20120910 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA {CORAM: BWANA, J.A., MJASIRI, J.A., And MANDIA, J.A.) CRIMINAL APPEAL NO. 41 OF 2007 NDASO YOHANA@ KIBYALA ••••••.••••••.••••••.••••••••••••••••••••••••••.•••• APPELLANT VERSUS THE .REPUBLIC ••••••••••••••••••••••••••••••••••••••••••.••••••••••••••••••••••••••••••• RESPONDENT {Appeal from the decision of the RM's Court with Extended Jurisdiction at Sengerema) {Mgaya, PRM (Ext. Juris)) dated 16th day of November, 2008 in RM's Criminal Sessions Case No. 60 of 2005 JUDGMENT OF THE COURT 3rd & 10th September, 2012 BWANA, J.A.: Initially, the appellant, Ndaso Yohana Kibyala together with another person, were charged with two counts of Murder Contrary to Section 196 of the Penal Code. It was alleged in the first count that on or about 24 June 1990 at about 19.45 hrs at Kalebezo village of Sengerema District they jointly and together murdered one Yusufu Hoja Mathias. It was further claimed in the second count that on or about 25 June 1990 at 1 about 9.30 hrs at Chabulango Ujamaa Village of Geita District, the two accused persons murdered one Lunyalija Msuka. Both accused persons pleas were taken by the High Court (Masanche, J) on 24 September 1992 in which they entered pleas of not guilty. Thereafter, Masanche, J (as he then was) proceeded to conduct a Preliminary Hearing whereby a Memorandum of Matters not in dispute was drawn up and both accused persons signed it. A list of witnesses was drawn up and the case was adjourned for trial. All that took place on 24 September, 1992. However, on 11 August 2005, Masanche, J. then Judge Incharge of Mwanza High Court Zone, invoked the provisions of section 256 A (1) of the Criminal Procedure Act No. 9 of 1985 as amended by Act No. 17 of 1996 (the CPA) and transferred the trial of that case "to the Court of the Resident Magistrate at Sengerema for trial before F. A. Mgaya Principal Resident Magistrate with Extended Jurisdiction." That transfer of the trial from the High Court to "the Court of Resident Magistrate" forms one of the grounds of this appeal. The appellant was found guilty of the murders and sentenced to suffer death by hanging in 2 terms of section 322(1) of the CPA. Aggrieved by that decision, he lodged this appeal. Before us the appellant was represented by Mr. Salum Amani Magongo, learned counsel, while the respondent Republic was represented by Mr. Castus Ndyamugoba, learned State Attorney. In his memorandum of appeal, the appellant raised the following grounds. 1. That as the transfer (of the case) was not properly made pursuant to the provisions of section 256 A (1) of the CPA, Cap 20, the trial court had no jurisdiction to conduct the trial. Without prejudice to the above: 2. That the trial court erred in law by relying on the memorandum of matters not in dispute. 3. That the trial court erred in taking into account the identification parade which was a farce. 3 1 4. That as a whole, on the record of evidence on I I record, the trial court erred in law and fact to i convict the appellant. Having considered the submissions by both counsel, we are of the firm view that this appeal may be determined by considering the first ground I only. This is a ground which in essence provides that the provisions of section 256 A (1) of the CPA· having not been complied with, the I subsequent trial by Mgaya, PRM with,' Extended Jurisdiction (as she then was) was a nullity. I Section 256 A (1) of the CPA provides ... "The High Court may direct that the taking of a plea and the trial of: an accused person committed for trial by, the High Court, be i transferred to, and be conducted by a resident I magistrate upon whom extended jurisdiction has been granted under subsection (1) of Section ! 173". [Emphasis provided]. 4 The words "taking of the plea and conduct the trial of an accused person" should, in our view, be given a, literal interpretation, meaning that a purported transfer of a case from the High Court to the Court of Resident Magistrate should be done before a plea is taken. We are aware of recent conflicting decisions of this Court on this point. Such decisions include Juma Lyamwiwe vs Republic (Criminal Appeal No. 42 of 2001, unreported) and that of Emanuel Malahya vs Republic (Criminal Appeal No. 212 of 2004 unreported). In the former case, we know that the Court decided that such a transfer be effected before plea taking as well as before the Preliminary Hearing and that the subordinate court so assigned must take a plea and conduct a Preliminary Hearing. However, in the latter case, the Court did depart from the former view and other similar authorities hitherto in application and came to the conclusion that such transfer could be at any time before trial begins. The two conflicting decisions may create unnecessary confusion in the minds of the legal fraternity. We share the same sentiments. But we are as well aware that the decision of the Court in the latter case was arrived at based on some other factors in that appeal against a conviction for murder by the trial court. We note with certainty that the issue before 5 the Court in the Juma Lyamwiwe case was solely on the legality or otherwise, of the transfer of a case from the High Court after a plea had been taken. That seems to be the issue before us and if so it gives validity to the stance taken by the Court in Lyamwiwe case. What are the likely consequences? In the Lyamwiwe case, the Court held:- "It occurs to us that the purpose of conducting a preliminary hearing ... is to ensure, among other things, an expeditious trial. If so, we do not think that it was ever intended that the High Court would conduct a preliminary hearing and then transfer the case to a Resident Magistrate with Extended Jurisdiction ... In similar vein, the transfer envisaged under section 256 A (1) can only be done before a preliminary hearing is conducted ... " [Emphasis provided]. We subscribed to the foregoing views of the Court. The Court, in the Lyamwiwe case proceeded to observe that:- 6 "We also wish to point out that under section 256 A (1) it is envisaged that a Resident Magistrate with Extended Jurisdiction to whom a case has been transferred will take a plea and then conduct a preliminary hearing ... " If that takes place, as it was in this case, then the whole idea of expediting trials, as envisaged under section 192 of the CPA will not succeed. We are therefore firmly convinced that the procedure to be followed in the transfer of similar cases is the one provided for in section 256 A(1) (supra) and amplified in the Lyamwiwe case - transfer the case from the High Court to the Resident Magistrate's Court with Extended Jurisdiction before plea taking and preliminary hearing. Having firmly held so we now address our minds to what are the consequences of the transfer effected in this case. Our considered view is that since that transfer was carried out contrary to the procedure provided for under section 256 A(1) of the CPA, all of the proceedings that took place in the said Resident Magistrate Court, was a nullity with the consequences that befit it. We firmly hold so. 7 . In light of our finding that the said proceedings were a nullity, we see • I no reason to discuss the other grounds of appeal raised by the appellant 1 I , herein as their genesis is those proceedings which we have declared a nullity. I The consequences of such nullity, proceedings lead us to direct the High Court in Mwanza to proceed with the trial of High Court Criminal I Sessions Case No. 102 of 1992 frorri the stage it had reached after conducting the preliminary hearing. That was about twenty (20) years ago . • I Bearing in mind the long period that t,ad passed, the Director of Public I I Prosecutions may wish to take other measures, in the interest of justice. I < th DATED at MWANZA this 10 day of September, 2012. I S. J. BWANA JUSTICE OF APPEAL I S. MJASIRI JUSTICE OF APPEAL ! W. S. MANDIA JUSTICE OF APPEAL I certify that this is the true copy of the original. I Z.A. MA DEPUTY REGISTRAR COURT OF APPEAL 8