Juma Bakari vs Republic (Criminal Appeal No. 362 "B" of 2009) [2014] TZCA 2224 (1 March 2014)

IN THE COURT OF APPEAL OF TANZANIA i AT TABORA (CORAM: MSOFFE,J.A., KIMARO,J.A., And MJASIRl,J.A.) CRIMINAL APPEAL NO.· 362"8" OF 2009 JU MA BAKA RI ..................................................... .... APPELLANT VERSUS THE REPUBLIC. ■■ •••• ■■■■ •• I ■■■■ •••• I I ••••••••••••• I I •• I I ••••••• • .-RESPONDENT I , (Appeal from the judgment of the High Court of Tanzania at at Tabora) 1 (Wambali,J.) dated 7 th December, 2009 in Criminal Appea! No. 99 of 2007 .••...... ~ ......... . ORDER OF THE COURT 28 th February & 3 rd March, 2014. KIMARO, J.A. The appellant was convicted of the offence of rape by the District I Court of Tabora on 4 th February, 2005 and was sentenced to thirty years 1

i I imprisonment. He was aggrieved and filed an appeal in he High Court of I , Tanzania. His appeal was dismissed. I The appellant has filed an appeal in this Court. His! memorandum of i I appeal contains four grounds of appeal b'ut because the appeal will not be ! I • ' I determined on merit for reasons to be disclosed later in this order, we see ! I i no need for disclosing them. When the appeal was calle on for hearing, I the appellant appeared in person, unrepresented b'>f counsel. The I I respondent /Republic was represented· by Mr. Ildephbnce Mukandara, ': I learned State Attorney. The Court suo {flOtu, having noed an irregularity in the manner of recording the evidence of the witnesses used by the trial I court, required the learned State Attoney to give u! his views. The evidence of the witnesses was recorded i~ a reported spekh. The : I I learned State Attorney submitted to us that, in terms of section 210 (1) of I the Criminal Procedure Act, [CAP.20 R.El2002] the trial agistrate flouted the procedure for recording the evidenc of the witnesfs. He said the law requires the evidence to be recorded in a narrative way and it is a mandatory obligation on the part of the trial courts. · ~e said since the I procedure was not complied with, : that vitiated the proceedings. I 2

: I Regarding the order which the Court has to ultimately give, the learned ·1 I I I State Attorney said even if the appeal was to be heard qn merit, he was I I not going to support the conviction anyway. He did not /support a retrial because the appellant has been in priso~ for nine yearsj He went on to I submit that both the prosecution and the defence were prejudiced because, as it is, it is not clear whether th~ words record ➔ in the evidence were those of the magistrate or the witness. The appellant being a layman was 'not in a position to say anything ! I useful to assist the Court in determining tis irregularity. / I On our part, we niust admit that i our working elperience, this is ': I the first time we are coming across such an irregularity in the recording of I evidence. We agree with the learned State Attorney that section 210 (1) i I (a) and (b) of Cap 20 is a general provisibn which regulates the procedure for recording of evidence in the magistates courts. (pJimary courts not I I included). Section 210(1) (a) provides: i , , I "In trials, other than trials un{er section 21 ~Y or before a magistrate, the evidence of the witnkss shall : I 3

be recorded in the following manner- (a) The evidence of each witness shall be' taken down in writing in the language of the coutf by the trial magistrate or in his presence and hearing and under his personal direction and superintendence and shall be I signed by him and shall form part of the record; and {b} The evidence shall not ordinarily be 1 taken down in I the form of question and answer but subject to I , subsection (2), in the form of a narrative." (Emphasis supplied) It is clear from the wording of the provision ot sub sections (a) and (b) of section 210 (1) of Cap 20 that in recording the evidence of I a witness, the trial magistrate must record it in the first person. In i other words he /she must record and not report what the witness I says. For instance in this case, at page 5 of the record of I proceedings Hidaya Salum testified as PWL In recording her evidence, the trial magistrate recorded as follows: 1 "PW1 is residing at Mpenge. On 15/06/2004 at 4

I I about 01.00 hours PWl was slept in her rrom. I PWl when she was inside slept her brothbr in law I I JUMA S/0 BAKARI knocked the window. He told v , . I . I 1 her to open the door. .PWl asked him w,hy to I I open the door at this material time... " I I I The manner in which the trial magistrate recorded I the evidence of the witnesses was obviously wrong and il contravened Jction 210(1) (b) ! I of Cap.20. The correct way in which he trial magistr~te should have '1 recorded the evidence is as follows: I ! I "I reside at Mpenge. On 15/06/2004 at about '01.00 hours I I I I was sleeping in my room. As I was in my room sleeping, I I my brother in law JUMA BAKARI knocked at ithe window. He I I told me to open the door. I I sked him why I should open the I I door at that material night... '' Section 53(2) of the Interpretation of Laws Act, [;CAP 2 R.E.2002] I provides that: I I I " Where in a written law the ord ''shall " is used in I I I I 5

conferring a function such word shall be interpreted to mean that the function so conferred must be' performed " Recording of evidence is a function which the trial magistrate must I perform. The word used in sub section (b) of section 210(1) is "the I evidence shall not ordinarily... " This means that it was mandatory for I the trial magistrate to comply with the said law in the recording of the I evidence of the witnesses. As there was no compliance, ,the proceedings I were vitiated. This means that there is no appeal before the Court. Using our powers of revision under section 4(2) of the Appellate I Jurisdiction Act, [CAP 141 R.E.2002] we hereby declare a nullity the I proceedings in the High Court of Tanzania at Tabora and the District Court I of Tabora. As to whether the prosecution would wish to charge the I appellant afresh, we leave that decision to the wisdom of the Director of i Public Prosecutions but he is advised to take into consideration the period ' the appellant has already served in prison in the proceedings which were a i nullity. We henceforth order the immediate release of the appellant from I 6

" prison unless he is held there for any other lawful cause. order. DATED at TABORA this 1 st day of March 2014. J. H. MSOFFE I JUSTICE OF J!\P.PEAL N. P. KIMJO I JUSTICE OF APPEAL I S. MJASIRI j JUSTICE OF APPEAL I certify that this is a true copy of tJ original. I P.~A I SENIOR DEPUTY REGISTRAR COURT OF APPEAL I I i 1 We accordingly I I i I , I 7 I