Abdallah Ibrahim

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA DC. CRIMINAL APPEAL NO. 12198 OF 2024 (C/F Criminal Case No. 23 of 2023 before the District Court of Chemba) ABDALLAH IBRAHIM.......................................................APPELLANT

VERSUS THE REPUBLIC............................................................. RESPONDENT

JUDGMENT Last Order: 16th October 2024 Date of Judgment: 24th October 2024 MASABO, J:- This is a first appeal from the District Court of Chemba (the trial court). In that court, the appellant was charged with one count of rape contrary to sections 130 (1) (2) (e) and 131(1) of the Penal Code Cap. 16 R.E 2022. It was alleged that on diverse dates of March 2023 at Kidoka village within Chemba District in Dodoma Region, the accused carnally knew one HS (name withheld) a girl of 16 years. To prove its case, the prosecution called the following five witnesses: HS the victim (PW1), the victim's father, Said Ramadhani Hassan (PW2), Dr. John John Kambu (PW3), WP. 13600 PC Mwasham Joseph (PW4) and PW5 was Sauda Said Majala, the Village Executive Officer. In addition, it tendered two exhibits namely, a PF3 and an extra-judicial statement which were admitted as exhibits Pl and P2 respectively. Page 1 of 15 A brief account of the evidence as discerned from these witnesses and exhibits is that; the victim, a girl of 16 years when the matter was prosecuted before the trial court, is PW2's daughter. She has a mental disability. On diverse dates of March 2023, the appellant raped and impregnated her. His father noticed the difference and suspected her of being pregnant. Upon being interrogated, she disclosed that she was raped by the appellant. The matter was reported at Chemba Police

Station and a PF3 was issued to the victim. PW1 was sent for medical examination at Chemba District Hospital. She was diagnosed pregnant. The accused was arrested and upon interrogation, he confessed in his cautioned statement. He also gave an extra judicial confession. The appellant offered a total denial in his defence. He also raised a defence of a//Z?/and stated that on the fateful dates, he was away from the village. The total denial and the alibi were found to have cast no reasonable doubt on the prosecution's case which was held to have been proved beyond reasonable doubt. The appellant was, consequently, convicted and sentenced to thirty (30) years imprisonment. Aggrieved, the appellant has appealed to this court challenging the conviction and the sentence. He has raised ten grounds of appeal which are conveniently summarised as follows. One, the prosecution did not prove its case beyond reasonable doubt. Two, the credibility of the prosecution witnesses was not properly assessed. Three, there were discrepancies in the PW1, PW2, PW3 and PW5 evidence. Four, no conviction was entered by the trial court. Five, the trial court erred by relying on expert opinion. Six exhibits Pl and P2 were improperly admitted and illegally obtained respectively. Seven, the appellant was not properly identified. Eight, his defence was not considered. Nine, the case against Page 2 of 15 him

was cooked and fabricated because the date and time of the offence were not stated. Ten, his defence was not considered. The appeal was disposed of by way of written submissions. The appellant was represented by Mr. Amon Mwakapeje, learned Advocate whereas the respondent Republic was represented by Ms. Prisca Kipagile, learned State Attorney. Submitting in support of the appeal Mr. Mwakapeje consolidated the first and second ground of the appeal. He proceeded to submit that the trial magistrate grossly erred in law and fact by convicting the appellant while the prosecution failed to prove the charge beyond reasonable doubt. He did not properly assess the credibility of the prosecution witnesses. The case of Juma Kakuya vs The Republic, Criminal Appeal No. 8 of 2023[2023] TZHC 190109 TanzLII was cited in fortification of the submission that the court ought to have considered the mental health of PW1. That, since PW1 is mentally unstable, it was unsafe to rely on her testimony without proper medical corroboration. As there was no medical examination or corroboration, the case was not proved. He added further that, the need to critically assess the credibility of PW1 was heightened by the fact that her testimony was inconsistent. On the third ground, it was submitted that there were discrepancies and inconsistencies in prosecution evidence and the same were fatal as they went to

