Mwita Matiku @ Mahee Wilson & Another vs Republic (Criminal Appeal No. 235 of 2013) [2017] TZCA 1171 (23 September 2017)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MBAROUK, J.A., MUGASHA, J.A., And MWAMBEGELE, J.A.) CRIMINAL APPEAL NO. 235 OF 2013 MWITA MATIKU @ MAH EE WILSON -l RAPHAEL MASSIE @ MABOTO _f- ................................... APPELLANTS VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora.) (Mruma, J.) MUGASHA, J.A.: Dated the 31 st day of July, 2013 in (DC) Criminal Appeal No. 13 of 61 of 2013 RULING OF THE COURT In the District Court of Shinyanga, the appellants were charged with armed robbery contrary to section 287 A of the Penal Code Cap 16 R.E 2002. The appellants did not plead guilty to the charge and after a full trial they were convicted and given a jail term of thirty (30) years with twelve -~ strokes of the cane. Their first appeal was not successful following the 1

dismissal by the High Court which sustained the conviction and the sentence. ... . .. - . Still aggrieved, the appellants have preferred the present appeal to the Court but for reasons which will become apparent in due course, we shall not reproduce the grounds of complaint. The appeal was confronted by the respondent's notice of preliminary objection challenging the competence of the appeal for non-complia~ce with Rule 68 (2) of the · Tanzania Court of Appeal, Rules, 2009 (the Ruies). At the hearing, the appellants were represented by Mr. Kamaliza Kamoga Kayaga, learned counsel. The respondent Republic was represented by Mr. Deusdedit Rwegira, learned State Attorney. Addressing the Court on the _preliminary point of objection, the learned State Attorney submitted that the appellants' notices of appeal lack the nature of an order desired to be appealed against. He clarified that, in the· respective notices of appeal, it is not clear if the appellants are appealing against either conviction or sentence or both. As such, he argued, the notices of appeal are defective having contravened the mandatory requirements of Rule 68 (2) of the Rules. Relying on Rule 68 2 r f

(1) of the Rules, the learned State Attorney submitted that, since under Rule 68(1) of the Rules it is the notice of appeal which institutes an appeal, the defective notices herein did not institute any appeal and as suc::h, the purported appeal is incompetent deserving to be struck out. To support his proposition, the learned State Attorney referred us to the case of KIGOMA RENALD @ RABANI AND ANOTHER VS REPUBLIC, Criminal Appeal No. 234 of 2013 (unreported). On the other hand, Mr. Kayaga learned counsel conceded that the notices of appeal are defective but for lacking the order desired to be appealed against which is the dismissal order of the appellants' first appeal by High Court. However, with leave of the Court, the learned counsel asked the Court to invoke its revisional jurisdiction to correct errors apparent on the face of record due to the incurabie procedural irregularity In the trial proceedings for non-compliance with section 214 (1) of the Criminal Procedure Act [CAP 20 RE. 2002] (the CPA). He pointed out that, the trial proceedings were presided over by different magistrates and no reasons were given for the change. He argued this to be an incurable irregularity which adversely impacted on the appeal before the High Court which 3

emanated from the irregular proceedings. As such, he urged the Court to nullify the proceedings of the courts below, quash the conviction and the sentence and order a fresh trial. To support his propositions, he cited the - cases of FRANK MATHIAS VS REPUBLIC, Criminal Appeal No. 269 of 2008, ABDULKADIR MPANDACHARO VS REPUBLIC, Criminal Appeal No. 134 of 2007 and MATHIAS KALONGA VS REPUBLIC, Criminal Appeal No. 318 of 2007 (all unreported). In the three said cases, apart from the Court finding the appeals were not competent bye reason of - defective notices of appeal, it invoked its revisional powers to correct irregular proceedings of the two courts below. In reply, the learned State Attorney initially opposed the appellants counsel's prayer to the Court to invoke its revisional jurisdiction. However, on reflection, he conceded that since the trial proceedings were flawed for non-compliance with section 214 (1) of the CPA, this is a fit case for the Court to invoke its revisional jurisdiction to remedy the defect by quashing the proceedings of the courts below and ordering a fresh trial before another magistrate. 4

As indicated at pages 185 to 186 of the record of appeal are the notices of appeal which do not show the nature of order which the appellants desired to· appeal against in this second appeal: What should be contained in the notice of appeal is clearly specified under Rule 68(2) of the Rules, which among other things; mandatorily require every notice of appeal to briefly state the order or finding which it is desired to be appealed against. There are a number of decisions where the Court had the occasion ,,. to discuss the import-o£Rule·61(l}-and (2}of the old-CourtofAppeal-Rules 1

