Andrea v Republic (Criminal Appeal No. 4 of 1998) [1998] TZHC 2553 (14 December 1998)

ELINEEMAANDREAv. REPUBLIC 463 ELINEEMAANDREAv. REPUBLIC a HIGH COURT OF TANZANIA AT ARUSHA R (Mushi, J.) CRIMINAL APPEAL No. 4 OF 1998 (From the District Court of Arusha at Arusha in Criminal Case No. 67 of 1997) c Criminal Practice and Procedure - Preliminary hearing - Admission of a retracted Cautioned Statement and other disputed items as exhibits during preliminary hearing — Whether procedure was proper - Section 192 of the Criminal D Procedure Act. The appellant and another person were charged and convicted of robbery with violence. Amongst the evidence on which the trial magistrate based his conviction was a Cautioned Statement of the appellant which he retracted during preliminary e hearing but was overruled by the magistrate. The prosecution also tendered some of the alleged stolen items which the appellant denied knowledge of, but was similarly overruled by the court, which admitted the said itEms as exhibits. Held: (i) The basic principle in conducting a preliminary hearing is to seek agreement F between the parties on relevant and triable issues or facts in the case to enable expeditious finalization of the case. It is against the spirit and principle of agreement between the parties envisaged in a preliminary trial for a trial magistrate to overrule a party on objection to a particular proposal. G (ii) The exhibits tendered during preliminary hearing and relied upon in the subsequent trial and judgment vitiated the whole proceedings. Appeal allowed I

464 TANZANIA LAW R EPORTS [1999JTL.R. a JUDGMENT (Dated 14 December 1998) B NM MUSHI, J.: The appellant, Elineema Andrea and one Afraeli Siwalo, were jointly charged and convicted with the offence of robbery with violence contrary to sections 285 and 286 of the Penal Code. It was alleged that the appellant and Afraeli Siwalo on 6 January c 1997, the two persons jointly stole several items from the Holy Ghost Fathers farm at Tengeru. It was further alleged that at the time of stealing they used force by attacking the watchmen and caused them to suffer some injuries. The stolen property was valued at TZS. 7 735 000 The appellant was sentenced to fifteen (15) years imprisonment. He is appealing against both conviction and sentence. The appellant has put forward several grounds challenging the judgement of the trial court. One of the grounds of appeal reads: E That the trial magistrate erred in law and fact when she admitted as exhibit a Cautioned Statement which was retracted. The Cautioned Statement of the appellant was admitted as Exhibit F2 and it was tendered during the preliminary hearing. The appellant F objected to the tendering of the alleged Cautioned Statement but the learned trial magistrate overruled the objection raised by the appellant. The alleged Cautioned Statement was believed and relied upon by the trial magistrate, inter alia, as a basis of conviction. G In the same trial, during preliminary hearing the prosecution produced some items which were stolen and were alleged to have been in possession of the appellant. The items were found in a vehicle in which the appellant was a passenger. The appellant objected to the tendering of the items on the grounds that they were not found in his possession. The learned trial magistrate overruled the appellant ’ s objection and allowed the prosecution to tender the same and were marked as Exhibit Pl The trial magistrate relied heavily on Exhibit Pl as a basis of 1 convicting the appellant. The manner in which Exhibits P 1 and P2

ELINEEMA ANDREA v. REPUBLIC 465 were tendered and the objections against producing the same was A recorded as follows: The first accused wrote a caution statement at police station in which he said that the properties were given to him by Kiduu or Afraeli Siwalo to D sell. The said Kiduu was arrested and on 31 January 1997 all the accused were brought to court. I pray to tender those properties as exhibit. First accused: I have no objection Second accused: I object I have not seen them before C Third accused: I object I have not seen them before Fourth accused: I have object I have never seen them Court Objection overruled. One Lister Peter Machine, Electrical Motor D Horse PW1 10 and another HP 5, admitted as Exhibit PI collectively. I also pray to tender the caution statement of the first accused. First accused: I object because I did not write it voluntarily I only agree to my name religion, occupation age and residence. Those are what I wrote voluntarily. Second accused: I object because I was not involved in the robbery. Third accused: I object because I do not recognize it F Fourth accused: I object because I do not recognized it. COURT: Objections overruled. Caution statement of the first accused admitted and marked Exhibit P2 That is all. g First accused facts in dispute (2) I was not involved in the robbery of Holy Ghost Farm in the night of 5 January 1997. H (3) The goods that are Exhibit PI in court were not in my possession. Sgd: F.J. Mushi, RM Sgd: Public Prosecutor Sgd: Accused Persons

