Fulgence Fortunatus & another v. Republic, Cr app no 20 of 2005 (armed robbery)

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM:   LUBUVA, J.A., RUTAKANGWA, J.A., And KIMARO, J.A.)

CRIMINAL APPEAL NO. 20 OF 2005

          1. FULGENCE FORTUNATUS

2. MICHAEL RAPHAEL MUSHI ……………………. APPELLANTS

VERSUS

THE REPUBLIC ……………………………………… RESPONDENT

(Appeal from the decision of the High

Court of Tanzania at Moshi)

(Mwaikugile, J.)

dated the 16^th day of December, 2004

in

Criminal Appeal No. 100 of 2002

--------------

ORDER OF THE COURT

27 September & 4 October 2006

RUTAKANGWA, J.A.:

         In Criminal Case No. 1118 of 2000 in the District Court of Moshi, Elisamia Onesmo, Fulgence Fortunatus, Michael R. Mushi, Ewald G. Lekule, Stephen Kimaro and Justine K. Sariko were charged with the offence of armed robbery contrary to sections 285 and 286 of the Penal Code.  Having denied the charge a trial proceeded under the provisions of the Criminal Procedure Act, 1985 (The C.P.A. hereinafter).

        In all the prosecution called six (6) witnesses, who testified before Mrs. Moshi, learned Resident Magistrate.  The prosecution closed its case on 15^th October, 2001 and the learned trial Resident Magistrate reserved her ruling on whether or not the Accused persons had a case to answer.  Unfortunately, however, before she could write the ruling she ceased to have jurisdiction in the trial court.  Consequently, the case was re-assigned to Mr. P. Bampikya, learned Resident Magistrate for continuation or otherwise of the trial under section 214 of the C.P.A.  The second trial magistrate formally took over the conduct of the trial on 10^th December, 2001.

        Upon taking over the trial of the case the learned second trial magistrate proceeded to write and deliver the ruling which the first trial magistrate had, for obvious reasons, failed to write.  Only Elisamia Onesmo, Fulgence Fortunatus and Michael R. Mushi were found to have a case to answer.  Eventually these three accused persons were found guilty as charged, convicted and sentenced to thirty (30) years imprisonment each and twelve (12) strokes of the cane each.  Being aggrieved by the conviction and sentences they each appealed separately to the High Court at Moshi.

        The appeal by Elisamia Onesmo was heard first by Munuo, J (as she then was) and dismissed on 7^th January, 2003.  He was aggrieved and appealed to this Court vide Criminal Appeal No. 160 of 2003.  The appeals by Fulgence Fortunatus and Michael R. Mushi Numbers 100 and 101 of 2002 respectively, were consolidated and heard by Mwaikugile, J. who dismissed them on 16^th December, 2004.  Being aggrieved, they again separately appealed to this Court.  Coincidentally, both appeals were registered as Criminal Appeal No. 20 of 2005.

         The memoranda of appeal contain a litany of grievances against the decisions of the trial District Court and the High Court.  For the reason which we shall shortly show we have found it unnecessary to canvass these grounds of appeal either separately or collectively.  Suffice it to say here that the two appeals, for obvious reasons, were consolidated under Rule 62 of the Rules of the Court, 1979 and heard together.

        Fortunately, when these appeals were called on for hearing, we had already heard Criminal Appeal No. 160 of 2003 and reserved our judgement.  One of the most pertinent grounds of appeal in that appeal was that the proceedings before Mr. Bampikya,  Resident Magistrate were vitiated by his failure to comply with the provisions of section 214 of the C.P.A. before it was amended by Act No. 9 of 2002.  At the time when the second trial Resident Magistrate took over, he was, in terms of section 214 (2) (a) of the C.P.A. mandatorily required to inform the appellants of their right to have the witnesses who had testified before the first trial Resident Magistrate re-summoned and re-heard if they so wished.  He did not do so.

        In view of this undisputed fact, after consolidating these two appeals, we invited Mr. Kaishozi, learned State Attorney who was representing the Respondent Republic to address us first on this issue.  He was quick to point out that the second trial Resident Magistrate’s failure to comply with the mandatory provisions of section 214 (2) (a) of the C.P.A. vitiated the entire proceedings before him and the judgement therefrom.  He went on to submit that as the proceedings before the High Court in Criminal Appeal Numbers 100 and 101 of 2002 and the judgement therefrom were based on proceedings in the District Court which were partly a nullity, they ought also to be declared a nullity.  He ended his submission urging us to quash the proceedings before Mr. Bampikya, Resident Magistrate and the High Court and order a retrial from the stage when the second trial magistrate took over the trial.

        In our considered judgement in Criminal Appeal No. 160 of 2003 between Elisamia Onesmo and The Republic which has just been delivered, we followed the course advanced by Mr. Kaishozi.  For similar reasons set out in the said judgement we nullify, quash and set aside the proceedings before the second trial magistrate and the judgement therefrom, as well as the proceedings in the High Court and the judgement therefrom.  We order a re-trial in the same court from the stage when the second trial magistrate took over, in compliance with the law as it was on 10^th December, 2001.  The conviction and sentences are also set aside.

        As we directed in Criminal Appeal No. 160 of 2003, the re-trial should commence promptly without any further delay.

DATED at ARUSHA this 4^th day of October, 2006.

D. Z. LUBUVA

JUSTICE OF APPEAL

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(S. M. RUMANYIKA)

DEPUTY REGISTRAR

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