EMMANUEL MOLLEL v REPUBLIC 1985 TLR 199 (HC)

EMMANUEL MOLLEL v REPUBLIC 1985 TLR 199 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

September 29, 1982

(PC) CRIMINAL APPEAL 6 OF 1981

Flynote

Criminal Practice and Procedure - Assessors - New set of assessors proceeding with a

B case commenced with other assessors - Whether court properly constituted.

-Headnote

The appellant was found guilty before a Primary Court and was convicted

accordingly. C The finding was by a unanimous decision of the presiding magistrate

and two assessors. But the two assessors who sat with the magistrate at the time of

convicting had taken over in the hearing of the case from another set of assessors who

had heard the case from beginning but did not continued with it to the end. The

presiding magistrate, however, was the same from the beginning to the end. D

Held: There is no provision under the law which allows the substitution of a fresh set

of assessors for the original set in the same case and the substitution made in this case

rendered the court which finally disposed of the case not properly constituted. E

Case Information

Appeal allowed.

Case referred to:

1. Dominico Simon v R. [1972] H.C.D. 152 F

W.R. Mramba, for the appellant.

Judgment

Sisya, J.: The short point of law raised in this appeal is, whether G when the Mjesani

Primary Court of Muheza District resumed the trial of the appellant on 12.5.81 with

a new set of assessors the trial Court was lawfully constituted.

The record of proceedings of the trial Primary Court shows that trial of the appellant

commenced on 30.4.81 with E.P. Magula, Esq. Primary Court Magistrate, presiding

H and Rashidi Rajab and Bayagayana Pyugula as assessors. Two witnesses including

the complainant herself gave evidence. The case was then adjourned to allow the

complainant time to bring her witness, one William Msengi, who, for unknown

reasons had failed to turn up on that day. When the trial resumed on 12/5/81 Mr.

Magula was I still the presiding Magistrate. The assessors this time, however, were

Kassimu and Enock Mkumbo. Only one witness, William

1985 TLR p200

SISYA J

Msengi, gave evidence and the complainant closed her case. The appellant elected

not A to say anything whereupon, after summing up, the Court proceeded to

judgment. The appellant was found guilty by a unanimous decision of the presiding

Magistrate and the "assessors" and he was convicted as charged and he was sentenced

to pay shs.1,000/= fine or to go to jail for six months. He paid the fine. B

The appellant who was represented by learned Counsel, Mr. Mramba, raised the same

point, among others, through his same advocate on first appeal before the District

Court. In dealing with this point the learned District Magistrate, on first appeal,

directed himself in the following terms, and I quote from his judgment: C

It is true that the assessors were changed but after considering the

circumstances of this case I find that the error caused no failure of justice in

determining the case as I feel that the decision was just and fair as if the assessors

were the same. D

With respect, in arriving at the conclusion which he did in this case I do not feel that

the learned District Magistrate proceeded on the right premise. The material question

before him on first appeal, and now on second appeal, is not whether or not justice

was E done but rather whether the Court which finally disposed of the case was, in

law, properly constituted. The situation in the instant matter regarding the position

of assessors in the Primary Court is almost on all fours with that in the case of

Dominico Simon v R. [1972] H.C.D. 152. In that case, just like in the instant matter,

the two F original assessors were replaced by others who did not hear all the

evidence presented during the course of the trial. El-Kindy J. (as he then was)

expressed the view that the fresh set of assessors could not be substituted for the

original set of assessors. The position remains the same even if the accused person did

not raise any objection at the G time of substitution. With this I most respectfully

agree. It must be conceded that there is no provision in the Magistrates' Courts Act,

1963, covering such an eventuality as the one before this Court in the present appeal.

I am, nevertheless, by far, not persuaded that it is proper for a fresh set of assessors to

be substituted for the original one. If this were to be permitted then some valuable

material - the demeanour of both accused and H witnesses included - would easily

escape their knowledge and consequently affect the just determination of the case.

In the Simon case quoted above El- Kindy J. declared the proceedings a nullity. With

respect, I hold that that was the only matter. This is because when the Court of first

I instance resumed the trial on 12.5.81 and the presiding Magistrate sat with a new

set of two assessors

1985 TLR p201

the Court was not lawfully constituted, properly so-called. This appeal succeeds on

this A ground. The conviction is quashed and the sentence is set aside. It is noted

that the appellant paid the fine. It is hereby ordered that the same shall now be

refunded to him.

I have left the question of trial de novo open to whoever between the Republic and

the complainant may be interested to pursue the matter further. B

This appeal succeeds to that extent indicated.

C Appeal Allowed

1985 TLR p202

D