20160530 TZHC Dar es Salaam1

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 124 OF 2015 (From the Resident Magistrate Court of Dar es Salaam Kisutu Criminal Case No. 199/2013) SAID OMARI MAHAM BE ............................................. APPELLANT

VERSUS THE REPUBLIC ....................................................... RESPONDENT Date of Last Order: 05/04/2016 -Date--Gf-Judgmemt: ___3_0/05/2016 -JUDGMENT FELESHI, J.: In the Resident Magistrates' Court of Dar es Salaam at Kisutu, the accused was charged with two counts: one, Malicious damage to property, contrary to section 326(6A) and (6B)(a) of the Penal Code, [CAP. 16 R.E., 2002] where it was alleged that, on 5/10/2013 at Temeke Madenge area within Temeke District in Dar es Salaam Region, he willfully and unlawfully damaged telephone line cables which were providing necessary service, the properties of Tanzania Telecommunications Company Limited (TTCL); and two, Stealing, contrary to sections 258 and 265 of the Penal Code (supra) where it was alleged that, on the same date and place, he stole telephone line cables measured 20 metres valued at Tshs. 16,200,000/=, the properties of the same Company (TTCL). The accused pleaded not guilty to the charged offence. He was tried, I convicted and sentenced to twenty (20) years imprisonment. Aggrieved, the appellant preferred this appeal on four grounds that:- Page 1 of 8 . .---...- 1. The trial Magistrate erred both in law and in fact by convicting the appellant in a case where the prosecution failed to prove his guilty beyond any speck of doubt.

2. The trial Magistrate erred both in law and in fact by admitting in evidence and considering a retracted Cautioned Statement tendered by PW2 against the appellant as no inquiry was conducted to determine its validity.

3. The trial Magistrate erred both in law and in fact by not drawing an adverse inference against the prosecution for not having summoned the policeman or men from Madenge Police Post whom it is alleged they arrested the appellant to testify and ascertain whether his apprehension emanated from the crime.

4. The trial Magistrate erred both in law and in fact by convicting the appellant on basis of unjustified corroborated prosecution evidence. During the hearing of his appeal, the appellant appeared in person --that is, -unrepFesented .tbe_ Resp9n9~nt/Republic was represented by Ms. Lilian Rwetabula, learned State Attorney. The appellant urg-ed-for- his grounds of appeal to form integral part of his submission. On her part, resisting the appeal, Miss. Rwetabula submitted for the 1st and 4th grounds altogether that, the prosecution proved the charged offences whereas four witnesses testified and four exhibits were tendered. She added that PW1 testified how he was informed by PW3 about the persons who were around the TTCL poles. The appellant's fellow was also found on the ground thereat around. The appellant was chased and finally •- arrested. Exhibit "Pl" which was used to cut the TTCL wires was admitted in Court together with the cut wires that is, Exhibit "P2". Exhibit "P3" which was the accused's Cautioned Statement was also admitted in Court. The Court was invited to draw attention to the holding in Mohamed Haruna @ Mtupeni & Another vs. Republic, Criminal Appeal No. 259 of 2007 (Tabora Registry)(Unreported) where the Court of Appeal of Tanzania underscored that a good witness is that who voluntarily Page 2 of 8 confesses. Besides, she added that, the evidence by PW4 is

clear that they · found the appellant on top of the TTCL pole whereas PW3 managed to identify Exhibits "Pl" & "P2". In respect of the 2nd ground, the learned State Attorney submitted that, the trial Court conducted an inquiry in respect of the appellant's objection to the tendering of his Cautioned Statement whereas its admission in Court as Exhibit was upon satisfaction that the same was voluntarily made. Regarding· -the 3 rd - ground ·Of - appeal, the _learned Stpte Attorney - submitted that, as such, PW4 attended the scene of crime adding that, the law in terms of section 143 of the Evidence Act, [CAP. 6 R.E, 2002] does not specify the number of witnesses that suffices proof of any allegation whatsoever. In rejoinder, the appellant maintained his innocence and urged his appeal to be allowed in the interest of justice. Having considered the respective submissions by the appellant and the learned State Attorney in hand with the Court record, the following are the deliberations of this Court in disposal. At the outset, the trial Court record is clear that the evidence of PW1 one JUMA SHINDY FANJALE, the sole eye witness was recorded by one Hon. S.B. Fimbo, RM whereas the remaining other three pieces of evidence by PW2, PW3 & PW4 were recorded by Hon. E.F. Mchauru, SRM. Notably, the record is silent if the appellant was informed of his right for the new assigned Magistrate to

