NAMCHINDUMBA JUDGMENT

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO 2234 OF 2024 (Originating from the decision in Criminal Case No 154 of 2023, Ilala District Court at Kinyerezi, Dated 15 th May 2024 Before: G.E. NKWERA - SRM) ISMAIL MUSSA NAMCHINDUMBA………...... ……………...............APPELLANT VERSUS THE REPUBLIC…………………....................................................RESPON DENT JUDGMENT 12th&26th February 2025 MWANGA, J. The appellant herein was charged before the District Court of Ilala at Kinyerezi with one count of trafficking Narcotics Drugs contrary to Section 15 A (1) and (2) (c) of the Drugs Control and Enforcement Act, Cap. 95 [R.E 2019], as amended by the written laws Miscellaneous Amendment Act No. 5 of 2021. It was alleged by the prosecution that, on the 6th day of March 2023, at Ferry- Soko la Samaki area within Ilala District in Dar es Salaam Region, the appellant was found trafficking in 1 Narcotic Drugs, namely Cannabis sativa, commonly known as bhangi, weighing 96.62 grams. It was alleged that on the material date, the appellant was at Ferry-Soko la Samaki around 7:00 am; the appellant was found by police officers who were on patrol, sleeping along the beach. The police officers awakened him and asked him why he was asleep there; he answered that he was waiting to go fishing. The appellant was holding a bag in his hand, and when asked what he was carrying, he did not answer. Thus, PW2 took him near the road; he found a witness PW4- Moncel Alphonse Banyeema, to witness the search. PW2 opened the bag and found cigarettes (Winston) and pallets of bhangi. PW2 counted the pallets and got 160 pallets of bhangi. The said bhangi was thereafter seized, and a certificate of seizure was prepared and signed by both police officers, the independent witness, and the appellant. The accused was then taken to the central police station, where he was handled together with exhibits. The exhibits were taken to the Government Chemist PW1, who admitted to receiving 160 pallets of bhangi weighing 96.02 grams. PW1 conducted a test and prepared the report exhibit P1, where he discovered that the Pallets were bhangi. A trial 2 ensued, in which the appellant flatly denied the charges. After a full trial, the court was satisfied that the prosecution proved its case beyond a reasonable doubt, and the appellant was convicted and sentenced to 30 years imprisonment. In his quest to assail the conviction and sentence, the appellant has preferred the present appeal, fronting seven (7) grounds of appeal followed by one additional ground. The grounds contain in the memorandum of appeal read as follows; 1. That the learned trial court erred in law by holding the appellant's conviction based on the evidence of PW1, who failed to state his professional qualification as a basis of his expertise over the matter. 2. That the learned trial court erred in law by holding the appellant’s conviction based on the evidence of PW1, who did not establish his credential that he was Gazetted. 3. That the learned trial court erred in law, holding the appellant's conviction by not giving of his rights and/or options available under section 231(1) (a) (b) and (c) of the CPA, hence, unfair trial. 4. That the learned trial court erred in law and fact by holding the appellant’s conviction based on Exh. P1 3 (Bhangi), in which the chain of custody was not adhered to and was contradictory. 5. The trial court erred in law by holding the appellant’s conviction relying on the bangi (Exh. P1), which was unsealed before the court for verification; hence, the exhibit (160 pellets) remains unproven. 6. That the trial court erred in law by holding the appellant’s conviction based on the caution statement (Exh P.5) without conducting a trial within the trial to verify whether or not it was voluntarily made. 7. The trial court erred in law by holding the appellant’s conviction without considering that the prosecution side did not prove their case beyond a reasonable doubt. The additional ground reads: The learned trial magistrate erred in law by holding the appellant’s conviction. In contrast, the substance of the charge was not read over to the accused person (the appellant) by the court contrary to section 228 (1) of the Criminal Procedure Act (Cap 20 RE 2022), hence rendering the whole trial a nullity. On the strength of the above grounds, the appellant prays this court to allow the appeal by quashing the conviction, 4 setting aside the sentence against him, and releasing him from prison. At the appeal hearing, the appellant appeared in person (unrepresented), while the respondent appeared represented by Ms. Phoibe Magiri, the state attorney. In his submission, the appellant stated that he addressed the additional grounds of appeal, followed by ground 3, then the 1st and 2nd grounds, which he combined. The rest were submitted in seriatim. The respondent took a swipe at the submissions made by his counterpart, and his rebuttal followed the same sequence. In this judgment and for the better determination of this appeal, I will start addressing the 3rd ground, and if need be, I will proceed with other grounds of appeal. In support of the third ground of appeal, it was the appellant’s submission that the trial court magistrate did not explain to the appellant the options available to him in giving his defense. He contended that the record shows that the prosecution summoned seven witnesses, and the last prosecution witness was Insp. Msubisi is on page 46 of the typed proceedings. He argued that PW7 last testified in court on 23.04.2024. Thereafter, the prosecution prayed to close 5 their case on that material date. Then, the appellant was found to have a case to answer, and the trial court ordered that the defense be conducted on 30.04.2024. He referred the court to page 47 of the typed proceedings. He