20160624 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA . (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (APPELLATE JURISDICTION} CRIMINAL APPEAL NO. 70 OF 2016 (From the Dar es Salaam RM's Court at Kisutu in Cr. Case No. 51/2012) 1. MOHAMED AUSI ............................................ 1 ST APPELLANT 2. RICHARD JOHN @ SUKWA ........................... . 2ND APPELLANT 3. PETER JUMA MCHUMA @ MBONDO .............. . 3RD APPELLANT VERSUS THE REPUBLIC .........·.............................................. RESPONDENT Date of Last Order: 20/06/2016 'I Date of Judgment: 24/06/2016 JUDGMENT FELESHI, J.: In the Resident Magistrates' Court of Dar es Salaam at Kisutu, the appellants and others, that is, Daudi Akida Ally (1 st accused), Mohamed Ausi Chileva (2 nd accused), Richard John @ Sukwa (3 rd accused), Amiri Omary Fungo ( 4th accused), Peter Juma Mchuma @ Mbondo (5 th accused), Patricia Clement Rweyongeza (6th accused), Ally Hamisi Ally @ Mpemba · (ih accused), Selemani Mohamed Omary (8th accused), Paulo Musolini i - ~ Ntemi @ Ngosha (9th accused) and Hashim Ramadhani Rashid (10th ~ .accused) were charged with several criminal offences. The offences were, one count of conspiracy, contrary to section 384 of the Penal Code, [CAP. 16 R.E, 2002] (leveled against all the accused persons except the 6th accused), three counts of armed robbery, contrary to section 287A of the Penal Code (supra) hereby referred to as 2nd , 3rd and 4th counts (leveled against the 2nd , 3rd & 5th accused persons) and one Page 1 of 6 count of receiving stolen property, contrary to section 311 of the Penal . Code (supra) referred to as the 5th count leveled against the 6th accused which was however subsequently dropped. All of the accused persons pleaded not guilty. Upon trial, all the remaining accused persons were acquitted from the 1st & 3rd counts of conspiracy and armed robbery respectively, whereas 2nd , 3rd & 5th accuseds (appellants) were found guilty in respect to the 2nd & 4th counts and were sentenced to thirty (30) years imprisonment with corporal punishment. Aggrieved, these appellants preferred various grounds of appeal which were later consolidated to five (5) grounds to wit that:- 1. The trial Magistrate erred in law and fact by convicting the appellants on the strength of improper evidence of an Identification Parade. 2. The trial Magistrate erred both in law and in fact by convicting the 2 nd appellant on strength of Exhibit "Pl" (cell phone). 3. The trial Magistrate erred both in law and in fact by convicting the appellants on strength of weak prosecution case failing to comply with the procedure of changing from 1 st trial Magistrate to the second Magistrate and finally to the third trial Magistrate. 4. The trial Magistrate erred both in law and in fact by ignoring the gravity and strength of the appellants. 5. The trial Magistrate erred both in law and in fact by taking over the proceedings with the trial of Criminal Case No. 51 of 2012 without complying with the procedure necessary in taking over the hearing of the same from another Magistrate. The hearing of the appeal was conducted orally whereas the appellants engaged services of Mr. Myovela advocate whereas the Republic was represented by Mr. Othman Katuli, learned Senior State Attorney. Addressing the Court on the appropriateness of the proceedings, Judgment and Order of the trial Court in terms of section 214(1) of the Page 2 of 6 Criminal Procedure Act, [CAP. 20 R.E, 2002] as required by the Court in line with his 3rd and 5th grounds of appeal, Mr. Myovela submitted that, the predecessor trial Magistrate (Hon. Katemana, RM) did not inform the accused persons of their rights under section 214(1) of the Criminal Procedure Act (supra) after the transfer of Hon. Tarimo, SRM who had initially recorded some of the prosecution witnesses. Mr. Myovela added that, the same happened to Hon. Lema, PRM following transfer of Hon. Katemana, RM who likewise, after hearing some of the prosecution witnesses, did not comply with the said provisions of the law. He thus urged for the entered Judgment by Hon. Lema, PRM to be J- quashed and set aside with an order for the matter to be tried de nova. On his part, Mr. Katuli learned Senior State Attorney submitted that, the two predecessor trial Magistrates had no discretion in informing the appellants of their rights under section 214(1) of the Criminal Procedure Act (supra) as 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 at page 11 stated:- " ............ 