20080930 TZCA Tabora

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IN THE COURT OF APPEAL OF TANZANIA

AT TABORA (CORAM: RAMADHANI, C. J.; MROSO, J. A. And MUNUO, J. A.) CRIMINAL APPEAL NO. 212 OF 2004

BETWEEN EMMANUEL MALAHYA ... APPELLANT AND THE REPUBLIC ... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Somi, PRM (Ext. Juris.) dated the 8th day of October, 2003 . 1n HC Criminal Sessions Case No. 15 of 2003

JUDGMENT OF THE COURT 19 & 30 September, 2008 RAMADHANI, C. J.: On ih February, 2002, the appellant, Emmanuel Malahya, appeared before RUTAKANGW A, J. (as he then was), in Criminal Session Case No. 71 of 2000. The learned Judge took a plea, conducted a preliminary hearing, adjourned the matter, and later transferred it to SOMI, PRM (Ext. Juris.), as Criminal Session Case No. 15 of 2003. On 20 th June, 2003, SOMI, PRM (Ext. Juris.) again took a plea, tried the case to its conclusion, convicted the appellant and sentenced him to suffer death by hanging for killing his own mother, Diyu d/ o Mhoja. In this appeal Mr. Nasimire, learned advocate, had two grounds and he wanted to drop the second ground but, as will be seen, it was proceeded with. He started to argue the first gr0t~nd: 2 That smce the preliminary hearing was conducted by a Judge of the High Court, the subsequent trial of the case by the learned Principal Resident Magistrate with extended jurisdiction was irregular and the proceedings and resultant judgment a nullity. Mr. Nasimire read to us s. 2.56A (1) of the Criminal Procedure Act, Cap. 2.0 (hereinafter referred to simply as the Act) and cited to us a number of decisions of this Court holding that a transfer of a case to a Resident Magistrate with extended jurisdiction has to be done before a plea is taken by a Judge . The learned advocate asked us to follow the

consistent holdings of this Court, to set aside the sentence, to quash the proceedings before SOMI, PRM (Ext. Juris.) and to order the matter to proceed from the point reached by RUTAKANGW A,]., that is, to order a trial before another Judge. Mr. Manyanda, learned Senior State Attorney, for the respondent/Republic, was at one with Mr. Nasimire. Section 2.56A (1) of the Act provides as follows: 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 sub section (1) of section 173. That sub section was discussed by this Court in Tuma Lyamwiwe v. R, Criminal Appeal No. 42. of 2.001 (unreported). This Court after quoting s. 2.56A (1), just as we have done above, said: In our view the starting point is s. 192.(1) of the same Act which reads as follows: Notwithstanding the provisions of section 2.2.9, if an accused person pleads not guilty the court shall 3 as soon as is convenient, hold a preliminary hearing in open court in the presence of the accused or his advocate (if he is represented by an advocate) and the public prosecutor to consider such matters as are in dispute between the parties and which will promote a fair and expeditious trial. (Emphasis was by the Court.) It occurs to us that the

purpose of conducting a preliminary hearing as soon as is convenient after an accused person pleads not guilty is to ensure, among other things, an expeditious trial. If so, we do not think that it was ever intended that the High Court would conduct a preliminary hearing and then transfer the case to a Resident Magistrate with Extended Jurisdiction. In our view, to transfer a case after a preliminary hearing would not be in line with the intention and the spirit of s. 192 (1). In similar vein, the transfer envisaged under S. 256A (1) can only be done before a preliminary hearing is conducted. We also wish to point out that under S. 256A (1) it is envis!lged that a Resident Magistrate with Extended Jurisdiction to whom a case has been transferred will take a plea and then conduct a trial. And a trial, no doubt, includes a preliminary hearing. Surely, it is not intended that the High Court will take a plea, conduct a preliminary hearing and then transfer the case to a Resident Magistrate with Extended Jurisdiction. It would appear to us that our learned brothers arrived at the position that a transfer has to be made before a preliminary hearing is conducted because they regarded a preliminary hearing as part of a trial which, to them, cannot be split between a Judge and a Resident Magistrate with Extended Jurisdiction. However, had another Judge succeeded RUTAKAKANGWA, J. (as he

