gwandumi mwaseba vs republic 2020 tzhc 1839 26 june 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 57 OF 2020 (From the D istrict Court ofK y ela , Crim inal Case No. 36 o f 2020) GWANDUMI MWASEBA.................................APPELLANT VERSUS THE REPUBLIC.................................................... RESPONDENT JUDGMENT Date o f last Order: 26.06. 2020 Date o f Judgment: 26.6.2020 Before: Dr. A.J. Mambi, J. In the District Court of Kyela, Resident Magistrate Court of Mbozi the appellant was with an offence of unlawful possession of narcotic cannabis sativa contrary to Section 15 (A) (1) (2) (C) of the Drugs Control Enforcement Act No. 15 of 17]. The appellant was convicted l and sentenced on his own plea, trial court convicted and sentenced to 30 years imprisonment. Aggrieved, appellant who was represented by the Learned Cancel Mr Maumba filed his appeal preferring four grounds of appeal. During hearing which was done electronically where both prates were connected through video conference, The Republic through the Learned State Attorney Mr Kihaka briefly submitted that before he address the grounds of appeal he would like to address this court on the irregularities from the Trial Court. The learned State Attorney further submitted that the trial magistrate did not properly convict the accused contrary sections 235 and 312 of the CPA, Cap 20. He prayed to matter be referred back to the trial court for retrial. The appellant Counsel submitted that he also observed such irregularities though he had other grounds of appeal. He argued that he has no objection the matter be remitted for proper conviction. I have carefully gone through the records and the relevant law. Before thoroughly looking into the grounds of appeal I have noticed and observed the proceedings and judgment by the trial magistrate have some errors which may render it invalid. It is clear from the record that the trial Magistrate did not properly entered the conviction. In his final words (The Trial District Magistrate) under the last paragraph at page 18 the judgment reads: 2 “since the accused pleaded guilty to the charge and admits all facts ...This court finds him guilty fo r the count he was charged with” Reading between the lines on the above quoted paragraph can it be said that the Magistrate convicted the accused persons/appellants?. The answer is clearly NO since the above wordings were the last statement of the judgment and nothing to show if all the accused person were convicted. Indeed it is also not clear as to which accused person was convicted. As required by the law that once an accused is found guilty one would have expected the conviction and he must state the words that: “I convict the accused person fo r an offence o f armed robbery under section 287A(Provision under which the accused was charged)” as charged as indicated in this case". The Trial Magistrate having convicted the accused under the section which creates an offence he stand charged shall sentence him under the proper provision of the law. Failure to convict the accused is contrary to the law (sections 235 and 312 of the CPA Cap 20) since the law provides for mandatory requirement for judgments to contain conviction and sentence. As required by the law that once an accused is convicted one would have expected the sentence to follow thereafter and must be indicated under the judgment. In other words, it is trait law that once the accused is found guilty, sentence must always be preceded by conviction and relevant provisions of the law and should be indicated under the judgment. Failure to convict and sentence the 3 accused is contrary to the law since the law provides for mandatory requirement for judgments to contain conviction and sentence I wish to refer section 235 (1) of the CPA [Cap 20 R.E 2002]which provides as follows “the court having heard both the complainant and the accused person and their witnesses and evidence shall convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him or shall dismiss the charge under section 38 o f the Penal Code”,(emphasis supplied with). The above provision of the law is very clear. In this regard, my mind directs me that the provision of the law mandatorily require any judgment must contain both conviction and sentence under the relevant provisions of the law. This was also observed in MOHAMED ATHUMAN vs THE REPUBLIC, Crim App.No.45 of 2015 (unreported). The court of appeal in this case that is MOHAMED ATHUMAN vs THE REPUBLIC, Crim App.No.45 o f 2015observed that: “Although there was a finding that the appellant was guilty was not convicted before he was sentenced. This was itself irregular. Sentence must always be preceded by conviction, whether it is under section 282 (where there is a plea o f guilty) or whether it is under section 312 o f the CPA (where there has been a trial). ”(emphasis supplied with). Reference can further be made to the court in Amani Fungabikasi V Republic, criminal appeal No 270 of 2008 (unreported) where the court made similar observation. In this case the court said that;- “It was imperative upon the trial District Court to comply with the provision o f section 235 (1) o f the Act by convicting the appellant after the 4 Magistrate was satisfied that the evidence on record established the prosecution case against him beyond reasonable doubt In the absence of a conviction it follows that one o f the prerequisites of a true judgment in terms of section 312 (2) of the Act was missing. So, since there was no conviction entered in terms o f section 235 (1) o f the Act, there was no valid judgment upon the High Court could uphold or dismiss. ”(emphasis added). Reference can also be made to section 312 of CPA, Cap 20 [R.E 2002] for content of judgment as follows: “(1) Every judgment under the provisions o f section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the personal direction and superintendence o f the presiding judge or magistrate in the language o f the court and shall contain the point or points fo r determination, the decision thereon and the reasons fo r the decision, and shall be dated and signed by the presiding officer as o f the date on which it is pronounced in open court. (2) In the case o f conviction the judgment shall specify the offence o f which, and the section o f the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced”. ”(emphasis added). Now having observed those serious irregularities, the question before me is to determine what should be the best way to deal with this matter in the interest of justice. In my considered view the best way to deal with this matter is by way of revision. In this regard I wish to invoke section 272 and 273 of the Criminal Procedure Act, Cap 20 [R.E.2002] which empowers this court to exercise its revision powers to examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or 5 order recorded or passed, and