Augustino Masatu vs Republic (Misc Criminal Application No. 2 of 1998) [1999] TZHC 449 (3 March 1999)
Judgment
rn THE HIGH COURT OF TANZANIA
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MISC. CRIMINAL APPLICATION NOb 2 OF 1998
IN THE MATI'ER OF AN APPLICATION FOR CHANGE OF
PRE;JJ)ING IVAGISTRATE u/s 191 OF THE CRIMINAL
PROCDURE ACT NO. 9 OF 1985
AND
IN 'YrlE M,l.TI'ER OF CRIMJJJAL CASE NO. 83/97 OF THE
DISTRICT COURI' OF URAM.BO AT URA.MEO
AUGUSTINO MASi.TU ooooooooco•o APPL ICA!'-J"T
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Versus
THE REPUBLIC ocacooo••oogoooeooe•ooooo&oocoooo•oe RES:EDNDENT
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RULING
This is an appli-cation made by JV'ir(l Kw:i.kima, on behalf of his
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cliento It is made. llllder section 191 (1) of. he C:riminal Procedure
Act 19850· Mr. Kwikima deposes that I should order· for a transfer ef
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a case ;in Uramb9, Criminal Case No~ 83 of 19?7;'.
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btween the Republic
and lat1ons they admit and which they
disputeo
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I might as well add grolllld no 5, whichreads:ne Augustino Masatu to a new magistrateo. I have looked at
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ground no 4 that Mr., Kwikim says almost summar.ises his complaint.
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It. reads:
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11-Iis · ability f!ie talks of t_e learnd _9-istrict
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magistrate? to appreciate the issues is·
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comp!:0mised by the hapharzadous way :in which
he had handled the preliminary :inqu:iry
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The
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record shows that no stipulati!.-.l;t'l.S were
listed. The accused were not asked which
sti
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Ufuere is real danger of failure of justice
if the presiding magistrate is not changed.
He may conduct the trial ·in the unfair way
he has been doing whenever I have apard
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T 2.sked Vrr., Mwampoma$ the learned. state attorney who appeared
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for the DPoPi whether he had anything t~ say; d Mr Mwampoma -said
he had no \1bjction to the application for a change of magistrate
in the case'o
After 'I heard col.lllsels giving me submissions on the matter,
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I have come of the opinio that the High C91ilrt mμst be extremely
cautions. in ½:i.ccept:ing appic_ations for change of magistrates in the
lower Courtso Impression must be createq that any person, let
alone an advocate, who dis.likes they way a case is going en in the
subordinate Court may nqt m·to embrace or encourage parties
to change maguite eas:i;J.y come to the High Court to ask
sometimes·
for a change of magistrate 0 Indeed, -,:,, ... at the very start of a
....
trial, it ·may be easy to ascertain the outcome of a trial. Tile High
8ourt should not, thereforebe
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sestrates whenever evidence sho\i\Sthe outcome refore be :in yery ~~ceptional cases that the High Court
·should nllS,'v! for cb,anges. of magistrateso I have, h1>wever, been able
to get some guidance from the case of g_y., __ ,H<;shf the case.
For as one eminent judge has said, magistrates are allowed to make
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mistakeso A,:nd, that is why legal systems provide for ladders of appeal.
It should th1:1;},/.9. .fio_!'.lrE:i.<!_}1:f.-::upt~
/19687 H.C.,Do Z72 where Saidi J (as he then was) said:
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- . . 1 7Where the grounds for transfer are that it is necessary to ·secure fair trial 'a clear case must be made out that the .accused person has a reasonable apprehension in his mind that he will not have_ a· fair and importio:t trial before the·magistrate from whom he wants the trial trnnsfe:rred 111 e r
Saidi J went on:
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It is enough that the accused's apprehension
itself is reasonabie, whether ornot the
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High Court believes that a transfer is necessa.ry
fo+ any other reason but his fears must be
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g:;_ounded ~ rrtJ-1 pr,ved existence of ..~~-9.l
, '·
eents givi-ng rise to a
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reasonable apprehe:nsion
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I I.
.(the underlining nt mine 0
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Saidi J quote with
approval. Wilson J,:in Missllaneous
: '
Cause Noa 10
of 1937 I ToLoRo (R) 129)
magistrate., (See remark
of M:ro 'Kwik!irna which reads:
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'He rpay con::luct the trial :in the tuifair
way he has been do:ing whenever I have appeared b_efore himiv) •· The
_High Court would have nothing to d9; with persopaJ pr.:hlems ·between
-advocates arid magistrate
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. Thi? application is allowed! For better. ends of justice I
crder th·
In the application before me
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I think I wHl. allow for a change
of magfltrai:e r.,I am not, howeve:i; allowing the change becaui;;e of :ru-.
Kwikim{personal problem with the trit the previous prceedings be annulledo
Trial should start afresh before another magistrate of.
competent jurisdiction.
At Tabora·
3rd l'-1'3-rcμ 1999