Court name
High Court of Tanzania

Stephen Ngonyani vs Republic () [1989] TZHC 14 (18 April 1989);

Law report citations
1989 TLR 53 (TZHC)
Media neutral citation
[1989] TZHC 14
Coram
Ruhumbika, J.

Ruhumbika, J.: The appellant, Stephen Ngonyani, was convicted by the District Court of Dodoma of the offence of stealing by a person employed in the public service c/s 265 of the Penal Code. E
He was charged with having stolen various sums of money, in four different counts. The money was supposed to be paid out as salaries to junior policemen serving in the Field Force Unit of the Police Force at Dodoma, where the appellant was attached and F served as a Police Inspector and Officer Commanding Field Force Unit.
The appellant was found guilty and convicted on all the four counts and sentenced to concurrent sentences under the Minimum Sentences Act, l972 as follows:
lst Count: Three years of imprisonment. G
2nd Count: Three years of imprisonment.
3rd Count: Three years of imprisonment.
4th Count: Five years of imprisonment.
The appeal is against the convictions and sentences. Mr. Rweyongeza, learned H advocate based at Dodoma, argued the appeal. Mr. Benne, learned Stated Attorney, represented the respondent Republic.
There were seven grounds of appeal in the petition of appeal, but Mr. Rweyongeza I dropped ground number two and argued on only six such grounds.

The first ground of appeal in the petition of appeal is couched as follows: A
That the learned Resident Magistrate being the second trial magistrate erred in law in denying the appellant the right to resummon witnesses who had testified before his predecessor. B
It was here argued for the appellant that failure by the successive trial magistrate to inform the appellant of his right to have the witnesses who had given evidence before the first trial magistrate re-summoned and re-heard was prejudicial and caused injustice C to the appellant. Therefore, such an omission was in abrogation of the provisions of section 214(2)(a) of the Criminal Procedure Act, l985 (Act No. 9 of l985), which provisions created a statutory duty on the successive magistrate to inform the appellant of his right under that section. D
According to the record of the lower court, the appellant was first tried by Mr. Mammba, District Magistrate, as from the 13th May, 1986, up to the 6th August, l986. He recorded the evidence of ten witnesses for the prosecution. E
On the 29th August, l986, Mr. Shangwa, Resident Magistrate, took over the trial. There were no reasons on record for this move but most likely Mr. Mammba, District Magistrate, might have moved on transfer. The successive magistrate did not comply with the provisions of section 214(2)(a) of the Criminal Procedure Act, l985. That is to F say, he did not inform the appellant that he had the right to have the witnesses who had testified before Mr. Mammba re-summoned and re-heard. The second trial magistrate continued with the hearing and recorded the evidence of PW11, PW12 and PW13. Thereafter, the prosecution case was closed. The appellant was put on his G defence, and made a sworn statement. He called no witnesses. The successive magistrate acted on the evidence of ten witnesses for the prosecution who gave evidence before Mr. Mammba, and acted on the evidence of only three witnesses who testified before him. Most of the material evidence had been given by the witnesses H who gave evidence before the first trial magistrate. The second trial magistrate did not have the opportunity to observe their demeanor and evaluate their credibility.
Section 214 of the Criminal Procedure Act, l985, is as follows:
214(1) Where any magistrate, after having heard and recorded the whole or any part of the I evidence in any trial or

conducted in whole or part any committal proceedings is for any reason unable to complete A the trial or the committal proceedings or he is 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 with the trial or committal proceedings as the case may be and the magistrate so taking over may act on the evidence or proceeding recorded by B his predecessor and, may in the case of a trial re-summon the witnesses and recommence the trial or the committal proceedings or otherwise subject to subsection (2). C
(2)Whenever the provision of subsection (1) applies -
(a) in any trial the accused may, when such other magistrate commences his D proceedings, demand that the witnesses or any of them be re-summoned and re-heard and shall be informed of such right by the other magistrate when he commences his proceedings.
(b) the High Court may, whether there be an appeal or not, set aside any conviction E passed on evidence not wholly recorded by the magistrate before the conviction was heard, if it is of the opinion that the accused has been materially prejudiced thereby F and may order a new trial. (emphasis added).
There are several decisions relating to non-compliance with the provisions of (the G former) section 196 of the Criminal Procedure Code. See the provisions of the new section 214 of the Criminal Procedure Act, l985. But the court was referred to only one of those decisions. That is the decision in the case of R. v Maulidi s/o Mkuba [l974] LRT no. 44. The trial of the accused in that case was conducted by two H different magistrates. The second magistrate did not comply with the provisions of section l96(1) of the Criminal Procedure Code. The case went before the High Court on revision. The court held, inter alia, that:
(1) Where a magistrate proceeds with a trial under the provisions of s. 196 Criminal I Procedure Code, Cap. 20