went on to submit that page 48 of the typed proceedings shows that the appellant gave his defense on affirmation, but his right to options available to him on how to give his defense was not explained to him. He said this is contrary to section 231 (1) (a) and (b) of the CPA Cap 20 RE 2022. To buttress his position, he cited the case of Salum Nassoro vs Republic, Criminal Appeal No. 234 of 2009. The appellant further argued that he is aware of a position of the law that the failure of the accused person to close his case for the defense is fatal and renders the trial incomplete. He contended that, in the present case, the defense case was not closed. To him, that omission by the trial court to record whether or not the defense closed its case before the judgment contravened section 230 of the Criminal Procedure Act (Cap 20 RE 2022). In conclusion, he argued that the omission by the trial court in complying with the above mandatory requirement of the law renders the proceedings and judgment of the trial 6 court a nullity. He thus prays before the court that the appeal be allowed and implores the court not to order retrial because the same will not serve any useful purpose. In her side, Ms. Magiri is valiantly opposed to this contention. She is insistent that section 231 of the CPA was complied with. She submitted that Section 231, as cited by the appellant, states that at a close of the evidence in support of the charge, if it appears to the court that the case is made against the accused person sufficiently enough to require him to make a defense, the court shall explain to him the charge and inform him of his right to give his evidence on affirmation or oath or not and call witnesses. Also, the court shall record the answer if it is intended to exercise any of the above rights. According to her, the trial court did comply with the requirements of this section as the court, after giving the ruling of the case to answer the court, recorded that the appellant was addressed under section 231 and added that the appellant was indeed discussed as per the law required, which is why he affirmed before testifying. Regarding noncompliance with section 230 of the Criminal Procedure Act, it was her submission that the section applies 7 where no prima facie case is established. In light of the argument above, she implores the court to disregard these grounds for appeal. In a short rejoinder, the appellant contended that the learned state Attorney was wrong. He invited the court to revisit page 47 of the typed proceedings to satisfy itself and see how the trial court contravened the mandatory provisions of section 231. He was insistent that it was the duty of the trial court magistrate to explain to the appellant by mentioning the rights available to him on how to give his defense. He argued the court should disregard the respondent’s argument. I have dispassionately considered the submission by the parties regarding this ground of appeal with the weight it deserves. I have also scrutinized the available records, the center of controversy being whether the trial court adhered to the provision of section 231(1) of the CPA cap 20. For clarity, I find it prudent to reproduce the section here under “231.-(1) At the close of the evidence in support of the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defense either in relation to the offense with which he is the charge or in 8 relation to any other offense of which, under the provisions of sections 300 to 309 of this Act, he is liable to be convicted the court shall again explain the substance of the charge to the accused and inform him of his right- (a) to give evidence, whether or not on oath or affirmation, on his behalf; and (b) to call a witness in his defense, and shall then ask the accused person or his advocate if it is intended to exercise any of the above rights and shall record the answer and the court shall then call on the accused person to enter on his defense save where the accused person does not wish to exercise any of those rights”. The rationale behind the above provision is well explained in the case of Emmanuel Richard @ Humbe vs Republic (Criminal Appeal 369 of 2018) [2021] TZCA 111 TanzLII. “The thrust of the above-cited provision is that it imposes a duty on the trial court to explain again the substance of the charge to the accused if it is satisfied that a prima facie case has been established. Apart from that, the provision requires the trial court to explain to the accused his right to give his defence, whether on oath or affirmation or not, and whether he has a witness to call. In this case, it is mandatorily required to record the answer thereof from the accused”. 9 See also the cases of Frenk Benson Msongole v. Republic, Criminal Appeal No. 72A of 2016 [2019] TZCA TanzLII and Maduhu Sayi Nigho v. Republic, Criminal Appeal No. 560 of 2016 [2020] TZCA 1723 TanzLII. In both cases, the court of appeal was insistent that the obligation imposed on the trial court by the provision above is a mandatory requirement. Failure to comply with the provisions of section 231 of CPA is prejudicial to the accused right to a fair hearing. Denying him that right is, therefore, fatal, incurable irregularity. There is a plethora of authority expounding this stance. These include the case of Cleopa Mchirwa Sospeter vs Republic, Criminal Appeal No.51 of 2019 [2020] TZCA 287 at ww.tanzlii.org, Maduhu Sayi @Nigho vs Republic, supra, and Ulilo Hassan vs. Republic, Criminal Appeal No 196 of 2018 CAT at DSM (unreported) and Maneno Musa vs. Republic, Criminal Appeal No 543 of 2016 [2018] at www.tanzlii.org. For stance in the case of Maneno Mussa vs Republic, (supra) the Court of Appeal on a similar matter akin to this situation observed that; 10 “failure by the trial court to comply with the provisions of