Richard Mebolokini vs Republic (Criminal Appeal No. 58 of 1998) [1999] TZHC 515 (10 March 1999)

90 TANZANIALAW REPORTS [2000JT.L.R a RICHARD MEBOLOKINI v. REPUBLIC HIGH COURT OF TANZANIA AT ARUSHA JJ (Rutakangwa, J) CRIMINAL APPEAL No. 58 OF 1998 C (From the decision of the District Court of Monduli at Monduli in Criminal Case No. 23 of 1998) Criminal Practice and Procedure - Recording of evidence - Trial Magistrate P failed to sign the evidence of every witness contrary to section 210(1) of the Criminal Procedure Act 1985 - Whether the failure is curable - Section 388 of the Criminal Procedure Act 1985. Criminal Practice and Procedure - Trial Magistrate failed to inform the appellant E of his rights to call witnesses in his defence and also to request the court to assist him to compel their attendance by a court order — Section 231(4) of the Criminal Procedure Act 1985 - Whether the failure was fatal. The appellant was convicted of the offence of causing grievous harm contrary to F section 225 of the Penal Code by the District Court of Monduli in Criminal Case Number 23 of 1998. He was sentenced to imprisonment for a term of 12 months. He was aggrieved by the conviction and sentence, hence, the appeal to this court. In the Memorandum of Appeal the appellant ’ s Counsel raised, among others, grounds of G irregularity in that the trial magistrate foiled to comply with the mandatory provisions of, inter alia, sections 210(1) and 231(4) of the Criminal Procedure Act 1985 in that the trial magistrate failed to sign the evidence of every witness who testified before him and that the trial magistrate never informed the aAppellant of his right not only to jj call witnesses in his defence but also to secure the presence of his witnesses by court order. Held: (i) The trial court fatally erred in law in not informing the appellant of his right to call his witnesses and how to secure their attendance in court; this was in I contravention of section 231 of the Criminal Procedure Act and also a violation of the appellant ’ s constitutional right under article 13 of our Constitution.

RICHARD MEBOLOKINI v REPUBLIC 91 (ii) Obiter: It is highly dangerous to act on unsigned evidence (at least on appeal) A because there is no guarantee that it was the very evidence which was recorded by the trial magistrate in the presence of the parties concerned. Appeal allowed. B Cases referred to: (1) Joint Ant-Facist Committee v. MC Grathi 341 US 123, 179 (1959) (2) S. v. Beatan (1989) 2 ZLR 20 (SC) C (3) Tuhey v. Ohio 273 US 510 (1927) (4) Fatehal Manji v. R [1966] EA 343 Statutory provisions referred to: D (i) Constitution of the United Republic of Tanzania 1977 Articles 13(1) and 6(a) (ii) Criminal Procedure Act 1985, sections 210(1), 210(l)(a), 312(1), 210(3), 213,388, 196, 198, 210, 212 and 231(4) (iii) Penal Code, section 255 E Mr. D ’ Souza, for the Appellant Mrs. Ntilatwa, for the Respondent F JUDGMENT (Delivered 10 March 1999) G RUTAKANGWA, J.: The appellant, Richard Mebolokini, was the accused in Criminal Case Number 23 of 1998 of the Monduli District Court. He was being arraigned for the offence of causing grievous harm, contrary to section 225 of the Penal Code. It was alleged in the particulars of the charge that: Richard s/o Mebolokini charged on the 10 March 1998 at about 20:15 hours at TNA area within Monduli District did unlawfully cause grievous harm to one Edward s/o Lenga, to wit, he hit him by using t

92 TANZANIA LAW REPORTS [2000]T.L.R. A stone knife on his frontal head, second finger on the left arm, right thumb, and other parts of his body and caused him to suffer injuries. He did deny the charge. After a full trial, he was found guilty as charged, convicted and sentenced to a prison term of 12 months. B He was aggrieved by the conviction and sentence and is appealing to this court against both. The appellant employed Mr D ’ Souza, learned advocate, to prosecute the appeal. c Mr D ’ Souza has filed ten (10) grounds of complaint against conviction and one ground against the sentence imposed. Some further grounds of appeal are late to the failure of the learned trial Resident Magistrate to comply with the mandatory provisions of sections 210(3) and 23 of the Criminal Procedure Act 1985 (hereinafter to be referred to D as the Act). In determining this appeal I will start with the complaints concerning procedural irregularities which if upheld may dispose of the appeal without having recourse to determining whether or not the conviction wash proper basing on the evidence. E The alleged procedural irregularities are framed as follows: (a) That the trial court erred in law in not complying with section 210(3) of the Criminal Procedure Act 1985. F (b) That the trial court erred in law in not complying with the mandatory provisions of section 231 of the Criminal Procedure Act 1985. (c) That the trial court erred in proceedings to judgement suo moto before the defence had closed its case. G While I will deal with the first complaint separately, I propose to combine the other two complaints and deal with them together. Section 210(3) of the Act provides as follows: The magistrate shall inform each witness that he is entitled to have his evidence read over to him. If a witness asks that his evidence be read over to him the magistrate shall record any comment which the witness may make concerning his evidence. I

