WAMBURA MAKABWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSION CASE NO. 000016726 OF 2024 BETWEEN THE REPUBLIC.............................................................................. PROSECUTOR VERSUS WAMBURA MAKABWA @ MBERI......................................................... ACCUSED RULING OF THE COURT 19/03/2025 & 20/03/2025 Kafanabo, J.: The accused in this case was arraigned before this Court for the allegations of committing the offence of murder contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E. 2022]. In the particulars of the offence, it was alleged that the accused, Wambura Makabwa @ Mberi, on the 14th day of November 2023, at Nyanungu village within the Serengeti District in the Mara Region, murdered one Bhoke Nyabusibe @ Gariga. The accused was arrested and later arraigned in the District Court of Serengeti in what the record indicates as Murder Case No. 000039114/2023. After the completion of the investigation on 12/08/2024, the committal proceedings were conducted and the accused was committed to this Court for trial. Then on 20/02/2025, a preliminary hearing was conducted paving the way for a full trial of the accused. i On 19th March 2025, Mses. Happiness Machage and Martha Mbosoli, learned State Attorneys, entered an appearance for the Republic, and Mr. Wambura Kisika, learned Advocate, entered an appearance for the accused. It followed that before the hearing of the case could proceed on merits, and after an off-record discussion with the learned counsels, the Court asked the learned counsels to address the Court on whether sections 246(5) and (6) of the Criminal Procedure Act, Cap. 20 R.E. 2022 (hereinafter referred to as the 'CPA') were complied with by the committing Court when conducting the committal proceedings, and in the event were not complied with, what are the legal consequences of the non-compliance on the committal proceedings conducted by the committing court. In addressing the issue Ms. Machage, a learned State Attorney, stepped up to address the matter. Briefly, she submitted that according to the record of the committal proceedings, the accused, after being asked if he had anything to say, replied that he had reserved his statement and list of his witnesses. However, the committing Magistrate neither read nor showed, the statement taken on record by the committing Court, to the accused so that he could confirm whether what he said was written and if it was the truth in line with section 246(5) of the CPA. It was further submitted that the Magistrate neither certified nor accorded the accused a right to sign the proceedings. This also contravened the provisions of 246(6) of the CPA. The learned State Attorney also submitted that the said sections were violated because they contain mandatory requirements of the law considering that the word used is shall. However, the violation was played down by the learned State Attorney who submitted that that the accused 2 had not been prejudiced in any manner whatsoever by the said violation citing the case of Jumanne Shabani Mrondo v. Republic, Criminal Appeal 282 of 2010. It was further submitted that although the word shall have been used in the section, it is not always that the same should be interpreted as imperative as many proceedings/decisions of cases would be nullified. Further, it was submitted that the non-compliance with the said section is curable under section 388 of the CPA. The case of Vuyo Jack v. Director of Public Prosecutions Criminal Appeal 334 of 2016 page 23 which also cited the case of Bahati Makeja v. Republic, Criminal Appeal No. 118 of 2006 was referred to bolster the submission in that respect. The learned State Attorney also referred this Court to Article 107A(2)(e) of the Constitution of the United Republic of Tanzania, 1977 which abhors technicalities. She further submitted that the accused was not prejudiced and no miscarriage of justice was occasioned to him because even in the preliminary hearing conducted, the accused did not complain about any injustice done against him in the committal proceedings. Further, it was submitted that the purpose of section 246 was met because the accused knew the substance of the evidence against him, even though sections 246(5) and (6) were not complied with. It was further added that, if this Court finds that the committal proceedings were improperly conducted, then since there is a preliminary hearing on the record, the remedy is the Court of Appeal to be moved by way of revision, by either the Court or the Republic, to guide the matter 3 citing the case of Republic v. Elias Michael© Luhiye and three Others, Criminal Revision No. 02 of 2018. After hearing the Republic's submissions on the matter, Mr. Kisika, a learned Advocate for the accused, commenced his submissions by pointing out that this matter has not been heard before, nor determined by this Court. It has been called for a hearing for the first time and thus no justice has been done to any party, the parties are seeking justice now. It was further argued that the matter raised by the Court is about non- compliance with section 246(5) and(6) of the CPA which can prejudice any party in this case later in the course of the trial. It was submitted that if a blind eye is turned on the non-compliance with sections 246(5) and (6) of the CPA, then the proceedings of the Court in a trial, the decision that will be made, the jurisdiction of the Court and the dispensation of justice, in general, will be affected. It was submitted that for this Court to have jurisdiction to proceed with a trial of a criminal case the provisions of section 246 of the CPA should be strictly adhered to. A further submission was that before the Court are the proceedings from the District Court of Serengeti dated 12.08. 