then was) that other Judge would certainly have taken fresh plea and would not have conducted another 4 preliminary hearing but would have adopted what was agreed upon in the preliminary hearing conducted by the previous Judge and would have proceeded with the trial. We do not subscribe to treating a preliminary hearing as part of a trial. The Oxford Advanced Learner's Dictionary (5 th Ed.) defines the word "pre11m1nary · · " as £o 11 ows: ... coming before a more important action or event, held before a main contest in order to exclude weaker players or teams ... a preliminary action, event or measure done in preparation for something ... The Chambers Dictionary (2.004) has this to say: introductory; preparatory; preceding or preparing for the main matter ... A preliminary hearing then is not a trial but, as the name clearly portrays, it is done before the main thing, that is, the trial. The whole purpose of a preliminary hearing is to find out what matters are agreed upon and what matters are in dispute. That is done as to "promote a fair and expeditious trial". That is the spirit behind s. 192. and we shall say more about that spirit shortly. According to our long established practice pleas are taken at two different stages: One stage is when the plea triggers off a preliminary hearing, that is, if it is a plea of not guilty as per s. 192 (1). Another stage is where a

plea is taken and then a trial begins. It is precisely because a preliminary hearing is not a trial that a plea is taken, even after a preliminary hearing has been conducted, when the 5 case comes before another Judge for trial. The succeeding Judge will adopt the matters agreed upon in the preliminary hearing by the preceding Judge but will take a fresh plea. We do not see why a Resident Magistrate with extended jurisdiction should not take a fresh plea, adopt the results of the preliminary hearing conducted by a Judge and proceed with trial when a case is transferred to him/her. We think that is one of the situations envisaged by s. 2.56A (3) which provides: (3) The provisions of this Act which govern the exercise by the High Court of its original jurisdiction shall mutatis mutandis, and to the extent that they are relevant, govern proceedings before a resident magistrate under this section in the same manner as they govern like proceedings before the High Court. If a succeeding Judge takes a fresh plea, adopts the results of the preliminary hearing of the preceding Judge and conducts a trial then, mutatis mutandis, a Resident Magistrate with extended jurisdiction could do likewise. That is what SOMI, PRM (Ext. Juris.) did. One could argue that what is before a Resident Magistrate with extended jurisdiction is a different case with a different session number. We say NO. Our

simple reason is that a Resident Magistrate despite the extended jurisdiction cannot sit in the High Court where session cases are normally tried. Upon the transfer of a case the Resident Magistrate has to try it in the Resident Magistrate's Court and consequently a special session number in a special sessions register for the Resident Magistrate's 6 Court is used for the same case with copies of the proceedings before a Judge. Therefore, it is our considered view that the taking of plea referred to in s. 256A (1) is that which flags off a trial. It is glaringly obvious that there cannot be a transfer then. To go back to the spirit of s. 192, we ask: what is the spirit of the concept of extended jurisdiction under s.173 (1) and, there_fore, the whole practice of transferring trials (and appeals) which should have been by a Judge, to a Resident Magistrate? We dare say it is to promote an expeditious trial. It is a realization that there are not enough Judges to cater for all trials (and appeals) by the High Court. So, rather than have more backlogs the matters are transferred to Resident Magistrates with extend jurisdictions for expeditious trials. If s. 256A (1) is construed to mean that transfers of cases to Resident Magistrates with extended jurisdiction can only. be done before a Judge conducts a preliminary hearing, then, in addition to what we have already said above, the

spirit of extended jurisdiction of s. 173 (1) will be defeated taking into account what invariably happens in practice. A Judge conducts a preliminary hearing and then adjourns the trial to the next sessions. It often happens that at the next sessions no Judge is available to try the case. The Judge-in-charge then transfers the case to a Resident Magistrate with extended jurisdiction to proceed with the trial. 7 The reverse also happens: A Resident Magistrate with extended • jurisdiction conducts a preliminary hearing but cannot be available to proceed with the trial at the next sessions. According to the authorities a Judge cannot take such a case. Both situations violate the spirit of extended jurisdiction of s. 173 (1). Going back to this appeal, we note that the offence was committed on n th September, 1997, that is, eleven years ago, and the judgment ~as given on 8 th October, 2004. The first time the appeal came to this Court was on 2ih February, 2007, when it was adjourned because RUT AKANGW A, J. A., who had conducted the preliminary hearing at the High Court was on the panel. If we are to grant the prayer by Mr. Nasimire and order a rehearing by another High Court Judge the matter will take even longer. This chronology is not consonant with the spirit of both sections of the Act. In the light of the foregoing, we are of the decided 9pm10n, and with greatest respect,

