Hamisi Said vs Republic (Criminal Appeal No. 188 of 2023) [2025] TZCA 1077 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: LILA, J.A., FIKIRINI. J.A. And RUMANYIKA. J J U CRIMINAL APPEAL NO. 188 OF 2023 HAMISI SAID..................................................................................APPELLANT VERSUS THE REPUBLIC ............................................................................ RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Manyara at Babati-Extended Jurisdiction) (Lusewa, PRM-Ext. Jurist dated the 10th day of October, 2022 in Criminal Appeal No. 13 of 2022 JUDGMENT OF THE COURT 30th September & 13th October, 2025. FIKIRINI, J.A.: The appellant, Hamisi Said was charged and convicted for trafficking in narcotics drugs, contrary to section 15A (1) of Drugs Control and Enforcement Act, No. 5 of 2015 as amended by section 9 of the Drug Control and Enforcement (Amendment) Act, No. 15 of 2017. The information on the charge sheet stated that on 10th November, 2019, along the Arusha-Babati road at Minjingu Check Point area, within Babati District in Manyara Region, he trafficked 300 rolls of narcotic drugs, i

namely Cannabis Sativa, commonly known as "bhangi", weighing 675 grams. The appellant pleaded not guilty to the charge. The Trial Court found the appellant guilty as charged. It convicted him under Section 235(1) of the Criminal Procedure Act (the CPA) and sentenced him to 20 years' imprisonment. Dissatisfied with the conviction and sentence, the appellant unsuccessfully appealed to the High Court of Tanzania at Arusha ("the first appellate court") vide Resident Magistrates' Court with Extended Jurisdiction in Criminal Appeal No. 13 of 2022. Before we go into the details of the appeal, it is crucial to know the background. In summary, what transpired gathered from the eight (8) prosecution witnesses and one (1) defence witness, plus eight (8) exhibits, can be stated as follows: that on the material date, the appellant, a resident of Sepuka village in Singida, was travelling from Arusha to Singida aboard Mtei bus with registration number T 981 DKE. He was assigned to seat number 29. At the Minjingu Police checkpoint, the bus was stopped, and G 1218 DC Yusuph (PW2), a Police officer, got into the bus, accompanied by Meshack Henjewele (PW6), the bus conductor. In their inspection, PW2 found the appellant seated with a powdered soap plastic bucket between his legs. Curiously, PW2 asked him to open the plastic bucket. Inside the bucket there was a sulphate

bag. When asked to open the bag, it was found to contain, according to PW6, five hundred (500) sticks of "bhangi", although this account was contrary to what other witnesses and the charge sheet had stated that there were three hundred (300) sticks of "bhangi." The search and impounding resulted in the establishment of a seizure certificate (Exhibit PI). The appellant disembarked from the bus and was taken to Minjingu Police Station with the impounded narcotic drugs and later to Babati. A few days later, he was arraigned in court, charged as indicated in the charge sheet. In his defence, the appellant maintained his innocence, refuting the claim that the impounded narcotic drugs were in his possession. Other prosecution exhibits in the case were the bus ticket (Exhibit P2), the report from the Weights and Measure Agency dated 13th November, 2019 (exhibit P3), a form indicating submission of the narcotics plus the sample notification receipt (Exhibit P4), chain of custody report dated 10th November, 2019 (Exhibit P5), appellant's cautioned statement (Exhibit P6), the Government Chemist Laboratory report dated 31s t December, 2019 (Exhibit P7) and the investigation of the sample record with reference MGG/IR/1374/2019 (Exhibit P8). 3

