19940214 TZCA Dar es Salaam1

.IN THE COURT- ,OF APPEAL OF 'l'ANZANIA AT DAR ES SALA.t'lr.i ( CORAY,a OMAR, J .A., MNZAV AS, J .A., And LUBUV A. J. A.) -·-:--,-•--•. ··- -- .s . CRIMINAL APPE".liL NO. 161 OF 1993

BETWEEN LIAMBA SII4ANGA. • • • • • • • • • • • APPELLANT .AND :-. r:: f THE REIUBLIC. • . • • • • • • • •· • • RESPONDENT. .";_,t . .... ~:~· . .• .· --f • ,!\. ~' . .,, ~ •' ,',.. .,; (Appeal from the decision· of the Hi~ ~ ...,... ~ _-court of Tanzania gt Dar es Salaam). ,f (Mapigano, J •) dated the 25th dey- of July, 1993 in H/Court Crimini,1 Appeal ~o. 82 of 1993 JUDGEil'.IENT OF THE COURT MNZAV AS,· J .A. l ··----- . This is an appeal from the decision of the High ·eourt- (Mapigano1 J .), in High Court Criminal Appeal No •. 89/93 in \'lhich the learned judge re;jected the ap~al swmn&:1''13• Arguing against . ' the order of the High Court Dr._ Lamwa.i, learned Counsei for the appellant,' submitted that the oaae was heard_ by two different magistrgtes in the Court.· o.f first instance .but . 'thgi; before . ... the second magistrate continued with the hearing of ·the case the appellant wa:s not informed of his right to resummon the witnesses or any of them so thgt their eyidence mey- -be re-heard before the other magistrgte if he •(appellant) so wished. In support of his argument the learned· defence Counsel referred to the Court the provisions of Section 214 (2) (a) of the Criminal Procedure Aot. _Qur-per.usal of the record...ahows ,that the ~~llant was char¢ed with and convicted of o~tle theft c/ss 265 and 268 o~ the Penal Code before the district Court and sentenced to 5

years iulprisonmente . • ' ' h;i.m. · Thereafter the prosecutor applied for adjoU:rlll!lent to enable him to summon one, Ju.ma, another_ prosecution witnesse·· ~he magistrate adjourned the case for hearing on 17/9/92• Apparently the case did :":li--~ .·... ,; t,',•. not come up for hearing on 17/9/92 - Instead_ it came up for hearing on.15710/f2;and before a. different. m_agistrate o·ne, 'E.He -1,1a.1ekel-a,- senior Dii-trict Magistrate.- Hearing was again a:ljourned on the request of the prosecutor who told the Court -· ''the witness ha.a not turned up"• Hearing was adjourned to 29/10/92. On that· ~e.Y. Mr. Malekela, SDM, heard the evidence of JUma. Athumani, (pW~3)~ .A month or so la.tar, (26/11/92),. a, fourth prosecution witness,, D/sgt • Kassim, gaNe evidence· before Mr. Malekela and -the proseoution closed its oa.se. On the same dey tho appellant gEPJe his evidence in -defence and closed his defence. The record is silent as to why Mr. NnaJ.ly, district Magistrat~,- oould not continue hearing tho oaso to its finalitr,. Nor does the record show that the appellant was. informed , . of his. right . unq.or- . · Section 214 ( 2) ( a) of the Criminal Procedure Act• section 214 ( 1) of the C.P.Ae allows another magistrate to take over and. continue with proceedings started by a. different . -magistrate who for any reason is unable to co!llplete -t_he proceedings. provided that

before doing so the provisions of section 214 (2). (a.) are_oomplied with& ,, ··- The provisions under Section. 214 (2) (a) are loud and clear. ~ They sey& ., ; l~ '· :· ~':::;.:., ~ .... • -,,·~.,1· ,i,• •. . l ·~"➔ .. - 3 - J 214 (2) 11Whenover the provisien_o( ~l>-secti~n · ·J ·( 1) applies - ( a.) in ariy_ trial the a.ocused mev, when tho such other magistrate oonwenoes· his proceedings, demand that th~. witnesses o·r any of them be re- summoned and .re-heard and shall be infonned of such ri$t by the other m¥i§:trate when ho commences his proceedingen • (The ompqasis is supplied). That being the ·language in Section 214 (2) (a.) it was mandatory on the part of the learned second magi~l':'a.to, Mr. Mal.ekela, senior ~--"'!: I~.~ * •· , District Magistrate, to inform the appellant of his right to demand -<~~7t', . ·. \ ;; that the witnesses who testified before the first magietrste be summoned ~ testify before ·him if he (appoll~t) so wished~ :'J!his, .. t, ~. ,•' J~. r ,,..~.,.!'-...,t, Mr. Mal.ekela, Senior District Magit:ttra.te, did not doe . ~ ,~ 1·. ,. _;~~;7 With respect to Dr. L_amwai, learned defence Counsel, we aaree_ -:-~- with his argume?t that had the learned judge· been aware of ~he no:n,.~ompliance (by the second megit:ttrsto) of the mandsto:cy provision.a under Section 214 (2) (11.) of tho C.P.A. he· would not hi:w.e swmnati~ · rejected the appeal• The order of tho High Court is appe:r.-ently not ·-- ..._ ·----· supported by the Republic. In the event the appeal is uphe_ld, the record is remitted to· tho High Court and it is directed thst the appeal be heard on its merit. ,.. ·' ' ............... "t • ~I .. ~~"'.. \. ·"":..,.. 1 . •••••••/4 . ";1. r . ' ~----- ' . ,. • .... -:-;-----. . .• . ...... 4 - A.M.A. OMAR

JUSTICE OF APPEAL U.S. MNZAVAS ·I' JUSTICE OF APPE41£ original. I o ,r ._.· l a• ' .~ ;- . ,· (. ,. i. ,(I .. it. ·' 92 .. •··· .. j , 1 . .I