melkizedeki mkuta vs republic 2010 tzca 47 6 may 2010

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MSOFFE, J.A., MBAROUK. 3.A. And BWANA, J J U CRIMINAL APPEAL NO. 17 OF 2006 MELKIZEDEKI M K U TA .............................................................APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Conviction and Sentence of the High Court of Tanzania at Bukoba) (Luanda, 3.) dated the 15th day of November, 2005 in Criminal Sessions Case No. 74 of 2002 JUDGMENT OF THE COURT 4 & 7 May, 2010 MSOFFE. J.A.: The appellant was sentenced to death by the High Court (Luanda, J. as he then was) consequent upon his conviction of the murder of Yakubu Swalehe on or about the 12th day of August 1999 at Nkwenda village within the District of Karagwe in Kagera Region. He is dissatisfied, hence this appeal. He is advocated for by Mr. Constantine Mutalemwa, learned counsel, while the respondent Republic had the services of Mr. Steven Makwega, learned State Attorney. Mr. Mutalemwa filed a memorandum of appeal with twelve grounds of complaint. Some of the grounds are in the alternative to the others. In view of the position we have taken on the appeal we will not do two things. One, we will not address all the grounds. Instead, we will discuss only two grounds. Two, we will not state the facts of the case that led to the conviction and the sentence. The 12th ground of appeal reads as follows:- 12. That the tria l court erred in law in convicting w ithout affording a fa ir trial/hearing to the appellant on account that the court d id not s it with assessors a t the com m encem ent o f the trial. In elaboration on the above ground, Mr. Mutalemwa was of the view that under Section 265 of the Criminal Procedure Act (CAP 20 R.E. 2002), hereinafter the Act, all trials before the High Court are conducted with the aid of assessors. So, since a preliminary hearing is a trial, the preliminary hearing in this case ought to have been conducted with the aid of assessors, he stressed. He referred us to the preliminary hearing on pages 3-6 of the record in which it is clear 2 that the trial judge (Mchome, J.) did not sit with assessors. In this regard, he went on to say, since trials before the High Court are with the aid of assessors in conducting the preliminary hearing under Section 192 of the Act, the trial judge ought to have sat with assessors. However, Mr. Mutalemwa did not cite any authority in support of the above proposition. In his brief response, Mr. Makwega was of the view that a preliminary hearing is part of the trial which commences before the main trial. There is nothing under Section 192 that provides for assessors in a preliminary hearing. The essence of Section 192 is merely to speed up trials. So, even if a preliminary hearing is not conducted that does not vitiate the proceedings in the main trial, he asserted. The above point need not detain us. It is common ground that there is nothing under Section 192 to the effect that a preliminary hearing before the High Court should be with the aid of assessors. In fact, even under the Accelerated Trial and Disposal of Cases Rules (GN 192 of 1988) made under sub-section 6 thereto there is 3 nothing to that effect. The Act came into effect on 1st November 1985 by virtue of GN No. 375 of 1985. Prior to the enactment of the Act there was no provision for a preliminary hearing in our laws. This is borne out by the fact that prior to its enactment in 1985 the repealed Criminal Procedure Code (CAP 20 Volume 1 of the Laws) did not have such a provision. Following the enactment of the Act, Section 192 was introduced thereto. It is also significant to mention here that Section 265 of the Act is in p a ri m ateria with Section 248 of the repealed Code that all trials before the High Court should be with the aid of assessors. So, at the time of enacting the Act if the legislature had intended that a preliminary hearing should be with the aid of assessors it could have easily enacted so. Since it did not do so, there is no basis for saying that a preliminary hearing before the High Court should be with the aid of assessors. Perhaps, the legislature, in its wisdom, did not do so for one main reason. The idea behind Section 192 is to accelerate trials and minimize costs. Introducing assessors in a preliminary hearing might necessitate extra costs. In fact, we wish to observe here in passing that inspite of the provisions of Section 265 of the Act requiring that all trials before the High Court be conducted with the aid of assessors, in practice that is not always the case. Not in all trials is the aid of assessors necessary. For instance, a trial within a trial is conducted without the aid of assessors. Therefore, there is nothing unusual in conducting a preliminary hearing without the aid of assessors. The complaint in the 11th ground of appeal has a bearing on the proceedings of the High