1979 which is similar to current Rule 68(1) and (2) of the Rules including the cases of DAUD MWAMPAMBA VS REPUBLIC, Criminal Appeal No. 204 of 2009 and MAJID GOA VS REPUBLIC, Criminal Appeal No. 268 · (both unreported). In MAJID GOA's case the Court categorically said: -- ·~·-· Under rule 61 (2) of the Court Rules/ it is mandatory for the appellant's notice to state the nature of conviction/ sentence/ or finding against which it is desired to appeal. The Court cannot ... disregard the anomaly in the notice of appeal on 5

record because in terms of Rule 61(1) of the Court Rules a notice of appeal institutes an appeal. "

• • .,. ... - In view of the above, this being a second appeal, the lacking nature of finding which is desired to be appealed against in the appellants' notices of appeal render such notices fatally defective in terms of Rule 68(2) of the Rules. Thus, since it is the notice of appeal which institutes an appeal in terms of Rule 68(1) of the Rules, the defective notice of appeal did not '"' ... ,,-.- institute an ·appea1:· Having found that no appeal was instituted by the defective notices of appeal, the question to be addressed is how do we remedy the irregular trial proceedings conducted without complying with section 214(1) of the CPA? In the unreported cases of CHAMA CHA WALIMU TANZANIA VS THE ATTORNEY GENERAL, Civil Application No.151 of 2008 and the DIRECTOR OF PUBLIC PROSECUTIONS VS ELIZABETH MICHAEL KIMEMETA @ LULU, Criminal Appl_ication No. 6 of 2012, the Court was faced with a similar situation whereby it found both applications before it not competent pursuant to the preliminary point of objections againstthe respective applications. However, there were glaring illegalities on the face 6

of the record and if not corrected would be tantamount to perpetuating illegalities. Thus, apart from making findings that the matters were not properly before the Court, it opted not to strike out the applications in order to continue to be seized with the record so as to remedy the defects in the High Court proceedings by invoking revisional powers bestowed upon it under section 4(3) of the Appellate Jurisdiction Act. In the light of what we said in the cases of CHAMA CHA WALIMU TANZANIA (supra) and ELIZABETH MICHAEL KiMEMETA @ LULU (supra), we accordingly uphold the point of preliminary objection, and hold that the present appeal is incompetent on account of defective notices of appeal. Having so done, normally, we would have proceeded to strike out the appeal forthwith. However, because of the incurable irregularity which is apparent on the face of record, we shall not strike out the appeal for reasons to be stated. In the present matter it is no.t in dispute that, the trial proceedings were presided over by different magistrates and no reasons were given. 'Vhere the trial proceedings are conducted by more than one magistrate, section 214(1) of the CPA gives following directions: 7

"Where any magistrate/ after having heard and recorded the whole or any part of 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 vvho has and 11vho,;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]. 8

The provisions of section 214 (1) of the CPA make it a mandatory condition that a case which has been partly heard by one magistrate · may be transferred to-a successor magistrate only ·if, there is a reason·· for failure by the predecessor magistrate to complete it. Such reason must be recorded by the successor magistrate. The reasons for compliance with the requirement have in a numerous occasions been emphasized by the Court including the case of SALIM HUSSEIN VS • 0 ·,. -- • REPUBLIC,,Criminal-Appeal- No. 3 of 2011-, (unrep0rted) where we ... said: "We only wish to emphasise here that under this section/ the second subsequent magistrate can assume jurisdiction to take and continue with the trial.: .. ·and act on the evidence recotaed·by his· predecessor only if the first magistrate 'is for any reason unable to complete the trial' at all 'within a reasonable time'. Such reason or reasons must be explicitly shown in the trial court's record of proceedings. // 9

[Emphasis supplied]. A similar position was also stated by the Court in the case of ISSACK ·~ - STEPHANO KILIMA VS REPUBLIC, Criminal Appeal No. 273 of 2011 (unreported) where the successor magistrate took over the hearing after his predecessor heard all the prosecution witnesses and proceeded with the case without assigning reasons for the change. The Court had this to say: 11 We are of the considered view that it is vety important that the magistrate taking over should state reasons for doing so. One magistrate cannot simply continue with the trial by another magistrate without stating the reasons for change. This is a requirement under the law and therefore has to be complied with. It is also important for the sake of transparency so as not to prejudice the ace.used in any way." 10

., The Court thus, held that non compliance with the requirement to give reasons under section 214 (1) of the CPA rendered the proceedings by the successor magistrate a nullity; Where the successor magistrate does not state reasons for change of the presiding magistrate that puts to question his/her, assumption of jurisdiction to preside over the matter. This was emphasized when the Court was confronted with a scenario of a change of magistrates in a single trial in tne case of ABDIMASOUD - @ IBOMA AND THRcE ' OTHERS VS REPUBLIC, Criminal Appeal No. 116 of 2015 (unreported), this Court held thus: '~-- In our view, under section 214(1) of the CPA, it is necessary to record the reasons for reassignment or change of trial court magistrates. It is a prerequisite for the second magistrate's . assumption of jurisdiction. If this is not complied with, the successor magistrate would have no authority or jurisdiction to try . . the case." 11