as to the regularity of any proceedings of any subordinate court. This in accordance with section 372 of the Act. Section 373 further empowers the court that in the case of any proceedings in a subordinate court, the record of which comes to its knowledge, the High Court may in the case of conviction, exercise any of the powers conferred on it as a court of appeal by sections 366, 368 and 369 and may enhance the sentence. The Court is also empowered in the case of any other order other than an order of acquittal to alter or reverse such order. I wish to refer section 372 of the Criminal Procedure Act, Cap 20 [R.E.2002] as follows: “372. The High Court may call fo r and examine the record o f any criminal proceedings before any subordinate court fo r the purpose o f satisfying itself as to the correctness , legality or propriety o f any finding, sentence or order recorded or passed, and as to the regularity o f any proceedings o f any subordinate court. Furthermore, section 373 of the same Act provides that: “(1) In the case o f any proceedings in a subordinate court, the record o f which has been called fo r or which has been reported fo r orders or which otherwise comes to its knowledge, the High Court may- (a) in the case o f conviction, exercise any o f the powers conferred on it as a court o f appeal by sections 366, 368 and 369 and may enhance the sentence; or (b) in the case o f any other order other than an order o f acquittal, alter or reverse such order, save that fo r the purposes o f this paragraph a o special finding under subsection (1) o f section 219 o f this Act shall be deemed not to be an order o f acquittal. 6 (2) No order under this section shall be made to the prejudice o f an accused person unless he has had an opportunity o f being heard either personally or by an advocate in his own defence; save that an order reversing an order o f a magistrate made under section 129 shall be deemed not to have been made to the prejudice o f an accused person within the meaning o f this subsection. (3)... (4) Nothing in this section shall be deemed to preclude the High Court converting a finding o f acquittal into one o f conviction where it deems necessary so to do in the interest o f justice Reading between the lines on the above provisions of the law empower this Court wide supervisory and revisionary powers over any matter from the lower courts where it appears that there are illegalities or impropriety of proceedings that are likely to lead to miscarriage of justice. Reference can also bemade to other laws. In the regard I will refer section 44 (1)(a) and (b) of Magistrates Courts Act Cap 11 [R.E. 2002] which clearly provides that: “44 (1) In addition to any other powers in that behalf conferred upon the High Court, the High Court- (a) shall exercise general powers of supervision over all district courts and courts o f a resident magistrate and may, at any time, call fo r and inspect or direct the inspection o f the records o f such courts and give such directions as it considers may be necessary in the interests of justice, and all such courts shall comply with such directions without undue delay; 7 (b) may, in any proceedings o f a civil nature determined in a district court or a court o f a resident magistrate on application being made in that behalf by any party or o f its own motion, if it appears that there has been an error material to the merits o f the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit:” From the above findings and reasoning, I hold that from the above provision of the law including various decision by the court, this court is right in exercising its supervisory and revisionary power on the matter at hand as noted by the learned State Attorney. The law is clear it is proper to for this court to invoke provisional powers instead of appeal save in exception cases. Having observed those irregularities that are incurable will it be justice to remit the file back for proper conviction?. I wish to refer the case of Fatehali Manji V.R, [1966] EA 343, cited by the case of Kanguza s/o Machemba v. R Criminal Appeal NO. 157B OF 2013, where the Court of Appeal of East Africa restated the principles upon which court should order retrial. It said:- “...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because o f insufficiency o f evidence or fo r the purpose o f enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake o f the trial court fo r which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order fo r retrial should only be made where the interests o f justice require it and should not be ordered where it is likely to cause an injustice to the accused person...” In my considered and firm view, in our case at hand the irregularities are immense that does favour this court to order for the file to be remitted back for proper conviction. I am of the settled mind that failure to enter a proper sentence basing on the charges the appellant was charged is as good as saying there was no sentence entered by the trial court. As I alluded and observed above that, since there was no proper sentence in terms of section 235 (1) and 312 of the Criminal Procedure Act, there was no valid judgment or an order upon this Court to could uphold or dismiss and there is nothing this court can entertain as appeal. It is a settled law that failure to convict accused, is a fatal and incurable irregularity, which renders the purported judgment or order incapable of being upheld by the High Court in the exercise of its appellate jurisdiction. In the circumstance and in view of the fact that the trial court omitted to enter a roper conviction sentence, I declare that the judgment of the trial Court is to that extent fatally defective. In the circumstance, since the trial court’s judgment or order was invalid, it could not have founded a proper appeal before the High Court. In the circumstances I therefore remit the file back to the trial court for it to enable the trial magistrate to compose and deliver a judgment or an order which is in conformity with the law that is it has to have a proper conviction based on the charge followed by the sentence. Where it appear that the trial magistrate has ceased jurisdiction for one reason or another, in terms of section 214 (1) of 9 the CPA Cap 20 [R.E.2002] another magistrate should be assigned the case to compose and deliver the judgment. In the interest of Justice, as also observed by the court of Appeal in the above case, I order that the conviction and sentence based on the charge to be ordered by the Magistrate should take into account the time the appellant has spent in prison. Depending on the outcome of the new judgment, the appellant shall be at liberty to start afresh the process of appeal presence of the appellant Counsel and the State Attorney for the respondent. Right of Appeal explained. DR. A. J. MAMBI JUDGE 26/ 6/2020 10