19881017 TZHC Songea

\_{f✓/ \.~ IN ?I:GTI :.~IGE COURT OF TANZANIA 1

AT SONGEA

APPSLLATE JURISDICTION CRIMINn APPEAL NO. 49 OF 1988 Original Criminal Case_ No. 168 of 1987 of the District Court of Songea District at Songea Beforeg L.M.Ko Uzia, Esq., NeGident Magistrate JUMA. MIJSSA eoooooeo••••oo•o•al)ooooooe APP:!TILLANT Versus JUDG1'~ENT Kazimoto, Jo The appellant has been convicted of theft by agent c/s 273(b) of the Penal Code and sentenced to five years imprisonment under the Minimum Sentences Act 1972. Being aggrieved he is appealing against both conviction and sentence imposed against him. Learned State attorney had.;.bmitted that the trial is a nullity. He argued tl-::.at the judgment was not dated nor was it signed. He contended that the effect of not dating and signing the judgment is to render it null and void .and he relied on the case of MUGENA 4nd ANOTI:l.EB v R (1967) EA 676. He prayed for an order to quash the proceedings and for a fresh trial. Section 312(1) CPA provides1 ' Every judgment under the provisions of section 31~ shall, axcept as otherwise expressly provided by this Act, be written by, o~ reduced to writting under the personal directions and. superi tenda.nce of the presiding judge or magistrate in the language of court, and shall contain the, point or points for determina,tion, the decision thereon and the reasons for the decision, and shall be dated and signed by such presiding officer as of the date on which it is pronounced

in open court. (underlying supplied) A perusal of the judgment shows clearly that it was not signed nor was it dated.. The magistrate cught· to have signed and dated the judgment after he had convicted the appellant. Tb.is was not done and this aTJ1ounted to non-compliance with section J12 ( l) CPA. The is.sue •••• /2 ' --~ i;i, 2 .... ;:, is wl1ether :failure to sign and date a judgment is a nullity or a mere irregularity,, First we he,ve to look at the provisions o:? section 388 of the Criminal ProcEJclu.re Act. That section provides as follows i 388(1) Sj.1:Jject -'co the provisio~s hareinbefore contained no finding 9 sen-cence 9 or order made or passed by a court·of competent juriscliction shall be reversed or altered on appeai or revision on account of any error 9 omrnission, or irregularity in the complaint 9 s1.u,1::1ons 9 warrant, cl1arge 9 ·procla.-nation, order, juclgment or in any inquiry or other proceedings under this Act, save thsi,t where on appeal or revision, tl;.e court is satisfied the,t such e;ror, ornmission, or irregularity has in fact occassioned failure or justice, the court may order a retrial or make such other order as it may consider just and equitable. , . - Mugema and another V R (1967) EA 676 W'~~0.r.t learned state attorney referred to is a decision of this court. In that case the accused were charged with assaulting a police officer,in the due

execution of his dutyo After concluding hearing of the evidence, the case was adjourned for judgment on 12th September 1966,, On the,file of the court proceedings there was an undated and unsigned judgment which found the accused guilty and commitment warrants elated 14th September, 1966 porporting to show that the accused were sentence to twelve months imprisonment and to pay shs.50/- compensationo Platt, J held at page 6781 "Th.ese ormnissions constitute gross irregularity and I am not ,prepared to cure th~m illlder s. 346 of the Criminal Procedure Code. ,, o o o'• o. o a. o.,,, • o o o o o • o In my view /'::,.e whole trial is a nullity." I respectively disagree with decision in Mugema's case that the mere ommission to sign and date a judgment constitute gross irregularity which cannot be cured by the application of section 3Li.6 CPC and now section 387 CPAo I do not see how a judgment delivered in the presence of the accused~ though undated and unsigned .can o.ccassion in fact a failure of justice tc an accused persona It is an irregularity which does not go to the root of the content of_a judgment and can never occassion a failure of justice. ~u•/3 11 \ •)e::· ·{;'::·~ 3 This was J.:;he view of the Court of A.ppeal for East Africa in the case of Kagoye s/o Bundala v R (1959) EA 900., This was a murder' case., In that case the judgment which was short ran as followsg 11 The

accused is charged ,•Ji th the murder o:f Ifaganga his son~ on April 8, 1959 c/s 196 of the Penal Cose., I have swnmarised ·Uie evidence in my c:1arge to the assessors a..rid t'.1e:re is no need to repeat it. They are both of the opinion that he is guilty and I fully agreeo He is accordingly convicteda 11 The ·~urt of Appeal found t.a½at the provisions of section 171(1) of the CPC, which are similar to section 312(1) CPA were not complied with and had to decide whether the conviction was· invalidated or.whether it could hear and ~termine the apueal on its meritso x Referring to the decision I of. Willy John v R (1953) 2 23 El.Ct.. 509 it said: "Failure to date and sign the judgment-is a me:;:-e irregularity which can be cured by the application of section 304 of the Criminal Procedure Code since the 1·rhole o:Z the record of tl10 proceedings is in the hand of the trial judge.and there was no prejudice to the appellant. But the failure to comply with the other requirements of tha section is fatal to the convictiona In Desiderio l{avJU16ya v Regina 20 EACJ~ 201 , this court held thr:t t failure to comply_, with I the_provisions of So 169(1) of the Uganda Crimihal Procedure Code which is similar in terms to Se 149(1) of the Seychelles Criminal FroceduJ'.'.e Code will not necessarily invalidate a conviction if there is sufficient material on the record to enable the Appeal Court to

