ABDALLAH RAMADHANISINDANO VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA ATTABORA (CORAM: LILA, J.A.. FIKIRINL 3.A, And KENTE. J.A^ CRIMINAL APPEAL NO. 184 OF 2022 ABDALLAH RAMADHANI @ SINDANO.................. ........... ...... APPELLANT VERSUS THE REPUBLIC....................... ........ .................. .............. RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Tabora, at Tabora - Extended Jurisdiction) (Naaeie. SRM-Ext, Jurist dated 10th day of May, 2022 in Criminal Appeal No. 66 of 2021 JUDGMENT OF THE COURT 16th &. 22nd August, 2024 FIKIKINI, J.A.: The appellant, Abdallah Ramadhani @ Sindano was convicted of statutory rape and sentenced to thirty years' imprisonment by the District Court of Tabora at Tabora, contrary to section 130 (1) and (2.) (e) and 131 (1) of the Penal Code. He was in the same arraignment, convicted of spreading HIV contrary to section 47 of HIV and AIDS (Prevention and Control) Act No. 28 of 2008. On this count, he was sentenced to five years’ imprisonment. The sentences were to run concurrently. Additionally, he was ordered to compensate the victim TZS 150,000.00. i The allegation before the trial court is that; on divers dates of November, 2019 at Kalomwa sublet, Imalaseko village, Goweko Ward within Uyui District in Tabora Region, the appellant did have carnal knowledge of a twelve (12) years old girl whose name is concealed to protect her privacy. She will, therefore, be referred to as "PW2" or "ME" or simply the victim. From the evidence of four (4) prosecution witnesses, one (1) defence witness and three (3) exhibits to wit the Medical Examination report of PW2-exhibit Pi, Medical Examination report of Abdallah Ramadhani @ Sindano - exhibit P2 and the appellant's cautioned statement admitted as exhibit P3, the trial court was content that the prosecution had proved its case beyond reasonable doubt. It convicted and sentenced the appellant, as alluded to above. Aggrieved he appealed to the High Court in the appeal initially registered as D C - Criminal Appeal Case No, 50 of 2021. However, on 11th August 2021, the case was transferred to the Resident Magistrate's Court Tabora Extended Jurisdiction (RM's Court - Ext. Juris) in terms of section 173 (1) of the Criminal Procedure Act and The Criminal Procedure (Extension of Jurisdiction) Order, GN. No. 219 of 2018, specifically assigned the appeal to honourable Gabriel Patrick Ngaeje, SRM - Ext. Juris. The appeal was unsuccesseful; hence, the present appeal containing five (5) grounds in the initial memorandum of the appeal lodged on 10th July, 2023. The appellant later lodged a supplementary memorandum of appeal containing one ground of appeal. It is the later ground of appeal which drew our attention. The ground reads thus:- 1. The appellate court erred in law to hear art appeal while there was a procedural lapse on transfer in DC Criminal Appeal No. 50 o f 2021 on the wrong provision. The appellant appeared unrepresented during the hearing, and Mr. Joseph Makene, learned State Attorney, appeared for the respondent/Republic. The appellant prayed for the learned counsel to address the Court first and could rejoin later. We invited the learned counsel to address us on the only ground in the supplementary memorandum of appeal and the way forward. The issue he was to address was the application of the provision of section 173 (1) of the CPA by the Judge In charge of transferring the case to the RM's Court with Ext. Juris. Initially, he held that section 173 (1) of the CPA was applied correctly. However, upon reflection he changed his position, submitting that the provision of section 173 (1) used was not appropriate. Prompted to read sections 173 (1) of the CPA and 45 (2) of the Magistrate's Court Act (the MCA) simultaneously, to see how they relate, he contended that even though all the provisions dealt with conferring jurisdiction on the Resident Magistrate's with extended jurisdiction but each provision had its specific kind of cases to be transferred. In the circumstances of the present appeal, the appropriate provision would have been section 45 (2) of the MCA, he concluded. The learned counsel went on submitting that whereas section 173 (1) gives the Minister powers to confer extended jurisdiction to Resident Magistrates, section 256A (1) is applicable when the actual transfer takes place involving matters triable by the High Court which could be transferred for adjudication by the Resident Magistrate with Ext. Juris and section 45 (2) of the MCA permits the transfer of appeals which were to be heard by the High Court to the Resident Magistrate with Ext. Juris. He thus concluded that the transfer made in the present appeal was inappropriately made. Consequently, the purported transfer made had no effect and could not confer jurisdiction. The proceedings out of the ill-fated transfer were a nullity. The proceedings and the judgment deserved to be quashed, and the record should be remitted to the High Court for a hearing of the appeal, he submitted. The appellant had nothing of substance related to the legal problem that ensued, although he was the one who raised the concern. His only prayer was for him to be released as the case against him was a fabrication. From the above short submission, our task is to deliberate on whether the transfer order dated 11th