20080930 TZCA Tabora1

IN THE COURT OF APPEAL OF TANZANIA ATTABORA (CORAM: RAMADHANI, C.]., MROSO, J.A. And MUNUO, J.A.) CRIMINAL APPEAL NO. 230 OF 2005 SAI'IV1EL NrIRUHUNGVVA .........................•••••••••• APPELI_ANT VERSUS THE REPUBLIC RESPONDENT •....u....u.......uuuue.a.uuuu•uueuuuus••mnuu (Appeal from the conviction of the Resident Magistrate's Court at Kigoma) (Awasi, PRM, Extended Jurisdiction) 301h day of September, 2005 dated the in Criminal Sessions Case No. 2 of 2005 JUDGMENT OF THE COURT - 19 September, 2008 MROSO, J.A.: The appellant had two wives However, he separated from his first wife, who left him with two living children. The other children he had with her died. His second wife was the deceased, Paulina Mikidadi. He frequently complained to her that she was not giving food to the children who were left with him by his first wife. 2 On the fateful day, he and the deceased were going to their shamba. On the way there was a misunderstanding which again related to his complaint that the deceased was discriminating against the children of the elder wife by not giving them food. He struck her on the head with a piece of iron rod he was carrying. She dropped down and died on the spot. He panicked and hid the iron rod in what were described as olive leaves and returned home. On the same day, when the news about the death of his wife reached the village, he was arrested. The police were informed and he admitted to the police (of unknown rank) in the presence of PW1 - Ramadhani Kayengibila, that he had caused the death of his wife, Paulina. A postmortem examination report on the cause of death showed that the deceased had two wounds, one was a fractured occipital bone, and another on the parietal bone. The body also showed a tear, on the right side of the mouth. The appellant was also taken before a Justice of the Peace, PW2 - Saddock Chakutema, a Primary Court Magistrate. He made a statement to the Justice of the Peace in which he said "there was 91 I p I some quarrel (c/iokochoko)" between the deceased and himself. The quarrel was on the failure or refusal by the deceased to give food to his two other children from his first wife. He said:- "Wi/mi n///ktiwa nik/mtuhumu kutokuwapa chaku/a watoto wa b/rnkubwa wake. S/ku hio ya rnaongez/ hayo nj/ani ni//kuwa na I fimbo ya churna kama nondo n/karnpia nayo kwenye shavu mara moja na akaanguka na hapo n/I/rnrud/a nlkarnuu/L?'a kwarnba rnbona sasa husern, kumbe al/shafar/k!." Later, in his evidence at the trial, he said that as they walked to the shamba and he asked the deceased why she did not give food to the children of the elder wife, she said to him - "wewe n/ rnwanamme sababu unabeba mkuk/ begani." He said those words meant that he was impotent. Because of those words he said - "I was too provoked that I used the iron bar I had to hit her on her head, she fell down Ijust intended to warn her." He said he had hit her only once; Is I - Mr. Kabuguzi, learned advocate who appeared for the appellant at the trial (and also before us in this appeal), advanced the defence of provocation in vain. On the other hand, Mr. Mrina, who was the prosecuting State Attorney at the trial, argued that the piece of iron which the appellant employed in assaulting the deceased and the area of the body of the deceased at which the appellant aimed the blow or blows were evidence of malice aforethought and that the appellant had, therefore, committed murder. The trial court was convinced that the appellant was guilty of murder and convicted him accordingly. The case had initially come before Masanche, J. who took the plea and held a preliminary hearing in accordance with section 192 of the Criminal Procedure Act, 1985, henceforth, the Act. Subsequently, however, the High Court transferred the case to the Court of Resident Magistrate, Kigoma "for hearing by a Resident Magistrate with Extended Jurisdiction' The typed record of appeal shows that the transfer of the case was made under section 266 (a) of the Act, but a perusal of the original High Court record 77 5 shows that the transfer was under section 256A (1) of the Act, which is the correct section. Mr. Awasi, Principal Resident Magistrate with Extended Jurisdiction, took charge of the cae and tried it in the Court of Resident Magistrate of Kigoma, at Kigoma. He tobk a plea from the ( appellant but, did not hold a preliminary hearing. He was, however informed of the matters which had been found not to be in dispute when the preliminary hearing was held before Masanche, J. in the High Court. Mr. Awasi proceeded with the trial to the end and wrote a judgment in which he convicted the appellant of murder. At first Mr. Kabuguzi, learned advocate for the appellant, lodged a sole ground of appeal. In that ground the complaint is that the trial before the Resident Magistrate's Court with extended jurisdiction was a nullity because the case was transferred from the High Court to that court after a Preliminary Hearing had already been conducted by the High Court. Just before the hearing date of this appeal Mr. Kabuguzi lodged a Supplementary Memorandum of Appeal which, he said, contained / rel two new grounds of appeal in alternative to the sole ground of appeal in the initial memorandum of appeal. The first ground of appeal in the Supplementary Memorandum of Appeal is that the charge of murder had not been proved against the appellant beyond a reasonable doubt. In the second ground of appeal the grievance is that the trial court erred in law in not accepting the appellant's defence of provocation which would have made the appellant liable to be convicted of manslaughter. We will begin by considering the ground that the proceedings before Awasi, PRM (Extended Jurisdiction) were a nullity. It has been argued by Mr. Kabuguza for the appellant that on case authority, the trial was a nullity because the transfer of the case to Mr. Awasi, PRM (Extended Jurisdiction) was done after a preliminary hearing had been held in the High Court. The