20090121 TZHC Arusha

IN THE HIGH COURT OF TANZANIA ATARUSHA CRIMINAL APPEAL NO. 24 OF 2006 (c/f Kiteto District Court Criminal Appeal No. 13 of 2005, Original Dosit;fosi Primary Court Criminal Case No. 10/2005) DAVID LAZARO ....................................................... APPELLANT VERSUS (THE REPUBLIC .................................................... RESPONDENT Appeal from the decision of Kiteto District Court (J. 0. CHARAZA, SDM) · Dated 26th August, 2005 In Criminal Appeal No. 13 of 2005) JUDGMENT N. P. Z. CHOCHA, J. David Lazaro whom I shall hereinafter refer too as the appellant was charged with robbery with violence c/s 286 of the Penal Code. The trial primary court was satisfied that the offence had been established after it had heard two witnesses including Ndorongei Seneka who is the respondent in this appeal and an independent witness namely, Nataa Lapa. 1 The two witnesses together told the court that the appellant had attacked the respondent using a stick~ head and fists after which he robbed the respondent a bedsheet (lubega) together with cash Tshs. 4,000/= tied thereto. The appellant was after a marathon trial, which lasted for oAly one day to its finality, was sentenced to 15 years imprisonment which he unsuccessfully challenged before the District court. In this second appeal the appellant is trying to challenge some facts which were basically not controverted during the trial. Amongst, he says the charge was not proved because the appellant had not tendered any PF 3. I find this to be an irrelevant ground. PF 3 was uncalled for in as far as the appellant had in the first place admitted to have assaulted the respondent. In another ground, the appellant complains that the ingredients of the offence which he stood charged were not proved. I will respond to this ground as I proceed. The judgment entails the entire body of the judgment that it from its introduction to the verdict. In the event the verdict is conviction, then the · assessors should fully participate in identifying the appropriate sentence and the proceedings must fully reflect. The assessors' participation is authenticated by their signatures, on the body of the judgment. In the trial court's record, perhaps on account of rush, the magistrate did not at all indicate that the judgment is a baby of majority decision. He did not indicate that he ever consulted any of the assessors, as he ought to do, prior to 2 composing the judgment. The trial court's judgment was not signed by other members of the court. The magistrate only invited his assessors to sign after their opinions regarding sentence. The trial court's judgment was incomplete.' ·It was illegal for offending the requirements of Rule 4(1) of The Magistrate's {Primary Courts} Judgment of Court} Rules, 1987which is hereby let to speak for itself: "Where after consultation in accordance with rule 3, the issue is determined by the vote of majority, the magistrate shall proceed to record the decision or judgment of the majority which shall be signed by the assenting members of the court." (Emphasis mine). As I have pointed out, the judgment is rendered illegal for non compliance of the rules' requirements. Indeed, legally, there was n0 judgment. Under normal circumstances, the remedy was to remit the record to the trial court to have the judgment properly endorsed. A lot of factors may impede the implementation of the exercise to the detriment of substantial justice. The factors I am considering, include that this is a 2005 matter, chances of getting coram in the sense of the same panel at the station, are .very flimsy. In the event of failure of coram, the remedy will be a retrial. Secondly, the riature of the fracas between the parties, though it technically constitute a robbery, it had no grave consequences. Thirdly, the appellant has stayed reasonably long in prison more that 1/3 (one third) of his entire sentence. He must have learnt something to reform him .. 3 Although the appeal is essentially demerit, but considering the irregularity and the factors I have shortlisted herein, I order the appellant's release unless he is otherwise lawfully detained. N.P_.z. C . A JUDGE 16/01/2009 Date: 21/01/2009 Coram: N.P.Z. Chocha~ J. Apellant: Present Respondent: l'ilr. Kaishozi - State Attorney (Amicus Criae) · Court: Judgment delivered this 21/01/2009 Order: Further Right of Appeal Explained. N.P.Z. CHOCHA JUDGE 21/01/2009 • I /VM 4