20060315 TZCA Mwanza

f,,t• .. \, h : '~·, IN THE COURT Of APPEAL OF TANZANIA AT MW,~}iZA (GORA.M: MUNUO; J.A.1. M~~Q_FFE 1 J;A. AND KAJI, J.A.) q .,CRIMINAL APPEAi.. NO. 59 OF 2004 BETWEEN 1. RICHARD KAtJiUG~SHA@ CHARLES SIMON·. 2. WELINGTON KABANDA 3. MNIKO S/0 MARWA 4. CHARLES YUSTACE@ GABANA t<ABAKEl\lGA 5. GRATION APOLINARY@ JOHN BOSCO 6. JOSEPH M::'.CHA~L@ MARWA. ~:OLDIER ...................... APPELLANTS ,AND .I Tt~iE R.EPUBLIC:.. •.•. ··~ ~ ........ , .....-............ ,,, ..... ~-. "" ......... , .......... . RESPCtN l)Ei'\11. . . (Aµ?)eal from the ,Co1wictim1 / Judgment of the High Court of Tanz~nia nt Mwan:z:a) 6-1asaf)c:he, J.) ~ .:,· ,~·- .. ;_ dated the 19th pay of December, 2002 in • 't. . r , . ' Criminal Appeals Nos.- 100, 101, 102, 103,_j.04 & 105 of :i.S~~~- J UDGMENT O f T :-1 l: COURT ::::=-:::::==== • * ~ ••• • : -=--·:::.:.::========= ·,-hi~. is a consolidated seconc! appea\ frcm Criminal /-,,pv;al r~os. 100, 101, 102, 103, 104 and lC'.•:; of 1999 iii the High Court of . .-.. ·: ,\, :~;:. . :· i• 2 Tanzania at Mwanza, before Masanche, J. The case commenced as Criminal Case No. 359 of 1994 in the District Court at Mwanza. Q In the trial court ten co-suspects including the present 6 appellants were jointly and together charged with robbery with violence c/s 285 and 286 of the Pe(ial Code, -cap. 16. It was alleged that the co-bandits struck at the dvvelling house of one Mehboob s/o Banji on the night of 15th April, 19?4 at Kilombero Street, within Mwanza Municipality and therein stole one Telecrasses T.V., a radio cassette, 2 panasonic 1Vs, a Panasonic video deck, a national VCR, .;- ·' jewellery, and cash, all valued at shs.2,845,000/= the property of . . Mehboob Banji and immeqiately before and after the stealing, diS(=;arged a bullet in the air\n order to obtain and retain the stolen The trial District Court -convicted the present appellants and sentenced them to 30 years imprisonment and to 12 strokes of the cane each. Aggrieved, the appellants unsuccessfully appealed to the ,, /. 3 High Court so they lodged this second appeal to challenge the conviction and sentence. The appellants were unrepresented. The respondent Republic was represented by Mr. Mrina, learned State Attorney. The respective appellants filed memoranda of appeal contending that. their guHt was not proved at the standard of proof set for criminal cases. 1hey faulted the c;ourts below for relying on a confession the 5th appellant made to the police which incriminating statement was not tender~d at the trial. The -appeltant further ..." complained that they were not t. accorded . . a fair trial because the trial was conducted by three dif'.fer\nt magistrates. ' not support the conviction in view of the scanty evidence against the appellants. He conceded that the appellants could have suffered injustice because three different magistrates tried the case and the appellants were not given an opportunity to opt for a retrial or recall witness. He further (f 4 faulted the trial" magistrates who tried the case for not complying w1th the provisions of Section 214 of the Criminal Procedur-e Act, ~- 1985, which frregular1ty, he contended, is incurable under the provtsions of Section 388 of the Criminal Procedure Act for it •occasioned a faiture of just~ce to the appeHants. He prayed that the tria:1 proceedings be nuitified. Section 214 of the Criminal Procedure Act, 1985 provides, inter - aiia: 214 (1) where any magistrate, after having heard and qC<:orded . '1; ' the whole ori..part of the evidence in any trial or conducted _in whole or part any committal proceedings . is for any. -reason unable to complete the trial or the trial or comm_ittat· procee_dings within a ·reasonabte-time, another magistrate who has arid· who exercises jurisdiction may take over and continue the trial or committal proceedings, as the case may be, and the 5 magistrate so taking over on the evidence or proceeding recorded by his predecessor and may, in C ·case of a trial and if he considers it necessary, summon the witnesses and recommence the trial or committal proceedings .. (2) Whenever the provislons of subsection (1) apply the High Court may, wh~ther there be an appeal or not, .