deus so yusuph and another vs republic 2020 tzhc 816 29 april 2020

IN THE HIGH COURT OF TANZANIA (MWANZA DISTRICT REGISTRY)

AT MWANZA CRIMINAL APPEAL NO. 94 OF 2019 (Appeal from the Judgment o f the District Court o f Misungwi at Misungwi (Mkisi, PDRM) Dated 24fhof June, 2016 in Criminal Case No. 14 o f 2015) DEUS S/O YUSUPH.............................. 1st APPELLANT PASTORY S/O MCHELE....................... 2ndAPPELLANT

VERSUS THE REPUBLIC.............................................. RESPONDENT

JUDGMENT OF THE COURT 22nd April, & 29th April, 2020 ISMAIL.

3. This appeal arises from the judgment of the District Court of Misungwi at Misungwi which convicted the appellants and their co­ accused person of three counts of assorted offences. These counts were: Obtaining money by false pretence, contrary to sections 301 and 302 of the Penal Code, Cap. 16 R.E. 2002; Conspiracy to commit an offence, contrary to section 384 of the Penal Code (supra); and personation contrary, to section 369 (1) and (2) of the Penal Code (supra). Consequent to the conviction, the appellants were sentenced to imprisonment for seven years; five years; and another five years on the 1st, 2nd, and 3rd counts respectively. These sentences were ordered to run concurrently. Even at the risk of sounding banal, I find it apt to state facts that bred the present appeal, albeit briefly. It was alleged that on 10th February, 2015, while at Nyashishi locality within the district of Misungwi in Mwanza Region, the appellants and their accomplice conspired, personated and obtained money by false pretence. The 1st appellant is alleged to have posed as Malimi Robert, the owner of a 2 1/2acre-piece of land that he sold to a Ms. Sarah Charles for a sum of money amounting to TZS. 3,580,000/=. The 2nd appellant posed as the 1st appellant's father who had offered the piece of land to the 1st appellant, while the 3rd accused in the trial proceedings witnessed the sale and stamped

the sale agreement, masquerading as a Mr. Gerald Simoni, the Chair of Nyashishi Ward. The purported purchase price was paid in four instalments. Subsequent to these payments, the victim was informed by a neighbor that the piece of land purportedly sold to her never belonged to the 1st appellant and that the 3rd accused who posed as a ward leader did not occupy any leadership position in that ward. It is at this point in time that the matter was reported to police. Police investigation concluded that the appellants and the 3rd accused were culpable. They were arraigned in Court on 1st June, 2015, and charges were read. They all pleaded not guilty and maintained their innocence throughout the trial proceedings, claiming that they were not known to each other and that none of them was a resident of Nyashishi. The trial court could hear none of that defence. It went ahead and found them guilty, convicted them of the offences charged and sentenced them accordingly. The conviction and sentences did not go well with the appellants who chose to challenge it through this appeal. The petition of appeal has five grounds which are paraphrased as follows: one, that the trial was presided by two magistrates and no reasons were adduced for takeover of the proceedings by the successor magistrate; two, that the trial court erred when it relied on exhibits P7, P7 and P8 whose

procurement offended the provisions of the Criminal Procedure Act, Cap. 20 R.E. 2002 (CPA); three, that the prosecution's failure to summon a witness from Vodacom rendered the transaction reflected in exhibit P4 to have no value; four, that exhibits P6, P7 and P8 were repudiated and retracted, 3 and the trial court erred when it relied and acted upon it, without conducting an inquiry to ascertain their voluntariness or otherwise; and five, that the prosecution did not prove the case beyond reasonable doubt. At the hearing, the appellants appeared in person and fended for themselves, while the respondent enjoyed the usual services of Ms. Gisela Alex, learned State Attorney. When the appellants were invited to address the Court, they simply urged the Court to receive and consider their grounds of appeal and, consequently, acquit and set them free because they are not culpable and have spent quite a considerable time in prison. In her address to this Court, Ms. Alex began by submitting that she supported the conviction and sentence passed against the appellants, on all the counts. She stated, however, that she has noted a couple of what she considered to be fundamental discrepancies which are a recipe for disaster. She held the view that such flaws have the impact of vitiating the trial proceedings. The first of such discrepancies relates to the trial court's failure to state

