THABIT WILLA ISMAIL v REPUBLIC 1987 TLR 187 (HC)

 

THABIT WILLA ISMAIL v REPUBLIC 1987 TLR 187 (HC)

Court High Court of Tanzania - Mtwara

Judge Kyando J

December, 1987

Flynote

Criminal Practice and Procedure - Witnesses - When accused has a right to have F witnesses

who have already testified to be recalled - Requirement that accused be informed about this

right - S.214(2)(a) Criminal Procedure Act, 1985.

-Headnote

This case was heard by two magistrates. The first heard the evidence of two witnesses G out of

the total number of three. When the second magistrate took over he did not inform the accused

of his right to have the witnesses who had already testified to be recalled and reheard. He

proceeded with the case convicted and sentenced the accused. H On appeal the procedure

adopted by the trial court was attacked.

Held: After complying with s.214(2)(a) of the C.P.A. the learned resident magistrate who

convicted the appellant should have recorded his answer - whether he wished the I witnesses

who had testified before the first resident magistrate to be recalled or not.

1987 TLR p188

KYANDO J

Case Information

Appeal allowed. A

Case referred to:

Katuale & Anor. v R. [1971] HCD n.46

Boaz for respondent B

[zJDz]Judgment

Kyando, J.: This case was heard by two magistrates. A total of three witnesses testified for the

prosecution. The first Magistrate who heard the case, B.M. Luanda, R.M., heard the evidence of

two of these witnesses. Then G.M. Nkwera took over. On taking C over and before he

continued with the hearing of the case he made the following note:

Ct! 8. 214 of Cr.P.A. complied with

Sgd. G.M. Nkwera, RM D

23.1.86.

S.214 of the CPA provides as follows:

214 - (1) Where any Magistrate, after having heard and recorded the whole or any part of

the E evidence in any trial or conducted in whole or in part any committal proceedings is for

any reason 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 the F

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 resummon

the witnesses and recommence the trial or the committal or otherwise subject to

subsection (2). G

(2) Whenever the provisions of subsection (1) apply -

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

proceedings, demand that the witnesses or any of them be re-summoned and reheard H 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 I on evidence not wholly recorded by the Magistrate before the

1987 TLR p189

KYANDO J

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

prejudiced thereby and may order a new trial.

At the commencement of the hearing of the appellant's appeal in this case, Mr. Boaz, B learned

State Attorney representing the Republic, made the following submissions to this Court:

(1) Although the Resident Magistrate says at page 8 of the typed proceedings that

s.214 CPA was complied with, there is no record of the answer given by the accused. C

(2) The evidence given by the witnesses who had testified before the first Magistrate

was very crucial to the case. It is my view that they should have been re-called to testify before

the convicting Magistrate so that he could have the opportunity of seeing them D testify. I

believe that the appellant was prejudiced by the failure of the Resident Magistrate to re-call

these witnesses. I was wondering whether this court should not invoke the provisions of s.

214(2)(b) of the CPA in this case therefore. E

The learned State Attorney also submitted that because the appellant has served a considerable

part of his term in jail I should consider not ordering a re-trial. F

He referred me to the case of Katuale & Anor. v R., [1971] HCD n. 46 in which Kisanga Ag. J. (as

he then was) held, inter alia that the fact that an appellant has already been in custody for some

time is a consideration to be taken into account in deciding whether or not to order re-trial, but

this is not the only consideration. The G decision should depend on consideration of all the

facts and circumstances of each particular case. In the instant case Mr. Boaz submitted that the

appellant was convicted and sent to jail on 3.3.86. He has been in prison for over a year now.

He suggested that this is a long enough period the appellant has served and a re-trial under the

circumstances should not be ordered. H

With respects I agree with Mr. Boaz's submissions. I am of the view that after complying with S.

214 (2) (a) of the CPA, the learned Resident Magistrate who convicted the appellant should have

recorded appellant's answer - whether he wished I the witnesses who had testified before the

first Magistrate to be re-called or not. I think this follows naturally from the provisions of the

law that require

1987 TLR p190

that the accused "shall be informed of such right by the second magistrate" as they are in A s.

214(2)(a) of the CPA. As the position is now, we do not know what he (the appellant) said after

Resident Magistrate complied with S.214 of the CPA as he states in the proceedings.

I also agree that the appellant was materially prejudiced as PW1 and PW2 who did not B testify

before the second Magistrate were the crucial witnesses for the prosecution. Finally, I agree

with Mr. Boaz that an order for a retrial would be inappropriate in this case.

Accordingly I allow the appeal, quash the conviction of the appellant and set aside the C

sentence imposed on him. I order that he be released from prison immediately unless he is being

held there for another lawful cause.

D Appeal allowed.

1987 TLR p190

E