20120622 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: RUTAKANGWA,J.A., KIMARO, J.A., And MANDIA ,J.A.) CRIMINAL APPEAL NO. 3 OF 2011 SALIMU HUSSEIN .........................................................APPELLANT VERSUS THE REPUBLIC ........................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tanga) (Teemba, J.) Dated the24th dayofSeptember,2010 .s=· -Zt4-~J3\2.(,:; in Criminal Appeal No. 35 of 2009 JUDGMENT OF THE COURT 20th & 25th June, 2012 ., RUTAKANGWA, J.A.: Amiri Ally, who testified as PW1 at the trial of the appellant in the District Court of Lushoto District, resides at Kwemihafa Luponde. As of 19th August, 2001, he owned a kiosk at the village wherein he sold an assortment of foodstuffs. 1 On the said 19th day of August, bandits broke into the kiosk at around 03.00 hrs. He was awakened by the noises and on getting up he lit a wick lamp, whose light enabled him to see five bandits. He raised an alarm. He was stabbed on the chest with a sword. People who responded to his alarms managed to apprehend two of the bandits, one of whom was found carrying a weighing scale. The two were sent to the village office. One of those arrested was the appellant. At the village office, the appellant and his colleague who was the 2nd accused in the trial court, were searched by sungusungu (the local vigilantes) and he was found with cash Tshs. 5000/= and a piece of bhang {sativa cannabis}. The two were taken to Soni police post and on 21/8/2001, they were formally charged in the trial court with the offence of armed robbery. The appellant and his colleague denied the charge. Three witnesses testified for the prosecution. The other two witnesses were PW2 Athumani Shekiha and PW3 Rashid Alimasi. These did bear out PW1 Amiri on his claim that the appellant and his co-accused were arrested in the vicinity of the broken into kiosk although they differed on the basics of where they 2 were actually found and what each one was possessing. It was PW1 Amiri, however, who on 4th March, 2002 tendered in evidence the weighing scale· and a knife (not a sword) allegedly used to stab him. In his affirmed evidence the appellant told the trial court that he had gone to Kwemihafa on 16/8/2001 to buy cardamom. After getting the cardamom, he joined a group of people who were having a drink at a local pombe shop. On the material day, he was arrested by PW1 Amiri and others on the pretext that he was not carrying the development levy receipt with him. He was locked up in the village office and his luggage of cardamom confiscated. Later, he was joined by his co-accused. The two were beaten by the militiamen before being taken to Soni Police Post and subsequently charged with robbery. He claimed that the charge of armed robbery was a frame up. The second accused also denied committing the robbery. The entire trial was conducted by one M.M. Semboja, Honorary Magistrate. Although the second accused had indicated his desire to call one Ben of Vuga Kwemihafa as his witness, the learned trial Magistrate unilaterally concluded the trial of the case on 14/5/2002 without affording 3 this accused opportunity to call his witness. Judgment was reserved to be delivered on 27/5/2002. It was never delivered as scheduled. Indeed, contrary to the mandatory provisions of section 312 (1) of the Criminal Procedure Act, Cap. 20, R.E 2002(the Act), the judgment which was ultimately delivered was never written by the trial magistrate. Instead, the judgment was written and delivered by one Mr. J.O. Charaza, District Magistrate, on 20th August, 2002. In his judgment the second Magistrate, simply reproduced the entire evidence of each witness in the case. Thereafter, he concluded thus:- ''In this case all accused claimed where businessmen from Mombo, DW1 claimed was after hiriki Z1d accused said was buying timber. But 1st accused never called any witness to confirm that he said to send (sic) his hiriki and where he buys. The same thing DW2 failed to point where he used to sell his timber and call witness to prove that allegation. 4 In my opinion, I find that the accused committed offence. Therefore, they are convicted c/s 235 (1) of CPA of 1985 for the charge before them (sic). " The 2nd accused was not present at the time the judgment was delivered. All the same, the two were sentenced to thirty years imprisonment. The appellant's appeal to the High Court was dismissed because he was caught red-handed in the vicinity of the kiosk and found in possession of some of the robbed goods. In the discursive memorandum of appeal in this Court the appellant is complaining that he was not fairly treated by two courts below, as they failed to objectively analyse the evidence. Had they done so, he is arguing, they would have easily found out that the entire accusation was a frame up. 5 The appellant appeared before us in person to prosecute the appeal. He chose to adopt his argumentative grounds of appeal and had nothing to say in elaboration thereof. The respondent Republic was represented by Mr. Joseph Pande, . learned Senior State Attorney and Mr. Saraji Iboru, learned State Attorney. Initially, Mr. Pande was disposed to support the conviction of the appellant. However, he had to change his position during the course of the hearing, when it became too apparent that the appellant might have been fatally prejudiced by the change of Magistrates after the conclusion of the hearing. He accordingly urged us to quash the so-called judgment of the trial court and remit the