reasons for takeover of the matter by one trial magistrate from the other who conducted part of the trial. Referring to page 22 of the proceedings, the learned counsel submitted that the trial court's proceedings dated 30th September, 2015, show that the testimony of PW1 was recorded by Mwambapa, RM., while the evidence of PW2 and the rest of the witnesses was taken by Mkisi, PDRM. Ms. Alex contended that this was an anomalous conduct which violated the provisions of section 214 (1) of the CPA which require that reasons for takeover of the matter be given whenever such takeovers occur. In this case, no reasons were given by Mkisi, PDRM. It was the counsel's assertion that in view of this failure, the trial proceedings by the successor magistrate are flawed and, therefore, a nullity. She fortified her contention by citing the case of Said Sui v. Republic, CAT-Criminal Appeal No. 266 of 2015 (unreported), in which it was held that failure to give reasons for the takeover rendered the subsequent proceedings a nullity. The second infraction is in relation to the trial magistrate's failure to consider the defence case when he composed the judgment. Ms. Alex argued that this was a fundamental omission which renders the judgment farcical and, therefore, a nullity. She implored the Court to be enjoined by the Court of Appeal's decision in Jonas Buiai v. Republic, CAT-Criminal Appeal

No. 49 of 2006 (unreported), in which it was held that such failure vitiates the decision. 5 Addressing the Court on propriety or otherwise of the sentence imposed on the appellants, Ms. Alex submitted that the sentences; were seven years and five years of imprisonment, running concurrently. She further contended that the presiding magistrate was of the rank of PDRM i/c, meaning, in long form, Principal District Resident Magistrate in charge. She was of the view that this is a rank higher than that of a Senior Resident Magistrate, implying that his sentencing powers are equal to or higher than those reserved for the Senior Resident Magistrate. She contended that, in view thereof, the sentence imposed in respect of the first count was not excessive or unlawful. In conclusion Ms. Alex urged the Court to consider the anomalies raised above and order that the matter be remitted back to the trial court for re-trial. The appellants had nothing useful to rejoin, other than urging the Court to set them free as re-trial would perpetuate an injustice that they have already suffered. Given the decisive nature of the two points raised by the counsel for the respondent, I find it apposite to first pitch a tent on those two points. But before I do that, I wish to subscribe to the respondent's contention on 6 the powers of the trial magistrate of the rank of PDRM to impose a sentence of seven

years' imprisonment. His rank is superior to that of the normal resident magistrate whose sentencing powers are capped to five years. Since the trial magistrate's rank is higher than that of the senior resident magistrate, the sentence he meted out is perfectly within the sentencing powers conferred on him. Reverting back to the main subject, the question for determination is whether the trial proceedings and the ensuing judgment are tainted with the alleged maladies and, if so, what is the resultant consequence? The respondent's counsel has taken a serious exception to the manner in which conduct of the trial proceedings changed hands from Mwambapa, RM to Mkisi, PDRM who heard the remainder of the testimony, and composed and pronounced the judgment. The contention is that such transfer or takeover flouted the provisions of section 214 (1) of the CPA. For a better appreciation of the import brought about by the said provision, it behooves me to reproduce the substance of it as hereunder: "Where any magistrate, after having heard and recorded the whole or any part o f the evidence in any trial or conducted in whole or part any committal proceedings is for any reason unable to complete the trial or the committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial or committal proceedings, as the case

