Damian Michael Ndohero and Another vs Republic (Criminal Appeal No. 32 of 2022) [2024] TZCA 1262 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI ( CORAM: SEHEL. 3.A.. KIHWELO. 3.A, And MLACHA, J.A.^ CRIMINAL APPEAL NO. 32 OF 2022 DAMIAN MICHAEL NDOHERO .......... . ........... .....................1s t APPELLANT RAYMOND ABISAI KUZILWA . ...................... .....................2n dAPPELLANT VERSUS THE REPUBLIC. ........................... . ........ . ................ ........RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Moshi, at Moshi) (Mazenao. PRM, ExtJurist dated the 29t l1day of September, 2021 in Criminal Sessions Case No. 33 of 2019 JUDGMENT OF THE COURT 6 & 10th December, 2024 KIHWELO, 3 . A.: Damian Michael Ndohero and Raymond Abisai Kuzilwa (the appellants) are serving a life sentence in prison upon being tried, convicted and ultimately sentenced by the Court of Resident Magistrate of Moshi at Moshi (Mazengo, PRM, Ext. Juris) (the trial Magistrate) for the offence of trafficking in narcotic drugs contrary to section 16 (1) (b) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap. 95 as amended by section 31 of the Written Laws (Miscellaneous Amendments i

(No,2) Act No. 6 of 2012. This is an appeal against that conviction and sentence. Briefly, the prosecution case was to the effect that, on 15thJuly 2014 at Njoro Same area within Same District in Kilimanjaro Region, the appellants trafficked in narcotic drugs namely, two hundred eighty-seven kilograms (287 Kgs) of cannabis sativa commonly known as bhangi valued at Twenty-Eight Million Seven Hundred Thousand Tanzania Shillings (TZS. 28,700,000.00). In terms of sections 246 and 247 of the Criminal Procedure Act, Cap. 20 (the CPA) the committal proceedings were conducted on 9th January, 2019 by Maziku, SRM who committed the appellants to the High Court for trial. Later, on 29th August, 2019, Mahimbali, SRM with Extended Jurisdiction conducted a Plea taking and Preliminary Hearing and adjourned the matter for hearing to a later date. Furthermore, on 8th December, 2021, Maziku, PRM with Extended Jurisdiction discharged one Hassan Ramadhan @ Shemaghinde who is not party to this appeal, in terms of section 91 (1) of the CPA following a Nolle Prosequi which was lodged by the Director of Public Prosecutions on behalf of the Republic. The appellants denied the charge, when the information was read to them on 8th July, 2021 before the trial Magistrate whereupon the 2

prosecution featured fifteen witnesses and a host of documentary and physical exhibits. On the adversary side, the appellants gallantly denied the allegations leveled against them and stoutly defended their innocence. In their sworn testimonies they totally disassociated themselves with the allegations and testified that the prosecution did not prove the case as required. When the respective cases on both sides were closed, the trial Magistrate summed up the case to the three assessors that sat with her. The assessors were of the unanimous opinion that the case for the prosecution was proved to the hilt and, accordingly, they both returned a verdict of guilt for all the appellants. On the whole of the evidence, the trial Magistrate was satisfied that the charged offence was proven beyond reasonable doubt. The appellants' denial was rejected. In the upshot, the appellants were found guilt, convicted and sentenced as hinted above. In protesting their innocence, the appellants seek to overturn the decision of the trial court. Initially, on 18th May, 2022 the appellants lodged a self-crafted joint memorandum of appeal with eleven (11) grounds. Later, on 4th December, 2024, the appellants, through Mr, 3

Patrick Paul, learned counsel, further lodged a supplementary memorandum of appeal with four (4) grounds of grievance which however, can be crystalized into the following grounds: one, that the trial court was conducted with Resident Magistrates with extended jurisdiction without valid transfer order; two, the trial court erred to convict the appellants while the prosecution did not prove the case beyond reasonable doubt; three, the trial court erred to admit and rely on exhibit P6 which was not mentioned during committal; and finally, the trial court erred to rely on exhibit P7, the Inventory of Unclaimed Property which was illegally procured. Eventually, when the matter was placed before us for hearing, Mr. Patrick Paul, learned counsel appeared for the appellants. On the adversary side, the respondent Republic had the services of Ms. Janeth Sekule, learned Senior State Attorney who teamed up with Ms. Tusaje Samwel learned State Attorney. At the outset, before hearing of the appeal could commence in earnest, Ms. Sekule informed us that, in essence, the respondent Republic was supporting the appeal on the grounds that, there was no valid transfer order. In her view, the only transfer order on record is dated 7th December, 2020 which was issued to Maziku, (PRM Ext. Juris) who on 8th December, 2020 entered Nolle Prosequi against one Hassan Ramadhani