transfer should have been done before that stage in the case was reached. He referred the Court to the decision of this Court in Juma Lyamwiwe v. The Republic, Criminal Appeal No. 42 of 2001. It was also argued that if a transfer under s. 256A (1) of the Act is done 7 / after a plea has been taken and preliminary hearing held, the spirit of section 192 of the Act is defeated. He, therefore, prayed that the ground of appeal be allowed. Mr. Rweyongeza on the other hand submitted that the interpretation which was placed by this Court on the import of f'c section 256A (1) of the Act is not correct because the section says nothing about a "preliminary hearing1" It talks only of taking a plea and the trial of the case. Since the case was transferred to Mr. Awasi, PRM (Extended Jurisdiction) who took a plea and tried the case, there was full compliance with the section. He asked the Court to depart from the Lyamwiwe decision and dismiss the ground of appeal which asked the Court to nullify the proceedings. In )uma Lyamwiwe, a murder case, plea taking and a preliminary hearing under section 192 of the Act were before a judge of the High Court. Subsequently, the case was transferred to a Principal Resident Magistrate with Extended Jurisdiction, Mrs. A. N. Lyamuya. She took a plea of the accused and proceeded to try the 71' If I .13 case. She convicted the accused of murder and sentenced her to suffer death by hanging. The accused in that case appealed to this Court. At the hearing of the appeal, one of the grounds of appeal was as follows:- "That as the preliminary hearing was conducted by the High Court, then the order of transfer to the Resident Magistrate (sic) Court was illegal." It was argued that the transfer should have been made before, not after a preliminary hearing is conducted. Since the transfer was made after the preliminary hearing, the subsequent trial of the case was a nullity. This Court obliged and said - we do not think that it was ever intended that the High Court would conduct a preliminary hearing and then transfer the case to a Resident Magistrate with Extended Jurisdiction. In our view, to transfer a case after a preliminary hearing would not be - - 9 keeping in line with the intention and spirit of section 192 (1). In similar vein, the transfer envisaged under s. 256A (1) can only be done before a preliminary hearing is conducted." The Court nu!lified the trial before Lyamuya, PRM (Extended Jurisdiction) and directed the High Court to proceed with the trial from the stage the case had reached after conducting the preliminary hearing. We think that in dealing with this ground of appeal it will be convenient to start by quoting the words in section 256A (1) of the Act. They read:- "256A - (1) The High Court may direct that the taking of a plea and the trial of an accused person committed for trial by the High Court, be transferred to, and be conducted by a resident magistrate upon whom extended jurisdiction has been granted under subsection (1) of section 173." Section 173 (1) itself reads:- . io "173 (1) The Minister may after consultation with the Chief Justice and the Attorney General, by order published in the Gazette - invest any resident magistrate with power to try any category of offences which, but for the provisions of this section, would ordinarily be tried by the High Court and may specify the area within which he may exercise such extended powers; or invest any such magistrate with power to try any specified case or cases of such offences and such magistrate shall, by virtue of the order, have the power, in respect of the offences specified on the order to impose any sentence which could lawfully be imposed by the High Court." We also find it instructive to quote the provisions of section 192 (1) of the Act. It goes as follows:- "192 - (1) Notwithstanding the provisions of section 229, if an accused person pleads not (1 1 / . guilty the court shall as soon as it is convenient, hold a preliminary hearing in open 11 court in the presence of the accused or his advocate (if he is represented by an advocate) and the public prosecutor to consider such matters as are not in dispute between the parties and which w,ill promote a fair and expeditious trial." Section 229 relates to the normal procedure to be followed after an accused has pleaded not guilty. The prosecutor begins to adduce evidence to prove the charge against the accused. We have deliberately quoted all these provisions because they are all aimed to achieve the same purpose, that is to say, speedy and cost-effective criminal justice. They were addressing a recurrent problem in the dispensation of criminal justice in the country. The backlog of cases triable by the High Court had become an almost insurmountable problem because, partly, judges to try them were too few. One way of addressing the perennial problem was to confer extended jurisdiction to resident magistrates so that they could hear 1 12 High Court cases and, thereby, cut down the backlog. Thus section 173 of the Act would take care of criminal sessions cases. Section 192 was meant for both the subordinate courts and the High Court. It was realized that, in some cases, witnesses were being called to give evidence on matters which were not being disputed by the accused persons. Not only were those witnesses being unnecessarily inconvenienced, and trials thereby prolonged, scarce financial resources were used to pay such witnesses, when that could have been avoided. Section 256A of the Act is meant to enable the High Court to take advantage of section 173. It empowers the High Court to offload as it were some of its criminal sessions cases onto resident magistrates who have been conferred with extended jurisdiction under section 173. We have read sections 192 and 256A (1) very carefully and we must say, with all respect for our decision in Juma Lyamwiwe, we can see nothing in them that suggests that the High Court has to transfer its own cases for plea and trial before a preliminary