19830727 TZHC Mbeya

AD • IN THE fllCECCJRT OP TiNZNIA

AT MBYA

APPELLATE JURISDICTION Mbeya Registry) CBThNAL APPEAL NO. 71 OF 1981 ORIGINAL CRBIiINAL CAS} NO. 551 OF 1978 OP TEE DISTRICT COU.T OF IJBiYA DISTRICT AT MBEYA Befre: K. H. R,ashidi, District Ni strate. WASHINGTONNYAPANA.............S.%..........PPELLANT VERSrJS THEBEPUBLIC • • • • •. • . • to.... 0000 ...... •••p..• B?ISPONDENT CHARGEi Stealing by Public Servant /a.65. and i70 .f the Penal Code

JIJDGNET MtJNYEBA 9 J. -:. This is an appeal against the ruling of the learned trial J)istrict Magistrate of 22/7/81 in which he rejected the appellantt a application for chaigfv.. u. The story was as fo11ows; The appellant was charged jointly with one Elia Mbamba. The appellant wa.3 the first accused and libamba the second. Although they were-ppt tcg..?:ie in the same charge sheet, each of them was in fact arraigned sec.:Jlr. In the first dount the appellant was ôhai'ged with stealing a pistl br a public servant he •was a clerk with the regional directorate hero) and in the second cotint the second accused was charged v;ith being in unlawful possession of the same pistol the appellant was alleged to have stcen. The second accused was said to be a business man in hbeya town. Aftee adjou±'nment the trial began on 18/9/80. By then both the appellant and his c.o-ae.csed were on bail. The appellant vcs defended by Mr. iwaId1asa while his co-accused had no Counsel. Or;. that day five witnesses gave evidence. The hearing was adjourned to the r.ext day .19/9/80 and when it resumed, the Counsel for the Republic repo;.:ted that the appellLantts Counsel had gone to attend the funeral of the ..ate Dr. Kasambala The hearing was adjouiied to 21/10/80. The trial magic rate eenôelled the second accused'a bail but let the appellant continue with hds.e V1hen the trial resumed on 21/10/8Q

four more witnesses gave evidence.. It was adjeurned to 30/l/81...when the last. three witnesses gave evidenec and the prosecution closed their case. The hearing of defence was fixed for 2/2/81. On that day both the appellant and his co-accused made unswom statements and the case wa.s -4 (2) adjourned to the next day 3)'2/81 to enable the appellant's Cunset (the second accused had none) to prepare for subnii.sions. This time the trial magistrate cancelled the appellant's bail (the eoond acdused had his cancelled on 19/9/80). The appellant's Counsel appealed to this court against the cancellation. The appeal was allowed on 30/6/81 and the appellant was readmitted to his bail. The case resuied on 22/7/81. The appellant i s Couiisel rose and submitted that hia cliet had !io longer, any faith in the trial magistrate and they applied for a. change of venue, the case to be transferred to another magistrate, in turn the second accused lamented that he was rotting in prison (his bail had been cancelled on 1 9/9/80, ten months then) and prayed the court to delir the - judgment. This cry was supported y the Counsel fcr the Republic. The trial magistrate dismissed the application for char.ge of venue and invited the appellant's Counsel to make his submissiofis sc' that thacase could be concluded, The Counsel rcse again and sai& he.. would a.ppeal against the magistrate's refusal to

relinguish the case. The .inagistrat. adjourned the case and released the second accused on bail as well. The apel1ant's Counsel then processed and filed this appeal. He attacked the trial magistrate for every finding he made leading to the dismissal of the application. The magistrate8s' reasons - for refu.sal to relinguish the case were two fold. . First, that there were two ao'cused. Tie appellant was on bail' while the other unfortunate accused was on remand for ten months by then.. It was the man on bail and who had the services of a lawyer, making noises for a de novo trial. In the eyes of the magistrate this was prejudicial to the other accused. Secondly the tria?. had already been concluded because both accused had made their defenr. On the other hand the appellant's Counsel submitted that by abrupt cancellation of the appellant's bail the magistrae projected a prejudgwedt. That it was untrue that trial had been coiclude& since he (the Counsel) had yet to make submissions in relation t the appellant's ease. This amounted to a trial and the appellant would not have it fair:Ly He craved for a, change of venue whatever the res.lt to the other guy,. On my part I would not dwell cn what would have happened to the other accused if the change of venue was ordered. 1 hall retr{ct myself to the legal side of the matter. To start with, I confess, I have neer some aross an

instanoe where change of venue of this kind was ordered after the close of def The learned Counsel has not ref-; bred this court to any such a preced I agree with the learned trial magistrate that by closing the defen (3) trial had virtu&lly ended. I don't think that the submissions the learned Counsel had yet to. make were an impotant part of the trial. There are many undefended accused whose cases are decided without any kind of mibniissions.. To crown it all th sthmiøsions the Counsel had yet to make were for one accused only, the appellant. Can it be said that he trial in relation to the other accused whc had no lawyer to make submissions for him,.was inconclusive? Of course, No. Since none of the accused had complained till the end of the ease,. it must be taken that tiey had a fair trial. The judgment will, rest on the facts recorded in that .fai trial. The applica- tion te change. the venue was rightly x'efused.. Likewise the appeal in that respect i. di.inissed. I order that the record be remitted back. . the lower court for the trial magistrate to finalise the case. T Mbeya, . F. A. 27th July, 1983