hassan mustapha vs republic 2018 tzca 554 14 february 2018

m THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAftfc LUANDA, J.A., MMILL A, 3.A, And NPIKA, 3.A.) CRIMINAL APPEAL NO. 608 OF 2015 HASS AN MUSTAPHA.... ............................. ,..................... . APPELLANT VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appeal from decision of the High Court of Tanzania at Mbeya) (Ngyvaja, .JL) dated the 23rd day of September, 2015 in U'qj 3 3 'c f: 2E&& JUDGMENT OF THE COURT 7th & 14th February 2018 MMILIA, J.A.; The appellant, Hassan Mustapha, was arraigned before the High Court of Tanzania at Mbeya on a charge of murder contrary to section 196 of the Penal Code Cap. 16 of the.Revised Edition, 2002. After full trial, he was found guilty, convicted,’ and sentenced to suffer death by hanging. Aggrieved by the judgment and sentence of that court, he has appeal to the Court. l The facts of the case were not complicated. On the night of 29.5.2008, Issack s/e Obedi (the deceased) and Furaha s/o Jaramson were among the persons who hac; socially gathered 3i: Mapeleie local brew ponibe shop in Mbalizi ward within Mbeya District and Region of Mbeya,at which they were drinking local brew and enjoying music. On the way home after the closure of the said local brew pombe shop round 23:00 hours, the deceased, who was in the company of the said Furaha s/o Jaramson, was allegedly fatally stabbed with a knife in the chest by the appellant. Simultaneous to reporting the incident at Mbalizi Police Station, the ii^urad'p&rsor. was rutmed to M&eya Referral Hospital at which he died the next day. On 30.5,2008, autopsy was conducted and t&^deqsssed's body wSs rateBssd to his .*■ fe n ' Meanwhile, the police commenced investigation which fruited into the appellant's arrest on 30.5.2008, and was subsequently charged with the offence of murder. He protested his innocence, but as aforesaid, the trial High Court found him guilty, convicted and sentenced him to suffer death by hanging, hence the present appeal to the Court. At the hearing of the appeal the appellant, who was also present in Court, was represented by Mr. Simon Mwakolo, learned advocate. He had, on behalf of the appellant, filed a three point memorandum of appeal; one that, the prosecution did not prove the case against the appellant beyond reasonable doubt; two that, there was no proper conviction; and three that, the appellant's conviction was wrongly anchored on exhibit P2 which left a iot to be desired. On the other hand, the respondent Republic enjoyed the services of Ms Catherine Gwaitu, learned Senior State Attorney. At the commencement of hearing o f,the appeal, the Court suo motu raised a point of law touching on the'jurisdiction of the trial court, to wit that, while the trial of the present case was initially conducted Kwa^g&si, J (as he than was), it was subsequently taken over by two other judges, one after another. It was first taken over by Hpn Choc-ha, J (Rtd). w M $ 4 ikas m $ r liirt-m & tp m again taken over by Hon. Ngwala, J who tried it to its completion. However, both subsequent judges did not assign reasons for the takeover as envisaged by section 299 (1) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 (the CPA). For that reason, we invited co.unse! for the pai&es*.£©.. a d d in s m en the point. First to submit was Mr. Mwakolo who readily appreciated that the takeover of the trial from Hon. Mwangesi, J by the above mentioned judges without assigning reasons flouted the provisions of section 299 (1) of the CPA, thus making the proceedings from the stage of takeover to its conclusion, including the judgment and the resultant sentence, a nullity. He invited the Court to invoke the provisions of section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 of the Revised Edition, 202 (the A3A), quash the proceedings conducted by the subsequent judges, the judgment thereof, and set aside the sentence which was meted out on the appellant, and order a retrial from the point of takeover to its completion. On her. part, Ms Gwaltu supported Mr. Mwakolo's submission. She reasoned that the omission by the subsequent judges to assign reasons for the takeover of the triai from Hon. Mwangesi, J amounted to trying the case without jurisdiction. She affirmed the way forward proposed by Mr. Mwakolo. We wish to begin by recounting that the trial in this case commenced on 14.11.2011 before M.wa:ng^ i, Asst*. last p#gi:*te$*« ^ * 80*' recorded the evidence of two prosecution witnesses, that of PWi Sadu Kajisi Mxvansisya, and PVV2 No. D. 6988 D/Cpl. Ebenezer. For undisclosed reasons, on 6.9.2013 the trial was taken over by Chocha, J. He made two judicial orders