20081113 TZCA Dar es Salaam

1 \ I IN THE·COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: .NSEKELA, J.A., MSOFFE, J.A. And MJASIRI, J.A.). MZA CRIMINAL REVISION NO. 1 OF 2007 I ' I 1. MWITA CHACHA 2. JULIUS FIDELIS KITOKA \ 3. ENOS SINGIRYA I ........................ APPLICANTS 1 4. MAKWIZI MSUKO I 5. ELIAS MARWA@ MANGI I I VERSUS · THE REPUBLIC ...................... .: ........................ RESPONDENT I I I (Application for Revision from the decision of the High Court of Tan~ania at Mwanza) ' (Mackanja, J.) I th dated the 18 day of September, 2006 . ' 1n, HC Criminal Sessions Case No. 66 of 1998 I -------------- RULING OF THE ; COURT 22 September & 20 November 2008 I NSEKELA, J.A.: . I \ In the High Court of Tanzani~ sitting at Mwanza in Criminal I I I '"' Sessions Case No. 66 of 1998, the accused persons (1) Mwita I I Chacha; (2) Julius Fidelis Kitoka; (3) Enos Singirya; (4) Makwizi Msuko; and (5) Elias Marwa @ Mangi were jointly and together I \ charged with the offence of murder: contrary to section 196 of the • I • 2 Penal Code. It was alleged that they murdered one Azim s/o Ratans. The trial -of the accused persons wab before Mackanja, J. ' i' ' Three· prosecution witnesses 1testified during the trial, namely '• \ ' PWl Sherina Ratansi; PW2 Mohameld Salum; PW3 B6642 D/Staff Sgt. Joel. Jhe prosecution closed its base on the 8.9.2006. On the I . . I 13.9.2006 the learned advocates for the accused persons, namely - l - Mr. Byabusha for the 1 accused person; Mr. Banturaki, for the 2nd st rd accused person; Mr. Nasimire, fol the. 3 accused person; Mr. Malango for the 4th and 5th accused persons submitted that there was . I . no case to answer in respect of eaGh of the accused persons. The learned judge ordered that he wLld deliver his ruling on the . I 18.9.2006. On the 14.9.2006 learned State Attorneys conducting the prosecution and defence advocates appeared before Mackanja, J. Apparently the court realized that When learned advocates for the. accused persons had made their Jubmissions, the Republic was "inadvertently not heard on the! matter". The learned State II Attorney, Mr. Kakolaki declined to make any submissions. · The court then made the following order. 3 } I I ·"Th~,,, Republic having declined to make any submission on the matter the decision of the cour._t may oi may not determine the case. In that circumstances I shall sum up the evidence to the lady gentlemen Assessors before I make the decision. Therefore/ instead of delivering a ruling on 18.9.200~ I will sum up to the assessors on that day. The case stands adjourned to 18.9.2006/F Then on the 18.9.2006, the fearned judge, instead of complying with his immediate previous order, dropped this bombshell in the presence of the learned State Attorney and the learned advocates for the accused persons,. This is what he stated - 1 • 'For personal reasons I hereby disqualify myself from the conduct of the trial of this case. - It shall be assigned to another Judge who will try it de novo in the next High Court Session. According!½ the trial stands adjourned All exhibits which have been tendered in the course of these proceedings/ before me be expunged and be returned to whoever tendered them in C court." It is against this factual background that the matter came for trial before Mchome, J. on the 2.2.2007. After hearing Mr. Byabusha, learned Senior State Attorney, apparently on behalf of the learned advocates as well for accused persons, questioning the propriety of Mackanja's J. order made on the 18.9.2006, Mchome, J. referred this matter to this Court "for guidance and direction" as he put it. Mr. Kalolo-Bundala, learned advocate with great clarity submitted that this Court could not exercise its revisional powers since the decision of Mackanja, J. dated the 18.9.2006 did not finally determine the criminal charge against the accused persons. The learned advocate took us through sections 4, 5 and 6 of the Appellate Jurisdiction Act, Cap. 141 RE 2002 as amended by Act No. 25 of 2002. Essentially, he submitted that according to the scheme of the aforementioned sections section 4 deals with general powers of the ., 5 Court; section 5 deals -with appeals in civil cases ·and section 6 deals w·ith appeals in criminal cases. Consequently, Mr. Kalolo argued, the '~t· amendment in section 5 (2)(d) of the Act has no application to criminal appeals; its inclusion in section 5 was a misnomer. 