Hassan Kingama vs Republic (Criminal Appeal No. 6 of 1998) [1999] TZHC 523 (30 April 1999)

200 TANZANIA LAW REPORTS [2000]T.L.R. a HASSAN KINGAM A u REPUBLIC HIGH COURT OF TANZANIA AT TANGA (Mkwawa, J.) CRIMINAL APPEAL No. 6 OF 1998 ft (From the Judgment of the District Court of Handeni District at Handeni, Msangya, D.M., in Criminal Case No. 104 of 1997) Criminal Practice and Procedure - Legal Representation -- Right of accused to P legal representation — Accused showed intention to be represented - whether trial court may proceed without giving chance to the accused to get legal representation - Section 310 of the Criminal Procedure Act, 1985. Criminal Practice and Procedure - Change of magistrate-Magistrate withdrew/ E disqualified himself from hearing the case — Whether the same magistrate may continue to hear the same case. Criminal Practice and Procedure — Retrial - Retrial not to be ordered where it is likely to cause injustice to the accussed. F The appellant was convicted by the District Court, Handeni, of interfering with a child ’ s regular school attendance contrary to section 37(1) of the National Education Act 1978, and abduction contrary to section 133 of the Penal Code Chapter 16. During the trial the trial magistrate withdrew or disqualified himself from hearing the G case on 28 June 1997. Then, on 28 November 1997 the same Magistrate proceeded to hear this case and convicted the accused. During the trial the appellant, from the outset, intimated that he wanted to have legal representation but the Magistrate did not avail him the chance. H Held: (i) As the learned trial magistrate disqualified himself or withdrew from conducting this case and made it known to the parties that he would not deal with it, it was wrong for him to continue hearing the case later on. I (ii) The trial magistrate erred in law by not availing an opportunity to the accussed to get legal representation as that was his right under section 310 of the Criminal

HASSAN KINGAMA v. REPUBLIC 201 Procedure Act, 1985. Re-trial should not be ordered where it is likely to cause injustice A to the accused person. Appeal allowed Cases referred to: B (1) Meto v. Lannoa and others [1969] 1 QB 577 (2) Zabron Panga Maiga v. Jakim Kiwaraka and another [1987] T.L.R 140 (3) John Mgaya and Another v. Daud Mjenga App Number 8 of 1997 (unreported) (4) Yusuf Citta v. R. [1959] EA 211 (5) Sukar v. R. [1969] EA 483 D (6) Komba v. R. [1967] HCD n. 60 (7) Ally v. R. [1957] HCD n.444 Statutory provisions referred to: E (i) Penal Code, Chapter 16, section 133 (ii) National Education Act .section 31(1), section 37(1) (iii) Criminal Procedure Act 1985, section 310 F (iv) National Education Act 1978 Mr. Mbezi, for the Appellant JUDGMENT g (Delivered 30 April 1999) MKWAWA, J.: The appellant, Hassan Kingama, was charged with H and convicted by the District Court of Handeni of the following offences: the first count was in respect of interfering with a child ’ s regular attendance of school contrary to section 31(1) of the National Education Act 1978 as amended by Act Number 10 of 1995 and the second count was in respect of abduction contrary to section 133

202 TANZANIA LAW REPORTS [2000] TLR. A of the Penal Code. The trial court sentenced him to six months and five years ’ imprisonment for each count respectively. There was, however, no direction by the sentencing court as to whether the sentences imposed should run concurrently or consecutively. Being dissatisfied B with the decision of the trial/convicting court he has now appealed to this court against both the conviction and sentence. Having regard to the course I have adopted to take in order to dispose of this appeal, I do not find it necessary to recapitulate the c evidence adduced and or go into the merits and demerits of the findings of fact as it will be inviduous to do so. The trial of the appellant in the trial court is, gravely and embarrassingly, flawed both in matter of procedure and evidence so much so, that I find it very hard to say D that there was semblance of justice in the trial. All in all, as rightly observed and submitted by Mr Mbezi, the learned counsel for the appellant, the flaws went against all canons of a fair trial. That actually transpired was mockery of justice, to put it at its lowest. To demonstrate E what I am saying, I will deal with two out of more than seven of them. It is common ground that on the 20 June 1997 the trial magistrate had withdrawn/disqualified himself from the trial of this case and made the following order: F The Judge-in-charge will be informed to nominate another magistrate to preside over this case. On the 24 July 1997 the same trial magistrate ordered that the case be heard on the 14 August 1997 apparently before a magistrate to G be assigned by the Judge-in charge. But on the 28 November 1997, for reasons beyond my comprehension, the same magistrate proceeded with the trial which led to the appellant ’ s conviction. As the trial/convicting magistrate had disqualified himself, from the case and had made it known to the parties that he would not deal with the case any further, his further involvement in the case was prejudicial to the trial and increasingly confirmed the appellant ’ s suspicion that he would not get a fair trial as the umpire was biased. 1 This is especially so, because, as aptly stated by the late Lord Penning,

