20151006 TZHC Dar es Salaam

(!J THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CRIMINAL REVISION NO. 6 OF 2014 KINONDONI DISTRICT COURT CASE NO. 262 Of 2008 JAMES SERENGA NYAGAWA ..................................................APPLICANT VERSUS REPUBLIC ............................................... ■ •••••••• • RESPONDENT Dated the 06 day of October, 2015 Corum - Hon. KITUSI, J For the Applicant For the Responden RULING ) The Applicant James Serenga Nyagawa was charged with and convicted on two counts of Armed Robbery before the District Court of Kinondoni, in Dar es Salaam Region. He was accordingly sentenced to a prison term of thirty (30) years' for both counts, and it was ordered that they run concurrently. That was six years ago, or on 31/7/2009, to be exact. James Serenga Nyagawa was aggrieved by the conviction and sentence, so he intended to appeal against both. Thus he dully filed a notice of appeal on 4/8/2009 and dispatched it to Kinondoni District Court through the Prison Authorities as it is usually done. He then 1 applied for copies of judgment and proceedings so as to prepare the appeal but the same have not been supplied to him to date despite many reminders. The applicant decided to file this application for Revision under SS ,372' and 362 of the CPA ( CAP 20 RE 2002) read together with S-44(1)(2)(3) of the Magistrates Courts Act ( CAP 11 RE 2002} . The application is supported by the affidavit of the applicant himself in which he faults the trial court on mainly three points; 1. That the learned trial magistrate erred in basing. her conviction on a cautioned statement without first holding an inquiry to establish its legality or its value 2. That the trial court erred in law and in fact in re~ying. on the evidence of visual identification given by witnesses (PWl, PW2, . and PW3)who were not credible. 3. That the trial District Court erred in basing its findings on the evidence of finger prints allegedly found on the gun. In the course of hearing this application, the applicant simply adopted the affidavit but did not submit on the grounds for challenging the decision of the court below. Since the affidavit is part of this application, the· court will use the information contained in it if and where necessary. The best part of the applicant's submission was on the reason why he preferred this application to an appeal. The applicant was unrepresented and therefore some of the shortcomings in the presentation of the case are quite understandable. The respondent Republic was represented by Ms Grace Mtaki, !earned State Attorney. Ms Mtaki submitted briefly to the effect that the applicant could not use the application for revision as an alternative to appeal. She urged the applicant to pursue the appeal. 2 In rejoinder, the appl'icant referred to the delay as an injustice, and called upon the court to remedy the situation by quashing the judgment of the trial District Court and restoring his liberty. One of the provisions under which this application has been preferred reads-; 362.-(1) Every appeal shall be made in the form of a petition in writing presented by the appellant or his advocate, and every such petition shall, {unless the High Court otherwise directs) be accompanied by a copy of the judgment or order appealed against. (2) The petition shall contain particulars of the matters of lalrv or of fact in regard to which the subordinate court appealed from is alleged to have erred. This, in my view, is the basis upon which the applicant submits that he could not appeal because the copy of judgment and proceedings were not supplied to him. There is no dispute that the Applicant raised a Notice of Appeal immediately after being convicted with and sentenced in two counts of armed robbery. There is also no dispute that he was not supplied with copies of judgment and proceedings despite his written request and several reminders. The general rule under S. 362 (1) of CPA is that all appeals to the High Court shall be accompanied with a copy of the judgment appealed against. It can therefore be concluded that the applicant was prevented by the court from exercising his right of appeal. The issue is whether the course taken by the applicant, that is, making an application for Revision, is legally appropriate. According to Grace Mtaki, the learned State Attorney who represented the Respondent Republic, the Applicant may still pursue his appeal and that in any event these Revisional proceedings may not proceed without the typed judgment and proceedings of the trial court. 