'o In case the Court was minded to find that it had jurisdiction to G exercise its revisional powers, Mr. Kalolo attacked the lower courts Ruling on a number of fronts. First, he submitted that it was improper for the learned judge to disqualify himself from hearing the case without assigning any reasons therefor. The authority for this proposition of the law were the following decisions of this Court. (1) Hamisi Rajabu Dibagula v The Republic, Criminal Appeal No. 53 of 2001 (unreported) (2) Registered Trustees of Social Action Trust Fund and Coi'man Mark Ngalo & Michael J.T. Ngalo (Receiver Manager) v Messrs Happy Sausages Limited and 11 Others (CAT) Civil Appeal No. 70 of 2002 (unreported). It was erroneous for the learned judge for not disclosing reasons for disqualifying himself from hearing the case. The second and third grounds of complaint was to the effect that, the learned judge having disqualified himself, it was not right 6 for him to make further orders such as to expunge the previous record of th~ proceeding and to order a trial of the case afresh. The learned advocate submitted that these orders went against the provisions of the Criminal Procedure Act, Cap 20 RE 2002 (CPA). 0 Under the circumstances, the learned advocate submitted that the case should proceed as from the 14.9.2006. Mr. Kakolaki, learned State Attorney, submitted that under section 4 (3) of the Appellate Jurisdiction Act, Cap 141 RE 2002 (the Act) the Court can suo motu invoke its revisional powers. He added that section 5 (2) ( d) of the Appellate Jurisdiction Act as amended applies to civil and not criminal matters. As regards, the non- •·; disclosure of reasons for disqualification, the learned State Attorney, agreed with Mr. Kal-olo that the learned judge was duty.:.bound to be transparent and disclose his reasons for so doing. It was not enough to simply say, "for personal reasons". The learned State Attorney also questioned the propriety of expunging part of the proceedings from the record. This was equally erroneous. In view of these procedural irregularities, the learned State Attorney submitted that the entire proceedings be declared a nullity and the trial should start afresh. He submitted that an order for a retrial is the proper order to be made since the accused persons did not have a satisfactory trial, if any at all:t Before going on to the crux of the matter 'herein, Mr. Kalolo- Bundala drew the attention of the Court to section 5 (2) (d) of the Appellate Jurisdiction Act as amended by Act No. 25 of 2002. It provides as follows - "(d) no appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the criminal charge or suit. // The learned advocate submitted that section 5 of the Act deals with civil appeals whereas section 6 deals with criminal appeals. According to the learned advocate, section 5 (2) ( d) would only apply to appeals or applications in civil matters only. There is no · corresponding provision in section 6 of the Act and so he implored us to read into section 6 a similar provision like section 5 (2) (d). Having done that, he submitted that the Court was not competent to 8 exercise its revisional powers since the criminal charge was still pending in th~ High Court. Admittedly, the submission is very attractive indeed, but we are, with respect, not persuaded with it. Section 4 (3) of the Act reads as under - YJJ Without prejudice to subsection (2J the Court shall have the power, authority and jurisdiction to call for and examine the record of any proceedings before the High Court for the purpose of satisfying ·itself as to the correctness, legality or propriety of any finding, order or any other decision made thereon and as to the regularity of any proceedings of the High Court. 11 (Emphasis added) Subsection 3 of ··section 4 of the Act applies to "any proceedings b.efore the High Court." There is no distinction / between preliminary or interlocutory and finally determined matters. There is also no distinction between civil and criminal proceedings. We are therefore of the settled view that the Court can exercise its ' · · • revisional powers· in the proceedings before the High Court. (See: Crimtnal Appeal No. 61 of 1999, Augustino Lyatonga Mrema v The Republic (unreported). r .,_ H _ _ _ _ _ _ _ _ _ _ __.____ ...