that we have but to depart from Juma Lyamwiwe and the other similar authorities to the effect that transfer of a case to a Resident Magistrate extended jurisdiction can only be done before a preliminary hearing. The transfer could be at any time before the trial begins. Therefore, we dismiss this ground of appeal. . When we came to the above mentioned opinion we re-opened the hearing and invited counsel to argue the second ground of appeal: That the learned Principal Resident Magistrate with extended jurisdiction erred in law in admitting in 8 evidence, the retracted confession of the appellant, Exh. P I. • Mr. Nasimire submitted that there are two aspects to this ground. First, he argued that there are defects in the form of Exh. P 1. He pointed out three such defects: One, only the time of the commencement of recording the statement is given as 10.15 hours but there is no indication as to when the recording stopped. He pointed out further that s. 50 (1) (a) of the Act, limits the length of recording to four hours only. He submitted that as it is not known for how long Exh P I was recorded, the doubt should be resolved in the appellant's favour. Two, he pointed out that s. 58 (2.) (a) (iii) requires that every page of a statement, which contains more that one page, to be initialed. That was not done on pages 2. and 3 of Exh P 1. Three, Mr. Nasimire contended, there is no

indication that the appellant was given his right of having a relative or an advocate when recoding the statement as provided by s. 53 (2.) (c) (ii) of the Act. The learned advocate pointed out that these provisions are mandatory. In reply Mr. Manyanda, conceded the three defects however, he submitted that they are mere technicalities whose violations did not prejudice the appellant since he acknowledged that the statement was voluntary and the contents are true. In Salim Petro Ngalawa v. R., Criminal Appeal No. 85 Of 2.004 (unreported) this Court said at p. 6: 9 Then there is the issue of the caution statement of the appellant, Exh P 4. Was it recorded within the provided • statutory time? The appellant was arrested on 26 February, 2000, at 13.00 hours, and the statement was recorded on 28 February, 2000, that is, after more than twelve hours and that contravened section 50 of the Criminal Procedure Act Cap 20 [2002 RE] which prescribes the basic period available for interviewing a person who is in the custody of police. Therefore, that cautioned statement was inadmissible as this Court ·said so in Janta Joseph Komba & 3 Ors v . .R Criminal Appeal No. 95 of 2005 (CAT) (unreported) where this Court acquitted the appellants. We followed that case in this session in Tumaini Molleli @ Tohn Walker & Another v. R., Criminal Appeal No 40 of 1994. The violation of s. 50 is fatal and

we are of the opinion that ss. 53 and 58 are on the same plane. These provisions safeguard the human rights of suspects and they should, therefore, not be taken lightly or as mere technicalities. We, t_herefore, expunge Exh. P 1. The only ev.idence left now is that of PW 2, Lucia Bunzali, the appellant's wife. Mr. Nasimire submitted that she was an. accomplice with an interest to serve and, so, should not be believed. Both accusations were refuted by Mr. Manyanda who pointed out that the trial court believed her. We have to provide a brief preface to put PW 2 in perspective. As already said at the beginning, the appellant was convicted of murdering his mother. The deceased shared the same compound together with the appellant and PW 2 only and she met her death in those premises. So, when her mysterious death became known, PW 2, just as the appellant, • was initially rounded up. Eventually three persons were charged: the appellant and two others. One accused person died before the trial took off and the other was acquitted because he was the one who reported the death to the authorities. PW 2 stated that on the fateful day she heard the deceased crymg and upon asking the appellant as to why the deceased was crying he grabbed her by the neck until she lost consciousness. When she recovered she saw the appellant digging a grave, then carrying the body of the deceased and burying

her. The appellant also cleaned the blood stains and "strongly· warned me not to tell people that his mother was dead. He requested me to tell people that the deceased had traveled to Ngudu ... ". The trial court found her to be calm when giving evidence and believed her. We have no reason to differ from that assessment. We are satisfied that PW 2 was truthful as is evident when she was cross~examined. She was categorical that "Apart from my husband's words that he killed his mother, I physically did not see him commit the act on that night". So, even if the appellant had not physically attacked the deceased he was, beyond reasonable doubt, an accessory after the fact. We have no flicker of doubt of his guilt. We, therefore, dismiss his appeal. DA TED at.TA BORA this 30 th day of September, .2008. A. S. L. RAMADHANI

CHIEF JUSTICE 11 J. A. MROSO • JUSTICE OF APPEAL E.N.MUNUO

JUSTICE OF APPEAL I certify that this is a true copy of the original. (P. B. KHADA Y)

DEPUTY REGISTRAR