proceed from where his predecessor ended or PW1 be re-summoned to have his evidence retaken. Page 3 of 8 The Court of Appeal and this Court have held in several occasions that, a requirement to have that right expressed is mandatory and a failure to do so is contravention to a fundamental accused's right in criminal trials. Section 214(1) of the CPA, [CAP. 20 R.E, 2002] provides:- "Where any magistrate, after having heard and recorded the whole or part of the evidence 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 magistrate who has and who exercises jurisdiction may take over and continue the trial .. . and the magistrate so taking over may act on the evidence .. . recorded by his predecessor and may in the case of a trial and if he considers it necessary, re-summon the witnesses and recommence the trial ... ". The prevailing construction of the above provision of law was pithily given by the Court of Appeal of Tanzania in the case of Richard Kamugisha @ Charles Samson and 5 Others vs. Republic, Criminal Appeal No. 59 of 2002 (Unreported) to the effect that:- "We have cited the above cases to illustrate that where a trial is conducted by more than one magistrate, the accused should be informed of his right to have the trial continue or start afresh and also the right to recall

witnesses. The word used in section 214 (1) of the Criminal Procedure Act, 1985 is 'may' which indicates discretion but in view of the fact that the right to a fair trial is fundamental, the court has an obligation to conduct a fair trial in all respects. We are hesitant to say that where, as is the case here, the third magistrate only heard 3 defence witnesses and did not take the evidence of the five prosecution witnesses, the magistrate adjudicated the case fairly." [Emphasis supplied] In Richard Kamugisha @ Charles Samson and 5 Others vs. Republic (Supra) which, as aforesaid, has been followed in a string of this Court's decisions the Court of Appeal of Tanzania nullified the proceedings and Judgment of the trial court (See: Godwin Raphael Mushi v. Rep. HC Cr.Appeal No. 33 of 2014, Kassim S/O Said Page 4 of 8 Ngalambe @ Kessy and Muhsin S/O Ismail Manzi v.Rep., HC Cr.Appeal No. 162 of 2014, Thadey Stambuli Pangaheli @ Nuru vs. Rep. Cr.Appeal No.23 of 2015 and Jacob Lucas v. Rep. He Cr.Appeal No.114 of 2015 -Dar es Salaam Registry-unreported, amongst others.). The rationale behind the successor magistrate to ensure that that right is given was pointed out earlier in the case of Remebisele s/ o Edison v. R. (1967) H.C.D. No. 72 that:- "The discretion given to a magistrate by the Criminal Procedure Code section 196, should be exercised with great care for the primary purpose

of the hearing is to permit the court to observe the demeanour and evaluate the credibility of all the witnesses. In the present case the charges were grave and the accused persons vigorously contested the allegations of the prosecution witnesses .... " I however feel obliged to add that, the duty by the trial court to observe and preserve that right that initially was exercised under section 196 of the Criminal Procedure Code, Act No. 5 of 1945 (as the case was between 1945 and 1985) when the same it was preserved under sections 214 and 299 of the Criminal Procedure Act (supra) which became operational on 1/11/1985 by virtue of GN.375 of 1985 which replaced the former provision, as was subsequently amended through the Written Laws (Miscellaneous Amendments) (No.2) Act, No. 9 of 2002 and rightly construed by the Court of Appeal as aforesaid, was all along to allow a trial court to ably exercise its noble task of assessing witnesses' credibility by observing their demeanour and consider it in composing its decision. It is thus obvious to me that, where a predecessor magistrate declines to record his remarks against the witnesses' demeanour in terms Page 5 of 8 ------ ------ of section 212 of the Criminal Procedure Act, (supra) that makes the successor magistrate to be short of criteria on record to rely upon in assessing demeanour of witnesses who testified in his absence.

