director of public prosecution vs joyloveness bagandanshwa 2018 tzhc 2277 20 july 2018

IN THE HIGH COURT OF TANZANIA AT BUKOBA HC CRIMINAL APPEAL NO. 12 OF 2017 (Arising from the Criminal case of No. 86 of 2015 in the District Court of Bukoba at Bukoba) THE DIRECTOR OF PUBLIC PROSECUTIONS...APPELLANT VERSUS JOYLOVENESS BAGANDANSHWA................ RESPONDENT JUDGMENT 29.06. & 20.07.2018 BONGOLE, J. At the District court of Bukoba the respondent was charged with the offence of Stealing by Persons in Public Service contrary to section 265 and 270 of the Penal Code [Cap.16 R.E.2002]. The particulars of the offence are that Joyloveness D/0 BAGANDANSHWA on 1st July,2015 at Kagemu Health Institute within Bukoba District in Kagera Region being a person employed in Public Service as Accountant did steal Tshs.1,786,000/= the property of public. i When the charge was read over and explained to the accused person now respondent, she pleaded not guilty so the prosecution summoned six witnesses and three exhibits to prove the case. In defence the respondent had no witness except that she defended herself. The respondent was acquitted and consequently the Director of Public Prosecutions, the appellant was aggrieved so this appeal was preferred on three grounds coached thus:- 1. The trial Magistrate erred in law and facts by holding that there were elements of grudges between the accused and the Principal instead of analyzing the evidence adduced in court in relation to the offence the accused charged with. 2. The trial Magistrate erred in law and facts by holding that prosecution side teamed up and framed a case against the accused person without giving reasonable explanation on how the prosecution teamed and framed the case. 3. That taking the totality of the evidence on record the trial magistrate erred in law and facts when he decided in favour of the respondent. The abbreviated facts of this appeal as narrated at the trial are that the respondent was the employee at Kagemu Health Institute within Bukoba Kagera Region as an Accountant. The 2 institute is responsible with giving health services as well as medical training to students. In the capacity of Accountant the respondent was inter alia responsible with receiving fees from students. According to the Principal of the said Health Institute one Said Msoga who featured as PW1 at the trial, on 01.07.2015 there was an operation of listing names of defaulters for paying school fees. That on that day at least 15 students paid school fees to the Accountant, the respondent Tshs. 1,786,000/= and according to the procedure; the respondent was required to give ERV book to the Principal and there after deposit the fees in bank account. That on the subsequent date of 02.07.2015 he told the respondent to deposit the fees she had collected in vain. It was PWl's evidence that upon going to the respondent's office and knocking at the door three times she did not open immediately but she later on opened and told him that she had resigned starting from 01.07.2015 and left the resignation letter with the Personal Secretary. On follow up PW1 found the said letter but he wrote a memo to the respondent to instruct her that she ought to return the fees money first before resigning. The letter and memo were admitted as exhibit Pl. 3 The respondent counter- replied that the principal owed her some money being extra-duty claims which could be deducted to clear the fees demanded. This misunderstanding resulted into the matter being reported by PW1 to the police and the charge of Stealing by Persons in Public Service against the respondent being filed at the District court of Bukoba. As stated before, the trial court acquitted the respondent on ground that the case was not established beyond reasonable doubt. The DPP was dissatisfied hence the present appeal. At the hearing before this court the appellant was represented by Mr.Nestory learned State Attorney while the respondent was unrepresented. In his submission, Mr. Nestory made it clear that albeit the DPP filed three grounds, upon perusal of the record he observed irregular change of Magistrates. He submitted that on 20.07.2016 honourable Maweda high jacked the file and continued hearing the evidence of PW6 after the case had been previously determined by honourable Mpelembwa RM and no reason for such change of magistrates was given. He argued that this act was contrary to section 214(1) of the Criminal Procedure Act [Cap.20 R.E.2002] which requires that when a file changes 4 hand from one magistrate to another there must be reasons for that. Though he failed to produce a copy of the judgment as the best practice requires when an unreported case is referred to, Mr. Nestori supported this position of the law with the case of Abdi Masoud, Rashid Mwela, Mwangu and Jumanne Mjoi Criminal Appeal No. 116/2015 CAT; Dodoma Registry (unreported) where it was held that failure to comply with section 214(1) of the CPA is incurable irregularity which renders the whole proceedings nullity. He invited this court to invoke its revisionary powers to quash the proceedings from 20.07.2016 and order the case to proceed from where Mpelembwa RM ended. Being layperson the respondent had nothing to reply to the submission of the State Attorney. The record is apparent that this case was firstly heard by honourable Mpelembwa RM from 26.01.2016 when PW1 commenced to testify to 23.03.2016 when PW5 concluded his evidence. Honourable Maweda RM took over the proceedings and heard the evidence of PW6 up to the date of judgment. When all this was done there was no reason for change of magistrates and as correctly submitted by Mr.Nestori, the omission violated 5 section 214 (1) of the Criminal Procedure Act which provides thus:- “(1) Where any magistrate, after having heard and recorded the whole or any part of 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 or he is unable to complete the trial or 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 of a trial and if he considers it necessary, resummon the witnesses and recommence the trial or the committal proceedings” When confronted with the similar situation, The Court of Appeal in the case of Abdi Masoud@ Iboma and 3 others vs The Republic Criminal Appeal No. 116/2015 CAT; Dodoma Registry (unreported) insisted on the importance of assigning reasons upon change of magistrates and held at page 8 thus:- “//; our view, under section 214 of the CPA it is necessary to record the reasons for reassigning or change of trial magistrates. It is a requirement of the law and has to be complied with. It is a prerequisite for the second magistrate’s assumption ofjurisdiction ”. 6 On such irregularity the Court nullified the proceedings. In this appeal the respondent was not convicted therefore, it cannot be said that she was not prejudiced. Mr. Nestori who appeared before me did not disclose the extent to which the appellant DPP was materially prejudiced. This is essentially so because of the import of subsection 2 of section 214 of the CPA which gives discretion to this court to consider whether or not to set aside conviction after it is satisfied that the accused person was materially prejudiced. Be that as it may, the successor Magistrate had no jurisdiction to assume the jurisdiction over the case whose change of the magistrate was contrary to the law as demonstrated above. I hereby declare all the proceedings from where Maweda RM illegally assumed jurisdiction over this case/ appeal nullity and set aside his judgment. With the reasons being assigned, I further order for re-trial from where Mpelembwa D.J. RM ended. It is so ordered. S.B. Bongple/ Judge 20/7/2018 7 Date: 20/7/2018 Coram. Hon. S. B. Bongole, J. Appellant: Mr. Haruna, SA. Respondent: Present B/C: Peace M. Mr. Haruna: The appeal comes for judgment and we are ready. Court: Judgment delivered S.B. BongW Judge 20/07/2018 Right of Appeal explained. S.B. Bongdle Judge 20/07/2018 8