IN THE COURT OF APPEAL OF
AT ARUSHA
(CORAM: LUBUVA, J.A., RUTAKANGWA, J.A., And
KIMARO, J.A.)
CRIMINAL
APPEAL NO. 160 OF 2005
ELISAMIA
ONESMO …………………………………. APPELLANT
VERSUS
THE REPUBLIC
……………………………………… RESPONDENT
(Appeal from
the decision of the High
Court of
Tanzania at Moshi)
(Munuo,
J.)
dated the 7th
day of January, 2003
in
Criminal
Appeal No. 65 of 2002
--------------
JUDGMENT
OF THE COURT
21 September & 4
October 2006
RUTAKANGWA, J.A.:
This
is an appeal against the judgement of the High Court of Tanzania which
dismissed the appeal of the appellant.
In that appeal the appellant was challenging the judgement of the
District Court of Moshi in Criminal Case No. 1118 of 2000
Before the
trial District Court the appellant and five others, namely Fulgence Fortunatus,
Michael R. Mushi, Ewald G. Lekule, Stephen Kimaro and Justine Kimaro Sariko
were charged with the offence of armed robbery contrary to sections 285 and 286
of the Penal Code. They all denied the
charge and a trial proceeded before Ms. Moshi, learned Resident
Magistrate. Ms. Moshi heard and recorded
the evidence of all the prosecution witnesses who were six in total. The prosecution side closed its case on 15th
October, 2001. The learned trial
Resident Magistrate then reserved her ruling on whether or not the accused
persons had a case to answer.
Apparently, before she prepared the reserved ruling, she was transferred
to another station and could not continue with the trial to its logical
conclusion. The case was then assigned
to another Magistrate Mr. P. Bampikya, learned Resident Magistrate, for
continuation of the trial, under section 214 (1) of the Criminal Procedure Act,
1985 (The C.P.A.) before it was amended by Act No. 9 of 2002 which came into
force after the commission of the offence and trial subject of this
appeal. Mr. Bampikya formally took over
the case for the purpose of continuing the trial on 10th
December, 2001. We find it appropriate at this juncture to reproduce the
relevant provisions of the said section 214 of the C.P.A.
These are
subsections (1) and (2) which read as follows before the section was amended by
Act No. 9 of 2002:-
“214
– (1) Where any magistrate, after having
heard and recorded the whole or any part of the evidence in any trial or conducted
in whole or part any committal proceedings is for any reason unable to complete
the trial or the committal proceedings or he is unable to complete the trial or
committal proceedings within a reasonable time, another magistrate who has and
exercises jurisdiction may take over and continue the trial or committal
proceedings as the case may be and the magistrate so taking over may act on the
evidence or proceedings recorded by his predecessor and, may in the case of a
trial re-summon the witnesses and recommence the trial or the committal
proceedings or otherwise subject to subsection (2).
(2) Whenever
the provision of subsection (1) applies:-
(a)
in any trial the accused
may, when the (sic) such other magistrate commences his proceedings demand that
the witnesses or any of them be re-summoned and re-heard and shall be
informed of such right by the second magistrate when he commences his
proceedings.
(b)
The High Court may, whether
there be an appeal or not, set aside any conviction passed on evidence not
wholly recorded by the magistrate before the conviction was had, if it is of
the opinion that the accused has been materially prejudiced thereby and may
order a new trial.” (emphasis is ours).
In the subsequent proceedings which
eventually led to the conviction of the appellant, the learned second trial
Resident Magistrate did not comply at all with the provisions of section
214 (1) and (2) of the C.P.A. extracted above.
Needless to over emphasize here is the fact that subsection (2) (a) is
couched in mandatory terms. Instead,
upon taking over the trial of the case, without much ado, the second trial
Resident Magistrate proceeded to write the reserved ruling which he delivered
on 7th February, 2002. The
appellant, Fulgence Fortunatus and Michael R. Mushi were found to have a case
to answer while the rest were acquitted under section 230 of the C.P.A. Thereafter, acting on the evidence wholly
recorded by his predecessor, the second trial Resident Magistrate found the
three accused persons guilty as charged, convicted them and sentenced them to
thirty (30) years imprisonment each and twelve (12) strokes of the cane
each. The convictions of the appellant
and his colleagues were based primarily on the visual identification evidence
of some of the prosecution witnesses whom the second trial magistrate found to
have been truthful. Being aggrieved by
the conviction and sentence the trio appealed, but separately, to the
High Court at Moshi. The appeal of the
appellant which was heard first by a different judge was found wanting in
merits. It was accordingly dismissed in
its entirety. Again he was dissatisfied
with the outcome of the appeal and hence this appeal.
At his trial and in the High Court the
appellant was advocated for by Mr. Urio, learned advocate. In this appeal he is being represented by Mr.
Njau, learned advocate. Mr. Njau has
filed a memorandum of appeal, containing four (4) grounds of appeal. At the hearing of the appeal Mr. Njau
abandoned the third ground. The
remaining grounds of appeal attacked the trial Resident Magistrate and the
appellate judge for erring in law and on the facts in convicting the appellant
as charged in the absence of any credible evidence incriminating him and on the
basis of the identification parade evidence which parade was allegedly
conducted unlawfully. The other ground
of complaint is that the learned second trial magistrate never complied with
the mandatory provisions of section 214 of the C.P.A. as it stood at the time
he took over the trial.
