Joachim Ikechukwu Ike vs Republic (Criminal Appeal No. 272 of 2016) [2018] TZCA 643 (12 July 2018)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MBAROUK. J.A., NPIKA. J.A.. And MWAMBEGELE. J.A.) CRIMINAL APPEAL NO. 272 OF 2016 JOACHIM IKECHUKWU IK E............................................. APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) (Mwinqwa, J.) dated the 10th day of June, 2016 in Criminal Sessions Case No. 40 of 2014 JUDGMENT OF THE COURT 4th & 12th July, 2018 MWAMBEGELE, J.A.: The accused person Joachim Ikechukwu Ike, a Nigerian National, was arraigned in the High Court of Tanzania sitting at Moshi for the charge of Trafficking in Narcotic Drugs contrary to section 16 (1) (b) of the Drugs and Prevention of Illicit Trafficking in Drugs Act, Cap. 95 of the Revised Edition, 2002 as amended by Act No. 6 of 2012 (henceforth "the Drugs Act")- It was alleged that he, on 11.05.2013 at KIA area within the Hai District of Kilimanjaro Region, was found trafficking 6969.38 grams of heroin hydrochloride valued at Tshs. i

313,622,100/=. Having pleaded not guilty to the charge, a full trial ensued after which he was found guilty, convicted and sentenced to life imprisonment. He now appeals to this Court against both conviction and sentence on seven grounds of complaint. For reasons that will be clear shortly, we will not delve into the facts of the case. Nor will we deal with the grounds of appeal. When the appeal was called on for hearing on 04.07.2018, the appellant appeared in person, unrepresented. Messrs. Abdallah Chavula and Omari Kibwanah, learned Senior State Attorneys and Mr. Kassim Nassir, learned State Attorney joined forces to represent the respondent Republic. Before we could allow the appellant argue his appeal, Mr. Chavula rose to pray to be heard on what he called a pertinent procedural point of law. Having been alerted that it was a procedural point of law, we had no hesitation in our minds to give him the floor. The learned Senior State Attorney submitted that on the previous day when making preparations for the hearing of the appeal, they discovered that the trial of the appellant was conducted in Kiswahili

but no interpreter was involved notwithstanding the fact that the appellant did not know Kiswahili. At page 38 of the Record of Appeal, he elaborated, when the matter was called for hearing for the first time, there was an interpreter; a certain Audax Manumba but it did not proceed on that date. At page 39, he went on the trial commenced and there is no record that an interpreter was involved that day and throughout the trial. The learned Senior State Attorney went on to submit that at page 26 of the Record of Appeal, the court so stated that there was need of an interpreter in that the accused did not understand Kiswahili and the statements of witnesses were in Kiswahili. This, he went on, is proved by the record again at page 38 when the case came for hearing for the first time; there was one. The learned Senior State Attorney underlined that the proceedings from page 39 onwards do not show if the interpreter was involved which means that there was no interpreter. He submitted that section 211 (1) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 (the CPA) requires the trial to be conducted in the language understood by the accused. Omission to comply with

the provision renders the whole proceedings null and void, he submitted. He thus prayed that the Court invokes its powers vested by section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 of the Revised Edition, 2002 (henceforth "the AJA") to have the whole proceedings nullified and judgment, conviction quashed and the sentence set aside and order a retrial before another judge and a new set of assessors. An order for a retrial was made by the learned Senior State Attorney basing on the fact that, according to him, save for the ailment, there was ample evidence to ground a conviction against the appellant. The learned Senior State Attorney did not cite any case law to buttress his propositions. Responding to Mr. Chavula's submissions, the appellant, fending for himself, kicked off by reminding the Court of the old adage with a legal flavour that goes; justice delayed is justice denied. Conceding that the record does not show that there was an interpreter involved throughout the trial, to the contrary, there was one throughout the trial. 4

On the prayer for a retrial, the appellant submitted that there was insufficient evidence to mount a conviction. Given that he had spent five years behind bars, no retrial should be ordered, he argued. All in all, the appellant prayed for justice to be done. To the appellant's response, the three learned State Attorneys appearing for and on behalf of the respondent Republic had nothing to rejoin. We have subjected the arguments of both parties to proper scrutiny they deserve. Indeed, Mr. Chavula has raised a very pertinent point which, if proved, will have the effect of making the whole proceedings and its flanking judgment a nullity. To have a better understanding of the findings and orders we are going to make shortly, we propose to reproduce what happened on the first day when the case was called on for hearing on 23.11.2015. This is what transpired in court at the trial: "Date: 23/11/2015 Coram: B.B. Mwingwa -J For Republic

For Accused Assessors:

1. Mussa Shirima - 53 yrs
2. Sara Mchomvu - 50 yrs
3. Noti Brugya Tarimo C/C: Ternba Mr. Salaji Iburu, Julius Sema/i, Tamari Mndeme SSA for republic Mr. Njau Philip and Capt. Sawayaeli for Accused Court: Interpreter: Mr. Audax Manumba 29 years Court: The Accused is asked whether he have any objection with court assessors and he said Accused: I have no any objection Sgd: B.B. MWINGWA JUDGE 23/11/2015 M/S. Salaji: I pray this case to commence tomorrow morning because today we have one case, today we have eight witnesses, so I pray 6

before you to warn them, so as to appear tomorrow. Sgd: B.B. MWINGWA JUDGE 23/11/2015 Mr. Njau: We pray to be served with statement o f the accused and caution statement o f the Accused, we prayed to be supplied with handwritten statement Sgd: B.B. MWINGWA JUDGE 23/11/2015 Court: The prayer o f Mr. Njau is premature but he is allowed to read the original statement if he finds any anomaly he may raise it during the proceeding. Sgd: B.B. MWINGWA JUDGE 23/11/2015 Order: Hearing on 24/11/2015. Sgd: B.B. MWINGWA

JUDGE 23/11/2015" On the slated 24.11.2015, this is what transpired as appearing at pp 39 - 40 of the record: "Date: 24/11/2015 Coram: B.B. Mwingwa -J For Republic - Mr. Salaji, Julius, Mndeme For accused - Mr. Njau, Philip , Sawaya Accused: Assessors:

1. Mussa Shirima - 53 yrs
2. Sara Mchomvu - 50 yrs
3. Noti Brugya Tarimo C/C:Temba, R Information o f Trafficking in Narcotic Drugs Contrary to section 16(1) (b) (i) o f the Drugs and Prevention o f Illicit Traffic in drugs o f the Penal Code is read over and explained to the Accused person in his own language and he is required to plead thereto:- Accused Plea: "Not true" Court: Entered plea o f not guilty. 8

Sgd: B.B. MWINGWA JUDGE 24/11/2015 Mr. Salaji: Today we have 3 witnesses we pray to proceed. Sgd: B.B. MWINGWA JUDGE 24/11/2015 PROSECUTION CASE OPENS PW. 1: Machibva ZHiwa Peter ; Tanzanian. Adult. Christian, Sworn and state:- I am working at the Chief Government Chemistry Office..." As seen in the above quoted part of the proceedings, the witness went on to testify without any interpreter. That went on throughout the trial. The interpreter featured only on the first day when the matter was slated for hearing (but could not proceed) where Audax 9

Manumba is shown as an interpreter. Nowhere else in the record an interpreter features. We understand that the appellant wanted the appeal to be heard on the ground that; first, justice delayed is justice denied and, secondly, despite not being apparent on the record, there was, according to him, an interpreter who translated Kiswahili into English and vice versa. We are afraid, we are not going to buy the appellant's proposition. When we asked the appellant if he was aware of another saying with equal legal flavour that went: justice hurried is justice buried, we meant to tell him that our jurisprudence recognized presumption of sanctity of the court record. In this jurisdiction, there is always a presumption that the court record accurately represents what actually transpired in court. In Halfani Sudi v. Abieza Chichili [1998] TLR 527, at 529 we observed: "We entirely agree with our learned brother, MNZA I /AS, J.A. and the authorities he relied on which are loud and dear that "A court record is a serious document. It should not be lightly impeached": Shabir F.A. Jessa v. 10