the root of the case. The discrepancies were in respect of the evidence on the circumstances of the alleged offence, the description of events and the identification of the appellant. This ought to have been considered and resolved in the appellant's favour but they were not. Page 3 of 15 In respect to the fourth ground, it was submitted that the trial court sentenced him without formally entering a conviction. The omission to convict was a serious procedural irregularity. It offended section 235(1) of the Criminal Procedure Act, Cap 20 R.E. 2022 and rendered the entire proceedings defective as held in the case of Masota s/o Jumanne vs The Republic, Criminal Appeal No. 137 of 2016 [2018] TZCA 175 TanzLII, John s/o Charles vs Republic, Criminal Appeal No. 190 of 2011 [2014] TZCA 251 TanzLII and Omari Hassan Kipara vs Republic, Criminal Appeal No. 80 of 2012 (Unreported) Regarding the credibility of PW3's evidence which is challenged in the fifth ground of appeal, it was submitted that PW3's testimony did not establish any connection between the pregnancy and the appellant. It was essentially neutral and did not support the prosecution's case. His testimony that PW1 had a mental illness put a question on the reliability of PWl's testimony and the overall strength of the prosecution's case. The case of Juma Kakuya vs The Republic (supra) was cited in support of the argument that

medical evidence must directly implicate the accused, otherwise, it holds little value in proving the charge. On the admission of the caution statement, it was submitted that this evidence was first introduced during the testimony of PW4, WP 13600 PC Mwasham, who testified that she recorded the appellant's caution statement on 27/4/2023. The Appellant objected to its admission claiming that it was procured through coercion and duress. The trial court rightly ordered an inquiry to determine its voluntariness. The inquiry was scheduled to take place on 7/9/2023 but it did not as the appellant was absent. It was rescheduled to 27/9/2023 but on that date, it was adjourned again to 11/10/2023. On this date, instead of proceeding with the inquiry Page 4 of 15 as previously ordered, the prosecution introduced a new witness, PW5 who testified that she recorded the appellant's extra judicial confession on 20/4/2023. Despite the fact that the voluntariness of the earlier caution statement had been challenged and an inquiry had been ordered, the court allowed PW5 to tender this new statement without conducting the previously ordered inquiry. This was a serious irregularity and an infringement of the appellant's right to a fair trial. In respect to the eighth ground of appeal, it was submitted that the case against the appellant was fabricated. The timeline of the alleged offence remained

vague and inconsistent. The charge sheet and the prosecution's evidence refer to "diverse dates in March 2023," without specifying the exact dates on which the alleged rape occurred. PW1 did not state the specific date for the incident. She merely testified that the appellant came to her home at some point in March 2023. She did not state the actual date and time. Even PW2, the victim's father, just stated in his testimony that the alleged offence occurred "towards the end of March". Non specification of the date left the court with an incomplete narrative and opened the possibility of fabrication or exaggeration of the events. It also inhibited the determination of the appellant's alibi. On the last ground of appeal, it was submitted that the trial court failed to consider the defence raised by the appellant and his alibi. It just ignored it and in so doing, it violated the principles of a fair trial. Based on these, he prayed that the appeal be allowed and the conviction and sentence be set aside. In reply, Ms. Kipagile, learned State Attorney, opposed the appeal arguing that the case was proved beyond reasonable doubt. The victim who is a Page 5 of 15 key witness testified on how the accused held her hands, pooled her inside the kitchen and raped her and that she became pregnant thereafter. As for the credibility of PW1, it was submitted that the mental capacity of

the victim was not in question and it did not raise doubts because she named the appellant to PW2 and her narration on the identity of the appellant remained consistent. In bolstering her submission, she cited the case of Selemani Makumba vs Republic [2006] TLR 379. She added that PW2 explained how the victim took her to the appellant's house to show him who was responsible for her pregnancy. PW3 corroborated with his finding that PW1 was pregnant. Further corroboration came from the appellant's extra judicial statement, Exhibit P2, recorded by PW5 in which he confessed to have raped the victim and that he was responsible for the said pregnancy. On the issue of credibility of PW1, it was argued that PW1 was a credible witness. The trial court assessed her and found that her statement was consistent and it believe her. The principle in Goodluck Kyando vs Republic [2006] TLR 367 was complied with. On the third ground, it was submitted that there was no discrepancy worth reversal of the trial court finding. PW1 and PW2 stated that the appellant is the one who raped PW1 on diverse dates around March during which he impregnated her. PW3 and Exhibit Pl corroborated the narration and so is the extrajudicial confession, exhibit P2. The 4th ground of appeal that the appellant was sentenced without being convicted, Ms. Kipagile submitted that the appellant was convicted as seen in page 7

