kilima mbwiliza vs republic 2008 tzhc 29 16 june 2008

KILIMA MBWILIZA v THE REPUBLIC IN THE HIGH COURT OF TANZAANIA AT TABORA APPEDLLATE JURISDICTION (Tabora Registry) CRIMINAL APPEAL NO. 156 OF 2007 ORIGINAL CRIMINAL CASE NO. 72 OF 2007 OF THE DISTRICT COURT OF TABORA DISTRICT AT TABORA BEFORE P. MALIGANA, , Esq; RESIDENT MAGISTRATE KILIMA MB IL IZ A ................APPELLA(Original Accused) VERSUS THE REPUBLIC............................................... RESPONDENT (Original Prosecutor) REASONS FOR JUDGMENT MUJULUZI, J. The Appellant, KILIMA MBWILIZA was convicted and sentenced in absentia on one count of Unlawful possession of firearms c/s 4 (12) and 34 (1) and (2) of the Arms and Ammunition Act No. 2 of 1991, by the District Court of Tabora at Tabora, on 02/05/2006. He was sentenced to pay a fine of Tshs. 2,000,000/= failing which to serve a term of five years in prison. It was alleged that, the appellant has on the 19th day of may 2003 at 16.0 hrs at Kalemera village within Uyui District in Tabora Region, been found in unlawful possession of a pistol local made without a licence or permit. After the prosecution had closed its case, the District Court ruled that the appellant had a case to answer. The appellant opted to defend himself on oath and to call two other witnesses to his defence. He testified on affirmation o n05/07/2004. Thereafter the case was adjourned on several dates to allow the appellant to bring his witnesses until 22/07/2005, when the matter was called for hearing in the absence of the appellant. The court fixed the case for mention on 22/08/2008 .................for a warrant of ................................. appellant. On 20/10/2005 the Public Prosecutor reported that the appellant had been arrested and charged before the District Court at Nzega. 1 KILIMA MBWILIZA v THE REPUBLIC On 17/11/2005, before another Magistrate (not being the trial magistrate), the Public Prosecutor prayed as follows: ‘PP. The accused had jum ped bail but he had been caught on another crime in Nzega. I pray fo r another date o f mention while we wait fo r him to be brought However, before yet another magistrate not being the trial magistrate, the appellant not being brought before the court, the Public Prosecutor made the following prayer: „’PP : We pray the court to give judgment under section 227 o f CPA, 1985 as the accused had jum ped bail and we don’t have hope o f arresting him.” COURT: Pray given.” But on 30/12/21005, before yet another magistrate (not the trial magistrate), the same Public Prosecutor; prayed as follows; PP: For mention the accused has another case at Nzega. I pray for mention date: ORDER: Mention on 30.12/2005.’’ On 30/12/2005 the court (S. Kainda - RM) ordered the matter to come for; 1. Mention 27/2/2006 2. Judgment 27/3/2006.’’ On 27/02/2006 the matter was called before yet another magistrate in the absence of the appellant when the Public Prosecutor made the following statement: PROS: Cases fo r fin d (sic) The accused is still at large we had already applied judgment to be delivery (sic) in the absence o f the accused person. We pray fo r another date o f fin d as the trial magistrate he (sic) is not present.” Whereupon the court ordered; ‘ORDER: Case gas been fixed for judgment on 30/03/2006.’ On 30/03/2006, instead of the court delivering judgment as scheduled, the Public Prosecutor once again prayed as follows: ‘PROS: I pray the court to proceed under The court then ordered that judgment wou7ld be delivered on 092/5/2006. ______ On 02/05/2006, the court - (Kainda, RM not being the magistrate who 2 KILIMA MBWILIZA v THE REPUBLIC tried the matter) delivered judgment stating inter alia that (page 1 typed judgment); „at the trial, the prosecution brought three witnesses. It may appeal (sic)( that after the close o f prosecution case, the accused gave his testimony on defence and prayed fo r adjournment so that his witness should (sic) be called. The accused was under (sic) bail and so was absent in court fo r a longtime. The prosecution prayed fo r the case to continue under S.227 o f CPA - Act No. 9 o f 1985. The court was satisfied that the accused’s attendances could not be secured without undue delay. It proceeded to dispose the case in accordance with the provision o f S. 231q CPA, Act No. 9 o f 1985, i.e. as if the accused has failed to adduce any further evidence. ’ Before proceeding further, I need to comment on two things., Magistrate, but secondly that the last presumption as to accused’s failure to adduce any further evidence was not founded on any facts on the record. For, we have noted that at all material times the appellant was under arrest facing charges at Nzega. It is incredulous to assume so while he was in police custody. With respect, had the learned Resident Magistrate cared to examine the record, he would not have condoned the blatant contradictions in the prayers and statements made by the Public Prosecutor before the court on the issue of the whereabouts of the accused. Be as it may, on 13/6/2007 the accused was