RICHARD MEBOLOKIN1 v. REPUBLIC 93 It is clear, then, that the law casts upon each trial magistrate a positive a (mandatory) duty to inform each witness, after he/she has testified, of the right to have his/her evidence read over to him/her. The law however is silent on the legal consequences to the trial if the magistrate either in advertently or deliberately fails to comply with this mandatory b requirement. Neither Mr D ’ Souza nor Mrs. Ntilatwa learned State Attorney who represented the respondent Republic in this appeal, has been of much assistance to me on this. In a terse one sentence (in his written submission) Mr D ’ Souza has contended that “ the clear c breach of section 210(3) “ is good ground for saying that the trial had serious irregularities that could make the errors a nullity. ” For her part, Mrs. Ntilatwa in her written submission better contends that “ the alleged irregularities have not occasioned any failure of justice and are curable under section 388 of the Criminal Procedure Act. ” Of course, there is no clear proof that the trial magistrate did not comply with the provisions of section 210(3) of the Act. No e single witness has either by affidavit or otherwise shown this court that he/she was not informed of the right envisaged by section 210(3) of Act. I am aware that the law itself does not spell out how the trial magistrate should signify in the record of proceedings his compliance F with this provision of the law. I understand, of course, that more diligent trial magistrates indicate this by these words “ section 210(3) of the Criminal Procedure Act complied with. ” I mean no disrespect to the learned trial Resident Magistrate by the remark “ more diligent trial magistrates. ” I have said so advisedly. This is because as I was perusing the court record to satisfy myself on whether or not this particular complaint is well taken I did discover more serious irregularities. These were total non-compliance by the good trial magistrate with the mandatory provisions of section 210(1 )(a) and H section 312(1) of the Act. The trial magistrate not only defaulted informing the witnesses of their entitlement to have their evidence read over to them (or recording that he did so), he also never signed the judgment and the evidence of every witness. 1

94 TANZANIA LAW REPORTS [2000] TLR A Section 210(1) of the Act reads: 210(1) in trials, other than trials under section 213, by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner: B (a) the evidence of each witness shall be taken down in writing in the language of the court by the magistrate or in his presence and hearing and under his person direction and superintendence, and shall be signed by him and shall form part of the record, [emphasis supplied] . (b) ... (not relevant). The signing is not a mere formality which can be dispensed with D impunity. It signifies not only that the said evidence was written by the magistrate himself/herself or in his presence, hearing and under his personal impeccable assurance to its authenticity. Such evidence, in my considered opinion, can form part of the record of proceedings if so recorded and signed. It is therefore highly dangerous to act on unsigned evidence (at least on appeal) because there is no guarantee that it was the very evidence which was recorded by the trial magistrate in the presence of the parties concerned. When F the authenticity of the record is in issue, non-compliance with section 210 may prove fatal. Section 231 of the Act, which is the basis of the second ground of complaint on procedural irregularities specifically provides in subsection (1) that once that court has held that the accused has a case to answer, it shall again explain to him/her the substance of the charge and inform him of his right to give evidence on his own behalf and to call witnesses in his defence. Sub-section (4) provides as H follows: If the accused person states that he has witnesses to call but that they are to be present in court, and the court is satisfied that the absence of j such witnesses is not due to any fault or neglect of the accused person, and there is likelihood that they could if present, give material evidence

