19860616 TZHC Dar es Salaam

IN THE HIGH CGTJRT OF TANZA1\TIA AT DAR ES SALAA~ HIGH CCURT CRIMIN.AL CASE NO. 27 OF 1986 ORIGINAL CRIJ\"INAL CASE NO. 7'i 3 OF 1983 OF THE 1'1$TRICT CCURT OF I LALA DISTRICT .AT T( IW{ GNI Before G. Katto Esq., Resident Magistrate l., Ju HANSEN LWE< A~A •••••••••••••••••• • ht APPELLANT 2. MUSHOBOZI C. BTI<ATANA ................. iad APPELLANT versus THE UNITED REPUBLIC ••••0•<10••••••••••••• RESPONDENT JUDGMENT bJJim.i;~ }~ · . ·' .Appellant and his oo-ae~used one Mush.oboii Bik.etaAa were _tionvicted of number of ~ounts of Forgery uttering False d.ocumel'J.t · and stealing all preferred under the Penal Cod_e. Each of theft was seatenced to imp,...isonment for terms ranging between six months and five years. This appeal is against both convictions and se11tenees., S~~stantially thic ~~peal is based on one main gr~un.d. It is apparent on the r~cord that the learned trial resident magistrate did not complay with the provisions of sectio~ 196 of the Cr~minal P?otedure Code which is equivalent P~oeedure Art, 1985. to section 214 of the Criminal What happened is that the magistrate who ' stArted the case get transferred before the completion. He teft the ease after recording the evidenee of twelve prosecution wit.nes- \I sess out of the total of thirteen of them. Aeoording to section l,6 the sueeeeding trial magistrate, inter aiia, ought to have iafor•ed the accused of their right to recall the prosecution witAesses who had testified before his prede~essor •. It has been •VOMi t1ed. by Mr. Muccadam on behalf of the appellant that non •o•.Pl~anoe of this provision has occasioned mis•}arriage of justice. IA order to successfully attack a conviction resulting fro~ • ;7ial in which the provision of section 196 was not complied wtth, 11' 11ust be shown that such no.'.l compliance has resulted in failure ti j'Jstiee. And the determination wh~ther or not there had been 1iseArriage of justice is a question of faet. Each case must be 4etided on its particular facts and cireumstanoes. . ... /2 Oae of the relevant factor to be considered is tl\e ~taei1 rt which the trial had reachen i1hen the second ,ugistre'te top,k ~JE!.r the ··aee, Generally, it may be said that failure t~ ob!ef¥~ t~ P»tvisicn is fatal where the substantial pori;io.n. of the l~f~~pution ev!deAce on which the conviction is b~sed has been re~?~ded ~Y t4e p1et•ding magistrate. As noted earlier, in the prese~t 1 case . o~t . •I the thirte~n wi-tnesse~ called by the proseoution, :t;~~tve qf t4f{II ,; ,-. t•v~ t.heir testimonies before the_ first magistrate. Not onl.r -.hat, the demeanour of some of these witnesses was verr -i.mpQrt~nt if determining the quality of their evidence. Hence ppeeenae ~r ten presence of R8ction 196 not·withstandi~g, for the ~;!interest ·_ :' -- of ~istioe, it would have been pr~dent if the Sijooeeding ~qgist~,te 1• this oese had decided to recall the witnesees. As a whole this court is of the view that thel'e f~1' been a fft~~re ot justice consequent to the non 90111pl¥nce ef the ta~datQry proyision of section 196 ot t~e Criminal Fryf~d~re . . Aeeordingly this appeal is allowed, 1,a,eshed and sentences set aside. The .•ase is r~mi tt~4 ~o t.h.,a 1Ji•iri,ct Court, l<isutu for retrial.; M•enwh.U~ appella.n.t to be ieleesed ioithwith unless otherwise lawfully keld. T-e •~io•me ot this appeal applies, mutetis mutandi~ t9 G~i~i~Al .Appeel No. 26 of 1986 filed by Mushobozi T<Bikatanar, H.A. MJP'P,t., Judge ;'' 1,/o)so Apf>ellant: .Abse.l\t l't1 .the \ Foi tke Rep~blic: Kor.oseo I •e~tif~ that this is a tr~e eopy of the origina~. -- '