STEPHEN NGONYANI v REPUBLIC 1989 TLR 53 (HC)

 

STEPHEN NGONYANI v REPUBLIC 1989 TLR 53 (HC)

Court High Court of Tanzania- Dodoma

Judge Ruhumbika J

18 April, 1989 G

Flynote

Criminal Practice and Procedure - Successive trials - Statutory duty on the magistrate

taking over - Whether it is mandatory for accused to be informed of his right to have

witnesses who had previously testified resummoned and reheard. H

-Headnote

Appellant, from a trial which could not be completed by one magistrate and was

taken over by another magistrate, was convicted of the offence of stealing by a person

employed in the public service c/ss 265 and 270 of the Penal Code. Appellant I

appealed against both conviction and sentence. Counsel for the appellant argued on

1989 TLR p54

RUHUMBIKA J

appeal that failure by the second trial magistrate to inform the appellant of the right

to A have witnesses who had given evidence before the first trial magistrate

resummoned and reheard was prejudicial and caused injustice to the appellant and

abrogated the provisions of s.2l4(2)(a) of the Criminal Procedure Act, 1985. B

Held: Section 214(2)(a) of the Criminal Procedure Act imposes a mandatory duty on a

second trial magistrate to inform the accused of his right to have witnesses who have

testified recalled and testify afresh. Failure to comply with the section is an incurable

irregularity. C

Case Information

Appeal allowed.

Cases referred to.

l. R. v Maulidi s/o Mkuba [l974] LRT n. 44

2. Romenisele s/o Elisawe v R. [l967] HCD no. 75. D

[zJDz]Judgment

Ruhumbika, J.: The appellant, Stephen Ngonyani, was convicted by the District Court

of Dodoma of the offence of stealing by a person employed in the public service c/s

265 of the Penal Code. E

He was charged with having stolen various sums of money, in four different counts.

The money was supposed to be paid out as salaries to junior policemen serving in the

Field Force Unit of the Police Force at Dodoma, where the appellant was attached and

F served as a Police Inspector and Officer Commanding Field Force Unit.

The appellant was found guilty and convicted on all the four counts and sentenced to

concurrent sentences under the Minimum Sentences Act, l972 as follows:

lst Count: Three years of imprisonment. G

2nd Count: Three years of imprisonment.

3rd Count: Three years of imprisonment.

4th Count: Five years of imprisonment.

The appeal is against the convictions and sentences. Mr. Rweyongeza, learned H

advocate based at Dodoma, argued the appeal. Mr. Benne, learned Stated Attorney,

represented the respondent Republic.

There were seven grounds of appeal in the petition of appeal, but Mr. Rweyongeza I

dropped ground number two and argued on only six such grounds.

1989 TLR p55

RUHUMBIKA J

The first ground of appeal in the petition of appeal is couched as follows: A

That the learned Resident Magistrate being the second trial magistrate erred in

law in denying the appellant the right to resummon witnesses who had testified

before his predecessor. B

It was here argued for the appellant that failure by the successive trial magistrate to

inform the appellant of his right to have the witnesses who had given evidence before

the first trial magistrate re-summoned and re-heard was prejudicial and caused

injustice C to the appellant. Therefore, such an omission was in abrogation of the

provisions of section 214(2)(a) of the Criminal Procedure Act, l985 (Act No. 9 of

l985), which provisions created a statutory duty on the successive magistrate to

inform the appellant of his right under that section. D

According to the record of the lower court, the appellant was first tried by Mr.

Mammba, District Magistrate, as from the 13th May, 1986, up to the 6th August, l986.

He recorded the evidence of ten witnesses for the prosecution. E

On the 29th August, l986, Mr. Shangwa, Resident Magistrate, took over the trial.

There were no reasons on record for this move but most likely Mr. Mammba, District

Magistrate, might have moved on transfer. The successive magistrate did not comply

with the provisions of section 214(2)(a) of the Criminal Procedure Act, l985. That is

to F say, he did not inform the appellant that he had the right to have the witnesses

who had testified before Mr. Mammba re-summoned and re-heard. The second trial

magistrate continued with the hearing and recorded the evidence of PW11, PW12

and PW13. Thereafter, the prosecution case was closed. The appellant was put on his

G defence, and made a sworn statement. He called no witnesses. The successive

magistrate acted on the evidence of ten witnesses for the prosecution who gave

evidence before Mr. Mammba, and acted on the evidence of only three witnesses who

testified before him. Most of the material evidence had been given by the witnesses

H who gave evidence before the first trial magistrate. The second trial magistrate did

not have the opportunity to observe their demeanor and evaluate their credibility.

Section 214 of the Criminal Procedure Act, l985, is as follows:

214(1) Where any magistrate, after having heard and recorded the whole or

any part of the I evidence in any trial or

1989 TLR p56

RUHUMBIKA J

conducted in whole or part any committal proceedings is for any reason

unable to complete A 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 who exercises jurisdiction may take over and continue with

the trial or committal proceedings as the case may be and the magistrate so taking

over may act on the evidence or proceeding recorded by B 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). C

(2)Whenever the provision of subsection (1) applies -

(a) in any trial the accused may, when such other magistrate commences

his D proceedings, demand that the witnesses or any of them be re-summoned and

re-heard and shall be informed of such right by the other magistrate when he

commences his proceedings.

