George Sanga objection on real objects

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT NJOMBE, CRIMINAL SESSION CASE NO. 5236 OF 2024

THE REPUBLIC

VERSUS GEORGE S/O MENSON @ SANGA................................................. 1st ACCUSED GOODLUCK S/O OYGEN @ MFUSE............................................... 2nd ACCUSED OPTATUS S/O ELIAS NKWERA.................................................... 3rd ACCUSED

RULING ls! & 2nd July, 2024 I.C. MUGETA, J: During committal proceedings, the statements of D/CPL Angelo and A/Insp. Mapuga were read as part of the substance the prosecution would produce against the accused persons in terms of section 246(2) of the Criminal Procedure Act [Cap. 20 R.E 2022] (the CPA). Those statements mention real objects that would be tendered. However, those objects were not listed as exhibits. On 27/6/2024, the prosecution filed a notice of additional exhibits relying on section 289(1), (2) and (4) of the CPA. The said notice is the subject of this ruling because the defence team has argued that the section relied upon does not provide that remedy. This case provides a peculiar situation regarding the legal status of additional exhibits not listed at committal proceedings where the witness Page 1 of 4 concerned with tendering them was listed and the substance of his evidence read. In their submissions, the prosecution and defence teams led by Cecilia Mkonongo and Frank Ngafumika, respectively agreed that section 289 concerns notice of additional witnesses and exhibits if the witness was not listed during committal proceedings. However, they part company on the argument that subsection (4) does not apply if the notice does not include the name of the witness. The prosecution's view is that since the witness was named during committal proceedings, the notice

would be specific to the exhibit that was omitted and subsection (4) applies. This said subsection reads; "For the purpose this section, "substance of evidence" includes substance contained in a document, record or any other tangible object". The issue for my determination is whether this subsection can apply independent of subsection (1) which reads: "A witness whose statement was or substance of evidence not read at committal proceedings shall not be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused or his advocate of the intention to call such witness". Page 2 of 4 It is my view that subsection (4) by itself cannot support any action that has no basis is subsection (1). Therefore, by plain or literal interpretation of the concerned provision, it is clear that the situation in this case is not covered by section 289 of the CPA. But it is my further view that when drafting section 289 of the CPA, the parliament did not foresee a situation where a witness's statement could be read at committal proceedings without listing the exhibits mentioned in that statement. However, the section intended to cover both witnesses and exhibits as reflected in the wording of subsection (4). On that account, I hold, the literal interpretation of the said section would lead to absurdity because the parliament cannot intend to

permit the prosecution to issue notice of additional witnesses at the same time barring issuing notices for omitted additional exhibits. To remove that absurdity, the section ought to be interpreted under the mischief rule. The mischief intended to be cured by the section, in my view, is to provide a room for the prosecution to produce material evidence, for the sake of justice, notwithstanding omissions incurred at the committal proceedings. Such evidence, I hold, include exhibits, being documents or real objects as in this case. Page 3 of 4 It is for the foregoing, I hold that section 289 was intended to cover all omissions at the committal proceedings, being of not listing a witness or exhibits in a form of a document or real object. Therefore, the notice filed is proper. The objection is overruled. T Q- 'X\ □ M LC-Mu9e«a v y Judge 2/7/2024 Court: Ruling delivered in open court in the presence of the accused persons in person, Mr. Innocent Kibadu, Mr. Gervas Semgabo, Mr. Frank Ngafumika, Ms. Neema Msafiri and Alex Mgani, learned advocates for the accused persons, Cecilia Mkonongo, Principal State Attorney, Gines Tesha and Tito Mwakalinga, Senior State Attorneys and Elise James, State Attorney for the Republic. Sgd. I.C. Mugeta Judge 2/7/2024 Page 4 of 4