Court name
High Court of Tanzania

Juma Mushi vs Republic () [1988] TZHC 34 (17 October 1988);

Law report citations
1988 TLR 182 (TZHC)
Media neutral citation
[1988] TZHC 34
Coram
Kazimoto, J.

Kazimoto, J.: The appellant has been convicted of theft by agent c/s 273(b) of the Penal Code and sentenced to five years imprisonment under the Minimum Sentences Act 1972. Being aggrieved he is appealing against both conviction and sentence imposed I against him.

Learned State Attorney had submitted that the trial is a nullity. He argued that the A judgment was not dated nor was it signed. He contended that the effect of not dating and signing the judgment is to render it null and void and he relied on the case of Mugena and another v R. [1967] EA 676. He prayed for an order to quash the proceedings and for a fresh trial. Section 312(1) CPA provides: B
   Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by, or reduced to writing  under the personal directions and  C superitendance of the presiding judge or magistrate in the language of court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by such presiding officer as of the date on which it is pronounced in open court.  D
A perusal of the judgment shows clearly that it was not signed nor was it dated. The magistrate ought to have signed and dated the judgment after he had convicted the appellant. This was not done and this amounted to non-compliance with section 312(1) CPA. The issue is whether failure to sign and date a judgment renders the trial a nullity or E a mere irregularity.
First we have to look at the provisions of section 388 of the Criminal Procedure Act. That section provides as follows:
   388(1) Subject to the provisions hereinbefore contained no finding, sentence, or order made  F or passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, ommission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any inquiry or other proceedings under  G this Act, save that where on appeal or revision, the court is satisfied that such error, omission, or irregularity has in fact occasioned failure or justice, the court may order a retrial or make such other order as it may consider just and equitable.  H
Mugema and another v R. [1967] EA 676 which learned state attorney referred to is a decision of this court. In that case the accused were charged with assaulting a police officer in the due execution of his duty. After concluding hearing of the evidence, the I case was adjourned for judgment on 12th September 1966. On the file of the court proceedings there was an undated and unsigned judgment

which found the accused guilty and commitment warrants dated 14th September, 1966 A purporting to show that the accused were sentenced to twelve months imprisonment and to pay shs. 50/= compensation. Platt, J. held at page 678:
   These omissions constitute gross irregularity and I am not prepared to cure them under s. B 346 of the Criminal Procedure Code .... In my view the whole trial is a nullity.
I respectfully disagree with the decision in Mugema's case that the mere omission to sign and date a judgment constitutes gross irregularity which cannot be cured by the C application of section 346 CPC and now section 387 CPA. I do not see how a judgment delivered in the presence of the accused, though undated and unsigned can occasion in fact a failure of justice to an accused person. It is an irregularity which does not go to the root of the content of a judgment and can never occasion a failure of D justice.
This was the view of the Court of Appeal for East Africa in the case of Kagoye s/o Bundala v R. [1959] EA 900. This was a murder case. In that case the judgment which was short ran as follows: E
   The accused is charged with the murder of Maganga his son, on April 8, 1959 c/s 196 of the Penal Code. I have summarised the evidence in my charge to the assessors and there is no need to repeat it. They are both of the opinion that he is guilty and I fully agree. He is  F accordingly convicted.
The Court of Appeal found that the provisions of section 171(1) of the CPC, which are similar to section 312(1) CPA were not complied with and had to decide whether the conviction was invalidated or whether it could hear and determine the appeal on its G merits. Referring to the decision of Willy John v R. (1953), 23 EACA 509 it said:
   Failure to date and sign the judgment is a mere irregularity which can be cured by the  H application of section 304 of the Criminal Procedure Code since the whole of the record of the proceedings is in the hand of the trial judge and there was no prejudice to the appellant. But the failure to comply with the other requirements of the section is fatal to the conviction. In  I Desiderio Kawunya v Regina 20 EACA 281, this court held

