20190715 TZHC Mbeya

IN THE HIGH COURT OF THE UNITED REPUBLIC OF ) TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 134 OF 2018 (From Chunya District Court at Churiya, Economic Crime Case No. 112017) NICODEMASI s/o PIUS NGONYANI ...............APPELLANT VERSUS THE REPUBLIC . . . . .. . . . ........... ...................RESPONDENT JUDGMENT Date of Judgment: 15.07.2019 Dr. A. J. Mambi, J. In the District Court of Chunya, in Mbeya Region the appellant NICODEMASI s/o PIUS NGONYANI was charged with an offence of unlawful possession of government trophies c/s 86 (1) and (2) ( c) of the Wild Life Conservation Act, 2009 read together with the Economic and Organized Crimes Act, Cap 200 [R.E.2002]. This was an economic case No. 1/2017.He was convicted as charged and sentenced to 20 years. Aggrieved, the appellant filed his appeal preferring fourteen grounds of appeal. 'S During hearing the appellant appeared unrepresented, while the Republic (respondent) was represented by Mr. Baraka Mgaya, the learned State Attorney. The appellant adopted all his grounds of appeal and stated that he had nothing to add. Before responding to the grounds of appeal, the learned State Attorney Mr. Baraka, for the Republic, submitted that, before proceedings with this appeal the court need to determine some key issues that seems to be irregularity at the trial court. He argued that it appears the appellant was not properly convicted contrary to section 312 of Cap. 20[R. E. 2002] of the Criminal Procedure Act. He submitted that the Judgment at page 16 shows that the magistrate did not indicate the section under which provision and offence the appellant was convicted. Mr. . Baraka referred the decision of the Court of Appeal in Kelvin Myovela vs. the Republic, Criminal Appeal No. 603 of 2015. He thus prayed the matter to be remitted for proper conviction. In response, the appellant Counsel Mr. Benedict briefly conceded with the respondent submission that it is true that there are irregularities from the trial court. He prayed this court to give immediate directions on the way forward. I have carefully gone through the records and the relevant laws. Before thoroughly looking into the grounds of appeal I have also noticed and observed that the judgment by the trial 2 magistrate has some errors which may render it invalid. It is clear from the records that the trial Magistrate did proper enter the conviction against the appellant rather than just finding him guilty. In his final words (The Trial District Magistrate) under the last paragraph the judgment at page 16 reads: "I find the accused is guilty as charged and subsequently convict as per s.235 (1) CPA, CAP 20 [R.E2002J. Reading between the lines on the above quoted paragraph can it be said that the Magistrate convicted the accused?.The answer is clearly NO since the above wordings were the last statement under the last paragraph of the judgment and nothing else. I have keenly gone through the proceedings and judgment and I didn't find anywhere indicating the trial Magistrate properly convicted the appellant. As required by the law that once an accused is convicted one would have expected the sentence to follow thereafter and must be indicated under the judgment. In other words, it is trait law that once the accused is found guilty, he must be convicted under the section that creates an offence as indicated under the charge sheet and should be indicated under the judgment. Failure to convict and sentence the accused is contrary to the law since the law provides for mandatory requirement for judgments to contain conviction and sentence. Indeed section 235 of Cap. 20 [R. E. 2002] of the Criminal Procedure Act just provides for the procedures that need to be followed when the n accused is found guilty. This section does not create any ) offence. I wish to refer Section 235 (1) of the Criminal Procedure Act, Cap. 20 [R.E 2002] which provides as follows- "the court having heard both the complainant and the accused person and their witnesses and evidence shall convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him or shall dismiss the charge under section 38 of the Penal Code".(emphasis supplied with). The above provisions of the law are very clear. In this regard, my mind directs me that the provisions of the law mandatorily require that any judgment must contain conviction followed by the sentence and it must be reflected in the records. The word "shall" under the provision of the law (section 235 (1) read together with section 312 of the CPA Cap 20 [R.E 2002] implies mandatory and not option and that is the legal position under the Interpretation of Laws Act, Cap 1 [R.E.2002]. The requirement of convicting and sentencing the accused was also observed and emphasized in MOHAMED ATHUMAN vs THE REPUBLIC, Criminal App.No.45 of 2015 (unreported). The court of appeal in this case that is MOHAMED ATHUMAN vs THE REPUBLIC, Criminal App. No. 45 of 2015observed that: "Although there was a finding that the appellant was guilty was not convicted before he was sentenced. This was itself irregular. Sentence must always be preceded by conviction, whether it is under section 282 (where there is a plea of guilty) or whether it is under section 312 of the CPA (where there has been a trial). "(emphasis supplied with). Worth also noting that the Court of Appeal of Tanzania has held in its various decisions that failure to enter conviction followed by sentence after the accused is found guilty renders the judgment of trial court incompetent. The court thus in Oroondi Juma v. Republic, Criminal Appeal No. 236 of 2012 (unreported), held that: "Non-compliance with the requirement to convict the accused as directed under Sections 235 (1) and 312 (2) of the CPA rendered the judgment of the trial court incompetent ...." Reference can further be made to the court in Amani Fungabikasi V Republic, criminal appeal No 270 of 2008 (unreported) where the court made similar observation. In this case the court said that;- "It was imperative upon the trial District Court to comply with the provision of section 235 (1) of the Act by convicting the appellant after the Magistrate was satisfied that the evidence on record established the prosecution case against him beyond reasonable doubt. In the absence of a conviction it follows that one of the prerequisites of a true judgment in terms of section 312 (2) of the Act was missing. So, since there was no conviction entered in terms of section 235 (1) of the Act, there was no valid judgment upon the High Court could uphold or dismiss. "(emphasis added). Likewise, the Supreme Court of India in a persuasive case of Santa Singh v. State of Punjab, 1976 (4) SCC 190 'found at: http: / /www.livelaw) observed that: 5 "The provision of the law on conviction and sentencing is clear and explicit and does not admit of any doubt. It requires that once the accused is found guilty of an offence through the court decision, the court must pronounce conviction followed by the sentence". Reference can also be made to section 312of the Criminal Procedure Act (CPA), Cap 20 [R.E 2002] for content of judgment as follows: "(1) Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and .signed by the presiding officer as of the date on which it is pronounced in open court. (2) In the case of conviction the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced".(emphasis added). It clear from the above observation that the judgment by the trail magistrate was not proper for non-compliance with the law. This is an obvious omission and irregularity that ought to have been observed by the trail Magistrate and even the prosecution. Having established that in this case the trial magistrate has failed to properly convict in his judgment that renders the judgment incompetent, the question is, has such omission or irregularity occasioned into injustice to the rel accused person/appellant?. In this regard, I will refer Section 388 (1) of the Criminal Procedure Act, Cap 20 [R.E.2002] and see what would be the proper order this court can make in the interest of justice. Indeed this section [388 (1) ] provides that: "(1) Subject to the provisions of section 387, no finding sentence or order made or passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision onaccount of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any inquiry or other proceedings under this Act; save thatwhere on appeal or revision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure of justice, the court may order a retrial or make such other order as it may consider just and equitable". The proviso of the above provision is clear that where on the court is satisfied that such error, omission or irregularity has in fact occasioned a failure of justice, the court may order a retrial or make such other order as it may consider just and equitable. It is trait law that before any appellate court makes an order for remittal of the file or retrial, the court must find out as to whether the original trial was illegal or defective and whether making such order and where the interests of justice requires to do so. I wish to refer the decision of court in Fatehali Manji V.R, [1966] EA 343, cited by the case of Kanguza slo Machemba v. R Criminal Appeal No. 157B of 2013. The Court of Appeal of East Africa restated the 7 principles upon which court should order retrial. The court observed that:- in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person..." I subscribe the above position by the court which started that an order for retrial should only be made where the interests of justice require it. In my considered view, there is no any likelihood of causing an injustice to the accused person if this court orders the remittal of the file for the trial court to properly convict and sentence the accused. The records show that at the trial court the evidence was clear and the trial court rightly found the accused guilty but the court failed to enter sentence against the accused. From my finding, I am satisfied that such an error, omission or irregularity has in fact not occasioned failure of justice to the appellant for this court to order the file to be remitted back. Now is it proper and prudent to order the trial magistrate to convict and sentence the appellant in line with 8 the relevant laws?. Admittedly, this court has power to make such orders. For that reason since the appellant was found guilty of the offence charged he should have been convicted in terms of section 235(1) and 312 of the CPA Cap 20 [R.E.2002] by specifically stating the enabling provision that creates an offence. As I alluded and observed above that, since there was no conviction entered in terms of section 235 (1) and section 312 of the Act, there was no valid judgment upon this Court could uphold or dismiss this appeal and there is nothing this court can entertain as appeal. It is a settled law that failure to enter conviction under the proper provisions of the law by any trial court is a fatal and incurable irregularity, which renders the purported judgment incapable of being upheld by the High Court in the exercise of its appellate jurisdiction. In the circumstance and in view of the fact that the trial court omitted to enter or order a sentence as required by the law, I declare that the judgment of the District Court is to that extent fatally defective. In the circumstance, since the trial court's judgment was invalid, it could not have founded a proper appeal before the High Court. In the circumstances I therefore remit the file back to the trial District court to enable the trial magistrate to immediately convict and compose and deliver a judgment that contain sentence which is in conformity with the laws. Where it appears that the trial magistrate has ceased jurisdiction for one reason or another, in terms of section 214 (1) of the CPA Cap 20 [R.E.2002] another magistrate should be assigned the case to compose and deliver the judgment. With regard to the position of the appellant I order him to remain in custody pending the delivery of the new judgment that contain conviction followed by the sentence. The court of Appeal in GEORGE PATRICK MAWE & 4 others Vs R, Criminal Appeal No. 134 of 2006 underscored the importance of taking into account the time spent by the appellant at the prison where it orders retrial. The Court thus observed that: "For the interest of justice, we also order that after the appellants have been properly convicted in accordance with the law, the period they have already served in prison be considered when the sentence is passed" In the interest of Justice, as also observed by the court of Appeal in the above case, I order that the sentence to be ordered by the Magistrate should take into account the time the appellant has spent in prison. Depending on the outcome of the new judgment, the appellant shall be at liberty to start aeshprocess of appeal. fi I DR. A. J. MAMBI JUDGE 15.07. 2019 EI Judgment delivered in Chambers this 15th day of July, 2019 in presence of both parties. <:~ -I DR. A. J. MAMBI JUDGE 15.07. 2019 Right of Appeal Explained. DR. A. J. MAMBI JUDGE 15.07. 2019