Mbuji v. R. Crim. App. 807-D-70; 4/6/71; Mwakasendo Ag. J.

Mbuji v. R. Crim. App. 807-D-70; 4/6/71; Mwakasendo Ag. J.

The appellant was charged with five counts of false accounting and five counts of stealing and convicted on all counts. The offences were committed within the jurisdiction of the Mpwapwa District court and came before that court on several occasions. It was however, by order of the Resident Magistrate Dodoma, transferred to the latter’s court for hearing. At the start of the proceedings before the Resident Magistrate Dodoma, he appellant objected to the Resident Magistrate hearing the case, his recorded ground being “I have no faith in the trial magistrate. Because the trial magistrate stayed with the District Medical Officer when he was at Mpwapwa’. The objection was not entertained.

            Held: (1) “In the circumstances of this case it cannot be too strongly stressed how important the District Medical Officer’s evidence was likely to be for the success of the prosecution’s case. What is more, in view of the apparent conflict between the D. M. O. ‘s and the appellant’s evidence the question as to who should succeed rested wholly on the credibility of these two persons.” (2) “The law applicable to the issue is as articulated by Lord Denning M. R. in (Metropolitan Properties (F. O. C.) Ltd. v. Lannon (1969) 1 Q. B. 577 at p. 599) and the very firs question one might ask with regard to the present case is: Should the learned Resident Magistrate have insisted to preside over the proceedings after the reasoned objection by the appellant? My own view is that he should have not ……where the principal witness for the prosecution was not only the complainant on whose evidence the case for the prosecution stood or fell but was, as the magistrate himself seems to admit in his ruling, also an intimate friend o the trial magistrate, it would be lame indeed to assert that right minded people watching these judicial proceedings would think other than that the magistrate was biased. This, in my view, is the impression that people who knew the three principal actors in this case would get. It does not matter in the least, in my opinion, that they might be completely mistaken in holding this view. It matters little too that in a actual fact the trial magistrate on account of his known friendship with the D. M. O. would be partial in the matter; the trial court’s decision cannot be maintained”. (3) Appeal allowed; Proceedings quashed, new trial ordered before another magistrate.