record to it for the trial magistrate himself to compose the judgment and deliver it according to the dictates of the governing law. In the alternative, he proposed that if the trial magistrate has ceased to have jurisdiction, then the case be heard afresh. The appellant had no objection to Mr. Pande's prayers. We have carefully considered Mr. Pande's submission. We have found it to be very expedient and fair to both sides in the peculiar 6 circumstances of this case. In so holding, we are totally alive to the provisions of section 214 (1) of the Act, read together with section 312 (1) of the Act. Section 214 (1) of the Act partly reads:- " Where any magistrate, after having heard and recorded the whole or part of the evidence in any trial ... is for any reason unable to complete the trial .. or he is unable to complete the trial ... within a reasonable time, another magistrate who has and who exercises Jurisdiction may take over and continue the trial ... and the magistrate so taking over may act on the evidence... recorded by his predecessor and may in the case of a trial and if he considers it necessary, resummon the witnesses and recommence the trial ... "(Emphasis is ours). On the other hand, section 312 (1) provides as follows: 7 "Every Judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act be written by or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall contain the points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer as of the date on which it is pronounced in open court. " (Emphasis is ours.) We have no lurking doubts on the implications in law of the permissive language used in section 214 (1) of the Act. But this Court has time without number insisted that the allowed discretion must be exercised judicially in the interests of advancing justice. For instance, in RICHARD KAMUGISHA @ CHARLES SAMSON AND FIVE OTHERS V. R. Criminal Appeal No. 59 of 2002 (unreported) the Court succinctly held that:- 8 i . "We have cited the above cases to illustrate that where a trial is conducted by more than one magistrate, the accused should be informed of his right to have the trial continue or start afresh and also the right to recall witnesses. The word used in section 214 (1) of the Criminal Procedure Act 1985 is 'may' which indicates discretion but in view of the fact that the right to a fair trial is fundamental, the court has an obligation to conduct a fair trial in all respects. We are hesistant to say that where, as is the case here, the third magistrate only heard 3 defence witnesses and did not take the evidence of the five prosecution witnesses, the magistrate adjudicated the case fairly." (Emphasis is ours). The trial was nullified and a re-trial ordered. The rationale for this stance, was thus lucidly stated in the case of Remebisele s/o Edison v. R. (1967) H.C.D. n. 72 9 .. "The discretion given to a magistrate by the Criminal Procedure Code section 196, should be exercised with great care for the primary 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 the charges were grave and the accused persons vigorously contested the allegations of the prosecution witnesses... " (Emphasis is ours). These decisions were followed by the Court in the cases of: (a) Elisamia Onesmo v. R, Criminal Appeal No. 160 of 2003, (b) Shabani s/o Said v. R, Criminal Appeal No. 267 of 2009, etc. (both unreported). We only wish to emphasize here that under this section, the second or subsequent magistrate can assume the jurisdiction to "take over and continue the trial ... and ... act on the evidence recorded by his predecessor" only if the first magistrate "is for any reason unable to complete the trial" at all, or "within a reasonable time." Such reason or reasons must be explicitly shown in trial court's record of proceedings. We have found no such reason, even a veiled one in this case. It goes without saying, therefore, that the second magistrate was not mandated by section 214 (1) of the Act to write a judgment in a case he never tried. In the circumstances, the trial magistrate had to write the judgment personally as mandatorily directed under section 312 (1) of Act. , It is no wonder, therefore, that the said judgment never met the necessary requirements stipulated in the said Act. The appellant and his co-accused were, admittedly, gravely prejudiced by this unilateral action of the latter magistrate, as the dete_rmination of the case rested entirely on the credibility of the witnesses, he never saw. In view of the above findings, we are constrained to hold that the so called judgment of the trial district court on record is not a judgment at law. We accordingly nullify, quash it and set it aside. As a result, we proceed to hold that as there was no judgment of the trial court from which an appeal could be preferred to the High Court, the appeal in the High Court was misconceived in law. We, therefore, nullify the entire 11 proceedings in the High Court and the judgment therefrom, which were predicated upon a non - existing judgment and set them aside. We order that in the interests of justice, since the trial magistrate himself had openly displayed lack of objectivity in the conduct of the trial, as already alluded to, the case be tried afresh. In view of the course of action taken, the appellant's conviction and the sentences imposed on him are hereby quashed and set aside. DATED at TANGA this 22 nd day of June, 2012 E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. E.Y. Mkwizu DEPUTY REGISTRAR COURT OF APPEAL 12