20180914 TZHC Mbeya

:ç :1 THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) ATMBEYA CRIMINAL APPEAL NO. 135 OF 2017 (From judgement of the Resident Magistrate Court of Mbeya at Mbeya, Traffic Case No. 73 of 2017) IMRAN S/O SHAMSHUDIN JESSA,I..............S.............APPELLANT VERSUS THE REPUBLIC ......................................................... RESPONDENT JUDGEMENT Hearing on: 101912018 Judgement: on 141912018 NGWEMBE, J: The appellant was arraigned in court charged with offence of causing death through dangerous driving contrary to section 40 (1), 63 (2) (a) and 27 (1) (a) of the Road Traffic Act Cap 168 R.E. 2002. It is alleged that on gth May, 2017 at Uhindini area along 'Stendi Kuu' road and Uhindini road within the city of Mbeya, the Appellant drove motor vehicle bearing registration No. T 356 AUL Toyota Land Cruiser in a manner which was dangerous to public and other road users, while using mobile phone hence lost concertration in driving as a result the said motor vehicle moved left hand side off the road 1 ilk contained in page 5 and 6 of the judgement were not testified in court and are not in the proceedings. It seems the trial magistrate went to the scene of crime and provided facts in the judgement, which were not adduced in court. On the adversarial side, Miss Xaveria Makombe - State Attorney, strongly disputed ground two that the prosecution called four reliable witnesses including an eye witness PW4, who witnessed the accident. However, she supported the appeal on the first ground that indeed the trial magistrate used evidence in his judgement, which was not testified in court. She added that the irregularity is fatal as rightly, decided by the Court of Appeal in the case between Athanas .Julias Vs. Republic Criminal Appeal No. 498 of 2015. Finally, rested her submission by inviting this court to reevaluate the evidence and make appropriate decision as was decided in the case of Prince Charles junior Vs. Republic Criminal Appeal No. 250 of 2014. With serious note, my attention has been drawn on the evidence found in the judgement of the trial court, where both counsels have vehemently argued that what is contained in the judgement is not found in the proceedings. As such, I intend to begin with first ground of this appeal, which both counsels have agreed. I have carefully reviewed the whole judgement of the trial court and found two areas of concerns, namely: Visiting Locus in quo as per page 5 and 6 of the judgement and the second area is the conviction of the Appellant. In page 5 paragraph 2 of the judgement, the trial magistrate had this to say:- 3 * "This court had visited the scene of accident and measured the distance of events. From the road bump to the triangular traffic ) about there is 19.20 metres, where the road is curved, from the triangular traffic to the place of which the motor vehide knocked the tree is 57.60 metres and the road is straight. .... At the p/ace where the motor vehicle ended at the tree by knocking it, the tree was seriously damaged to the extent that, a /arge area of its bark was removed, and according to my view, if without that tree, I am confident that, the motor vehicle could hit the wa/I of the house beside there." At page 6 of the judgement the trial magistrate proceeded to say as follows:- "In that locus in quo of the scene of accident, where both parties attended, at the place before reaching the scene of the accident, there is a road bump and a corner, in front of them, there is a triangular about' In the proceedings at page 24, the defence witness concluded and closed their defence evidence. Under normal circumstances what followed was for either for the parties to make their final oral or written submissions of their case or if not necessary the court should pronounce date of judgement, but in this case, the court suo motto as appears in page 25 of the proceedings ordered as follows:- "Court: wishes to v/sit the scene of accident and the motor vehicle which involved in the accident just now, 4 Court: reaches at the scene of accident at L/hindini area with the he/p of the accused, has shown the court the area of accident, the ditch, iron s/abs and the knocked tree. The court measures the length of points of events, but when the court asked to go to be shown the accidented motor vehicle, the prosecution, defence and the accused say that it was handled over to the accused, it was astonishingly the accused to be handed over the motor vehicle while his traffic criminal case is pending ' It is clear that the court suo motto ordered to visit locus in quo after both parties have closed their cases. It is also true that both parties participated in the scene of accident, but had nothing to add to what have already submitted in court. One may ask what was the use of visiting locus in quo, while the parties have closed their cases. It is a trite law that a judgement should be based strictly