Persuaded by the prosecution witnesses' testimonies, as alluded to earlier, the trial court convicted and sentenced him to 20 years' imprisonment. His appeal to the first appellate court was unfruitful, hence the present appeal. However, for the reasons to be apparent, we shall not reproduce the respective grounds of appeal. During the review of the record of appeal, we identified two issues that we believe require the Court's attention. The first issue arises from the transfer order found on page 79 of the record of appeal, and the second issue stems from the trial magistrate's ruling, as found on page 35 of the record, which declined the appellant's prayer to recall some of the prosecution witnesses. At the hearing of the appeal, we invited Mr. Benedict Kivuma Kapela, learned Senior State Attorney, assisted by Ms. Rose Sebastian Kayumbo, learned State Attorney for the Republic/respondent and the appellant to address us on the concerns raised. Addressing us on the concern related to transfer order found on page 79 of the record of appeal, the learned Senior State Attorney argued that the transfer form cited two provisions conferring jurisdiction upon the Resident Magistrate with Extended Jurisdiction. Under section 256 A(l) of the Criminal Procedure Act, Cap. 20 (the CPA), such magistrates are

empowered to hear murder cases, which ordinarily fall under the High Court's jurisdiction. In contrast, section 45(2) of the Magistrates' Courts Act, Cap. 11 (the MCA), grants jurisdiction to hear and determine appeals, also typically handled by the High Court. Conceding to the discrepancy, the learned Senior State Attorney beseeched the Court to deem the transfer proper, noting that section 45(2) of the MCA, relevant to the appeal, was among the provisions cited in the transfer form. The appellant, recognizing the legal nature of the issue, had no reply submissions. We do not consider this concern to be particularly complex. Our reason being, upon examining the form, it appears that the use of the word "and" may have been an oversight by the preparer, inadvertently suggesting that the Resident Magistrate was conferred with both jurisdictions since both sections 256A(1) of the CPA and section 45(2) of the MCA had been cited, while that was not the case. These provisions confer jurisdiction for two distinct types of cases. The wording in the transfer form reads as follows: "Pursuant to the provisions o f Section 256A(1) o f the Criminal Procedure Act, Cap. 20 R.E. 2002 and Section

45(2) o f the Magistrates' Court Act, Cap. 11 R.E. 2002, this case file is hereby transferred." The word "and" has several meanings, one of which is to connect words of the same part of speech, clauses, or sentences that are to be taken jointly. Its use in the transfer order form could be interpreted to mean that both provisions, although they relate to different types of cases, confer jurisdiction simultaneously on the assigned Resident Magistrate with Extended Jurisdiction. Clearly, that was not the intention. For clarity, section 256A(1) of the CPA provides: "The High Court may direct that the taking o f a plea and the trial o f an accused person committed for trial by the High Court, be transferred to, and be conducted by a resident magistrate upon whom extended jurisdiction has been granted under subsection (1) o f section 173." [Emphasis added] This provision contemplates the transfer of cases triable by the High Court in its original jurisdiction, such as plea-taking and murder trials. In such instances, the Judge in Charge, relying on section 256A(1) of the CPA, may transfer the case to a Resident Magistrate with Extended Jurisdiction conferred under section 173(1) of the CPA to conduct the proceedings.

In contrast, appeals are governed by section 45(2) of the MCA, which states: "45.- (1)N/A (a) N/A (2) The High Court may direct that an appeal instituted in the High Court be transferred to and heard by a Resident Magistrate upon whom extended jurisdiction has been conferred by section 45(1)." [Emphasis added] Under this provision, the Resident Magistrate with Extended Jurisdiction hears appeals that the High Court would ordinarily hear. The distinction between the two provisions lies in their statutory origins, one from the CPA and the other from the MCA, as well as in their respective scopes: Section 256A(1) of the CPA pertains to original jurisdiction cases. In contrast, Section 45(2) of the MCA pertains solely to appeals. It follows that a case record cannot at once be transferred under both provisions, as they relate to fundamentally different judicial functions. The Judge in Charge, in exercising administrative powers of case transfer, ought to have struck out one of the provisions to avoid confusion.

