HAMISI SAID VS THE PUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM; LILA, J.A.. FIKIRINI. J.A., And KENTE. 3.A.1 CRIMINAL APPEAL NO. 627 OF 2021 HAMIS SAID @ JUMA ........ ............ ............................ ...... ..... . APPELLANT VERSUS THE REPUBLIC ..................................................... .............. . RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Tabora at Tabora) (Nsana, SRM-Ext. 3.1 dated the 26th day of August, 2021 in Criminal Appeal No. 08 of 2021 JUDGMENT OF THE COURT 19th & 23'd August 2024 LILA. J.A.: Hamisi Said @ Juma, the appellant, was tried before Tabora District Court of two counts. The first is rape contrary to section 130(1) and (2)(e) of the Penal Code Gap. 16 of the Laws and the second count is impregnating a school girl contrary to section 60A (3) of the Education Act, Cap. 353 of the Laws as amended by section 22 of the Written Laws (Miscellaneous Amendment) Act No. 4 of 2016. The charge alleged that, on unknown dates between February 2020 to 9th day of May, 2020 at Mihogoni area, Mbugani Ward within the Municipality and Region of Tabora, the appellant did have carnal knowledge with a Standard Six girl at Mabatini Primary School aged fourteen (14) years old and impregnated her. To disguise her identity, we shall refer to her as the victim or PW1. The appellant denied the charge and trial ensued to its completion. He was convicted of the offence of rape followed by a sentence of thirty years' imprisonment. The second count was not established and he was acquitted. His appeal against conviction of the offence of rape to the High Court failed. He has appealed to this Court. As the appeal turns on only a legal point raised in ground one of appeal in the supplementary memorandum of appeal, suffice it to state that the appellant's appeal to the High Court was registered as Criminal Appeal No. 68 of 2020. It was heard and determined by S. B. Nsana, Senior Resident Magistrate (extended Jurisdiction) and it failed. That followed the purported transfer of the appeal to the Resident Magistrates'Court of Tabora to be heard by a Resident Magistrate with Extended Jurisdiction. The said transfer order reads: - "COURT: This Criminal Appeal No. 68 o f 2020 is hereby transferred to the RM's Court Tabora Extended Jurisdiction and is assigned to Ajaii Toma MiUanzi, SRM with Extended Jurisdiction pursuant to section 173(1) o fthe CRIMINAL PROCEDUREACT, CAP. 20, R. E 2019 and THE CRIMINAL PROCEDURE (EXTENSION OF JURISDICTION) ORDER, G.N. NO 747 O F2018." This order forms the crux of ground one of the supplementary ground of appeal which we find to be decisive of this appeal. It states: - "1. That, in absence o f an Assignment Order in favour o f Hon. S. B. Nsana RM Extended Jurisdiction, the proceedings and judgment in appeal are a nudity for want o fjurisdiction." Mr. Kelvin Kayaga, learned advocate, appeared to represent the appellant who was also present in Court. The respondent had the services of Mr. Merito Ukongoji assisted by Ms. Anneth C. Makunja, both learned State Attorneys. While referring to the above transfer order located at page 38 of the record of appeal, Mr. Kelvin Kayaga, with vigour, submitted that it was erroneous for S. B. Nsana, Senior Resident Magistrate with Extended Jurisdiction, to preside over and determine an appeal assigned to Ajaii Toma Millanzi, SRM with Extended Jurisdiction. If the assigned magistrate is not available, he argued, there must be another transfer order by the High Court assigning the case to another magistrate with Extended Jurisdiction. This, not having been done, he urged the Court to nullify the proceedings and judgment by S. B. Nsana, SRM Ext. Jurisd. Reference was made to the Court's decisions in Evance Joseph vs Republic, Criminal Appeal No. 22 of 2017 and Abrahaman Ramadhani @ Chino vs Republic, Criminal Appeal No. 130 of 2013 (both unreported) in cementing his assertion. Before resting his case, the Court, suo motut wanted to satisfy itself on the propriety or otherwise of the order itself, it having been made under section 173 (1) of the Criminal Procedure Act (the CPA). After reading the section, he was quick to answer the Court's concern in the negative submitting that, it only mandates the Minister responsible for legal affairs in consultation with the Chief Justice (the CJ) and the Attorney General (the AG) to invest any resident magistrate with powers to try any category of offences ordinarily triable by the High Court. He realised that it does not deal with transfer of cases from the High Court to Resident Magistrates7 Court to be tried by a resident magistrate with extended