on the evidence on record, and not on outside evidence, however acquired. The court should not go out of the record and base his findings on matters within his personal knowledge. This position has been pronounced by the Court of Appeal in different cases as will be discussed hereunder. It has been discouraged by this court and the Court of Appeal, for the Court to visit locus in quo save, on a very exceptional circumstances. The apparent danger is for the court to turn into a witness instead of being an adjudicator based on the evidence adduced by witnesses in court. In Civil Appel No 50 of 1998 between G. Alibhai & 6 Others 5 Vs. Hilal Ahmed Busaid at page 14, Justice of Appeal Mroso had this to say:- "The court is in only exceptional circumstances that should visit ) a locus in quo as by doing so a court may unconsciously take the role of a witness rather than an adjudicator. In effect the court may become witness in the dispute by relying on its own impressions and in what it had seen in coming to its condusion rather than on evidence ' A fundamental question to ask in the circumstances of this appeal, is whether the trial Court followed all criteria on visiting locus quo? The Court of Appeal promulgated several criteria to follow in the case of Nizar M.H. Ladak Vs. Gulamali Fazal Janmohamed [1980] LRT 29 where the court held: - "It is only in exceptional circumstances that a court inspects a locus in quo, as by doing so a court may unconsciously take on the role of a witness rather than an adjudicator. At the trial, we ourselves can see no reason why the magistrate thought it was necessary to make such visit, witnesses could have given evidence easily as to the state, size, location and so on of the premises in question. Such evidence could, if necessary, be challenged in cross- examination. When a visit to a locus in quo is necessary or appropriate and as we have said this should only be necessary to exceptional cases, the court should: _6 (a) Attend with the parties and their advocates, if any, With such witnesses as may have to testify in that particular matter, and for instance if the size of a room or ) width of road is a matter in issue, have the room or road measured in the presence of the parties, and a note made thereof; When a court assembles in the court room, all such notes should be read out to the parties and their advocates, and comments, amendments or objections called for and if necessary incorporated; and Witnesses then have to give evidence of all those facts, if they are relevant, and the court only refers to the notes in order to understand or re/ate to the evidence in court given by the witnesses' When these set of rules are not followed, on visiting locus in quo, the court would enter into a dangerous zone of being a witness, than an adjudicator. As rightly stated above, all witnesses of both parties were already testified their evidence and trial case was already closed, therefore, after visiting locus in quo the trial magistrate proceeded to write his judgement according to his evidence as opposed to the evidence of witnesses. The set of rules were not followed in this case as rightly pointed out by both learned counsels. The court of appeal on the above cited case proceeded to quash the whole proceedings, and judgements of both the trial court and that of first appellate court and ordered trial de novo before another magistrate. 7 However, before arriving into the conclusion on this issue, I wish to cite another authoritative case of the Court of Appeal, Athanas Julius Vs. 5) Republic Criminal Appeal No. 498 of 2015 Mwangesi J.A: at page 11 had this to say: - "The trial Resident Magistrate included in his judgement, facts which are not reflected in the recorded evidence in the proceedings. The implication here is that, either, in his judgement, the trial resident magistrate did include extraneous matters which did completely not feature in the evidence of the witnesses who were called to testify, or, the trial resident magistrate did omit to record a number of facts that were said by the witnesses in their testimony. In either case, we are inclined to join hands with the contention of the learned counsel for both sides that, the irregularity occasioned was fatal, and did vitiate the entire proceedings of the trial court. In that regard, we quash the proceedings of the trial court as well as that of the first appellate court, because it was founded on null proceedings, and we set aside the sentence imposed thereto ' With the above precedents, I have no slight doubt, that the trial court, visited locus in quo in total disregard of the set up rules, the measurements taken at the scene of crime was not read out, no witness was called to testify on it and there was no room for objection or cross- examination, for the case of both parties was closed. Worse still, the proceedings do not provide what happened after visiting the