may be, and the magistrate so taking over may act on the evidence or proceeding recorded by his predecessor and may, in the case o f a trial and if he considers it necessary, re-summon the witnesses and recommence the trial or committal proceedings." Determination of compliance or lack of it took me to the heart of the trial proceedings and, specifically, page 22 of the typed proceedings in which part of the court's business for the day was recorded as follows: Date : 30.09.2015 Coram : R.E Mkisi - PDRM Prosecutor : A/Insp. Mugenyi C.C : Nyalali - RMA Accu : Present PP: The case is for hearing. I have two witness (sic). Accuseds: We are ready COURT: PROSECUTION CASE PROCEED PW2 Ally Juma, 26, Islamic The quoted excerpts reveal, quite clearly, that Mkisi, PDRM, who staged an entry into the proceedings as a successor magistrate in the proceedings did not put any semblance of a remark to shed some light as to why this partly heard matter fell into his hands. Missing, as well, is the fact that the successor magistrate did not wish to know if the parties were happy with continuing from where the predecessor magistrate left, or if they had wished to have the evidence taken afresh. Both of these requirements are an imperative obligation of any successor magistrate in a case in which testimony has been partly recorded prior to the takeover. In this case, what constituted the reason for

the takeover and whether parties wished to make a choice on how they wished to proceed with the matter are issues which were kept in the breasts of the successor magistrate. They are not scripted anywhere in the proceedings. This suggests that the requirements set out in section 214 (1) of the CPA were scorned. The disdainful conduct demonstrated by the successor magistrate in the trial proceedings is a jurisdictional issue whose indulgence has been roundly abhorred in a multitude of the decisions made by the Court of Appeal of Tanzania, one of which is the Said Sui v. Republic (supra) in which an illustrative meaning of the provisions of section 214 (1) of the CPA was given as hereunder: "In the present case the trial o f the appellant was handled by three different magistrates with no reasons whatsoever being assigned for the change o f any o f the magistrates. This means that the two successor magistrates, in the absence o f reasons for the takeover, lacked jurisdiction to try the case. The irregularity as we have already endeavored to show was fatal."[Emphasis supplied]. The sound waves in the just quoted decision reverberated in the subsequent decision of Juma Kuyani & Musa Daudi v. Republic, CAT- 9 Criminal Appeal No. 525 of 2015 (unreported), wherein the superior Bench had the following observation: "In terms o f section 214 (1) o f the CPA, reasons must always be given

and recordedin case o f change o f trial magistrates, even for the purposes o f passing sentence." Both of these decisions took inspiration from the epic decision of the superior Court in Abdi Masoud Iboma and 3 others v. Republic, CAT- Criminal Appeal No. 116 of 2015 (unreported), in which the following remarks were made: "... The provision requires that reasons be laid bare to show why the predecessor magistrate could not complete the trial. In the absence o f any reasons, the successor magistrate lacked authority and jurisdiction to proceed with the trial and consequently all such proceedings before him were nullity." At this juncture, regard has to be had to the that fact assignment of reasons for the takeover is not a mere public relations act. It is intended to inform the parties that the successor magistrate is legitimately assigned to handle the matter. It also informs the parties of the reason as to why her predecessor could not take the trial proceedings to their tail end. True as well, is the fact that this imperative requirement is also a way of stemming 10 all unscrupulous behaviours of changing magistrates at will, and for sinister or selfish motives. Failure to nip such behaviours in the bud would defeat the Court's intention and duty of ensuring that the orderly conduct of the proceedings is conserved and proceedings are insulated from any possible meddling

by judicial officers who are not assigned the responsibility of handling particular proceedings. (See: Priscus Kimaro v. Republic, CAT-Criminal Appeal No. 301 of 2013 (unreported)). As stated by this Court in Twaribu Amri @ Mohamed v. Republic, HC-Criminal Appeal No. 119 of 2019 (Mwanza -unreported), this "is a rule against the unscrupulous; a rule against anarchy in the administration o f justice. It is a way o f ensuring integrity o f the judicial proceedings." This position echoes what was recently accentuated by the Court of Appeal in Mariam Sumbiro (Legal Personal Representative o f the Late Ramadhani Abas v. Masoud Mohamed Joshi & 2 Others, CAT-Civil Appeal No. 109 of 2016 (unreported). In the foregoing case the superior Bench was inspired by its own reasoning in M/S Georges Limited v. The Honourable Attorney General and Another, CAT-Civil Appeal No. 29 of 2016 (unreported). It was held: ii "The general premise that can be from the above provision is that once the trial has begun before one judicial officer that judicial officer has to bring it to completion unless for some reason he/she is unable to do that. The provision cited above imposes upon a successor judge or magistrate an obligation to put on record why he/she has to take up the case that is partly heard by another. There are a number o f reasons why it is important that a trial started by one judicial

