Lugakingira, J.: The appellant Elias Mbalaga was charged in the Primary Court at B Mpwapwa with cattle theft and, on conviction, was sentenced to five years' imprisonment. This is the second appeal.
The crucial issue in the appeal is one of procedure. When the charge was read over to C the appellant on December 15, 1979 he offered no plea but stated that he wished his case to be transferred to the District Court as he intended to engage counsel. The trial magistrate promptly acceded to the request and made an order transferring the case to the District Court. He then remanded the appellant in custody pending his trial. But for D unknown reasons, the case was mentioned in the Primary Court on January 2, 1980 when the charge was again read over to the appellant. On this occasion the appellant entered a plea of innocence. The case was mentioned again in the same court on five more occasions including March 5 when a hearing date was fixed for March 21. On this latter date we find an entry: E
Mlalamikaji: Mashahidi wamefika.
Naomba shauri lisikilizwe.
AMRI: Shauri litasikilizwa. F
The trial duly commenced. The complainant called five witnesses, including himself, and closed his case. The appellant throughout declined to cross-examine any of the witnesses. He was then called upon to defend himself but he again declined and reminded the trial magistrate of his request to transfer the case. The magistrate G adjourned the hearing to April 2 for summing up to the assessors. He did sum up on that date and conviction followed as earlier stated.
In his appeal to the District Court the appellant pointed out inter alia that his request for the transfer of the case had been refused. The appellate magistrate held that since the H appellant pleaded to the charge when it was read over for the second time, and never renewed his request for transfer, he had impliedly submitted to the jurisdiction of the trial court. He held further that there was in any case evidence to support the charge and the irregularity, if any, had not occasioned a failure of justice. He therefore upheld the I conviction and dismissed the first appeal.
Before this court the appellant was represented by learned counsel
Mr. Mbezi. He advanced very pertinent arguments, including: A
(a) that the refusal or failure to transfer the case and to enable the appellant to be defended occasioned a failure of justice.
(b) that there was in any case no charge before the trial court following the order B of December 15 transferring the case; and
(c) but without prejudice, that the evidence was insufficient to support the charge. Mr. Lyimo for the Republic, but with discernible uncertainty, replied that since no counsel had already been engaged, the irregularity occasioned no failure of C justice. He also submitted that the appellant contributed to the irregularity and his misfortune by his failure to renew his request for the transfer. He was finally of the view that there was sufficient evidence to support the conviction. In this judgment, I desire to dwell on Mr. Mbezi's first argument. D
After going through the record of the trial court I have come to the sad view that the said record is incomplete. There is also a misrepresentation of facts or a misconstruction of the appellant's wishes. I get all this from the unusual notes, headed "Maelezo ya E Hakimu", which the trial magistrate made on April 2, just before writing the "Mwongozo" for the assessors. He wrote, inter alia:
Tarehe 2/1/80 kabla ya mahakama hii haijahamisha shauri Mahakama ya Wilaya mshitakiwa aliamua kutoweka wakili tena na akasomewa shitaka lake mara ya pili akalijibu na kukana F kosa kuonyesha ishara ya kukubali mahakama hii na Hakimu wasikilize shauri hili (my emphasis) .... Tarehe 21/3/80 baada ya mashahidi wote toka Dodoma kufika, mshitakiwa G akaamua kusudi kumkataa Hakimu ili shauri siku hiyo lisisikilizwe na kuwafanya mashahidi warudi na kupokea malipo ya posho kutoka Serikalini bure. Hakimu akaamua kusikiliza shauri hili maana hakuona sababu yoyote ....
As the title to these notes, "Maelezo ya Hakimu" clearly indicates, the trial magistrate H wrote them to explain away what he had come to realise was a serious irregularity in the procedure adopted. First of all, nowhere in the proceedings of January 2 is the appellant on record "deciding" to dispense with the services of an advocate. The trial magistrate thought it fit to infer that "decision" merely because the appellant entered his plea without I open protest. The words I have emphasized
above are clear evidence of the magistrate's state of mind. Even then, he did not draw A the inference at the time of taking the plea but three months later when he was faced with the problem of concluding the hearing. The notes were therefore a self-cleansing exercise. Further, if there were grounds for inference, the learned magistrate should have realised that it was a wrong inference for on March 21, according to the notes, the B appellant still objected to being tried by him or by his court. Unfortunately, this objection too does not appear in the record of that date. I am satisfied that the appellant throughout wished his case transferred but the trial magistrate refused the transfer. I am therefore unable to agree that the appellant contributed to the irregularity. C
We may now look at the position in law.