2024 in which the committal proceedings conducted did not adhere to section 246(5) and (6) of the CPA because of failure to read to the accused or show to him his statement taken by the Court during committal proceedings. The Magistrate also did not certify the proceedings and failed to accord the accused a right to sign and confirm if the statement taken on record was his and was the truth. 4 It was submitted that the statements given in the committal proceedings are used in the trial later, and thus failure to certify that the statement given by the accused is the truth and was made by him may provide an opportunity for another person to add to or reduce anything from the accused's statement. In order to avoid such an undesirable situation, the law requires an accused to sign the committal proceedings on the part of statements made by him so as to verify and confirm that the statements were made by him, going together with the certification of the committing Magistrate. Moreover, it was submitted that even the revision of the laws in 2022 which is more current than the cases cited did not disturb the said provisions which are drafted in mandatory terms and thus they have to be followed. The learned Advocate also argued that since the procedure was not followed the consequence is to nullify the committal proceedings and order committal proceedings to be conducted afresh before another Magistrate citing the case of Sita James v. Republic, Criminal appeal No. 469 of 2020. As regards the preliminary hearing conducted by the Court, it was argued that the same was conducted based on committal proceedings tainted with irregularities and the matter which has been raised by the Court is a matter of law that could be raised at any time, and thus if committal proceedings are nullified, then preliminary hearing will be affected because the Committal proceedings on which it was based will not be in Court's record. It was also submitted that this Court should not abdicate its duty and thus should proceed to nullify the committal proceedings in order to avoid a situation the Court found itself in, in the case of Sita James (supra) 5 where the matter went up to the Court of Appeal just to be remitted to the committing Court because of improper committal proceedings. It is in the interest of justice that the committal proceedings be nullified at this stage before the trial is conducted. As regards the argument that the accused has not been prejudiced, it was submitted that the same is premature to determine at this hour because the parties are yet to be heard. The issue is if the accused is heard under the circumstances of this case will justice be done, not whether the omission under section 246 has prejudiced the accused at this stage. Therefore, the cases cited by the Republic are distinguishable from the present case because all of them discuss prejudice after the trial of the case was done. As regards the use of the word shall in section 246(5)(6) of the CPA, it was submitted that the Interpretation of Laws Act, Cap. 01 R.E. 2019 describes it as a mandatory act and thus indispensable. Considering that in the present case, no decision has been made, it is in the interest of justice that the procedure should be followed bearing in mind that the Parliament used the word shall not for decorative purposes. It was also argued that the non-compliance of section 246 of the CPA cannot be cured under section 388 of the CPA because the said section is about curing the defect on appeal or revision. In the present matter, there is no appeal or revision, it is a matter of law raised by the Court before trial. Further, Article 107(2)(e) of the Constitution cannot be used to override the clear provision of the Act of Parliament, and it is not the purpose of overriding objective to defeat the provisions of the law duly enacted. 