Criminal Appeal 34 of 2023 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL NO. 34 OF 2023 (Originated from the District Court ofKaiambo at Matai in Economic Case No. 2 of 2023) IBRAHIM ELIAS ©KAPELE............................... .........................APPELLANT VERSUS THE REPUBLIC...... ................. ..................................................RESPONDENT JUDGMENT ) 29'‘ May & 2'2: July 2024 ■ ■. ■ '' MRISHA, J. ' •. , The appellant namely Ibrahim Elias @Kapele has implored me to allow his appeal, quash.the conviction meted out to him by the District Court of Kalambo at Matai, set aside the sentence that followed and order that he be released from prison custody. His prayers are backed up by three (3) grounds of grievances as contained in his petition of appeal to the effect that: i 1. The trial court (the district court) erred in law by entering the plea of guilty while the charge was not read to the accused person as required by the law. 2. The trial court erred in law by entering the plea of guilty, conviction and sentenced the appellant based on the charge which was not read while the trial court has no jurisdiction. 3. That the trial court erred in law to enter a plea Of guilty while it was imperfect, ambiguous or unfinished. When the instant appeal came up for hearing, before this court, both parties were legally represented. While the appellant had the legal services of Mr. Peter Kamyalile, learned advocate, the respondent Republic had it from Ms.Atupelye Makoga, learned State Attorney. Practically, it was the appellant's counsel who began to make his submission regarding the above grounds of appeal, then followed by the respondent's. However, before doing so, Mr. Kamyalile dropped the third ground of appeal' and proposed to submit on the remaining grounds altogether. He submitted that the trial court had no jurisdiction to try the appellant's case for two reasons; first, because after the public prosecutor prayed to tender the consent and certificate conferring the subordinate court with 2 jurisdiction to try economic crime case, no endorsement was made by the learned trial magistrate which omission rendered the whole proceedings to be a nullity, as it was held in the case of Mbaraka Jimwaga @Karumbete & 5 Others, Criminal Appeal NO. 211 OF 2021 (CAT at Shinyanga, unreported). His second reason was that no charge sheet was read over and explained to the appellant after the public prosecutor tendered the consent and certificate conferring jurisdiction to the subordinate court to try an economic crime case which also indicates that the said trial court entertained the appellant's case without having requisite jurisdiction. To the respondent's counsel, she told the.court that she supports the present appeal with a similar reason assigned by her learned friend that the learned trial magistrate did not endorse to have received the consent and certificate conferring the subordinate court with jurisdiction to try an economic crime case which makes the whole proceedings of the trial court a nullity. She cited the case of Hashim Nassoro @Almas vs Director of Public Prosecutions, Criminal Appeal No. 312 of 2019 (CAT at Sumbawanga, unreported) to cement her proposition. She however, urged the court to order for a retrial of the appellant's case as the way forward, on the reason that the trial court typed records 3 reveal that the appellant pleaded guilty to the offence charged and that the prosecution evidence was not evaluated. In rejoinder, the appellant's counsel submitted negatively that the circumstances of the case at hand do not attract for a retrial order, but release of the appellant arguing that there is no evidence to be evaluated by the court in the present case and that in all cases referred above, the Court of Appeal ordered for the release of the appellants. I have dispassionately read the entire records of the trial court and considered the grounds of appeal fronted by the appellant and the submissions of counsels from both sides. It appears to me that both of them have agreed that there were substantive and procedural irregularities committed by the trial court which necessitate the need for the court.to upends the said proceedings for being a nullity, to quash the conviction and set aside the sentence passed by the said court against the appellant. Their only centre of dispute is on the way forward whereas while the respondent's counsel has pressed for a retrial order, the one for the appellant has taken a different approach which, if allowed, will lead to the release of the appellant. 