20170817 TZCA Tabora 1

. . . .uv i :ie: 'l~.._,u:l'u ..Pt: At-"rt:.!"l,L 0~r T. p.i•~E.Ht-!.U.l\. ..,.,., ---i .... ,.,-• .,.._.,,. 0 ... r. __ ,...,_J'!.. .. '"-·~ ~--;. ~'fTABORA (CORAM: LUANDA, J.A., MMILLA, J.A. And MKUYE, J.A.) CRIMINAL APPEAL NO. 438 OF 2015 , ~: ~~~i~o~~ONGA}·......................................................... APPELLANTS VERSUS THE REPUBLIC .......................................................... ~ ............. RESPONDENT {Appeal from the decision of the High Court of Tanzania at Tabora) (Mgonya, J.) Dated the 7 th day of September, 2015 in DC. Criminal Appeal Nos. 36 & 70 of 2015 RUtING OF THE COURT 15th & rn th August, 2017. LUANDA, JA.: ·-' In the District Court of Shinyanga at Shinyanga, the appellants . ' Mathias s/o Kalonga and James 's/o Moshi (henceforth the 1st and 2nd · ·appellants respe_ctively) were cnarged, along with others who were still at I ',' large, .with six counts. That is to say two counts of armed robbery; two counts of gang rape; one count of grievous harm· and one count of assault causing .act.ual bodily harm. At the end of the trial, both appellants were 1 . . . ·. . . . . ·: . -:\ . _.~';:'~:::-·· ·: :_·._ . .~. . .. . ··. : . : ~-·•.:_~·~'xr.:;, .>•:•<. :·· ·.·. . . ' :-convicted :-with .both counts:.of armed robbery .and .e~cfi· \tvas' sentenced to.:: 30 years imprisonment for each count. For the count of grievous harm, only the 1st appellant was convicted and sentenced to 2 years imprisonment and ordered to pay Tshs. 200,000/= as compensatior:i to .one of the victim of that offence of grievous harm. The 2nd appellant was acquitted. As regards the 4th count of assault causing bodily harm, both appellants were acquitted. As to the two counts of gang rape, both appellants were convicted and each was sentenced to 30 years --, imprisonment for each count. Further, each appellant was ordered to pay Tshs. 200,000/= as compensation to the two victims of rape. The appellants were aggrieved by the finding and sentences of the trial District Court. They unsuccessful appealed to the High Court of Tanzania (Tabora Registry). Apart from dismissing their appeal, the High Court enhanced the sentence in respect of the gang rape from 30 years imprisonment each to life imprisonment to each appellant. Still aggrieved, they have come to this Court on appeal. Each appellant has lodged a separate notice of appeal as well as the memorandum of appeal which were consolidated. Each appellant raised five grounds of appeal. In this appeal, the appellants were unrepresented 2 <~p&trl·t~:~;JI~nd~d-··for·· . ' . , theni~iZ.e·~·:·· ~~e t;e5P,pndent/Repuh11C'. ii'.fdt~d the, - . ~ . -.... services of Mr. Ildefonse Mukandara, learned State Attorney .. When the appeal came for hearing, the Court wished first to satisfy - itself as to whether the trial second magistrate who took over from the first. magistrate had jurisdiction to take over and concluded the trial. This is- because we were disturbed by the manner in which the second magistrate took over. We were wondering whether really section 214 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 (the CPA) was complied with. In the District Court, the first magistrate who presided over the case was Ilunda, RM. She recorded the evidence of seven witnesses. Then one Chaba-SRM reassigned the case to one Mtani, DRM (whatever that title means). Mtani, took over and we shall shortly explain what he said before he took over. The following extract passage says it all:- "1.7/1.2/2013 Coram: M. J. Chaba - SRM P.P: Ndaweka - 5/A C/C: E Nya/obi Accused - both are present 3 , . : . ·. ·. ~ . studies {LLM). I thus re-assign T. Mtani - DRM to preside over this case. . . ••. I M. J. Chaba - SRM 1.7/12/2013 Order: mention hearing on 19/12/2013 2. FRIC M. J. Chaba - SRM 17/12/2013. 1.9/1.2/2013 Coram: T. S. Mtani P.P: Kamala - 5/A C/C: M. Lutufyo Accused - both are present Pros: This case is coming for hearing for the first time was allocated to Hon. llunda - RM who is on. cave. (sic) The case reassigned lv me on SRMI/C 4 ' :~.--. :: ·: ::,:.;~>":><:·~ ;:_;: :: . . . . \:•:,_, .,: .,\'·' . . . . . . ·.:. ' , ' · ·.- ·;~_:·F:f.ir•thai: .rnatter thtT £Quit questioned· the accused.' . ,>:: ,,,.._...~ ~.- '· . .. .. .....