Issa Vitus Lipagila Vs Prevention and Combation of Corruption Bureau PCCB Criminal Revision No

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY)

AT MOROGORO CRIMINAL REVISION NO. 16181 OF 2024 {Arising from Criminal Case No. 000001401 of2024 before the District Court of Kiiombero at Kiiombero) issA vrrus lipagila applicant

VERSUS

PREVENTION AND COMBATION OF CORRUPTION BUREAU (PCCB) RESPONDENT

RULING 16/08/2024 & 22/08/2024 KINYAKA, J.: In Criminal Case No. 1401 of 2024, the applicant, Issa Vitus Lipagila was charged before the District of Kiiombero at Kiiombero hereinafter the "trial court" on 18^^ January 2024 with two offences, forgery contrary to sections 333, 335 (a)(i) and (iv) and 337; and uttering false document contrary to section 342 of the Penal Code Cap. 16 R.E.

2022. In the present revision, the applicant moved this Court to call for and examine the record of the trial court's proceedings in the criminal case for dr the purpose of satisfying Itself as to the correctness, legality, propriety or regularity of the proceedings. The affidavit in support of the application for revision sworn by Mr. Gaston Shundo Garubindi, learned counsel for the applicant revealed in paragraph 3 that on 29^^ February 2024, the prosecution prayed to amend charge in the second count but the trial court did not record the order granting or refusing to grant the prayer. It was further contended in paragraphs 4 and 5 that during the conduct of the preliminary hearing, the trial court did not read the contents of the memorandum of agreed facts and the same was not signed by the accused and his advocates. The respondent admitted in the counter affidavit that failure by the trial court to record the order in respect of the prayers to amend charge and failure to cause parties to sign the memorandum of agreed facts affect the entire proceedings. At the hearing of the application, Mr. Shabani Kabelwa, learned State Attorney appeared for the respondent while the applicant was duly represented by Mr. Gaston Shundo Garubindi. Kzr It was Mr. Kabelwa who began to address the Court by admitting the Irregularities in the trial court's proceedings. He conceded to the

application and prayed for the Court to quash the proceedings and order for a fresh conduct of the preliminary hearing by the trial court. He cited the decision of the Court of Appeal in Peter Michael Madeleka v. R, Criminal Case No. 263 of 2022 on pages 15, 16 and 17, where the apex Court interpreted section 371 and 372(1) and (2) of the Criminal Procedure Act Cap. 20 R.E. 2022 hereinafter the "CPA"and held that section 372(2) of the CPA does not bar the High Court from revising the record of the proceedings of the lower courts in order to satisfy itself of the correctness, legality, propriety or regularity of the same. Mr. Garubindi had nothing much to add apart from insisting that the application be granted and the file be remitted to the trial court for the conduct of fresh preliminary hearing before another magistrate. I have carefully analyzed the submissions of the parties, and their sworn and affirmed statements in the affidavit and counter affidavit, respectively. The central issue for determination is whether the application is merited. In line with the submissions from the learned counsels, I have also revisited the proceedings of the trial court which reveal that the trial court did not record an order granting or refusing to grant an order upon the respondent's application to amend the charge sheet. Section 234(1) of the CPA require courts to make an order altering

the charge either by way of amendment, substitution or addition of a new charge, unless the required amendments cannot be made without injustice. The section provides: 234.-(1) Where, at any stage ofa trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration ofthe charge either by way ofamendment ofthe charge or by substitution or addition of a new charge as the court thinks necessary to meet the circumstances ofthe case unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and aii amendments made under the provisions ofthis subsection shall be made upon such terms as the court shall seem Just In the present application, the trial court's proceedings reveal on page 5 the prayer by the prosecution to amend the charge. However, the proceedings neither indicate a response from the applicant or his counsel nor the order of the trial court granting or refusing to grant the prayer for amendment. It is noted from the proceedings that after the prosecution's prayer for amendment was made, and despite the trial court's silence, the case proceeded for hearing of the prosecution case. In the circumstances, it is unclear which charge sheet, offences or particulars in the second count, the respondent was prosecuting against the applicant at the trial. I find