Shemaghinde who was originally charged along with the appellants. She took the view that, the learned trial Magistrate entertained the trial without there being a valid transfer order in her name. In the circumstances, she was of the view that, the proceedings before the learned trial Magistrate along with its judgment and orders are nullity. She paid homage to the case of Sefu Snayo v. Republic (Criminal Appeal No. 477 of 2019) [2022] TZCA 632, for the proposition that a transfer order has to be specifically directed at a particular magistrate for it to be valid. She thus, implored us to invoke our revisional powers in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) to nullify the proceedings and judgment As to the way forward, Ms. Sekule was of the considered opinion and rightly so in our view that retrial is not feasible in the circumstances surrounding this appeal owing to apparent weaknesses in the prosecution's evidence on record which will give chance to the prosecution to fill in gaps. Elaborating, she contended that, exhibit P7, the Inventory of Unclaimed Property was improperly procured contrary to the mandatory requirements of the law, as PW9 did not afford the appellants an opportunity to participate during the disposal exercise and cited to us the case of Buluka Leken Ole Ndidai and Another v. Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 in which we s

emphasized that the presence and participation of the suspects at the disposal of the perishable exhibits is indispensable. Ms. Sekule urged us to find that the appeal is meritorious and therefore allow it and set the appellants at liberty, On the adversary side, Mr. Paul welcomed Ms. Sekule's concession and argued further that truly there was no transfer order from the High Court of Tanzania at Moshi to the Court of Resident Magistrate of Moshi at Moshi and therefore, the trial Magistrate had no jurisdiction to entertain the matter. He took the view that, the proceedings and judgment before her were nullity. As to the way forward, like Ms. Sekule, the learned counsel was of the view that, there were glaring weaknesses in the prosecution evidence to warrant an order for retrial as doing so will afford an opportunity to the prosecution to fill in gaps. Elaborating, the learned counsel referred to us the irregularity of the disposal order issued by PW9 that led to exhibit P7, the Inventory of Unclaimed Property. On that account, he urged us to allow the appeal and let the appellants at liberty. We have anxiously weighed the submissions above and we hasten to state that, concurrently the learned trained minds are on the same page in regards to the effect of the trial subject of the instant appeal.

Furthermore, the learned trained minds are on the same page as to the way forward. Our starting point would be restating what the law provides in relation to the trial by resident magistrate with extended jurisdiction. Section 256A (1) of the CPA provides that: "The High Court may direct that the taking of a piea 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. " Furthermore, section 173 (i) of the GPA provides that: "The Minister may, after consultation with the ChiefJustice and the Attorney General, by order published in the Gazette - (a) Invest any resident magistrate with power to try any category o f offences which, but for the provisions o f this section, would ordinarily be tried by the High Court and may specify the area within which he may exercise such extended powers; or (b) Invest any such magistrate with power to try any, specified case or cases o f such offences and such magistrate shall, by virtue o f the order, have the power, in respect of the offences specified in i

the order to impose any sentence which could lawfully be imposed by the High Court." It is instructive to recapitulate that our reading and understanding of the provisions of sections 256A (1) and 173 (1) (a) and (b) of the CPA referred above, it is conspicuously clear that, the transfer of the case or cases from the High Court to the resident magistrate with extended jurisdiction must be done through an order which has to specify a magistrate with extended jurisdiction who has to hear that particular case. Failure of which the transfer order will be invalid and the trial as well as the consequential judgment and orders will be nullity. Luckily, this is not novel as we have had occasion to pronounce ourselves in this matter in a number of our previous decisions. See, for instance, Sefu Snayo v. Republic (supra) cited to us by Ms. Sekule, Corresponding observations were made in Robert Mkabe v Republic (Criminal Appeal No. 332 of 2017) [2021] TZCA 603, Nasra Hamis Hassan v. Republic (Appeal No. 545 of 2017) [2020] TZCA 1836 and Thomas Gasper Mchamisi v. Republic, Criminal Appeal No. 291 of 2013 (unreported). In the instant appeal before us, the only available transfer order on record which was made by the High Court is dated 7th December, 2020 which transferred Criminal Sessions Case No. 95 of 2018 to Maziku, PRM 8