3 ( My reading of S. 362 (1) (supra) shows that an appeal may, with leave of the High Court, be preferred and lodged without a copy of the judgment being appealed against. Understandably, one needs to read the judgment in order for him/ her to prepare grounds of appeal. This fact, however, does not render the alternative provided for under S.362 ( 1) of CPA non-existent. As already shown in the preceding pages, the applicant preferred this application for revision. The application is made under various provisions of the law including S 362 (1) CPA which I have referred to earlier and S 372 of CPA. The latter provision applies where it is the court in its own motion that calls for and examines the record. This provision does not, therefore, apply in the instant case. The other provision mentioned in this application is S. 44(1)(2)(3} of the Magistrates Courts Act. 44.-(1) In addition to any other powers in that behalf conferred Upon the High Court, the High Court- (a) shall exercise general powers of supervision over all district courts and courts of a resident magistrate and may, at any time, call for and inspect or direct the inspection of the records of such court and give such directions as it considers may be necessary in the interests of justice, and all such courts shall comply with such directions without undue delay; (b) may, in any proceeding of a civil nature determined in a district court or a court of a resident magistrate, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit: Provided that no decision or order shall be made by the High Court in the exercise of tlhe jurisdiction conferred by paragraph (b) of this subsection, increasing any sum awarded or altering the rights of any party to his detriment, unless such party shall have first 4 been given an opportunity of being heard. (2) A resident magistrate in-charge may call for and inspect the record of any proceedings in a district court and may · examine the records or registers thereof for the purpose of satisfying himself as to the correctness, legality or propriety of any decision or order and as to the regularity of the proceedings therein; and may, in any case in which he considers that any decision or order is illegal or improper or any proceedings are irregular, forward the record with a report to the High Court in order that. it may consider whether or not to exercise its powers of revision. (3} Where a resident magistrate in-charge forwards any record in any proceeding of criminal nature to the High · Court under this section, he may, for reasons to be recorded by him in writing on the record, order that the execution of the decision or order of the court be suspended, and if the convicted person is in confinement, that he be released on bail, with or without sureties. This provision relates to supervisory powers of the High Court and does not, in my v_iew, cover the present scenario. The closest is S 373 of CPA which relates to the Court's Revisional powers· in situations other than those covered under S. 372 of CPA. In the first place, this application is not made under that provision. Secondly in considering this provision the Court of Appeal in the case of HAMISI RAJABU DIBAGUlA VERSUS THE REPUBLIC [2004] T.LR 181 the Court of Appeal held thus in this regard. "The first one concerns Revisional powers. No one can doubt the usefulness of these powers, but they should be exercised in appropriate cases. Save in cases where justice requires an obviously umproper conviction, or megal sentence to be at once quashed or rectified, Revisional powers should not be exercised before inquiry has been made whether an appeal has been or is likely to be lodged: see (T) lobozi S/o Katabaro v R, (1956) 23 E.A.C.A 583".. 5 The powers of Revision of this court therefore are not exercisesable without caution. In my view, the court may only invoke those powers when the following conditions are fulfilled. (i) Where an obviously improper conviction or illegal sentence needs to be quashed or rectified at once. · (ii) Where an inquiry has been made whether an appeal has been or is likely to be made. The record shows that the applicant raised a Notice of Appeal, on 4/08/2009~ It was received by the Resident Magistrates Court of Kivukoni on 5/08/2009-. The said trial court had a certified copy of the Judgment signed on 12/03/2014, that is, more than four years later. This is obviously a period too long to rationalize, but does not justify the course taken by the applicant. The application was filed on 18/02/2014, barely a month before the copy of judgment was certified by the learned trial Resident Magistrate. It has taken another eighteen (18) months to wait for the applicant's improper course to be dismissed as I hereby do. Since there is a copy of judgment and the lower court record is already at this registry, let a copy of the said judgment be immediately supplied to the applicant for him to file the necessary documents in pursuit of his intended appeal. It is so ordered. ~ , l \\ 1 ,:.:,'-:) ,., 0 j-:• r. y~ ' ~:0--,L, <7 I.P.K1tu.si ] .:z· , 1- '06/10/2015 \""' 6