of the judgment. Although there is a misquotation of the sentence Page 6 of 15 against which he was convicted, such an anomaly is not fatal. It does not invalidate the conviction and sentence as it is curable by section 388 of the Criminal Procedure Act. On the fifth ground, it was argued that it is misconceived and devoid of merit because the trial court convicted and sentenced the appellant relying on the evidence of the victim as corroborated by the evidence of the other four witnesses. The testimony of the doctor proved that the victim was raped and that she got pregnant. By the nature of the evidence, the doctor could not have implicated the appellant as that was not his duty. Replying to the sixth ground on improper admission of the cautioned statement, it was submitted that the cautioned statement was not admitted by the trial court. What was admitted as Exhibit P2 was an extrajudicial confession statement. The learned state Attorney submitted further that the 8th ground has no merits as the case against the appellant was not fabricated. The prosecution brought five (5) witnesses to prove the charge and they all testified in the presence of the appellant. At no point during their testimony did the appellant ask them whether the case was fabricated. On the actual date and time of the incident, it was submitted that the time and date of the incident are not vague as the

evidence shows that the offence was committed on March 2023. All material witnesses such as PW1, PW2 and exhibit P2 were consistent on it. Lastly, on the 10th ground of appeal, it was submitted that the defense case was adequately considered by the trial court as seen on pages 3 and 4 of the judgement. His defense of a/Zb/was also considered but found to have been improperly raised in noncompliance with section 194(4) of the Criminal Procedure Act. Page 7 of 15 Further to the submission above, the learned State Attorney submitted that, there are multiple irregularities in the lower court record that need to be cured if justice is to prevail. First, the ruling on whether the appellant has a case to answer or not was not given by the trial court. Second, the case was heard by two magistrates, that is, Hon. E. Mwakalinga and Hon. P. Mayumba. No reason was assigned to the change of magistrates. Thus, the provision of section 214 of the Criminal Procedure Act was offended. Based on these two irregularities, the learned state Attorney beseeched this court for the remission of the record to the trial court for retrial. I have thoroughly read the record and considered the grounds of appeal alongside the submission by the learned counsels and I am now ready to determine it. The issue for determination is whether the prosecution proved its case to the required standard. It is a cardinal

law that in criminal cases such as the instant one, the prosecution is duty-bound to prove the charges against the accused beyond reasonable doubt as stated in Matibya Ng'habi vs Republic Criminal Appeal No. 651 of 2021 [2024] TZCA 34 TanzLII . The burden never shifts to the accused as he need not prove his innocence. All that the accused needs to do is to raise a reasonable doubt on the prosecution's case. It is also cardinal that in a first appeal, the court is duty-bound to reevaluate the evidence on record and come up with an independent finding on whether the case against the appellant was proved. The conviction and sentence passed by the trial court can only be sustained if at the end of Page 8 of 15 such reassessment, it is established that the prosecution proved its case without reasonable doubt. The learned State Attorney has drawn my attention to certain irregularities in the proceedings. I prefer to start with them. The first irregularity raised by the learned State Attorney is that the trial court offended the provision of section 214 of the Criminal Procedure Act, Cap 20 R.E 2022. Section 214 (1) and (2) of the Criminal Procedure Act provides as under:- "(1) Where any magistrate, after having heard and recorded the whole or any part of the evidence in any trial or conducted in whole or part of any committal proceedings is for any reason unable to complete the trial

or the committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue 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 his predecessor and may in the case of a trial and if he considers it necessary, resummon the witnesses and recommence the trial or the committal proceedings. (2) Whenever the provision of subsection (1) apply the High Court may, whether there be an appeal or not, set aside, any conviction passed on evidence not wholly recorded by the magistrate before the conviction was had, if it is of the opinion that the accused has been materially prejudiced thereby and may order a new trial." [Emphasis provided]. This provision has been extensively considered and determined such that there is a plenty of authorities. As it shall be demonstrated soon, it has been underscored in these authorities that, it is absolutely necessary under section 214 (1) above that the magistrate taking over the case should state Page 9 of 15 the reasons for doing so. The disclosure is regarded as an essential element of the fair trial as it serves to inform the accused person why there is a new presiding magistrate (see Abdallah Akilimali vs Republic Criminal Appeal No. 203 of 2015 [2015] TZCA 268 TanzLII). In the case of Director of

