20131213 TZHC Mwanza

TD IN THE COURT OF APPEAL OF TANZANIA ATMWANZA {CORAM: RUTAKANCiWA, J.A., KAIJAGE, J.A., And MUSSA, J.A.) ' f ; CRIMINAL APPEAL NO. 34 OF 2011 KAIZA' FRANCE ........................................... •• •••••• ••• APPEL~NT VERSUS TH·E REPUBLIC ...........................·........ .... ..... ... RESPONDENT (Appeal from the decision of the High Court of.Tanzania atBukoba) (Kibella, J.) dated the 13thday of July, 2011 in · H/C. Criminal Appeal NOs.81 & 82 of 2008 •••••••••• JUDGMENT OF THE COURT 11 th & 13th December, 2013 KAIJAGE, J.A.: ..... - The . appellant and another person were charged with, tried and convicted of armed robbery contrary to section 287A of the Penal Code as amended by Act No. 4 of 2004. Each was sentenced to serve a term of thirty(30) years imprisonment by the District Court of Bukoba. The appellant lost his appeal in the High Court (KibeHa, J.), hence the present appeal. Apparently, the prosecution of the appellant was predicated upon an allegation that, during the .. night of 19/8/2008 at about 22.00hrs, ·at Ibwera village within Bukoba District, in concert with his co-accused, they forcibly dispossessed Peter Clavery (PWl) and his wife, Doris Clavery (PW2), of Tsh . . 200,000/=, in cash, by inflicting multiple cut wounds on the body of PWl prior to such stealing: 1 ~ .\ . "A· . Jefore us, the appella~rcame up with a me~lranaum of-appeal-listi:A9~-··~~ \,- numerous points of grievances from which we have culled the following substantive ones:- ' j' . ; (I) That the learned trial magistrate erred in ·1aw by admitting in evidence and relying on a repudiated cautioned statement . without conducting a trial within a trial. . (Ii) ·That both courts below erred in finding that PW1 and PW2 are cred{ple witnesses. t (iii) That both courts below erred in holding that the case against the appellant was proved beyond reasonable doubt At the hearipg, the appellant appeared in person, unrepresented. The respondent Republic had the services of Mr. CastusNdamugoba, learned State Attorney;11 who did not resist the appeal. When the appeal was called on for hearing, the appellant chose to adopt the grounds listed in his memorandum of appeal, without more. The learned State Attorney, on the other hand, rose to address on the patent fundamental procedural irregularities besetting the proceedings conducted before the trial . c9_urt:~ .. _He pointed out that the sworn testimonies of PW1 and PW2 were recorded in violation of the mand~to~ .provisions of section 210 (1) of the Criminal Procedure Act, Cap 20 R.E 2002 (the CPA) which provides:- "S.210 (1) In trials, other than trials under section 123, . by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner:- {a} {not relevant} 2 . f (b} "llle .¢v!dence shall not ordinatil) be taken · down In the form of questions and answers but subject to subsection (2), in the form of . 1 J a narrative. " ' Elaborating on the foregoing, the learned State attorney submitted that . in the qlscharge of the mandatory obligation under the law, the learned trial magistrate, in this case, adopted a 'reporting' mode of taking and recording the evidence of PWl and PW2. He was emphatic in asserting that the reporting mode of taking and recording evidence from witnesses, in the course of trial, was never contemplated under S. 210 (1) (b) of the CPA. On this, he contended that the statements recorded in a reporting mode by the learned trial magistrate from PWl and PW2 are not evidence, and should be expunged from the record. Going by the record, it is clear th~t only three witnesses testified for the prosecution side. Submitting on the outstanding evidence of PW3; No. F. 2151 D/Cpl.: Majani, the learned State Attorney· argued, with force, that once .