Daudi Kalumuna vs Felix Kamoi (Criminal Appeal No. 18 of 1997) [2000] TZHC 47 (1 December 2000)

INTEE COURT OF APPEAL OF TANZANIA AT MWANZJi: _ (S:':.9JsM: KI8_1:.1'JGAL J .A ,1,U'-~~d,LUGAKINGIRA~~~·) CRIMINAL APPEAL NO. 18 OF 1997 BET-JFEN DJ.IJIDI KALUMUNA ooooooooeoooooooooooooco APPELLANT AND FELIX KAMOI R'BSPOJ\lDENT (Appeal from the conviction of the High Court of Tanzania at Bukoba) dated the 25th da7 of February 1997 i..ri. JUDG:fiMENT This appeal arises from a matter originating from the Primary Court and involving the appellant I s conviction for obstructing execution contrary to section 114A (c) of the Penal Code, and the sentence of 9 months' imprisollient. There was sufficient evidence to show that the appellant had obstructed execution of the High Court order requiring him to hand over some cattle to the successful party in a litigation before ' that court. The appellant 1 s only defence at the trial was that ho could say nothing on the case because the matter was already in the Court of Appealo The trial Primary Court Magistrate found that the appellant had failed to produce any decision of the Curt of Appeal overriding or nullifying the execution order of the High Court. Consequently the trial magistra.te found the charge proved ' and convicted the appellant accordingly. .. .• /2 I I '-

6 2 - That conviction was set aside by the Resident Magistrate sitting in revision on the ground that the appellant had ,·;a just reason: 1 for disobeying the High Court order, the said just reason being an appeal pending in the Court of Appeal, an application for stay of execution also pending in that Court and a letter from the Ago District Registrar 1 High Court directing that execution process of the High Court order be stayed pending determination of the appellant's application for stay of execution then pending in the Court of Appeal. On appeal to the High Court Nyamasagara, (PRM Exto Jurisdiction) quashed the revision order of the Resident Magistrate on the ground that the learned :;-?esident Magistrate making it had wrongly invoked his powers of revisiono The appellant was dissatisfied, hence this appeal~ Three points of law have been certified for consideration by this Court, but in our opinion the first one is decisive in the sense that the appeal can be disposed of on the basis of that point alonec It sa.ys: tl ifos it lawful or proper for both courts (the District Court and the.High Court) to refer to the correspondence which had not been foTmally produced before the courts7t1 The correspondence being' referred to here is the letter from the Age District Registrar High Court to the appellant directing that execution process of the High Court order be halted pending determination of the appellant's application for stay of execution which was pending in the Court of Appeal. It is to be noted that that letter ,·1as never before the _trial Primary Court. The appellant in his defence before that court me.de no mention of it at all. So that the learned Resident Magistrate sitting in revision cannot properly have referred to it. The letter was in the real sense additional evidencee But such additional evidence • q ./3

• 3 - was not received in accordance with the law. Admittedly section 22 (2) of the Magistrates' Courts Act empowers a district court, in exercising revisional jurisdiction, to exercise all the powers conferred upon it in the exercise of its appellate jurisdiction 0 Anq section 21 (1) (a) of the Act provides that~- H21 (1) In the exercise of its appellate jurisdiction, a district court shall have power (a) to direct the primary court to take additional evidence and to certify the same to the district court, or, for reasons to be recorded in writing, itself hear additional evidence o ;i In the insta11t case, however, the letter in question was not received by way of additional evidence in compliance with this provision~ It was not taken by the Primary Court Magistrate on the direction of the Resident Magistrate nor was it ta¼:en by the Resident Magistrate himself for reasons auly recorded by him$ Thus the learned Resident Magistrate wrongly received, and acted upon, the letter in question as additional evidence. Once that letter ll/aSiWrongly before the Resident Magistrate, it continued to be wrongly before the courts even when the proceedings moved to the Principal Resident Magistrate (Ext. Jurisdiction) because nothing had happened to regularise its presence or status in the courts. The answer to the first point of law as certifiedj therefore, is that both the Resident Viagistrate and the Principal Resident Magistrate improperly or wrongly referred to the letter in question; they ought not to have referred to it because it was not properly before them. . •. /4

In setting aside the decision of the Primary Court the Resident Magistrate also relied oh the ground that the appellant had filed an application to the Court of Appeal for stay of execution, so that the appellant was justified to ignore or disoby the High Court order pending determination of his application by the Court of Appeal. Once again this information about the appellant's pending application in the Court of Appeal was not before the trial court.. As stated earlier, in his defence at the trial the appellant merely stated that he could not say anything about the case because the matter was alrea.dy referred to the Court of Appeal, which the trial magistrate understood to mean that the appellruit had preferred ' an appeal to the Court of Appeal. The trial magistrate cannot be criticised for understanding the appellant's defence that WqY• In our view the trial magistrate could not reasonably be expected to construe that defence as referring to an application to the Court of Appeal for stay of execution Thus the ground that the appellant had an application for stay of execution pending in the Court of Appeal was another piece of additional evidence which the Resident Magistrate wrongly relied on to .,revise the decision of the Primary Court Magistrate. If the two pieces of additional evidence are discounted, there remains only the ground that the appellant had preferred an appeal to the Court of Appeal, which indeed was the only defence before the trial magistrate. However, in law the institu- tion of an appeal does not operate to stay the execution of the decree. Therefore the Primary Court fagistrate rightly rejected the defence, that the appellant had instituted an appeal, as a ground for disobeying the execution order of the High Court 0 •• /5