hearing IT T .11 13 is held. We are of the considered opinion that since section 256A merely empowers or permits the High Court to transfer its cases to a resident magistrate with extended jurisdiction for plea taking and trial, what is important is that it does so before itself begins to try it. Which in effect means that the transfer can be ordered either before the High Court itself takes the plea and conducts a preliminary hearing, or after it has itself taken the plea and conducted a preliminary hearing but before the trial commences. It was suggested in Lyamwiwe that a preliminary hearing is already part of the trial of a case. We are unable to read that meaning into section 192. The ordinary meaning of the word "preliminary" as can be gathered from the Oxford Advanced Learner's Dictionary (which is the only dictionary which is handy here at the High Court, Tabora) is:- "happening before a more important action." Thus, the preliminary hearing under section 192 of the Act is merely preparatory before the actual trial begins. While the holding of a preliminary hearing is important for the reasons we explained earlier, 14 its mere omission does not ipso facto vitiate a trial. If, however, it can be shown that the omission did in fact prejudice an accused person, then the trial could be vitiated. This is what in substance the High Court held in Pagi Msemakweli v. Republic, Criminal Appeal No. 134 of 1996. A very respected judge then of the High Court, late El Justice Lugakingira, discussed the import of section 192 thus - "It is equally true that the trial court did not conduct a preliminary hearing as required by s. 192 of the Criminal Procedure Act, 1985. Subsection (1) of s. 192 is couched in mandatory terms and the provision applies equally to accused persons who are represented by advocates as to those who are not so represented. The question now is whether that omission was fatal to the proceeding. I do not think so." He then explained that the purpose of a preliminary hearing is to identify matters which are not in dispute so as to cut down on the number of witnesses to be called and to promote a fair and expeditious trial. He continued:- •'. 15 "Unless, therefore, the omission to conduct a preliminary hearing has resulted in an unfair trial leading to a failure of justice, it cannot be held to be fatal to a proceeding." That, in our view, was a correct understanding of the law, and we uphold it. In our present case, there was no suggestion that the omission by Mr. Awasi, PRM (Extended Jurisdiction) to conduct a preliminary hearing in any way prejudiced the appellant. It follows, therefore, that we not only, regrettably, have to depart from Lyamwiwe and any other such decisions of this Court, we hold that the proceedings before Mr. Awasi, PRM (Extended Jurisdiction) were not a nullity for the reason advanced by Mr. Kabuguzi. We uphold Mr. Rweyongeza but for different reasons which we have attempted to give, and dismiss the ground in the appellant's first memorandum of appeal. We now wish to consider together the two grounds of appeal in the appellant's supplementary memorandum of appeal. Essentially, the argument is that the available evidence did not establish the offence of murder but established the lesser offence of manslaughter 16 It will be recalled that the appellant does not deny causing the death of his wife, Paulina. It is also true that the only evidence we have as to how deceased met her death is that as given by the appellant. The rest is circumstantial. The appellant told the trial court that not only did the deceased (' I avoid to give an answer for discriminating his children with his first wife by persistently not giving them food, she also uttered words to him implying he was impotent. It was then he hit her on the head with the iron rod he was carrying as they went to the shamba. She dropped down and died on the spot. He was surprised that she was no longer talking, and said he did not mean to kill her. / Mr. Rweyongeza as well as the trial court thought that the story about the deceased calling him impotent was an afterthought because he did not say so when he was before the Justice of the Peace. That is one inference but not an irresistible one. It can also be said, one, that out of sheer panic the appellant merely forgot to tell the Justice of the Peace about being called impotent by the deceased. Two, considering that at the prompting of the deceased the appellant agreed to go to the shamba together with her and they were, apparently, conversing normally until the issue regarding the refusal by the deceased to give food to appellant's other children cropped up, it is reasonable to infer that something was said by the deceased which made the appellant to act impulsively and hit her as he did. What we are saying is that in the absence of some concrete evidence to the contrary, it is risky to draw the inference exclusively that there was no provocation as claimed by the appellant. That inference is not compelRng and we should give the appellant the benefit of doubt and find that he was indeed stung by being IV considered impotent by his wife when, ostensibly, he had several children with his first wife and five children with the deceased, although three were dead. For the above reason, we allow the appeal by quashing the conviction for murder and substitute thereof a conviction for manslaughter, contrary to section 195 of the Penal Code. As for the sentence, we have taken into account that todate the appellant has 18 been in custody for nearly ten and a half years. We, therefore, (4 sentence him to seven years imprisonment from the date he was convicted by the Principal Resident Magistrate with Extended Jurisdiction, that is to say, 30th September, 2005. It is so ordered. GIVEN AT TABORA this 30th day of September, 2008. A. S. L. RAMADHANI CHIEF JUSTICE J. A. MROSO JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. ...--- ;•. y. t( O c'• ;i.v: \\ .,.1 (P. B. L A DY) ~ 01 •7 JI ' T-"