Tano Brayson vs Republic (Criminal Appeal No. 166 of 2013) [2014] TZCA 2202 (27 September 2014)

" ., -I .... __.-4 IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: MSOFFE, J.A., KILEO,J.A., And KIMARO,J.A.) CRIMINAL APPEAL NO. 166 OF 2013 TANO BRA YSON .....-........ · ..................................... ................ APPELLANT VERSUS THE REPUBLIC ................. · .................................................. R.ESPONDENT . (Appeal from the judgment of the Resident Magistrate's Court at Dodoma) (Rutatinisibwa, PRM Ext. Jurisdiction) dated the 16 th May, 2012 in PRM Criminal Sessions Case No. 16 of 2007 · JUDGMENT OF THE COURT 24 th & 27 September, 2013 KIMARO,l.A.:- The appellant was convicted of the offence of murder contrary to section 196 and 197 of the Penal Code, [CAP 16 R.E.2002] by Mr. Rutatinisibwa PRM E/J., and was sentenced to death. Aggrieved by the conviction and the sentence, the appellant filed this appeal. There are two memoranda of appeal, the first one was drawn and filed by · the appellant and the second one was drawn and filed by Wasonga Associates 1 ...

Advocates. The memorandum. of appeal filed by the appellant has two grounds of appeal which .in· essence challenge the Principal Resident Magistrate for proceeding with, the trial of the case while the preliminary hearing had been conducted· by the High Court before the case was transferred to him for trial. The second memorandum of appeal filed by the advocate contains several grounds of appeal challenging the conviction of the appellant for insufficiency of the prosecution evidence. Since the appeal will not be determined on merits of the trial of the main case itself, there is no need for go'ing into details of the grounds of appeal nor the facts that gave rise to the arraignment of the appellant and the evidence which was tendered in the trial court to support his conviction. It suffices to say that the appeal will be determined on a point of law, on an irregularity pertaining to the stage at which the case was transferred to the Principal Resident Magistrate with extended Jurisdiction for conducting the trial. When the appeal was called on for hearing, Mr. Godfrey Wasonga, learned advocate appeared for the appellant. The respondent Republic was represented by Ms. Beatrice Nsana, learned State Attorney. 2

. ' Mr. Wasonga learned advocate opted to start with the grounds of appeal filed by the appellant -.:·He submitted that the case was transferred to the Principal Resident Magistrate with extended jurisdiction for trial in contravention of section 256 A.(1) of the Criminal Procedure Act [CAP 20 R.E.2002]. Citing the case of. John Madutulie @ Ngosha v R Criminal Appeal No.132 of 2012 (unreported) to augment his submission, the learned advocate said it was .wrong for the High Court to transfer the case to the Principal Resident Magistrate with extended Jurisdiction for trial because the High Court (Shangali, J.) did, on 2 nd December, 2008 take the plea of the appellant and conducted the preliminary hearing of the case. He said since the taking of the plea and conducting of the preliminary hearing is part of a trial, the. High Court should not have transferred the case to the Principal Resident.· Magistrate for the trial. It had to conduct the trial itself. In the alternative, submitted the learned advocate, the Principal Resident Magistrate: with extended jurisdiction should have started the case afresh by first conducting a preliminary hearing and then proceed with the trial of the case.: . ·. Since the Principal Resident Magistrate proceeded with conducting the-trial at the stage where the High Court had reached, said the learned advocate, that made the proceedings a nullity. 3

He prayed to the Court to nullify the proceedings and remit the file back to the High Court for continuing with the trial. On her part the learned State Attorney for the respondent Republic supported the learned advocate for the appellant. She conceded that a preliminary hearing forms part of the trial. She agreed that since the High Court took the plea of the appellant and conducted the preliminary hearing of the case, it could not have transferred the case to the Principal. Resident Magistrate with extended jurisdiction for conducting the trial. The trial conducted by the Principal Resident Magistrate, contended the learned State Attorney, could only be lawful if the Principal Resident Magistrate had prior to conducting the trial, first taken plea of the appellant and conducted the preliminary hearing. She said the omission in complying with that procedure made the trial unlawful as it contravened section 256A (1) ··nf CAP 20. She too, prayed that the proceedings conducted by the Principal Resident Magistrate with extended jurisdiction be nullified and the file be remitted back to the High Court for a lawful trial. Briefly those were the submissions made in support of the ground of appeal drawn by the appellant. 4 j J 'I j I