Public Prosecution vs Seleman Juma Mwanyingo Criminal Appeal No. 363 of 2022 [2024] TZCA 232 TanzLII it was held that case law has made it a requirement for the trial court to give reasons for the takeover of the case and, in fortification, it cited its previous decision in the case of Juma Kuyani & Musa Daudi vs Republic, Criminal Appeal No. 525 of 2015 (unreported) where it held that the disclosure of the reasons for the change of magistrate is an essential administrative tool for control of movement of case files from one magistrate to the other. It gives the accused an assurance that his case will be determined by a magistrate who is familiar with the evidence in the case (Also see Adam Kitundu v Republic, Criminal Appeal No. 360 of 2014 [2015] TZCA 428 TanzLII and Isaack Stephano Kilima vs Republic, Criminal Appeal No. 273 of 2011 CAT). The remedy for non-compliance with section 214 (1) has also been extensively discussed (see Abdalla Akilimali vs Republic (supra) and Charles Yona vs The Republic, Criminal Appeal No. 79 of 2019 [2021] TZCA 339 TANZLII). In the latter case, the Court of Appeal held that for the conviction to be quashed on account of non-compliance with section 214 (1) of the CPA the following two conditions must be satisfied. One, that, the appellant's conviction was vitiated by the non-compliance with section 214(1) and two, the appellant must have been

materially prejudiced by reason of the evidence not been wholly recorded by the successor magistrate, for instance, where the successor magistrate wrongfully assumed jurisdiction or there was unauthorized takeover of the Page 10 of 15 file on the part of the successor magistrate. Having examined the peculiar circumstances of that case, the Court held that the anomaly neither vitiated the proceedings nor prejudiced the appellant considering that he did not complain throughout the trial and he did not raise such omission as a ground of appeal. Cementing this position, the Court in Tumaini Jonas vs The Republic Criminal Appeal No. 337 of 2020 [2021] TZCA 401 TanzLII it was held that: In a recent decision, that is; Charles Yona vs Republic, Criminal Appeal No. 79 of 2019 (unreported), having discussed various decisions of this Court that addressed the import of non-compliance of section 214(1) of the CPA, the Court stated that, when determining this, it is important to consider the peculiarity of circumstances for each case and only in cases with similar facts and circumstances where such conclusion is inevitable. Upon consideration of the said provision, the Court held that before the Court quashes conviction due to non-compliance of section 214(1), it must be satisfied of two conditions. "First, the appellant's conviction was vitiated by the non-compliance with section 214(1) of

the CPA. Second, and perhaps the most critical one, the appellant must have been materially prejudiced by the conviction by reason of the evidence not wholly recorded by the successor magistrate. Finding that the circumstances of this case are also different from many of those cases, we shall apply that holding and the conditions set in this appeal for two reasons. One, the appellant made general complaints regarding non- compliance with section 214(1) of CPA without explaining how he was materially prejudiced. Two, from the circumstances of the case, there is nothing to infer wrongful assumption of jurisdiction or unauthorized case file takeover on the part of the successor Resident Page 11 of 15 Magistrate. The peculiar circumstances of the instant case align with the finding in the two authorities above. In my scrutiny of the record, I observed that, indeed the case was heard by two magistrates. At first, it was before E. Mwakalinga, PRM who was later transferred after he had heard all the prosecution witnesses. The case was then assigned to Mayumba SRM who took over from where Mwakalinga PRM ended. Being the successor magistrate, Mayumba RM ought to have informed the accused person why he took over the case but he did not. Did this vitiate the proceedings or prejudice the appellant? I will negatively answer this question for the following two reasons. First, the appellant