-set aside any conviction ,passed on evidence not wholly recorded by the magistrate before the conviction was . had, if it ls of the opinion that the accused ., . has been . ., ' materially P[~judiced thereby and may order a new trial. ' and after taking five prosecotion witnesses, the trial magistrate disqualified himself from further . conduct of the case on the 11.11.1997 after receiving written. complaints from the appeHants challenging his integrlty. ~ 6 Mr. Mzuna, R.M. took over the trial on the 25.11.1997. He 9 allowed the appellants to opt for continuation of the trial or a retrial. Out of the .ten accused persons at the trial, eight opted for continuation of the case and two preferred a trial de nova so per the proceedings of the 26.11.1997 a trial de nova was ordered:· However, the case was adjourned three times before it proceeded. Meanwh-ile, the two accused who had opted for a retrial changed · their minds and decided , to go along with the majority so it was ordered that the trial pr~xeeds ~ ·~· instead of starting de nova. The order reflecting the same was ma.de on the 19.1.1998: .£Ven then, the case was adjourned eig~t times. before the prosecution closed its cqse on the 30.3.1998 .. ·On that date, the learned trial magistrate, . ·:,..{ •:..F Mr. Mzuna, R.M. ruled that the respective accused had a case to answer. Subseauentlv . , he rec~td~d ... .tfie . ;·• defences of D-.'vV. 1.. . . D)N. 2 and D.W. 3 and was transferred to another station so on the 18.5.1998, he ordered the case to be reassigned to another magistrate for continuation. .7 The c~se suffered some 28 adjournments before the defence · hearing continued on the 12.2.1999 before a third magistrate, Mr. G.J. Kada§so, SOM. Defence hearing continued before the said magistrate until the 7.4.1999 when the trial magistrate fixed the date for judgment :On the 8.4.1999. · Fortunately, the judgement was delivered on the 8.4.1999 as scheduled.· The issue before us is whether the conduct of the case by three different magistrates occasioned a fail,ure of justice to the appellants. A perusal of the -trial proceedings shows that the· third trial magistrnte did not recall any of the five prosecution witnesses who i, had testified before the lirst trial magistrate who recorded their ' evidence. Nor did the third trial magistrate who completed the other two trial magistrates. It.is bur cbnsidered opinion that the third trial magistrate did not see, and was therefore not in good position to . . evaluate the prosecution evidence or assess the credibility of the five prosecution witnesses upon whose evidence he grounded the 8 conviction for all the said five prosecution witnesses had testified before the first trial magistrate. ~ The courts have been cautious in situations where a singfe trial is presided over by more than_ one magistrate. In the case of Remebisele s/o Elisaro versu";; Republic (1967) HCD n. 75 the trial magistrate who recorded tile evidence of the prosecution witnesses was transferred whereµpon the succeeding magistrate presided over the trial, concluded the defence hearing and passed judgement by convicting the appellant of forgery ·and theft as charged. He appealed to the High Court. It was held that...--- L (1) The discretion \iven to a magistrate by the .Criminal Procedure Code Section 196 [now Section 214 of the Criminal Procedure Art,. 