HASSAN KINGAMAv. REPUBLIC 203 MR (as he then was) in the case of Melo v. Lannoa and others (1) a that “ justice must be rooted in confidence and confidence is destroyed when rightly minded people go away thinking that the judge was biased. ” (See also judgments of our Court of Appeal (T) Zabron Panga Maiga v. Joakim Kiwaraka and another (2) and John Mgaya and another b v. Daud Mjenga (3). Another disquieting feature in the appellant ’ s trial before the Lower Court which deserves to be looked into was the denial by the court for the appellant to be represented by an advocate. As it can c be cleaned from the record of this court, that was the appellant ’ s fourth ground of appeal. The record of the Lower Court is loud and clear that the appellant had not indicated his need to be defended. This surprising decision by the trial magistrate put the appellant in d a very awkward situation whereby he had to defend himself. What then, is the effect, in law of denying a right to be defended? The answer to that, generally speaking, is that the conviction cannot be allowed to stand. It must be quashed on appeal. In the case of Yusufu E Citta v. R (4) at page 213 it was stated as follows: Every accussed has the undoubted right to be defended by Counsel. Galos Nyred and another v. R (2), 1944 AC 149 and Kingston v. R (3) 32 CR Appr. 183 may be regarded as authority for the proposition that if an accussed F is deprived of that right through no fault of his counsel and a conviction follows, the conviction will be quashed on appeal, [emphasis supplied]. That is the sanctity with which our courts of law treat the right of an individual to be defended. This right, in our jurisdiction, is provided G by the provisons of section 310 of the Criminal Procedure Act 1985. In the upshot, it cannot at all be said that the appellant had had a fair trial. In the light of the foregoing the conviction that proceeded from the flawed proceedings cannot be allowed to stand. It is hereby, H accordingly, quashed and the sentences imposed thereon set aside. The question that poses now, is whether or not a retrial should be ordered. It is now attrite law that re-trials should be ordered only where the interest of justice require and it should not be ordered 1

204 TANZANIA LAW REPORTS [2000]T.L.R. A where it is likely to cause injustice to an accussed person (See: Sukar v. R (5), Komba v. R. (6) and Ally v. R. (7) to mention just a few decisions). In the instant case the irregularities were caused by trial magistrate B and not the prosecution or the appellant. A retrial in this case is not only distasteful but if ordered, might lead to the prosecution using the opportunity offered to fill in the gaps. Besides, the appellant had served more than ten months ’ imprisonment before I granted c him bail pending appeal I am unsure if the period served will be taken into account in the event of the conviction ensuing. In the present case, I venture to say that giving an order for re-trial/rte novo hearing, is likely to cause unjustice to the appellant. The interests D of justice in this case demand that I decline to make such an order. I accordingly so do. As the appellant is already out on bail it is only ordered that the appellant and his sureties be discharged from the bond forthwith. E LOSWAKI VILLAGE COUNCIL AND ANOTHER u F SHIBESHABEBE COURT OF APPEAL OF TANZANIA „ ATARUSHA (Samatta, J. A.) CIVIL APPLICATION No. 23 OF 1997 H (From the Judgment and Decree of the High Court of Tanzania at Arusha, Munuo, J., in Civil Case No. 13 of 1990) Civil Practice and Procedure - Stay of Execution of a decree - Application for I stay of execution in Court of Appeal — Time within which to apply for stay of execution.