20160530 TZHC Dar es Salaam3

/-~ . .· ..¾_.L. IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY . AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 23 OF 2015 (From Konondoni District Court Criminal Case No. 1/2012) THADEY STAMBULI PANGAHELI @ NURU .................... APPELLANT VERSUS THE REPUBLIC ....................................................... RESPONDENT Date of Last Order: 05/04/2016 Date of Jud_gment: 30/05/2016 JUDGMENT FELESHI, J.: In the District Court of Kinondoni at Kinondoni, the -appellant and KASSIMU JUMA@ KESSY were jointly charged with Conspiracy to commit an offence of armed robbery, contrary to section 384 and 287A of the Penal Code, [CAP. 16 R.E, 2002]. In respect of the 1st count it was alleged that, on unknown date in the month of November, 2011 within Kinondoni District in Dar es Salaam, the accused persons conspired to commit an offence, to wit, armed robbery whereas in respect of the 2nd count it was alleged that, on. 10/11/2011-at Mandela road Tabata within Kinondoni District they stole cash money amounting to Tshs. 11,000,000/- and two mobile phones make Nokia valued at Tshs. 650,000/= the properties of NIDA-fJ:XTILE ;.' '.,, . • . V INDUSTRY and KAMRAN IQBAL respectivelr(and that immediately b~fore . su~h stealing used pistol and bush knife to threaten one KAMRAN IQBAL in order to obtain the said stolen _properties . . Page 1 of 6 The accused persons pleaded not guilty to the charged offence and were tried but later, the 2nd accused was discharged under section 98(a) of the Criminal Procedure Act, [CAP. 20 R.E, 2002] whereas the appellant was convicted and sentenced to thirty (30) years imprisonment. Aggrieved, the appellant has preferred a ten grounds- based appeal which he personally fended it before this Court. Basically, the appellant's appeal is centered on what he points to be contradictions in the prosecution evidence, insufficient evidence, failure by - trial- court - - - ---- to consider - -- - - his -- defence, -- - -- and- his being - - -- not accorded - -- --· opportunity --- -- -· __ _ - - -· - to have PW1, PW2, PW3 and PW4 recalled. Hearing of the appeal was conducted orally where the Respondent/Republic was represented by Ms. Mkunde Mshanga, learned State Attorney. Addressing the grounds of appeal, the appellant generally submitted that, PW1's evidence was not cogent ~nough to prove his identification at the scene of crime to earn conviction. Besides, he argued, PW3 who asserted to have known the appellant before did not accord supportive evidence adding that, PW1-PW4 who testified that the bandits had ' ) threatened them with machetes and pistol did not substantiate if true that the appellant was handed over by NIDA International Officials to Buguruni Police Officers as no Police Officer from Buguruni was paraded in Court to testify to that effect. He said, the case was fabricated against him just as it happened to the 2nd accused who was later discovered to have been in prison for another case and was thus discharged. Moreover, the good Samaritans Page 2 of 6 who assisted PW2 & PW3 were not paraded in Court. Likewise, he argued, there was no independent evidence because the testimonies by PW1, PW2, PW3 and PW4 looks like family evidence. On her part, supporting the appeal, Ms. Mshanga submitted that the , identification was not proved beyond reasonable doubt adding that, the prosecution evidence encompasses material inconsistencies on material facts such as the weapons used considering that the incident occurred during day time. Moreover, no evidence was tendered proving that the money tendered in Court was the proceeds of the charged offence in terms of section 38(3) of the Criminal Procedure Act (supra). She rather conceded that there was an existence of conflict of interest. On the other hand, Ms. Mshanga submitted that there was no evidence that the appellant had another Preliminary Inquiry No. 19 of 2011 before Kangwa, RM. In its generality, she urged the appeal to be allowed in the interest of justice. Having considered the respective submissions by the appellant in person and the learned State Attorney in hand with the Court record, the following are the deliberations of this Court in disposal. As correctly raised in the grounds of appeal and conceded to by the learned State Attorney, the testimonies by PW1, PW2, PW3 and PW4 were recorded by Kasailo, RM who on 07/05/2014 gave the following account: "RM i/c: - I have an interest with this case as the accused person is my close relative. I pray this case to be assigned to another Magistrate for the interest of justice . ......... ". Page 3 of 6 Astonishingly, this concern regarding Kasailo, RM to be a close relative to the accused was raised after the said trial Magistrate had been presiding over the matter from 02/01/2012 to the date of his recusal on 07/05/2014. That attracts a lot to be desired because it was not stated as to when the trral Magistrate became aware that the accused was his close relative. At this juncture, it is suffice to say that, what Hon. Kasailo, RM finally disclosed was such a crucial position that would not have ordinarily skipped a keen attention of the successor magistrate. The record shows that, the matter was reassigned to Mtarania, RM __ ----- -- -----· -·- - .... who proceeded by recording the defence _case _ ..without affording the appellant with opportunity to ·indicate whether he preferred the successor Magistrate to proceed from where the predecessor Magistrate ended without recalling PW1, PW2, PW3 and PW4 or not. This obviously contravened section 214(1) of the Criminal Procedure Act (supra) which provides:- "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, re-summon the witnesses and recommence the trial ... ". [Emphasis added] There is no speck of doubt in my mind that, what the successor magistrate did was an apparent irregularity. The decision of the Court of Appeal in the case of Richard Kamugisha @ Charles Simon and 5 others v. Rep., Cr.Appeal No. 59 of 2004, Mwanza Registry (unreported) Page 4 of 6 -· which was quoted with