from where his predecessor had left off, it is his duty to bring to the notice of the A accused person of his right to have the witnesses or any of them who have already testified before the predecessor magistrate in the same case, re-summoned and re-heard as is required by the proviso to s.196(1) Criminal Procedure Code. B
(2) ...
(3) The requirement is essential as it is intended to give an opportunity to the trial magistrate to hear the evidence himself in order to make a sound assessment of the evidence as a whole. C
(4) ...
(5) ...
(6) The High Court on appeal is not bound to uphold such conviction if it is of the opinion that the accused has been materially prejudiced. D
(7) ...
(8) ...
In that case, the conviction was quashed and the sentence set aside. E
Mr. Benne, learned State Attorney, conceded that the second trial magistrate did not comply with the provisions of section 214(2)(a) of the Criminal Procedure Act, 1985. However, he argued that the omission did not prejudice the case for the appellant because ten witnesses were heard by the first trial magistrate and three were heard by the second trial magistrate. F
With respect to the learned State Attorney, it is difficult to see the logic of his argument. Because it is reasonable to say that the second trial magistrate was at a greater disadvantage as he was faced with a situation whereby he had to evaluate and act on G the evidence of ten witnesses from whom he did not record that evidence and had no opportunity of assessing the demeanor and credibility of such witnesses. Of the two magistrates, it is obvious that the first trial magistrate was better placed in the understanding of the case as against the second trial magistrate. H
It is obvious that the appellant was materially prejudiced by the manner his trial was conducted by the two magistrates.
The words used in section 214(2)(a) of the Criminal Procedure Act, l985, are: "Shall be informed of such right". That is to say, the second magistrate who took over the trial of the appellant should have informed him of his right to have the witnesses who had I given

evidence before Mr. Mammba or any of them re-summoned and re-heard. In the A earlier case of Remenisele s/o Elisawe v R. [l967] H.C.D. n 75, while stressing the essence of complying with the provisions of section l96 of the Criminal Procedure code, the court had this to say:
(1) The discretion given to a magistrate by the Criminal Procedure Code section l96 B should be exercised with great care, for the primary purpose of the hearing is to permit the court to observe the demeanor and evaluate the credibility of all the witnesses. In the present case the charges were grave and the accused vigorously C contested the allegations of the prosecution's witnesses.
(2) Criminal Procedure Code section l96(a) permits the accused to demand that witnesses heard by the first magistrate be re-summoned and re-heard and provides D that the accused "shall be informed of such right by the second magistrate ..." There is no record that the accused was so informed.
In that case, the accused was convicted of forgery and theft. The magistrate who E commenced the case heard the evidence of the prosecution and after a recess of three months, heard some of the defence witnesses. After another recess a second magistrate replaced the first who had been transferred to another district. Exercising his discretion under the Criminal Procedure Code section l96, the second magistrate elected not to F re-commence the trial but to hear only the remaining portion of the case. A new trial was ordered in that case. This earlier case was cited with approval by this court in the subsequent case of Maulidi (supra).
The appellant was convicted on the 17th June, l987, and his case, as observed earlier, G involves four counts relating to various sums of money he is alleged to have stolen in the course of his employment.
In the interests of justice, the course open to the court is to order a hearing de novo.
Accordingly, under the provisions of section 366(1)(a)(i) of the Criminal Procedure H Act, 1985, the proceedings in the lower court are quashed and the decision therein set aside and it is hereby ordered that the appellant be re-tried in the District Court of Dodoma but before another magistrate with competent jurisdiction to try the case. I
Appeal allowed.

A
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