-J~~-~v_ _ _ _ _ _ _ _ _ __ 9 The Coli'rt's powers to proceed suo motu and revise any finding, order or any decision madJ in proceedings before the High Court derive fr~m section 4 (3) of Jhe Act quoted above. The sub- section can be invoked where the! record discloses incorrectness, illegali; or impropriety in any findinb. order, or other decision of the High Court or irregularity in the Jroceedings of the court. The subsection has been a subject of jJicial interpretation in a number . . I . . of decisions including Halais Pro-Chemie Industries ·Limited v Wella AG (1996) TLR 269. In this case, the Court'enunciated the ,, following principles to guide the Court in the exercise of its revisional powers. The Court stated - I 1. The Court ma½ on its own motion and at any · time, inviJke its rev+onal jurisdiction. in respect of proceedings ih the High Court; 2. Except under exceptional circumstances, a party to proceedings in }he High Court cannot I invoke the fevisional jurisdiction of the Court as an alternative to the \appellate jurisdiction of the Court,· 3. A party to proceedings in the High Court may invoke the revisional jurisdiction of the Court in matters .which are not appealable with or l w{thout leave; i 1: I 4. A party to proceedings in the High Court may I: invoke the revisional jurisdiction of the Court Ii ii :i where the appellate process has been blocked by judicial process. H Mr. Kalolo-Bunda-la's first ground of complaint was to the effect that Mackanja, J. without being moved by any party to the proceedings, made a decision to abandon the hearing of the case midstream. The learned advocate submitted that the learned judge should have disclosed the reasons which prompted him to make such a decision bearing in mind that the trial of the case had reached an advanced stage. It is evident from the disqualification order and on reading the . proceedings, the parties did not make any application seeking that the trial judge should disqualify himself. Apart from this the learned judge did not invite them to make any submissions before he decided to disqualify himself. At the time the learned judge made an order to 11 disqualify himself the learned advocates for the accused persons had made their respective submissions that there was no case to answer against them in terms of section 293 (1) of the Criminal Procedure Act and the learned judge had reserved his ruling to 18.9.2006. A question that we ask ourselves is, under what circumstances should a judge disqualify himself without there being an application to that effect? Normally, disqualification would fo,llow upon an application therefor by either or both of the parties, but on occasions a judicial officer may disqualify himself without any such prior application. We have sought some guidance from a decision of the Supreme Court, South Africa, S v Malindi and Others 1990 (1) SA 962 (A) at pages 969 G - I where the court stated as follows - "The common law . basis of the duty of a judicial officer in certain circumstances to recuse himself was fully examined in the cases S v Radebe 1973 (1) SA 796 (A) and South African Motor Acceptance Corporation i t {Edms} Bpk v Oberholzer 1974 (4) SA 808 (T). Broadly speaking/ the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other 12 reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer/· that is· he will not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an C objective one. The fact that in reality the JLidicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to his impartiality that is important. " The crux of the matter· would appear to be whether or not there are any grounds in which the impartiality in adjudicating the case might reasonably be called into question. · There is a presumption that judges·,will carry out their oath of office. In the instant case, neither the accused persons nor the Republic, questioned the impartiality of the learned judge. What prompted the learned judge to disqualify himself remains a mystery to us bearing in mind that the hearing of the case had already started. It is trite law that a judicial officer must give reasons for his or her decision. In Criminal Appeal No. 60 of 2000, Ikindila Wigae v The Republic ( unreported) this Court quoted with approval the following passage 13 Dr. Mario G:)mez's book, Emerging Trends in Public Law at pp 184-5 - "Reasons indicate that the decision maker has brought his_ or her mind to bear on the subject c matter in question. It shows that the decision is not arbitrary or capricious. It boosts the integrity of the decision making process if people are told why they were unsuccessful or why a decision had been made in a certain . way. Reasons are strong proof that a decision was made fairly taking into consideration all relevant factors and was not motivated by personal factors. Reasons also facilitate a subsequent legal challenge to that decision." This takes us to Rule 2C (1) of the Code of Conduct for Judicial Officers in Tanzania. For ease of reference, we reproduce it below - Yl) A Judicial Officer should disqualify himself in a proceeding in which his impartiality might be reasonably be questione~ including but not limited to the instances where - (a) he has a personal bias or prejudice concerning a party or personal knowledge of facts in dispute, 14 (b) he served as a lawyer in the matter in controverS½ or a lawyer with whom he