20190731 TZHC Mwanza

) IN THE HIGH COURT OF TANZANIA I ATMWANZA - I CRIMINAL APPEAL NO. 221 OF 2018 [Appeal from th(! Judgment of the Distri~t Court of Nyamagana in Criminal Case No. 260 of 201~ Hon. V.L Mugendi, Resident Magistrate] 31st July 2019 & 31st July 2019 M.M. SIYANI, J. 4k .. ·k d h The appella~one Bara a Magere @ M ama · was arraigne at t. e ~,/~~·~~ I Nyamagana~~ Court and/indicted for Armed Robbery contrary to -~ y~v I - , - - sectfiA'281A\~nal Code Ca/ 16 RE 2002 as amended by Act No. 3 of1~16. It was alleged ·by the prosecution that on Sh_ June 2017 at "~) I. - Mhandu areaJn"Nyamagana District, Mwanza Region, the appellant stole . - - l - the sum of Tshs 10,000/= the property of one Amos Makumbat @ Magong~ and immediately before Leh stealing did threaten to cut him with a Panga in order to obtain .or rltain the said amount of money. · 1 • I ) Upon conclusion of the trial, the appellant was convicted and sentenced I to a term of 30 years imprisonment. /ggrieved, he preferred this appeal against both conviction and sentence advancing six (6) grounds of . . I . . complaints which for the reasons that will be noted shortly, I intend not to reproduce the contents of the said grounds in this Judgment. . . When the Appeal came for hearing on 31 st J~1'9, t e a~ant . . I ◊-h \\2:~V . appeared in personal and Ms .. Mwanrhawa.· <itla~ga_le, (the learned State_ . I~~~\ Attorney appeared for the Resp~1nt~~ce to address the court, Ms Changale was qu~~ d~~e- att.~'ltion of the court on two /;, 1, ~ V points of law. One; that th~ chargesbeet~ch was initially read to the . th ./2 \\ Vh"> . . nd appellant on 25 JQly~17~~ded on 22 August 2017 but the _ · amended char~ing ~njled iii Court, the same was not ready to the apgella$~d)olfne·a~lant Jid not plea to it hence contraveriing · 6:· ~~, ---✓ I · ·· sectii~2y,~a) ef\the Criminal Proceedings Act Cap 20 RE 2002; and \}h. t th two; -~~ vrt' ·t) \Id' / . b. t f · I .·t· ·. • . cou s procee 1ngs were su ~ec o 1rregu an ,es ,or failure by the trial magistrate to siJn the record as required by section 210 (1) (a) of the Criminal Proceduri Act (supra). _with regard to the. failure to read re _charge sheet after allowing the amendments of the same, the learned State Attorney contended tha~-such 2 I I omission was a fatal irregularity as the law under section 234 (2) (a) ) I I (supra) requires the court to call upon the accused person to enter his I I plea once a charge ·has been altered something which was not done in 1 . I this case. The learned State Attorney:believed that by failure to read the I · amended charge, the appellant was d~prived of his right to know what he· ' was charged with. I . I . I ~ . On the irregularities in the trial turt's~j;;tocee§ingt'Ms Changale contended that the presiding magistr-~~~~\the proceedings i ~ O . aft er recordmgs . ~fiaGh.. _w,·t·m~ th e t est·Imyo \.. as requ1remen . t of Iaw under section 210 (1) (aJ~the Cr.iirli~k:lure Act Cap 20 RE 2002. . /( ' \ .0>;} : The learned State ~ttomef'a~t such omission was an incurable :f irregularity whiGh-~l'ld~~~hole proceedings and Judgment thereof, a nullit)(..9o~~er.r2d~t~se Yo~ana Mussa Makubi and another ;;-,~~~ . II . \\-. J. Vs R~~G:riminal--Appeal No. 556/2015 to support her stance. ~ \'--- ' V I i I As to what should be the remedy, the learned State Attorney, argued 1 I 1 since the trial . was tainted with . suchI irregularities . the .court should nullify . . . I the proceedings by quashing· both the conviction and the purported . . . .. . I . - . . .. sentence and.order a retrial.of the sase. The appellant on the other hand had nothing substantial to argue,! presumably owing the ·technicality 3 i ) nature of the points raised. He sim91y requested the court to allow his · appeal. Having heard the parties, I agree with Ms· Changale that the law under ' Section 234 (1) (2) (a) of the Criminal Procedure Act Cap 20 RE 2002, I - ' • • ' 1 makes it a mandatory requirement 1 that whenever ~arge has been amended or altered in any way, th~ court shou~-the 'sama be II ~- ~"'- "-.,.~ ( \ ) . ~ •- ./ . I ···11 •~ read over to the accused person who shou~lso be called upon to plea . ; ~ \\ . ' ... , ~ I . '· . of the said provision as her~under: . l, \\ ,, ' , 234: (1) Whe/4,any'5tag~ 'tria; it appears to the court that th7harge d'cf~e~, 'either in substance or form, the court ma~~"?f>for ,rJteration of the charge either by wayJ)f;-.~en.iin.ent-of.-{he charge or by substitution or addition ✓- ~ " ~, I . @ f a new\1arg~ as the cou~ thinks_ necessary to mc1et the 0t;cumstanues of the case unless, havin11 re11ardto the merits of ~~ J - ', ::, ::,• - the ea.&;.the required amendments cannot be made without I , injustice/ and all amendments fl!ade_ under the provisions ofthis subsection shall be made upof! ;such terms as to th~ court sh~!! seemji./st :. (2) Su_bject to subsection {lJ where- a· charge is altered under , . I . . that sub.section.· · · I• (a) the court shall thereupon call upon the accused person to ) plead to the altered charge; {b) the accused may qemand thit the witnesses or any of them . be recalled and give their evidehce afresh or be further cross- . . i. . examined by the accused or his advocate an{l in such last I mentioned event the prosecut{on shall have the right to re- . examine any such witness on mJtters arising out.o¥uch further • I . . • I cross-examination/ [Underline Emphasis Suppjied] . . b .. h b ·.hid. /"-~.·h· Th ea ove prov1s1on as een couc e in ma.11\.:Ja.orv\L~rms w1,1c means ~~t·~ . . . "':;_" \ \ . its compliance is not an option),J~.:~vin~"~llowed material ~\~ ~ changes to the charge, the ~ame was~ reii<t3ver to the appellant and therefore he was not ace/Ca e~nce~ea to it. Since reading the ?D"' . /?.: \ \ (V . charg~ and recordiQg'\__Z'.'.c;~/after the changes in the ch~rge sheet 1s no~~0n, then'-a0orrectly argued by Ms Changale, failure . ·"~ }L )/ I by otaa~oyrtA:o~~he amended charge, to be read over and · explcii~~\\ellant was a~ incurable irregularity. It obviously \\h. )Jance o prepare .hi.1s df:e1ence as he d.d.·not know w.hat depnv~~ vt. I he was charged for. The above said and done, I will now· turn to the· issue· of failure· to sign proceedings after records the testiJonies of each Witness. Apparently, the. . . I . . . . ' . j . . trial court's p_roce_edings reveals fai.lure by the learned t~ial Magistrate to 5 . I I I I J comply with the requirements of sefion 210 (1) (a) of the Criminal I Procedure Act which provides the manner of recording of evidence during I I . trial. For easy of reference, I have reproduced the contents of the said provision as hereunder: i I I I 210: (1) In -trial~ other than irials under sect~21~ by or before a magistrate, the evide~ce of th~J7ess~a!!_)JP recorded in the fo!!owingmannef: ~ •~~V {a) the evidence ofeach witnelssbal/ be~t_en~ilown in writing \ , .