p9332 major vitus kassian kimbwilambwiza vs the judge advocate general 2020 tzhc 4642 8 december 2020

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM (CORAM: MASOUD, KULITA AND MASABO JJJ.) COURT MARTIAL APPEAL NO 03 OF 2020 (Originating from the decision of General Court Martial, at Upanga Officers' Mess dated 31st January 2020) P9332 MAJOR VITUS KASSIAN KIM BW ILAM BW IZA......................APPELLANT VERSUS THE JUDGE ADVOCATE GENERAL....................................................RESPONDENT JUDGMENT 14/08/2020 & 8/12/2020 Masoud,J The appellant, P9332 MAJOR VITUS KASSIAN KIMBWILAMBWIZA was tried and convicted by the General Court Martial sitting at Upanga Officers' Mess, Dar es Salaam. He was charged with a total of eighteen (18) counts, of which he was found guilty and convicted of eight (8) offences contrary to section C.65(l) of the Code of Service Discipline (First Schedule to the National Defence Act cap. 192) and section 304 of the Penal Code, cap. 16, and sections C. 49(c), and C.64(l) of the Code of Service Discipline respectively. Following the said convictions, the appellant was sentenced for two years imprisonment. The appellant was aggrieved by the decision of the General Court Marshal. He filed the present appeal consisting of seventeenth grounds in a bid to challenge the finding of the General Court Martial. He however abandoned the first and twelfth grounds in his written submissions in chief. The remaining grounds were: 1. The trial tribunal erred in law and in facts by convicting and sentencing the appellant basing on the charge sheet which was incurably de for not being signed by the appropriate authority. 2. That, the trial court erred in law and in fact by proceeding to hear and determine the trial while it was evident that the court was not independent. 3. That, the trial court erred in law by continuously ignoring legal opinion of Judge Advocate and undertaking to determine legal issues which ought to have been determined by Judge Advocate thus arriving at erroneous decisions. 4. That, the trial tribunal erred in law and in fact in admitting the evidence and exhibits without seizure certificate as required by the law. 2 a competent court of law but which raise glaring doubt in the prosecution case. On 16/7/2020 wher the appeal was called on for hearing, the appellant v\,as represented by Mr Vedastus Majura, Advocate, while Capt. Alfred Agila appeared for the Judge Advocate General, the respondent. Elaborating the first ground of appeal, the appellant's counsel faulted the General Court Martial for finding him guilty based on an incurably defective charge sheet which was improperly signed by an Acting Commanding Officer Lt Col. E.K. Cleophace. Hence, the whole proceedings and the decisicn of the trial tribunal were illegal. He argued that the record was clear that when DW .l was testifying in his evidence, he admitted that he was acting commanding officer of 671 KJ when he signed the charge sheet. He also admitted that the said charge had been brought to him from MMJ. It was thus argued that the charge sheet which was signed by the said Acting Commanding Officer was contrary to regulation 106.11(2) of the Defence Forces Regulations which makes it mandatory for the charge sheet tc be signed by a Commanding Officer and not by an Acting Commanding Officer. Reference was made to section 53(2) of the Interpretation Act which has it that the use of the word "shall" in respect 5. The trial tribunal erred in law and in fact in convicting and sentencing the accused relying on wrongly acquired and admitted evidence. 6. The trial tribunal erred in law and in fact by convicting and sentencing the accused person based on the insufficient evidence of the prosecution. 7. The trial tribunal erred in law and in fact by relying on uncorroborated evidence to convict and sentence thus causing grave injustice. 8. The trial tribunal erred in law and in fact by admitting the electronic evidence without established chain of custody. 9. That, the trial court erred in law and in fact in convicting and sentencing the appellant without assigning reasons, thereby committing a serious miscarriage of justice in denying the appellant a right to know why he was convicted and/or sentenced. 10. That, the trial court erred in law and in fact by ignoring the defence case, including the appellant final submissions which did not only raise matters of law to be considered and determined by 3 In addition to the above reply, it was the respondent's argument that even if the said charge sheet was not signed by the Commanding Officer, the irregularity of the signatory would have been curable, by virtue of the decision of this court in P 9219 Lt Abdon Edward Rwegasira vs Judge Advocate General, Court Marshal Appeal No. 4 of 2009. The court was accordingly invited to dismiss this ground. In so far as the first ground in this judgment is concerned, I considered the case of Rwegasira above cited in relation to the submissions by the counsel for the appellant. The charge sheet was undisputedly duly signed. The dispute is that the same was not signed by an authorized officer according to the requirement of the law and it was brought from "MMK" and signed by an acting commanding officer as the commanding officer contrary to the law. Furthermore, there is no record that this issue was raised by the appellant or his counsel during the trial. It was in this appeal not shown sufficiently that the appellant was in any way prejudiced by the charge sheet having been signed by an authorized person. The attempt by the counsel for the appellant to convince this court that the alleged omission occasioned violation of rules of natural justice on his part did not bear fruits as the'e were no particulars shown as to how the omission led to the failure of of conferring of a function would mean that the word must be interpreted that the function conferred is mandatory. It was added that while charges are to be initiated and laid down by the Commanding Officer as