jurisdiction. The Court then turned him to read section 45(2) of the Magistrates'Court Act, Cap. 11 of the Laws which he said is the appropriate provision which ought to have been invoked by the High Court in transferring the case to the Resident Magistrates' Court to be tried by a resident magistrate with extended jurisdiction named in the order. He relied on the case of Abrahman Ramadhani @ Chino vs Republic (supra). Following the procedure for transfer being flawed, he was not hesitant to acknowledge that there was no transfer of the case and the appeal, legally speaking, is still in the High Court awaiting being heard either by it or else be properly transferred to the Resident Magistrates' Court. Regarding the way forward, Mr. Kelvin Kayaga was hesitant to go by the idea of the record of the High Court being remitted to the High Court for it to deal with the appeal itself or make a proper transfer contending that such act will prejudice the appellant who has been in prison serving an illegal sentence. Arguing forcefully, too, he cited a number of weaknesses in the prosecution case which render remittance of the record of appeal to the High Court a futile exercise as the appellant's guilty cannot be established. In the event, he beseeched the Court, after nullifying the proceedings and judgment by S. B, Nsana, to make an order releasing the appellant from prison. The prayer to have the proceedings and judgment by S. B. Nsana nullified met no objection from Ms. Makunja who took the floor on behalf of the respondent Republic. She was, however, not carried away with the feeling Mr. Kelvin Kayaga has shown that remitting the High Court record will be unfair to the appellant. She was strongly opposed to the plea that the appellant be set free arguing that, the appeal is still in the High Court waiting to be heard and was of a firm view that the proper course should be to remit the record to the High for its necessary steps. Mr. Kelvin Kayaga had no rejoinder leaving it for the Court to decide but appeared seriously opposed to an order being made that would let the appeal be heard by the High Court insisting that it Will work injustice on the appellant. To appreciate the essence of the concurrent view by the learned counsel of the parties that the provisions of section 173 (1) of the CPA invoked to transfer Criminal Appeal No. 68 of 2020 from the High Court to the resident Magistrates' court was not proper, we painstakingly hereunder recite it: - "173.~(1) The minister may after consultation with the Chief Justice and the attorney General by order published in the Gazette- (a) Invest ant resident magistrate with power to try any category o f offences whichr but for the provisions o f this section, would ordinarily be tried by the High Court and may specify the area within which he may exercise such extended powers." In view of these provisions, it appears clear to us that the power to invest a resident magistrate with extended jurisdiction is exclusively vested to the minister but before exercising such mandate he has to consult with the Chief Justice (the CJ) and the Attorney General (the AG) on the suitability of the magistrate concerned. The provision has nothing to do with transfer of a case to a magistrate vested with extended jurisdiction and it is pari materia! with the provisions of section 45(1) of the MCA. As rightly agreed by both learned counsel, transfer of cases is the exclusive domain of the High Court. And here, we wish to draw a distinction between the powers of transfer under section 256A(1) of the CPA and section 45(2) of the MCA. For clarity, we reproduce the provisions of section 256A of the CPA first as under: - "256A(1) The High Court may direct that the taking o f plea and the trial o f 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 subsection (1) o f section 173." In very certain terms, this provision clothes the High Court with power to transfer a criminal case which is due for trial by the High Court as a court of first instance such as murder cases. It does not apply to criminal appeals. Hence, a resort is to section 45(2) of the MCA which is genera! in that it applies to transfer of both criminal and civil appeals to the resident magistrate vested with extended jurisdiction in terms of section 45(1) of the MCA. Those provisions provide: - "45. -(1) The minister may, after consultation with the Chief Justice and with the Attorney General, by order published in the Gazette- (a) Invest any resident magistrate, in relation to any category o f cases specified in the order, with the appellate jurisdiction ordinarily exercisable by the High