EDWARD NJAWE VS DAUD URIO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI PC CRIMINAL APPEAL NO. 22153 OF 2024 (C/F Criminal Revision No. 38702 of 2023 of Siha District Court at Siha; Originating from Shauri la Jinai No. 168 of 2023 of Sanya Juu primary Court) EDWARD NJAWE........................................................APPELLANT VERSUS DAUD URIO.............................................................RESPONDENT JUDGEMENT 08/11/2024 & 12/12/2024 SIMFUKWE, J. Before Sanya Juu Primary Court of Siha District, the appellant stand charged in Criminal Case No. 168 of 2023, currently pending before the 1 same court, with the offence of Threatening Violence, contrary to section 89(2)(b) of the Penal Code [Cap 16 R.E. 2022]. The appellant pleaded not guilty to the charge, necessitating a full trial. The hearing proceeded to the stage where the complainant closed his case. When the matter was scheduled for defence hearing, the appellant engaged the services of Mr. Samson Rumende, a learned counsel, to represent him. The learned counsel raised a preliminary objection, arguing that the type of weapon allegedly used by the appellant to threaten the complainant was not covered under section 89(2)(b) of the Penal Code (supra), thereby rendering the charge null and void. In response, the complainant, represented by CPL Lameck, requested the court to amend the charge. The trial court granted the prayer for amendment. Following the amendment, the learned counsel raised a second preliminary objection, submitting the following: One, that title of the charge sheet was incorrectly written as "Tanzania Police Force" instead of "In the Primary Court of Sanya Juu". Two, the charge sheet was improperly signed by a Police Officer instead of the magistrate. 2 After hearing submissions from both parties, the trial magistrate overruled the objections and ordered the matter to proceed on merit. The appellant, being dissatisfied with such decision, filed an application for revision before the District Court of Siha, seeking to challenge the correctness, legality, and propriety of the Primary Court's decision. Upon a full hearing of the revision application, the District Court Resident Magistrate found the application to be devoid of merit and dismissed it accordingly. The District Court further directed that Criminal Case No. 168 of 2023 should proceed from where it had stopped. Aggrieved by the decision of the District Court, the appellant has now filed the present appeal on the following grounds of appeal: 1. That the Magistrate erred in law and in fact not to direct the trial primary court magistrate that had no jurisdiction to entertain the matter 2. That the Magistrate erred in law and in fact not to direct the trial primary court magistrate that the suit(s) in primary courts shall while a party is filing a civil suit/Criminal case shall use the approved forms as per GN No 943 Published on 16th day of 2020. 3 3. That the Magistrate erred in law and in fact not to direct that the trial primary court magistrate to direct that prosecution witnesses should adduce fresh evidence due to amendment/substitution of a charge. During the hearing, the appellant was represented by Mr. Samson Rumende, learned counsel while the respondent was unrepresented. Supporting the third ground of appeal, Mr. Rumende faulted the district court magistrate for failure to direct the trial primary court magistrate to direct that prosecution witnesses should adduce fresh evidence due to amendment/substitution of a charge. He argued that the District Court supported the decision of the trial court that the matter should proceed where it ended. That implies the accused has to proceed with defence while a new charge sheet had been read over to him. According to Mr. Rumende, the same was an anomaly. The learned counsel went further explaining that, it is trite law that witnesses are to be re-summoned if there is amendment of the charge sheet. He made reference to the book by Chipeta “Magistrates Manual” at page 99 under the title “Recall of Witnesses Generally” first paragraph where it is stated that: 4 "Either on its own motion or on the application of the prosecution or defence, a witness who has already given evidence may be recalled to give additional evidence. This procedure is expressly sanctioned by section 195 (1) of the Criminal Procedure Act, 1985 ….” Moreover, the learned counsel cited Regulation 22(1) of Criminal Procedure Code of Primary Courts which provides to the same effect. He argued that this court has supervisory powers over subordinate courts to ensure that all the procedures