20190225 TZHC Mwanza

.- IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY) AT MWANZA HC.CRIMINAL APPEAL NO. 390 2017 {Arising from the Resident Magistrate's Court of Mwanza at Mwanza Criminal Case No. 22 of 2016) THE DIRECTOR OF PUBLIC PROSECUTION .............. : .. APPELLANT VERSUS 1. HOJA KADO . ,..,., ~., /" 2. HAMD.UNI MARCEL/' /' 3. MICHAEL ruMso r 1 \ .............. APPELLANTS 4. NESTORY MANY1uiu,\ '\: \ -5. SUZANA MICHAEL· . ' / /.. / / '. ·,_ ·' JUDGMENT A.Z. MGEYEKWA, J The Director of Public Prosecution has lodged_ a Criminal Appeal No. 390 of 2017 against Hoja Kado, Handuni Marcel, Michael Turnbo, Nestory Manyilizu, and Suzana Michael. Being 1 aggrieved with the decision of Hon. B. Cnitepo RM· in his decision dated the 12th day of October, 2016 in Criminal Case No. 22 of 20 l 6 whereby the respondents vvere· acquitted; The appellant lodged this appeal on the following ground: l. That the trial Magistrate erred himself in law and fact to acguit , the respondents by holding that the prosecuti6n case failed to establish prim a· facie case against the. '-, respOnd~nts,.,/While .. \ \ . •. there was sufficient evidence to establish the s9me. \ / ( .,. ·... ' \ ·.. Therefore the appellant prays' -for-tbis-Coljrt . ··~/:._, ->\' to allow the appeal.· . .. At the commencement of the hearing of the appeal, Ms. Flyeregete, the lea.med State Attorney raised a point of law that in the trial court's proceedings, the case wcis before ·Hon. Kalegeya from the inception to hearing the testimonies of PW 1 to PW4. On the 12th day of September 2016, Hon. Chitepa RM took over the matter and adjourned to 21 st day of September, 2016. Ms. Flyeregete continued to submit that section 214 ( l) of the Criminal Procedure Act, Cap.20 [R.E 2002) was not 2 · complied with. The learned state attorney argued that the section requires the predecessor magistrate to record reasons for taking over.- In the opinion ·ot the learned State Attorney, the· predecessor Magistrate did ·not state any reason; instead, he cited the section alone. She continued to argue that this act of transferring the -case from one Magistrate to another ·without stating the reasons{s} · for .transfer was fatal and renders all proceeding starting where the 1st Magistrate ended a nullity. . ~' \\~~ ~,- . The. learned State Attorne( :~~~~~~,_fwrt~er th~t se.cti~n 214 requires the court to re,Gord, tl}e-~V?Jtness~s' testimonies 1n i.,\., : \ '>- ' ' \ ... \.· ...... · · , , , .....~,., ...~,) narrative form. But PWS, e..w. 6 PV:flv dnc:LPW8 testimonies were in /r -- '·. _·" ',.\ . reported speech, the·refbre, it/r~nders the testimonies of PW5 to i\, •i\ / l. >~,·'· .. :\\ ' , . ..,,./ PW8 sfatements n~,t_ sta\t~d by tne'•witnesses. . ,, '\" /;/-~. ~~'··--~~~--~./,/ ___ -'-._ / JI In repl(tM~ ledfried Advocate for- the respondents "''/ . ·-'\ " - ---...:~-- --...... /" ",./ . concu_. rr&o--.J._t)at, f-0ag1str.Gtes exchanged the file. However, he hadfo~f~~~)vhen_ it comes _to remedy. He co~tinued to subm~~tief ase was 1nst1tuted 1n 20 l 6 and today IS 2018 he said t~~Col::Jft has an option· to nullify the proceedings or expunge the testimonies from the re_cords. He prayed for the court to expunge the testimonies from the record and the court proceed w!th the rem~ining testimonies and if the _case will be ordered for retrial then he prayed the matter be conducted expeditiously. 3 l The learned State Attorney 1n her rejoinder submission stated that the trial_ court misdirected itself for acquitting the respondents. She argued that PW l testified in court that -she - was informed that her properties were destructed by a tractor and she witnesses the same that her properties were destructed. She made a follow up at the /\.Ward Executive . .' ' officer; he said he ?id not direct the respona1n( to destruct PWl properties. PWl also reported thEf?r'~!:(u':t:✓\lf City . \ '· ., ~--, '\ Council, and she was informed tha/Jhe ~it,t }~pu~5;il''did not ',"' \,/I assign the respondents to destruct,1W l '·s \ properties. The (· -"··•·.