Court dated 14/11/2005 thus:- "M r. N d iik e : M y Lord, we dose our case. M r. K a b u n a a : M y Lord, I don't want to subm it. R U LIN G The accused has a case to answer. B. M. Luanda JU D G E 14/11/2005 M r. K a b u n a a : M y Lord, we pray fo r a sh ort adjournm ent fo r defence. One hour could do. B. M. Luanda JU D G E 14/11/2005 CT: Granted. O rd er: Defence 12.00 noon. B. M. Luanda JU D G E 14/11/2005" It is evident from the above record of proceedings that the appellant was not informed of his right under Section 293 (2) of the Act. The sub-section reads:- "(2) When the evidence o f the w itnesses fo r the prosecution has been concluded and the statem ent; if any, o f the accused person before the com m itting court has been given in evidence, the court, if it considers that there is evidence th at the accused person com m itted the offence o r any other offence o f which, under the provisions o f section 300 to 309 he is lia b le to be convicted, s h a ll in fo rm th e a ccu se d p e rso n o f h is rig h t - (a) to give evidence on his own behalf; and (b) to c a ll w itnesses in his defence, and sh a ll then ask the accused person o r h is advocate if it is intended to exercise any o f those rights and record the answ er; and thereafter the court sh a ll c a ll on the accused person to enter on h is defence save where he does not wish to exercise either o f those rights . " (Emphasis supplied.) 6 Mr. Mutalemwa and Mr. Makwega are at one that the above sub­ section is couched in imperative terms and that the trial judge ought to have informed the appellant of his right provided for under the sub­ section. With respect, we agree with them. As submitted by both learned counsel, the above sub-section is couched in mandatory terms. That is by virtue of the use of the word "shall" in the sub-section. This means that it was mandatory to perform the function stated in the sub-section. In this spirit, Section 53 (2) of the Interpretation of Laws Act (CAP 1 R.E. 2002) is relevant. Sub-section (2) thereto reads:- (2) W here in a w ritten law the w ord " s h a ll" is used in conferring a function, such w ord s h a ll be interpreted to mean that the function so conferred m u st be perform ed. (Emphasis supplied.) We may add here that the Interpretation of Laws Act came into effect on 1/9/2004 vide GN 312 of 2004 which was published on 1/9/2004. So, at the time of the trial of this case this Act was in 7 operation. Therefore, the High Court ought to have informed the appellant of his right under the sub-section. The failure to do so led to one major effect, that is, there was no fair trial. At this juncture, we think it is pertinent to mention one other point in passing. In the course of arguing the 11th ground Mr. Mutalemwa persistently referred us to Articles of our Constitution relating to the right of a fair hearing. With respect, it was not necessary to do so. In saying so, we wish to subscribeto, and associate ourselves with approval, with the view expressed by Lugakingira, J. (as he then was) in Shabani Msengesi v National Milling Corporation, High Court (MZA), Civil Appeal No. 44/94 (unreported), citing the Zimbabwe case of Ministry of Home Affairs v Rickie and Others, (1985) LRC (Const) 755, that:- I t is a__cardlnal principle o f constitu tion al law th at where an issue can be resolved w ithout recourse to the constitution, the constitution should not be involved. As we demonstrated above, the point at stake here could safely be decided without necessarily invoking the Constitution. the circumstances? On this, Mr. Mutalemwa was, with the greatest respect, not consistent. At one stage he said that we should nullify the proceedings subsequent to those of 14/11/2005 and order the High Court to proceed therefrom. At some later stage he appeared to be saying that we should not do so because if we do so, the prosecution might fill in gaps in their case during the cross-examination of the appellant. Again, with respect, we fail to see the rationale or logic behind the latter suggestion. In our considered opinion, we will go along with the suggestion put forward by Mr. Makwega that the safest thing to do in the circumstances will be to nullify the proceedings that followed the closure of the prosecution case. Accordingly, in exercise of our revisional jurisdiction under Section 4 (2) of the Appellate Jurisdiction Act, 1979, as amended by Act No. 17 of 1993, we hereby quash and set aside the proceedings which followed the closure of the prosecution case on 14/11/2005. The High Court is directed to reconstitute itself and proceed from where it ended on 9 14/11/2005 when Mr. Ndjike informed the Court that the prosecution side was closing its case. DATED at MWANZA this 6th day of May, 2010. J. H. MSOFFE JUSTICE OF APPEAL M. S. MBAROUK JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. (j. s . m g eto T ^ DEPUTY REGISTRAR 10