~'b~~~""- . \ I- • 1-J.. I f 1-J.. In ",e ;anguage o u 'i\' t~~u,e~ rate! or In 1s • h .. presence and hearing'-. - ~ . ~ {b) ·and under his pet{~ directio~n..afl.d'Superintend_ence and . . {( /'\._ ~'VJ> . .. shall be signed by Him, and shall form part of the record. ~ . 0 ~ . ')d·7t I . t ' . . . 'st t ~~~~IJ a oryj requiremen ,or a mag, ra e or a pre~r(ihgoffic:\ ~ n the proceedtgs after retarding evidence of each . witn~~- The rat~na1e for that req~irement is to ensure authenticity of ~J-. 1' . • court's proceetlings. In the matter ~t hand, the learned trial Magistrate, I having recorded evidence of PWl o~ 5th September, 2017 did not sign the . I . . . . I . · same. Similar omission . can also be seen I .on the testimonies of PW2, PW3 . I • .. and PW4. Ther·e was completely ~o authentication of the proceedings • . I . even or:i the defense testimonies. ~ection 210 of _the Criminal Procedure 6 Act (supra) has been couched in mandatory terms which presupposes that its compliance is not an option. I the)efore agree with Ms Changale that failure to sign proceedings after reCoJing evidence of each witness, is an incurable irregularity . . The above said and dcine, the next question that awai~~erinination .is· what should be the fate of the prdceedinQs r~-.i~ot~ion to section 210 (1) (a) and 234 (2) cal ofth~miJ\?~ ~ - I will . hasteto say, being fatal irregul~J~~~to expunging Cif the evidence recorded theret0:'()m~o~i0 n court proceedings has ((.. l'\~.'9 been a subject of several aecisions4?om t~e'burt of Appeal of Tanzania. In Kanoni BasumalJ'an~~ot~ .Republic, Criminal Appe~I No . . -~~~/ . 360 of 2015,):~urt of J\pptal of /rranzania faced a situation where the L,4. >./,· tr·. . . to\sigr.t om1ss1oa_ ~proce_e~is- ) ~~v-✓ invo ved. some of th e prosecu t·10n w,·tn~sses. . I . The~~n\tr~ission was fatal, and t_herefore expunged from the recora~such evidence· which were recorded in contravention to ·section ~ 210 (1) (a) of the Criminal Procedure Act and proceeded to determine the appeal basing on evidence that waJ left intact. · . . . . I . . . In another case· of Yohana Mussa Makubi and another Vs Republic Crimlnal Appeal No. 556/2015 a delision.which referred with approval the · .J . 7 decision in Walii Abdallah Kibitwa and two others Vs Republic, Criminal Appeal No. 181 of 2006 (unreported) the Court of Appeal dealt with a scenario where the failure to sign proceedings extended to . . both evidence from the prosecution and defence side. Underscoring the consequences of failure to sign court proceedings the court observed the foUowing. /'. . . ,, \\\~::~>~ .· <.'." '" \ \ / . '-... ·"'·, We are thus, satisfied that failure bv--,rhe Ju/:lge· to ··append ". _,/ ' -~ ....... ~ ,, \ '.,,,, ....'·., '\ \ \ \ his/her signature after taking ·dowri·rthe '-·evidedce of every . . . /I , ' '.\ ,·,. '· \'- ~-. .. ., \ . ·,. \...\, \,..-: witness is an incurable irregularity in the prdpei' administration -·-. \~,. '-. '- "'"'·. :>\. of criminal iustice in .ilifs :'count[)I>-..... 