admission as per page 3 of its judgment. The record is dead silent on whether the purported caution statement was even discussed or analysed by the trial court in line with other evidence. In my view even if the document is not objected still the court is duty bound to discuss and assess the same instead of relying on non-contention by the accused. My position takes its course from the fact that the conviction should always be founded on the strength of prosecution evidence whose burden of proof lies and not on the weakness of the defence side. This stance was amplified in the case of Twinogone Mwambela Vs. Republic, Criminal Appeal No. 388 OF 2018 (CAT-MBY) on page 16 the Court of Appeal had this to say and I quote; 9 ‘…we are alive to the position of the law that, an accused person in a criminal trial, can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence’ See also; Mwita and Others Vs. Republic [1977] LRT 54 From the foregoing observation, I found merit in this appeal. I accordingly allow the appeal, quash the conviction, and set aside the sentence of 30 years jail term meted out to the appellant. I order the appellant's immediate release from prison unless she is held for another lawful cause. I so order. DATED at MWANZA this 30th day of October, 2024. W.M. CHUMA JUDGE 10 Judgment delivered in court before the appellant in person and Ms.Matha Mtiti State Attorney for the Republic this 30th day of October, 2024. W.M. CHUMA JUDGE 11