--. \ '-, \ '\ . ' ~- "'"'"-~ '\ "\ \ learned State Attorney contJq~ed)'t:~ -sut?_~!t'~1Ha~ PW 1 saw the . ,,~ ', ', "', Mwanza City Council tractor cutting·'•doyvn trees, her house was ~/_.} . '- ",'-\ ··-·· ~~5,"),~' destroyed and water pipes W:ere \s(esJrLi'tted. PW 1 was able to identify Hallan D ._a~ 1 were giving directives to destruct the tree. ~-~"--_ /7✓--~':) ~ ~-~ ',", ) ) ' 0. <;)✓.~~ . . ---~-~_:Fly~reg~_ t_e Cffgl?Jed that PW supported the testimonies , , /: M_ / ·-,"' "'·, "\,_·"- .\, of Pt\ 1 and\,W3'-{rnat he saw the respondent directing the . . \ -- \ . . gradep-~nver j9 cut .the trees and PW 1 house was destroyed. \.,,_ ......._. ·_/ . '-:· . . "'-. . . . Ms. Flyeregete continued to argue that the prosecution case . was able to prove the case by its credible witnesses and PW5 tendered a sketch map in court, it was admitted and marked as exhibit P2 and the sketch _map reveal_s that the properties which were destructed were inside PW 1 plot. She added that an evaluation report was also tendered, admitted and marked 4 as exhibit P 1 and it was proved that the properties in question belonged to PWl. In her submission, Ms; Flyeregete continued . to submit that PW 6 testified that Major instructed PW 6 not to destroy the properties of PW l therefore what was done was extended from the order. Ms. Flyeregete submitted further that the respondents were required to state their case but instead, the trial Magistrate acquitted the respC?nden~ithout statrng their case. ,/ ' · , \ ~-,. ' ""'',-,, · ', '\ / \ \ ".-~/'~---~ <_ (~. \' \ , / / ,. In reply thereto, the L~arned"-., Ad~9cate for the \ '.\ / \, ; ', ·-... ', . ,, ' '- '-\. ' '•, \ respondents started by objerJi_ng )he-gl~u.nd.s for appeal, and ., >. '\., ·. .. . . "_ ,· he supported the trial c0,urt decisiori'·since they had no case to answer. Mr. Mushobe:q~·cbmiH(;;d<that 1' • / "\❖, , . . ,,, \., ?/ prima facie case ·was I, \ / / "-. ·., '·' . . " not established. ,H~ r~f~rre·d thf•· court to the charge sheet ', '\ ' "··. which stateq/..thrt ····,~spbo9~tjts · intentionally destructed the / / . house, treetci·~d\~1ate;~IP?S properties of PWl. He argved that " ', /) --~,, 'v' what was~su_ .,.,,.-.. .-...;.pp>~sed··to.:be shown is if the respondents' during 1'.!'~ '-:· ' ,,, \ '. '·. construction"'<:5:f, tlle)oad had malice to destroy the properties \\ \' . Of PW~~J act was committed by lh8 respondents. The Respondents' Advocate continued to refer the cautioned statements which were admitted as exhibit P3 and P4. He submitted that what was destructed was the main road ' . · and the reserve road. Also PW 1 testified in court that the exercise aimed constructing the main road and there is no 5 \ J evidence that the properties belonged to PW 1 or if it was part of the road reserve: In the opinion of the learned advocates for the respondents, the trial Magistrate was right to find that there was no evidence ·to justify that the plot ·belongs to PW l otherwise the matter could be instituted as a civil case to ascertain the owner_ of the property and then ~he matter could . be brought in court as a criminal case. 1n··,.~upport of his . ,. '- '\ ·- . argument, he cited the case of Ismail Bu~_hqija_v R-l~91 )lR 100 ' ' ' it was held there· is no criminal tresp,ass ·. ·.. in Giisp~;t-es~_-arising . ,/ as to \ •. ownership of land. He submitt~d further thaJ.the court is not 1( ·-, ',, \ '-, required to proceed with .cri~inol thorge; .ihstead, it should ; ' . ' ·~, ·. . \.. '• ' advise the complainant/ Jo.Jnstitute . . a:·. c.ivil . action to determine ' · the question of ownE/rship ..Mr. Mushobozi added that he is f \ ' . / / .. ••• • aware that this i-s,. . no(•a criminal trespass, but the element \.._\~- ·,\,, \,~_\·-.,~... , . ,.: resembles a c;r:irnindl,{re,spc:i~s:··// · / './. . ··, ...