iddi sogora vs republic 2009 tzhc 260 27 july 2009

IN THE HIGH COURT OF TANZANIA

AT ARUSHA IDDI SOGORA .......................................................APPELLANT - Versus — THE REPUBLIC ................................................... RESPONDENT CRIMINAL APPEAL NO. 21 OF 2008 (A ppeal from the decision of the District Court of Kiteto) (S. M, MMBAGA - PDIVD Dated the 17thday of December, 2007 In Criminal Case No. 57 of 2007 l 81June. & 27“' July 2009

JUDGMENT Mmilla. B. M. J.: The appellant, Iddi Sogora was join tly charged with three other persons including his wife Fatum a w /o Sogora, with the offence o f conspiracy to commit an offence c/s 384 o f the Penal Code, and in the second count he was alone charged w ith stealing b y servant c/s 271 o f the same A ct. 'While all o f them were found to have no case to answer in respect the first count for which they were acquitted, the appellant was found guilt and convicted o f stealing by servant and was sentenced to three yearsr im prisonm ent term. The appeal is against both con viction and sentence. The appellant is being advocated for by learned counsel IVjulumi while the respondent R epu blic is being represented by Mr. Mzikila, learned state attorney. The appeal is being disposed o f by w ay o f written submissions. The appellant’ s m em orandum o f appeal w hich, on the w ording thereof suggest quite strongly that it was prepared b y a lay hand, has raised six grounds out o f w hich only tw o are w orth consideration. U pon rephxaisement, the first ground seems to allege that trial m agistrate w rongly refused to disqualify him self from continuing w ith trial o f that case after the appellant had subm itted that he had no confidence in him , secondly that the con viction was based on insufficient evidence therefore that he was im properly convicted. I propose to start

with the first ground touchin g on bias as I am o f the opinion that if upheld, it is capable o f disposing o f the entire appeal. '; ,v The appellant’ s counsel Mr. N julum i has subm itted, and the trial cou rt’ s proceedings bear evidence, that after the prosecution had closed its case the learned trial D istrict M agistrate cancelled appellant’ s bail w ithout giving reasons for taking that stern measure. It is on record that in protestation the appellant subm itted that he had no confidence in him on the one hand and the public prosecutor on the other and asked him to disqualify him self from continuing with trial o f the case. The trial magistrate how ever, declined to disqualify him self and proceeded w ith the case to its final conclusion which resulted in the appellant’ s con viction and hence sentence. Jt has been subm itted that this was unfair. Learned counsel N julum i cited the cases o f M etropolitan Properties Co. (F G C ) v. Lanenon and Others (1 9 6 9 ) 1KB (sic: 1QB) 577, The K in " v. Sussex Justices; Ex Parte MacCarthy (1 9 2 4 ) IK B 256 and Ernest s/o Ndesangio v. Republic (1980) T.L.R.

332. It is Mr. N julum i’ s submission that in view o f the alleged bias, this appeal should be allowed. On his part, learned state attorney Mzikila has subm itted that this ground lacks merits on account that the trial m agistrate was justified in rejecting the applicant’ s request for him to disqualify him self from continuing with the trial o f that case because the form er failed to advance proper reasons in support o f his prayer. H e relied on the case o f Seif Sharrif Hamad v. Republic (1992) T.L.R.

277. H e has requested this court to dismiss this ground. It is fortunate that the subject o f bias is rich o f precedents. W hile I agree with what I said 17 years ago in Seif Sharrif s case (then a Resident Magistrate Grade I II with E xtended Jurisdiction) that a prayer for a magistrate to disqualify him self on the ground o f bias requires an objective appraisal o f the materials before the court, and that mere apprehension o f bias is not o f itself sufficient to warrant disqualification, also that the du ty for him to disqualify him self for proper reasons is m atched b y an equal du ty not to disqualify him self save for proper reasons, w hich expression is valid; I subscribe to the rule expounded by Lord Denning on the subject in Metropolitan Properties case (supra) that:- “ Justice m ust be looked in confidence” . This seems to agree, in a w ay, w ith the cou rt’ s expression 85 years ago in the case o f The King v. Sussex Justices (supra) in which it was stated that:- “ N oth in g is to be done w hich creates even a suspicion that there has been an im proper interference w ith the course o f ju stice” . In our jurisdiction , this position was best elaborated in the case o f Zabron Pangam aleza v. Joachim Kwaraka & A nother (1 9 8 7 ) T .L .R . 140 in w hich the Court o f A ppeal o f Tanzania held that:- 44Justice m ust not m erely be done, but m ust be seen to have