the omissions of the trial court fatal and contrary to the dictates of section 234 of the CPA. I now turn to the complaint on how the preliminary hearing was conducted. I have noted on page 6 of the proceedings that after recording the memorandum of agreed facts, the trial court indicated the same to have been signed by the parties and their attorneys. The excerpt of the proceedings is reproduced herein below: ACCD signature accd counselsignature 2^^ accd counselsignature S/A signature Admittedly, what transpired at the preliminary hearing as reflected in the above excerpt was a serious violation of section 192(3) of the CPA which 5 ^ require the memorandum of matters agreed to be prepared, read over and explained to the accused person by the trial court in a language the accused understands, signed by the accused and his advocate, if any and the public prosecutor. The provision states: 192(3)At the conclusion ofa preliminary hearing heid under this section, the court shaii prepare a memorandum of the matters agreed and the memorandum shaii be read over and explained to the accused person in a language that he understands, signed by the accusedperson and his advocate, ifany, and by the public prosecutor, and then Wed. In his submissions, Mr. Kabelwa contended that despite the requirement to record proceedings in the electronic Case Management System hereinafter the "online

system", the same has not done away with requirement of the law under section 192(3) for the CPA to have the memorandum of agreed facts signed by the accused person, his counsel, if any and the public prosecutor. I agree with Mr. Kabelwa that the law has not done away with the requirement of signature, but I do not agree that the same can be reflected in the typed proceedings of the court that has been submitted by the applicant as annexure IVL-01 to the affidavit. Unless a mechanism is adopted for the parties or their advocate to sign the memorandum of matters agreed in the proceedings taken by the magistrate, the signed version of the proceedings may either be in a hard copy or scanned and uploaded to the online system forming part of the proceedings in the criminal case. However, as both parties to the proceedings admit that the memorandum of matters agreed was not signed by the parties, this Court takes a stance that the requirement of signature of the accused, his counsel and the State Attorney was not complied with by the trial court. Not only that there was an error in the signing of the memorandum of agreed facts, but also the memorandum of matters agreed was not read over to the accused person contrary to the requirement of section 192(3) of the CPA. Undeniably, noncompliance with the requirement of section 192(3) of the CPA is also fatal as it denied the applicant the

right to be informed of the record of the matters he agreed. Amplifying section 192(3) of the CPA, the Court of Appeal in the case of Jovin Daud v. Republic, Criminal Appeal No. 4821 of 2020 [2024] TZCA 97(23 February 2024)] had the following to state on page 6 through to 7; "777/5 provision states that, in the course of the preiiminary hearing, the court is required to prepare a memorandum of undisputed facts of the case, read and explain them to the accused in a language he understands and cause it to be signed by him and his advocate, ifany. It is dear that this provision is couched in mandatory terms. The iaw is dear that, the aim of preliminary hearing is to accelerate criminal trials so that matters which are not disputed wiii be identified and thus, there wiii be no need to prove them; hence, saving court's time and costs. This has been the pronouncement by the Court in its various decisions; including the case ofKaiist Ciemence @ Kanyaga v. R, Criminal Appeal No. 1 of2000(unreported). The iaw aiso goes on to state that failure or erroneous preliminary hearing oniy vitiates its proceedings and does not vitiate the proceedings of the trial." I therefore agree with both the applicant and the respondent that the trial court committed fatal irregularity by its failure to read over to the accused the memorandum of the matters agreed and to cause the accused, his advocate and

the State Attorney to sign the same. In the same vein, the court was in error for its omission to record its order granting or refusing the prosecution prayer for amendment of the charge. Fortified by the holding of the Court of Appeal in the case of Peter Michael Madeleka (supra) which held on page 15 of the decision that the powers of revision of this Court extends to calling for and examining the proceedings S ■ of subordinate courts to satisfy itself as to the regularity of such proceedings, I quash and nullify the preliminary hearing proceedings of the trial court In Criminal Case No. 1401 of 2014 dated 29"^ February of 2024. In the same manner, since on the same date of the conduct of the preliminary hearing, that Is on 29'^ February 2024, the trial court omitted to record what had transpired after the prayer for amendment of the charge was made, I also nullify the trial court's proceedings that followed from that date. In consequence, I order for remittance of the case file In criminal case No. 1401 of 2024, for the trial court's conduct of the criminal trial In accordance with the law, but before another Magistrate. It Is so ordered. DATED at MOROGORO this 22'^ August 2024. H. A. KINYAKA

JUDGE 22/08/2024 Court: Ruling is ready, composed by the hon. Judge. She has instructed me to deliver. The Ruling is delivered this 22^ day of August 2024 in the presence of Mr, Shabani Kabelwa for the Respondent and Mr. Gaston Advocate for the Applicant, and Justa Tibendelana, Court Clerk. Right of Appeal ExplainecL- oP N S.P. awa

X DEPUTY REGISTRAR V 22/08/2024 10