yeradi adam nshinshi 2020 tzhc 4431 23 december 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 7/2019 (From the District Court of Momba at Chapwa, Criminal Case No. 159/2018) YERADI ADAM NSHINSHI......................... APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT Date of last Order: 2 9h .9.2020 Date of Judgment: 23th December 2020 Dr. A. J. Mambi, J. The appellant in this appeal is appealing against Ruling made by the trial Court. In his appeal the appeal is challenging the decision of the trial court to proceed the case with another witness without taking into account that the heating could end into failure of justice. The appellant Counsel argued that since the other Magistrate Hon.Mpangule disqualified herself, the incoming magistrate could have started the matter (hearing) afresh. He argued that the appellant was denied right to be heard which the magistrate ignored the concern raised by the appellant. The appellant also claimed that the trial magistrate made a wrong decision by ruling that PW1 was a foreigner without proof. In response, the respondent briefly submitted that the grounds of appeal by the appellant has no merit since the trial magistrate was right in her decision. The learned State Attorney submitted that was on transit that it was not easy to recall the witness (Nasra Alyy Abdi) who was a Kenyan. He argued that recalling a witness from Kenya while the court has no facilities to handle will cause injustice. I have carefully gone through the records and the relevant law. Before thoroughly looking into the grounds of appeal I have noticed and observed the proceedings and judgment by the trial magistrate have some errors which may render it invalid. It is clear from the record that initially one Magistrate disqualified herself from the matter while one witness was not cross- examined and the other Magistrate (Hon.Magezi) took over to proceed with the matter. It is also on the record the incoming did not commence the matter afresh apart from proceeding with another witness. Even the prosecution admitted by saying that the witness could have not been summoned from Kenya just for cross-examination. Indeed with the advancement of technologies that has been deployed by the Court in Tanzania it could be impossible for the witness to testify online. I am also aware that our law have been reformed to take on board for the witnesses to testify online since 2011. For instance section 4 of The Written Laws(Miscellaneous) Amendments) Act, No.3 2011 amended the provision of the Evidence Act Cap 6 [R.E.2019] by inserting the phrase "being physically present at the time of making the statement or by use of other means of communication including teleconference or video conference" between the words "witnesses'" and "in relation to" which extends the definition of the term "oral evidence” to envisage virtual presence of witnesses in court when testifying to matters within their knowledge. It follows that with technological development, it is possible today to have witnesses testifying to matters within their knowledge even without being physically present in court and without violating rules of evidence as to adduction of evidence. In this regard the argument by the Prosecution that the court has no facility to summon the witness who is in Kenya has no merit. In this regard if the accused/appellant was not availed to cross-examine the witness, it means he was denied right to be heard. In other words the appellant was not availed with the right to cross-examine the witness. This as good as saying the accused/the appellant was denied right to be heard. In view of the above findings, I am of the settled mind that, failure for the court to avail the accused/ appellant with right to cross-examine the witness leaves doubt as to whether the appellant was vailed the right to be heard. In view of the foregoing shortcomings, it is evident that the appellant did not receive a fair trial in court. This court can also borrow a leaf from the relevant persuasive decisions from other common law jurisdictions such as England in a persuasive decision of Kanda v. Government of Malaya [1962]2 WLR 1153 on page 1162 as noted above. In my firm view, this implies that the right to be heard was not fully availed to the appellant. Reference can also be made to the decision made Appeal by the Court of Appeal in MEYYA-RUKWA AUTO PARTS & TRANSPORT LIMITED vs. JESTINA GEORGE MWAKYOMA Civil Appeal No.45 of 2000 where it was held that: “In this country, natural justice is not merely principle of common law, it has become a fundamental constitutional right. Article 13(6) (a) includes the right to be heard amongst the attributes of the equality before the law, and declares in part” “Wakati haki na Wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa mahakama au chombo kingine kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu”. The Court of Appeal in ABBAS SHERALLY & ANOTHER VS. ABDUL (supra) reiterated that: “....That right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard, because the violation is concerned to be a breach of natural justice.” Now if the court proceed with the matter and made the decision on the mention date in the absence of the appellant, can it be said the appellant received a fair trial?. The answer is obviously NO. My reasons are based on the fact that the trial magistrate misdirected himself and made a gross mistake by not complying with the provisions of the law. Looking at the records, I am of the settled mind that this court has satisfied itself that there is a need of revising the legality, irregularity, correctness and propriety of the decision made by the CMA. Having established that in this case both CMAhas failed to follow the legal principles that renders the proceedings and judgments incompetent, the question is, can such omission or irregularity occasioned into injustice to any party if the matter is remitted back to determined afresh? Having established that in this case the trial magistrate has failed to comply with the legal principles of the, the question is, has such omission or irregularity occasioned into injustice to the appellant?. In my considered view since the appelant was denied the right to behaerd, the best way and for the interest of justice is consider whether the matter be tried denovo or not. It is trait law that before any appellate court makes an order for retrial or trial de novo, the court must find out as to whether the original trial order was illegal or defective and whether making such order (retrial or trial de novo) and will create more injustice to the accused person. I wish to refer the decision of court in Fatehali Manji V.R, [1966] EA 343, cited by the case of Kanguza s/o Machemba v. R Criminal Appeal NO. 157B OF 2013. The Court of Appeal of East Africa restated the 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 ofjustice 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 any party if this court orders the remittal of the file for the trial court to properly deal with the matter immediately. The Court should consider this matter as priority on and deal with it immediately within a reasonable time to avoid any injustice to the appellant resulting from any delay. It should be noted that all appeals that are remitted back for retrial or trial de novo need to be dealt expeditiously within a reasonable time. Having observed that the proceedings at the Trial Court was tainted by irregularities, I find no need of addressing other grounds of appeal. For the reasons given above, I nullify the proceedings and order of the Trial Court and any order made thereto. This matter is remitted to the Resident Magistrates’ to be freshly determined. Given the circumstances of this case, this court orders the mater be heard de novo by the same court but chaired by a different Magistrate. If the parties are interested to proceed prosecuting their case, they should all be summoned to appear within reasonable time. Where it appear that the trial magistrate has ceased jurisdiction for one reason or another, in terms of section 214 (1) of the CPA another magistrate should be assigned the case to proceed with trial, compose and deliver the judgment. The Trial Court should consider this matter as priority on and deal with it immediately within a reasonable time to avoid any injustice to the appellant resulting from any delay. It should be noted that all appeals that are remitted back for proper conviction or sentencing need to be dealt expeditiously within a reasonable time. JUDGE 28/12/2020 Judgment delivered in presence of all parties this Day of 28th of December 2020 ___—------- ______ __ A. MAMBI JUDGE 28/12/2020 Right to appeal is explained n aTmambi JUDGE 28/12/2020