REPUBLIC v ATHUMANI RAJABU & OTHERS 1989 TLR 44 (HC)

 REPUBLIC v ATHUMANI RAJABU & OTHERS 1989 TLR 44 (HC)

Court High Court of Tanzania- Mtwara

Judge Kazimoto J

7 April, l989

Flynote

Criminal Practice and Procedure - Charges - Circumstances for amending a charge. B

Criminal Practice and Procedure - Bias - Determination of bias on the part of the trial

magistrate.

-Headnote

This was a complaint lodged against the trial magistrate for being biased against one,

C Raphael Binali. In the original case three people were charged with shop breaking

and stealing c/s 296(1) and 265 of the Penal Code. When PW1 was testifying in court

he mentioned one, Raphael Binali as being one of the persons from whom the stolen

items D were recovered. At this juncture the trial magistrate ordered that the charge

be amended and the said Raphael Binali be joined as one of the accused persons. It is

this step that led to the complaint.

Held: (i) Section 234(1) of the CPA only empowers the court to amend the charge E

where, on the face of it, it appears to be defective either in substance or in form but

does not empower the court to order that a person be included in a charge sheet;

(ii) by ordering the inclusion of Raphael Binali in the charge sheet the

magistrate F had usurped the powers of the prosecution and for that reason he was

biased.

Case Information

Order accordingly.

[zJDz]Judgment

Kazimoto, J.: A complaint has been lodged that the learned Principal District G

Magistrate has assumed the powers of a prosecutor while at the same time

adjudicating upon a case. It was alleged that the trial magistrate would not do any

justice to the accused concerned as he appeared to be biased. On perusing the record I

find the complaint valid. The circumstances of the allegation are as follows. H

The shop of the complainant was broken into and a number of items were stolen. In

the course of investigation the three accused persons were charged with shop

breaking and stealing c/s 296(l) and 265 of the Penal Code. A number of stolen items

were recovered from various people, including one Raphael Binali whom the

prosecution had called as a I witness against the original accused

1989 TLR p45

KAZIMOTO J

persons. In the course of his evidence the complainant, PW1 said this: A

In the presence of the OCS at the police station he, the first accused, said

clothes were at Mangaka with Raphael Binali. I went with Mr. Yahaya to Mangaka

with the OCS Mangaka Police B Post and we recovered 7 pairs vitenge and kanga 9

pairs from his shop. I identified this. Raphael said he bought them from Aman from

Namatumbusi village then he changed his story to say he had got them from 1st

accused. C

At this juncture the trial magistrate interjected:

Court to P.P

Raphael Binali is outside the court house. D

Order: I strongly form an impression that Raphael Binali is a suspect. In that

the charge is defective hence the prosecution's failure to include him as an accused

person for reasons unknown.

He be brought into the dock and join his colleagues as an accused No. 4. E

The defective charge is amended accordingly by inclusion of the said Raphael

Binali as the 4th accused as well as his personal particulars. This is done in terms of

section 234(1) F Criminal Procedure Act.

Sgd. C.H. Msamati

Principal District Magistrate G

Section 234 (1) of the Criminal Procedure Act 1985 states:

(1)Where at any stage of a trial, it appears to the court that the charge is

defective, either in H substance or form, the court may make such order for

alteration of the charge either by way of amendment of the charge or by substitution

or addition of a new charge as the court thinks necessary to meet circumstances of the

case unless, having regard to the merits of the case, the required amendments cannot

be made without injustice and all amendments made under I the provisions of this

sub-section

1989 TLR p46

KAZIMOTO J

shall be made upon such terms as to the court shall seem just (emphasis

added). A

In my view subsection 1 of section 234 CPA only empowers the court to amend the

charge where, on the face of it, it appears to be defective either in substances or in

form. B It does not empower a court of law to order that a person be included in a

charge sheet. The fact that a would be suspect, in the mind of the magistrate, has been

omitted cannot make the charge defective either in form or substance. The powers of

the prosecution and the courts are clearly defined and understood. Clearly the learned

C Principal District Magistrate had usurped the powers of the prosecution when he

ordered Raphael Binali to be charged and abdicated his role as a magistrate. He had

become the prosecutor and the magistrate at the same time against Raphael Binali. He

has grossly erred in this.

The effect is that he has ceased to be an impartial adjudicator in the whole case. He is

D biased. It has been said:

It is not merely of some importance, but it is of fundamental importance that

justice should not only be done but should manifestly and undoubted be seen to be

done. E

Nothing is to be done which creates even a suspicion that there has been an

improper interference with the course of justice. F

This was the message of Lord Howart, the Lord Chief Justice of England in Rex v

Sussex Justice exparte MacCarthy [1924]1K. B at page 259.

Dealing with the issue of bias Lord Denning M.R. has stated in Metropolitan

Properties Co. (F.G.C.) Ltd. v Lannon [l969] 1 Q B 577 at page 599, with which G

passage I respectfully agree, that:

In considering whether there was a real likelihood of bias, the court does not

look at the mind of the justice himself or at the mind of the Chairman of the tribunal

or whoever it may be, who H sits in a judicial capacity. It does not look to see if

there was a real likelihood that he would or did, in fact, favour one side at the

expense of the other. The court looks at the impression which would be given to

other people. I

1989 TLR p47

KAZIMOTO J

Even if he was as impartial as could be, nevertheless if right minded persons

would think that, A in the circumstances, there was a real likelihood of bias on his

part, then he should not sit. And if he does sit, his decision cannot stand.

Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture

is not enough. There must be circumstance from B which a reasonable man would

think it likely or probable that the justice or Chairman, as the case may be, would or

did favour one side unfairly at the expense of the other. The court will not inquire

whether he did, in fact, favour one side unfairly. Suffice it that reasonable people

might think that he did. The reason is plain enough. Justice must be rooted in

confidence, and C confidence is destroyed when right - minded people go away

thinking: The judge was biased.

What did those people who attended the court on that day think when the magistrate

D ordered Raphael Binali to be included in the charge sheet. They must have thought

that Raphael Binali would not have full justice done to him, that he was going to be

convicted because the learned principal district magistrate had already formed a

"strong impression" against him. I have no doubt that the trial magistrate had already

made up his E mind when he included Raphael Binali as an accused person. I find

that the trial magistrate was biased.

And because the learned principal district magistrate has usurped the powers of the F

prosecution and abdicated his role as a magistrate and this becoming a prosecutor and

a magistrate and for the bias he had shown against Raphael Binali I now quash the

whole proceedings and set aside the order to charge Raphael Binali, who incidentally

the DPP had entered a nolle prosequi in his favour, and order that the case be tried

afresh G against the original accused as per charge sheet. It is directed that the trial

de novo should be conducted by another magistrate of competent jurisdiction.

H Order accordingly.

1989 TLR p48

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