466 TANZANIA LAW REPORTS [1999]! L.R. A second accused I was not involved in the robbery that occurred in Holy Ghost on 5 January 1997 Sgd: F.J. Mushi, RM B Sgd: Public Prosecutor Sgd: Accused Person Third accused: I was not involved in the robbery in Holy Ghost on 5 January 1997 C Sgd: F.J. Mushi, RM Sgd: Public Prosecutor Sgd: Accused Person D Fourth accused: I was not involved in the robbery on Holy Ghost on 5 January 1997 I did not give the properties that are Exhibit Pl to sell. Sgd. F.J. Mushi, RM Sgd: Public Prosecutor Sgd: Accused Persons. Preliminary hearing is conducted under section 192 of Criminal Procedure Act. And for the purposes of this appeal I shall reproduce F here subsection (1) and (2) which reads: B . Notwithstanding the provisions of section 229, if an accused person pleads not guilty, the court shall as soon as is convenient hold a preliminary hearing in open court in the presence of the accused or his advocate if he is represented by an advocate and the public prosecutor to consider such matters as are not in dispute between the parties and which promote a fair and expeditious trial. C . In ascertaining such matters that are not in dispute, the court shall explain to an accused who is not represented by an advocate about the nature and purpose of the preliminary hearing and may put questions to the parties as it thinks fit. The answers to the questions may be given without oath or affirmation. ”

EL1NEEMAANDREA r REPUBLIC 467 The purpose of conducting preliminary hearing is to consider and A ascertain such matters as are not in dispute between the parties in order to promote fair and expeditious trial. The basic principle in conducting preliminary hearing is to seek agreement between the parties on relevant and triable issues or facts in the case to enable b expeditious finalization of the case. No fact or document is ever regarded or treated as undisputed in a preliminary hearing unless it is agreed upon by both the accused and the prosecution. If one of the parties, i.e. the accused or prosecution, raises an objection to a c proposed fact or document, then that fact or document is disputed and it must be left out to await trial. It is against the spirit or principle of agreement between the parties envisaged in a preliminarily trial for a trial magistrate to overrule a party on objection to a particular proposal as was done in this case. With regard to Exhibit Pl, the appellant who was the first accused at the trial clearly stated, and I quote; The goods that are Exhibit Pl in court were not in my possession. E And with regard to Exhibit P2, this is what was recorded. I pray to tender the caution statement of the first accused. First accused: F I object because I did not write it voluntarily. I only agree to my name, religion, occupation. Age and residence. That is what I wrote voluntarily. G Also fourth accused at the trial, Afraeli Siwalo alias Kiduu, stated: I did not give the properties that are Exhibit Pl to sell. I have already stated that the learned magistrate overruled those objections H and admitted Exhibits P 1 and Exhibit P2 From what has been stated above, Exhibits P 1 and P2 were admitted in contravention of subsection (1) of section 192 of Criminal Procedure Act (CPA.) for lack of agreement on the facts between the parties.

