LIAMBA SINANGA v REPUBLIC 1994 TLR 97 (CA)

 

LIAMBA SINANGA v REPUBLIC 1994 TLR 97 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Omar JJA, Mnzavas JJA and Lubuva JJA

CRIMINAL APPEAL NO. 161 OF 1993 D

14 February, 1994

(From the decision of the High Court of Tanzania at Dar es Salaam, Mapigano, J) E

Flynote

Criminal Practice and Procedure - Change of Trial Magistrates - Second magistrate

does not inform accused of F his right to resummon and re-hear witnesses - Section

214(2)(a) of the Criminal Procedure Act, 1985.

-Headnote

The appellant was charged with and convicted of cattle theft. In the court of first

instance two G magistrates heard the case. The second magistrate continued with

the hearing of the case without informing the accused of his right to have witnesses

who had testified before the first magistrate resummoned and re-heard. An appeal by

the appellant to the High Court was summarily rejected. On further appeal the Court

of Appeal addressed the issue of the accused's right to be informed. H

Held:

(i) The language in s 214(2)(a) of the Criminal Procedure Act is mandatory

in that the learned second magistrate was obliged to inform the appellant of his right

to demand that witnesses who testified before the first magistrate be summoned to

testify before the second I magistrate if the appellant so wished.

1994 TLR p98

A (ii) Had the learned judge been aware of the non-compliance (by the

second magistrate) of the mandatory provisions of s 214(2)(a) of the CPA he would

not have summarily rejected the appeal.

Case Information

Appeal allowed.

B No case referred to.

Dr Lamwai, for the appellant.

[zJDz]Judgment

Mnzavas, JA, delivered the following considered judgment of the court:

C This is an appeal from the decision of the High Court (Mapigano J), in High Court

Criminal Appeal No 89 of 1993 in which the learned judge rejected the appeal

summarily. Arguing against the order of the High Court Dr Lamwai, learned Counsel

for the appellant, submitted that the case was heard by D two different magistrates

in the Court of first instance but that before the second magistrate continued with the

hearing of the case the appellant was not informed of his right to resummon the

witnesses or any of them so that their evidence might be re-heard before the other

magistrate if he E (appellant) so wished. In support of his argument the learned

defence Counsel referred to the Court the provisions of s 214 (2)(a) of the Criminal

Procedure Act.

Our perusal of the record shows that the appellant was charged with and convicted of

cattle theft c/ss 265 and 268 of the Penal Code before the district Court and sentenced

to five years imprisonment.

F Hearing of the case started on 28 August 1992 before one, P Nnally, District

Magistrate, and two witnesses (PW1 and PW2) gave evidence before him. Thereafter

the prosecutor applied for adjournment to enable him to summon one, Juma, another

prosecution witness. The magistrate G adjourned the case for hearing on 17

September 1992. Apparently the case did not come up for hearing on 17 September

1992 - instead it came up for hearing on 15 October 1992; and before a different

magistrate one, E H Malekela, Senior District Magistrate. Hearing was again

adjourned on the request of the prosecutor who told the Court - `the witness has not

turned up'. Hearing was H adjourned to 29 October 1992. On that day Mr Malekela,

SDM, heard the evidence of Juma Athumai, (PW3). A month or so later, 26

November 1992, a fourth prosecution witness, D/Sgt. Kassim, gave evidence before

Mr Malekela and the prosecution closed its case.

I On the same day the appellant gave his evidence in defence and closed his

defence.

1994 TLR p99

MNZAVAS JA

The record is silent as to why Mr Nnally, District Magistrate, could not continue

hearing the case to its A finality. Nor does the record show that the appellant was

informed of his right under s 214(2)(a) of the Criminal Procedure Act.

Section 214(1) of the CPA allows another magistrate to take over and continue with

proceedings started by a different magistrate who for any reason is unable to complete

the proceedings provided B that before doing so the provisions of s 214(2)(a) are

complied with:

The provisions under s 214(2)(a) are loud and clear. They say:

`214 (2) `Whenever the provision of sub-section (1) applies - C

(a) in any trial the accused may, when the such other magistrate

commences his proceedings, demand that the witnesses or any of them be resummoned

and re-heard and shall be informed of such right by the other D

magistrate when he commences his proceeds' - (The emphasis is supplied).

That being the language in s 214(2)(a) it was mandatory on the part of the learned

second magistrate, Mr Malekela, Senior District Magistrate, to inform the appellant of

his right to demand that the witnesses who testified before the first magistrate be

summoned and testify before him if he E (appellant) so wished. This, Mr Malekela,

Senior District Magistrate, did not do.

With respect to Dr Lamwai, learned defence Counsel, we agree with his argument

that had the learned judge been aware of the non-compliance by the second

magistrate of the mandatory F provisions under s 214(2)(a) of the CPA he would not

have summarily rejected the appeal. The order of the High Court is apparently not

supported by the Republic.

In the event the appeal is upheld, the record is remitted to the High Court and it is

directed that the G appeal be heard on its merit.

1994 TLR p100

A