In this appeal, the respondent Republic
was represented by Mrs. Lyimo, learned Principal State Attorney.
We shall first deal with the legal
consequences of the failure by the trial Resident Magistrate to comply with the
provisions of section 214 (1) and (2) (a) of the C.P.A. as it stood on 10th
December 2001, an issue which was never considered by the learned judge on
first appeal in the High Court.
Submitting
in support of this ground of appeal, Mr. Njau urged us to accept it as a fact
that the second trial magistrate did not address his mind on the provisions of
the said section 214 (1) of the C.P.A.
As a result, Mr. Njau submitted, the second trial magistrate did not
inform the appellant of his right to demand the witnesses who testified before
Ms. Moshi, Resident Magistrate, to be re-summoned and re-heard. To him, the second trial magistrate had a
duty to do so as the provisions of the then section 214 (2) (a) before its
amendment were couched in mandatory terms.
According to him failure to do so was fatal to the subsequent proceedings
before Mr. Bampikya, Resident Magistrate.
He urged the Court to declare the proceedings a nullity including the
judgement of the trial court. Carrying
his argument further Mr. Njau submitted that since the proceedings in the High
Court were premised upon invalid proceedings before Mr. Bampikya, Resident
Magistrate, the subsequent proceedings in the High Court and the judgement
therefrom should also be declared a nullity, quashed and set aside and a
re-trial to be ordered.
On her
part, Mrs. Lyimo who had earlier supported the conviction candidly conceded to
this glaring procedural irregularity.
She accordingly supported Mr. Njau and urged us to nullify part of the
proceedings in the trial District Court from the stage where Mr. Bampikya,
Resident Magistrate took over and order a re-trial from that stage.
That the
learned second trial Resident Magistrate did not comply with the mandatory
provisions of section 214 (2) (a) of the C.P.A. is beyond dispute. That the High Court on appeal overlooked this
irregularity and did not decide on it is also not disputed. The issue here is what are the legal
consequences of the second trial Resident Magistrate’s failure to comply with
section 214 of the C.P.A. This issue
becomes more pertinent and pressing when it is considered that the case was
decided on the basis of the credibility of the prosecution witnesses whom the
second trial Resident Magistrate had not seen testify.
Recently,
this Court, in the case of Richard
Kamugisha @ Charles Simon and 5 Others v. R., Criminal Appeal No. 59 of
2004 observed that “the courts have been cautious in situations where a single
trial is presided over by more than one magistrate”. The Court cited with approval the holding in
the case of Remebisele s/o Elisaro v. R.
(1967) HCD n.72 to the effect that:
“The
discretion given to a magistrate by the Criminal Procedure Code section 196
(now section 214 of the Criminal Procedure Act, [1985] 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 …”
As the appellant in that case was never informed of his
right to re-summon the witnesses, the conviction was quashed and a re-trial was
ordered. In more or less similar
circumstances this Court in Richard
Kamugisha’s case (supra), held as follows:-
“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 such magistrate adjudicated upon
and determined the case fairly”.
(emphasis is ours).
Finally, the Court found that the non-compliance was a
fundamental irregularity. Consequently,
the proceedings of the trial, judgement and appeal therefrom were
nullified. The Court, however, did not
order a re-trial because the Republic did not support the conviction.
In the
present appeal we are satisfied that as the law stood then, the second trial
magistrate had no discretion to inform the accused persons, including the
appellant, their statutory rights to have the prosecution witnesses re-summoned
and re-heard if it were so demanded by the accused after being informed of the
right. That he did not do so was a fatal
and incurable irregularity. The
appellant and his co-accused as already shown were convicted in a case whose
determination entirely depended upon an evaluation of the credibility of the
prosecution witnesses. As the second
magistrate who convicted the appellant never saw these witnesses, it cannot be
safely held that the appellant and his co-accused were not materially
prejudiced by this procedural irregularity.
We
accordingly nullify and set aside the proceedings in the trial district court
from 10th December 2001 onwards and the judgement therefrom. As the proceedings before the High Court in
the appeal filed by the appellant were based on void proceedings before Mr.
Bampikya, Resident Magistrate, the same as well as the judgement therefrom, are
also nullified, quashed and set aside.
Given the serious nature of the charge and the undisputed fact that the
proceedings before Ms. Moshi, Resident Magistrate were not flawed in any way,
we think it is in the interests of justice to order a re-trial in the same
court under a magistrate of competent jurisdiction, from the stage where the
second magistrate took over in compliance with the provisions of the law as it
was on 10th December, 2001.
In view of the course of action we have taken, the conviction and
sentence are also quashed and set aside.
We are
aware of the fact that the appellant was first arraigned in the year 2000. Before his conviction and sentence on 22nd
March, 2002, he was in remand prison. In
view of this the re-trial should commence as early as possible and
expeditiously conducted. It is so
ordered.
DATED at ARUSHA this 4th 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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