required by regulation 107 of the above cited Regulations, the charge sheet in the present instance was signed by DW.l who was then an Acting Commanding Officer. In this respect, the said Acting Commanding Officer did not authorize investigation against the appellant. It was also contended that the said Acting Commanding Officer did not prepare the charge. Rather, it was just brought to him and one who prepared it was never disclosed. Consequently, the appellant could not have a fair trial as the charge was not only signed by an unauthorized person, but also brought to him from "MMK". Replying on the submissions in respect of the above ground of appeal, it was argued for the respondent that by virtue of regulation 101.01(l)(e)(ii) of Defence Forces Regulation (Vol. 11), the issue as to whether or not the Commanding Officer who signed the charge is Acting or not is immaterial. It was submitted that the said Regulation has it that the commanding officer of an accused person is either a Superior officer to whom he is responsible to matters of discipline or any other officer as the Chief of Defence Force (CDF) may appoint. observance of rules of natural justice. We are convinced on the authority of Rwegasira case that the irregularity if at all it existed is curable. This ground is thus dismissed. As to :he second ground of appeal as listed above, it was argued by the counsel for the appellant that the general court martial was not impartial end therefore not independent. It was argued that while the appellant was in open custody, the president of the said court cancelled the bail imposed to the appellant and committed him to closed custody on instructions he 'eceived from the Defence Force Headquarter. Relevant parts of the General Court Marshal proceedings were quoted and referred to support the argument. Despite the opinion of Judge Advocate that what was done was contrary to :he law, the President ignored the opinion. It was thus submitted that what had happened meant that the trial could not be fair. In this respect, it was argued that since the tribunal was not independent, the proceedings which led to the appellant's conviction and sentence were accordingly unfair, and unjust and ought to be quashed. The submissions in respect of the second ground of appeal in th s judgment were vehemently countered by the respondent. In the first place, we were told that the submissions by the appellant's counsel we'e insufficient and could not support a finding that the tribunal was impartial. Reliance was made on regulation 105.30(4) of the Defence Force Regulations (Vol.II) which vests the president discretionary powers in matters of close and open custody. In the second place, it was submitted that the decision to return the appellant into close custody was solely made by the President exercising his discretionary powers in this regard. It had thus nothing to do with the alleged influence from Makao Makuu ya Jeshi. We were in this respect, referred to page 61, paragraph 4 of the tribunal's proceedings where the President implied that the decision was reached in the exercise of his own discretionary powers. Consequently, the respondent called upon this court to find that there was no breach of rules of natural justice as alleged, and to proceed to dismiss the ground forthwith. We painstakingly considered the second ground of appeal and the rival submissions that ensued. We are clear that the ground relates to matters that were reflected in the Court Marshal proceedings. We have in this regard critically underlined the contents of the typed proceedings referred to us by the parties whose existence were not disputed. Our first observation was on the observation of the Judge Advocate in page 60 paragraph 3 as to how the matter was handled. In his 8 observation, he was dissatisfied with the interference that was seemingly exerted which seemingly interfered the due process of the law in the trial. This is dipected in the stated which he referred to which reads and were hereby quote: "...nilipokuwa najaribu kufuatilia mwendo wa mshtakiwa, nifigundua kuwa amekiuka utaratibu na hivyo niliw asiliana na mamlaka za makao makuu ya je sh i na zim etoa am ri ya mshtakiwa kurudishwa Close custody” Cur second observation was also in page 60 paragraphs 4 and 5 and page 61paragraphs 1,2 and 3 which as was the above observation bears contents that question the impartiality of the tribunal in the proceedings involving the appellant. Paragrah 5 of page 61, for example, captures the observations and reaction of the Judge Advocate in relation to matters of .ndependence of the court marshal and exercising of its discretionary powers. It reads and we hereby quaote: " ...Sasa nisem e tu kwamba siyo sahihi kisheria na kiutaratibu kwa tamko tu la Rais, Mahakama, au Am ri kutoka MMJ kumrudisha mshtakiwa Close Custody." We are satisfied that there were indications of interference which raises doubt as to whether the Court Marshal was really independent in the entire proceedings that saw the appellant convicted and sentenced. We are aware of the principle that justice has not only to be done but seen to be done. In the circumstances of this matter and the way the trial was conducted as is clear on the record which we set out here in above in brief, we do not think that any prudent person would say with certainty that the appellant had a fair trial. We are prepared to find merit on this ground which in our considered opinion also relate or inform the eighth ground of appeal as per the order of listing of the grounds of appeal we set out at the beginning of this judgment. The same is to the effect that the trial court erred in law and in fact in convicting and sentencing the appellant without assigning reasons, thereby committing a serious miscarriage of justice in denying the appellant a right to know why he was convicted and/or sentenced in respect of each and every offence. With regard to the ground on the failure to give reasons for the decision reached, we were referred