brought yet before another magistrate when the Public Prosecutor stated. ‘PROS; The accused jumped bail. The case proceeded in his absence and he was convicted pending his arrest. I pray for the court to ‘prossence’ (sic) judgment and orders as read (sic) on 2/5/2007’’. Whereupon the accused is recorded to have said; ‘Accused: I am not Kilima Mbwiliza my name is Kilima Mohamed Mtawigara. I am charged for Rape Criminal Case No. 77/2007 and I am in custody until 17/2/2007. From the above although I have had difficulties in comprehending the words and sentence construction adopted by the learned resident magistrate in this instance. I understand the appellant to have said: „It can not be true that I jumped bail as alleged by the prosecution. At all material times I was under police custody up to 17/06/2007. The name Kilima Mbwiliza is not correct. My proper name is Kilima Mohamed Mtawigara. I am charged with Rape in Criminal Case No. 77/2007.’’ But in what seems to be a clear miscomprehension of the accused’s argument to the court the court made the following order 3 KILIMA MBWILIZA v THE REPUBLIC ‘ORDER: 1. the prosecution to prove the difference of names and the accused. 2. Reading judgment on 18/6/2007.’’ (Whatever was meant by that!) On 15/05/2007 the Court embark3ed on what it termed “Trial within trial” ostensibly to give opportunity to the prosecution in their own words:. To prove the name of the accused.” Not his identify! In that ‘trial within a trial’ the arresting officer in relation to Criminal Case No. 72/2003 testified and produced documentary evidence that the appellant was the person arrested, charged and tried before the trial court. The Court also called its own witness a court clerk one Mr. Mbozva who testified that the appellant was the person answering to the name of Kilima Ngwiliza at the .. .Hon Rwizile, RM- the magistrate who tried the case through to the defence. The court ruled that; ‘The denial of the named (sic) by the accused had no weight provided those people who prosecuted the case did certify that KILIMA MBWILIZA is a person who was charged in this case. I am certified (sic) by the testimony of the prosecution. The accused KILIMA MBWILIZA is a real persons (sic) in this case.’’ That done the court without dealing with the explanation of the appellant that he did not jump bail but was under custody at all material times, proceeded to order as follows: ‘ORDER The Accused KILIMA MBWILIZA be sentenced to serve punishment as delivered in Criminal Case No. 72/2003.’’ The appeal was against conviction, sentence and orders’ |The appellant who appeared in person to argue his appeal had filed a total of four (4) grounds. However, this appeal was determined o n ....................................................... “ That the learned Resident Magistrate erred on point o f law by upholding the prosecution case while knowing that he was not the one who conducted the trial o f my case, hence section 226 (2) o f the Criminal Procedure Act No. 9 o f 1985 was not complied with.” The Respondent Republic ably re[presented by Mr. Mokiwa, learned State Attorney did not support the conviction and sentence. Their stance was based on one of the other grounds of appeal by the Appellant, that he was wrongly convicted, because the evidence adduced was against Kilima Mbwiliza which was not his name. It was argued therefore by the learned State Attorney that in view of those 4 KILIMA MBWILIZA v THE REPUBLIC discrepancies the prosecution was required to amend the charge sheet and the trial court ought to have called an independent witnesses to prove the accused’s identity. According to the learned |State Attorney the confusion was not cleared at an early stage and could not be resolved subsequent to his arrest consequent to his conviction in his absence. That defect he urged the court, could not be resolved this late in the appeal. In the resultant confusion, therefore, he could not support the conviction. Consequential orders and reserved reasons for later. These are the reasons. As I have already outlined in the recount of the trial and proceedings, this case was beset with several procedural defects leaving to an unfair trial. First of all, the records how that the accused in Criminal Case No. 72/2003, consistently appeared before the trial court presided over by Hon. Rwizile RM, from 10/7/2003, until 23/06/2005, when after testifying he prayed from adjournment to enable his witness to appear, when the trial was adjourned to 23/06/2005. He did not appear on that day prompting the court to issue a warrant of his arrest. The case was adjourned on several occasions until 20./10/2005 when the trial court was informed that the accused had been arrested and charged at Nzega. That was the last time, Hon. Rwizile RNM - who had conducted the trial through out appears on the record. The subsequent prayers and orders already narrated above, were before other magistrates including the judgment and ruling after the appellant was brought before the Court - Hon Maligana, , RM who sent him to goal. Three procedural issues a from the above scenario; 1) Did the accused jump bail so as to warrant the court to proceed to deliver judgment pursuant to section 227 and ............ of the Criminal Procedure Act (Cap 20 R.E. 2002)? 2) In case that procedure was correct, what had happened to the trial Magistrate so as to warrant another magistrate who did not hear any evidence to prepare and deliver judgment. 3) After being sentenced in absentia, was the trial court justified in failing to acknowledge his defence that: indeed he had not jumped bail, but had had at all material times been arrested and charged before another court on charges of rape? Starting with the first issue framed above: Section 227 - CPA - (Cap 20 R.E. 2002) provides; “Where in any case to which section 226 does not apply, an accused being ______ tried by a subordinate court fails to appear on the date fixed for the 5 KILIMA MBWILIZA v THE REPUBLIC passing of sentence, the court may, if it is satisfied that the accused’s attendance cannot be secured without undue delay or expense, proceed to dispose of the case in accordance with the provisions of section 231 as if the accused, being present, had failed to make any statement or adduced any evidence, or, as the case may be, make any further evidence in relation to any sentence which the court may pass..” Now with much respect to the learned Resident Magistrate ........... within the prayer for judgment was made by t h e ............ Prosecutor, it is clear to me that he granted the prayer and proceeded to deliver the judgment without even caring to read the section cited to him. I say so because, that section unless I am quoting from the wrong statute book, does not carry or have any ambiguity. That section applies first to cases to which section 226 does not apply and; Secondly it applies in cases where, l after judgment has been delivered and upon conviction, gthe case is adjourned for sentencing. Section 227 must therefore, by necessary implication be read together with section 226 which provides: “226 - (1) If at the time or place to which h the hearing or further hearing is adjourned, the accused person does not appear before the court in which the order of adjournment was made, it shall be lawful for the court to proceed with the hearing or further hearing as if the accused were present; and if the complainant does not appear, the court may dismiss the charge and acquit the accused with or without costs as the court thinks fit. 2) If the court convict s the accused person in his absence, it may set aside the conviction, upon being satisfied that his absence was from causes over which he had no ..... and that he had a probable defence on the merit. 3) Any sentence passed under subsection (1) shall be deemed to commence from the date of apprehension and the person effecting such apprehension shall endorse the date thereof on the back of the warrant of commitment. 4) The Court, in is discretion, may refrain from convicting the accused in his absence, and in every such case the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the courts.! In my considered opinion this section as well, is clear of any ambiguities. On the facts of this case therefore, section 226 would have been the appropriate section to be followed by the court. 6 KILIMA MBWILIZA v THE REPUBLIC The accused had already testified and the case was adjourned for further hearing, when, as it turned out he was arrested and charged with commission of another offence, to the knowledge of the Public Prosecutor. Evidently, he could not have been able to appear without being brought to court and he would not have been able to liaise with his witness or witnesses. The second question is by way of clarification of the appropriate procedure, consequent to transfer of or otherwise upon the trial magistrate failing to complete the trial through to judgment. The appropriate provision is section 214 of the CPA (Cap 20 R.E. 2002). It provides: 214-(1) Where any magistrate, after having heard and recorded the whole or any part o f the evidence in any trial or conducted in whole or part any committal proceedings, is fo r any reasons unable to complete the trial or the committal proceedings or he is unable to complete the trial or committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial or committal proceedings, as the case may be, and the magistrate so taking over may act on the evidence or proceeding recorded by his predecessors and may, in the case o f a trial and if he considers it necessary, resummons the witnesses and recommence the trial or the committal proceedings. 2) Wherever the provisions o f subsection (1 apply the High Court may, whether there by an appeal or not, set a\side any conviction passed on evidence not, set aside any conviction passed on evidence not wholly recorded by the magistrate before the conviction was had, if it is o f the opinion that the accused has been materially prejudice thereby and may order a new trial. 