Section 41(2)(b) of the Magistrates' Courts Act, 1963 provides as follows:
(2) A Primary Court - D
(a) ......;
(b) if the accused person so elects, shall transfer to the District Court of the district for which it is established any proceeding of a criminal nature in which the accused is charged with an E offence punishable in the Primary Court by imprisonment for more than twelve months or, in the case of an adult, by corporal punishment.
An election under this section shall be exercised before the accused pleads to the charge. F
These provisions are in my view mandatory and this is signified by use of the term "shall". Once an accused elects to have his case transferred and exercises that option before entering his plea and the offence charged is one punishable by imprisonment for more G than twelve months, the Primary Court has no discretion but to transfer the case. There are no other considerations. These requirements were present in this case. The appellant elected for the transfer; he did so before entering his plea; the offence of cattle H theft is punishable by imprisonment of not less than five years even in the Primary Court. The trial court was therefore bound to transfer the case as requested. Even at the belated stage after the appellant had entered the plea, the trial court could still have transferred the case for, as I have demonstrated, the appellant had not abandoned his initial wish. It was urged on me that by reason of section 32(2) of the Act above, the I decision of the Primary Court could not be interfered with if there was in fact no failure of justice. It was said that there would be no
such failure of justice if the evidence was sufficient to support the conviction. This A argument, seemingly, finds support in the decision of this court in Andrea Kimbulu v R. [1968] HCD n. 312. There were irregularities in that case including a refusal by the trial primary court to transfer the same. It was held by Seaton, J., as he then was, that the irregularities of procedure might not have been fatal to the convictions had the evidence B clearly indicated that the accused was guilty of the offences charged. There was no such evidence and the convictions were quashed. It is significant, however, that in the later case of Hassan v R. [1970] - HCD n. 146 the same judge observed that his remarks in the Andrea Kimbulu case were obiter in as much as in that case the C evidence was insufficient. He referred to this other decision in Salum Issa v R. (PC) Criminal Appeal NO. 698 of 1969 (MZ) (see[1970] HCD n. 222) where, having found it impossible to satisfy himself that there was no failure of justice, he held the proceedings a nullity and quashed Salum Issa's conviction. For similar reasons he held that the D proceedings in Hassan's case were irregular and quashed the conviction stating: "The Primary Court has no jurisdiction to try against the accused's wish". With respect, I share this latter view. As already stated the provisions of section 41(2)(b) are mandatory. And that in my view, goes to jurisdiction. I am of the respectful opinion that once the ingredients for a transfer are satisfied the effect is to remove from the Primary E Court the jurisdiction to try the case. The court cannot cling to the case and oblige the accused to be tried against his wish. Such procedure, being contrary to law, would amount to no trial at all; it would be a complete nullity. The question then is whether section 32(2) was intended to cure such a situation, to confer jurisdiction where F jurisdiction had been taken away. I think not. I think that the errors, omissions and irregularities referred to in the provision are errors, omissions and irregularities that may arise in the exercise of lawful jurisdiction. It is one thing to commit an error in doing that which is sanctioned, and there section 32(2) would apply; it is quite another to do that G which is prohibited. Where jurisdiction is taken away, there is no trial as such, and therefore nothing to cure, for, as it is said, quod contra legam fit, pro infecto habetur. The question of sufficiency of evidence is then irrelevant, for there is no evidence in law. I would add that if evidence were all that mattered, there could be no limit to the number and scope of illegal trials that Primary Courts could undertake and hide under the H umbrella of section 32(2). I am therefore of the settled view that this appeal ought to succeed on the ground of want of jurisdiction. On the other hand, if I were compelled to answer the issue, I would say that the evidence was insufficient. The prosecution case I throughout pointed to the possible defence of innocent receipt and this was never
disproved. The appellant's guilt had therefore not been proved beyond reasonable A doubt. Having reached these conclusions it is no longer necessary to consider Mr. Mbezi's second argument.
I allow the appeal, quash the conviction and set the sentence aside as well as the order for compensation. In view of what I have said about the lacuna in the evidence it would not be in the interest of justice to order a retrial. I direct the appellant's immediate B release from custody.
Order accordingly.
C