(b) the High Court may, whether there be an appeal or not, set aside any

conviction E passed on evidence not wholly recorded by the magistrate before the

conviction was heard, if it is of the opinion that the accused has been materially

prejudiced thereby F and may order a new trial. (emphasis added).

There are several decisions relating to non-compliance with the provisions of (the G

former) section 196 of the Criminal Procedure Code. See the provisions of the new

section 214 of the Criminal Procedure Act, l985. But the court was referred to only

one of those decisions. That is the decision in the case of R. v Maulidi s/o Mkuba

[l974] LRT no. 44. The trial of the accused in that case was conducted by two H

different magistrates. The second magistrate did not comply with the provisions of

section l96(1) of the Criminal Procedure Code. The case went before the High Court

on revision. The court held, inter alia, that:

(1) Where a magistrate proceeds with a trial under the provisions of s. 196

Criminal I Procedure Code, Cap. 20

1989 TLR p57

RUHUMBIKA J

from where his predecessor had left off, it is his duty to bring to the

notice of the A accused person of his right to have the witnesses or any of them who

have already testified before the predecessor magistrate in the same case, resummoned

and re-heard as is required by the proviso to s.196(1) Criminal Procedure

Code. B

(2) ...

(3) The requirement is essential as it is intended to give an opportunity to

the trial magistrate to hear the evidence himself in order to make a sound assessment

of the evidence as a whole. C

(4) ...

(5) ...

(6) The High Court on appeal is not bound to uphold such conviction if it

is of the opinion that the accused has been materially prejudiced. D

(7) ...

(8) ...

In that case, the conviction was quashed and the sentence set aside. E

Mr. Benne, learned State Attorney, conceded that the second trial magistrate did not

comply with the provisions of section 214(2)(a) of the Criminal Procedure Act, 1985.

However, he argued that the omission did not prejudice the case for the appellant

because ten witnesses were heard by the first trial magistrate and three were heard by

the second trial magistrate. F

With respect to the learned State Attorney, it is difficult to see the logic of his

argument. Because it is reasonable to say that the second trial magistrate was at a

greater disadvantage as he was faced with a situation whereby he had to evaluate and

act on G the evidence of ten witnesses from whom he did not record that evidence

and had no opportunity of assessing the demeanor and credibility of such witnesses.

Of the two magistrates, it is obvious that the first trial magistrate was better placed in

the understanding of the case as against the second trial magistrate. H

It is obvious that the appellant was materially prejudiced by the manner his trial was

conducted by the two magistrates.

The words used in section 214(2)(a) of the Criminal Procedure Act, l985, are: "Shall

be informed of such right". That is to say, the second magistrate who took over the

trial of the appellant should have informed him of his right to have the witnesses who

had I given

1989 TLR p58

RUHUMBIKA J

evidence before Mr. Mammba or any of them re-summoned and re-heard. In the A

earlier case of Remenisele s/o Elisawe v R. [l967] H.C.D. n 75, while stressing the

essence of complying with the provisions of section l96 of the Criminal Procedure

code, the court had this to say:

(1) The discretion given to a magistrate by the Criminal Procedure Code

section l96 B should be exercised with great care, for the primary purpose of the

hearing is to permit the court to observe the demeanor and evaluate the credibility of

all the witnesses. In the present case the charges were grave and the accused

vigorously C contested the allegations of the prosecution's witnesses.

(2) Criminal Procedure Code section l96(a) permits the accused to demand

that witnesses heard by the first magistrate be re-summoned and re-heard and

provides D that the accused "shall be informed of such right by the second

magistrate ..." There is no record that the accused was so informed.

In that case, the accused was convicted of forgery and theft. The magistrate who E

commenced the case heard the evidence of the prosecution and after a recess of three

months, heard some of the defence witnesses. After another recess a second

magistrate replaced the first who had been transferred to another district. Exercising

his discretion under the Criminal Procedure Code section l96, the second magistrate

elected not to F re-commence the trial but to hear only the remaining portion of the

case. A new trial was ordered in that case. This earlier case was cited with approval by

this court in the subsequent case of Maulidi (supra).

The appellant was convicted on the 17th June, l987, and his case, as observed earlier,

G involves four counts relating to various sums of money he is alleged to have stolen

in the course of his employment.

In the interests of justice, the course open to the court is to order a hearing de novo.

Accordingly, under the provisions of section 366(1)(a)(i) of the Criminal Procedure H

Act, 1985, the proceedings in the lower court are quashed and the decision therein set

aside and it is hereby ordered that the appellant be re-tried in the District Court of

Dodoma but before another magistrate with competent jurisdiction to try the case. I

Appeal allowed.

1989 TLR p59

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