3) Nothing in subsection (1) shall be construed as preventing a magistrate who has recorded the whole o f the evidence in any trial and who, before passing the judgment is unable to complete the trial, from writing the judgment and forwarding the record o f the judgment to be read over, and in the case o f conviction, fo r the sentence to be passed by that other magistrate. In view o f those clear provisions, in case the court had decided to proceed under section 226, then the most appropriate Magistrate to write the judgment would have been, the magistrate who heard and recorded the testimony. It is this magistrate who was better armed to assess and determine the credibility and demeanor of the witnesses. With respect the learned resident magistrate who proceeded to write the judgment did not have any basis on which to assess the evidence on record. 7 KILIMA MBWILIZA v THE REPUBLIC The words “may take over” should not be taken literally. It is a judicious take over, where the trial magistrate is not in position to complete the trial, lets say in case of illness. Transfer and or promotion, in my judgment would not qualify to be among reasons justifying a magistrate who did not hear any aspect of the case to write a judgment based only on the record of another magistrate. If we permit this, then we will be reducing Criminal justice to no justice at all. Yet in my considered opinion, man’s liberty and freedom, guaranteed by our constitution, which presumes every person to be innocent until proved gui9lty, is so fundamental a right, which can only be taken away upon due process. Due process entails a fair prosecution, fair trial, and fair judgment and sentence. To this end, the Criminal Procedure Act (Cap 20 R.E. 2002) in my opinion remains one of the most well drafted and easy to follow codes of procedure in our jurisprudence. The Court and the Court of Appeal of Tanzania, have in many decisions, defined, clarified and left broad signs to enable even the inexperienced to follow the otherwise well beaten path in our Criminal justice jurisprudence. I can not therefore be a lone voice in lamenting why, many a magistrate in the subordinate Courts have chosen to meander off the clear path, leading to unwarranted injustice, and derogation of the otherwise good name of the judiciary. All that is required, both for the public prosecutor and the trial magistrate is to have a copy of the CPA before them in the course of conducting trial, and referring to (reading) the provision in question. This is not only necessary but essential for the powers of the trial court in Criminal proceedings are not fixed. They keep on shifting, like a driver changing gears in the course of driving. He must follow the needs, and must watch out for the road signs on the way, lest he crashes the engine or occasions an accident. We should not treat our people once they are subjected to the long arm of the law, to the status of third class citizens: for, each and every person in our society including the highest in rank, is a potential suspect and a guest in the hallowed corridors of justice. It behooves upon us, as the custodians of the halls of justice, to ensure that decency, and human dignity are granted the necessary respect and protection. Finally, and to resolve the last issue-section 226 (2) answers the third and last issue framed. In case of an accused convicted in absentia, the court may set aside the conviction, upon being satisfied that it was from causes over which h he had no control. In this case the appellant was at all material times, and to the recorded 8 KILIMA MBWILIZA v THE REPUBLIC knowledge of the public prosecutor and the court, under police custody,. He could not therefore be said to have been free and able to appear before the Court to complete his trial. The last adjournment before he was arrested was to enable him to bring his witness. His trial was therefore interrupted by circumstances beyond his control OLONYO EMUNA & LEKISTO LEMUNA V.R. (1994) TLR (CAT) 61. In spite of his loudly saying so, the magistrate not being the one who had handed down the conviction did not address himself at all to this issue. In my opinion and with respect, the Court was turned into a tyrannical Kangaroo Court! In the circumstances therefore, the appellant was denied a fair trial. The right to be heard, includes the right to the accused to call all witnesses to his defence much as he had listed them at the earliest stage. The appropriate course would have been to set aside the conviction and to order for a retrial. However, for the appellant who was already facing other charges, and who had already served time in jail, that would not have been appropriate. For those reasons I allow the appeal, set aside the conviction and the sentence, discharging the appellant of the charges. A.K. MUJULIZI JUDGE 12/06/2008 Date: 16/6/2008 Coram: Hon. S.B. Bongole, DR, Appellant absent Respondent: Represented by Mr. Kimweri the State Attorney for the Republic. Cc: Mzige, R.MA Court: Judgment delivered. S. B. BONGOLE DISTRICT REGISTRAR 16/06/2008 9