are adhered to. Further reference was made to the case of Peter Michael Madeleka vs. Republic, Criminal Appeal No. 263 of 2022 [2024], CAT at Dar-es-Salaam which held inter alia that the High court may call the records of any case and satisfy itself on the regularity of such proceedings and give directives. He argued that you cannot say one has a case while there is a new charge of which no evidence has been advanced. On the first and second grounds of appeal, Mr. Rumende faulted the trial court that it had no jurisdiction to entertain the matter. The learned counsel explained that the procedures for filing the case were not adhered to. That, the first charge sheet which was filed on 10/10/2023 against the 5 appellant, had the heading “TANZANIA POLICE FORCE”. When the new charge sheet was filed on 01/11/2023, it had the same heading. It was the learned counsel’s argument that such heading ousts the primary court powers to determine the charges against the appellant. He supported his submission with the case of Sultan Omary Kipenzi and 6 others vs. Republic, Criminal Appeal No. 154 of 2017 (HC) in which the charge sheet read “Tanzania Police Force at Mkuranga”. instead of “In the District Court of Mkuranga at Mkuranga. The court raised the issue suo motu and quoted from the book of B.D Chipeta “Magistrate Manual” (3rd Ed), 2007 at page 9 where it is stated that: “Besides, the charge enables the court to know whether or not it has jurisdiction to enquire into or try the matter and further enable the court to the proceedings by confirming the evidence and arguments to what is alleged in the charge and what is disputed.” Further, in the cited case above, at page 2 the court referred the article by Duru Onyekachi in Institution of Criminal Proceedings, Charges and Arraignment, in free Law Lecture series No. 23, 2014 in which at page 7 it was stated that: 6 “The heading must show the court where the trial will take place, the state, the Judicial Division (in the case of a High Court) or Magisterial District (in the case of a Magistrate Court) where the charge is being filed. Heading determines jurisdiction.” At page 3 of the trial court ruling, it was observed that: “It must be underscored that the complaint is which lays the foundation of a formal charge. Subsequently, the entire evidence paraded by the prosecution must in its totality must point to the guilt of the accused person beyond reasonable doubt.” From the above contention, Mr. Rumende stressed that the trial court had no jurisdiction to entertain this matter. Moreover, the appellant’s advocate submitted that the procedures for instituting cases under GN. No. 943 of 6th November, 2020 direct that there shall be special approved forms for institution of cases before primary courts. The learned counsel was of the view that the respondent was supposed to use Form No. 1 and 2 to file his complaint. That, even 7 the Tanzania Police Force is required to fill the said forms for cases which are to be filed before the primary court. He faulted the district court for deciding that the primary court had jurisdiction to entertain the matter as reflected at page 2 of the judgment. In his conclusion, Mr. Rumende insisted that the trial court erred to force the appellant to enter his defence on a new charge sheet instead of recalling witnesses for cross examination. Thus, he prayed the court to nullify the proceedings of the two courts below and direct as it will deem fit and just. In reply, the respondent submitted that after substitution of the charge sheet, the advocate prayed to recall prosecution witnesses. He was issued with summons. However, he failed to afford costs for enabling the said witnesses to appear before the court alleging that the respondent was the one who had to pay the costs for recalling the said witnesses. That, the advocate was informed that he was the one who was requiring recalling of witnesses and was issued with the second summons. However, instead of recalling the witnesses, the appellant decided to appeal before the district court which at the end ordered the case to proceed before the primary court. Yet, the appellant appealed to this court. 