Thabit Willa Ismail vs Republic [1987] TZHC 43 (1 December 1987)


Kyando, J.: This case was heard by two magistrates.  A total of three witnesses testified for the prosecution.  The first Magistrate who heard the case, B.M. Luanda, R.M., heard the evidence of two of these witnesses. Then G.M. Nkwera took over.  On taking C over and before he continued with the hearing of the case he made the following note:
   Ct! 8. 214 of Cr.P.A. complied with
Sgd. G.M. Nkwera, RM D
S.214 of the CPA provides as follows:
   214 - (1) Where any Magistrate, after having heard and recorded the whole or any part of the E evidence in any trial or conducted in whole or in part any committal proceedings is for any reason unable to complete the trial or committal proceedings within a reasonable time, another Magistrate who has and who exercises jurisdiction may take over and continue the F trial or committal proceedings as the case may be and the magistrate so taking over may act on the evidence or proceedings recorded by his predecessor and, may in the case of a trial re-summon the witnesses and recommence the trial or the committal or otherwise subject to subsection (2). G
   (2) Whenever the provisions of subsection (1) apply -
   (a)   in any trial the accused may, when such other magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and reheard H and shall be informed of such right by the second magistrate when he commences his proceedings.
   (b)   the high Court may, whether there be an appeal or not, set aside any conviction passed I on evidence not wholly recorded by the Magistrate before the

      conviction was had, if it is of the opinion that the accused has been materially A prejudiced thereby and may order a new trial.
At the commencement of the hearing of the appellant's appeal in this case, Mr. Boaz, B learned State Attorney representing the Republic, made the following submissions to this Court:
   (1)   Although the Resident Magistrate says at page 8 of the typed proceedings that s.214 CPA was complied with, there is no record of the answer given by the accused. C
   (2)   The evidence given by the witnesses who had testified before the first Magistrate was very crucial to the case.  It is my view that they should have been re-called to testify before the convicting Magistrate so that he could have the opportunity of seeing them D testify.  I believe that the appellant was prejudiced by the failure of the Resident Magistrate to re-call these witnesses.  I was wondering whether this court should not invoke the provisions of s. 214(2)(b) of the CPA in this case therefore. E
The learned State Attorney also submitted that because the appellant has served a considerable part of his term in jail I should consider not ordering a re-trial. F
He referred me to the case of Katuale & Anor. v R., [1971] HCD n. 46 in which Kisanga Ag. J. (as he then was) held, inter alia that the fact that an appellant has already been in custody for some time is a consideration to be taken into account in deciding whether or not to order re-trial, but this is not the only consideration.  The G decision should depend on consideration of all the facts and circumstances of each particular case.  In the instant case Mr. Boaz submitted that the appellant was convicted and sent to jail on 3.3.86.  He has been in prison for over a year now.  He suggested that this is a long enough period the appellant has served and a re-trial under the circumstances should not be ordered. H
With respects I agree with Mr. Boaz's submissions.  I am of the view that after complying with S. 214 (2) (a) of the CPA, the learned Resident Magistrate who convicted the appellant should have recorded appellant's answer - whether he wished I the witnesses who had testified before the first Magistrate to be re-called or not.  I think this follows naturally from the provisions of the law that require

that the accused "shall be informed of such right by the second magistrate" as they are in A s. 214(2)(a) of the CPA.  As the position is now, we do not know what he (the appellant) said after Resident Magistrate complied with S.214 of the CPA as he states in the proceedings.
I also agree that the appellant was materially prejudiced as PW1 and PW2 who did not B testify before the second Magistrate were the crucial witnesses for the prosecution.  Finally, I agree with Mr. Boaz that an order for a retrial would be inappropriate in this case.
Accordingly I allow the appeal, quash the conviction of the appellant and set aside the C sentence imposed on him.  I order that he be released from prison immediately unless he is being held there for another lawful cause.
D Appeal allowed.


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