\ •, '·.. •' "--,., \)>,'- \ ,_ . · ) ·>·,,. '\<~: pAr:··Mll~Hob<;?zfto'iHinued to argue that PW3 testified that ;· . '•., • .• •· .. he r~~ides witt1PW{,but the house; trees belonged to him while \: \.\ . . ' PWl \_ql~o deJnanded that the properties belong to ·her. \. \, / ,· . Therefo~·e \Fr~/issue of ~ho is the rightful owner of the damaged properties needs to be determined first. Mr. Mushobozi argued _further that fhe Local Government Committee meeting authorized the construction of the main road therefore if the construction was wrongly committed then 6 u_.. I it was as per directives from the -Local Government Committee and not in the capacity of the respondents. He added that PW4 testified .that the City Council of Mwanza owned the grader and the responsible person was the Director of City Council. The Respondents' Advocate continued to argue that . the exhibit P1 show the value of the damaged ·properties but it does not indicate to whom the da~aged pro~ties belong to. Also, the Sketch map shows that there i s ~ ~~Jfi her plot. . · ~\/~ · . He added that the p r o s e : ~ ~ L t enough to establish a prima fac.ia-c~~ ~!erred the case of Kulwa . // ~~ '\) . Kab1z and 2 Others v R/1994 TlR~l Gt where the Court of Appeal · held that the Hig!z~o\J! h(<,i!!)h'Xo evaluate evidence on record whi~l:le tritil'c~_:gi§,lot. Mr. Mushobozi concluded by praying<fo~\o~\Jismiss the appeal. . A~~bmissions, the learned State Attorney insiste~d~ case ended be'fore entering defence. In rebut~sf.le~?t'ated that this is not a land dispute since the sketch map shows clearly the plots and borders, but the respondents extended the exercise of road · construction co~ering the area which they were not dJrected to c.onstruct. She added that the Major instructed the operator to construct 7 I \ th-e road and -the respondents are the one who was leading the operator. Ms. Flyeregete rebutted that the evidence of PW4 was credible since he was present while the properties of PW 1 were destructed. She said the issue- of road reserve was supposed to be raise~ at ~he defence case to prove if~'-s-h~-ke the prosecution evidence, but 1t was n o t ~ o n ~ V . Having heard the submission made by Ms. Flyeregete, learned State Attorney and Mr. Mushobezi who was representing the respondents. Before proceeding to determine the ground of appeal, let me address the point raised by ·Ms. Flyeregete, learned State Attorney that the case was transferred to another magistrate without reasons for so doing . . contrary to section 214 of the Criminal Procedure Act Cap.20 Revised Edition 2002 which inter alia provides: .~ n y magistrate, after having heard and _recorded the whole or any part of the evidence in any trial ... is for any· reason unable to complete the trial or the committal proceedings within a reasonable time, another magistrate who h9s and who· exercises jurisdiction may take over and continue the triql . . . as the case may be, and the magistrate so taking over may act on the evidence 8 \1 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 or the committal proceedings." I coincide with the State Attorney. It is outward that the trial at hand was presided over by two Magistrates in a row. It is in the record that the trial was commenced by Hon. Kalegeya, .Resident Magistrate, who presided over proceedings from the inception dated 19 th day of January, 2016 and he heard evidence of PW 1 and PW2, the prosecution witnesses. On 20 th day of April, 2016 the file was transferred to Hon. Chitepo, Resident Magistrate without stating the reason for the transfer of the fil~ to subsequent Magistrate. Hon. Chit~po, Resident Magistrate took over from PW2 an~ he composed the Ruling. Numerous decisions underscore the above point that where there is a change of Magistrate, the reason for failure to complete must be recorded. If that is not done, trial becomes nullity for the subsequent magistrate lacks jurisdiction. In the case of Salim Hussein v R Criminal