4. In order to be in a good position to determine the present appeal, the roadmap for this court, will be whether the present appeal is meritorious and what is the way forward should that issue be answered in the affirmative. As I have indicated earlier, it is obvious that upon the prayer by the public prosecutor to tender the consent and certificate conferring jurisdiction to the subordinate court to try an economic crime case, as it is shown at page 2 of the trial court typed' proceedings, the learned trial magistrate did not make any endorsement to show that actually the abovenamed legal documents were admitted by the court he was presiding over. That is a procedural error which make the whole proceedings of the said trial court a nullity; it is as good as saying that the said court was, not clothed with requisite jurisdiction to try the appellant's case. r-V;-. £ -'i : The akin; situation to the foregoing happened in the case of Hashim Nassoro @AImas(supra) in which the Court of Appeal hold that: ..since the consent and certificate at pages 6-7 of the record of appeal were not endorsed and the trial court records does not show that they were formerly admitted, the trial court tried the case without jurisdiction. It is settled taw that in our jurisdiction 5 that any decision reached by any court without jurisdiction is nullity." i\s if that is not enough, I had an opportunity to examine the said legal documents in the records of the trial court and observed that apart from the charge sheet dated the 6th day of February, 2023 which appears to have been admitted by the learned trial magistrate on the 10th day of February,2023, neither the Consent, nor the Certificate of the Regional Prosecutions Officer Conferring Jurisdiction on a subordinate Court to try an Economic case, was endorsed by the said learned trial magistrate meaning that the appellant was charged and tried by the court which lacked jurisdiction to do so. What the above means is that the decision of the said trial court which led to conviction and sentencing of the appellant was nothing, but a nullity; that includes the whole proceedings of the said court. Hence, I is??..;- i?. agree with the submissions of both counsels that due to the foregoing procedural irregularities, the said trial court had no jurisdiction to try the appellant's case. There was another argument from the appellant's counsel that the charge sheet was not read over to the appellant properly. The respondent's counsel did not make any submission on that point. In 6 order to satisfy myself on that issue, I had to revisit the typed proceedings of the trial court. At page 2 of the said proceedings, it seems that the learned trial magistrate recorded the appellant/accused's plea in his own language: which is Kiswahili, in the following manner: ’7V7 kwe/i niiikutwa na ngozi mbili kavu za mnyama aitwaye Kanu, ngozi mbili za Karunguyeye, kipande kimoja cha ngozi ya Kenge, ndege mkavu aina ya sparrow bila kibaii cha umiiiki wa nyara hizo mail ya Jamhuri ya Muungano wa Tanzania" ■■■■. ■ And, at page 4 of the same trial court typed proceedings, the following is what transpired before the said trial court: - "Court: Accused is asked whether he admit facts as adduced by the pubiic prosecutor. Accused: I admit all facts as adduced by the public prosecutor Sign: Accused person Sign: Public Prosecutor Sign: N.K. Temu - SRM 10.02:2023" 7 Flowing from: the above excerpts, it appears plainly that the appellant was placed to respond to the trial court's questions in two different languages which raises some doubts whether the charge sheet was actually read over and explained to him in the language he was conversant with. Since, the records show that he was familiar with Swahili language, one would have expected the same language to be used when he was asked if he admits to the facts narrated by the public prosecutor or not. That is a substantive irregularity which also makes the entire proceedings and the decision of the trial court to be a nullity. Hence, based on the foregoing reasons, I find merits in the first and second grounds of appeal. On what should be the way forward, I wish to say that I have considered the rival submissions of the learned counsel from both sides. t 1 S :: U.K-’.* ■ My take is that since the entire proceedings of the trial court and its ' <9 : .7•• '.'a . decisions suffers from two major ailments namely procedural and substantive irregularities, the interests of justice requires that this is a not a fit case to order a retrial of the appellant's case. It follows therefore, that due to the reasons I have endeavoured to assign herein above, I cannot, but agree with the appellant's counsel that the present appeal need to be allowed, as I hereby do> 8 Consequently, I quash both the entire proceedings of the trial court and the conviction that followed from it. I also, set aside a sentence of twenty (20) years imprisonment imposed against the appellant and order for his immediate release from prison custody unless he is held therein for some other lawful cause. It is so ordered. 23.07.2024 DATED at SUMBAWANGA this 23rd day of July, 2024. A JUDGE 23.07.2024 9