8 Responding about the heading “Tanzania Police Force”, the respondent was of the opinion that the heading was proper because he instituted his case at the police station. Thus, the alleged form is to be used where the case is instituted directly before the primary court. Regarding the cited case of Sultan Omary Kipenzi (supra), the respondent explained that the same is distinguishable to the present case since in the cited case, the impugned decision was from the district court while the present case is from the primary court. The respondent added that this appeal is premature as the case was not finalised. He prayed the court to dismiss it. In his rejoinder on the allegation that the appellant was ordered to pay for recalling witnesses, Mr. Rumende submitted that it was the duty of the complainant to recall his witnesses to prove his case. It was not the duty of the appellant to prove the case of the respondent. The duty of the appellant was to pray that witnesses be recalled. The learned counsel insisted that the cited case of Sultan Omary Kipenzi, is relevant to the present matter. 9 Responding to the issue that the case was filed at the police station, it was Mr. Rumende’s submission that at the police station what is registered are complaints and not cases. The respondent should have been shown the approved forms, as provided in the Government Notice. The wording of the notice is mandatory. Responding to the concern that the appeal is premature as there is a pending case, the learned counsel replied that in the cited case of Peter Madeleka (supra) it was stated that the court may implore its supervisory powers which is the case here. The learned counsel prayed the witnesses be recalled so that they may testify afresh and be cross examined. Also, he urged the court to give directive so that justice may be done. He stressed that it is injustice to enter defence against the amended charge sheet and against evidence of witnesses whose evidence has been quashed. Having considered the grounds of appeal, submissions of the parties as well as the lower courts’ records, the issue for determination is whether this appeal has merit. 10 On the first and second grounds of appeal, Mr. Rumende contended that the District Court erred in failing to recognize that the Primary Court lacked jurisdiction to entertain the matter. He argued that this was due to non- compliance with the prescribed procedures for filing the case. Specifically, he pointed out that the charge sheet was improperly headed “Tanzania Police Force” instead of “In the Primary Court of Sanya Juu.” With due respect to the learned counsel for the appellant, this issue was discussed thoroughly by the trial magistrate of the Primary Court. As noted at page 5 of the ruling, the learned trial magistrate observed that: “Kwa kawaida utaratibu wa ufunguzi wa mashauri ya jinai katika mahakama za mwanzo yanafanywa kwa njia kuu mbili ambapo njia moja ni ya kuanzia mahakamani moja kwa moja ambapo mlalamikaji atawasilisha lalamiko lake na Hakimu ataandaa hati ya mashitaka ambayo itasainiwa na mlalamikaji pamoja na Hakimu, na njia ya pili ni kwa mlalamikaji kuanzia polisi ambapo atawasilisha lalamiko lake huko na polisi wataanda hati ya mashitaka na kumfikisha mlalamikiwa mahakamani. Hivyo kwa shauri lililopo mbele yetu hati ya mashitaka ipo sahihi kwani 11 imeandaliwa Polisi ndiyo maana ikaandikwa Tanzania Police Force na kama ingekuwa lalamiko limeanzia mahakamani basi hati ya mashitaka ingesomeka jina la mahakama ya mwanzo Sanya Juu.” At page 6 of the ruling, the learned trial magistrate explained that: “Pia Wakili wa utetezi aliibua hoja hii kuwa mahakama haina uwezo wa kusikiliza shauri hili kutokana na hati kuandikwa jeshi la polisi badala ya jina la mahakama na hajasema ni kifungu kipi au ni sheria ipi imetaja hiyo kasoro hii (sic) na pia hakuna sheria au mwongozo wowote unaotoa muundo wa hati ya mashitaka katika mahakama ya mwanzo uwaje bali katika Aya ya 21 (1)(b) ya mwenendo wa makosa ya jinai katika mahakama za mwanzo nyongeza ya III ya MCA Cap.11 R.E.2019 imeonyesha kuwa hati ya mashitaka inaweza kuandaliwa na mahakama au polisi ambapo kama ikishaletwa mahakamani kazi ya Hakimu itakuwa ni kuchukuwa taarifa na kuandaa jalada, kwani hati ya mashitaka ni ya polisi na jalada ni la mahakama.” 12 The findings above were supported by the District Resident Magistrate, who expressed the legal opinion at page 5. That, since the case was instituted by the police, the drafting of the charge was done in the manner reflected in the impugned charge. Having noted the concurrent findings of the lower courts, the law requires this Court to refrain from disturbing such findings unless there are misdirections or non-directions on the evidence, a miscarriage of justice, or a violation of some principle of law or practice. See Shakila Lucas v. Ramadhani Sadiki (Civil Appeal No. 349 of 2020) [2024] TZCA 36 (14 February 2024) Tanzlii at page 12. In the present case, the learned counsel did not specify any law which was violated by the charge being titled “Tanzania Police Force”. Respectfully, the case cited by Mr. Rumende is distinguishable from the matter at hand. In the cited case, the criminal case originated from the District Court, which follows procedures distinct from those of the Primary Court in the institution of criminal cases. The procedures in Primary Courts are simplified, allowing a complainant to either file a criminal case directly in court, where the prescribed form is used or at the Police station. For cases initiated at the police station, it is 13 common practice for the charge sheet to be prepared and signed by a police officer. I am aware that under Government Notice No. 943 of 2020, Fomu Jinai 2 prescribes the form for “Hati ya Mashitaka” (charge sheet) to be used in primary courts. However, Rule 3 of the said Notice provides that the forms may be modified or altered in expression to suit the circumstances of each case. Furthermore, any variation from the prescribed forms, provided it does not pertain to matters of substance, shall not affect the validity or regularity of the form. Accordingly, in the present case, even if the form does not strictly conform to its prescribed appearance, the substance of the offence and the statement of the offence remain unaffected by such alteration. Be as it may, I am of considered opinion that the improper heading of the charge sheet does not oust the jurisdiction of the Primary Court, as the offence of which the accused was charged with falls squarely within its jurisdiction. I must remind the learned advocate of two legal issues; One, with the introduction of the overriding objective principle, courts are enjoined to administer justice expeditiously without regard to procedural technicalities while avoiding unnecessary miscarriages of justice. As an 14 officer of the court, the learned advocate was expected to guide the parties and the court to facilitate substantive resolution of the matter. Second, whenever allegations of irregularity are raised, the party alleging such irregularity must demonstrate how it has caused prejudice to him or her. In this case, the alleged improper heading of the charge sheet, if any, does not in any way prejudice the appellant. In light of the foregoing, this Court is of strong observation that the first and second grounds of appeal are devoid of merit. Turning to the last ground of appeal, specifically the third ground, Mr. Rumende criticized the District Magistrate for failing to direct the trial court to require the prosecution witnesses to adduce fresh evidence following the amendment of the charge. He contended that the trial magistrate erred by compelling the defence to proceed based on the newly amended charge without recalling the witnesses for further cross-examination. The issue of recalling a witness who has already testified for further examination is governed by paragraph 22 of the Primary Courts Criminal Procedure Code, 3rd Schedule to the Magistrates’ Courts Act, which provides as follows: 15 “22. At any time before the accused person gives evidence at the trial, the court may amend a charge or add new offences to it, but where the court amends or adds to a charge, the accused person may require any witness who has previously given evidence to be recalled and may put relevant questions to such witness.” Emphasis added Having examined the trial court proceedings, it is evident from page 21 of the typed record that the right to recall witnesses for further cross- examination was granted as requested by the learned counsel for the appellant. The process of recalling the said witnesses had already commenced, as summonses to recall the complainant’s witnesses had been issued. However, the hearing was interrupted by an application for revision filed by the appellant’s advocate before the District Court of Siha. Following the conclusion of the said revision, the District Magistrate directed that the matter should proceed from where it had previously stopped, meaning at the stage of recalling the witnesses for further cross- examination. 16 Considering the fact that the right to cross-examine witnesses after the amendment of the charge sheet was granted to the appellant; and the process was already underway, then the lamentation under the third ground of appeal is also devoid of merit as the appellant's right to a fair trial was not prejudiced. Having determined all the grievances raised in the grounds of appeal negatively, I hereby dismiss this appeal in its entirety. It is so ordered. Dated and delivered at Moshi this 12th day of December 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 12/12/2024 17