Rajkumar Deogra, [CAT- Civil Reference No. 12 o f 1994 (unreported)], and that "There is always the presumption that a court record accurately represents what happened": Paulo Osinya v. R. [1959] E.A. 353]. In this matter, we are o f the opinion that the evidence placed before us has not rebutted this presumption ." With the foregoing in mind, we think we are inclined to share the view of the respondent Republic that we will be safe to, and the interest of justice so demands, follow the court record. It is the court record which accurately represents what transpired in court. The record in the present application has not shaken this presumption. For this reason, we agree with the respondent Republic that no interpreter was involved in the trial of the appellant. What then is the effect of the ailment? This is the question to which we now turn. Section 211 (1) of the CPA provides: "211 - (1) Whenever any evidence is given in a language not understood by the accused and he is present in person, it shall be

interpreted to him in open court in a language understood by him". [Emphasis added]. In the instant case, the record has it that there was no interpreter to interpret Kiswahili into English and vice versa so as to make the appellant aware of the proceedings against him. As good luck would have it, this is not a virgin territory; it has been traversed by the Court before. In Salumu Nhumbili v. Republic, Criminal Appeal No. 120 of 2009 (unreported) we observed: "In the present case PW2 Sara d/o Joseph gave evidence in open court in the presence o f the appellant who was the accused person in the trial court. The evidence was interpreted so Section 211 (1) was complied with. Section 128 was also complied with in that there was an interpreter to translate the signs made by the deaf mute into oral language but the drawback here is that the interpreter was not sworn in accordance with the law. As we held in Moses Mayanja Msoke v. Republic, Criminal Appeal No. 56 o f 2009 such

evidence should be expunged from the record which we hereby do." [Emphasis supplied]. In the recent past, we were also confronted with an akin situation in Lekeni Lokondorotu and Another v. Republic, Criminal Appeal No. 338 of 2015 (unreported). In the Reasons we rendered on 15.10.2015 reciting our previous stance in Mpemba Mponeja v. Republic, Criminal Appeal No. 256 of 2009 (unreported), we observed on the effect of failure to comply with section 211 (1) of the CPA was to render the proceedings a nullity: 'We have perused the record and noted with concern that at times an interpreter was provided and at times not We consider this to be a fundamental breach o f the appellant's right to understand and follow up proceedings o f the case against him. It was a fatal omission." [See also: Marko Patrick Nzumikila & anor v. the republic, Criminal appeal No. 141 of 2010 (unreported)]. 13

In the light of the foregoing authorities, we are of the firm view that the effect of failure to comply with the provisions of section 211 (1) of the CPA is to render the proceeding a nullity. Following suit, the proceedings in the present case which did not comply with section 211 (1) of the CPA were but also a nullity. The question which pops-up at this juncture is what should be the way forward? The appellant is of the firm view that there was shaky evidence to prove the case to the required standard; that is, beyond reasonable doubt. The respondent Republic is of quite the opposite view; that there was ample evidence to mount a conviction against the appellant. We, on our part, have dispassionately examined the record of appeal. Having so done, and having considered the ingredients to consider for a retrial as provided for in Fatehali Manji v. Republic [1966] 1 EA 343, we think justice will smile if a retrial is ordered. For the avoidance of doubts, in Fatehali Manji (supra), the erstwhile Court of Appeal for East Africa enunciated, at page 344, the principles to consider on whether or not a retrial should be ordered. The East African Court of Appeal articulated:

"... in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up the gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake o f the trial court for which the prosecution is not to blame, it does not necessarily follow that retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where interests o f justice require it and should not be ordered where it is likely to cause an injustice to the accused person." We have scanned through the record of appeal in the light of both parties' submissions. Having so done, we think, there was prima facie, sufficient evidence through which to mount a conviction against the appellant. We therefore engage section 4 (2) of the AJA which bestows upon us powers of revision to nullify the proceedings and judgment of the trial High Court and quash the conviction and set 15

aside the sentence meted out to the appellant. We consequently order that the record be remitted to the High Court for an expeditious retrial of the appellant before another judge and another set of assessors. Order accordingly. DATED at ARUSHA this 11th day of July, 2018. M. S. MBAROUK JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the Original. j DEPUTY R E G IS T R Y " c o u r t - o f W E e a l 16