1J85J should be .exei"cissd '.Nlth great care, for the primar~ purpose of the hearing is to permit the court to observe the demeanour and evaluate the credibility· of all the _witnesses. In the present case 9 the charges were grave and the accused vigorously contested the allegations of the prosecution witnesses .... There being no record that the appellant was informed of his right to rec~_I witness~s, the conviction was quashed and a retrial was ordered. In the present case, the third trial magistrate did not inform the appellants of their right to re~aH. tl:e prosecution witnesses .who testified before the '·first trial magistrate. The importance of such an obligation on the part of the trial magistrate is stipulated under the • 4 • provisions of Section 214 (2) of the Criminal Procedure Act, 1985 t. which allows the High Cou~- "whether on app~I · ~r · r;f)t to set aside any conviction passed on evklence not wholly recorded by the magistrate before. the conviction was had, if it is of the opinion that the accused has been materially prejudiced thereby and may order a new trial." (' In the case of David Mwita- versus Republic (1967) HCD 134, the accused were convicted of cattle theft. The trial was heard by two magistrates, the first maf~strate· heard all the prosecution witnesses while the second magi_strate heard the defence witnesses.- On appeal, -it was held that - ; The outcome of the case depended . entirely¥. · upon an evalu,ion cif the credibility of the witnesses. . In the circumstances, the fa. . magistrate erred in accepting the testimony of the prosecution witnoo.se~whom .-he had never seen. The conviction was quashed and a trial de novo was ordered._ ll We also looked at the case of Abdullah Massani versus Republic (1970) HCD 279 in which the case was tried by two Q . different magistrates, one dealing with the prosecution evidence and the other recording the defence and passing judgement. On appeal, the appellant complained th-at he i1ad not been· accorded a fair trial because of th-e change of magistr~s. It was heid that - ... the second magistrate did not comply with the provisions of Section 196 of the Criminal Procedure Code [now Section 214 of the \ Criminal Procedure Act, 1985]. The provision •!, · makes it mand,tory for the magistrate to inform the p~rson on trial that not only that he was taking over the case but that the person on appeal Js <r.Ptit~d . .. . . to: ask the Court to rec~Ji. all the i?itm~s~\~s who had given evidence previouslyt. This court has held in the case of Daudi Raphael and Masanja versus Republic - Criminal Appeal No. 77 of 12 1969 that the pre-requisite to the second magistrate's C exercising jurisdiction . is the i1iforming of the accused of his right and that if this is not complied with the second magistrate would have no jurisdiction and the trial would be a null~. In ·this case, as the second magistrate had not complied with this provision, he had no jurisdiction to try the case and therefore the trial was a nullity. ; Appeal allow~d ., . \Ve i'l(1V2 cited the abov' cases to illustrate that where a trial is conducted by more than one magistrate, th·e accused should be inforn1ed of his right to have the trial· continue- or start afresh and also the right to recall witne:~5es,. T~e word used in Section 214 (l) of the Criminal Procedure f(ct, 1@85 is "may" which indicates distreti<jn but in view of the fact tbat the right to a fair ti-ial is fundarryental, the court has an obligation to conduct a fair trial ln all <t-=::--rY=.:r)s. V✓ ri are hesitant tv say that where, as is the ca~.e here, the • < 13 third_ magistrate only heard 3 defence witnesses and did not take the evidence of the five prosecution witnesses, such magistrate () . adju_qi~ated·upon and determined the case fairly. Under the circumstances, we th.ink the learned State Attorney co<r-ectly fau1ted the third trial r;q,e;-::t1strate for non - compliance with the provisioris of Section 214 of -ti'Ie Criminal Procedure Act, 1985. i::(g thee fundamental irregularity, 'vVB nullify the proceedings of the trial,. judgement and appeal therefrom. We make no order for a tetrial because the learned State Attorney did not support the conviction. Consequent to the m~tllfication of th_e trial,. ~e. qu 9sh the .. . . .. . . . ' conviction and set aside tQe sentence. We. order that the appellants be refeased from prison fmthwith if they are not detained for other . . . .. . ;::;'A';:, ..,~ii c:::iuc-~ '... -":J-• ,_. :JC • ... •• .. )}. L: : i .~ '' , . .. ' E. N. MUNUO JUSTICE ck:: APPEAL S. N.i<A.11 JUSTICE 0_1: APPEAL ' i,. 7:•, \ S. M. -.,,. R