james bugingo vs republic 2010 tzca 65 14 may 2010

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA (CORAM: MSOFFE, J.A., MBAROUK, J.A. And BWANA, J.A.^ CRIMINAL APPEAL NO. 67 OF 2006 JAMES BUGINGO................................................................. APPELLANT

VERSUS THE REPUBLIC.............................. ................................. RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Musoma) (Mchome. J.) dated the 5th day of December, 2005 in Criminal Sessions Case No. 84 of 2002

JUDGMENT OF THE COURT 14 & 14 May, 2010 MBAROUK. J.A.: The appellant, James Bugingo and two others were charged with the offence of murder contrary to Section 196 of the Penal Code in Criminal Sessions Case No. 80 of 2002 in the High Court of Tanzania (Mchome, J.) at Musoma. The 2nd accused was reported dead at the early stage of the trial whereas the 3rd accused was acquitted. The appellant was the only one found guilty, hence convicted and sentenced to suffer death by hanging. Aggrieved, the appellant has come to this Court. In this appeal, the appellant is represented by Mr. Salum Amani Magongo, whereas the respondent Republic had the services of Mr. Edwin Kakolaki, learned Senior State Attorney assisted by Mr. Mkemwa, learned State Attorney. When the appeal was called on for hearing the Court suo motu raised a point on whether Section 293 (2) of the Criminal Procedure Act (Cap 20 R.E. 2002), hereinafter the Act, had been complied with. Without any hesitation, Mr. Magongo conceded that Section 293 of the Act has not been complied with. Hence he urged the Court to nullify the proceedings subsequent to where the prosecution closed its case on 8-11-2005. On his part Mr. Kakolaki concurred that Section 293 (2) of the Act was not complied with and urged that the proceedings after the prosecution closed its case could be nullified. He went further 2 by urging this Court to invoke

Section 4 (2) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 17 of 1993, to exercise its revisional jurisdiction and nullify those proceedings and direct the High Court to re-constitute itself and to proceed with the proceedings of the case after 8-11-2005. In the instant case, it is crystal clear that the record of the proceedings of the trial court shows that the High Court failed to comply with the mandatory requirements found in Section 293 (2) of the Act. Both Mr. Magongo and Mr. Kakolaki conceded to that effect. Section 293 (2) reads as follows:- "(2) When the evidence o f the witnesses for the prosecution has been concluded and the statement\ if any, o f the accused person before the committing court has been given in evidence, the court, if it considers that there is evidence that the accused person committed the offence or any other offence o f which, under the provisions o f section 300 to 309 he is liable to be convicted, shall inform the accused person o f his right - 3 (a) to give evidence on his own behalf; and (b) to call witnesses in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any o f those rights and record the answer; and thereafter the court shall call on the accused person to enter on his defence save where he does not wish to exercise either o f those rights." (Emphasis supplied.) Looking at the proceeding of the case on 8-11-2005, the trial High Court Judge noted as follows:- "Mr. Kiria: I dose the case for the prosecution now. SGD: L. B. MCHOME

JUDGE 8-11-2005 ORDER: Hearing 9-11-2005. Accused in remand custody. SGD: L. B. MCHOME

JUDGE 8-11-2005 4 Thereafter, on 9-11-2005 the defence case began and the trial Judge failed to inform the accused person of his right under Section 293 (2) of the Act. According to the recent decisions of this Court in the case of Melkizedeki Mkuta v Republic, Criminal Appeal No. 17 of 2006 and Maria Paskali v Republic, Criminal Appeal No. 18 of 2006 (both unreported) such non-compliance of the mandatory requirement in Section 293 (2) makes the proceedings of the case a nullity. As the trial Judge in the instant case failed to comply with such mandatory requirements of Section 293 (2), we are constrained to declare that the proceedings after the prosecution closed its case on 8­ 11-2005 are a nullity. Having declared that proceedings after 8-11-2005 are a nullity, we now exercise our revisional jurisdiction under Section 4 (2) of the Appellate Jurisdiction Act, 1979 as amended by Act No. 17 of 1993. For that reason, we quash and set aside the proceedings after the prosecution closed its case on 8-11-2005. Furthermore, the High Court is directed to re-constitute itself and proceed with the case after the prosecution closed its case on 8-11-2005. 5 d a i tu at n w a n z a this 14mday of May, 2010. J. H. MSOFFE

JUSTICE OF APPEAL M. S. MBAROUK

JUSTICE OF APPEAL S. J. BWANA

JUSTICE OF APPEAL I certify that this is a true copy of the original. (J. S. MGETTA)

DEPUTY REGISTRAR