The order that transferred the case to the Principal Resident Magistrate with extended -jurisdiction, at page 35 of the record reads as follows: "In terms of provisions of section 256 A (1) Criminal Procedure Act Chapter 20 and section 45 of the Magistrates Court Act Cap 11 R.£2002 I hereby transfer this case to be heard by R.I RUTATINISIBWA, a Principal Resident Magistrate -Extended Jurisdiction. Date: 16/4/2012 ............. SGD ............. . JUDGE IN- CHARGE, ✓ Section 256 A (1) of CAP 20 under which the transfer of the case was made to the Principal Resident Magistrate with extended jurisdiction by the learned Judge in charge of the High Court is reproduced below: "The High Court may direct that the taking of a plea and the trial of an accused person committed for trial by the High Court, be transferred to, and be conducted by a resident magistrate upon whom extended 5

jurisdiction has been granted under sub section {1} of section 173." The reading of section:256 A (1) of CAP 20 which empowered the Hig_h Court to transfer -a.:.case . .-to a magistrate with extended powers is clear that the transfer .is for plea taking and the subsequent stages of the trial of the case. In this case the learned advocate for the appellant who was ·supported by the learned- .State Attorney for the respondent Republic submitted correctly that the case was transferred to the Principal Resident Magistrate with extended jurisdiction after the High Court had taken the plea of the appellant and conducted the preliminary hearing of the case. The record of the appeal .at pages 29 to 32 shows that the plea taking and preliminary hearing was conducted by Shangali, J. on 2 nd December 2008. The High Court committed the same irregularity in the cases of Ndaso Yohan_a @ Kibyala ·V R Criminal Appeal No. 41 of 2007 (unreported), luma Lyamwiwe V R Criminal Appeal No.42 of 2001 (unreported), R V Banyanyirubusi s/o Gaspary and others Criminal Revisions No. 18 of 2006 (unreported). In all the cases the Court held that the provisions of section 256 A -( 1) envisages that a transfer of a case by the High Court to a magistrate with extended jurisdiction should be for 6

taking of the plea of an accused person and preliminary hearing before conducting the trial. In other words the magistrate with extended jurisdiction to whom a case is transferred by the High Court is required to take all the steps as would. ·have been taken by the High Court in conducting the trial. Section 192 of CAP 20 requires a preliminary hearing to be conducted before the trial, starts for purposes of ascertaining matters not in dispute hence avoiding :incurring unnecessary expenses for payment of witnesses to prove matters not in dispute, and saving also the time of the court in conducting the trial. In this case it is obvious that the case was transferred by the High Court to Mr. R. I. Rutatinisibwa PRM E/J after it had taken the plea and conducted the preliminary hearing. The record of appeal at page 36. also showsthat the Principal Resident Magistrate omitted to take the plea of the appellant and conducting preliminary hearing before conducting the main trial. That was obviously an irregularity. There was no compliance with section 256A (1) of CAP 20. . We allow the appeal; quash the proceedings conducted by the Principal Resident Magistrate with extended jurisdiction and remit the file back to the High court for a lawful trial. We observe that the offence was committed on -30 th May 2006. A period of more than six 7 f

.. . . • I years has elapsed since then. : For interests of justice the High Court is directed to carry out the triakas expeditiously as possible. I~ is so ordered. DATED at DODOMA this 2ih day of September, 2013. J. H. MSOFFE JUSTICE OF APPEAL . E. A. KILEO JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL 8