20160916 TZHC Dar es Salaam

• i IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 117 OF 2015 (Originating from the Resident Magistrates' Court of Kivukoni Criminal Case No. 1337/2008) CHANDE ALLY @ CHICKEN ......................................... APPELLANT VERSUS THE REPUBLIC ....................................................... RESPONDENT Date of Last Order: 25/08/2016 Date of Judgment: 16/09/2016 JUDGMENT FELESHI, J.: In the Resident Magistrates' Court of Kivukoni at Kinondoni, the appellant was charged with armed robbery contrary to section 287A of the Penal Code, [CAP. 16 R.E, 2002]. It was alleged that, at about 05:00hrs at Magomeni Makuti in Utengule Street, House No. 23 within Kinondoni District, the appellant stole six iron pots worth Tshs. 24,000/=, clothes worth Tshs. 50,000/=, two hot pots worth Tshs. 10,000/= one rim worth Tshs. 10,000/=, three plastic bucket worth Tshs. 5,000/=, six pairs of shoes worth Tshs. 10,500/= all being properties of one Nadesa Said and that, immediate before such stealing, the appellant threatened the complainant with a machete in order to obtain the said properties. The accused pleaded not guilty to the charged offence. He was thereafter tried, convicted and lastly sentenced to thirty (30) years term of Page 1 of 6 ,/ imprisonment. Aggrieved, the appellant preferred the present appeal on seven (7) grounds of appeal to wit that:- 1. The trial Magistrate grossly erred both in law and in fact in convicting the appellant on un-credible visual identification of PW2 and PW3 against the appellant at the scene of crime as the identifying witness failed to disclose the source of light and its intensity which aided them to see and identify the appellant. 2. The trial Magistrate erred both in law and in fact in convicting the appellant relying on the properties alleged belonging to the complainant and alleged found with the accused as the prosecution side failed to tender in Court the Seizure Receipt to ascertain that the appellant was found with the said properties. 3. The trial Magistrate erred both in law and in fact in convicting the appellant relying on retracted Cautioned Statement of the appellant tendered and admitted un-procedurally as no inquiry was conducted to determine its validity contrary to the procedures of law. 4. The trial Magistrate erred both in law and in fact in admitting the Cautioned Statement of the accused which was received in Court before it was admitted in evidence contrary to the procedures of law. 5. The trial Magistrate erred both in law and in fact in convicting the appellant in a case where the trial changed venue twice and the appellant was deprived of his prayer to re-summon the witness as he was not confident the manner the predecessor recorded the evidence hence the appellant was prejudiced in law. 6. The trial Magistrate erred both in law and in fact in not drawing an adverse inference against the prosecution side for failure to summon in Court as a witness the militiamen alleged to have arrested the appellant in company of PW1 to testify in Court to that effect in order to clear any speck or doubt. 7. The trial Magistrate erred both in law and in fact in convicting the appellant in a case whereby no former Statement of the complainants was advanced to corroborate with their evidence in Court contrary to the procedures of the law. The hearing of the appeal was conducted orally whereas the appellant was present in person that is, unrepresented while the Republic was represented by Ms Agnes Mtaki, learned State Attorney. Page 2 of 6 ,/ Addressing the appeal, the appellant urged for all the grounds of appeal to form integral part of his submission. On her part, Ms Mtaki submitted that, the record shows that Rugemalila, RM who was earlier in conduct of the case was succeeded by Lyatuu, RM after hearing the testimonies of PW1 to PW3. Besides, the said Lyatuu, RM denied the appellant's prayer to have the said witnesses recalled in Court despite of the appellant's complaint that he was not given enough time to cross examine the prosecution witnesses. Thereafter,- Lyatuu, RM recorded_ the_ testimony of PW4 and the defence without according the appellant opportunity to have PW1 - PW3 recalled. This was so despite that, on 07/09/2009, the appellant asked the presiding Magistrate to have the said witnesses recalled, the prayer