Appeal No. 3 of 2011 (unreported} where the court categorically said that discretion under section 214 ( 1) must be exercised judicially and in the interest of advancing justice. In the case of AbdiMasoud@ · lboma & 3 others v R, Crimin.al Appeal No. 166 of 2015, Court of . Appeal Dodoma, (unreported), the . case of Said Sui v R Criminal Appeal No. 266 of 2015 and in the case of Abdi 9 Masoud lboma and 3 other v R Criminal Appeal No. 116 of 2015 (unreported} the Court of Appeal in discussing the above held that:-:- · " ...The provision requires that·reasons be laid bare to show why the predecessor magistrate could not complete the trial. In ·the absence of any such reason, the successor magistrate laced authority and jurisdiction to proceed with the trial arid consequently all such proceedings before him were a nullity." · The court in the above case made reference to Pr.iscus Kimaro v R Crimi'nal Appeal No. 301 of 2013 (unreported} where it had occasion to comment on a similar situation and directed that: " ... where it is. necessary to reassign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete must be recorded. ·ff that is no.t done, it may lead to ch.aos in the administration of justice. ~ Anyone, for personal reasons, could just pick up any file and cfeal with it to the detriment of justice. This· must not be .allowed." Guided by the above authorities and ·as rightly submitted by Senior State Attorney that the court proceedings did not comply with the· requirement of section 2] 4 of the Criminal Procedure Act Cap.20 [R .E 2002] and the proper order. would be to order for a retrial. However, the circumstance of this case 10 l calls me to subscribe to the position set forth in the case of Ally Rashid Masika v R Criminal Appeal No. 219 of 2006 where the · Court of Appeal stated that:- " .. .in such circumstances, the proper order would be to remit the case file back to the trial court for it to compose a proper judgment in accordance with t0e law. But each case must be decided in the light of its own facts, guided by the interests of justice." In the case of Jafas-onSamweli v RpublicCriminal Appeal No. 99 of 2002. It was held that: " Despite the shortfalls, the learned State Attorney urged to quash the proceedings and order a retrial. We have carefully considered the prayer for a retrial. But in our view ordering a retrial will amount to affording the prosecution an opportunity to fill the gaps in their case ... " ~<,/r, . . . _.._.._..-..-,., ,~ (}"et me,)>t:io~,~·"'determine the grounds of appeal to see ( i \ ·,. ',• \ . whef~:~r there\:~re ~ny justifiable reasons for this Court to order \t.\.. /J . a retriakfJGJ~"ttf,&'. ';~~-:'~.,~/'. ',, course of . hearing of the appeal, a pertinent issue wds raised by the learned State Attorney" on whether the trial magistrate was right to acquit the respondents on no case to answer. 11 I have read the record· of appeal between the lines and found that all ·prosecution witnesses were heard. Thre·e exhibits . were tendered; the Evaluation Report (exhibit Pl), the sketch map (exhibit P2} and caution statements for the l st , 2nd and 3rd accused (exhibit P3}. After having, examined the evidence adduced by the prosecution side, the trial magistrate made a (·. ruling of no case to answer pursuant to secti~X1 230 of the Cri.minal Pro.cedure Act Cap.20 [R.E 2002)(~hictl stci~~st~at: \ \ '•. . -., ',,__ 't ~ \ '• . \ \ / ', " If at the close of the evidence irj'suppbH ' . \ of the. charge, it appears to the court tho( . a- . case.