section 231 (1) of the CPA, which safeguards accused persons' right to a fair trial, is a fatal omission”. In insisting on the importance of complying with the mandatory provisions of Section 231 of CPA, the court of appeal in the case of Alex John vs. Republic, Criminal Appeal No. 129 of 2006 (unreported), cited with approval in the case of Ulilo Hassan (supra) stated that; “This is because, in our view, this provision enshrining the fundamental right to hearing must be given a liberal and purposive construction if it is to be in conformity with the provision of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977... In including this section in the Act, the legislature intended to impose a duty on a trial court to create or provide an environment for fair hearing or a fair trial”. In light of the above authorities, it's now opportune to disentangle parties locked in a debate over whether the trial magistrate adhered to the mandatory provision of section 231 of the CPA in this appeal. 11 Looking at the records of 23/04/2024, it is crystal clear that, after the prosecution had closed its case on 22/04/2021, the trial magistrate delivered a ruling on the case to answer and then fixed a date for the defense hearing. For clarity, this is what transpired in the proceedings. “COURT: After going through the prosecution evidence, this court is satisfied that there is a prima facie case made against the accused person, and he is required to give his evidence as per section 231 of CPA ORDER: Dhg on 30/04/2024 AFRIC” As reflected above, the record is silent on how the appellant elected to give evidence and whether or not he intends to call witnesses. In the next proceedings, the appellant is seen giving evidence on his own. Worse enough, the appellant was unrepresented. Therefore, that omission was fatally irregular and violated the proceedings. The same prejudiced the appellant's right to a fair trial as it was well stated in the case of Maduhu Sayi @Nigho vs. Republic (supra), where the court had this to say; 12 “In the case at hand, as submitted by Mr. Katuga, the record does not show the manner in which the appellant elected to give his evidence and whether or not he intended to call witnesses. The trial magistrate was enjoined to record the appellant's answer on how he intended to exercise such rights after having been informed of the same and after the substance of the charge had been explained to him. In the circumstances, the omission prejudiced the appellant. This is more so because he was not represented by a counsel”. The consequence of non-compliance with such mandatory provision of 231 of CPA was well adumbrated in a number of cases, including the case of Cleopa Mchiwa Sospeter Vs the Republic (supra), where the court stated that; “this Court has often times held that failure to comply with the mandatory provisions of section 231 (1) of the CPA vitiates subsequent proceedings.” The Court went on to state on page 10 that; “As a result, we agree with Mr. Katuga that the procedural irregularity he outlined calls for our intervention by way of our revisional jurisdiction under section 4(2) of the AJA. We as a result, quash and set aside all the proceedings after the last prosecution 13 witness (PW7) in the trial of District Court of Dodoma in Criminal Case No. 16 of 2017 and all subsequent proceedings in the High Court at Dodoma in DC Criminal Appeal No. 4 of 2018”. With the above authority in mind, I thus, for the reasons given above, enjoined to invoke the revisional powers conferred to this Court under section 373(1)(a) of the CPA and proceed to nullify the proceedings from the date when the ruling of the case to answer was handed down onwards, quash appellant’s conviction and set the judgment and subsequent orders thereto. From the foregoing finding, I now consider the remedy under the circumstances. In most cases, the remedy is to return the file to the lower court for retrial. However, the same should be done under the guidance of the principle governing retrials. It is worth noting that Each case should be decided in its own circumstances. When expounding on principles governing retrial, The court of appeal in the case of Ulilo Hassan (supra). At page 15 had this to say; “There appears to be no hard and fast rule on what should follow where part of the proceedings of the trial court have been 14 nullified by the appellate court for impropriety. From the decided cases, the circumstances of each particular case seem to be the guiding factor. While, for instance, in Maneno Mussa case (supra) as well as in Cleopa Mchiwa case (supra) the court ordered for retrial of the case from the defence stage, in Mabula Julius and Another v. Republic Criminal Appeal No. 562 of 2016 and Maduhu Sayi @ Nigho republic Criminal Appeal No. 560 of 2016 (both unreported), the Court declined to order for a retrial”. In the instant appeal, having considered the circumstances of the case and the already adduced evidence by the prosecution, it is my finding that an order for a retrial would be a proper course. I thus hereby remit back the file to the trial court for compliance with section 231 of the CPA from the stage or date when the ruling of the case to answer was delivered on 23/04/2024. In the meantime, the appellant should remain in custody to await the procedure of giving his defense after being addressed in terms of section 231 of CPA, and the same should be handled expeditiously. If another trial magistrate handles the file, section 214 of the CPA should be complied with. The appeal is allowed to that extent. 15 It is so ordered. H.R.MWANGA . JUDGE 26/02/2025 COURT: Judgment delivered at Dar es Salaam in chambers this 26th February 2025 in the presence of Appellant in person and Ms. Phoibe Magiri, State Attorney for the Respondent. H.R. MWANGA . JUDGE 26/02/2025 16