• 5 It therefore follows that given the information which was available at the trial, the decision of the trial magistrate could not be faulted. The information about the pending application for stay of exeiution and the letter from the Ag. District Registrar High Court directing the suspension of execution process pending determination of the appellant's application were indeed pertinent to the appellant's defence, but the appellant refused to disclose them to the trial magistrateo In our view therefore, there was no justification for interfering with the decision of the trial court. The second point of law certified for consideration has been rendered irrelevant because it is based on the assumption that the court properly referred to the letter of the Ag. District Registrar, High Court. We have found that that letter was not properly before the courts and, therefore, the courts could not properly refer to it 1 We say no more about that point., The third and last point of law certified is whether the quashing of the decision of the Primary Court by the Resident Magistrate was not in accordance with the revision powers of the District Court as conferred under section 22(1) of the Magistrate~' Courts Act, 19840 That sub-section says that:- n22 ( 1) A district court may call for and examine the record of any proceedings in the primary court established for the district for which it is itself established, and may examine the records and registers thereof, for the purposes of satisfying itself as to the correctness, legality or propriety of any decision or order of e • ./6

6 the primary court, and as to the regula- rity of any proceedings therein, and may revise an.y such proceedings o It is true that the section confers on the Di.strict Court wide powers of revision. But it is important to stress that those powers must be exercised properly and within limits of the lawe A district magistrate who corrects a primary court magistrate for acting wrongly or improperly must himself act properly and within the lawo In the instant case, it is quite apparent that the learned Resident Magistrate did not act properly and within the law w½.en he relied on information which was not before the trial court, and indeed which it is not known how he received it, to quash the decision of that courto Closely connected with this is th12 issue of bias which was prompted by the Court in the course of hearing this appealo It transpired that Mr. Nyamasagara, (PRM - ::xt. Jurisdiction) who heard the appeal in the High Court, was also the District Registrar of the High Court who had written to those concerned 1 including the appellant, to impress upon them the need to obey the execution order of the High Court .. Thus the point was raised whether it was proper for him to hear the appeal concerning the matter when his impartiality could not be guaranteedo The matter has exercised our minds quite considerably.. '.,Je agree that Mro Nyamasagara could, in a real sense, be regarded as a person who had an interest in the matter because he was concerned to ensure compliance with the execution order of the High Court. We also appreciate that the issue of bias is a serious one and that where it is proved it may have far reaching consequenceso However, after giving due consideration to the matter, we have formed the opinion that in

' .

• 7 - the circumstances of this particular case Mro Nyamasagara 1 s dual role did not affect the results of the appealo In our opinion the facts and circumstances of the case were such that if they were placed before any impartial, neutral or uninterested magistrate or judge, he would have come to the same decision as did Mr. Nyamasagarao For that reason we feel justified not to interfere. In the final analysis we uphold the decision of the learned Principal Resident Magistrate (Exto Jurisdiction) and find that the learned Resident Magistrate in.the District Court wrongly exercised his revision powers to quash the decision of the Primary Court. On the information which was before the Primary Court, the decision of that court could not be faulted. The learned Resident Magistrate had no justification to quash ito Thus we affirm the decision of the learned Princip 01 Resident Magistrate (ExJ;;. Juris- diction) which quashed the revision order of the District Court and restored .the judgement of the Primary Courto As regards sentence, it is noted that of the 9 months' prison term awarded, the appellant sGrvod only 3 months' period after which this Court (Rarnadhani, J.A.) ordered his release on bail pending hearing of this appealp The remaining 6 months' term remains to be served. However, considering the appellant's age, which in 1997 was assessed at 70 years, and the fact that it is now over three years since the appellant was released on bail in June 1997, we feel that it would be undesirable to send him back to prisono We think that on humanitarian grounds he should be •I excused from serving the remaining term of 6 months. He order accordingly. Save to this limited extent the appeal is dismissed. • 0 ./8

• 8'.;. DATED at M\ 1 JANZA this 1st day of December, 2000. Ro H •. KISANGA JUSTICE OF APPEAL Doz. LUBUVA JUSTICE OF APPEAL K •. s. K •. LUGAKINGIRA JUSTICE OF APPEAL I certify that this is a true copy of the original • .,-.r···--- ... """"\ i, i ,, ..... i:LJ,.:,,{ (f.tlr i M~ MlAU~iLE SENIOR DEPUTY REGISTRAR