20170524 TZCA Mwanza 3

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUSSA, J.A.. MZIRAY. J.A.. NDIKA. J.A.^ CRIMINAL APPEALS NO. 66 & 188 OF 2015 1. ISSAYA MATO @ ISSA 1 f 2. YUSUPH RUBEN @ TUMBO ........................................ APPELLANTS VERSUS THE REPUBLIC................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Gwae. J.^ dated the 13th day of April, 2015 in Criminal Appeals No. 44 & 29 of 2014 JUDGMENT OF THE COURT 22nd & 25th May, 2017 MUSSA. J.A.: In the District Court of Nyamagana, the appellants were arraigned for two counts, namely, armed robbery and rape, contrary to, respectively, sections 287(A) and 130(1) of the Penal Code, Chapter 16 of the Revised Laws. i The appellants refuted the charge, whereupon the prosecution featured six (6) witnesses and three documentary exhibits before resting its case. At the close of the case for the prosecution the trial court dismissed the second count on a no case to answer and the appellants were, accordingly, acquitted with respect to that count. As regards the first count, after a full trial, the appellants were found guilty, convicted and each was sentenced to a term of thirty (30) years imprisonment. Dissatisfied, they preferred an appeal to the High Court which was, however, dismissed in its entirety (Bukuku, J.), hence this second appeal. The appellants seek to impugn the decision of the High Court upon two separate memoranda of appeal and, as it turns out, the second appellant has rejoined a lengthy supplementary memorandum for the same purpose. At the hearing before us, the appellants were fending for themselves, unrepresented, whereas the respondent Republic had the services of Mr. Victor Karumuna, learned Senior State Attorney, who was being assisted by Ms. Subira Mwandambo, learned State Attorney. 2 Unfortunately, on account of an ailment which we will shortly address, we need not reflect on the points of grievance raised by the appellants just as it is needless for us to have to explore, in full, the factual background of the appeal. Addressing the issue of contention, it is beyond dispute that, at the trial, the matter giving rise to this appeal was presided over by two Magistrates in a row. As it were, the trial was commenced by Mwambapa, Resident Magistrate, who presided over the proceedings from their inception up to the time when the prosecution closed its case on the 15th April, 2013. The Magistrate then deferred his decision as to whether or not the prosecution had established a prima facie case to the 29thApril, 2013. Nothing came forth on the scheduled day and, after several adjournments, it was another Magistrate, namely, Massesa, Senior Resident Magistrate, who came with the Ruling. We have already intimated the extent to which the successor magistrate dismissed the first count and finalized the trial proceedings but, our concern here is in the complete dearth of details with respect to the reason which prompted the change of magistrates. 3 On this apparent mishap, Mr. Karumuna readily conceded that the successor magistrate ought to have assigned the reason behind her taking over. On account of the non-compliance, the learned Senior State Attorney advised that all proceedings presided over by the successor magistrate were a nullity and that the record should be remitted back to the trial court and the proceedings should resume from the event when the prosecution closed its case. On their part, the appellants did not have much to tell the Court on this issue, presumably, given the technicalities tied to it. They left the matter to be considered and determined by the Court. We note, however, that the first appellant raised the grievance in his memorandum of appeal. To affirm our concern, we deem it instructive to reproduce the provisions of section 214(1) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (CPA) in full: - "Where any magistrate, after having heard and recorded the whole or any part o f the evidence in any trial or, conducted in whole or part any committal proceedings, is for any reason unable to complete the trial or committal proceedings or is unable to complete the trial or committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial or committal proceedings, as the case maybe, and the magistrate so taking over may act on the evidence or proceeding recorded by his predecessor and may, in the case o f a trial and if he considers it necessary, resummon the witnesses and recommence the trial or committal proceedings." [Emphasis supplied.] To cull from the foregoing extract, the operative expressions are: "is for any reason unable to complete the trial"or, as the case may be, "is unable to complete the trial within a reasonable time" Thus, on the terms of the provision, a successor magistrate can only assume jurisdiction and take over if the predecessor magistrate "/s for any reason unable to complete the trial' or, as the case may be, "/5 unable to complete the trial within a reasonable time." Of significance, such disabling reason or reasons must be explicitly apparent on the trial courts record of proceedings (see the unreported Criminal Appeal No. 3 of 2011 - Salim Hussein Vs The Republic). To this end, we are constrained to hold that the appellants were duly prejudiced by the unilateral succession of magistrates which was effected behind their backs. In the result and, in agreement with Mr. Karumuna's advice, we are minded to invoke the provisions of section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (AJA) and, accordingly, we nullify the entire proceedings presided over by the successor magistrate (Massesa, SRM.) including the judgment and sentence. The proceedings of the High Court which are, in consequence, left with no leg to stand on, are similarly nullified. The record is remitted back to the trial court for it to resume trial from the stage when the prosecution closed its case before another Magistrate of competent jurisdiction. The succeeding Magistrate should 6 ascertain, inform the appellants and put upon record the reasons which disabled the predecessor magistrate to continue with the trial. He should then proceed with the hearing in accordance with the dictates of section 214(1) of the CPA. In the meantime, the appellants should remain in custody pending the resumption of trial. DATED at MWANZA this 24th day of May, 2017. K.M. MUSSA JUSTICE OF APPEAL R.E.S. MZIRAY JUSTICE OF APPEAL G.A.M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL