Donatus Yustad @ Begumisa vs Republic (Criminal Appeal No. 365 of 2016) [2017] TZCA 279 (14 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUSS A, J.A.. MUGASHA, J.A.. MWAMBEGELE, J.A.) CRIMINAL APPEAL NO. 365 OF 2016 DONATUS YUSTAD @ BEGUMISA..........................................APPELLANT VERSUS THE REPUBLIC.................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania At Bukoba) (Kairo, J.^ Dated the 23r d day of June, 2016 In Criminal Appeal No. 56 of 2015 RULING OF THE COURT 13th & 14th December, 2017 MUGASHA, J.A.: In the District Court of Karagwe, the appellant and two other persons were charged with Armed Robbery contrary to section 287A of the Penal Code, [CAP 16.RE.2002]. It was alleged that, on 27/04/2013 at around 9.30 p.m at Kihanga village in Kyerwa District within the region of Kagera, the trio, jointly and i

together did steal from Siraju Badru (PW1) a motorcycle with Registration No. T.862 CHQ make SANLG, chassis number LBRSJB51C903096, Engine No. 12974842 valued at Tshs. 2,000,000/=. In order to obtain the said motorcycle, they assaulted Siraju Badru (PW1) with a bush knife and a hammer. They all refuted the charge consequent to which to prove its case, the prosecution paraded five witnesses. The prosecution evidence was to the effect that, on the fateful day, the appellant hired PW1 a motorcycle boda boda rider to take him to Kihanga village. This was witnessed by Mujuni Vicent the owner of the motorcycle in question who testified as PW3. On the way to Kihanga, in a bid to resist the stealing of the motor cycle, PW1 was hit by the appellant with the hammer. Then, the two other persons surfaced, kicked and struck PW1 with the hammer and the bush knife. PW1 became unconscious and the robbers disappeared with the motorcycle. On 28/4/2013, F.6586 DC Masaka who testified as PW2, arrested the two other accused persons and on the following day, arrested the appellant who was found riding the motorcycle in question. 2

After a full trial, the two other persons were found not guilty and were acquitted. The appellant was found guilty, convicted and given a statutory minimum jail term of thirty (30) years. Dissatisfied, the appellant preferred an appeal before the High Court which was dismissed in its entirety hence this second appeal. The appellant impugns the decision of the High Court in the Memorandum of Appeal which contains fourteen (14) grounds of complaint. However, we shall not dwell into the respective details on account of what we shall unveil in due course relating to the propriety of succession of magistrates. At the hearing of the appeal the appellant appeared in person whereas the respondent Republic was represented by Mr. Athumani Matuma, learned Senior State Attorney. We initially wished to satisfy ourselves on the propriety of the trial judgment composed by the successor magistrate who did not hear the evidence and if he had jurisdiction to do so. In the District Court, the first Magistrate who presided over the trial was P.J. Matete, RM. He recorded the entire evidence of both the

prosecution and the defence. After the close of the defence case on 11/3/2014, he made an order that judgment was to be delivered on 28/4/2014. However, he never accomplished the task and instead, it is one M. Paul - RM who composed the Judgment subsequent to what transpired as reflected in the trial proceedings at page 28 of the record of appeal as follows: " Date: 23/6/2014 Coram: M.Paul- DRM P/PROS: D/CZaina B/C: G. Ndaula Accused: Present. PP: The case is for delivery o f Judgment Court: The trial magistrate did not complete to write the judgment and the accuseds having (sic) addressed in terms o f section 214 o f the Criminal Procedure Act [Cap 20 RE: 2002] they all did state: 1st accused: I agree, the judgment be written by you. 2n d accused: I agree, the judgment be written by you. J d accused: I agree, the judgment be written by you.

Order: Judgment on 8/7/2014 Sgd: M.Paul-DRM 23 / 6 / 2014 ". Subsequently, M. Paul-DRM delivered the judgment on 08/07/2014. Having invited Mr. Matuma to address the Court, he submitted that the trial magistrate who heard the evidence ought to have composed the judgment in terms of section 312 (1) of the Criminal Procedure Act [CAP 20 RE.2002]. He therefore argued that, since it is not the trial magistrate who composed the trial judgment, the purported judgment is a nullity and no appeal could stem therefrom. In this regard, the learned Senior State Attorney urged us to quash the trial court judgment, proceedings of the High Court and order a fresh trial whereby in case of conviction, the term of imprisonment already served by the appellant be taken into account. On the other hand, the appellant being a lay person had nothing useful to add apart from leaving the matter to be determined by the Court. We have carefully considered Mr. Matuma's submission and we are totally alive to the provisions of section 214 (1) of the CPA read together

with section 312(1) of the Act. Section 214(1) of the CPA among other things provides as follows: "214.-(1) Where any magistrate, after having heard and recorded the whole or any part o f the evidence in any trial or conducted in whole or part any committal proceedings is for any reason unable to complete the trial or the committal proceedings or he is unable to complete the trial or committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial or committal proceedings, as the case may be, and the magistrate so taking over may act on the evidence or proceeding recorded by his predecessor and may, in the case of a trial and if he considers it necessary, resummon the witnesses and recommence the trial or the committal proceedings." [Emphasis supplied].

In the light of the emphasized expressions, a successor magistrate can only assume jurisdiction and take over if the predecessor magistrate is for any reason unable to complete the trial, or as the case may be within a reasonable time. Also, where a trial is conducted by more than one magistrate, the accused should be informed of his right to have the trial continue or start afresh and also right to recall witnesses. On the other hand, section 312 (1) of the CPA provides: " Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act\ be written by or reduced to writing under the personal direction and superintendence o f the presiding judge or magistrate in the language o f 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 the presiding officer as of the date on which it is pronounced in open court".

At the outset, we wish to point out that, we have no doubts on the implications in law of the permissive language used in section 214 (1) of the Act. However, in the case of r ic h a r d kam ugisha @ C h a rle s SAMSON AND fiv e o t h e r s vs re p u b lic , Criminal Appeal No.59 of 2002 (unreported), the Court, apart from acknowledging the permissive language used in section 214 (1) of the Act, it emphasized that the allowed discretion must be judicially exercised in the interests of justice having said that: " .... The word used is in section 214 (1) of the Criminal Procedure Act is 'may' which indicates discretion but in view o f the fact that the right to a fair trial is fundamental the court has an obligation to conduct a fair trial in all respect..." Therefore the trial was nullified in the case r i c h a r d kam ugisha @ C h a rle s samson (supra) since, it was conducted by three magistrates without complying with section 214 (1) of the CPA. The rationale for this stance, was emphasized in the case of REMEBISELE S/O EDISON VS r e p u b lic (1967) HCD n. 72 where the 8

court said, such discretion given to a magistrate should be exercised with great care because the primary purpose of the hearing to permit the court to observe the demeanour and evaluate the credibility of all the witnesses. Moreover, as far as assessment of credibility is concerned, a magistrate who sees and hears the witness is placed in a better position than the successor. This decision was followed in the unreported cases of e lis a m ia onesmo vs re p u b lic , Criminal Appeal No. 160 of 2003 and sh a b a n i s/o s a id vs re p u b lic , Criminal Appeal No. 267 of 2009 and later in the case of SALIMU HUSSEIN vs re p u b lic , Criminal Appeal No. 3 of 2011(unreported) where the Court making reference to section 214 (1) of the Criminal Procedure Act (supra) emphasized that as follows: "... under this section , the second subsequent magistrate can assume the jurisdiction to take over and continue the trial., and... act on the evidence recorded by his predecessor only if the first magistrate is for any reason unable to complete the trial at ah\ or within a reasonable time. Such reason or 9

reasons must be explicitly shown in the trial court's record of proceedings'" We wish to emphasise that, the taking over by the successor magistrate without assigning reasons puts to question the jurisdiction of the successor as we intimated in the case of a b d i masoud @ iboma and 3 o t h e r s vs re p u b lic , Criminal Appeal No. 116 of 2015 (unreported). Among other things we said: "7/7 our view, under s. 214 (1) o f the CPA it is necessary to record the reasons for reassignment or change o f trial magistrate. It is requirement o f the law and has to be complied with. It is a prerequisite for the second magistrate's assumption of jurisdiction. I f this is not complied withf the successor magistrate would have no authority orjurisdiction to try the case." [Emphasis supplied]. In the case at hand, we have found no reason for the taking over by the successor magistrate as he was not mandated by section 214 (1) of the CPA to write a judgment in a case he never tried. In the

circumstances, we agree with Mr. Matuma that, the trial magistrate had to write the judgment as mandatorily directed under section 312(1) of the Act. Therefore, in the present case, in the absence of assigning reasons for the taking over, the successor magistrate did not assume jurisdiction to compose the trial court's judgment. This occasioned a gross miscarriage of justice - See the case r i c h a r d kam ugisha @ CHARLES SAMSON AND FIVE OTHERS VS REPUBLIC and ABDI MASOUD @ IBOMA AND 3 OTHERS VS REPUBLIC (supra). Apparently, the said anomaly affecting the trial could have been timely remedied by the first appellate court which could have invoked section 214 (2) of the CPA which provides: "Whenever the provisions o f subsection (1) apply the High Court may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the magistrate before the conviction was had, if it is o f the opinion that the accused has been materially prejudiced thereby and may order a new trial" li

However, it is unfortunate that the anomaly missed the eye of the first appellate court. In the light of the above, we are satisfied that the appellant and two other persons were dully prejudiced by the unilateral succession of the magistrates. As earlier stated, the successor magistrate did not assume jurisdiction to compose the judgment and we hereby nullify it. As a result, we proceed to hold that, since no appeal could stem on a null judgment, the appeal in the High Court was misconceived in law. In view of the aforesaid, we hereby invoke the provisions of section 4(2) of the Appellate Jurisdiction Act [cap 141. re 2002] and accordingly, nullify the judgment composed by Paul - RM including the sentence. Consequently, since no appeal stems on a nullity, the entire proceedings and the judgment of the High Court are nullified. In the interest of justice, the record is remitted back to the trial court. The succeeding magistrate should ascertain, inform the accused persons and put on record the reasons which disabled the predecessor to continue with composing the judgment and proceed with the matter according to the dictates of section 214 (1) of the CPA. In case of conviction, the period spent by the appellant 12

behind bars should be taken into account. In the meantime, the appellant should remain in custody the course of action directed above. DATED at BUKOBA this 14th day of December, 2017. K. M. MUSSA JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. P. A SENIOR DEPUTY REGISTRAR COURT OF APPEAL 13