6 It was further argued that the case of Republic v. Michael Luhiye (supra) cited by the Republic as an authority that the Court or the Director of Public Prosecutions should pursue revision regarding the proceedings of the present case if it is found that the committal proceedings are improper, is distinguishable from the present case. The reason being that in the said case there were two orders of the High Court which contradicted each other and there were two committal proceedings which is quite different from the present case. It was thus prayed that the committal proceedings be nullified and the Court should give the committing Court specific time within which to conduct committal proceedings, and the Appellant be brought to this Court as soon as possible so that justice can be done. In light of the above submissions, this Court is now called upon to determine whether sections 246(5) and (6) of the CPA were complied with and if not, what are the legal consequences for the said noncompliance. The said questions will be determined together as they are conjoined. The first limb of the issue will not detain this Court because according to the record, and the submissions made, both parties are at ad idem that the provisions of the said sections were breached by the committing Court. This is according to the clear wording of sections 246(5) and (6) of the CPA which provide that: "(5) Everything that the accused person says shall be recorded in full and shall be shown or read over to him and he shall be at 7 liberty to explain or add to anything contained in the record thereof. (6) When the record of the statement, if any, made by the accused person is confirmed to be what he deciares is the truth, the record shall be attested by the magistrate who shall certify that the statement was taken in his presence and hearing and contains accurately the whole statement made by the accused person; and the accused person shall sign or attest the record by his mark but ifhe refuses the court shall record his refusal and the record may be used as if the accused person had signed or attested it." Both learned counsels for the parties are at one that the accused had made his statements that '7 reserve my statement and the list of my witnessed'. It is also not in dispute that after the accused had made his statement as such the Magistrate was supposed to comply with section 246(5) of the CPA by, one, showing the said statement to the accused or reading over the same to him and, two, the accused shall be at liberty to explain or add to anything contained in the record thereof. The learned counsels concurred that the said requirements were not complied with by the committing court. This leaves no iota of doubt that the accused did not know what was recorded, as his statement, by the committing Court and thus was robbed opportunity to explain, correct, or add to anything contained in the record of what is purported to be his 8 statement which would bind him during the trial in terms of section 246(3) of the CPA which provides as follows: "After complying with the provision of subsections (1) and (2), the court shall address the accused person in the following words or words to the tike effect: "You have now heard the substance of the evidence that the prosecution intends to call at your trial. You may either reserve your defence, which you are at liberty to do, or say anything which you may wish to say relevant to the charge against you. Anything you say will be taken down and may be used in evidence at your trial." It follows that after the requirement of reading over the accused's statement to the accused or showing the same to him, being the first condition, after which he is at liberty to explain or add to it, being the second condition or right, the requirements of section 246(6) of the CPA come into play. The said section as reproduced herein above adds two more requirements in complementing to the initial 'two' according to the dictates of section 246(5). The third requirement is that when the record of the statement made by the accused person is confirmed to be the truth, the record shall be attested by the magistrate by certifying that the statement was taken in his presence and contains accurately the whole statement made by the accused person. The fourth requirement is that the accused person shall sign or attest the record by his mark, but if he refuses the court shall record his refusal 9 and the record may be used as if the accused person had signed or attested it. This position is fortified by the observation of the Court of Appeal in the case of Yohana Mussa Makubi vs Republic (Criminal Appeal No. 99 of 2019) [2023] TZCA 66 (24 February 2023) where the Court, when determining the requirements of section 246(6) of the CPA, remarked that: "It is plain that the accused person would be required to sign the record where, upon being asked whether he would reserve his defence or say anything, he decides to give a statement and that such a statement of the accused person was taken down by the committal court. In this case, the appellant did not say anything and therefore, the requirement of signing the record did not arise. The provisions of s. 246 (6) was not, in the circumstances, breached." In light of the above, it is clear that the committing Court was bound by the provisions of the law to ensure that the above four conditions are adhered to. However, as alluded to herein above, the record and the learned counsels' submissions underpin the fact that none of the four conditions were fulfilled by the committing Court during the committal proceedings. Further, this Court must ensure that the provisions of the law are duly complied with especially when the matter has been entertained by the lower Court in clear violation of the provision of the law. In