Magaigwa s/o Chacha and another v. R., Crim. Apps. 47-D-72 and 43-D-72, 17/5/72.

  

Magaigwa s/o Chacha and another v. R., Crim. Apps. 47-D-72 and 43-D-72, 17/5/72.

            EL-KINDY, J.: - The appellants Magaigwa s/o Chacha, who is the first appellant, and Mendo s/o Kitekero, who is the second appellant, were jointly charged with an convicted of unlawful wounding contrary to Section  228(1) of the Penal Code Cap. 16 and they were sentenced to imprisonment for two years each, subject to confirmation by the High court. They were also ordered” to compensate the complainant in the sum of Shs. 100/=”.They appealed against convictions, sentences and orders. Their appeals were consolidated and heard together………

            The record showed that on the 16^th of April, 1971 the first appellant appeared in the District Court of North Mara sitting in Tarime, before the learned Magistrate, Mr. A.G.G. Korosso, Resident Magistrate, when he was charged with the offence of grievous harm contrary to section 225 of the Penal Code cap. 16. His plea was taken and he pleaded not guilty to the charge. The first appellant was remanded in custody until the 30^th of April, 1971 but he was produced in the same court before the learned Magistrate on the 20^th of April, 1971 when, upon application by the prosecution, the original charge was withdrawn and a fresh charge was substituted therefore. This procedure was quite proper as it is specifically provided for by section 209 of the Criminal Procedure code Cap. 20. The fresh charge was that of unlawful wounding contrary to Section 228 (1) of the Penal Code Cap. 16. On this date, the second appellant was joined in as a co-accused. The charge was read over and explained to the appellant and took their respective pleas. Each appellant denied the charge against him, and the learned Magistrate entered them as pleas of not

guilty to the charge. The appellants were then remanded in custody until the 30^th of April, 1971. They were produced on this date before the same learned Magistrate, but the hearing of the evidence did not proceed as the prosecution alleged that investigations of the case had not yet been completed. They were then remanded until the 14^th of May, 1971 for hearing, but, again, the hearing did not proceed. Thereafter, they were remanded in custody continuously until the 27^th of May, 1971 when the appellants were released on bail. They continued to attend court as directed until the 29^th of October, 1971 when hearing commenced. It was again before the same learned Magistrate, but this time the charge was not read an explained to the two appellants before the learned Magistrate proceeded to hear the evidence. In other words, at that stage the plea of the appellants was not taken. The first issue, therefore on appeal, is whether the omission to take pleas before hearing of the evidence was an irregularity and if so whether this irregularity was so fatal so as to render the proceedings a nullity. However, to complete the description of the record, on this date (the 29^th of October, 1971), the learned Magistrate heard the evidence of one witness Malwa s/o Chacha (W.1) before the case was adjourned to the 3^rd of November, 1971 and the bails extended similarly. The hearing of the case of the prosecution was continued and completed on the adjourned date when two more witnesses, Robi s/o Kitekero (P.W.2) and Krano s/o Marasi (P.W. 3) gave their evidence. And on the same day, the appellants gave their evidence on oath against the charge. Judgment was reserved for the 15^th of November, 1971 and the appellant continued on bail. But when the learned Magistrate was considering the case, he noticed, when he was perusing the record, that the first appellant, who expressed a wish to call two witnesses in his defence, had not been granted the opportunity to call them. Therefore he decides that the defence case should be re-opened for this purpose and on the 15th of November, 1971, the first appellant was reminded of his wish to summon witnesses. The first appellant availed himself of this opportunity and called on Masiaga s/o Chacha (P.W. 1), who gave evidence in his favour but he abandoned the second witness. He said the latter was on safari ad he did not wish to wait for him. The defence case was then closed and judgment was reserved for the 25^th of November, 1971. The judgment was delivered as promised and the appellants were found guilty as charged. The second issue, therefore, is whether the learned trial Magistrate could re-open the case after the defence case is closed at that stage.

            With regard to the first issue …. It is clear that where no plea was taken at all, whether by the same Magistrate or by the “hearing” Magistrate, the proceedings would be held to be a nullity (see, DAMJI v. REGINA 2 TLR (R) 137). It is also well established that where there was a change of Magistrates, the Magistrate who hears the evidence “must again call upon the accused to plead” (see the case of REGINA v. RAJABU s/o RAMADHANI 2 TLR (R) 49) I have already expressed my doubts about that judgment in the case of REPUBLIC v. ANGELO (1971) H.C.D. n. 136.

 still say that where a previous Magistrate had already taken a plea, it is slightly pedantic to require the second Magistrate to take a plea again before he proceeds to hear the evidence if the aim of preferring the charge is to bring to the notice of the  accused the nature of the case he is to face. If that was the case, then the accused had notice of the nature of the charge against him form the time he pleaded before the other Magistrate and therefore the second taking of the plea achieves nothing. It may be argued that an accused needs to be reminded of the charge before him but no accused could ever forget the charge against him. Or it may be argued that, it is necessary for the Magistrate who hears the case to be certain that the accused still stands by his previous plea. Again this is unnecessary as an accused who wants to change his stand in the case can tell the court as it is normally done. It may also be said that by reading the charge to the accused the second Magistrate would also inform himself of the case he is hearing and the plea of the charged person, but this can be achieved by merely looking at the charge sheet and the recorded plea. This is usually done whether by the same Magistrate or another Magistrate and the problem is more or less non existent. While it is easy to hold that the non-taking of a plea at all is fatal to the conviction, it is much more difficult to appreciate the idea behind a decision where at one stage a plea was omitted by the same or another Magistrate. I have had occasions to discuss with my brother Judges this problem an I feel that the decision of Ramadhani’s (supra) case is inconvenient if not wrong and impracticable. However this decision is still binding as it is a unanimous decision of this Court. As a result of this decision the case in hand becomes unduly difficult. If it was necessary for he second Magistrate to take a plea in the same manner before hearing the evidence. This should be a necessary inference. It is for this reason that as a matter of practice and to avoid problems like the case in hand that it is essential that  pleas should be taken against, whether by the same Magistrate or another, just before hearing of the case begins (see Damji’s case supra and Stephen s/o Simbila R. (1971) H.C.D. n. 433). And the issue in this case is whether the omission to take plea in that manner was so fatal so as to render the proceedings a nullity. It is my view that the trial of a case begins from the time the accused is produced in court and is charged with the offence. It is not just when the hearing of the evidence begins. Therefore, the trial Magistrate, in this case, did take plea of the appellants and, therefore, the subsequent omission is a mere irregularity which did not affect the proceedings of this case and which did not occasion failure of justice. This interpretation is, in my view, in keeping with natural justice as enacted in the amended Section 4 of the Penal Code. Cap. 16.

            As for the second issue, the trial Magistrate was seized of the case and since he had not yet determined the case, he could still re-open the case to allow the

Defence to complete its case. One of the appellants had not yet exercised his right of calling witnesses under Section 206 (2) of Criminal Procedure Code, Cap 20, and not allowing him to summon his witnesses would amount to denying him this right and would have amounted to a failure of natural justice and affected the convictions. ……… [The court then discussed the cases on their merits and dismissed the appeals, confirming the sentences}.