Masana Mwita @ Marwa vs Republic (Criminal Appeal No. 194 of 2012) [2014] TZCA 2289 (23 July 2014)

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA

• (CORAM: KILEO, J.A., MANDIA, J.A. And MMILLA, J.A.) CRIMINAL APPEAL NO. 194 OF 2012 MASANA MWITA © MARWA ................................................. APPELLANT VERSUS THE REPUBLIC ................... . .............................................. RESPONDENI (Appeal from the decision of the High Court of Tanzania at Mwanza) (Kalombola, PRM Ext. Jur.) dated the 8th day of June, 2007 In RM Criminal Session Case No. 101 of 2001 RULING OFTHE COURT 211t & 25th July, 2014 KILEO, ).A.: The appellant, Masana Mwita © Marwa was convicted of Murder contrary to section 196 of the Penal Code and was sentenced to death by hanging by Kalombola, Principal Resident Magistrate (PRM) (as she then was) in the exercise of Extended Jurisdiction. Aggrieved by the decision which was delivered on the 8th day of June 2007 he has come to this Court on appeal. Assisted by Mr. Deya Paul Outa learned advocate, he impugned the decision of the PRM with Extended Jurisdiction (PRM EJ) in a memorandum of appeal comprising of three grounds, which as it will become apparent, we will not need to discuss. 1

Mr. Outa represented the appellant at the hearing while the respondent Republic was represented by Mr. Castuce Ndyamugoba, learned State Attorney. At this juncture we find it appropriate to give a brief background to the matter before us. On gth October 2001, the DPP filed an information for murder against the appellant in the High Court at the Mwanza Registry. A Criminal Sessions Case No 202 of 2001 was opened. It is on record that on 2nd September 2002, Masanche, 3. purporting to act under section 173 (2) of the Criminal Procedure Act, (CPA) Act No 9 Of 1985 as amended by Act No. 17 of 1996, ordered the transfer of the case from the High Court to the Court of the Resident Magistrate at Mwanza for trial before Hon. J.E. Mtotela, (PRM, EJ). Mtotela PRM, EJ took the appellant's plea on 9/9/2002 and conducted a preliminary hearing. After he was done with the preliminary hearing he adjourned the case to a date that was to be fixed. For some reason which cannot be gathered from the record, almost five years later on 21 May 2007 the case landed on the hands of Kalombola, PRM D, as she then was. There is nothing on record to show that the case was ever transferred to the Hon. Kalombola, PRM, EJ. 2

It was in the light of the above circumstances that we, suo motu, considered it pertinent to deal with the issue of jurisdiction as a preliminary matter before we embarked on the hearing of the appeal. Towards that end we asked the counsel for both sides to address us on the propriety or otherwise of the application of section 173 (2) of the CPA in the transferring of the case to Mtotela PRM, EJ and also the correctness or otherwise of the trial of the case by Kalombola, PRM, EJ while there was no evidence that the case had ever been transferred to her. Both Mr. Outa and Mr. Ndyamugoba were of the view that section 173 (2) of the CPA was wrongly applied in transferring the case from the High Court to the Principal Resident Magistrate exercising extended jurisdiction. They opined that section 173 (2) does not give powers to the High Court to transfer a matter that is normally triable only by the High Court to a resident magistrate with extended jurisdiction. They submitted that section 256 A is the proper provision which vests the High Court with powers to transfer a case to a resident magistrate upon whom extended jurisdiction has been granted under sub-section (1) of section 173 of the CPA. Both learned counsel advised us to find the whole proceedings before the Principal Resident Magistrates with extended jurisdiction to 3