previously practiced law serviced during such association as a lawyer concerning the matter or the Judicial Officer of such lawyer has been a material witness in the matter/ (c) he knows that he individually or as a judiciary or his spouse or minor child residing in his househol~ has a financial interest or any other interest that could be substantially affected by the outcome of the proceeding. ,i1· I ( d) He or his spouse/ or a person related to :1 either of them or the spouse of such person (i) is a party to the proceedings/ or an office0 director or trustee of a party/ (ii) is acting as a lawyer in the proceedings/ (iii) . is known by the Judicial Officer to have an interest which could be substantially affected by the outcome of the proceedings/ 15 (iv) is to the Judicial Officers knowledge likely to be a material witness in the proceedings. N The learned judge had every right to disqualify himself from hearing the case before him, but he was enjoined to put ·on record reasons for doing so. This will show that the decision was not arbitrary or capricious and that it was not motivated by personal factors. This is an issue upon. which the parties should have been afforded an opportunity to be heard even where the court ,itself initiated the move. In so doing, the learned judge would not be seeking their seal of approval, but rather to find out whether or not there were arguable grounds to warrant his disqualification. We wish to emphatically state that judicial officers should not on the flimsiest of pretexts disqualify themselves from hearing cases. This will cause an unnecessary added burden to other judicial officers to whom the cases will subsequently be reassigned; it will cause unwarranted delay in the disposal of the case at hand and will also generafly add to the financial cost of the trial of the case. L'fr;l i I 16 ! I 1 Another irregularity in the proceedings relates to the non-· delivery of a,· ruling in terms of dection 293 (1) of the Criminal \ Procedure /Act, Cap. 20 RE 2002 (TPA). Our perusal of the court record shows ·-that the prosecution tlosed its case on the 8.9.2006 . I whereupon Messrs. Byabusha, Banturaki, Nasimire, and Malango, . I learned advocates for the 1st ; 2nd ; 3rd ; 4th and 5th accused persons respectively, made submissions to the effect that the accused persons had no case to answer in lerms of section 293 (1) of the CPA. The learned judge then ordired that his ri.11ing would be delivered on the 18.9.2006. However on the 14.9.2006 realized that the Republic had not been heard on\ the submissions of no case to I .. answer. The learned State AttorneV, Mr. Kakolaki, is on record as having said - 11 the Republic leaves the matter to the Court for ~ . • ueCIS/On ..... ll \ The learned judge then made the order dated 14.9.2006 referred to earlier on in this ruling. This takes us to section 293 (1) of the CPA which provides - I \ 18 The learned judge skipped section 293 (1) and made an order to sum up tile evidence in terms of section 298 (1) of the CPA. The summing-up exercise only arises when the case for both sides is closed and not otherwise. The accused persons h~d not even been . invited to present their respective cases under section 293 (2). The trial court1s invocation of section 298 (1) was therefore premature and erroneous. Section 298 (1) reads - "(1) When the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence/ and shall then require each of the assessors to state his opinion orally as to the case generally and as to any specific quesNpn of fact addressed to him by the judge/ and shall record such opinion. " As was stated in Andrea s/o Kulinga and Others [1958] EA 684, the then section 283 (1) "requires the judge to sum the evidence to the assessors." This pre-supposes tha,t both the prosecution and the defence have closed their respective cases. The learned judge could not undertake to sum up the evidence to the assessors before the accused persons had testified in their defence. '»--'---------·- - - - 17 I "(1) When the evidence of the witnesses for the pt osecution has been concluded, and the _statement, if any, of the accused person before the committing court has been given in evidence/ the court, if it considers after hearing the advocates for the prosecution and the defence/ that there is no evidence that the i;iccused committed the offence or any other offence of which/ under the provisions of section 300 to 309 of this Act he is liable to be convicted, shall record a finding of not guilty. " Needless to say, section 293 (1) of the CPA is couched in mandatory language. The evidence of the witnesses for the prosecution had been concluded. The learned judge heard the advocates for the defence who submitted that there was no evidence against any of the accused persons to warrant their convictions. The learned judge was then enjoined to make a ruling· one way or the other: In the case of Murimi v R [1967] EA 542 at page 546, the predecessor of this Court stated - " the law requires a trial court to acquit an accused person if a prima facie case has not been made out by the prosecution. " tft,.:;,~ ·~~:~~i¥f~~:~~-'.: ·Ti :/;f:r;~}:~~~~:~~»~ "!:" ~ ·-· i - ·- .