20180813 TZHC Mwanza

' IN THE HIGH COURT OF TANZANIA . ! IN THE DISTRICT REGISTRY AT MWANZA APPELLATE' JURISDICTION I I CRIMINAL APPEAL NUM,BER 78, 79 AND 90 OF 2018 I {Original Criminal Case No 310 Of 16of The District Court OfSengerema District At Sengerema Before kishenyi Esq, Resident Magistrate} I I ST 1. AMOS CHIBUGA @ COBRA .................. 1 APPELLANT I ND 2. SOSTENES JOHN @ KIPARA ............... 2 APPELLANT 3. ATHENAS PETRO·@ BUSUSU ............... 3Ro APPELLANT VERSUS: I THE REPUBLIC ...... RESPONDENTS I •••••••••••• I ••••••••• I ••• I. I I I I JUDGMENT I . 06.08.2018 & 13.08.2018 Matupa,J. I 1 The three appellants were :convicted by the district court of I Sengerema at Sengerema with three! counts of robbery contrary to section I · 287A of the Penal Code cap 16 of th~ laws of Tanzania. The particulars of I I the offence are that on the 11 th Iday of November, 2016 the three I . I appellants while in the high waters of the lake victoria, they ambushed I several fishermen and forced them 'to part with their out boat engines. I The charge described the out boatI engines as PARSUN HP 9.9 S/N I 1 I 4024733 valued at shillings 2,500,000 the property of one Zuberi Yahya SUZUKI H.P. no 30 S/N 099001155 valued at shillings3000,000/= the ("' pr?secution it was the property of one Jam~s Mwachai. The third engine was Yamaha lSHP no 66B4KL-valued at shillings 2,600,000/=. This one allegedly, belonged to one Lukas Zabona. There were three other accused persons, who the court acquitted of the charges. These were Baraka Kulwa, Daudi Andrea and Salehe Juma. These were also acquitted of the offence of "enabling and aiding" contrary to section 22 and 287 of the Penal code in relation to the theft of respective engines, with which they stood charged. The thr_ee appellants, who were convicted with th~ offence of robbery are aggrieved with the conviction and sentence. They have appealed to this court on their separate appeals. Since the appeals emanate from the same trial, I took the liberty to consolidate their appeals into one. The appeal is therefore referred to as Criminal appeal no 78, 79 and 80 of 2018. The grounds of appeal vary in detail, but are similar in substance. I can summarize them as follows:- That the charges did not specify against whom the alleged violence was directed. All appellants have. challenged the ownership of the engines the subject of their respective charges. They 2 have all challenged the manner in , hich the court invoked the doctrine of recent possession. They have all cotplained that in the case, the evidence . . . I . was not corroborated. They have also ·complained that the court did not ( . I . . consider their respective defenses. They have also impugned the sentence, which has been directed to run conkcutively. Sospeter John @ Kipara has also complained against the mannlr they were identified and also the goods the subject of the charge werJ identified. The parties were not represented. They therefore fended for themselves. Ms Ajuaye Bilishanda learned senior state attorney, j represented the Republic, the resp6ndent herein. The learned counsel brought to my attention, the flaw ih the procedure. The learned Senior State Attorney contended that there was a change of magistrates during trial; Whereas Ndyekobora, RM recorded the evidence for the prosecution, Kishenyi RM recorded that for defehce. There was no reason which is recorded for the change of magistratJs. I asked the appellants what tratpired at trial. One of them said that there was an argument over a ruling \of a no case to answer in respect of . I some of the accused persons at the trial. The argument led to a 3 ' I I disagreement between the magistrates, and this led to the change of the presiding magistrates. Again, this is only a word of mouth of the appellant, as it does not . . I . feature tn the record. I hope that was not the case, as I do not expect an argument between the magistrates would come to the attention of the I I parties to the case, unless the parties are the source or part of the argument. If this is what did~ which r! do not want to believe it happened, then the case was definitely compromised. . I . This brings me to the argument by the learned Senior State Attorney. It was her contention that although the change of magistrates is allowed in I ! law, b~t there is an imperative to assign reason? for doing so. Telse, the i charge becomes an infraction to sectjon 214 of