George Mhando v Republic 1983 Tlr 118 (Hc)

GEORGE MHANDO v REPUBLIC 1983 TLR 118 (HC)

Court High Court of Tanzania - Dodoma

Judge Maina J

November 8, 1983

CRIMINAL APPEAL 32 OF 1982

Flynote

Criminal Practice and Procedure - Judgment incomplete - Conviction not entered - S.171, Criminal Procedure Code, Cap 20 - Failure of justice - Whether to order retrial.

-Headnote

The appellant was charged before the District Court at Dodoma with stealing by person employed in the public service c/s 270 and 265 of the Penal Code. At the end of the trial the learned resident magistrate wrote a summary of the evidence but he did not complete the judgment. He left a whole blank page, apparently intending to complete the F judgment later on. Then he proceeded to sentence the appellant to seven years' imprisonment. The appellant wishes the High Court to overturn the sentence of the learned resident magistrate.

Held: (i) Since section 171 of the Criminal Procedure Code provides that a judgment must contain points for determination and reasons for the decision and that a conviction must be recorded, failure to comply with those provisions amounts to failure of justice;

(ii) failure to complete a judgment is the same as failure to write a judgment because in both instances the points for determination and reasons for decision are not known; it is a failure of justice to pronounce a sentence without writing a judgment and without recording a conviction;

(iii)it would not be unfair to order a re-trial in the case where a failure of justice I has been manifested but where the appellant has not served a substantial part of the sentence.

Case Information

Order accordingly.

Cases referred to:

1. William Msaka v.R. [1968] H.C.D. n. 216

2. R. v Suna [1971] H.C.D. n. 208

3. Mugoma v R. [1967] E.A. 676 B

4. Ilanda Kisonga v.R. [1960] E.A. 780

5. Kangoye Bundala v R. [1959] E.A. 900

6. Willy John v R. [1953] 23 EACA 509

 Mbezi for the appellant V. Lyimo for the republic

[zJDz]Judgment

Maina, J.: The appellant, George Mhando, was charged before the district court at Dodoma with stealing by person employed in the public service contrary to section 270 and 265 of the Penal Code. At the end of the trial, that is, after the prosecution and defence had adduced evidence, the learned resident magistrate wrote a summary of the evidence but he did not complete the judgment. He left a whole blank page, apparently intending to complete writing the judgment later on. Then he proceeded to sentence the E appellant to seven years' imprisonment.

Mr. Mbezi, learned counsel for the appellant, argued three grounds of appeal. Firstly, he said that the learned resident magistrate grossly erred in sentencing the appellant to imprisonment without first convicting him of any offence. Secondly, the learned counsel said that the evidence was wholly circumstantial and that it did not justify a conviction. Thirdly, Mr. Mbezi submitted that the sentence was manifestly excessive. In arguing the first ground of appeal, learned counsel for the appellant cited section 171 (1) of the Criminal Procedure Code which provides as follows: 

Every judgment under the provisions of section 170 shall, except as otherwise expressly provided by this Code, be written by, or reduced in writing under the direction and superintendence of the presiding judge or magistrate in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by such presiding officer as of the date on which it is pronounced in open court. 

It seems therefore that apart from the judgment being in writing it must also contain the points for determination and the reasons for the decision. Mr Lyimo, learned Senior State Attorney, conceded that the judgment of the learned resident magistrate was incomplete and that it did not comply with the requirements of section 171(1) of the Criminal Procedure Code. I may also add that even section 171(2) of the Criminal Procedure Code was not complied with because the learned trial magistrate did not record a conviction and so he did not state the provision of the law under which the appellant was convicted. All that the learned resident magistrate wrote in what he purported to be a judgment was a summary of the evidence for the prosecution and the defence. He did not record a conviction and neither did he state the points for determination or the reasons for the decision as required of him. Mr. Lyimo learned Senior State Attorney did not seek to support the conviction but he submitted that a retrial should be ordered. Mr. Mbezi, learned counsel for the appellant, argued, on the other hand, that as there was failure of justice, the conviction should be quashed and he further submitted that since the appellant had been in custody for over one year, it will not be in the interest of justice to order a retrial. Mr. Mbezi cited two cases of this court in support of his argument. These are the cases of William Msaka v R. [1968] HCD.n. E 216 and R. v Suna [1971] HCD n. 208.

The conviction in the William Msaka case was quashed because the judgment of the trial court was "a brief summary of the prosecution evidence but was overwhelmingly devoted to the critical analysis of the defence". This occasioned failure of justice. The case of R. v Suna cited by Mr. Mbezi is more relevant to the case now under consideration. In that case, like in the present one, the learned trial magistrate did not write a judgment at all and he did not record a conviction. The trial court sentenced the appellant to a fine. That is exactly what happened in the present case. In the Suna case Mnzavas, Ag. J. (as he then was) had this to say:

It is impossible to tell how the trial magistrate came to the conclusion that the accused should be fined. Failure to write a judgment is an incurable irregularity.

