Court name
High Court of Tanzania

Republic vs Albert Awour & Others () [1978] TZHC 1 (16 June 1978);

Law report citations
1985 TLR 20 (TZHC)
Media neutral citation
[1978] TZHC 1
Coram
Lugakingira, J.

Lugakingira, J.:  This was an application of change of venue under s.80 of the Criminal D Procedure Code.  The applicants who are facing various charges in the district court at Tarime are apprehensive that they will not have a fair and impartial trial if their case is heard by any magistrate of that Court and at the said court.  Their main grounds as set out in the affidavit and argued by learned counsel Mr. Mwale are, I think, E
   (a)   that the case was mentioned nineteen times and no bail was granted;
   (b)   that when bail was finally granted it was coupled with difficult conditions which the High Court had to modify; F
   (c)   that the complainant is well off and threatens to secure imprisonment if the case is tried at Tarime; and
   (d)   that the trial Magistrate similarly threatens incarceration whenever the case comes up for mention. G
In general, Mr. Mwale submitted that in considering such an application the proper test was whether reasonable apprehension existed in the mind of the accused. H
First of all, I do not know which record Mr. Mwale and his clients had in mind when they spoke of 19 mentions without bail.  What I have before me is a charge sheet dated 13 October, 1977.  Next, the record reveals that the applicants (and 2 others) first appeared in court on that very day and after pleas had been taken Mr. Mwale I applied for bail.  Again, bail was granted the same day even if on difficult conditions.  I can find nothing else on the available record prior to 13 October, 1977.  In the result, I

am not certain that the allegation in ground (a) is not misleading.  What is evident, on the contrary, is that the A disposal of this case has been held up by the actions of the applicants and their advocate.  Thus, between 13 October, 1977 and 22 February, 1978, the trial awaited the application to this Court for bail and the result of B that application.  Then on 2 March, 1978, Mr. Mwale wrote to the trial court proposing or confirming the hearing date for 25 April, 1978.  And on the latter date he appeared in court and revealed that his clients were again applying to this court, this time for change of venue.  From these facts I am unwilling to say that the trial court indulged in any procedural dereliction. C
The four grounds do not call for individual discussion at this stage.  Suffice it to say that they were put forward generally as evidence from which bias could be inferred.  I have already indicated that in Mr. Mwale's view the test is whether reasonable apprehension of bias exists in the mind of the accused.  Mr. Mwale is not alone in D saying so.  Similar views were expressed by this court,  In re R. v George Tumpes [1968] H.C.D. n.416 and earlier in Bhag Singh v Rex [1941] 1 TLR (R) 133.  In the latter case it was held by Wilson, J., I quote,
   ...... the proper test to apply ...... is not whether the Magistrate is actually prejudiced against the accused, but whether there E exists in the mind of the accused a reasonable apprehension that he will not have a fair and unprejudiced trial before the magistrate in question; and that in deciding what is a reasonable apprehension on the part of the accused regard F must be had not to abstract standards of reasonableness but to the standard of honesty and impartiality of the accused himself and his degree of education and intelligence.
Attractive as the above view may sound, I am not prepared to say that it is not without its dangers.  However G learned and intelligent the accused might be, can it be reasonably expected that his predicament and obvious wishes would leave him an entirely impartial man?  Doesn't this test, which is wholly subjective, make the error of constituting the accused a judge of his own cause?  I think, with respect, that the correct view is that the test H should be objective.  The talk is therefore about "reasonable persons" rather that "reasonable accused".  In Metropolitan Properties v Lannon, [1969] 1 Q.B. 577, for instance, Lord Denning, M.R. said (at p.599):
   In considering whether there was a likelihood of bias, the court does not look at the mind of the justice himself or at the I mind of the chairman of the tribunal or whoever it may be, who sits in a judicial

   capacity.  It does not look to see if there was a real likelihood that he would or did, in fact, favour one side at the expense A of the other.  The court looks at the impression which would be given to other people.  Even if he was as impartial as could be, nevertheless if right-minded persons could think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. B
This passage was quoted with approval by this court in Tumaini v R. [1972] E.A. 441 at pp.444.  On my part I think that the objective approach commends itself to reason and common sense.  I cannot persuade myself to C accept a view where the accused were permitted to set the standard for the guidance of the court and I must confess that I have never before encountered such a view except in the two cases first cited.  Were the court to be guided by a subjective test I do not see how they could guard against accused persons who, in the words of D Day, J. in R. v Taylor etc ex p. Vogwill (1895),14 T.L.R. 185 would jump at "anything at any time which could make fools suspect."  In the result, I hold that the correct principle is set out in the Metropolitan Properties and Tumaini cases.
Now, in this  case, has anything transpired that in the minds of reasonable persons would disqualify the Tarime E District court and all its Magistrates from trying the case?  I was told of 19 mentions without bail and I have already shown the falsity of the allegation.  I was then told of bail being granted with impossible conditions.  It was never suggested, however, that these conditions were imposed on account of any bias on the mind of the F trial magistrate.  What transpires is that the trial magistrate overreached himself in his enthusiasm to meet the prosecutor's prayers.  That, to my mind, was a wrong exercise of discretion which pointed to the magistrate's understanding of his duty rather than to a poisoned state of mind.  I was finally told that the complainant threatens to secure the applicants' imprisonment if the case is tried at Tarime.  Typically, that is jumping at "anything at any G time which could make fools suspect."  The complainant is not the magistrate.  If it is feared that he would attempt to use his alleged wealth to influence the verdict, there is nothing to prevent him from doing so regardless H of the venue.  On the other hand, I do not believe that the trial magistrate has been threatening to imprison the applicants if they have not been misbehaving in his court.  If their constant interlocutory complaints are anything to go by I think they might have urged the magistrate to make the warning he did.
In summary I find nothing upon which reasonable persons would doubt the partiality of Tarime District Court and I all its magistrates.  It seems that the applicants are self-persecuting by belief in their own

imaginations.  I dismiss the application and order that the trial proceeds at Tarime District Court before any A competent magistrate stationed there.
Application dismissed.

C