August, 2021 from the High Court to RM's Court Tabora Ext. Juris under section 173 (1) of the CPA was appropriate. We started by visiting page 68 of the record of appeal to see exactly what was contained in the transfer order. The order reads as follows:- "This DC. Criminal Appeal Case No. 50 o f2021 is transferred to the RM's Court Tabora Extended Jurisdiction. It is assigned to Hon. Gabriel Patrick Ngaeje/ SRM with Extended Jurisdiction pursuant to section 173 (1) o f Criminal Procedure Act, Cap. 20 R. E. 2019 and The Criminal Procedure (Extension o f Jurisdiction) Order, G.N. No. 219 of 2018." Since the powers of transfer were in reference to section 173 (1) of the CPA, our next stop was at section 173 (1) of the CPA, to examine the wording of the provision involved if it provides the applied transfer powers. The provision states thus:- 5 "(1) The Minister may after consultation with the Chief Justice and the Attorney General, by order published in the Gazette- (a) Invest any resident magistrate with power to try any category o f offences which, for the provisions o f this section, would ordinarily be tried by the High Court and may specify the area within which he may exercise such extended powers; or (b) Invest any such magistrate with power to try any specified case or cases o f such offences and such magistrate shall[ by virtue o f the order have the power in respect o f the offences specified in the order to impose any sentence which could lawfully be imposed by the High Court." [Emphasis added] To our understanding, the wording of section 173 (1) of the CPA clearly states that the powers in reference are those of the Minister in conferring extended jurisdiction to the Resident Magistrates upon consultation with the Chief Justice and the Attorney General. They have nothing to do with transferring a case to a Resident Magistrate's court and a particular Resident Magistrate with extended jurisdiction. Other provisions governing the transfer of cases, shall be looked into shortly. However, as it is presently, the transfer order made on 11 August 2021 under section 173 (1) of the CPA did not in effect amount to a legal transfer; therefore, no jurisdiction was conferred on the said Senior Resident Magistrate with Extended Jurisdiction (SRM, Ext. Juris). The proceedings and the decision borne out of the transfer order are nothing but a nullity. If the provision cited was not appropriate, then what is the proper provision? Two main significant provisions relate to transferring the cases triable by the High Court. The provisions are sections 256A (1) of the CPA and 45 (1) and (2) of the MCA. Starting with the provision of section 256A (1) of the CPA, for ease of reference the provision is reproduced below:- " 77?e High Court may direct that, the taking o f a plea and the trial of an accused person committed for trial by the High Court, be transferred to, and be conducted by a Resident Magistrate upon whom extended jurisdiction has been granted under subsection (1) o f section 173 o f the CPA." From the wording of the provision, the transfer envisaged here is that of cases triable by the High Court, which involves plea taking and trial. One such situation is murder trials, in which the Judge in-charge relying on section 256 A (1) of the CPA could transfer the case to the Resident Magistrate with Extended Jurisdiction in RM's court to carry out 7 the assignment. Such transfer is appropriate and in line with what has been provided by the provision. Another transfer instance is under section 45 (2) of the MCA. Under the provision, the appeals that the High Court ordinarily hears could be transferred to the Resident Magistrate's Court to be attended by a Resident Magistrate with extended Jurisdiction. The provision of section 45 (2) of the MCA which is used in transferring appeal cases to the RM's court reads thus:- "2. The High Court may direct that an appeal instituted in the High Court be transferred to and heard by a Resident Magistrate upon whom extended jurisdiction has been conferred by section 45 (1)." [Emphasis added] Since the transfer in Criminal Appeal No. 66 of 2021 was made under section 173 (1) of the CPA, there was no transfer effected, conferring jurisdiction to SRM with Ext. Juris. As a result, the proceedings before the SRM with Ext. Juris were a nullity as no jurisdiction was conferred by the transfer order dated 11th August, 2021, in terms of section 173 (1) of the CPA. See: Abeid Yahaya v. R, (Criminal Appeal No. 549 of 2016) [2018] TZCA 233 (20“’ April, 2018; TANZLii). Consequently, under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 Revised Laws, we quash the entire proceedings before honourable Ngaeje, SRM - Ext. Juris, and the resultant judgment and orders stemming from those proceedings. On the way forward, we order the record in Criminal Appeal No. 66 of 2021 to be remitted to the High Court for a hearing of the appeal or otherwise, properly transfer it to RM-Ext. Juris. For the foregoing, we allow the appeal, quash the proceedings, judgment and orders therefrom. In the meantime, the appellant shall remain in custody. DATED at TABORA this 21st day of 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 22nd day of August, 2024 in presence of appellant in person and Mr. Steven Mnzava, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.