RICHARD MEBOLOK1NI v REPUBLIC 95 on behalf of the accused person the court may adjourn the trial and issue A process, or take other steps, to compel attendance of such witnesses. There is no dispute here on the facts that the learned trial Resident Magistrate never bothered to remind the appellant of the substance of each charge he was facing and had to defend himself in relation B to it or to any other lesser related offence. There is no dispute to the fact that the Magistrate never informed the appellant of his rights not only to call witnesses in his defence but also to request the court to assist him to compel their attendance if he was not certain c of their willingness to attend without a formal court order. Although the first omission can arguably be treated as an innocuous irregularity since he or the same defendant himself the latter irregularity/omission cannot be so held. I find support for this view in articles 13(1) and D 6(a) of the Constitution of the United Republic of Tanzania 1977. The same provides as follows: 13(1) All persons are equal before the law and are entitled, without any discrimination, to equal opportunity before and protection of the law. E [(2) to (5): not relevant here] (6) For the purpose of ensuring equality before the law, the State shall make provision: p (a) that every person, shall, when his rights and obligations are being determined be entitled to a fair hearing by the court of law or other body concerned and be guaranteed the rights of appeal or to another legal remedy against the decisions of courts G of law and other bodies which decide on his rights or interests founded on statutory provisions. ” Inherent in the basic right to a full or fair hearing is the right of an accused person to call his own witnesses, to have a compulsory court H process for obtaining witnesses in his favour and affording him reasonable opportunity to call such witnesses. If this be not carried out scrupulously the basic right of equality before the law contained in the above quoted article 13(1) would be perfectly described as illusory. This I

96 TANZANIA LAW REPORTS [2000]T.L.R. A is particularly so because every criminal case, as it is constantly said, is a contest between an individual accused and the Government. Any modern government, as is convincingly argued, is very powerful and is chief repository of the enormous power. On this reasoning it B is evident that a criminal case is inherently an unequal contest and the disparity between them is of such magnitude that without safeguards injustice is the inevitable off spring for “ inequality begets injustice. ” The prime end of defending procedural safeguards is not to embrace c what was once referred to a “ puerile sentimentality about the criminal. ” It is only to lay a proper and impermeable foundation for the discovery of truth so that justice may eventually be done; for it is justice based on truth which is lasting, satisfying, unifying and healing. D In his publication titled “ If we are to act as free men ” in the Saturday Review Literature of 13 February 1954 at page 9 Mr Justice Douglas (of the US Supreme Court) had this to say on procedural safeguards: E It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedure is our main assurance that there will be equal justice F under the law. He could not have been more correct. To dispel any fears to the effect that placing much insistence on procedural safeguards only works in the favour of the accused Mr Justice Jacleson left us this G legacy. ... Let it not be overlooked that due process of law is not for the sole benefit of the accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur: Joint Anti-Facist Committee v. McGrath (1). From the above two examples (and there are myriads more) it is plain that courts of law will not treat lightly any infringements of I procedural safeguards which are meant to promote the full realization

RICHARD MEBOLOKJNI v: REPUBLIC 97 of an accused person ’ s basic right to a fair trial. With this is mind it a is fair to return to the facts of this case. As already pointed out above the appellant when called upon to defend himself was not informed of his right to call defence witnesses and how to secure their attendance as demanded by the Constitution B and the Act. After the appellant had testified on 20 July 1998 his counsel, Mr Lundu informed the trial court that the defence intended to call one witness. He named him as one, Mr Toure, who was not in attendance on that day. It appears from the record of the trial court c that the trial magistrate never recorded all the essential words that the learned counsel told him in seeking for an adjournment. Whether it was by design or through inadvertence is anybody ’ s guess. This is evident from page 12 of the typed proceedings. It goes as follows: D Mr. Lundu: I expect to call Mr Toure who is not here today, he was mislead (sic) for he thought 20 July 1998 is Tuesday Court: I will not be able to allow adjournment merely for the reason given and while talking the advocate Lundu about the importance of calling Mr Toure he said he wanted (sic) to prove that he is the one who lifted accused person to Monduli after being left behind by District Commissioner. Therefore this point is so small and therefore let Mr Toure file an affidavit to prove his small point and avoid wastage of time and costs. Sgd: SH Shaidi - Resident Magistrate 20 July 1998 Order.(l) Affidavit to be filed on or before 22 July 1998 at Resident Magistrate Court Arusha. G (2) Judgment on 1 September 1998 accused bail extended. Sgd. SH Shaidi, RM 20 July 1998 [emphasis supplied] From the above extract it is obvious that the learned trial magistrate H was conducting the trial on the basis of expediency and convenience to himself (and the Government) to save time and money. Whether his adopted unorthodox procedure would have inconvenienced the appellant (and his counsel) or put them to extra costs or prejudiced the interests of justice was none of his concern. It is instructive to

