CLEMENT ZABRON VS THE REPUBLIC CRIMINAL APPEAL NO 383 OF 2023

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CQRAM; MUGASHA, J.A.. MWAMPASHI. 3.A.. AND NGWEMBE. J.A.T CRIMINAL APPEAL NO. 383 OF 2023 CLEMENT ZABRON................................................................... APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT [Appeal from the judgement of the Resident Magistrate's Court of Bukoba at Ngara] (Ndale. PRM. Ext JH Dated the 28th November, 2022 in HC Criminal Session No. 104 of 2019 JUDGMENT OF THE COURT 11th & 14th March, 2025 NGWEMBE. J.A.: Before the resident Magistrate's Court of Bukoba, (Hon. Ndale Ext. Juris), the appellant stood charged for murder contrary to sections 196 and 197 of the Penal Code (Cap 16 R.E. 2002) in Criminal session Case No. 104 of 2019. The charge against the appellant indicated that on 06/05/2018 at Ibuga village within Ngara District in Kagera Region, unlawfully killed Josia s/o Brasio @ Niyonzima (the deceased). After a full trial, the appellant was found guilty as charged, consequently, he i was convicted and sentenced to suffer death by hanging. Dissatisfied by both the conviction and sentence, preferred the instant appeal. Owing to the nature of the complaint constituting the appellant's grounds of appeal to be revealed in due course, the movement of this case from committal to trial, deserves a brief glance. Before Ngara District Court in PI No. 13 of 2018, whose committal proceeding was finalised on 10/12/2019, the appellant was duly committed for trial before the High Court of Tanzania at Bukoba. At the High Court, the case was registered as Criminal Session Case No. 104 of 2019 and was placed before Hon Judge in charge (Hon. Kairo, J) on 20/01/2020 and the following order was made in the absence of the parties: "Court: Pursuant to the provision o f section 45 (2) o f the Magistrate Court Act Cap 11 RE 2002.1 hereby transfer this criminal session case No. 104 o f 2019 to be heard and determined by Hon. Joyce Minde - SRM with Extended Jurisdiction." Before the Resident Magistrate's Court of Bukoba at Bukoba the case file was registered as Criminal Session Case No. 05 of 2020 and was placed before Hon. Minde, SRM (Ext. Juris) for plea taking and Preliminary Hearing. The record is silent on what happened after Preliminary Hearing before Hon. Minde, SRM (Ext. Juris). However, on 20/10/2022 the case file was placed before Judge in charge (Hon. Kilekamajenga, J) where another order was made as follows: "Court: Pursuant to the provision o f section 256 (A) (1) o f the CPA cap 20 R.E 2022. I hereby Re — Assign: criminal session 05/2020 REPUBLIC VS CLEMENCE S/O ZABRON to be held and determined by Hon. FROLA NDALE (PRM-ESQ) with extended Jurisdiction." The trial then proceeded before the Hon. Ndale (Ext. Juris) to the end. The trial court found the appellant liable as charged, convicted and sentenced as alluded to above. The decision is now being appealed before this Court. Having recounted on how the case file landed before the Resident Magistrate with Extended Jurisdiction, we now briefly give an abridged revelation of facts from the evidence adduced during such trial. The deceased Josia s/o Brasio @ Niyonzima was among the members of the local militia commonly known as askari jamii in Ibuga village where a local security program known as Uiinzi Shirikishi was established. The participants of the said program were the villagers themselves by roaster. It was also established rule of custom for security in their village, that such security militia would start patrol at 21:00 hours to 06:00 hours. Shops and bars business were required to close at that time when the patrol commence. It transpired that on 06/05/2018, the deceased was along with other members of the militia in the ordinary duty of patrol within their village. They reached at the kiosk which was still open where the militia ordered to be closed but in vain. The incident of ordering closure of the door of that Kiosk raised exchange of words which led into death of the deceased and the appellant was apprehended and charged for murder. At trial the appellant in his defence confirmed the main sequence of events given by the prosecution witnesses, but he denied to have involved himself in any conflict with the deceased. As alluded to above, the trial court found the appellant responsible to the death of the deceased hence, he was convicted and sentenced to death under section 197 of the Penal Code. The appellant was dissatisfied and lodged his appeal to the Court raising three grounds which we do not intend to reproduce as at the hearing of the appeal, those grounds of appeal were abandoned and one new ground was adopted that is; the trial court had no jurisdiction to try the case. 4 Before us, Ms. Ajuaye Bilishanga, Principal State Attorney accompanied