mohamed daud chipaga vs republic 2018 tzca 598 14 may 2018

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM ( CORAM: MUSSA, J.A., MWARIJA, J.A., And MWANGESI, 3.A.) CRIMINAL APPEAL NO. 502 OF 2015 MOHAMED DAUDI CHIPAGA............................................. APPELLANT

VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar Es Salaam) (Ruhanqisa, J.) Dated the 9th October, 2015 in Criminal Appeal No. 24 of 2014

JUDGMENT OF THE COURT 7th Feb & 14thMay, 2018 MUSSA, J.A.: In the Resident Magistrate Court of Dar es Salaam, at Kinondoni, the appellant and another, namely, Ally Selemani Ally, were charged and convicted of armed robbery contrary to section 287 of the Penal Code, Cap 16 of the Revised Laws. Upon conviction, they were sentenced to a term of thirty years imprisonment. On the first appeal, the High Court (Ruhangisa, J.) allowed the appeal by the appellant's co-convict, whereas the appellant's appeal was dismissed in its entirety. Dissatisfied the appellant presently seeks to overturn the conviction and sentence upon a memorandum of appeal which is comprised of four points of grievance. For a reason that will shortly become apparent, we need not reflect on the points raised. In a nutshell, from a total of three witnesses, as well as exhibits comprised in two cellular phones and the appellant's cautioned statement, the case for the prosecution was to the effect that on the 21st March 2010, at Msasani area, within Kinondoni District, the appellant and his co-accused person stole four mobile phones, a watch and a sum of shs 57,000/= in cash, all of which were the properties of Lucas Sanga (PW2). Evidence was further to the effect that immediately before the stealing, the appellant and his colleague physically assailed PW2 by a bush knife in order to obtain and retain the stolen

properties. Another witness, namely, No. F. 8934 Detective Corporal Isdory PW1) told the trial court how he recovered two of the stolen phones from a third person, namely, Fredy Mdolwa as well as the appellant's co-accused person. The two mobile phones, a Blackberry and a Nokia, were collectively adduced into evidence by PW1 and marked exhibit PI. The third witness, namely, No. E 3784 Detective Corporal, Itincel adduced into evidence the appellant's cautioned statement through which the latter, allegedly, confessed involvement in the robbery incidents. In reply to the foregoing prosecutions condemnation, the appellant completely denied involvement by pleading that the entire accusation was sheer fabrication. When the appeal was placed before us for hearing, the appellant was fending for himself unrepresented, whereas the respondent/ Republic had the services of Ms. Mwasiti Athumani learned Senior State Attorney who was assisted by Ms. Veronica Mtafya, learned State Attorney. As we have already intimated, upon the foregoing backdrop, the appellant locks horns with the verdicts of the two courts below. It is noteworthy, however, that the trial court's proceedings were presided over by two Magistrates in succession. More particularly, the trial proceedings were commenced on the 16th July, 2010 before Msanga, Resident Magistrate who, a good deal later, on the 25th October 2010,

recorded the testimony of PW1. Then, for an undisclosed cause, on the 13th January 2011, another magistrate, (Nyamlani, RM) took over and continued the trial to its finish. The unpleasant feature of the succession is in the fact that no reasons were assigned for the sudden change of the presiding officers. We are alive to the provisions of section 214(1) of the CPA which stipulates:- "Where any magistrate, after having heard and recorded the whole or part o f the evidence in any trial or conducted in whole or part any committal proceedings is for any reasonr 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 proceedings recorded by his predecessor and may, in the case o f a trial and if he considers it necessary, resummon the witnesses and recommence the trial or the committal proceedings" (Emphasis is ours). Thus, to the extent that no reasons were assigned for the succession of the two magistrates, the entire trial was vitiated. As a consequence, we unhesitatingly invoke our revisional jurisdiction under section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws and, accordingly, nullify the entire proceedings of both courts

below. There should be a new trial before another Magistrate of competent jurisdiction. Just in case the new trial ends with a conviction, at the sentencing, the convicting magistrate should take into account the period which the appellant spent in custody. In the meantime, the appellant should remain in custody while he awaits the new trial. DATED at DAR ES SALAAM this 9th day of May, 2018. K. M. MUSSA

JUSTICE OF APPEAL A.G. MWARIJA

JUSTICE OF APPEAL S. S. MWANGESI

JUSTICE OF APPEAL I certify that this is a true copy of the original. 5