have been a nullity as in law there was no transfer of the case from the High Court to the Principal Resident Magistrates. We were asked to invoke our powers of revision under section 4 (3) of the Appellate Jurisdiction Act to nullify the whole proceedings by the Principal Resident Magistrates with extended jurisdiction which led to the conviction of the appellant. The matter need not detain us. We have had occasion, in past cases to deal with situations such as the current one before us. The position we have taken in the interpretation of section 173 (1) (a) and (b) and section 256A (1) of the CPA is that it is section 256A (1) which vests the High Court with powers to transfer a case to a specific resident magistrate upon whom extended jurisdiction has been vested by the Minister pursuant to section 173 (1) of the CPA. See for example, Criminal Revision No. 18 of 2006 - The Republic versus Banyanyirubusu & four others, Abrahaman Ramadhani ©Chino versus the Republic - Criminal Appeal No. 130 of 2013 and Thomas Gasper Mchamisi versus the Republic, Criminal Appeal No. 291 of 2013 (all unreported). 256A (1) of the CPA provides: "(1) The High Court may direct that the taking of a plea and the trial of an accused person committed for trial by 4

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." And section 173 (1) (a) states: "(1) The Minister may after consultation with the Chief Justice and the Attorney General, by order published in the Gazette- (a) invest any resident magistrate with power to try any category of offences which, but for the provisions of this section, would ordinarily be tried by the High Court and may specify the, area within which he may exercise such extended powers;" (b) ......... Section173 (2) reads: (2) Nothing in this section shall affect the power of the High Court to order the transfer of cases. From the reading of section 173 (2) of the CPA under which the case was purportedly transferred to Mtotela, PRM, EJ it is clear as submitted by the learned State Attorney and the learned advocate for the appellant that it was wrongly applied in the transfer of the case to Mtotela, PRM EJ. The transfer was therefore of no legal consequence and the proceedings that flowed therefrom were a nullity. We feel constrained to emphasize once again, that where the High Court decides to invoke its powers under section 256A (1) of the 5

CPA then the specific magistrate upon whom the case is transferred must be named in the transferring direction. In the present case, as we have shown earlier, the case was tried by Kalombola PRM, EJ to whom the case had not been transferred pursuant to section 256A (1) of the CPA. It was vividly pointed out by this Court in Thomas Gasper Mchamisi (supra) that section 256A envisages that the magistrate exercising extended powers to whom a case is transferred must take the plea as well conduct the trial. We will hasten to add that the PRM EJ to whom the case has been transferred as above must take the plea and conduct the trial to completion unless for some reason, which must appear on the record, the PRM EJ who had started to deal with the matter is unable to proceed with it to the end. Therefore, like the proceedings before Mtotela PRM, EJ the proceedings before Kalombola were also a nullity. The learned advocate for the appellant and the learned State Attorney advised us to invoke section 4 (3) of the Appellate Jurisdiction Act to nullify all the proceedings before Mtotela and Kalombola. We are however of the settled mind that the proper provision befitting the circumstances of this case is section 4 (2) which states: "(2) For all purposes of and incidental to the hearing and determination of any appeal in the exercise of the

jurisdiction conferred upon it by this Act, the Court of Appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act, have the power of revision and the power, authority and jurisdiction vested in the court from which the appeal is brought." Section 4(3) comes into play where the Court calls for a record before the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision made thereon and as to the regularity of any proceedings of the High Court. In the present case the matter needing revision became apparent to us in the course of hearing the appeal, thus recourse to section 4(2) of the Appellate Jurisdiction Act. Consequently, in the exercise of powers conferred upon us pursuant to section 4 (2) of the Appellate Jurisdiction Act, we quash all the proceedings, judgement and orders subsequent to the filing of the information in the High Court. The sentence is also set aside. The matter is to be remitted back to the High Court for it to attend to it in accordance with the law. We are mindful of the predicament that the appellant has found himself in because of some oversight on the part of the court. He went through a trial which at the end has been found to have been a nullity. It is like he laboured in vain for over ten years. All judicial officers are 7

enjoined not to be lax but to take care in every matter they attend to in order to ensure that delays in the administration of justice are brought to a minimum. Bearing the circumstances of this case in mind and the length of time it has been in the courts we order that the High Court attend to the case as a matter of priority. DATED at MWANZA this 23rd day of July 2014. E. A. KILEO JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. p - o( \ IA ----- ). - F.WE DEPUTY REGISTRAR COURT OF APPEAL