Albert Anthony Mgubike v

IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY

AT IJC MOROGORO CRIMINAL APPEAL NO.71 OF 2023 (Criminal Case No. 71/2023 in the District Court of Kilombero at Ifakara) ALBERT ANTHONY MGUBIKE ..…………………….……. APPELLANT

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

JUDGEMENT 17th April,2024. MANSOOR, J. Albert Anthony Mgubike, the appellant herein, was arraigned before the District Court of Kilombero herein referred as “the trial court” facing three counts of unnatural offence, contrary to section 154(1)(a) of Penal Code, Cap 16, R.E. 2002 now [R.E. 2022]. At the culmination of full trial, the appellant was found guilty and convicted on both counts and subsequently he was sentenced to serve a term of thirty (30) years imprisonment on the three counts, the sentence had to run concurrently. Page 1 of 12 Discontented by the decision of the trial Court, the Appellant appealed to this Court contesting both conviction and sentence. In a bid to pursue for his rights, the Appellant filed a petition of appeal comprised of six (06) grounds of appeal couched in the layman language as reproduced hereunder; 1. That the trial process was not fair which led to mistake identification by the prosecution witness. While the (accused) was in police lock up PW2652 D/CPL VERONICA took me out and told the victims PW1, PW2, PW3 that this is ALBER ATHONY MGUBIKE meaning that she put my identity in the mind of victims. Your honour it is the police Officer who informed victims but not the victims who informed Police Officer about crime committed.

2. That, the court erred in law on admitting the evidence of PW4 one Ester Yonas Mbayambaya she narrated hearsay evidence on facts which she did not see as the requirement of section 61 and 62 of TEA Cap 6 R.E 2019.

3. That the evidence of PW5 Ramadhani Saidi Malimba is not watertight to the fact that it needed collaboration. Admissibility is such kind of evidence without collaboration of Traffic Officers and Page 2 of 12 chairman of Kivukoni Camp who firstly saw victims. The trial magistrate erred in reasoning basing only one sided evidence.

4. That, no caution statements were taken as per section 57 and 58 of the CPA Cap 20 R.E 2019 despite the fact I demanded my right to be taken caution statement in presence of justice of peace or friend.

5. That, the witness statement of YASSIN YASSIN MWANA HANJI reveals the number of independent witness who at all could clear the doubts as whether appellant is the one who sodomised the victims. The questions as to why such credible witness were not called suggests this case was coached to warrant conviction to appellant no matter being the accused or not. The trial magistrate had to warn the danger of admitting prosecution evidence.

6. That, Honorable trial magistrate did not inform me my rights on defence case hence did not enjoy my right to call defense witnesses. During the hearing, the appellant Albert Anthony Mgubike appeared personally and unrepresented while Josbert Kitale, the learned State Attorney entered appearance for the respondent. By consensus, parties agreed to dispose of the appeal by way of oral submissions. Page 3 of 12 When the Appellant was invited to argue his appeal, being layperson, he only adopted his grounds of appeal and contended further that police officer, one Veronica did not do justice to him reasoning that she told the victims that his name is Anthony Alert Mgubike and he added that there was no identification parade and that the victims did not recognize him before they were told his name. Mr. Kitale took the floor arguing against the appeal. As Regards to the 1st ground, he submitted that the victim had identified the appellant at the crime scene and not at the Police station. He highlighted that the victims testified to know the appellant since they saw him taking local brew at Mama Jackies’ Pub and concluded that there was no need of identification parade since the accused/appellant is known to the victims. To support his contention, he referred this court to the case of Majaliwa Gervas vs Republic, Criminal Appeal No.608/2020, Bukoba at page 13, where it was observed

that “it will be superfluous and wastage of resources to conduct the identification parade if the witnesses knew the appellant before the incident.” Regarding the 2nd ground, the learned state attorney admitted that the evidence of PW4-Ester Yonas Mbayambaya was hearsay, however, he Page 4 of 12 contended that even if the evidence will be expunged it will not affect the case of the prosecution. In relation to the 3rd ground, at the onset, Mr. Kitale cited the provision of section 143 of TEA and submitted that there are no requirements of bringing a certain number of witnesses to court. He demonstrated further that the evidence is not measured by a number of evidence but the evidential value of the witnesses and he concluded that the evidence of PW1, PW2, PW3 and PW5 was enough to convict the accused. In relation to the 4th ground, it was the submission of the learned state attorney that the cautioned statement was not objected during trial and thus, this ground is an afterthought. Mr. Kitale added that the appellant did not inform the court on his defence that he was denied a chance to record the statement and the ground cannot be raised at the appellate court. In consideration of the 5th Ground, the learned state attorney reiterated his submission on the 3rd ground and added that the only witnesses who could prove the offence are the victims themselves as per section 127