1it·:view of the stated - I ·/. \,_\< ; . . . \.. / ,, omission the trial prbceedings'oz th~'.'J//gh Court were indeed /'·,, \ ,\ \, ·...,, '·... (-.:;'·. . _ ·vitiated and are ~ niJf/ity and neither did they constitute the "<,,, \\'- "·\., '·.,,\ ''>"-. ,. . ~•/· record oftfJ~-t(ia/atJ,_'cl._the appeal before us. /// .. ··. ' \ ·-.:. \ ···:·._/·. ___ <. -< . \\ \ ) . . The c~vrt.wint.90:(osf~teth'e following at pag~ 13 of the Judgment: ,<·:.. , ··-... "... I ... <<',\\ '~, "· \'. \ \\"\ \We are thus satisfied that before us there is no material . \,:· "\, J . . titoceedings·upon which the appeal could be determined In this ·,.,_. regar~ we agree with the learned counsel and therefore invoke our jurisdiction under Section 4(2} of the AJA/ quash the judgment the trial proceedings of the High Cour( commencing ·. from 5th March 2014. ..... Thu~ in the interest of justice/ . . we order an expedited retrial before another judge with a different . set of assessors; [Undetlined Emphasis supplied]_ . 8 j' My understanding to the above observation by the apex court of land is that where omission to sign the proceedilJgs having recorded evidence of each witness, extends to all witnesses procured, then the entire trial proceedings vitiates and so becomes a nullity. In such circumstance, an appellate ·court would have no material proceedings upon which to powers to. correct the irregularity. ,A \ <,_\. \ . . . , \ " ,.,/~~ \ \,· '\,. ,._, /-" --....•.__ I.,..___,,_,,., "'· \ ~ '\, '--.., \ ' ·- "· "· . '• coµ~ "pro<::~ediqgs after recording '• •· In this case; the omission to sigri ,,,,,/' ~\ I •',_\\, \.~ • • • • , •• ,~_ -.. \\ ' '~, ... ·, ''-,,. -~ "..,,'- evidence of each witness, coyered aH ~vident~~f(om both the prosecution ·and the defense side. Und,secti9f121;·c;>r(cl),~f the Criminal Procedure . /'"- \ . <. . ·•. '•, ? . • / • • ••'.', \\ • ', ', I '/ '\. Act, the entire pros~c4tion's'c:/3s~ therefore did not form part of the record . ',\, .. ", ' '\. '"----.,~-- -~" ~- . •. hence rende,riMg-th~-trial '~g§iri~t the appellant· a nullity. In my considered <,__ ·.. I- ':> . . view, tj)eccircumstance tffthis appeal therefore fits the circumstances in . Yoina \ . MuSsa·M~kubi's \ \ case and in terms ' . of that decision there are \\.\'· 'i :[ therefqr.e, no material proceedings upon which this appeal could be ',. -...,. determined. In the upshot, since the entire prosecutio~'s case did not form part of the record, . the .trial against .the appellant was a .nullity and this Court cannot either uphold or dismiss what is. a nullity. I a~ a result, invoke revision 9 . . I . ·_, r) powers conferred to this Court under section 373 ( 1) (a) of the Criminal " Procedure Act Cap 20 Revised Editijn of 2002 by quashing the I . proceedings and set aside the impugned Judgment and sentence imposed . 'L '·, . . • I . . by the District court of Nyamagana in riminal case No. 260 of 2017. Considering the circumstance in this- case, vis a vie the principles set in Fatahali Mallji Vs Republic [1966] f A. 343, I be~'e~rder for- a re-.trial will be a just decision. I therefte o r d e ~ ~ ~ ~ t h e foj ret~{~o~iv_ tri~I ~urt be remitted to tha: court ~agistrate . t t . . d·ct· ft tb ~-~~~ \ } t h b of compe en iurrs 1 10n a er ~\[~sa~-:3"'men s as ._een effected to the charge shee~,rtheMrd~_that should the new trial ·u · Iead to the conviction, the time t~~pellamtlhas spent in prison serving '\~v • • . \ \ V .rs') <J' the current sente~~ulcl~ken into account when passing o?fatc0rdingly~ . _. sentence. . . ~i -·v _.gd -~~p. . 0 ~ /.·. ··:~__ \~-~ ·. 4'>ATED at MWANZA tris 31 st Day of July,2019 ~-.'. ·1) . . ::..--....:-.: -/ . tt- -J, l ~M-,M• - . ··= ~- ~ '.(:"-~ :?.!: *. . . ~~, .J,, -~ ,. Iii;;;:: ---==~ -~~,-{!"' ~....!P',\' WAr••.io:;?:;< ,i:,· '~~ 10