Ally Juma Faizi and Another versus The Republic; Criminal Appeal No. 401 of 2013; Court of appeal of Tanzania at Dar es Salaam (Unreported).
- Criminal Procedure
- Hearing – Hearing taken over by another magistrate – reasons not recorded – effect.
- Case to answer – accused found with case to answer but magistrate did not inform him his right to make defence – effect.
Held:-
(i) Where trial magistrate transfers the file to another magistrate, section 214 of the CPA requires that reasons be laid bare to show why the predecessor magistrate could not complete the trial. In the absence of any such reasons, a successor magistrate lacks jurisdiction to proceed with the trial and consequently all proceedings following the taking over of a partly heard matter without any reasons assigned thereto becomes a nullity.
(ii) Where the reasons for failure of predecessor Magistrate to complete a trial he/she begun have not been explicitly shown in the trial court’s record of proceedings, the whole proceedings become a nullity.
(iii)Section 231 directs that a trial magistrate must inform an accused that they have a right to make a defence or choose not to make one in relation to the offence charged or to any other alternative offence for which the court could under the law convict. Not only is an accused entitled to give evidence in their defence but also to call witnesses to testify in their behalf so the section is an elaboration of the all – important maxim – audi alteram partem and that no one should be condemned unheard. Non-compliance renders the proceedings a nullity.