Court... (2) The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extendedjurisdiction has been conferred by section 45(i). * We gather from the above provisions that for a resident magistrate to have jurisdiction to preside over a case ordinarily presided by a judge of the High Court, two processes must be done. One; is investing him with extended jurisdiction which is done by the minister in consultation with the CJ and the AG, and two; the High Court has to transfer s case to such resident magistrate vested with extended jurisdiction. For trial of criminal cases, transfer is made under section 256A(1) of the CPA and for transfer of appeals such the one under our consideration, the appropriate provision to be invoked by the High 8 Court is section 45(2) of the MCA and, according to the cited provisions, transfer is done to a specific magistrate with extended jurisdiction. The Court attempted to harmonise the two provisions and insist the order assigning a case to a specific magistrate in the case of Abrahaman Ramadhani @ Chino vs Republic (supra) in these words: - "In the case o f Zakaria Magoma vs Republic, Criminal Appeal No. 113 o f 2006 (unreported), the Court interpreted section 45(2) o f the Magistrates Court Act [Cap 11 R. E 2002] which is worded in the same way as section 256A(1) and said: - "Our reading and understanding of the above section (after it was reproduced in the judgment) is that the transfer is o f appeals from the High Court to the tower courts is done to specific magistrate and not to the court. " In yet another case of Theophili Kamili vs Republic, Criminal Appeal No. 100 of 2012 (unreported), the Court had this to say: - "From the wording of section 256A (1) of the Criminal Procedure Code, Cap 20 the transfer of the case from the High Court after the High Court had conducted the preliminary hearing, and the omission to specify the name of the trial magistrate definitely denied Mr. Benedict Mwingwa, then Principal Resident Magistrate with Extended Jurisdiction the power to conduct the trial of the offences the appellant was alleged to have committed. As already said, the section is specific. Not only that the transfer must be made before the High Court conducts the preliminary hearing/ but the direction must also mention the particular name of the resident magistrate with extended jurisdiction who should conduct the trial". [Emphasis Added], By analogy, in the instant case, it being an appeal, the transfer order in respect of Criminal Appeal No. 68 of 2020 ought to have been done under section 45(2) of the MCA. By invoking the provisions of section 173(1) of the CPA, the High Court flawed and the error is fatal because it touches on the trial magistrate's jurisdiction to hear and determine the appeal. Jurisdiction, it is well known, is the bed rock of the court's authority to hear and determine a dispute. Once a transfer order is faulty, the case cannot legally move from the High Court to the Resident Magistrates' Court. The order becomes ineffectual. Because, herein, the transfer order is flawed, Criminal Appeal No. 68 of 2020, remained in the High Court and there was nothing to be heard and determined 10 by the assigned resident magistrate with extended jurisdiction one Ajaii Toma Millanzi, SRM Ext.Jurisd. We now revert to Mr. Keivin Kayaga's contentions that S. B. Nsana SRM Extend. Jurisd. had no jurisdiction to hear the appeal because, in the transfer order, the case was not assigned to her. It is true the case was not assigned to her. But, having held that the transfer order had no effect of moving Criminal Appeal No. 68 of 2020 to the Resident Magistrates' Court, Mr. Kelvin Kayaga's contention becomes superfluous. One cannot terminate water flow at the upper stream and expect water to flow downstream. However, for the sake of discussion and putting the legal position right, we shall work under an assumption that the transfer order was proper so as to determine the viability of Mr. Kelvin Kayaga's view that/ S. B. Nsana, SRM Ext. Jurisd had no jurisdiction to determine the appeal. We, indeed, agree with him that she would have no mandate. The case was, in the transfer order, assigned specifically to Ajaii Toma Millanzi, SRM ExtJurisd. On the authority of Abrahaman Ramadhani @ Chino vs Republic (supra), S B. Nsana SRM Ext. Jurisd. lacked jurisdiction to preside over that appeal. Jurisdiction, it is trite law, is statutorily provided and cannot be assumed or presumed. With respect, S. B. Nsana, SRM Ext. Jurisd assumed jurisdiction she did not have. li In a situation where the assigned resident magistrate is unable to preside over a case assigned, to.him, the record of