468 TANZANIA LAW REPORTS [1999JT.L.R. A There is yet another irregularity in the proceedings. The learned trial magistrate did not comply with the provisions of subsection 3. This subsection requires that and I quote: ... The court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate and by Public Prosecutor and then filed. c From the record it appears that the accused, the Public Prosecutor as well as the trial magistrate signed what was termed: “ Facts in dispute ” . On page five of the typed proceedings. The law requires the parties D to sign matters which are undisputed and NOT on disputed matters. This confirms my earlier observation that there were no agreed relevant or triable issues in the case. Subsection 4 of section 192 under which the preliminary trial is conducted, requires that: .... Any fact or document admitted or agreed in a memorandum filed under this section shall be deemed to have been duly proved. F and therefore no more evidence will be required in the subsequent trial to prove the same. Exhibits Pl and P2 which, in accordance with the prosecution evidence, were the pillars of their case, were admitted contrary to the provisions of section 192 and there was no G evidence adduced in the subsequent trial to prove the same. In law therefore, the position is as if Exhibits Pl and P2 were not part of the record of the court against whose judgement this appeal has been brought. H In her judgment the learned trial magistrate, found as proved facts on matters ascertained in Exhibit PI and statement contained in Exhibit P2 as true and proved when she wrote: On top of that act, (appellant) first accused at the trial was found with 1 some of the stolen properties that are Exhibit Pl .

ELINEEMA ANDREA v. REPUBLIC 469 And again: A On top of that, DW wrote a caution statement (Exhibit P2) in which he admitted to have obtained those properties illegally. The learned trial magistrate, inter alia, relied on Exhibit P 1 and P2 B to convict the appellant. It has been demonstrated that Exhibits Pl and P2 were not properly tendered and therefore not provided in accordance with the law. The judgement was therefore partly based on non existent or illegal evidence rendering it to be illegal as well. The judgment cannot be allowed to stand. As if this was not enough, the learned trial magistrate did not comply with provisions of subsection 2 of section 192 of CPA. I have deliberately quoted above the subsection in extenso. This section D requires that: In ascertaining such matters that are not in dispute, the court shall explain to an accused who is not represented by an advocate about the nature and purpose of the preliminary hearing ... E For understandable reasons, this provision is mandatory. Atrial magistrate should clearly state on the record at the start of a preliminary trial where an accused is not represented by an advocate that provisions of subsection 2 of section 192 of CPA have been complied with. If F an accused person does not understand the nature and purpose of the preliminary trial, it means that he does not know his rights and therefore he will not participate fully in his trial and failure to make an accused fully participate in his trial amounts to a miscarriage of G justice. It is apparently clear that the provisions of section 192 of Criminal Procedure Code were flagrantly not complied with and the exhibits tendered during preliminary trial and relied upon in the subsequent H trial and judgement, vitiated the whole proceedings rendering it a nullity. The result is therefore that the appeal is allowed. The proceedings and judgment are hereby declared a nullity. The conviction is hereby quashed and sentence set aside. I

470 TANZANIA LAW REPORTS [1999]T.L.R A One Afraeli Siwalo was convicted on the same proceedings and on the same evidence. I am not aware that he has appealed against his conviction and sentence. In the exercise of my revisional powers under section 373 of CPA for the same reasons as for the appellant, B Elineema Andrea, the conviction of Afraeli Siwalo is quashed and the sentence is set aside. I make no order for retrial but the matter is open for the Director of Public Prosecution to institute fresh charges against the appellant, c Elineema Andrea and Afraeli Siwalo. MIROSLAV KATIC AND TWO OTHERS v IVAN MAKOBRAD F COURT OF APPEAL OF TANZANIA AT DARES SALAAM (Makame, Ramadhani and Lubuva, JJ. A.) f CIVIL APPLICATION No. 66 OF 1998 (From Ruling of a Single Judge of the Court of Appeal of Tanzania at Dar es Salaam) G Civil Practice and Procedure — Application of rule 45(1) and (2) of the Court of Appeal Rules - Revisional jurisdiction of the Court of Appeal - Section 4 of the Appellate Jurisdiction (Amendment) Act Number 17 of 1993 - Objective behind the Act. II Court of Appeal Rules -Revisions — Revisional jurisdiction of the Court of Appeal

• Section 4 of the Appellate Jurisdiction (Amendment) Act Number 17 of 1993 ~ Objective behind the Act. j In High Court Civil Case Number 321 of 1997, initially, the respondent, Ivan Makobrad, had filed the suit against the first and second applicants, namely Miroslav Katie and