which was denied vide a ruling delivered by the trial Court on 29/09/2009. Ms Mtaki learned State Attorney argued that that was contrary to section 214 of the Criminal Procedure Act, [CAP. 20 R.E, 2002] as held by this Court in the case of Ally Baruani Macho vs. Republic, Criminal Appeal No. 45 of 2016 (Unreported), (Dar es Salaam Registry). Besides, the learned State Attorney conceded that, the appellant's Cautioned Statement was admitted despite being contested by the appellant on 14/12/2009. Moreover, no inquiry was conducted by the trial Court contrary to the requisites of the law under section 27(2) of the Evidence Act, [CAP. 6 R.E, 2002] as held by the Court of Appeal in the case Page 3 of 6 ,. of Seleman Abdallah and 2 Others vs. the Republic, Criminal Appeal of Tanzania No. 384 of 2008, (Unreported), (Dar es Salaam Registry). Moreover, there was no Certificate of Seizure which was adduced in Court contrary to what is provided for under section 38(3) of the Criminal Procedure Act (supra) as held by the Court of Appeal in Paul Maduka & Others vs. Republic, Criminal Appeal No. 110 of 2007 (Unreported). It was from the above Ms Mtaki urged for the benefit of doubt to be resolved in favour of the appellant however light the same might be as underscored by the Court of Appeal in the case ·of Zacharia Japhet @ lumanne & Others vs. Republic, Criminal Appeal No. 37 of 2003. Having considered the evidence on record and the respective submissions by the parties, the following are the deliberations of this Court in disposal. In compliment to what has been submitted by Ms Mtaki learned State Attorney, it is unfortunate that the prayer to have section 214(1) of the Criminal Procedure Act (supra) invoked was put into play by the appellant but denied by the trial Magistrate. For the matter of clarity, section 214(1) of Criminal Procedure Act (supra) reads as follows:- "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 ... ". Page 4 of6 Acting to the contrary tantamount to a misconception as the trial Magistrate had no discretion in informing the appellant of such right let alone that it was the said appellant who alerted the predecessor trial Magistrate of such right. Lack of such discretionary powers was underscored by the Court of Appeal of Tanzania in Elisamia Onesmo vs. The Republic, Criminal Appeal No. 160 of 2005, (Arusha Registry), (Unreported) where the Court stated at page 11 that:- " ............ the second trial Magistrate had no discretion to inform the accused persons, including the appellant, their statutory rights to have the prosecution witnesses re-summoned and re- heard if it were so demanded by the accused after being informed of the right. That he did not do so was a fatal and incurable irregularity .............. ". The same position has been recited in a litany of cases which this Court finds it unimportant to list. In Richard Kamugisha @ Charles Samson & 5 Others vs. Republic, Criminal Appeal No. 59 of 2004 the Court of Appeal of Tanzania was clear that, the phrase "may" used in section 214(1) of the Criminal Procedure Act (supra) means obligatory. The immediate question is as to what is the fate of such irregularity? In Richard Kamugisha@ Charles Samson & 5 Others vs. Republic (supra) the Court of Appeal of Tanzania nullified the proceedings and Judgment of the trial Court where the Court concisely held that:- "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 Page 5 of 6 • 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". Consequently, the proceedings, Judgment and Orders of the trial Court are hereby nullified for being nullity. Being the case, there is no need to address the grounds of appeal to avoid prejudicing the rights and interests of the parties in the matter under scrutiny. I thus order the matter to be tried afresh before another trial Magistrate with competent Jurisdiction to try the same. Since the appellant and others were arraigned in Court since 2008, in the interest of justice, I - --- ----- ---· - -- -· - - order expeditious trial to have rights of the parties finally determined. It is so ordered. . _,__ 'I '0 ....... SHI E 1 9/2016 Judgment delivered this 16th day of September, 16 in presence of the Appellant fn person and Ms.Agnes Mtaki, learned State Attorney for the Republic Respondent. Right of baU is explained. '\ ESHI JUDGE Page 6 of 6