was not oblivious of the reason for the change of the magistrate. As per the record, on 06th February 2024 the predecessor magistrate informed the parties that she has been transferred thus she will proceed with defence hearing. She then adjourned the case to 20/2/2024. Thus, when the matter was placed before Mayumba RM the parties already knew the reason for the change. It is possibly because of this reason that the appellant neither complained about it during the defence nor raised it in the grounds of appeal. In the foregoing, I am fortified that the appellant was not prejudiced anyhow by this noncompliance which, I hereby find not to be fatal in the peculiar circumstances of this case. The other irregularity raised by the learned State Attorney is noncompliance with section 231 of the Criminal Procedure Act. As she has rightly submitted section 231 provides that at the closure of the prosecution case and after the court has ruled that a primafacie case has been established against the accused, it shall explain to him the substance of the charge and inform him Page 12 of 15 of his right to give evidence whether or not on oath or affirmation and to call witnesses in his defence if he so wishes. After explaining to him this right, the court is obliged to ask him if intends to exercise his rights above and record his answer before calling him to enter on his defence. In the

present case, the irregularity complained about is glaring. The record show that at the time of the transfer of Mwakalinga PRM, the prosecution had not closed it case. Thus, it was expected that, the successor magistrate would take over and proceed to hear the prosecution's witnesses or in the absence of further witnesses, had the prosecution case closed, make a ruling on the case to answer and address the accused in terms of section 231 before calling him to enter on his defence but none of these were done. The record shows that the successor magistrate took over the case on 29/2/2024. On that date, nothing took place in the case. He rescheduled the hearing to 1/3/2024. On that date, he went straight to the defence case. This was a serious anomaly with stern consequences as held in Ramadhani s/o Iddi @ Mnyampaa vs Republic (Criminal Appeal No. 575 of 2021) [2024] TZCA 772 where the Court of Appeal instructively stated that: "The Court has pronounced itself on the requirement of the strict compliance with section 231 (1) of the CPA in a number of its decisions. For instance, in the case of Maneno Mussa v. Republic (Criminal Appeal No. 543 of 2016) [2018] TZCA 242 (20 April 2018; TanzLII), the Court observed that: "Indeed, as submitted by the learned State Attorney, the trial court's failure to comply with the provisions of S. 231(1) of the CPA is a fatal omission. In the case

of Richard Malima & 4 Others v. The Republic, Criminal Appeal No. 183 of 2010 (unreported), the Court emphasized Page 13 of 15 that the duty bestowed on trial magistrates of strictly complying with the provisions o f S. 231(1) of the CPA, particularly where an accused person is not represented by a counsel". Highlighting the consequence of the omission in cases where the accused person is lay and unrepresented, the Court reminisced its decision in Richard Malima & 4 Others vs The Republic, Criminal Appeal No. 183 of 2010 [2013] TZCA 456 TanzLII, where it held that: "As pointed out earlier, the appellants who are laypersons and unrepresented were not made aware of their rights pursuant to section 231 of the CPA. In the circumstances of this case, we think, the omission stated herein above occasioned a miscarriage of justice, since the appellants were not represented by an advocate and were not made aware of their rights. We think so because the appellants could have opted for any option among those stated therein if they were made aware of their rights. The problem is, they had no legal representation and worst enough the trial court failed to comply with the requirements under section 231 of the CPA". The learned State Attorney has prayed for a retrial. In her view, there is sufficient evidence to support the conviction of the appellant. I have carefully read the record and I

agree with her views. Based on the glaring anomaly, I allow the appeal and nullify and quash the trial court proceedings from 1/3/2024 to 18/4/2024. The judgment and the sentence passed against the appellant are hereby quashed and set aside. The learned State Attorney has prayed for a retrial. In her view, there is sufficient evidence to support the conviction of the appellant. I Page 14 of 15 have carefully read the record and I agree with her views. Accordingly, the record is remitted to the trial court for retrial. The parties shall have the liberty to have the trial commence from the nullified proceedings or from the first date of hearing to allow the trial magistrate the opportunity to observe the victim and assess her credibility. Order, accordingly. DATED and DELIVERED at DODOMA this 24th day of October 2024 J. L. MASABO

JUDGE Page 15 of 15