approval in Elisamia Onesmo v Rep., Cr.Appeal No.160 of 2005, Arusha Registry-unreported provided that proceedings conducted in total violation of section 214(1) of the CPA constitutes a fatal irregularity (see also: Godwin Raphael Mushi v. Rep. HC Cr.Appeal No. 33 of 2014 and Kassim S/0 Said Ngalambe @ Kessy and Muhsin S/0 Ismail Manzi, HC Cr.Appeal No. 162 of 2014-both from Dar es Salaam Registry-unreported). Now, what is the fate of such irregularity? In Richard Kamugisha @ Charles Samson & 5 Others vs. - RepubUc· {supra) the- -Court -of Appeal of Tanzania _nu_llified the proceedings and Judgment of the trial Court where the it concisely held:- "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 hesitant 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 supplied] The underlying principle in law for a successor trial Magistrate to have opportunity to hear the witnesses was thus lucidly stated in the case of Remebisele s/o Edison v. R. (1967) H.C.D. No. 72 that:- "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 added] Page 5 of 6 Therefore, in a nutshell, though the law extends di-scretionary powers to the successor trial Magistrate, the circumstances of the case were so demanding for PW1, PW2, PW3 and PW4 who had already testified in Court to have been recalled importantly considering that the already recorded pieces of evidence were recorded by a person who was a close relative to the accused thus not impartial. That was indeed against principles of natural justice as well as the interest of justice and is capable of vitiating the trial proceedings, Judgment and its consequential orders. Consequently, the proceedings, Judgment and Orders of the trial Court are hereby nullified for being a nullity. That being the case, there is no need to address the remaining grounds of appeal to avoid prejudicing the rights and interests of the parties in the matter under scrutiny. I thus proceed to ~rder for _the matter to be tried afresh before another Magistrate with competent Jurisdiction to try the matter. It is so ordered. Judgment delivered in the presence of Miss Lilian Rwet bur , learned State Attorney for the Republic, Respondent, the Appellant being present in 6 Page 6 of 6 2 - . --<~- - - - - --·- ---:: - - - - IN THifHIGH COURT OF TANZANIA-------- AT DAR ES.SALAAM CRIMINAL APPEAL NO. 195 OF 2015 _{_Qrjg[f]_aflr1g /!_Qm M_oJpggr_o Djstr~t c__oyrt Ct:_if!ll!}gl_ C:ase. N9. 87/2_Q12J _ VENANCE MBUA VERSUS REPUBLIC Date of last Order 27/5/2016 Date of Judgment 23/8/2016 JUDGMENT Kitusi, J. The facts from which this appeal anses are as dramatic as they are hair raising, in nature. On 25/4/2013 Merciana Venan.ce PWl was examined by Ntoli Lufingo Mwakibete (PW6) a Medical Officer Grade Two, upon receiving complaints that suspected the girl who was only eight (8) years at that time, to have been ravished. Mr. Mwakibete's finding included the fact that the girl's hymen had been perforated and she had a swelling and bruises in her 1 I I vagina aH of which suggested that-at- ollint-crbject-had-penetrated- _________ _ her said vagina. Merciana Venance is one of the children who were living with Venance Mbua, the appe1lant. The latter is the biological father of Merciana Venance and Faustine Venance and was living with his children at Mkundi area within Morogoro District. The mother of Merciana Venance and Faustine Venance, also a mino:r, was living in Singida Region, therefore Venance Mbua was a single parent so to say. It was suspected that Venance Mbua was the one who had carnal knowledge of Merciana Venance, his own daughter admittedly, therefore he was charged with Incest by Male contrary to Section 158 (1) (a) of the Penal Code. In the second count, Venance Mbua was charged with causing Grievous Harm Contrary to Section 225 of the Penal Code. The third was cruelty to a child c/s 109 A (1) (2) of the Penal Code. It was alleged that both incident took place on 25 th of April, 2013 at Mkundi village in Morogoro District. That Venance Mbua had carnal knowledge of Merciana Vennance knowing her to be his 2 daughter grievous harm unlawfully and intentionally. Venance Mbua denied the allegations but evidence received by the District Court of Morogoro satisfied it that the two counts, had been proved to the required standards. Venance Mbua was · convicted on both and sentenced to 30 years and 5 years respectively. Six grounds have been raised by Venence Mbua to whom I shall hereinafter refer as appellant, to challenge the decision of the trial court. First however, what was the evidence that led to the appellant's conviction? Merciana Venance (PWl) testified after a voir dire examination of her had been conducted by the trial court. The substance of her testimony is that she was living with her father together with two brothers. One of the brothers was Noel, whom she referred to as "normal" and it has occurred to me that the other brother Faustine Venance (PWS) was considered to be abnormal because he had a speech disability. 3 some money to go buy something from a shop but did that only to get rid of the boy, Noel. For when Noel left for the- shop, the appellant undressed PWl and stripped down his trousers before inserting his penis into his daughter's vagina. PWl said that she tried to raise alarms in protest but the appellant assaulted hei; and even burned her for that. She concluded to testify that she was helped out by the ten cell leader who arrived at the scene upon being asked by Noel to intervene. It is however one Julius Mtatilo Matiku (PW2)' who recruited the assistance of the ten cell leader. PW2 is the appellant's neighbor. He said that on 25/4/2013 he ran into the appellant's dumb mute son. The said son had money (shs. 2000 / =) with him which he showed to PW2. By sign language, the son (PWS) was able to communicate to PW2 that the appellant was at home with PW 1 having sexual intercourse. PW 2 tiptoed to the appellant's house and peeped through the window. He could see the appellant on top of PW l's body which was essentially noticed for the reason that her skirt had been pulled up. 4