[Emphasis supplied]. Furthermore, the essence of complying with section 214(1) of the .... - - . CPA in case of change of magistrate in a single trial, is to prevent chaos in the administration of justice because anyone for personal reasons could pick up any file and deal with it to the detriment of justice. (See PRISCUS KIMARO vs REPUBLIC, Criminal Appeal No. 301 of 2013 (unreported). It is equally important to point out that, the duty to give reas'ons for change· of the presidin'g magistrate is wlthin the realm ·or· -- - the successor magistrate and not the magistrate in charge. (See MATHIAS KALUNGA VS REPUBLIC (supra). In the present matter, apart from the case file being handled by five different magistrates, two of them presided over the trial on different occasions. After the preliminary hearing, the actual trial commenced on 23/12/2010 before Masinge R.M., who took down the evidence of PWl, Magange s/o John. The hearing was th_ereafter adjourned to 19/1/2011, when Magori SRM., having reassigned the case file to himself, addressed parties on reasons for the change in terms of section 214(1} of the CPA, However, no evidence was taken by Magori SRM., and the hearing was 12

adjourned to a later date. Finally, on 29/3/2011 the case file was in the lap of Chaba R.M., and what transpired is reflected at page 28 of the record of -- appeal as follows: - ''Coram: M.J.Chaba RM Accuseds: All present CC- Present Kulwa P.P MR.-H.lV&OLE - STJrTE AT7VRNEY-FOR-THE PROSECUTION-· MR.H.NGOLE- STATE ATTORNEY- Your honou0

the matter comes for mention. For the last mention date the matter could be tried de nova or otherwise. The answer from the accused persons shows that both preferred the matter to be tried de nova following the transfer of the then trial magistrate. Today no witnesses have shown up. I pray for another hearing date. That is all. Court:

1. Hearing on 12/4/2011.

2. Witnesses to be re-summoned. 13

3. Accused to remain in custody'~ On 12/5/2011, Chaba R.M., proceeded with the trial and handed -- down the judgment on 07/02/2012. He did not record the reason for the change from the predecessor magistrate which is a clear non-compliance with section 214(1) of the CPA and the trial was vitiated. In this regard, and as we said in ABDIMASOUD @ IBOMA AND THREE OTHERS VS REPUBLIC,( supra), in the absence of reasons for change, the successor ·,,!~··_ :·' .··-:-.'· .,. - ·,.-·· .. -··: ':c.;·,·. ~ . ' ~·-,,e.., ·- - magistrate did not assume the ··jurisdiction to try the matter and he embarked on trial which is, a nullity. We are alive to the fact that, section 214 (1) of the CPA is schemed in the manner which the successor magistrate is not strictly bound to have the accused person's opinion on whether or not the case should start afresh. That is entirely within his discretion to so order depending on the peculiar circumstances of each case. (See MSAMI ALLY vs REPUBLIC Criminal Appeal No. 280 of 201.5 (unreported). However, it is incumbent on the successor magistrate to give and record reasons for the change or else section 214(1) of the CPA will be in jeopardy and the trial will be vitiated .. Apparently, the trial court's omission missed the eye of the High Court 14

which could have remedied the situation when the first appeal was before it by invoking section 214 (2) of the CPA which provides:

"Whenever the provisions of subsection (1) apply the High Court ma½ whether there be an appeal or not set aside any conviction passed on evidence not wholly recorded by the magistrate before the conviction was ha~ if it is of the opinion that the accused, has been materially- prejudiced 'thereby and may order a new trial. However, the High Court as well embarked on a nullity having heard an appeal emanating from null trial proceedings. In the light of cited case law, we are in agreement with both counsel and hold that failure to comply with the provisions of section 214 (1) of the CPA is an incurable irregularity. We as such, in the exercise of the powers conferred on us by section 4(2) of the Appellate Jurisdiction Act, nullify the entire proceedings of the successor magistrate, quash the judgment arising there from and set aside the sentence imposed on the appellants. Since the proceedings before the High Court emanate from null proceedings, the effect thereof render the 15

.. ' . ,,, .. proceedings and the judgment of the High Court with no basis, it is as well quashed.

• • . - - - . .. Regarding the way forward, we order a fresh trial before another magistrate with competent jurisdiction from where the preliminary hearing was conducted. We direct the record to be remitted back to the trial court for an expedited trial. In case of conviction, the period already served in jail by the appellants should be considered. DATED at TABORA this 23 rd day of September, 2017. M.S. MBAROUK 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. ~~ A. H."-MSUMI DEPUTY REGISTRAR COURT OF APPEAL 16