~::/ . . . . • . person whether they here any objection the case be · trial with me. (sic) . ACCUSED PERSONS 15 r Accused: I here (sic) no objection to you to be the trial Magistrate in this case. Kalanga - signed :!'d accused: even my self I haven't any objection to you to be trial Magistrate. Jems mushi - signed Order: mention date on 3/1/2014 Hearing on 20/1/2014 AFRIC T. S. Mtani - DSM 19/12/2013." The Court invlted Mr·. Mukandara to comnient as to the proprietness of the above proceedings and whether really section 214 (1) o( the CPA was • ·- • f • •• 1: ·. complied with. Mr. Mukandara said so long as the reason for the taking over is spelt out in the proceedings, he is of the considered view that 5 in case the Court found section 214 (1) of the CPA was not complied with, then he urged the Court to quash the proceedings conducted by Mtani as it is a nullity. It follows therefore, the decision of. the. High Court cannot stand. He proposed another magistrate of competent jurisdiction to take over and conclude the case, he concluded. On the other hand, the appellants who are laymen, not learned in law, did not have anything to contribute. The issue is whether the re-assignment note of Chaba as is shown on page 65 of the record reproduced above is within the confines of section 214 (1) of the CPA. Section 214 (1) of the CPA reads as follows:- 1214.-(1) Where any magistrate/ after having heard and recorded the whole or any part of the evidence in any trial or conducted in whole or part any committal proceedings is for any reason unable to complete the trial or the committal proceedings or he is unable to complete the trial_ or committal proceedings within _a reasonable time, another magistrate who has 6 ·,. -. ,;.· .. and continue the trial or committal proceedings/ as the case may be/ and the magistrate so taking over .may . act . on the evidence or proceeding. recorded by his predecessor and ma½ in the case of a trial and if he considers it necessaf'½ resummon the witnesses and recommence the trial or the committal proceedings. " [Emphasis supplied]. It is not in dispute that Chaba - SRM, who appears was the "Incharge of the station, re-assigned the case in which Ilunda, RM was trying to Mtani - RM. He gave reason that Ilunda, RM was busy with her LLM studies. But Chaba - SRM was not the one who took over the case and continued with the hearing. Further, it is not stated the re-assignment, if at all it is a judicial function, was made under what provisions of the CPA. On the other hand, when Mtani - RM took over, he merely stated that he was re-assigned the case to him by Chaba - SRM. Our reading and understanding of section 214 (1) of the CPA which governs the taking over 7 ' '~ .:". ·, ..· gf_.. a. Jrc1rt1Y:. Ii~rd . cas~:" )0. -J~bordinate ·.•i;0~wts):{~:ist5_ict and:~.Resid~et<~ ·. . ' ... , . . . . '" .;_ - -"· ·. . . . .. : . . ".~-,,,.&:=.: p•' Magistrates' Courts, by another magistrate requfres the magistrate who takes over to assign the reason for the taking over in the ·proceedings and not anyone else. But .that does not mean the magistrate incharge has no . such powers to assign or re-assign. The magistrate incharge has those powers. However, those are administrative powers which are distinct from judicial function. The two are quite distinct as such the assigning or re- assigning exercise should not be part of the proceedings. In our case, Mtani - RM was the one who was to record the reason for the taking over and not Chaba - SRM. In Abdi Masoud @ Iboma & 3 Others vs. R., Criminal Appeal No. 116 of 2015 (unreported) this Court said as follows; inter alia:- ''In our vie~ under s.. 2.14 (1) of the CPA it is necessary to record the reasons for reassignment or change of trial magistrate. It is requirement of the law and has to be complied with. It is ·a prerequisite for the second magistrate's assumption of jurisdiction. If this is not 8 no authority or Jurisdiction to try the.tase. ;/,. [Emphasis supplied]. From the foregoing, it is clear that what Chaba had done is not within the ambit of section 214 (1) of the CPA. We take it that when Mtani - RM took over, there was no reason for the taking over. So, section 214 (1) of the CPA was not complied with. Because section 214 (1) of the CPA was not complied with, the proceedings conducted by Mtani and its judgment as well as the entire. High Court judgment and sentences are a nullity. Exercising our revisional powers as they are provided under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 RE 2002 we quash the same and set aside the - sentences. We order another magistrate of competent jurisdiction to take over from where Ilunda, RM had left and conclude the case. It is so ordered. 9 B. M. LUANDA JUSTICE OF APPEAL B, M. MMILLA JUSTICE OF APPEAL R.K.MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ "· P:',~M PIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 10