with Ms. Chema Maswi, Senior State Attorney and Mr. Dickson Makoro, learned State Attorney appeared representing the respondent Republic, while Mr. Samwel Angelo, learned advocate entered appearance for the appellant. At the outset, Mr. Angelo prayed to abandon all the grounds of appeal raised in the memorandum of appeal as earlier pointed out and prayed to argue the single ground above stated. Submitting in support of the appeal, Mr. Angelo argued that the transfer which purported to grant jurisdiction to the trial court was done under section 45 (2) of the Magistrates Courts Act, which according to him, it was improper. He explained that section 45 (2) is used to transfer appeal cases from the High Court to the Resident Magistrate with Extended Jurisdiction and not original cases as it was in this matter. Under the circumstances the case ought to be transferred under section 256A (1) of the Criminal Procedure Act (the CPA). He thus implored the Court to nullify the whole proceedings, judgment and orders made therein. On the way forward, Mr. Angelo suggested that there was no evidence upon which the appellant would be properly retried. He pointed that key witnesses were not called to testify at trial and the source of murder and reason (motive) was not established by the prosecution. He further pointed that the appellant has spent seven years in prison, thus implored the Court to acquit the appellant as a retrial cannot be appropriate in the circumstances of this case. Responding to the appellant's counsel, Ms. Maswi, learned Senior State Attorney, first conceded to the ground of appeal that the first transfer as appears in page 27 of the record of appeal was irregular, while the second transfer as appears at page 35, was properly made under section 256A (1) of the CPA. Thus, she agreed on the suggestion made by the appellant that the whole proceedings, judgment and subsequent orders of the trial court be nullified as the Hon. Minde (Ext Jur) had no jurisdiction to conduct Preliminary Hearing. However, she parted ways with the appellant's counsel on the way forward. According to Ms. Maswi, the remedy would be to order a retrial as the available evidence is watertight against the appellant. The appellant was properly identified at the scene of crime and that the identifying person was familiar to the appellant. Thus, she implored the Court to order a retrial. In rejoinder, Mr. Angelo reiterated the previous suggested remedy and he stressed that the prosecution evidence was inconsistent on the weapon used by the appellant, whether it was a bush knife or machete. To him these are two different weapons. We have paid a very serious consideration to the submissions by both learned counsel for the appellant and State Attorney for the Republic, as deserving. To begin with the propriety of the transfer which gave birth to the issue of jurisdiction is questioned. We are cognizant that jurisdiction in any matter is a question of paramount significance which must be properly judged by an adjudicator or any person presiding over a dispute, as a prerequisite. It is also known that jurisdiction of courts or such bodies, is a creature of statute, here again the presiding officer must keenly look at the statutory provisions and scope of powers granted upon him. According to our law, the jurisdiction to try criminal cases for offences of murder, among others, is granted to the High Court as provided for under section 164 (1) of the CPA. The Resident Magistrate with extended jurisdiction may only exercise some powers of the High Court if so granted under section 256A of the CPA in case of original proceedings or section 45 (1)(2) of the Magistrates Court Act, for appeal cases. For clarity section 256A (1) of CPA is quoted hereunder: "The High Court may direct that the taking of a plea and the trial of an accused person committed for trial by the High court, be transferred to, and be conducted by a resident magistrate upon whom extended jurisdiction has been granted under subsection (1) o f section 173."(emphasis is ours). The above provision gives a clear scope. First: It applies only to the original cases, for which the accused person has been committed for trial before the High Court. Second; when under the provision a case has been so transferred to a resident magistrate with extended jurisdiction presiding over a Residents Magistrates Court, such a resident magistrate is vested with jurisdiction of taking a plea and conducting full trial of the case. Further, such magistrate will have all powers exercisable by the High Court in its original jurisdiction in respect of that particular case. What transpired in this matter has been sufficiently addressed by parties as reflected in the record. The case file was transferred and assigned to Joyce Minde, SRM (Ext. Jur) on 20/01/2020 who proceeded with the case in Plea Taking and Preliminary Hearing only. Then on 10/10/2022, the same case was reassigned to Hon. Frola Ndale PRM (Ext. Jur) who proceeded with the case to finality. We find that such a procedure was irregular in three aspects, which in our considered opinion, disposes of this ground of appeal. One; the first transfer to Hon. Joyce Minde, SRM (Ext. Jur) was made under section 45 (2) of the Magistrate's Courts Act, which is a wrong provision. 