98 TANZANIA LAW REPORTS [2000] TLR A remind the trial magistrate here that speed in disposal of cases is not an end in itself, since justice both to the accused and to the public is the prime and overriding consideration in the administration of justice where the rule of law is held supreme, as in our country. b That the order to receive the evidence of Mr Toure by way of affidavit contrary to the specific mandatory requirements of sections 196, 198, 210 and 212 of the Act, would have worked injustice to both parties to the case need not be overemphasized here. It is obvious, c the order does not provide the appellant with an alternative remedy in case the said Mr Toure ’ s affidavit was not filed by 22 July 1998 (as apparently was the case), for it is not in the court record nor is it referred to, even in passing, in the perfectly written three-page D judgment). Secondly, the order did not accord the prosecution its inalienable right of cross-examining the said Mr Toure. It is rightly believed that cross-examination is the only crucible through which the truth can be extracted from a witness. How then could the good trial magistrate have assessed the credibility of Mr Toure as a witness since his evidence was meant to discredit the key three prosecution witnesses (i.e. PW1 Edward Lenga, PW2, Abdallah Kihatu, the Monduli District Commissioner, and PW.3 Hussein Musha)? Or should we safely assume that the learned trial magistrate and already decided F to believe these three prosecution witnesses even before the trial was over? That this was the case is evident from his untimely and unjudicial conduct of deriding the yet to be given evidence of Mr Toure. From whatever angle one views the conduct of the trial of G the appellant it is crystal clear that he was not fairly treated by being denied, unjustifiably, an opportunity to call a witness in his defence, whose identity was disclosed and the substance of his evidence made known to the trial magistrate. H It is now a universally accepted rule that where an accused claims that his fundamental right to a fair trial has been violated in that he has not been afforded facilities to obtain the attendance of his witnesses, he must make some plausible showing of how their testimony would 1 have been both material and favourable to his defence: See, for example

RICHARD MEBOLOKJNI v REPUBLIC 99 S v Beatan (2). Has the appellant met this test? My objective answer a to the question is in the positive. It has been incontrovertibly shown by him that Mr Toure ’ s evidence would have shown that PW1, PW2, and PW3 abandoned the appellant in the bush after being assaulted and injured (as per appellant ’ s evidence by them) and that PW2 ’ s b story that they arranged for the appellant to be transported to Monduli township by a “ mikopo ” vehicle was a fabrication. It is further contended that Mr Toure ’ s evidence would have exposed them as liars and revealed their “ underlying bias against the accused. ” If indeed Mr Toure had c testified along these lines and was believed then the credibility of these three prosecution witnesses would have been totally shattered, leaving no cogent evidence incriminating the appellant with any offence. The act of the trial magistrate of dismissing the application of the appellant for the adjournment of the trial to enable him to call his important witness out of hand to me smacks of bias on his part against the appellant. This is reflected by the words he used in dismissing the application which I have underlined in the above quotation. E As was long ago stated by Taft, C.J. in Tumey v. Ohio (3), the right to a fair hearing requires the judge or magistrate “ to hold the balance nice, clear and even between the State and the accused. ” A judge or magistrate cannot be said to have held such a balance or F acted impartially when he has exhibited prejudicial conduct which injures the accused ’ s case as for example, disparaging a defence witness ’ s evidence even before it is presented to him (as the trial magistrate did in this case). His expected detachment in the conduct of the trial was compromised by his deeds. In the light of the above I uphold the grievances of the appellant to the effect that the trial court fatally erred in law in not informing him of his right to call his witnesses and how to secure their attendance H and denying him the opportunity to call his very important witness, Mr Toure. This was not only in contravention of section 231 of the Act but a flagrant violation of his constitutional right under article 13 of our Constitution. He was greatly prejudiced and a failure of t justice was occasioned to him. I accordingly declare the entire trial