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 .............. ". Reference was also made to High Court decisions in the cases of Godwin Raphael Mushi & 7 Others vs. Republic, Criminal Appeal No. 33 of 2014 (Unreported) and Ally Baruani Macho vs. Republic, Criminal Appeal No. 45 of 2016 (Dar es Salaam Registry), (Unreported) where the Page 3 of6 '' two cases quoted the case of Richard Kamugisha @ Charles Samson & 5 Others vs. Republic, Criminal Appeal No. 59 of 2004 where 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. Mr. Katuli argued that failure to inform the accused persons of their right renders the proceedings, Judgment and Orders nullity. As correctly submitted by counsels for the parties, Hon. R.C.Tarimo, SRM heard and recorded the testimonies of PWl, PW2, PW3, PW4, PWS, PW6 and PW7. The case file was thereafter reassigned to Hon. A. Katemana, RM who recorded the testimonies of PWB, PW9, PW10, PW11 and PW12. The remaining testimonies by PW13, PW14, DWl, DW2, DW3, DW4, DWS, DW6, DW7, DWB, DW9 and DW10 were recorded by Hon.W.E. Lema, PRM. Notably, in all the two transfers, on the dates set for continuation of hearing, the trial Court before the newly assigned predecessor Magistrates proceeded without according the accused persons of their right in terms of section 214(1) of Criminal Procedure Act (supra) which 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, re-summon the witnesses and recommence the trial ... ". Out rightly, that was a defect in law. The immediate question is as to what is the fate of such irregularity? As correctly submitted and cited by Page 4 of 6 \ . Mr. Katuli, 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 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." The underlying principle in law for a predecessor trial Magistrate to have opportunity to hear the witnesses is that lucidly stated in the case of Remebisele s/o Edison v. R. (1967) H.C.D. No. 72 and Said Omari Mahambe v.Rep. High Court Criminal Appeal No. 124 of 2015, Dar es Salaam Registry, unreported, where in Remebisele s/o Edison (supra) the Court held:- "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 .... ". Therefore, in a nutshell, though the law extends discretionary powers to the successor trial Magistrate, the circumstances of the case were so · demanding in the two incidents of change of trial Magistrates for the witn_esses who had already testified in Court to have their evidence retaken considering that the last trial Magistrate who only recorded the evidence of Page 5 of 6 .!' PW13, PW14, DWl, DW2, DW3, DW4, DWS, DW6, DW7, DWB, DW9 and DW10 and who composed Judgment of the Court, did not have opportunity to hear the other twelve (12) witnesses and assess their credibility through their demeanour. Besides, as aforesaid, each successor magistrate was . mandatorily required having his stance as to recalling of the said witnesses or not stated to the appellants. 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 Magistrate with competent Jurisdiction to try it. Since the appellants were arraigned in Court since 2012, I order the matter to be heard expeditiously in the interest of justice for parties to have their rights timely determined. It is so ordered. ~~. If~~- -~ ~~- ~. th . DATE~..;1t Dpf~~laa~ttf~ 1 day of June, 2016 Ji ""-"" {( i f ~~f~: · ,i~i1 t/i{~t·\~;si?'!f\::(\\ 1 ~ ,\ ' ----- \\i\~-s, li /,?: ; ~t; :J} ~ 1 , 1 -t&~t::.iiJ:f,',~',;;[•¼,,---'-' ,,. f. · • LESH I \~ ',._______ _.// / JUDGE "~:-- @!1 ' . / / Judgment ~,ver~d t ~ ·24 day of June, 2016 in th .}1l. :A11/.<?i..k:-~ -............ /0. p!.Y.~f. ~-...Advocate, fort the appellants and Ms Debo a Mcharo, learned State Attorney, for the Respondent, Republic. Right of App I v.AJU••u ed. P.R. Z DEPUTY REGISTRAR Page 6 of 6 t I