~~ the evidence of PWl and PW2 is expunged, what is left on the record is the evidence pertaining to the repudiated cautioned statement (Exh. Pl), earlier obtained from the appellant, recorded and adduced ·into evidence by PW3. Exh.Pl was admitted in evidence despite objections from the appellant. He maintained that an admission into evidence of Exh.Pl without holding a trial within a trial, leads to that improperly admitted confessional statement being expunged from the record. He implored us to expungeExh. Pl from the record. On· our part, we are, with respect, in full agreement with the learned state Attorney. We accept that magistrates before whom trials are conducted are enjoined, under section 210 (1) (b) of the CPA, to take and record evidence of the intended witnesses in the form ofa narrative. In this case, a narrative form envisage .under the CPA,should not have taken a form of a reported speech by the trial magistate. For an easy appreciation of what 3 actually t~atspired on 10/6/2009, we shall take the -1tert{ to reproduce, 1' hereunder, a sample o_f proceedings depicting the manner in which the purported evidence of PWl and PW2 was taken and recorded by the trial magis~rc\te, Part of the proceedings appearing at pages 15 - 16 of the record I I read:- · · ''PW1, Peter ClavefYt Adult, Male, Tanzania, Christian, sworn and states as fol/ows:- XD - PWl reside at Jbwera together with his wife. PWl identified properly the accused persons. PWl explain on 19/8/2008 at about 22:00 hours PW1 was at his dwelling house sleeping. PWJ was shocked since it was four days concurrently some _things was stolen at his dwelling house........ . Sgd;RM 10/6/2009 PW2, Doris Clevery, Adult, female, Christian, sworn and states as follows:- XD - PW2 reside at lbwera with her husband PWJ. PW2 i$ _?ware o_f the accused person~. P~2 explained that the accused person came on 19/8/2008 about 22:00 hours. PW2 was inside her dwelling house......... . Sgd;RM 10/6/2009. II From the above extract, we are satisfied that the manner in which the purported evidence of PWl and PW2 was recorded is violative of the 4 !) "Jandatory provisions J~der section 210 (1) (b)t(the C:PA. The C:onbise Law Dictionary, Reprint edition, 2005, defines the word 'evidence' thus:- "means all statements which the court permits or requires to '.'be made before It by witnesses. The statement of witnesses Include statements made by them in cross - examination and · re-examination. 11 In this case, what was recorded by the trial magistrate, as shown above, are not verbatim statements or evidence adduced by PWl and PW2. We are satisfied that what was recorded are reported statements of the tdal magistrate, wh_ich are not evidence. We indeed _~gree with the learned State Attorney that such statements recorded otherwise than in a manner stipulated under section 210 (1) (b) of the CPA should be expunged from the record, as - we hereby do. We ~re, similarly, in agreement with the learned State Attorney, that "'Ii once the purported evidence of PWl and PW2 is expunged, what "remains on record is a repudiated confessional statement (Exh.Pl) which was improperly admitted in evidence. To the extent that Exh.Pl was objected to on account that the same was not made by the appellant, it was incumbent upon the trial , magistrate to hold a trial within a trial, which he did not. (See, for instance, TWAHA ALI AND 5 OTHERS V. R., Criminal Appeal No. 78 of 2004, SELEMAN ABDALLAH & TWO OTHERS V.R., Criminal Appeal No. 384 of 2008, MAKUMBI RAMADHANI MAKUMBI V.R.,Criminal Appeal No. 199 of · 20101 (all unreported). Failure by the trial court to conduct a trial within a1trial is, in our settled · view, a fundamental and incurable procedural irregularity which inevitably leads to the confessional statement (Exh. Pl) being expunged from the record, as we also hereby do. 5 · Havillg expunged the entire l1dence on record, w! are left with nothing · 1 upon which to sustain the appellant's conviction. Accordingly, we allow the appeal. The conviction entered and the sentence imposed against the appellan} -are, respectively, quashed and set aside. The appellant is to be . I released from prison forthwith unless otherwise lawfully held. It is so ordered. DATE~ at MWANZA this 13th day of December, 2013. E.M.K. RUTAKANGWA JUSTICE OF APPEAL S.S. KAIJAGE · JUSTICE OF APPEAL K. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original -~a SENIOR DEPUTY REGISTRAR COURT OF APPEAL 6