John Naoyo & Another vs The Republic, Criminal Appeal no 308 of 2021

This case is about the eefact of failure of trial court to enter conviction and failure to adhere condition of valid judgment per the criminal procedure Act.

Indeed, we are aware that in our several decisions, the Court remits the record to the trial court for entering a conviction after vacating the judgment and sentence as well as the proceedings of the first appellate court (see Ramadhani Athuman Mohamed v. The Republic (supra). 

However, in the circumstances of this case, we respectful decline to follow 

that route. This is because, the omission by the trial court is not only on the failure to enter convictions against the appellants but also its omission to discuss and make a finding on the second count in the charge though it heard evidence of the parties on the same. This is contrary to the 

provisions of section 312 (1) of the CPA on the essential contents of the judgmentAt this juncture, we subscribe to the observation of the Supreme Court of Zambia in Mohamed Aretha v. Habasouder [2007] Z.R. 100 

where it was stated:

“By failing to make specific finding o f fact, thecourt had in effect failed to render a judgmentThe trial judge in this case failed to make somespecific findings o f facts and law in her judgment.

Consequently, we find in effect, he failed to

render a judgment. It is also our finding that there is a miscarriage o f justice where a trial judge convicts an accused person withoutrendering a judgment”.

Therefore, the judgment of the trial court falls short of what a  judgment is supposed to contain as provided for by sections 235 (1) and 312 of the CPA. To this end, the trial court failed to render a judgment 

and as a result miscarriage of justice was occasioned.

In the event, considering the nature of the anomaly in the judgment of the trial court exposed above, we are of the view that this is not a fit case in which we can proceed to nullify the entire proceedings and set the appellants free on the contention that the omission is attributed to the lack of seriousness by the trial magistrate. Equally important, we are of 

the view that this is not a case in which we have to nullify only part of the judgment of the trial court from the stage of mitigation and order it to enter convictions as urged by the learned Senior State Attorney.

On the contrary, we hold that it is in the interest of justice to nullify the trial court’s judgment and the entire proceedings of the first appellate court followed by and order remitting the file for the trial Resident 

Magistrate to compose a fresh judgment in accordance with the law.

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