(Ext. Juris) which was registered as Extended Jurisdiction Criminal Sessions No. 33 of 2019. On 8th December, 2020, Maziku, PRM (Ext. Juris) entered Nolle Prosequi against one Hassan Ramadhani Shemaghinde. However, it is clear on record that, previously on 29th August, 2019 Mahimbali, (SRM Ext. Juris) conducted the plea taking and preliminary hearing and fixed the matter for hearing without there being a transfer order of the High Court in terms of section 256A (1) of the CPA. As if that was not enough Mazengo, PRM (Ext. Juris) took over on 6th July, 2021 and finalized the case up to and including the judgment without there being a transfer order conferring jurisdiction on her. That was irregular and contrary to the mandatory requirements of the provisions of section 256A (1) of the CPA. We held so in the case of Richard Sipriano and Others v. Republic [2013] T.L.R. 457 in which we had the following to say: "The mandatory language employed in the above cited section 256A, dearly recognizes that there are situations where jurisdiction conferred on the High Court may be conditionally transferred. For the purposes o f this appeal, jurisdiction over the offence o f murder belongs to the High Court. This jurisdiction o f the High Court to try offences of murder can only be transferred to resident magistrates who has extended jurisdiction 9

conferred to him under subsection (1) of section 173 of the CPA. In other words, jurisdiction o f a resident magistrate with extendedjurisdiction is a conditional or contingent jurisdiction. Conditions precedent for a magistrate to exercise jurisdiction which ordinarily belongs to the High Court must be satisfied before that subordinate courtassumes jurisdiction." In the case of Thomas Gasper Mchamisi (supra) we observed that: even if, there is a transfer order, it must be directed at a particular magistrate for it to be valid. Where there is no transfer order at all, as has happened in the preliminary hearing and the trial, the illegality is compounded, Guided by the above provisions of the law and case laws it was irregular for Mahimbali, SRM (Ext. Juris) to have conducted plea taking and preliminary hearing without there being a transfer order. Furthermore, the illegality was compounded by Mazengo, PRM (Ext. Juris) who took over and presided in the trial and finalized it without there being a transfer order. We hold and find that, the cumulative effect of the above renders the proceedings, judgment and consequential orders nullity and in terms of section 4 (2) of the AJA, we nullify the proceedings and judgment in Extended Jurisdiction Criminal Sessions Case No. 33 of 2019. ID

As to the way going forward, this has exercised our mind quite considerably. However, we must confess that, we find considerable merit in the concurrent submissions by the learned trained minds that, the prosecution evidence on record is marred by apparent glaring weaknesses and guided by the long-established principle stated by the erstwhile Court of Appeal of East Africa in the case of Fatehali Manji v. Republic [1966] E.A. 343 we are of the view that, an order for retrial will not be in the interest of justice as we need to guard the prospect of giving the prosecution a chance to fill in gaps in its evidence at the trial. The reason is not far-fetched, PW9 the Magistrate who issued an order for disposal of the alleged narcotic drugs admittedly testified that the appellants did not participate during the disposal exercise as they were in the vehicle nor did they sign exhibit P7, the Inventory of Unclaimed Property which is contrary to the mandatory requirements of the law. The position of the law is long settled and dear that, the procedure as stipulated under paragraph 25 of the Police General Orders (PGO), the suspect or suspects have to be involved at the time of ordering a disposal of perishable exhibits and the effect of failure to involve them is fatal as the Inventory of Unclaimed Property cannot be proved against the appellant since they were not given the opportunity to be heard by the Magistrate. There is, in this regard, a considerable body of case law in this

matter. See, for instance, Mohamed Juma Mpakama v. Republic [2019] T.L.R. 514 in which faced with an akin situation we held that: "The above paragraph 25 envisages any nearest Magistrate, who may issue an order to dispose of perishable exhibit This paragraph 25 in addition emphasizes the mandatory right o f an accused (if he is in custody or out on police bail) to be present before the Magistrate and be heard, In the instant appeal, the appellant was not taken before the primary court magistrate and be heard before the magistrate issued the disposal order (exhibit PE3)". We took similar position in the case of Nyamhanga Mwise Muhere v. Republic (Criminal Appeal No. 304 of 2020) [2023] TZCA 17813 and Buluka Leken Ole Ndidai (supra) among many others. What is more, there is on record that on 19th January, 2019 Maziku, SRM (as she then was), committed the appellants, to the High Court for trial and curiously on 7th December, 2020 a transfer order was issued to Maziku, SRM (Ext. Juris) to preside over the same matter she committed to the High Court. We think, in our view, this was irregular and erroneous in the proper administration of justice. That said, we think it will only be pretentiously academic to deal with the rest of the grounds raised by the appellants. 12

In the event, we find merit in the appeal and allow it. We quash the conviction, set aside the sentence imposed and order that the appellants be released from custody unless otherwise lawfully held. DATED at MOSHI this 9th day of December, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of Mr. Patrick Paul, learned counsel for the appellant and Mr. Henry Kasiano Daudi, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 13