the case of Adelina Koku Anifa & Another vs Byarugaba Alex (Civil Appeal No. 46 of 2019) [2019] TZCA 416 (4 December 2019) the Court held that: io "It is certain therefore, that where the lower court may have not observed the demands of any particular provision of law in a case, the Court cannot justifiably dose its eyes on such glaring illegality because it has duty to ensure proper application of the laws by the subordinate courts and/or tribunals." In light of the above this Court is duty-bound to ensure that the provisions of the law are duly complied with and not turning a blind eye to its violations which is tantamount to breaching the Court's constitutional obligation. As regards Consequences, the learned counsels for the parties had diverse opinions. The Republic's learned State Attorney banked on the discernment that the accused was not prejudiced and no miscarriage of justice was occasioned to him by the said omission. The argument was zealously disputed by the learned Advocate for the accused arguing that it is difficult at this stage to determine prejudice not only on the accused but on both parties. In resolving the above, this Court inclines to agree with the submission of the defence counsel that it is too early to conclude that the accused was not prejudiced because no evidence has been adduced or received by the Court. It is also true, as rightly submitted by Mr. Kisika, that it is important to determine whether at this stage the accused or the parties may be prejudiced if the trial proceeds with committal proceedings tainted with the 11 irregularities. As alluded to herein above, none execution of requirements of sections 246(5) and (6) of the CPA exhumed the following: One, the accused did not know the substance of his statement as recorded by the committal Court. Two, the accused was bound by the statement he was not aware of, and which could be used against him later in the trial. Three, the accused was not accorded a right to explain or add to his statement anything that would include correction if the statement was mistakenly taken down by the Court. This simply means that his right to be heard was violated. Four, the authenticity and/or veracity of the accused's statement on record is questionable because no confirmation, attestation, or certification was made that the statement recorded was made and declared to be the truth by the accused in the presence of the Magistrate. Five, the signature of the accused was key in ensuring that any statement made by him was binding and could be used as evidence in the trial. Deferentially, in light of the above, it is quite premature and inconceivable for the prosecution to argue that the accused has not been prejudiced by the non-compliance with section 246(5)(6) of the CPA. The above simple analysis of circumstances suggests that the accused had been prejudiced because he was committed for trial to this Court based on committal proceedings which are wanting for breaching the unambiguous provisions of the law, and for not bestowing to him the statutory rights which should have been made available to him in the course of committal proceedings. The said rights include the right to be made aware of what was written as his statement and the right to confirm and verify the same. 12 Under the circumstances, it is a view of this Court that the argument of the prosecution that the accused was not prejudiced dissolves, as the non- compliance with the said section blatantly violated the accused statutory rights. At this juncture, it is also important to point out that there is no triviality when there is a violation of rights and/or mandatory procedures when it comes to the dispensation of criminal justice. It also follows that the said violation, as rightly argued by the learned advocate for the accused cannot be cured under section 388 of the CPA because the violation goes to the root of committal proceedings. Further, the said section is about the correction of errors on appeals or revision which does not apply to the case at hand. Moreover, the provisions of Article 107A(2)(e) of the Constitution which abhors technicality cannot be invoked to bless a clear and blatant violation of the accused's statutory rights, based on a mere submission that adherence to the law amounts to upholding technicalities instead of substantive justice. It is also trite law that not every procedure amounts to a technicality that can easily be dismissed on account of upholding substantive justice. In the case of Commissioner General (TRA) vs Pan African Energy (T) Limited (Civil Application No. 2.77/IS) of 2017) [2018] TZCA 457 (5 February 2018) the Court held that: "It is now settled position of the law that Article 1O7A (2) (e) of the Constitution did not do away with or outlawed all the rules of procedure in the administration ofjustice. The Court, in the case of Zuberi Mussa v. Shinyanga Town Council, Civil 13 Application No. 100 of2004 (unreported) had this to say in respect of that Article: "...article 107A(2)(e) is so couched that in itselfis both conclusive and exclusive of any opposite interpretation. A purposive interpretation makes it plain that