officer be completed by the same judicial officer unless it is not practicable to do so. For one thing, as suggested by Mr. Maro, the one who sees and hears the witness is in the best position to assess the witness's credibility. Credibility o f witnesses has to be assessed is very crucial in the determination o f any case before a court o f law. Furthermore, integrity o f judicial proceedings hinges on transparency. Where there is no transparency justice may be compromised. "[Emphasis is mine]. See also National Microfinance Bank v. August/no Wesaka Gidimara T/A Builder Paints & General Enterprises, CAT-Civil Application No.74 of 2016; Fahari Bottlers Ltd and Another v. The Registrar o f Companies & Another, CAT-Civil Revision No. 1 of 1999; and Kajoka Masanga v. Attorney General and Another, CAT-Civil Appeal No. 153 of 2016 (all unreported). 12 The unanimous message in all of these decisions is to have these proceedings gotten out of the way by declaring the flawed part a nullity and order a retrial. Before I take that route, it is pertinent that the second limb of the respondent's concession be subjected to scrutiny. This relates to the trial magistrate's disregard of the defence testimony in composing the judgment. A cursory glance at the said judgment reveals that the decision of the trial magistrate was a one sided affair that chose to disregard anything that was

testified in defence of the matter. This means that, in arriving at the conclusion that found the appellants guilty, reliance was only placed on the prosecution evidence in total disregard of the defence testimony. It should be understood that trial courts are under a strict duty of ensuring that determination of cases that are before them takes into consideration the totality of evidence tendered before them. Piecemeal evaluation of evidence or in isolation of one set of testimony is a flagrant error which has dire consequences. It goes to the root of the legitimacy of the decision bred by this flawed process. The trial court's duty in this respect has been widely discussed. In Henry Mpangwe and 2 others v. 13 R (1974) LRT 50, the Court quoted with approval the decision of the defunct Court of Appeal for Eastern Africa in Ndege Marangwe v. R 1964 EACA 156, to the effect that: "It is the duty o f the trial judge when he gives judgment to took at the evidence as a whole... It is fundamentally wrong to evaluate the case o f the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it". In Elias Stephen v. R (1982) TLR 313 (HC), the Court slammed the conduct of the trial magistrate who failed to create a balance in arriving at a finding. The Court held thus: "it is dear from the judgment that the trial magistrate did

not seriously consider the appellant's defence. Indeed, he did not even consider the other defence witnesses who testified to it. He merely stated 'defence o f accused has not in any way shaken the evidence'". So critical, is the requirement of considering the defence testimony in composing a judgment that the Court of Appeal had to weigh in and censure decisions which 'walk against the grain'. In Michael Joseph v. Republic, CAT-Criminal Appeal No. 506 of 2016 (Tabora) (unreported), the superior Bench observed: "In the appeal before us, it is evident from the excerpt o f the trial court judgm ent... th a t.... it ignored the material portion o f the 14 evidence laid before it by the accused person, now the appellant herein. The trial magistrate totally ignored the evidence o f the appellant and worst still he did not even consider that defence in his analysis." The foregoing position was drawn from the superior court's own previous pronouncement in Malando Bad' and 3 others v. Republic, CAT-Criminal App. No. 64 of 93 (Mwanza) (unreported). While allowing the appeal and releasing the appellant, the superior Court held: "As was held by the Court o f Appeal in Okoth Okale v. Uganda (1965) EA 555 it is an essentially wrong approach provisionally to accept the prosecution case and then to cast on the defence the onus o f rebutting or casting doubt on that case. It is an