~is.hot\mode -., . . out against ' the accused person <;µffici'ent/1, 1 +o··;equire him make a defence either .inlf'eiotionto I th~ offence , - \.;,- of which under the 1 ·. /.' ·, . . provisions of sec[ti.ons \ ·,\ 300 ( and 309, of this Act . he is liable to be ~- '\,. '· ' \ . ~ convicted ff:Jeco0rt shall cjismiss the charge and acquit the '\, • .... , \.,,_ '-.._ r/ accusetJperson: 11 .,_ ·.. ' <:J' ·. · l Jt:-Jf}iJ Jhe. r~cord that the respondents are members of . •, ,;_ . ••. ._ ·•, • '• .. , f \ .. '·, \'\ ' locql :governrQ~nt ·committee, employees. of local government ' ) •. . \t \ \ ' . of Md1itBt?e a!i<? they were assigned to construct the main road ", ·'•~·: . .....,./" of Malimb:~;: therefore they inst~ucted the tractor operator to. construct the main road of Malimbe. T_he instructions given were within the scope of their assignment since they were executing the assigned. duty. During the discharge- of the said· assignment, they might have exceeded the direc;:tives given. But as long as they acted within the directives of road 12 construction and · not otherwise, that means the properties which were pulled down during road construction processes, were not maliciously destroyed.· 1f at all there were properties which vvere wrongfully destroyed in the course of constructing the road, then the liability would fall in the shoulders of the employer. "' ' . In order to convict someone on m61icious destwction of ~ •.\. \ . - ·.. '·_,, ~... ,. ,, '-/ \, . property, it must be proved thQ( ·a prrs9rJ.~·-:~ilfCJlli and ~ '·, \ ' ./ . .. ·-.. . \., maliciously damaged the property of'·.andther person. That /: ~-··"•·.. -. ,..,,..,,.·-.,,., --, '\ means it was necessary for -t):le ~Xp$ecution\;dse to prove that . '' \_ > -.. ,. .· . the respondents wilful and) m'b!JcJou;: Gl~stroyed the properties 7.,,- '···,)., . ". .-. ',, . · of PWl. However, in fh'e presenf",c-ase~' the evidence reveals \\ " "' ~~~~b"C:3' c';;uncil . had instructed the · / that the Mayor commrttee,?:e~ber~'\~~t\:uc! the morn road of Mallm_be and some G~\'.de~_yver~otrfred about the road construction '\, \,, / - .....~";,.._ which,.,.was-,going on:---,lo) the circumstance, the malice of the /. ~---~, .· ' " ' resp~fden~~~~~mot be established as they were acting in acc~r~~ce j'ifh the directives of their employers. · · ,_,--._.,..,, I . <._;__.;/ Additionally, the prosecution case tendered the sketch map and the evaluation report/letter as an exhibit in court to prove the offence. But I have noted thot as rightly stated by the learned counsel for the respondents, PWl could not prove her ownership over the damaged properties. Among the 13 ·documents tendered in court,· none proves that PW l was the owner of the said properties. Therefore, PVVl was supposed to tender documentary evidence of ownership. Consequently, PWl was required to prove that she is the legal owner of the damaged properties. Taking into account that PW2 also raised a confusing statement that his hut was also destructed, but the ; charge sheet shows that all dal'!)aged properties belonged to PWl. Therefore, the issue of who is the(rightful \ . oWner/of the ', . -, ' damaged plot was required· to bE;t.-~esol\ed .. :othe~ise, the '\_~: \,.\ \, , . prima facie case against the respondents_ could not in any way ,/ \\\ '·, ' be established. . //,/ ,, .- . \,'·· .. , ·. '-... :,, For the reasons ptoresoi?,\,1-,fj~c~ the trial magistrate was \ - '· right to find that tri~ pro:S~cution\J1ad failed to establish a prima . --,,-''-,., \ •... -·.-·-,_ ,,.:' . facie case to- \t'(alFQn! --the --respondents to defend. In the ,,..,,·-! '•,,_ -\··. '\·.,: ' >, proceedin§'Js-of tl;)e trial---eourt, it has not been .established if at ',\\., ''.>/,/ ~.. . ',1_ all t~e--T~~p~h~-e~ts wilfully and maliciously destructed the l, ,(, " ~ \ of\·\Wl. >Jhe. prose~ution evidence was weak in · s.\ " pro~~rties estab1jsqing if )the alleged dam-aged properties belonged to ~ ··-.,, .. _~~-__,,...,/t PWl. - _i. •_· In my opinion, the facts · unequivocally show that the complained act was a civil by nature. The person who rolled . . . . the criminal wheel ought to have opted for a civil wheel by suing the authority which ordered the construction of the road 14 for compensation. Therefore, the respondents were wrongly charged. Based· on the foregoing analys·is, I find no merit on the 15 I