it should be taken as a guideline for Court action and not as iron dad rule which bars the courts from taking cognizance of salutary rules of procedure which when properly employed help to enhance the quality ofjustice delivered... One cannot be said to be acting wrongly or unreasonably when he is executing the dictates of law/' (Emphasis added). In yet another case of China Henan International Cooperation Group v. Saivand K.A. Rwegasira, Civil Reference No. 22 of2005 (unreported) the Court stressed: "The role of rules of procedure in administration of justice is fundamental... that is, their function is to facilitate the administration ofjustice." In light of the above authorities, it is quite clear that the provisions of section 246(5) and (6) of the CPA should have been duly complied with because they are important rules of procedure and handmaiden of justice. Further, Article 107A(2)(e) did not do away with or outlaw all the rules of procedure in the administration of justice, considering that justice can efficiently be dispensed and attained through adherence to the applicable procedures. In bolstering the above, this Court draws inspiration from its 14 observation in the case of Juma Ramadhani Njiku vs Anna Leonard Kippa (Civil Appeal 190 of 2022) [2023] TZHC 23910 (30 October 2023), when considering the applicability of Article 107A(2)(e) of the Constitution, commented that: "However, the said constitutional principle is not a 'one size- fits all' rule. That is, not all rules of procedure are measly technicalities. Litigants and the public should appreciate that the rules of procedure are not mere trifles to be simply ignored. The rules were, and are made to be adhered to with a view to creating an orderly and defined manner of accessing the court, making the court business predictable, and, generally, making the public cognizant of the same. If every litigant were allowed to swim in their own frolic by choosing what to do when instituting or defending a claim or an appeal, then the duty of resolving disputes and dispensing justice would be chaotic and frenzied. Further, it would open an undesirable floodgate of the unknown." The above rests the issue of technicality pursued by the learned State Attorney, and this Court, with respect, declines to ride on the horse jockeyed by the Republic in that respect. The learned State Attorney also submitted that since a preliminary hearing was done after the committal proceedings were conducted then the appropriate remedy is to move the Court of Appeal for directives by way of revision relying on the case of Republic v. Elias Michael® Luhiye (supra). 15 At the outset, it should be pointed out that this Court cannot simply abdicate its duty and refer the matter to the Court of Appeal, this Court has a duty to resolve matters before it according to law. Further, it is a view of this Court that the presence of preliminary hearing record in this case does not bar this Court from determining whether it has jurisdiction to determine the same or that the case is competently before it. The reasons are that the said issues of law (questioning the validity of committal proceedings) have not been determined by the Court in respect of this case, they have been raised for the 1st time and thus this Court must answer them first before any other Court. Avoiding to answer them at this hour because there is a preliminary hearing on record is tantamount to abdicating this Court's constitutional duty. It is also important to note that the Court is not called upon to determine the validity or invalidity of the proceedings of preliminary hearing but of the committal proceedings conducted by the District Court over which this court has supervisory and revisionary powers. The position that the Court is not supposed to abdicate its constitutional duty is fortified by the position taken by the Court of Appeal in the case of Millicom Tanzania Nv vs Janies Alan Russels Bell & Others (Civil Revision No. 3 of 2017) [2018] TZCA 355 (26 July 2018) where it was held that: '"Since it is settled law that, the Court can invoke suo motu revisionai jurisdiction at any time, to uphold the 2nd and 3rd respondents' argument that there is nothing to be revised because the 16 matter is concluded, if such finding, order, decision or proceeding contains an incurable error, or irregularity would render the Court to remain powerless. More worse, this would be an abdication of our constitutional mandate and a manifest defeat of the dear intention of Parliament in enacting legislation to clothe the Court with supervisory powers over the High Court' See also the case of Attorney General and Others vs Opluent Ltd (Civil Revision No. 1 of 2015) [2015] TZCA 890 (1 October 2015). Moreover, a stern observation was also made in the case of Maulid Juma vs Ismail Mrindoko (Civil Appeal No. 198 of 2016) [2017] TZCA 188 (7 August 2017). The Court of Appeal when commenting on the High Court's practice of casually forwarding the cases to the Court of Appeal for guidance and directions before deciding, the Court remarked that: "With due respect, we expect the High Court to work out challenging issues