appeal should be returned to the High Court for it to determine it or properly reassign it to another resident magistrate with extended jurisdiction. Unfortunately, this was not done. The proceedings and judgment by S. B. Nsana SRM Ext. Jurisd would therefore not survive the wrath of being declared a nullity. We stop here. The contest between the learned counsel of the parties lied on the way forward. They parted ways on whether or not the High Court record should be remitted for it to deal with it according to law. Mr. Kelvin Kayaga was not in favour of the order remitting the record to the High Court. We think this is not a matter to hold us much. We have held above that Criminal Appeal No. 68 of 2020, following an ineffectual transfer, remained not transferred hence it is still with the High Court. The appeal is therefore yet to be heard and determined by the High Court either by itself or by a resident magistrate with extended jurisdiction. If we understood well Mr. Kelvin Kayaga, he is proposing that we should hear the appeal and, based on the alleged weaknesses he vigorously explicated to us, allow the appeal and ultimately order the appellant be released from prison. Otherwise, we consider him to mean that even if the appeal is to be heard by the High Court, the outcome would be the same hence remittance of the record to the High Court is a futile exercise and will occasion an injustice to the appellant. It is understandable that, in terms of section 4(1) of the Appellate Jurisdiction Act, Cap. 141 of the Laws, the Court is vested with the mandate to hear and determine appeals from the High Court or Resident Magistrate with extended jurisdiction. It provides: - "4.-(l) The Court o f Appeal shall have jurisdiction to hear and determine appeals from the High Court and from subordinate courts with extendedjurisdiction." In the light of this provision, for the Court to exercise its appellate jurisdiction, there must be a decision by the High Court or subordinate court with extended jurisdiction sought to be impugned. After declaring the proceedings and judgment of the Resident magistrate a nullity, we are remained with no decision of the magistrates" court with extended jurisdiction a subject of an appeal for which the Court can exercise its appellate jurisdiction. It follows, therefore, that the appellant has to try his luck before the High Court first and, if he will be aggrieved by its decision, the road to this Court will be clear and open for him to challenge the High Court decision. 13 There is yet another contention by Mr. Kelvin Kayaga worth being addressed, albeit briefly. It is that, the appellant will be prejudiced by an order remitting the High Court record of appeal for it to hear the appeal now pending before it (Criminal Appeal No. 68 of 2020) or, if it so wishes, properly transfer it to the resident magistrate with extended jurisdiction for hearing and determination. With respect, we are not moved an inch by Mr. Kelvin Kayaga's contention for a reason that, it is the appeal which is going to be heard based on the evidence already in the record. Mr. Kelvin Kayaga's worries would be valid only if it is an order for retrial which is going to be made whereby the prosecution may have opportunity to plaster all the potholes in their case to which, consideration of factors set out in the case of Fatehali Manji vs Republic [1966] e .a . 343, have to be taken into consideration including the weaknesses in the prosecution case before an order for retrial is made. On that note, we think the High Court is the proper forum for considering the alleged weaknesses and shortcomings raised before us by Mr. Kelvin Kayaga. All said and done, we allow the appeal to the extent that there was no proper transfer of Criminal Appeal No. 68 of 2020 from the High Court to the Resident Magistrate' Court for it to be heard and determined by a resident magistrate with extended jurisdiction. All the proceedings before the Resident Magistrates' Court including the judgment by S.B. Nsana SRM Ext. Jurisd are a nullity. We order the High Court record in Criminal Appeal No. 68 of 2020 be remitted to the High Court for it to deal with it according to law. We direct that the appeal be expeditiously heard and determined. Meanwhile, the appellant has to remain in prison custody awaiting to prosecute his appeal before the High Court. DATED at TABORA this 22nd day of August, 2024 S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 23rdday of August, 2024 in presence of Mr. Kamaiiza Kayaga, learned counsel for the appellant and Ms. Oresta Kemilembe, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.