20190624 TZHC Mwanza

IN THE HIGH COURT Of TANZANIA

ATMWANZA CRIMINAL APPEAL NO. 146 Of 2017 [Appeal from the Judgment of the District CourtofSerengeti in Criminal Case No. 206/2016, dated 21st December 2016, Hon. I.£ Ngaile, District Resident Magistrate] 2002. After a full . trial, the appellants were convicted and. sentenced to serve a term of ten (10) years in prison. Dissatisfied, the appellants lodged their joint petition of appeal . advancing three grounds of complaints . as follows: l. I ;·q ~ .

1. That the trial Magistrate erred in law and in fact for sentencing each appellant to 10 years imprisonment which sentence was excessive in the circumstances.

2. That the trial Magistrate grossly erred in law and fact for failure to properly consider the mitigation factors given by the appellants before passing the sentence against them.

3. That the trial Magistrate erred in law and in faet•Jor failure to critically analyze and evaluate .evidence . on ~ . ~ ~ e / ) ·. occasioning injustice to the appellants. ~ ,-:-..,._~ . Having heard the parties on 9th April ~ ' e r for decision. However in the course of pre~~dg:,nt, ; noted that the Judgment dated 21 st DeceCzou;'¾~strict Court of Serengeti at Mugumu in C r i m ~ ~ O l ;and which is the subject of this appeal/Q~ s;g~~t~e trial Magistrate as required under section 312 e>f.. t~~~irn_i_~~~. Rr,ocedure Act Cap 20 RE 2002. Being aware of t ~ \ ~ h i c h is not in conformity with the provisions of s e ~ d f the Criminal Procedure Act (supra) is not.a Judgment know~aV\/;-I formed an opinion that the appeal might be incompetent for that reason. That issue was however not raised and argued by parties during the hearing of this appeal. 2 I ( ·•·' With the above in mind, I decided to summon parties and directed them to address the court on the competency of an appeal against a Judgment which has not been signed by the presiding officer. Upon been accorded a chance to address the court, the appellants who were on the particular date unrepresented, had nothing to say presumably owing to the technicality of the issue raised. They left it to the c:urt~n~othe~ side Ms. Dorcas Akyoo, the learned State Attorney~~r-~the re~ponden~ conceded the irregularitie~- i ~ ~ ~ r ~ g u e

d that failure to sign a Judgment fatal and,so~~~A's to what should . ~~~~ be the remedy in the circu~nc~, the (eai~-e~oved the court to quash the purported Judgment an.~it"th~.-.y l~ourt's records for the said court to compose a~b J~G19~' \1\ ~ V - . a· ·- -~~:'~ Apparegtlv,~:-- reco:d, shows there is no handwritten ~ Judg~Gfu~~sw.pposes that having concluded the proceedings, the lear~fi)residi ~Ma;strate typed and printed his Judgment. For easy of ';: ~"'!-~·~~:it,_'· t reference of what l will be saying shortly, I have reproduced the contents of the purported trial court's Judgment when convicting the appellants. Hence on the strength ofthe aforesaid reason~ I do not hesitate at all to hold that the prosecution side has proved the case 3 \ ('·' against the accused persons beyond reasonable doubts as required by law. I find the accused persons guilty of the offense · of cruelty to a child c/s_ 169A {l) and {2} of the Penal Code [Cap 16 RE 2002] and I duly convict them forthwith. SIGNED: I.E NGAILE, ORM 21.12.2016 The record shows further there is a court stam~a~ P¾Je ~f the purported Judgment certifying the same~,:.t~l~e original. I n my consI"d ere d view, · ce rt·ty· b ~~t ... - ~\f)th e ongma 1 1ng~"'Zum~-c-0py;;,o . · I w h"II e non-exist, is wrong. A trit1a~- th~~~nte~tyersion of a document is · · I as aga~1m1~a:r an ongma ~ . t · {;!/Ir ve~or:istnp ~t"-d . th e m e same

process. By merely certifyin£1 _a ~uclgf!!~ipy of the original, it presupposes that there w~igin~ersiQn of the same of which there Was none. ~~)!L (/" As f R ~ h d 6 1 ' 1 i d the printed document, a mere copy. The besb,;ractice ·;;,jt~~~rcumstance is to sign and date the Judgment as r e q u ~ J n 312 of the Criminal Procedure Act. Since that was not done, the certified copy cannot serve the purpose in absence of the original one. 4 • I 0 );.t . All that being said, failure to sign a Judgment is an incurable irregularity. It is so because just as it for any judicial proceedings, any conclusion or finding by the court must be authenticated. by a signature of the presiding officer to give the same, the expected authority. This court has in several We are thu~ satisfied that; failure by the Judge to append his/her signature after taking down the evidence of every witness is an incurable irregularity in the proper administration of criminal justice in this country. The rationale for the rule is fairly apparent as it is geared to ensure that the trial proceedings are authentic and not tainted Beside.5;. this emulates the sp1iit ,- ::> contained in section 210(1) {a) of the CPA and we find no doubt in taking inspiration there from. Taking a leaf-from the decision above, I am certain that if failure to sign court proceedings is a fatal irregularity, then similar omission to sign a in

compliance to section 312 (1} of the Criminal Procedure Act. For easy facilitation of the process, I direct that the appellants be kept in remand prison pending compliancy of this order. However, the interest of justice· demands that the matter be attended with immediate dispatch by the 6 (_ ~• District Court of Serengeti taking into consideration the time which the appellants have already spent in prison and that should a fresh Judgment lead to a re conviction, the time the appellants have spent in prison .,,_ serving the current sentence should be taken into account when 7