the CPA which directs on I the manner the succeeding magistrate can change magistrates. . I ' . The said section 214 of the CPA reads as follows:- ''214 (1) Where any magistrJte, after having heard and recorded the whole or any part of the evidence in any trial or . I conducted in whole or part any :committal proceedings is for any reason unable to comple_te the trial or the committal proceedings or he is unab/el to complete the trial or committal proceedings within a reasonable time/ another magistrate who has and who e}ercises Jurisdiction may take I 4 over and continue the trial or committal proceedings, ·as the case may be/ and the magistrdte so taking over may act on the evidence or proceeding recbrded by his predecessor and · . I may, in the case of a trial and if he considers it -necessary, resummon the. witnesses and ~ecom;,ence the trial or. the · committal proceedings. (2) Whenever the provisions of subsection (1) apply the - I - High Court may, whether there be an appeal or not, set · aside any conviction passed on )evidence· not wholly recorded by the magistrate before the cohviction was ha~ if it is of the I opinion that the accusec/ has been- materially prejudiced thereby and may order a new trial. r/ The learned counsel submitted that the section directs the imperative to assign reasons for ch~nge of magi$trates. However, the learneq Senior I State Attorney did not refer to me ahy decision for the authority on his construction of the section. She is nevertheless correct on that interpretation of the section. The Court of Appeal of Tanzania hasin various occasions, interpreted the section . to that effect. In the case of Marwa Michael versus the - I Republic criminal appeal no 120 of 2014 (CA).In that case, as was in a · case of Priscus Kimaro v. R. Criminll appeal no 301 of 2013, which the court cited, the trial court did not statb the reasons for the re-assignment 5 of the partly heard case. The Court endorsed the following passage in the latter case:- "We are of the settled mind that where it is necessary to re- assign a partly heard matter to another magistrate, the_ reason for the failure of the first magistrate to complete the matter must be recorded. If that is not done it may lead to chaos in the administration of justice. ' ' Anyone/ for personal reason~ could just pick any file and deal. with it to the detriment ofjustice. This must not be allowed. N The chaos in our judicial system, which the Court of Appeal censured, is precisely what is suggested in the present case. If one magistrate intends to make a certain decision it is not and should not be made public, . . until it is pronounced. . Had this been the case, one would not expect . it to be a cause of discourse between the parties. That aside, the standing· direction of the Court of Appeal is this, where in a trial court a magistrate takes over proceedings without assigning reasons, the magistrate does so without jurisdiction and the proceedings . thus conducted are impugned. This is the direction in subsection (2) of the said Section 214. This is what happened in the present case, when the court dealt with the defence and then composed the judgment. All these proceedings the subject of the present appeal after 6 the magistrates changed, were therefore taken without jurisdiction. Therefore, those proceedings cannot be spared. They are thus expunged from the record. I will therefore, in exercise of my powers of revision in terms of section 373 of the Criminal Procedure Act Cap 20 Of the 2002 Revised Edition of the laws of Tanzania, revise all the proceedings after the. ruling of no case to answer and quash them. I will remand the record to trial court for the trial magistrate who recorded the proceedings of the case for the prosecution to complete the case in defence. The case shall be tried expeditiously, and in any event, the portion of the sentence they have served shall be taken into consideration. .· Dated at Mwanza, this 13th day of August, 2018. !~~- S.B.M.G.--Matupa l--:fudqe 7 ·~ Date: 13.08.2018 Coram: Hon. Matupa, J st nd rd ( ~1 Appellant: 1 , 2 and 3 -:-- present '· Respondent: M/s Ajuaye Bilishanga Senior State Assisted by M/s Dorcas- Akyoo State Attorney B/c: Denis Court: The judgment of the case was delivered in chambers in the presence of the appellants an M/s Ajuaye Bilishanga State Attorney and M/s Dorcas Akyoo State attorney this 13th day of August, 2018. AtMwanza 1:;th August, 2018 8