Wilbadi Charles and Another vs Republic (Criminal Appeal No. 174 of 2022) [2024] TZCA 1155 (28 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI ( CORAM: SEHEL. J.A.. FIKIRINI. J.A. And MLACHA. J.A.^ CRIMINAL APPEAL NO. 174 OF 2022 WILBADI CHARLES.............................................................1 st APPELLANT ANISET JOHN MAVULA ....................................................... 2N DAPPELLANT VERSUS THE REPUBLIC .................................................................... RESPONDENT (Appeal from the decision of the Court of Resident Magistrate's Court of Moshi at Moshi) (Mazenao. PRM-Ext. Jur.^ dated the 25th day of August, 2021 in Extended Jurisdiction Criminal Session Case No. 22 of 2020 JUDGMENT OF THE COURT 25th & 28th November, 2024 SEHEL, J.A.: This first appeal originates from the decision of the Court of Resident Magistrates' Court of Moshi at Moshi with Extended Jurisdiction (the trial court). After completion of the conduct of the committal proceedings, the appellants, William Charles and Aniset John Mavula together with two others who are not parties to the present appeal were committed for trial by the High Court of Tanzania at Moshi for an offence of murder. Accordingly, it was registered as Criminal Sessions Case No. 39 of 2019. Nonetheless, in terms of section 256A (1) of the Criminal Procedure Act (the CPA), the plea taking and the Preliminary

Hearing was transferred to the Court of the Resident Magistrate's Court of Moshi at Moshi before S. Massati, Senior Resident Magistrate with Extended Jurisdiction (SRM with Ext. Juris.) On 22n d October, 2020, S. Massati, SRM with Ext. Juris, conducted the plea taking and the preliminary hearing and adjourned the trial of the murder case to another date to be fixed by the Deputy Registrar of the High Court. On 13th July, 2021, the case was heard and tried by P. S. Mazengo, Principal Resident (PRM) with Ext. Jurs. On 25th August, 2021, P.S. Mazengo, PRM with Ext. Juris, delivered her judgment and found the appellants guilty as charged. Consequently, the appellants were convicted and each sentenced to a mandatory sentence of death by hanging. Aggrieved with both the conviction and sentence, each of the appellants lodged their separate notices of appeal to this Court but filed a joint memorandum of appeal comprised of nine grounds of appeal. Later on, pursuant to Rule 73 (1) of the Tanzania Court of Appeal Rules, 2009, they lodged two separate supplementary memoranda of appeal containing a total of eight (8) grounds of appeal. At the hearing of the appeal, the appellant was present in Court and he was represented by Mr. Joseph Peter, learned advocate. On the other hand, Ms. Janeth Sekule, learned Senior State Attorney assisted by

Ms. Tusaje Samwel, learned State Attorney, appeared for the respondent Republic. For reasons shortly to be revealed, we shall not reproduce the submissions made by Mr. Peter on the grounds of appeal fronted by the appellants. It suffices to state here that after the learned counsel for the appellants rested his submission, the Court invited the parties to address it on the propriety or otherwise of the proceedings of the trial court regard being that there was no transfer order for P.S. Mazengo, PRM with Ext. Juris, to hear and try the murder case. Mr. Peter readily conceded to anomaly that, generally, it is the High Court which is vested with the jurisdiction to hear and try all murder cases. However, he argued, the High Court may transfer the plea taking and the trial of the murder case to be conducted by a resident magistrate with extended jurisdiction. Making reference to page 35 of the record of appeal, he submitted that the plea taking and the preliminary hearing were transferred to S. Massati, SRM with Ext. Juris, but there is no transfer order expressly transferring the case to P.S. Mazengo, PRM with Ext. Juris, for trial of the murder case. Given the circumstances, Mr. Peter urged the Court to invoke the revisional jurisdictional power to nullify the proceedings and judgment of the trial court, quash the conviction and set aside the death sentence. On the 3

