20140519 TZHC Mbeya

• 6-1 tv-h. - IN THE HIGH COURT OF TANZANIA AT MBEYA DC.CRIMINALAPPEAL NO.19 OF 2011 (From. the Original District of Kyela Misc. Cr.Appl.No.99/2009) JOELtV1J/AI(BONGIö. .........................................APPEL.L.Ar4r' VERSUS THE REPLJBLIC...........O......UU...... ................... RESPOISJDEN1 JUDGMENT 17.02.2014 & 19.05.2014 CHOCHA, J. Joel Mwakabonga is the appellant herein. His resisting his conviction against injuring animals c/s 325 and 35 of the Penal Code. The facts of the case are to the effect that on the 16th May 2008 he wounded by stabbing two cows valued at Shs 1.5m/= the property of Spiter Mwampuga. The trial court was satisfied that the appellant had truly committed the offence after believing PW1's testimony whom it was alleged eyewitnessed the stabbing. It convicted and sentenced the appellant to pay Shs 300,0001= as fine or 2 years imprisonment and Shs 150,000/= for damages to PW2 Spinter. The appellant appealed to this court. During the hearing, the appellant raised something interesting. He firstly pleaded "autre fois convict", and secondly that the charge was time barred having been brought eight months after the District Court's order Em C - : which had directed that the case should begin afresh. It interested this court to investigate on the two allegations. The appellant furnished this court with a copy of the judgment; Criminal Appeal 36/2008 from Kyela District Court, originating from Lusungo Primary Court Criminal Case 172/2008. It truly came out of this judgment that the appellant was previously prosecuted at Lusungo Primary Court by PW2. The appellate court in Kyela Criminal Case 36/2008 nullified the trial court proceedings on two grounds. One, that the trial court had denied the appellant audience. It had not heard him. Secondly that the trial court had decided on the merits of the case exparte, instead of ruling on the appellant's prayer who had asked the trial magistrate to disqualify himself. The learned appellate magistrate then made the following orders:- "On those reason the appeal is allowed. The proceedings and judgment of the lower court are held nullity. I order for the trial denovo, before a different magistrate. Sgd T.C. Munzerere RM 05.01.2009 Order: The case to start afresh before the District Court' This order marks the beginning of the present consequence. I have decided to exercise Revisionary powers in terms of s.31 (1) of the Magistrates' Courts Act Cap 11 RE 2002. There are glaring mistakes committed by the first appellate court. The first is related to an order nullifying both proceedings and the judgment of the Lusungo Primary Court Criminal Case No.172/2008. The first appellate court did not say what was wrong with the proceedings. That the appellant was not afforded opportunity to be heard did not render the prosecution's proceedings invalid. Neither could the magistrates refusal to disqualify himself from taking superintendence of the proceedings invalidate his judgment. The Vt appellate magistrate was expecting a ruling following the appellant objecting the trial magistrate from presiding the case. The anticipated ruling did not come out. Instead he saw the judgment. The PCM'S decision to proceed with the case objection notwithstanding, was another way of refusing by the appellant's prayer. There was no need to still look for express reasons. That however would not therefore be a ground to nullify the proceedings. The 1 appeUate District Resident Magistrate partly got it right when he directed the trial to proceed before another magistrate. The aim which was perfectly correct, was to afford the appellant opportunity to be heard. Since the prosecutor/complainant had done his party, and since the appellant was still eager to be heard, and considering the magistrate's uncooperative clinging conduct, an advise to the appellant to apply to set aside the judgment which was obviously exparte cannot work. The second mistake relates to an order for "the case to start afresh before the District Court' Unlike in Civil Cases, in Criminal Cases a retrial is not a very health practice. Where the rehearing is unavoidable, it should comply with the provisions of s.21 (1) (C) of the Magistrates Courts Act thus:- * '7n exercise of its appellate jurisdiction, a district court shall have powers:- (a)_____ (17) (c) to quash any. proceedings (including proceedings which terminated in an acquittal) and, where it is desirable, to order the case to be heard 'de novo" either before the court of the first instance or some other Primary Court, or any District Court, ha ving jurisdiction". (Emphasis added). In these very clear terms, once the District Court properly quashes the primary court's proceedings, and where a retrial is the immediate option, that should be before the court of first instance. Strictly construed, in this matter, an order for retrial was necessarily meant or aimed at the court of the 1st instance, which was primary Court. An order for retrial before the District Court was therefore improper for further additional shortcomings. One, it was not explained why the retrial should not proceed before the court of first instance as a priority in terms of the law. Two, the grounds assigned by the trial court of quashing both the proceedings and judgment of the Lusungo Primary Court particularly with regard to the proceedings, were not sufficient. Actually there was no good ground to quash the same. The Lusungo Primary Court's Criminal Case No.172/2008 proceedings were unlawfully quashed. They are reinstated. The purported retrial before the District Court now constituting Criminal Case 99/2009 which sparked in the present appeal offended the provisions of s.21 (I) (C) of the Magistrates Courts Acts. It was therefore amn illegal. Both the proceedings and judgment in Kyela District Court Criminal Case No.99/2009 are quashed. The flanking orders are set aside. That will leave the present appeal without fulcrum to base. It automatically falls down. What should be the way forward? As earlier intimated, in view of the Lusungo Primary Court magistrate's conduct, an order to set aside the exparte judgment is not advisable. This court's interference is necessary. The judgment in Lusungo Primary Court Case 172/2008, is quashed. That falls together with all subsequent orders. The reinstatement of the proceedings in that case presupposes that Criminal Case No.172/2008 is still pending to the extent that the appellant is entitled to appear before it and either, defend himself, that is begin the case from where the prosecution ended, or, together with the complainant Spaiter Mwampuga, agree for a retrial. For whatever decision, and for avoidance of doubt, the case should proceed at Lusungo Primary Court or transferred to the nearest Primary Court as parties may together opt. Provided that their agreement should be approved by the Kyela DRMi/c. Provided further that, for whatever decision if parties shall have not settled, the case shall proceed before another Primary Court Magistrate of competent jurisdiction. Ordfjçk ly. ______ /f \j NPZChoca , Judge 19.05. 2014 5 c. Date: 19.05.2014 Coram: N.P.Z. Chocha, 3. Appeltant: Present Respondent: Hellen Chuma - State Attorney R/A: Gaudensia Court: Judgment delivered. Order: Right of Appeal Explained. N.P.Z. Ca Judge 19.05.2014