--------- '·~ ' .' ;. /:·'.-. / •. '· ; • .I ' ·i••\·.1-:· • 19 I The trial judge also ordered that the judge t? whom the case would be re-assigned .should "try itI de novo," that. is start the trial ' from the beg.inning. Section 299 (1) of the CPA reads - "Where any judge, aft~r having heard and ! recorded the whole or any part of the evidence 1 in any trial is for any reason unable to complete the trial or he is unable· to complete the trial within a reasonable time, another judge who has I ' and who exercises jurisdiction may take over and continue the trial and the 'judge so taking over may act on the evidence or proceeding recorded I by his predecessor, may in the case of a trial resummon the witnesses and recommence the trial; save that in any trial the accused may, when the second judge commences his proceedings, demand that the witnesses of any of them be resummoned and re-heard and ·shall be informed of such right the second judge when he commences his proceedin_g. " I This provision outlines the procedure to be followed where a judge who commenced the trial is unable to continue· with the trial having recorded the whole or any part of the evidence. The judge ' I who succeeds may pronounce judgmentI on the evidence recorded by ; --------·· \ 20 his predecessor, ' supplemented byI the evidence (if any) recorded by M I himself or he may in his discretio~ resummon and rehear any of the witnesses qlready examined bj1 his predecessor, if he thinks necessary in the interests of justic~. The important thing to observe is that the trial is to be a continjtion of the earHer trial. There is I I nothing inherently wrong for the\ continuation of the trial before i another judge, but to make an order that the trial commences afresh ' I was unprocedural in terms of sectioh 299 (1) quoted above. I I . I I Lastly, the learned judge ord~red that all exhibits tendered in I evidence in the course of proceedings be expunged and returned to I I whoever tendered them in court. The procedure for the return and I . I disposal of exhibits tendered in cour,t is governed by section 353 of I I the CPA. The trial of the. case was still I in progress. It was improper . I for the trial court to return any exhibi~s pertaining to the case without I I following the laid out procedure in section 353 of the CPA. 1 We have had the opportunity to examine the record of the I proceedings in the High Court, it bJing with us already, and the I question is whether the record reveals': any incorrectne~s, illegality or I impropriety of any finding, order or an~ other decision made thereon. i \ 21 Without any hesitation, we think it does in a number of areas. With •. l J respect, we have identified at least 'five (5) erroneous orders. First, · the learned judge disqualified himself from proceeding on with the hearing of the case without disclosing· any reasons. Second; he ' ' ! ' made· an order to expunge and return all exhibits contrary to law; I third, up to the time he disqualified himself, a ruling of whether or ! not the accused persons had a case to answer · had not been - delivered; fourth, he wrongly direct~d that the case be tried afresh; and lastly, contrary to laid out procedure, he made an order to sum up the case to the assessors even b~fore the parties ·had closed their I respective cases. I I In view of these glaring irregularities in the proceedings, the i order to give under the circumstances has caused us considerable I anxiety. We toyed with the idea that the matter be transferred to ' I another judge, but we decline to 1 do so. There are pending I interlocutory rulings to be made. We cannot order the case to start I I afresh since the trial has not come to its logical end and witnesses ' I who have already testified may not be traced this time around. I Under the circumstances, we have ~o option but to order that the I 22 case should continue expeditiously before Mackanja, J. from the I 13.9.2006. All proceedings thereafter are accordingly quashed and set aside. It is so ordered. DATED at DAR ES SALAAM this 13th day of Nov~mber, 2008. H. R. NS EKE LA JUSTICE OF APPEAL J.H. MSOFFE JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. ( P.A. LYIMO) DEPUTY REGISTRAR