100 TANZANIA LAW REPORTS [2000] TLR A a nullity as urged by Mr D ’ Souza. I accordingly quash and set aside the entire proceedings, the judgment and conviction resulting there from and the sentence of one year imprisonment imposed on the appellant. As the appellant has been out on bail pending the hearing B and determination of this appeal, it will not be necessary to order his release from prison. In situations of this nature, the court finds itself with two options, either to order a retrial or not. There are not hard and fast rules that c are to be applied in deciding either way. Section 388(1) of the Act gives this court a wide discretion on the issue. Speaking of the identical section 319(1) of our then Criminal Procedure Code (Chapter 20) the East African Court of Appeal in the case of Fatehal Manji v. R D (4) said that it gave “ the High Court on appeal on unlimited discretion as to ordering a retrial. ” After referring to its earlier decisions, it concluded that: ... in general a retrial will be ordered only when the criminal trial was E illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution F is not to blame, each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to case an injustice to an accused person ... at page 344. G Is a retrial necessary in the interests of justice in this case? After pending over this question with an open mind, I have found it essential to answer it in the negative. Having carefully gone through the entire evidence on record and the grounds of appeal, I am of a firm view H that a retrial will be more beneficial to the prosecution as it will be able to fill up the gaps in its evidence and eliminate the discrepancies highlighted upon by the appellant ’ s counsel in this appeal, which made the prosecution case look shaky. A retrial will therefore, cause I an injustice to the appellant.

RICHARD MEBOLOKINI v RI '" UI l( 101 As already shown the appellant was sentenced to 12 months jail A upon his own conviction. By the time he was released on bail he had already served two months of that sentence. If one reads the evidence of PW1 dispassionately, he will come to conclusion that if his evidence, as it is, believed at all the prosecution can only at best prove the b offence of assault causing actual bodily harm c/o 241 of the Penal Code which in the circumstances of this case might attract a lighter sentence than a custodial one. A retrial therefore in view of this fact will not be in the interests of justice. c Lastly, I find no guarantee here that if I order a retrial the appellant ’ s key witness, Mr Toure, will be readily available to testify on his behalf. As already shown if the learned trial magistrate had allowed Mr Toure to testify and if the said witness could have been successfully d used to impeach the credibility of PW1 , PW2 and PW3 the acquittal of the appellant could have been assured. Things might work differently if I order a retrial and then Mr Toure is not available to testify. An obvious injustice will be occasioned to the appellant. The golden e opportunity to do real justice in the case (to both sides) was irretrievably wasted by the trial magistrate ’ s haste. Indeed the English people who have long held that “ more has to less speed ” could not have been more correct. „ r All in all then a re-trial will not be in the interests ofjustice and I will not order one. In reaching this conclusion I am also conscious of the fact that (per their evidence) both PW1 and the appellant are leaders in the Monduli District Council government. g The evidence of both sides reveals that the cause of the quarrel which led to the undisputed fight between them was their differences on development of a school project in their area. If these differences are allowed to grow into full animosity they will be doing a great H disservice to the people of Monduli District. I accordingly implore them to bury the hatchet and work together for the sake of promoting solidarity for the purpose of spearheading meaningful social and economic development in their District. Being leaders they should i not be ashamed of this. The Swahili people have a wise saying which

102 TANZANIA LAW REPORTS [2000] TLR. a when freely translated means “ those who quarrel, are the ones who make it. ” In his evidence the appellant told the trial court that the two had once quarreled and their Member of Parliament timely intervened and advised them to refrain from such behaviour. I lend the full weight b of this court in support of the M.P ’ s advice. They should give heed to it, for a united leadership is essential for people ’ s sustained development. Very recently Israel ’ s best known contemporary author, Amos OZ had the following apposite advice to his country in its c approach to the entire peace process with the Palestinian people. He said: (A) conflict begins and ends in the hearts and minds of people, not in the hill tops, Newsweek Magazine of 1 March 1999 at page 52. D Let them, the conflict between Lenga and Mebolokini end in like manner. All said and done, I allow this appeal for the reason given herein. E ____________________________________ FAHARI BOTTLERS LIMITED AND ANOTHER v. REGISTRAR OF COMPANIES AND ANOTHER COURT OF APPEAL OF TANZANIA AT DARES SALAAM g (Nyalali, C.J., Ramadhani and Lubuva, JJ. A.) CIVIL REVISION No. 1 OF 1999 H (From Rulings of the High Court of Tanzania at Dar es Salaam in Miscellaneous Civil Applications Nos. 146 to 155 of 1998) Constitutional Law - Court of Appeal and the legislative powers of Parliament

• Constitution vests in the Court of Appeal appellate powers only - I Parliament subsequently adds thereto the powers of revision - Whether