Leaving both provisions in the transfer order renders it technically improper. Since the correct provision that is section 45(2) of the MCA, is among those cited, the jurisdiction conferred is valid. Inspired by the logic and stance found in proviso to Rule 48 (1) of Tanzania Court of Appeal Rules, 2009 (the Rules), which allows the Court to overlook minor procedural errors, including incorrect citations, provided the application meets legal requirements and the Court has jurisdiction. Although the matter before the Judge in Charge was not an application but a transfer of a case record, the jurisdiction he had to effect the transfer under one of the cited provisions, depending on the nature of the case. Nevertheless, having identified this anomaly, we concur with the learned Senior State Attorney's submission that the transfer under the circumstance was proper and valid. This is an observation we thought should be brought to light to ensure that orders made by the court are clear, lest they be misconstrued. The second concern is the ruling declining to grant an application to recall witnesses made by the appellant's newly engaged advocate.

Initially, the learned State Attorney supported the ruling and the reasons given that it would be difficult to secure those witnesses and that it would be costly to the Government. Sealing his position that the application was without merit as concluded by the trial magistrate, the learned State Attorney argued that the appellant had an opportunity to cross-examine those witnesses that is why there was no need for recalling them. However, on further pondering and reflection he acceded that by declining the prayers without logical reasoning, prejudiced the appellant. Maintaining his stance on the demerits of the appeal, he contended that the evidence against the appellant was watertight, despite the anomaly occasioned. The appellant had essentially nothing to say the issue being a legal one. On our part, page 34 of the record of appeal is where, we shall start to examine the concern we raised. After completing the cross-examination of PW7, Mr. Amani Mwiru, appellant's newly engaged learned advocate, prayed to the court to be allowed to recall the prosecution witnesses who had already testified, in terms of section 147 (4) of the Evidence Act. The prosecution objected to the request, arguing that all witnesses had been produced as required by law. Furthermore, that the defence counsel had 9

failed to provide any reason for the recall. The trial magistrate's reasoning in declining the request is what drew our attention. To appreciate what we are going to discuss below, we let the record speak for itself: "/ do agree with the Public Prosecutor that they had call their witness. To make recall o f the witness is not mandatory. It depends on the wisdom o f the court. A t the same time the court must put into consideration for the availability o f those witness and time taken for that recall. Not only that, but also we must consider the expenses which would the Government will incurred to pay all six witness unnecessarily. A ll o f the above shows that to grant this application by the defence counsel will cause harm to the other side and delay o f the case before the court o f law. Justice not only for the accused person but should be seen in the public in general. The prayer is therefore rejected." The trial magistrate derived the powers to grant prayer to recall witnesses or not from section 147(4) of the Tanzania Evidence Act, which provides: "(4 ) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination and if it does so the parties have the right o f further cross-examination and re-examination respectively." 10

We admit that the operative word in this provision is "may," which confers discretionary power upon the court to grant or deny such an application. However, we echo the legal position and stance in several of our previous decisions that the exercise of discretion must be guided by sound reasoning and anchored in the rule of law. In this instance, we are not persuaded that the trial magistrate exercised the discretion judiciously. The right to recall a witness is available to either party. In the present case, the appellant diligently pursued his defence until 15th September, 2020, when the record of appeal on page 30 indicates that he engaged an advocate. By that time, six (6) prosecution witnesses had already testified, and the appellant had cross-examined them in person. The newly engaged advocate participated in the cross-examination of Joyce Njisya (PW7) and subsequently moved the court, under section 147(4) of the Evidence Act, to recall the earlier six witnesses for further cross- examination, as he was not yet engaged during their initial testimony. The Prosecutor left the matter to the court's discretion, noting that the prosecution had fulfilled its duty to summon witnesses and that the defence had not provided reasons for the recall of witnesses at that stage of the proceedings. ii