error separately to look at the case for the defence but evidence should be looked at as a whole. We believe that had the trial magistrate not fallen into this error, his decision on the case would probably have been different. " As amply conceded to by Ms. Alex, the decision by the trial magistrate was profoundly a one sided affair and did not conform, in any slightest manner, to these fundamental tenets of the law. The inevitable consequence of all this is to apply the principle accentuated in the landmark decision of Lockhart-Smith v. United Republic, [1965] EA 217. The following principle was distilled: 15 "Speaking generally ... It is for the prosecution to prove its case beyond reasonable doubt. It cannot do this unless the evidence given by or on behalf o f the accused is put into the balance and weighted against that adduced by the prosecution. The question is whether anything the accused has said or which has been said on his behalf introduces that reasonable doubt which entities him to his acquittal. The principle is elementary, but fundamental nonetheless, and authority be needed for the proposition that failure to take into account any defence put up by the accused will vitiate conviction, it is not hard to fmd.... The learned magistrate in this case, in my view, did not, as he would have done, take into consideration the evidence in defence, and for this reason

the conviction... cannot be allowed." The defence testimony which appears at pages 50 to 52 of the typed proceedings, ranged from the 1st appellant's allegation of absence from the scene of the crime on the fateful day to denying knowledge of one another and the victim of the alleged offences. While it is possible that part or the whole of this defence testimony lacked veracity or the necessary cutting edge in exculpating themselves from the alleged wrong doing, choosing to rebuff it is not an act which would augur well, especially where it creates an imbalance in the dispensation of justice. It is an affront which is 16 intolerable and, as a result, I quash the judgment and set aside the resultant conviction and sentence. Having held that the judgment and the trial proceedings were profoundly flawed, the inevitable question relates to the next course of action. Whereas the appellants passionately urge the Court to set them free, the respondent's counsel is rooting for a re-trial. As a matter of principle, acquittals are verdicts which are sparingly entered and they are invariably ordered in compelling circumstances. Often, acquittals are ordered where the prosecution testimony is less sufficient or where the appellate court is of the view that re-tried will hand the prosecution an opportunity of plugging the holes that come with a weak evidence. Where the appellate court holds

the view that the admissible or potentially admissible evidence would deliver a conviction, the acceptable practice that meets ends of justice is to order a re-trial. This was held in Paschal Clement Branganza v. Republic [1957] EA 152. The Court of Appeal for East Africa held thus: "A retrial is ordered where there has in fact been a previous trial that was conducted but which is vitiated by reason o f an error in law or procedure... Where a trial o f a case is declared a nullity, it means that there has never been a trial as the purported trial had no legal 17 force or effect.... Where a trial o f a case is declared a nullity for non-compliance with the provisions o f law, the court will bear in mind the gravity o f the offence, justice o f the case and all other circumstances in ordering a fresh trial to the accused." The position in the just cited case was elaborately and decisively restated in Fatehali Manji v. Republic (1966) EA 343. In brief terms, the defunct superior Court held as follows: "In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill gaps in its evidence at the trial... each case must be depend on its own facts and circumstances and an order o f retrial should only be made

where the interests o f justice require." See also Dominico Simon v. R. (1972) HCD 152; R v. S. S. Salehe (1977) HCD 15; Ngasa Madina v. Republic, CAT-Criminal Appeal No. 151 of 2005; and Shaban Abdallah v. Republic CAT-Criminal Appeal No. 255 of 2013 (DSM) (both unreported). Circumstances which led to nullification of the proceedings and the judgment in this case have no connection with weight or otherwise of the evidence adduced by the prosecution. It follows, therefore, that the chance of having the evidence weaved on retrial is the least of this 18 Court's worries. I take note of the fact, however, that the appellants have served four years of their seven-year jail term. If we factor in the one- third remission of the prison term, it is clear that the appellants would be left with less than a year to complete their prison term. I am of the considered view that justice would better served if no re-trial is ordered. Like in the case of Josephat James v. Republic, CAT-Criminal Appeal No. 316 of 2010 (unreported), in which the appellant served a jail term for a decade-which was in excess of a third of his prison term, the appellants' long stint in prison does, in all respects, warrant an acquittal. Accordingly, I allow the appeal and order the immediate release of the appellants from prison, unless they are otherwise lawfully held. DATED at MWANZA this 29thday of April, 2020.

JUDGE 19