way forward, he urged the Court to remit the file to the High Court for trial according to law. On the part of the respondent, Ms. Sekule also conceded that there was no order of transfer of the case to P.S. Mazengo, PRM with Ext. Juris. She pointed out that the order of transfer appearing at page 35 of the record of appeal was for S. Massati, SRM with Ext. Juris, to conduct plea taking and preliminary hearing only. She also agreed that the entire trial court proceedings were a nullity as the trial court had no jurisdiction to try the murder case. She therefore beseeched us to invoke section 4 (2) of the Appellate Jurisdiction Act (the AJA) and nullify the proceedings, quash the conviction and set aside the sentence. She also urged us to order a retrial. Mr. Peter had nothing to rejoin. Having heard the concurrent submissions, we wish to start with the general principal that all murder cases are tried by the High Court. Nonetheless, section 256A (1) of the CPA allows the transfer of cases from the High Court to a specified resident magistrate with an extended jurisdiction. The said section provides that: "The High Court may direct that the taking o f 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) of section 173." [Emphasis added]. It follows then that, the High Court may transfer the case to a specified resident magistrate who had been invested with the extended jurisdiction pursuant to section 173 (1) of the CPA to preside over a case which is ordinarily presided by the judge of the High Court. In the case of Said Sosthenes & Another v. The Republic, MZA Criminal Revision No. 1 of 2012 (unreported) we emphasized that the transfer must be made under the proper provision of the law and to a specific, individual magistrate. In that appeal, the High Court invoked section 173 (1) of the CPA and transferred the trial of the murder case to B.D. Safari, a Resident Magistrate with Ext. Juris. Following such transfer, J.E. Mtotela, conducted a Preliminary Hearing albeit on extended jurisdiction and the trial was before Rweyemamu, J. at the High Court. The transfer order was held to be null and void ab initio for being made under wrong provision of the law as the proper provision is 256A (1) of the CPA. The Court went further to state that: "Even if the proper provision o f the CPA would be invoked (section 256A (1) above), yet there is

another hurdle to be overcome. The order was directed to Mr. Safari. But as stated above, the Preliminary Hearing was conducted by Mr. Mtotela, who had not been invested with the power to conduct the hearing in that particular case. It is worth noting that orders made under section 256A (1) of the CPA, are directed to a particular, individual magistrate with extended jurisdiction ; not to the court where there could be more than one such magistrate and then any one o f them conducts the hearing. Were it to happen that the magistrate assigned to conduct such hearing is incapable of proceeding with the hearing, then a subsequent magistrate has to be specifically assigned by an order issued by the relevant judge of the High Court." [Emphasis added]. See also: Theophili Kamili v. The Republic, Criminal Appeal No. 100 of 2012 (unreported) and Hamis Said @ Juma v. The Republic (Criminal Appeal No. 627 of 2021) [2024] TZCA 819 (23 August 2024; TANZLII). In this appeal, the record of appeal, at page 35, bears out that, on 16th September, 2020 the High Court made an order to transfer the plea

taking and the preliminary hearing of the Criminal Sessions Case No. 39 of 2019 from the High Court to the Court of Resident Magistrate's Court of Moshi at Moshi before S. Massati, SRM with Ext. Juris. The said case was subsequently registered as Extended Jurisdiction Criminal Session Case No. 22 of 2020. Massati, SRM with Ext. Juris, duly conducted the plea taking and the preliminary hearing. She then adjourned the trial of the case to another date. The record of appeal further shows that P.S Mazengo, PRM with Ext. Juris, took over the proceedings, heard and tried the appellants after Massati, SRM with Ext. Juris, had completed the plea taking. We are alive with the fact that P.S. Mazengo, PRM with Ext. Juris, had been published in the official Gazette under section 173 of the CPA as a magistrate invested with extended jurisdiction to try any category of offences ordinarily tried by a Judge in the High Court. Nonetheless, we are settled in our mind that P.S. Mazengo, PRM with Ext. Juris, cannot assume jurisdiction which she had not been conferred with. It is trite law that jurisdiction is statutory provided for. Therefore, in order for her to take over the proceedings, there ought to have been an order made by the High Court pursuant to section 256A (1) of the CPA, transferring the trial of the case to her. Given that there was no such order and she assumed powers which she did not have, the entire proceedings

conducted by her from 13th July, 2021 to 25th August, 2021 when she delivered the judgment and sentenced the appellants are a nullity. We are inclined to invoke our power of revision under section 4 (2) of the AJA to nullify all the proceedings before P.S Mazengo, PRM with Ext. Juris., quash the resultant judgment and set aside the conviction and sentence of the appellants. We make an order that the record be remitted to the High Court for a retrial according to law. Meanwhile the appellants shall remain in remand custody waiting for the retrial of their case. DATED at MOSHI this 26th day of November, 2024. The Judgment delivered this 28th day of November, 2024 in the presence of the appellants in person and Mr. Makore Maheri, learned State Attorney for the respondent/Republic is hereby certified as a true B. M. A. SEHEL JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL