19880315 TZHC Dar es Salaam

HT TJill IIIGIT COURT OF 1I1I\1'1ZAHIA AT: DAR ES Si'U,JiAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APFEAL N0.38 OF 1987 ORIGINAL CRIMINAL CASE NO. 1670 OF 1979 Of:' TI:l.E DISTRICT COURT'0::::1 ILALA DISTRICT AT IGSUTU Bcfoxc J. Eo Hasanchc Esqo, Resident Magistrate. JOSEPH LUCAS 1-lDIMILA : ~ g ;; a g ~ g ~ ~ g z : APPELL.A.t"\JT versus TIIE DNITw IlEPUiJLIC : ~ i • a g i a : ~ g g : g RESI'01'EJENT JUDGEMENT LUKANGA 2 ,PRM{EKT. JUnISDICTION) The main ffI'Otmd oa Appeal in this caao is that tho trial ma.gistrato did not comply with the provi.1dons of section 196 and 205 of the Criminal Procedure Code. Thora is oVidonco that this case was started by Mr. Korosso Principal Resident ~.agistrato(as he then was) and somotimcs in January, 1983 :Mr. nasa:ncho - Principal Ii.csidon-t Magistrate took over tho caso, There is no cvidoncc on to show that Mro Masancho PRM had a.cldrcssod tho app9llant in terms of' sccJdon 196 of CPC. TJ1is failure on tho pa.rt of' tho maeistrato caused grave miscarrioeo of justicoo It uas hold in tho case of Abdallah IIassani vs. R. 1970 Hm> No.279 thut tho prerequisite to the second magistrate cxercisine- jurisdiction is tho in:forming of tlic accused of his tight and that if this is m:,t complied with tho second magistrate nould havo no jurisdiction to hear the case and tho trial iWu.ld be a nuili ty o In this case tho second magistrate had not complied. with this proVision of the Criminal Procedure Code i:l.nd thcrGf ore ho had no jurisdiction to try the case and therefore the trial was a 111".lli tya Likewise there is no evidence on record to show that accused was arldl:osscd in terms of section 205 of Criminal Procedure Codeo Decided cas<1s shows that the non-compliance o:f section 205 of the CPC renders the trial a nullity. Mr. K;yuJ:,.i lGarned State Attorney who rcp:rcsented the Republic ad.L1:i ts tllat the non-compliance of section 205 o:f CPC renders the trial a nul:~i ty. but submits that since the appellant was ·~, heard saying that ho would t;i vo evidence on oath and that he had no witnesses \ to call and he would only Jrnndcr his notes i:ll ca11 be reasonably, be inferred. that the appellant was aclilressed in terms of section 205 of CPC. However, the record of tho lower <lou..rt is silent on this issue L Oo as to nhe-ther the appellant was addressed in terms of sectioi,, 205 of CPC or not. It was the duty of the trial .magistrato. to record that he had aclc.1.ressed tho appellant in terms of section 205 of CPC. In Du.lyi v. Ro 1971 HCD Ho.452. It uas held that the ommmoion to record wh, .,·i;hor such :l.tt:f'ormation and opportunity was given to the 2 I ,ppellant cw..not be ct.u~cc::. t.u1der sec·~ion346 of' ·bhe CPC since it goes to the root question whether the 01rtissio;1 has ,occasioned a :failure o:f justice. I have also pe1--u.sed the record very 00..refull,7 and I fmmd that the evidence against the appellant wao not su.ff'icient to warrant a convic-tion. The appellant was not properly identified and a.gain some witne:1300s such as Hussein Salehe with whom ·'t;lle goods were :i;:ept was no·l; called to k-stif:y- so as to collaborate the evidence of the other witnesses. I do_ not lmow why such material evidence ;,ras ui thheld, ii. may ,well be true as pointed out by the laarned cle:i:'ence counsel tlle prosecution :feared that the witnesses would give ad.verse evideace a.gain:::-(; the prosecution. For these reasons I allow the appeal, quash the conviction and set aside the sentence. The appellant is Ji;o be released forth with :froni prison unless lm,rl'L'.llJr hold for some othor lawful cause. A. S. LU10.'JWA PRINCIPAL BESIDELJ~~ -MAGIS:i1RATE (E::tendcd Jurindic·~ion ) .!..5th FebruaryJ.-..19GG Coram:- A. s. Lt1].ron.ga PRM. T:Jye!a for Republic. Muccadarn for Appellant - absent on safari to Za.nzi bar. Appellant - prcson·~. Judgement read in chambers in the presence of Itrera for the Ropu.blic. and in the prer;;once of the appellant but in ·i;he absence of his counsel who is reported fo be on safari. A. S. LD1C./ll\TGA PRM( EXT .JURISDICTIOlLJ IQ.gll't:, .of ~ppeal m~plained. 9\-{M,.J.~,v.J:( . A~ S. LUIQ\j\JGr PRIXCIPAL RESIDENT MAGISTB11.TE ( ~TE'i®ED--11IB_ISD~J.'.!9E) I>Ai"'.t ES SALAAM .