been done. The safest thing to do for a judicial officer, w ho finds his integrity questioned by litigants or accused persons before him, is to give the benefit o f d ou bt to his irrational accusers and retire from the case unless it is clear from the surrounding circum stances and history o f the case that the accused is em ploying delaying tactics” . That court held further that: - 44b y insisting to hear the case against strong opposition o f the appellant and proceeding to dismiss it, the m agistrate not only confirm ed appellant’ s worst fears o f his having a personal interest in the m atter, but also am ounted to an error m aterial to the merits o f the case in volving injustice to the appellant” . In that case, that court, allowed the appeal on this ground, but ordered for the case to be tried de novo before another m agistrate with com petent jurisdiction. It is on record in our present case that one o f the reasons advanced by the appellant in protesting the trial m agistrate to continue trying his case was the unexplained cancellation o f his bail. As such, I am not persuaded by the submission o f the learned state attorn ey Mr. Mzikila that the appellant failed to assign proper reasons for requiring the trial magistrate to disqualify himself. On the basis o f that, this court cannot avoid saying that the act am ounted to bias on the part o f the trial m agistrate.

In the circum stances, I hold that this ground merits and succeeds. In consequence the con viction is quashed and the sentence, together w ith the resultant order for refund o f the sum o f m oney involved are set aside. H aving quashed the conviction and setting aside the sentence along with the order for com pensation, the next question is; w hat follow s? Will it be appropriate to order retrial as was done in Zabron Pangamaleza’s case? On the point, I wish to be guided b y w hat was expressed b y this court (Hon. Maina, J., R td ) in the case o f George Mhando v. Republic (1983) T.L.R.

118. In that case, the appellant was charged before the District Court at D odom a with stealing b y person em ployed in the public service c/s 270 and 265 o f the Penal Code. A t the end o f the trial the learned resident m agistrate cT* wrote a sum m ary o f the evidence but he did not com plete the judgm ent. He left a whole blank page, apparently intending to com plete the judgm ent later on. Then he proceeded to sentence the appellant to seven years' im prisonm ent. The appellant asked the H igh Court to overturn the sentence of the learned resident magistrate, and that the appellant’s counsel Mr. M bezi subm itted that a retrial would not be fair because the appellant had served a substantial part o f the sentence. A fter taking into consideration the fact that the appellant had b y that time already served about eighteen m onths out o f the seven years' im prisonm ent im posed b y the district court, also the observation w hich was made by M nzavas, Ag. J. (as he then was) in R epublic v. Suna (1 9 7 1 ) H.C.D 208 that in ordering a retrial all the circum stances must be considered and each case must depend on its ow n facts, the court held in that case (G eorge M hando’ s case) that:- “ it w ould not be unfair to order a re-trial in the case where a failure o f justice has been m anifested but where the appellant has not served a substantial part o f the sentence.” A

retrial was accordingly ordered. W ith great respect, I am o f the firm viewTthat the above expressions represent the correct view o f the law on the point. In our present case the appellant was sentenced to the said three years' im prisonm ent term 011 17.12.2007. I as I am concluding this judgm ent on 27.7.2009, he has already served one year, seven m onths and ten days out of that w hich is alm ost h a lf w ay to the com pletion o f the said sentence. In this cou rt’ s view , that is a substantial part o f the sentence, thus that it will not be fair to order retrial in the circum stances o f the case. As such, the appellant gets the benefit o f dou bt. It is thence ordered that h o be release from prison w ith immediate effect unless he is otherwise being held for some other lawful cause. Appeal allowed. (Sgd) Mmilla, B. M. Judge 20.7.2009 Date: 2 7 /7 /2 0 0 9 Coram :- B. M . K . M m illa, J. For the Appellant: Miss Chacha/Njulum i. For the Respondent: Miss Chacha, SA . B /c : Shill a. Court: Judgm ent delivered this 27th day o f July 2009 in the presence of Miss Chacha, learned state attorney who also held brief for learned counsel N julum i for the appellant. The appellant was not in attendance. A T A R U S IIA . (S gd) Mmilla, B. M. Judge 27. 7. 2009 R ight o f appeal explained. (Sgd) Mmilla, B. M. Judge 27. 7. 2009 I certify that this is a true co p y o f the original.