   that failure to comply with the provisions of s. 169(1) of the Uganda Criminal Procedure Code  A which is similar in terms to s. 149(1) of the Seychelles Criminal procedure Code will not necessarily invalidate a conviction if there is sufficient material on the record to enable the Appeal Court to consider the appeal on merit. In this case there is clearly insufficient on record  B to enable us to consider the appeal on the merit.
The same view was taken in the case of Ilanda s/o Kasongo v R. [1960] EA 780. C Retrial was ordered in each of these cases not because the judgments were not dated and signed but because the judgments did not contain the point or points for determination, the decision and the reasons for decision. There was therefore no sufficient material before the court of appeal to decide the cases on merit.
In the present case the learned resident magistrate had summarised the evidence for both D the prosecution and the defence and decided to convict the appellant as charged and had fully given his reasons as to why he believed the prosecution evidence and rejected the appellant's defence. There is in this case sufficient material to enable this court to E decide the appeal on merit. I would therefore hold that failure to sign and date a judgment is a curable irregularity under S. 388 C.P.A., and I have decided to cure the said irregularity by the invocation of section 388 C.P.A. which I do.
In his memorandum of appeal the appellant had stated that the learned trial resident F magistrate has erred in accepting the evidence of PW2 who had grudges against him. According to him PW2 had suspected him of having sexual relationship with PW2's wife and had confronted each other several times. With respect this allegation is not borne out by the evidence on record. PW2 was cross-examined by the appellant and because the G cross-examination was brief I propose to quote it:
   xxd by the accused: Because he knows you he believed you. You did not mention the particular person you intended to go when you told us as you said that from 10.00 o'clock to  H 6.00 o'clock you could be back.
How could the learned magistrate believe that PW2 suspected the appellant of having sexual intercourse with his (PW2's) wife and had confronted each other several times? The appellant should have asked PW2 specific questions on the alleged grudges and I only

then can the court decide to believe or reject the evidence of any particular witness. A Ground of appeal has no ring of truth around it and it is rejected.
In ground two and four of appeal the appellant has argued that he was denied the opportunity to call his defence witnesses. This is not true. At the close of the prosecution case the appellant, after being informed of his right, elected to give unsworn statement B and said he wished to call one witness from Kagera. After giving his statement from the dock then in his own words he said "The case can be closed. I have no need to call the witness." There is therefore no merit at all in the allegation, which is rejected, that he was C denied opportunity to call his defence witnesses.
The appellant then argued in ground 3 of appeal that on the material day he was 50 Km away from the village and thus he could not have been given the bicycle by the complainant. This is a defence of alibi. The learned trial magistrate effectively dealt with D this issue and stated that the appellant and PW1 and PW2 are familiar to one another, they live in the same village and there could be no mistake. It appears to me that the trial magistrate gave no weight to the defence of alibi. The appellant did not give notice of his intention to rely on an alibi either to the prosecution or to the court before the hearing of E his case during the trial nor did he give any particulars of his alibi before the case for the prosecution was closed. He decided to raise his defence after the close of the prosecution case. This is a contravention of section 194(4)(b) fo the C.P.A. The learned trial resident magistrate had correctly accorded no weight to that defence. That ground F also fails. With that I find no merit in the appeal against conviction which is dismissed.
The appellant was sentenced to five years imprisonment under the Minimum Sentences Act 1972. In sentencing the appellant under that Act for the offence of theft by agent c/s G 273(b) the learned trial magistrate has clearly erred. That is not a scheduled offence and in any case the property does not belong to a specified authority within the meaning of that Act. The appellant should have been sentenced under the provision of the Penal Code. I have considered whether the sentence of five years imprisonment is not exessive. The maximum penalty for the offence charged is ten years. The prosecution H said that they had no previous record against the appellant who in turn stated that he is a convict. It is not known for what offence the appellant had been convicted. He has however stated in his defence that he is serving a sentence of three years imprisonment. I This case shows how lazy and lax the prosecution

had been for they could easily have known that the appellant has a record of previous A conviction and would have stated the offence for which he was serving the three years sentence. That would have helped the court to meet out the appropriate sentence. On my part bearing in mind that the appellant has previous conviction and his readiness to concede I would set aside the sentence of five years imposed under the Minimum B Sentences Act 1972 and sentence the appellant to three (3) years imprisonment for the offence charged.
In the result, and to the extent of the variation of sentence, the appeal against sentence is also dismissed.
  C Order accordingly.

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