by the counsel for the appellant to the settled principle that when the court gives its decision, it must assign reasons for the decision. We were equally shown the ultimate finding reached by the trial court marshal at page 619 paragraph 2 of the typed proceedings. The relevant paragraphs were quoted by the learned counsel for ease of our reference. We were then urged to note and find that there was no attempt made by the trial court martial to assign reasons for the conviction on the 10 e.ght (8) offences. The failure to assign the reasons was, it was argued, contrary to regulation 112.40(1) and regulation 112.41(2) of the Defence =orces Regulations. “ o buttress the above argument as to failure to comply with the above regulations requiring the trial court marshal to assign reasons for its decision, our attention was drawn to the case of P8626 Major Abdul Mukhusin Kombo vs The Judge Advocate General, Court Marshal Criminal Appeal No 4 of 2014 whose decision was among other things arrived at on the basis of the failure of the trial court martial to assign reasons for its decision. The court thus emphasized that failure to assign reasons amourts to miscarriage of justice as it had been held in other cases such as Rwegasira (supra), MT PTE Mollel Luca Solomon v The Judge Advocate General, Court Marshal Criminal Appeal No. 1 of 201, MT 83166 Pte Ha mis Ally Gwila vs The Judge Advocate General, Court Marshal Criminal Appeal No. 1 of 2015, and more importantly the case of Tanzania Air Services Ltd vs Minister for Labour, Attorney General and the Commissioner for Labour [1996] TLR 217. In the latter's case, the court of Appeal had it that "...where the determ ination o f the rights or obligations o f a person is involved, a decision m aker m ust give reasons/' n To drive home the argument that the requirement to assign reason is indeed reflected in the above cited regulations, the learned counsel for the appellant relied on the reasoning of this court in Kombo's case. In this case the court referred to the meaning of the word "finding" in the Black's Law Dictionary 8th Edition at page 664 and as used in the said regulations, and ultimately ruled that a "finding of fact" means a determination by a judge or jury or administrative agency of fact supported by evidence in the record as presented in the trial. We were also shown by using Hamis Ally Gwila's case how the word "conclude" as used in the above regulations, and in particular regulation 112.41(1), ordinarily refers to arriving at "...a decision by reasoning or to reach a judgment through reasoning." The invitation by the counsel for the appellant for this court to dismiss the appeal on the ground of the failure to assign reasons by the trial court martial was opposed. Replying submissions which ensued on the point had it that the procedure applicable in the court martial trial's is different from the ordinary court. To support the argument, reliance was made on regulations 112.41(2) which according to the respondent only requires the court martial to enter a finding of "guilty or not guilty". We were equally referred to Defence Forces Regulation Notice (A)(i) (ii) (iii) to regulation 112.41 which provides format for finding of the court martial. We were told that the format has it that where there are more than four charges and no charges are in the alternative, the finding would not necessitate stating reasons. We were furthermore told that regulation 112.05 of the Defence Forces Regulations mainly based on brevity and avoidance of repetitions. Besides the foregoing, we were told that the reasons for the decision convicting and sentencing the appellant were very well explained in detail in the summary given by the Judge Advocate when aralysing the prosecution case. With the reply, we were asked to dismiss the ground alleging that there was a failure to assign reasons for the decision. We took time to consider the arguments advanced by the respondent in relation to the ground on the failure of the trial court martial to assign reasons for its decision. We were clear that the previous decisions of this court which found that the failure of the trial court martial to assign reasons for its decisions was fatal as the failure ordinarily occasions miscarriage of justice were reasoned and made in the light of the decision of the court of Appeal on the issue. We found no reason as to why we should not follow the principle emerging from the said decisions. 13 JA: Asante, Mheshimiwa Rais. Sasa baada ya uam uzi wa Mahakama yenu..... It is to be noted that after the conviction as above shown, the Judge Advocate took his role in restating the way he understood the conviction. As soon as the judge advocate finished, the President intervened to provide clarification to the conviction which he had already pronounced. What followed thereafter from the President was clear that there were not reasons assigned for the eight (8) offences. Our scrutiny of the proceedings of the trial court martial left us in no doubt that there were clearly no reasons which were given for the decision reached in respect of the convictions for the eight (8) offences and the sentence. The purported attempt cannot in our view amount to reasons for the decision convicting the appellant for the eight offences and sentencing him for two years imprisonment. Our deliberation on the above grounds suffices to dispose of the matter. We will not therefore labour on the other grounds of appeal. In the event, this appeal has merit and it is accordingly allowed in its entirety. Having regard to the circumstances of the trial, the time so far spent in prison by the appellant, and the evidence on the record, we are of the view that the proper remedy is not retrial but acquittal of the 16 appellant. If the appellant is still in prison, we order that he be released with immediate effect unless he is otherwise lawfully held. It is so ordered. --------- . S. Masoud JUDGE 8/ 12/2020 S. Kulita JUDGE 8/12/2019 J. L. Masabo JUDGE 8/12/2019 17