8 As earlier pointed out, the provision applies only for appeals filed before the High Court. Transferring the case under the wrong provision is fatal and affects the jurisdiction of the magistrate to whom the case was transferred to. This is what we held in the caseof Juma Lyamwine v. Republic, Criminal Appeal No. 42 of 2001 (unreported). Two; Assuming the transfer was proper,the said magistrate did not exercise the powers granted to her as it would ordinarily be expected. She, proceeded only with plea taking and Preliminary Hearing instead of proceeding with her duty as expected, she made the following order: "Court; This is the end o f preliminary hearingthis case is adjoined till the next session to be fixed by the Deputy Registrar till then the accused person shall remain in custody." The magistrate had abdicated her duty, by ordering that the next session will be fixed by the Deputy Registrar while the Deputy Registrar had no powers whatsoever to deal with such case as it had already moved to the Resident Magistrate Court (Ext Juris). This Court has in several occasions stressed on the need to proceed with the case unless there is a valid reason for not doing it. See for instance Selemani Juma Karani v. Republic (Criminal Appeal 581 of 2015) [2016] TZCA 941 (6 9 April 2016) and Masana Mwita @ Marwa v. Republic (Criminal Appeal No. 194 of 2012) [2014] TZCA 2289 (23 July 2014). In the latter, the Court held inter alia: 'We will hasten to add that the PRM EJ to whom the case has been transferred as above must take the plea and conduct the trial to completion unless for some reason, which must appear on the record, the PRM EJ who had started to deal with the matter is unable to proceed with it to the end" But what is on record, the magistrate had disassociated herself from the case file and no reason was assigned. Three: The same case file seems to appear before the Judge in Charge of the High Court, who conducted what he called reassignment under section 246A (1) of the CPA, the reasons and channel through which the file returned before the judge for reassignment are unknown. However, the second Resident Magistrate with extended jurisdiction proceeded under the proper provision of the law, but the plea taking and Preliminary Hearing was irregular as alluded to earlier on. We would therefore accede to the concurrent suggestion of the learned counsel that the first assignment was irregular, as such the 10 proceedings, judgment and subsequent orders emanating from the trial court are nullified. We have to Consider the rival arguments on the way forward. It is evident that the counsel for the appellant suggested that a retrial may not be appropriate because there was no strong evidence against the appellant, hence he be set free, while Ms. Maswi resisted and implored the Court to order a retrial because the evidence against the appellant is strong. We are conversant of our golden rule to order retrial as was expounded in the case of Shaban Abdallah v. Republic (Criminal Appeal No. 255 of 2013) [2014] TZCA 2239 (16 July 2014) that: "Generally, retrial will be ordered when the original trial was illegal or defective. However, it is not the rule o f thumb that retrial will always be ordered when the original trial is illegal or defective. Each case will depend on its own facts and circumstances. Indeed, an order o f retrial should only be made where the interest o fjustice require." In the cases of Nicholaus Mgonja @ Makaa v. Republic (Criminal Appeal No. 265 of 2016) [2018] TZCA 243 (23 April 2018), Abeid Yahaya v. Republic (Civil Appeal No. 549 of 2016) [2018] TZCA 233 (20 April 2018), the Court ordered retrial. The rule remains intact li that retrial will be ordered where the interests of justice so requires. For the interests of justice, the instant appeal, deserves to be retried. Having so reasoned, we allow the appeal, nullify the proceedings, judgment and any subsequent orders made by the trial court. We further order remittance of the case file to the High Court to be retried by a Judge of the High Court expeditiously. Meanwhile the appellant shall remain in custody awaiting the retrial. DATED at BUKOBA this 14th day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 14th day of March, 2025 in presence of Appellant in person and Mr. Dickson E. Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.