cona~der the appeal on merito In this case there is clearly insufficient on record to enable us to consider the appeal on the merit." The same view was taken in the case of Ilanda s/o Kasongo v R (1960 E:.1.- 7800 Retrial was ordered ;i.n each of these eases not because the judgments were not dated and signed but becausf:! the judgments did not contain the point or points for determination, "tihe decision and the reasons for decisione There was therefore no sufficient material before the court of appeal to. decide t}1e cases on merit. 4 In the present case t:.1e learned resident magistrate had SUJTu'!larised the evidence for both the prosecution and the defence and decided to convict the appellant as charged and had fully given his reasons as to .1-rhy he believed tl,.e prosecution evidence and rejected the appellant I s defen~'eo There is in this case sufficient material to enable this court to decide the appeal on r:1eri t.• I would there:fore hold that failure to stgn P..nd date a judgment is a curable irregularHy under So 388 C.F.A. ~ anrl I l1ave decicled to cure the s·aid irregub,rity by the invocation of section 388 C.P.ko which I doe In his memorandum of appeal the appellant had stated that the learned trial resident magistrate has erred in accepting the evidence of PW2 who had ~ttd.gi.ls:~sttlh~. According to him PW2 had suspected him of having se:1."Ual rela,tionship

with PW2 's nife and had co!Li.2i:r-onted each other several times. With respect th:1.s allegation is not born ···out by the evidence on recordo PW2 was cross-examined by the appellant and because the cross-examination was brief I propose to quote it: "xxd by the accused: Because he lmows you he believed you 0 You did not mention the particular person you intend to go when you told us as you said that ·from 10000 o'clock to-6e00 o'clock you could be back." How could t!1e learned magistrate believed that PW2 suspected the appellant of having sexual intercourse 1-ti th his (PW' s) wife and had confronted '?ach other several times. The appellant should have asked PW2 specific questions on the alleged grudges a..nd only then can the court decided to believe or rejected the evidei1ce of any particular f); witnesso Ground of appeal has no ring of truth around it and it is rejected. :~ti-round two and four of appeal the appellant has argued that he was denied the opportunity to call his defence witnesses. This is not true~ At the close of the prosecution case the appellant, after being informed of his right, elected to give unsworn statement and said he wished to call one witness from Kagera. .tu'ter giving his statement from the d~ then in his own words he said "The case can be closed. I have no need to call t!1e witness." Tlie·re is therefore no merit at all in the allegation, which

is rejected, that he was denied opportunity to call his defence witnesses. 5 The appellant then argued in ground 3 of appeal that on the material day he was 50 Km a,ray from tlle. vil12,ge and thus he could not have been given the bicycle by the complainanto This is a defence of alibi... T1,e leB,rnecl trial r.r-1gistrate effectively dealt with this issue a;.1d sta·ted. tha.t the c1,ppel12,nt and PWl and PW2 are familiar to one ai1other 9 they live L.1 the ss,,c:e village E¼1C. there could be no mistake., It appears to me that t:rn trie,l r:ie,gistr2,te gove no weight to the defc~ce of alibi. The appellant did not give notice of his intention to rely on an alibi eithor to the prosecution or to the court before the 1 hearing of his case during the trial nor'. did h.e give any po,rticula.rs of his alibi before the ~se for the prosecution was closed., He decided to raise lhis' defence after the close of the prosecution case. This is a contravention of section 194(4) (b) of the,' C.P oA• The learned trial resident magistrate had correctly accorded no weight to that defenceo That ground also fails. With that I find no merit in the appeal against conviction which is dismissedo The appeal was sentenced to five years imprison.111ent under the Minimum Sentences Act ,1,972,, In sentencing the appellant under that Act for the o:'.Ofence of theft by agent c/s 273(b) the learned trial

magistrate has clearly errede That is not a scheduled offence and in any case the _property does does not belong to· a specified authority within the meaning of that Acte The appellant should have been sentenced under the provision of the Penal Code. I have considered whetl1er the sentence of five years imprisonment is not excessive. T'ne maximum penalty for the offence charged is ten years. The prosecution said th2,t they had no previous record against the appella,nt who in turn stated that he is a I convict. It is not knol'l!l for what offence.the appellant had been convi9toda He has hovtever stated in his defence tha.t he is· serving a sentence of Jchree years imprisonment. This case shows how l:~ and lax the prosecution had been for they could easily how known that the appellant has a record of prEr"\J'iollil conviction and· would have stated the offence for which he was serving the three years sentence. That would have helped the court to mete_out the'.appropriate sentence 0 On my part bearing in mind that the appellru1t has previous conviction and his ree,diness to concede I would set aside the sentence of five years imposed under the Minimum Sentences Act 1972 and sentence the appellant to three (3) years imp:risonment fOr the offence charged. it:t'ii(~~ftJf{~A~t'.ij _· '-'?;>~~·::r-; 6 .. -- J!$i~ifJ~,In the result, and to the extent ,of the variation of sentence 9 the appeal against sentence is also dismissedo Judge 17 010088' Coram: Ka·zimoto, J • For Republic: Kaduri Esq. 9 State attorneyo, Appeallant: Absent. Judgment delivered. ~ - Kazimo~ ' ~ · _<f __ ~ Judge 17.10.88