concerning directions in tjie case, and adjourned-the he^r-ing of that case t©a feur-^ date. Unfortunately, when the case was cause-listed for continuation of hearing on 3.IG.2§13, it was taken over by Ngwala, J who tried it to its finality and composed the judgment which is the subject of this appeal. Again, she assigned no reasons for the takeover. Given this situation, we fully agree with the views expressed by .counsel for the parties in this-regard that the subsequent judges did net comply with . the demands of section 299 (1) bf the CRA. That section .provides-that:- "(1) Where any judge, after having heard and recorded the whole or any part o f 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 judge who has and who exercises jurisdiction may take over and continue the trial and the judge so taking over may act on the evidence or proceedings recorded by his predecessor, and may, in the case o f a trial re­ summon the witnesses and recommence the trial; save that in any trial the accused may, when the second judge commences his proceedings, demand that the witnesses or any o f them be re­ summoned and re-heard and shall be informed o f such right by the second judge when he commences proceedings. "[Emphasis added]. From the wording of this section, it is crucial and indispensable upon the judge taking over the trial of a case from another judge who commenced it, to record the reasons for the takeover in order to cloth himself/herself with the necessary jurisdiction in the matter. Likewise, the judge taking over is'duty bound to inform the accused ov his legal right to elect whether or not the witnesses or any : of them may De re-summoned and re-heard •• See the .case .of Sabasaba Ertosi v. Rspublk:, Criminal Appeal No. 135 of 2015. ’At this juncture, we wish to re-emphasize that where it may be found that no reasons were assigned for the takeover of the trial from the previous judge who commenced it, the omission to do so is a fatal irregularity because the subsequent judges will have tried the case without jurisdiction, and it constitutes a fundamental HtegaJity. Where such is the case, chat part of the respective proceedings in that case, from the stage of the takeover by the subsequent judg^/judges .to' its a^ 'w ^ as tfie- juOjh.jr;:, will m dadare&r a^nulifty, qiiasfcfe8,' a-nB 'iie” sentence set aside. The rationale for this is not hard to find. We resort to what we expressed in this regard in the case of M/s Georges Centre Ltd v. The Honourable Attorney General and Another, Civil Appeal No. 29 of 2016 ( u t i re ported). In that case'we expounded that:- "The general premise that can be gathered from the above provision is that once the trial o f a case has begun before one judicial officer that judicial officer has to bring it to completion unless for some reason he/she is unable to do that. The provision 6 cited above (referring'to Order '18 rule 10 o f the CPC) imposes upon a successor judge or magistrate an obligation to put on record why he/she has to take up a case'that is partly heard by another. There are a number o f reasons why it is impoitant that a trial started by one judicial officer be completed by the same judicial officer unless it is not practicable to do so. For one thing’ as suggested by-Mr. Maro, the one who sees and hears the witness is in the best position to assess the witness's credibility. Credibility o f witnesses which Has to -b® assessed is very crucial in the determination o f any case before a court o f law. Furthermore, M & m fy /w%ss* cfr* Wan-spBreniy. YSere there is no transparency justice may be compromised. " We wish to illustrate that though the-just quoted passage refers to civil matters, the requirement to give reason for takeover in civil matters is similar to that obtaining in criminal matters. For reasons we have assigned, we exercise our power under section 4 (2) of the AJA, in terms of which we quash the proceedings of the two subsequent judges from the stage where Hon. Mwangesi, J ended to its conclusion, the judgment inclusive, and set aside the sentenced which was meted out against the appellant. from the stage where Mwangesi, j ended by a judge other than those whose proceedings we have quashed, who is required to expeditiously .proceed with trial after complying with ihe provisions of .section 299 (1) of the CPA. We further direct for the appellant to remain in custody pending retrial. We accordingly order, DATED at MBEYA this 13th day of February, 2018. B. M. LUANDA JUSTICE OF APPEAL D. M, MMi-LLA JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPFAL I certify that this is a true copy of the original. P.W. Bampikya SENIOR DEPUTY REGISTRAR COURT OF APPEAL