Declining the application, the trial magistrate agreed with the prosecution's objection, emphasizing that the recall of witnesses is not mandatory. We concur with that general principle; since the word used is "may," which indeed implies discretion. However, we take issue with the reasons provided by the trial magistrate. First, the magistrate cited the availability of witnesses as a concern. Yet, the record is silent on whether they were indeed unavailable and if any effort had been made to trace or summon them. This conclusion appears to be speculative and unsupported by evidence. Second, the magistrate considered the harm to be caused to the prosecution side and the delay of the case before the court of law. We agree that judicial efficiency is important, however, it must be balanced against the imperative of ensuring justice. Justice should not be sacrificed at the expense of time and money. Fairness, should be paramount especially when the request is made in good faith and does not appear to be made in a dilatory manner. We are saying so, as there is nowhere in the record it has been suggested that the appellant had been a problem or dragging the matter. After all it would have been to his disadvantage. Third, the trial magistrate expressed concern over the financial implications for the Government in recalling witnesses. While cost 12

considerations may be relevant in judicial proceedings, they must never supersede a party's fundamental right to a fair hearing. In this instance, the appellant's counsel entered the proceedings after six witnesses had already testified. His application to recall them cannot reasonably be interpreted as a tactic to delay the trial or to undermine public resources. The trial court's decision to reject the application lacked both legal and factual merit and failed to uphold the principles of fairness and justice. In the absence of a thorough and reasoned analysis by the magistrate, we are persuaded that the appellant was unjustifiably denied the opportunity to recall witnesses. This action directly infringed upon his right to be heard. This principle is firmly established in the case of Abbas Sherally and Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 (unreported), where the Court held: "The right o f a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it wiii be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f naturaljustice."

This position has been reaffirmed in several subsequent decisions, including UAP Insurance Tanzania Ltd v. Noble Motors Limited, Civil Application No. 260 of 2016 [2017] TZCA 1332 (30 May 2017; TANZLII), where the Court emphasized: "Judicial discretion signifies the exercise o f judicial powers judicially, which means the decision based on sound reasons. See the case o f Shah v. Mbogo and Another (1967) E.A.116, in which the Court emphasized that such discretion must be exercised judicially and not arbitrarily or capriciously; nor should it be exercised on the basis o f sentiment or sympathy." The trial magistrate's decision, in all respects, undermined the appellant's right to be heard. This contravenes the cardinal principle of natural justice, which recognizes the right to be heard as a fundamental entitlement and a key component of equality before the law, as enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. The Court has consistently held, in a multitude of decisions, that no determination affecting the rights of parties should be made without affording them an opportunity to be heard. Any failure to do so constitutes a constitutional violation and renders the decision null and void. 14

We acknowledge that the right to recall witnesses under section 147(4) of the Evidence Act is not absolute. It may be exercised upon application and is subject to the court's scrutiny. However, the decision to grant or deny such an application must be based on a well-reasoned ruling, grounded in sound legal logic. In the present appeal, although the appellant had already cross-examined six prosecution witnesses, he retained the right to seek their recall under section 147(4), should he deem it necessary. The trial magistrate's refusal to grant the application, as justified in the ruling, lacks coherent legal reasoning. Instead, it reflects an irrational and unsound approach. At the same time, we understand that prudence dictate that interference in the exercise of discretion should be made sparingly, still we find it pertinent to voice out that the magistrate's decision constituted a breach of the appellant's fundamental right to be heard. From our discussion above, regarding the trial magistrate's ruling declining recalling of witnesses without valid reasons, has more likely than not prejudiced the appellant. The decision can therefore not stand. We, hence, nullify the proceedings from page 35 of the record of appeal, quash the judgment of the trial court, and that of the first 15

appellate court. We direct that the record be remitted to the trial court, and that the application for recall of witnesses be reconsidered with reasonable and logical justification in the exercise of judicial discretion. Given that this is a 2019 case, we order that the matter be tried expeditiously. In the meantime, the appellant shall remain in custody pending continuation of the hearing. DATED at ARUSHA this 13thday of October, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of Appellant in person and Ms. Eunice Makala, learned Senior State Attorney for the Respondent via virtual Court and Ms. Hilda Mcharo, Court Clerk; is hereby certified as a true copy of the original.