20170221 TZHC Dar es Salaam

IN J"HE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 125 OF 2016 (From Kinondoni District Court Criminal Case No. 272/2013) MOHAMED RASHID MROPE@ MALEKO ....... . 1st APPELLANT HOZA BAKARI @ RASHID ...................... . 2 nd APPELLANT VERSUS REPUBLIC .............................................................. RESPONDENT Date of Last Order: 30/11/2016 Date of Judgment: 21/02/2017 JUDGMENT FELESHI, J. The appellants Mohamed Rashid Mrope @ Maleko and Hoza Bakari @ Rashid, 1st and 2nd appellants respectively, were tried and convicted by the Kinondoni District Court of two offences: one, rape (2 nd count for 1st appellant and 3rd count for 2nd appellant); and two, abduction (first count for 1st appellant) contrary to section 134 (for 1st count) and sections 130(1)(2)(e) a_nd 131(1) for 2nd and 3rd count respectively, both of the • 1 ,t! Penal Code, [CAP. 16 R.E, 2002]. The offences were alleged to have been committed to one Husna Mussa, a girl of 15years of age on 25 th day of july, 2013 (for 1st count) and on 27th July, 2013 in respect of 2nd and 3rd counts all committed at Boko Basihaya area within Kinondoni District in Dar es Salaam Region. At the end, the 1st appellant was sentenced to one (1) year imprisonment in respect of the 1st count and thirty (30) years in respect of Page 1 of 7 the 2nd count which were ordered to run concurrently while the 2nd appellant was sentenced to thirty (30) years in respect of the 3rd counts. Aggrieved, the appellants preferred this appeal on a total of thirteen (13) grounds, six (6) grounds for the 1st appellant and seven (7) grounds for the 2nd appellant. By and large, the grounds of appeal upon which the petition is founded challenges the findings by the trial court but, exceptionally the 2nd appellant's 6th ground of appeal reads: "6th That, the Honourable succeeding trial magistrate had no least opportunity to assess the vaguely demeanour and credibility of the most prosecution witness (sic) who testified on his absence whereupon the appellant was/were prejudiced in extent, and the provisions law on the respect of the matter and changed (sic) of venue by the trial magistrate were not considered furtherly (sic) were violated." The hearing of the appeal was conducted orally. The appellants appeared in person and fended their appeal. On the other hand, the Respondent/Republic was represented by Ms. Jenipher Masue, learned Senior State Attorney. Addressing the Court both appellants briefly invited it to consider their grounds of appeal and be pleased to allow their appeals and quash the trial court's findings and orders. On her part, Ms.Masue supported the trial court's findings and consequent orders. However, the learned Senior State Attorney did not address the 2nd appellant's 6th ground of appeal quoted above which blatantly attacks the successor trial magistrate for composing judgment of the Court without observing demeanor and Page 2 of 7 credibility of witnesses who did not testify before him. I will thus first deal with this ground. The Court record shows that on 10/3/2014 and 29/4/2014 PWl (victim of crime), PW2 (PWl's sister) and PW3 (the doctor) testified before Hon.Rusema-PRM whereas on 27/5/2015 the trial continued before Hon.Mtarania-RM who recorded the evidence of PW4. Before recording PW4's testimony Hon.Mtarania-RM noted the following: "Court: -Accused addressed in terms of section of the CPA who reply as:- 1st Accused: -It is long time case, I pray to proceed 2 nd Accused: -I pray to proceed with the case Court: -Prayer granted Sgd: Mtarania-RM 27/05/2015" Later on, Hon.Mtarania-RM was transferred (page 29 of typed proceedings) and from 22/09/2015 the case continued before Hon.Kiliwa- RM who recorded the testimonies of PW5 and DW1-DW4 and composed the impugned judgment. However, Hon.Miliwa-RM did not comply with section 214(1) of the Criminal Procedure Act, [CAP. 20 R.E, 2002]. The immediate issue for consideration is whether the complaint by the 2nd appellant in the 6th ground of appeal quoted above has merit. Page 3 of 7 Section 214(1) of Criminal Procedure Act, [CAP. 20 R.E, 2002] 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 ... ". In terms of the decisions of the Court of Appeal of Tanzania in Fulgence Fortunatus & Another vs. Republic, Criminal Appeal No. 20 of 2005 (Unreported) (Arusha Registry) and Richard Kamugisha @ Charles Simon & 5 Others vs. Republic, Criminal Appeal No. 59 of 2004 a failure by successor magistrates to address the accused as to his rights to have the other witnesses recalled rendered the proceedings a nullity. In Richard Kamugisha @ Charles Samson & 5 others (supra) the Court thus nullified the proceedings and Judgment of the trial Court and 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." [Emphasis added.] In view of the above decision, it is settled that, the word 'may' used in section 214 (1) of the Criminal Procedure Act (supra) is not interpreted Page 4 of 7 to imply a discretionary act as provided by section 53( 1) of the Interpretation of Laws Act, Cap.1 R.E. 2002 but, in view of the fact that the right to a fair trial is fundamental, a trial court is obliged under section 214(1) or 299 of the Act to comply with the requirement (see: Godwin · Raphael Mushi v. Rep. HC Cr.Appeal No. 33 of 2014, Kassim S/0 Said Ngalambe @ Kessy and Muhsin S/0 Ismail Manzi v.Rep., HC Cr.Appeal No. 162 of 2014, Thadey Stambuli Pangaheli @ Nuru vs. Rep. Cr.Appeal No.23 of 2015, Jacob Lucas v. Rep. HC Cr.Appeal No.114 of 2015 and Said Omari Mahambe v.Rep. Cr.Appeal No. 124 of 2015 from Dar es Salaam Registry-unreported), This Court in Said Omari Mahambe (supra) held that a failure by a predecessor magistrate to record his remarks against the witnesses' demeanour in terms of section 212 of the Criminal Procedure Act, (supra) leaves no criteria on record for a successor magistrate to rely upon in assessing demeanour of witnesses who testified in his absence (See: Remebisele s/o Edison v. R. (1967) H.C.D. No. 72). In the circumstances, where the second trial magistrate omitted to cite the provisions of section 214(1) of the Criminal Procedure Act (supra) on 27/05/2015 and did not record clear statements from the appellant that were reflective of their ready to proceed without recalling PW1,PW2 and PW3 their responses that "It is long time case, I pray to proceed" by the 1st appellant and "I pray to proceed with the case" by the 2nd appellant quoted above were too general to satisfy the mandatory condition imposed by section 214(1) of the Criminal Procedure Act (supra). Page 5 of 7 . 11 ·, . . Therefore, the appellants' responses do not clearly show that they forfeited their right to recall those witnesses. As to the third trial magistrate, the record is clear that he did not at . all pay any regard to that mandatory requirement. The 2nd appellant's 6th ground of appeal is thus meritorious. That procedural error was fatal and is incurable. Consequently, the proceedings, Judgment and Orders of the trial Court are hereby nullified and quashed for being a nullity. I also quash the conviction and set aside the sentence and all orders passed against the appellants. 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 order the matter to be expeditiously tried de novo before another magistrate with competent Jurisdiction. Order accordingly. DATED at Dar es Salaam this 21 st February, 2017 \ . FELESHI JUDGE Page 6 of 7 . COURT: . ELESHI JUDGE Page 7 of 7