With respect, I agree with what my learned brother judge said in that case. Since section H 171 of the Criminal Procedure Code provides that a judgment must contain points for determination and reasons for the decision and that a conviction must be recorded, failure to comply with those provisions amounts to failure of justice. Like in the Suna I case, the learned trial magistrate in this case did not write a complete judgment and it is impossible for this court to know how he arrived at a A conclusion that the appellant should be imprisoned. Failure to complete a judgment is the same as failure to write a judgment because in both instances the point for determination and reasons for the decision are not known. It is failure of justice to pronounce sentence without writing a judgment and without recording a conviction.

In another case, Mugema v R. [1967] E.A. 676, the trial magistrate did not sign or date the judgment and it was not known whether the judgment was read in the appellant's presence or how he was sentenced. Platt, J. said that the omissions constituted gross irregularity and the court was not prepared to cure them under section 346 of the Criminal Procedure Code. The conviction was quashed.

It will be seen from the above cases that where a magistrate has not complied with the provisions of section 171 of the Criminal Procedure Code, this court has always quashed the convictions. Failure to comply with the provisions of section 171 of the Criminal Procedure Code has been held by this court to amount to failure of justice.

Mr. Lyimo, learned Senior State Attorney, conceded that the conviction could not be supported but he urged this court to order a retrial. The learned Senior State Attorney cited some decisions of the Court of Appeal for Eastern Africa one of which is Ilanda Kisongo v R. [1960] E.A 780. In that case, the trial judge did not write a judgment but wrote a short note in which he said that he concurred with the unanimous opinions of the assessors. The learned judge having said that, he proceeded to convict the appellant and F sentenced him to death. The Court of Appeal cited the cases of Kagoye Bundala v.R. [1959] E.A. 900 and Willy John v R. (1953) 23 EACA 509 and held that a defective judgment will not necessarily invalidate a conviction if there is sufficient material on the record to enable the court of appeal to consider and determine the appeal on its merits. The Court of Appeal found that the summing up of assessors was inadequate on the issue of burden of proof and so the conviction was quashed.  retrial was ordered.

As I have already pointed out earlier in this judgment, where a trial court has failed to comply with section 171 of the Criminal Procedure Code, this court has always quashed the conviction because such failure to comply with that provision of the law has been held to amount to failure of justice. Where judgment has not been written at all or where it is incomplete, it amounts to the same thing. It is not possible under such circumstances for this court to  know what reasons the trial magistrate had in arriving at a conviction. In this case there was not even a conviction but the trial magistrate merely summarized the evidence for the prosecution and the defence and then proceeded to sentence the appellant to seven years' imprisonment. There was no decision made and so no reasons were given. That B was a clear non-compliance with section 171 of the Criminal Procedure Code. The learned resident magistrate had in mind a conviction but that should have been recorded together with the reasons as required by the law.

Failure to complete the judgment amounted to failure of justice because as Mnzavas, Ag. J. (as he then was) said in the C Suna case cited above, it is impossible to tell how the trial magistrate came to the conclusion that the appellant should be sentenced. In my opinion, failure to complete a judgment has the same effect as failure to write judgment, and it is an incurable irregularity. The purported conviction is quashed and the sentence is set aside.

I do not find it necessary to consider the second and third grounds of appeal. In the second ground of appeal it was argued that the evidence was wholly circumstantial and that it did not justify a conviction. The third ground of appeal was that the sentence was manifestly excessive. I have to consider whether a retrial should be ordered. Mr. Mbezi submitted that a retrial will not be fair because the appellant has served a substantial part of the sentence. Let me point out at the outset that the appellant has already served about eighteen months out of the seven years' imprisonment imposed by the district court. That is not a substantial part of the sentence. Now, as Mnzavas, Ag. J. F (as he then was) said in the Suna case, in ordering a retrial all the circumstances must be considered and each case must depend on its own facts. In that case, the appellant was sentenced to a fine which he paid. As I said, no judgment was written by the trial court in the Suna case. When the appeal came up for hearing, a period of about one year had elapsed. The whereabouts of the appellant in that case were not known. Furthermore, the exhibits, which were pieces of uncut diamonds, had been forfeited to the Government and they were not available to be produced as exhibits in a retrial. Under those circumstances, the court found that it was a waste of time to order a retrial.

In the present case, the appellant's whereabouts are known as he is serving the sentence in a known prison. The appellant has served only a small portion of the sentence. The exhibits are all documentary and they are still available. Further, the amount involved was I a large sum of money which belonged to the Government, and it was not recovered. Considering all these facts, I consider that a retrial is appropriate in the interest of justice.

This appeal is allowed. The conviction is quashed and the sentence is set aside. It is ordered that the case be remitted to the District Court at Dodoma for retrial.

Order accordingly.

1983 TLR p123

C