(6) of TEA. He asserted further that the three witnesses who are the victims were reliable as they reported the crime promptly and he referred this Page 5 of 12 court to the case of Marwa M. Mwita vs Republic, [2002] TLR 39; where the court categorically stated that, “the ability of witness to name the suspect at the earliest point assurance of assessment of her reliability.” Regarding the 6th ground, the learned state attorney submitted that, the Magistrate had addressed the appellant of his right to defend himself in terms of section 231 of CAP 20 and that in turn the accused told the court that he will give his evidence vide oath, and that he will make his defence alone as he had no witnesses. To add weight on his contention he referred this court to page 16 of the trial court proceedings, and page 22 of the case of Gibaleka Siaya vs Republic, Criminal Appeal No.44/2020, CAT sitting at Arusha, where the Court of Appeal instructively aired that administration of justice to equity requires the court records to be in orders and concluded that the court must assume that the trial magistrate addressed the accused on his rights under section 231 of the CPA. The learned state attorney concluded his submissions by referring to section 154(2) of the Penal Code(supra) and prayed this court to adjust the sentence from 30 years to life imprisonment reasoning that the punishment for the

offence of unnatural offence to children is life sentence Page 6 of 12 and he concluded that the court is vested with powers under section 366(1)(a)(ii) of CPA. On his brief rejoinder the appellant contended that, biologically it is not possible to sodomise all three boys at once and lamented that he was framed. He denied to know the victims. I have objectively gone through and considered the records of both the trial Court and this Court and prayers made by the Appellant and submission advanced by the Learned State Attorney, Mr. Kitale. The crucial issue for consideration and determination is whether or not the instant appeal is meritorious. For easy determination of this appeal, I will start with the 6th ground of appeal which touches a point of law on the failure of the trial court to inform the appellant of his rights on defence and thus he did not enjoy his right to call defence witness as in my view, the determination of the same is capable of disposing of the entire appeal without testing the other grounds. After considering the parties’ submissions and re-visited the trial court proceedings the question that exercised my mind was as to whether there was a serious violation of the accused’s right to call defence witnesses. Page 7 of 12 For the purpose of convenience, I have find it apt to reproduce an extract of the trial court proceedings reflecting on what transpired

at the trial court. The records of the trial court as gleaned from page 08 of the typed proceedings are as illustrated as hereunder; “Court: The accused person has been addressed per s.231 of the CPA Cap 20 R.E 2019 on requirement of self-defend. Accused person: I will testify on oath. I will be alone” From the above record, it is vividly clear that, what was addressed to the appellant is said to be in accordance to section 231 of the Criminal Procedure Act Cap 20 R.E 2019 and specifically the trial court addressed the appellant on the requirement of entering his defence. However, what was categorically said by the trial court remained the secret of the trial magistrate as the records are silent. Under such circumstances it is doubtful to say that the appellant was fairly informed of his rights as per the requirement of section 231 of the Criminal Procedure Act Cap 20 R.E 2019. It is common principle that compliance of section 231(1) of the CPA require a trial magistrate to state categorically what rights he has informed an accused. I wish to cite the case of Abdallah Kondo vs Page 8 of 12 Republic (Criminal Appeal No. 322 of 2015) [2016] TZCA 836 (28 September 2016) where the Court of Appeal instructively stated that to comply with section 231 of the CPA, a trial court must record what it has informed the accused and his answer to it. The court stated that; "Given the above

legal position, it is our view that strict compliance with the above provision of the law requires the trial magistrate to record what the accused is informed and his answer to it. The record should show this or something similar in substance with this. "Court: Accused is informed of his right to enter defence on oath, affirmation or not and if he has witnesses to call in defence. Accused response:... '[record what the accused says)." The Court of Appeal observed further that it is quite unsatisfactory, for the court to simply state that section 231 of CPA "done" or "complied with". That section requires the trial magistrate to categorically inform the accused of his rights. In the case at hand, the trial magistrate has simply indicated that the accused person has been addressed per section 231 of the CPA on a requirement of making his defence without recording categorically the Page 9 of 12 words she has used to address the appellant in accordance with the mentioned section. It follows that, the information passed to the appellant regarding his rights provided on the provision of the law to include his right to call witness is doubtful as to whether it was communicated in accordance with section 231 of the CPA considering his answer that he will be alone without specifically saying that he will have no witness. In light of the above discussion and finding, it is no doubt the

provisions of section 231(l)(b) of the CPA were defied. The Court of Appeal in a litany of authorities held that contravening the said provision has the effect of vitiating the proceedings. In the case of Maneno Mussa Vs. R, Criminal Appeal No. 543 of 2016, [2018] TZCA at www.tanzlii.org the Court of Appeal when deliberating on the effect of non-compliance of section 231 of the CPA had the following observations: "Failure by the trial court to comply with the provisions of section 231(1) of the CPA which safeguards accused persons 'right to fair trial; is fatal omission. "(Emphasis supplied) Similarly in the case of Cleopa Mchiwa Sospeter Vs. R, Criminal Appeal No. 51 of 2019-[2020] TZCA 287 at www.tanzlii the Court of Appeal Page 10 of 12 relying on the case of Maneno Mussa (Supra) on violation of the provision of section 231(1) of the CPA had this to say: "...this Court has oftentimes held that failure to comply with the mandatory provisions of s. 231(1) of the CPA, vitiates subsequent proceedings. In view of the above authorities which binds this court and given the fact that the appellant was not categorically addressed in terms of the provisions of section 231 of the CPA, it is the findings of this court that the omission was fatal and vitiated the proceedings of the trial court. On the way forward, I allow the appeal to the extent stated and I hereby nullify the

subsequent proceedings of the trial court after the closure of prosecution's case. I also quash and set aside the conviction and sentence rendered on the appellant with an order for retrial from the date the prosecution case was closed. As such, I direct for file to be returned to the trial court for it to comply with the law in accordance with the provisions of section 231 of the CPA. I further direct that the case be determined by a different Magistrate. Meanwhile, the appellant is to be Page 11 of 12 granted bail pending re-trial, at the conditions to be fixed by the RM in Charge of Kilombero District Court. DATED AND DELIVERED AT MOROGORO THIS 17th DAY OF APRIL 2024. L. MANSOOR

JUDGE 17/04/2024 Page 12 of 12