on their own. It is not appropriate for the High Court to expect the Court ofAppeal to be an extension of research facility at its disposal. It is axiomatic to say that when hearing and determining matters before them judges must look up all statutes and regulations that apply to matters before them." In the same vein, in the case of Sharrif Abdallah Salim & Another vs Mahsen Abdallah Salim (Civil Revision No 11 of 2016) [2017] TZCA 312 (25 May 2017) the Court observed that: 17 "In the case at hand, having heard the parties, the High Court did not proceed to decide on that aspect but in its stead went on to forward the matter to this Court for directions, We are of the considered view that that was not the appropriate step to take. We think, having heard the parties on the question ofjurisdiction of the District Court over land matters, it was incumbent upon the court to proceed to decide on that point” In light of the above authorities, it is a view of this Court that, having heard the parties on the matter of law raised, this Court is bound to make a decision in that respect as it will shortly be made in the course of this ruling. Moreover, as alluded to herein above, the Republic relying on the case of Republic v. Elias Michael® Luhiye (supra) submitted that the matter be forwarded to the Court of Appeal for revision, however, the authorities referred herein above dishearten such practice. Further, the circumstances in the above case relied on by the learned State Attorney are distinguishable from the circumstances of the present case. This is because in the said case fresh committal proceedings were ordered whilst the initial committal proceedings were not nullified and thus two committal proceedings subsisted in the same file of the committing Court. Further, the criminal session case file was closed before nullification of the committal proceedings initially committed the accused to the High Court for trial. This also means that there was a preliminary hearing on record based on the faulty committal proceedings which were not nullified, and on top of that other committal proceedings were conducted. It was further noted that the matter was again taken for plea taking and preliminary hearing whilst two committal 18 proceedings were subsisting, and the decision to close the criminal session case had been made previously by another Judge. It is thus clear that the situation in the present case is different as demonstrated by facts recapitulated earlier in this ruling. Reverting to the present case, and in light of the above, it is a finding of this Court that the omission to comply with sections 246(5)(6) of the CPA is a fatal and incurable irregularity which renders the committal proceedings invalid and the same deserves to be nullified. See the cases of Musa Kanyerere vs Republic (Criminal Appeal No. 318 of 2020) [2024] TZCA 586 (18 July 2024), Malocha Kalinji @ Venus & Another v. The Director of Public Prosecutions (Criminal Appeal No. 238 of 2019) [2023] TZCA17717 (4 October 2023) Alfan Apolinary @ Kyalubota and 3 Others v. The Republic (Criminal Appeal No. 164 of 2021) [2023] TZCA 17579 (31 August 2023). In the latter case, it was held that: "However, in the present case, we are of the view that since the irregularity was to a large extent caused by the committing court and that both sides were prejudiced, it is in the interest ofjustice that we nullify the respective proceedings of the committal court and those of the trial court followed by an order of a retrial before the High Court." Under the circumstances, the accused before the Court has not been properly committed to this Court for trial purposes because of the defective committal proceedings based on the reasons explained herein above. It follows that this Court is not clothed with jurisdiction to proceed with the trial of the accused pursuant to section 246(1) of the CPA. 19 In light of the foregoing, this Court invokes its revisionary powers under sections 372(1) and 373(l)(b) of the CPA and orders the following: 1. The committal order of the District Court of Serengeti dated 12/08/2024 in respect of Murder Case No. 000039114/2023 is invalid. 2. The committal proceedings and the relevant committal order in respect of Murder Case No. 000039114/2023 are hereby nullified. 3. The case is remitted to the committing Court to conduct fresh committal proceedings in compliance with section 246 of the Criminal Procedure Act, Cap. 20 R.E. 2022 and any other relevant provisions of the law. 4. The fresh committal proceedings should be conducted immediately, and in any event, not later than 25th April 2025. 5. The accused shall remain in custody pending the conduct of fresh committal proceedings by the committing Court. 6. This criminal session case is vitiated for being incompetent as it emanates from a nullity committal order and thus there is nothing for determination before this Court. It is so ordered. 20 The Ruling was delivered in the presence of Ms. Happiness Machage a learned State Attorney for the Republic, Mr. Wambura Kisika, a learned Advocate for the accused, and the accused himself. K. 1^ kafanabo Judge 20/03/2025 21