scene of 8 * crime. Therefore, indeed that trial magistrate in his judgement included extraneous matters. Before conclusion, there is a second irregularity which is apparent on the face of the record, the learned counsels did not address the court on it, but it is vividly seen and this court cannot leave it. The trial magistrate upon conclusion of his judgement convicted the appellant by the following statement:- "so I do herby convict him accordingly under section 235 (1) and 312 (2) of the Criminal Procedure Act Cap 20 R.E. 2002": An immediate question to ask is whether the Appellant was charged under the two sections referred in the conviction? Whether the two sections are related to traffic offences? This court and the court of Appeal have repeatedly stated that conviction must cite a section or sections which the accused stand charged. The appellant was charged for causing death through dangerous driving of a motor vehicle contrary to section 40 (1), 63 (2) (a) and 27 (1) (a) of the Road Traffic Act Cap 168 R.E. 2002. Now how could the accused be convicted under Criminal Procedure Act? Such irregularity is fatal, it goes to the root of the validity of the judgement itself. Section 235 (1) is reproduced hereunder:- "The court, having heard the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against h/rn according to law..." When the court convicts the accused, magistrates should always apply section 312 (2) of the Criminal Procedure Act, which section read:- "In the case of conviction the judgernent shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced" These two sections are couched in a mandatory language, in that if at the end of the trial, the court is of the opinion that, on the strength of evidence adduced in court, the accused person is guilty, it must proceed to enter conviction and the subsequent sentence. It goes therefore that, a judgment without proper conviction is not judgment known by law. Trial courts must specify, which offence under which section the accused is convicted to. Example the proper conviction of the accused person should read like this:- "accused is convicted for infanticide contrary to section .......of the Penal Code Cap 16 R.E. 2002". To the best of my understanding, a statement like this does comply with sections 235 (1) and 312 (2), of the Criminal Procedure Act Cap 20 R.E. 2002. A swiping statement like "the accused is convicted as charged" or "the accused is convicted as per sections 235 (1) and 312 (2), of the CPA" such conviction is inconsistent with sections cited above, the accused, cannot be charged under Criminal Procedure Act. The Act provides 10 procedures as opposed to Penal Code and other laws which provide penal sanctions. The two sections provide procedure on how to convict the accused upon conclusion of the evidence. In the case of Kelvin Myovela Vs. R Criminal appeal no. 603 of 2015 the Court of Appeal held:- "It is not sufficient to find an accused guilty as charged. Failure to enter a conviction renders a judgement invalid. In fact, there is no valid judgement without a convict/on having been entered, as it is one of the prerequisites of a valid judgement' In another case of the Court of Appeal, Criminal Appeal No. 203 of 2011 between George Patrick Mawe & 4 others Versus Republic at page 4 held:- "In the case of conviction the judgment shall specify the offence of which and the section of the Penal Code or other law/the accused person is convicted and the punishment to which he is sentenced'. It is now settled principle of law that failure to convict the accused person is not a mere irregularity curable under section 388 of the CPA, but fatal. Under normal circumstances, an incomplete judgment due to improper conviction should be returned to the trial magistrate with instruction to compose a legally acceptable judgement according to sections 235 (1) and 312 (2) of the Criminal Procedure Act Cap 20 R.E. 2002. In other words, the trial magistrate should complete his judgement according to law. 11 However, the trial Magistrate in this appeal made two serious irregularities which goes to the root of the validity of the case itself, that is to say inconsistences founded in the Judgment as opposed to the Proceedings and wrong Conviction. Therefore, the whole Proceedings and Judgment of the trial Court were faulted consequently same are quashed. For the foregoing reasons, this appeal has merit, the same is hereby allowed. Conviction is quashed and the sentence is set aside and order an immediate release of the appellant from prison, unless otherwise lawfully held. I j) ;.t z P.J. NGWEMBE JUDGE * 14/09/2018 Court: Delivered at Mbeya in Chambers on this 11th day of September, 2018 in the presence of Mr. Mwakolo for Mtui Advocate for the Appellant and Miss Xaveria Makombe State Attorney for the Respondent. Right to appeal explained against this judgement explained P.J. NGWEMBE JUDGE 14/09/2018 12