That's what makes it basic to have the accused addressed of that right for him to elect whether or not the trial should continue without recalling those witnesses before the court ultimately composes its ruling on a prima facie case or judgment. The vitality of section 212 is thus loud and clear. In short, it necessitates the trial court to attend the witnesses' demeanour during trial proceedings. The Section provides that: "S.212. When a magistrate -has recorded the evidence of a witness he shall also record such remarks. if any. as he thinks material respecting the demeanour of the witness whilst under examination. "[Emphasis added] Since the successor magistrate in the matter before me did not observe that fundamental right, the trial court's proceedings and its consequent Judgement and orders are nothing but a nullity . . Another fatal anomaly that also did not skip my attention is that obtaining in the charge sheet particularly in relation to the first count where the offence of causing malicious damage to property was charged under sections 326(6A) and (6B)(a) of the Penal Code (supra). Section 326(6A) reads in extenso: "326(6A) If the property in question is used or intended to be used for the purpose of providing necessary service, the offender is guilty of an offence and- ( a) if the offence is likely to result in danger to human life or to disrupt, damage, hinder or

interfere with any necessary service or the carrying on of such service, shall be liable to imprisonment for a term of not less than twenty years but shall not exceed thirty years; Page 6 of 8 • (b) if the offence is committed in circumstances which do not result in danger to human life, shall be liable to imprisonment for a term of not less than fifteen years but shall not exceed twenty years." In view of the foregoing, contrary to the particulars of offence and the sentence imposed to the appellant which are based on Sub-section (6A)(a), it is clear that paragraph (a) of Sub-section (6A) was not cited in the statement of offence. That thus offended section 132 and 135(a)(ii) of the Criminal Procedure Act (supra). Section 135(a) (ii) provides in part: "(ii) the statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and. if the offence charged is one created by enactment. shall contain a reference to the section of the enactment creating the offence;"[emphasis supplied] In Issa Hassan Kugemua vs. Rep. HC. Criminal Appeal No. 57 of 2014 (unreported, Dar es Salaam Registry) this court found the variance existed between the charge sheet and the trial proceedings and its consequent judgment mounted to a variance that established a

violation to sections 132 and 135(a) (ii) of the Criminal Procedure Act, and held: "It is therefore evident that the appellant from day one was not made to clearly understand the nature of the charge he was called to plead to, to understand the nature of the proceedings, to follow the course of the proceedings, to understand the substantial effect of any evidence that may be given in support of the prosecution, and to make his defence.... As the charge read and pleaded to by the appellant was not compatible to the evidence received I find the trial court's proceedings and findings to have offended the appellant's right to fair trial. The same were null and are hereby quashed." Therefore, in a serious business of charging and for purposes of fair trial in a serious case like the one mounted against the appellant, it would not have been expected for a trial aided by mentored prosecutors to allow Page 7 of 8 the procedural mischief I have endeavoured to point out above, to taint and vitiate the proceedings. This mischief and the one I discussed earlier are areas which both prosecutors and judicial officers should not allow them to happen in this escalating scale. In the upshot, considering the fatal irregularities based on noncompliance with sections 214(1) and 132 &135(a) (ii) of the Criminal Procedure Act (supra) which are incurable in terms of section 388 of the said Act, the

trial court's proceedings, judgment and orders are hereby nullified- and-quashed; -I-consequent!¥ quash _the- - appellant's -- - - - -- ·- conviction and - ·- set aside his sentence and proceed to order for the matter to be tried de novo before another Magistrate with competent Jurisdiction. That being the case, there is no need to address the grounds of appeal to avoid prejudicing the rights and interests of the parties in the matter under scrutiny. It is so ordered. DATED at Dar es Salaam

ESHI

JUDGE Judgment delivered in the presence of the Appellant in Pers n Ms. Rwetabula. The right of aR~,..... -1-,J~ Page 8 of 8 1111 ,; ,, V