alex felix twinzi vs republic 2020 tzhc 1836 30 june 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA

IN THE DISTRICT REGISTRY OF MBEYA

AT MBEYA CRIMINAL APPEAL CASE NO. 69 OF 2020 (Original from District Court o f Mbozi at Vwawa Cr. Case No. 76/2018 ) ALEX FELIX TWINZI................ APPELLANT

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

JUDGMENT Date o f last Order: 30th. 6.2020 Date o f Judgment: 30th. 6.2020 Dr. A. J. Mambi, J. In the District Court of Mbozi, at Vwawa, Songwe the appellant ALEX FELIX TWINZI was found guilty for an offence of rape c/s 130 (2) (e) and 131(1) of the Penal Code, Cap 16 [R.E.2002]. The appellant was found guilty as charges where he was convicted and sentenced to 30 years imprisonment. Aggrieved, the appellant appealed to this court by preferring 6 grounds of appeal. 1 During hearing that was done electronicly through virtual court the appellant in this appeared unrepresented, while the Republic was represented by Mr. Kihaka, The learned State Attorney. During hearing, the appellant adopted all his grounds of appeal and said he had nothing to add. Before responding to the grounds of appeal, the learned State Attorney submitted that, he has observed some irregularities on the proceedings and Judgement. He argued that the appellant in his first ground is claiming that he was not properly convicted. The learned State Attorney argued that the records does not show if the appellant was convicted. He submitted that it appears the Judgment by the trial Court was not properly composed as the record does not show with which offence the accused was convicted contrary to section 312. He was of the view that there was there is no proper appeal in this court and the court should

consider striking it or make other orders. I have carefully gone through the records and the relevant law. Before thoroughly looking into the grounds of appeal I have noticed and observed the judgment by the trial magistrate has some errors which may render it invalid. It is clear from the record that the trial Magistrate did not properly enter the conviction though he sentenced the appellant. In his final words (The Trial District Magistrate) under the last paragraph at page 18 the judgment reads: 2 “For the reason provided this curt finds the accused guilty o f the offence o f rape contrary to section 130 (2) , and 131(1) o f the Penal Code Cap 16 [R.E.2002 and convict him fo r with99 Reading between the lines on the above quoted paragraph can it be said that the Magistrate convicted the accused persons/appellants?. The answer is clearly NO since the above wordings were the last statement of the judgment and nothing else and there is any sentence on the conviction. As required by the law that once an accused is found guilty one would have expected the conviction and he must state the words that: “J conxnct the accused person under section....as charged99. The Trial Magistrate having convicted the accused under the section which creates an offence he stand charged shall sentence him under the proper provision of the law. Failure to convict the accused is contrary to the law

(sections 235 and 312 of the CPA Cap 20) since the law provides for mandatory requirement for judgments to contain conviction and sentence. I wish to refer section 235 (1) of the CPA [Cap 20 R.E 2002]which provides as follows “the court having heard both the complainant and the accused person and their witnesses and evidence shall convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him or shall dismiss the charge under section 38 o f the Penal Code”.(emphasis supplied with). 3 The above provision of the law is very clear. In this regard, my mind directs me that the provision of the law mandatorily require any judgment must contain sentence after an accused is convicted and it must be reflected in the record. This was also observed in MOHAMED ATHUMAN vs THE REPUBLIC, Crim App.No.45 o f 2015 (unreported). The court of appeal in this case that is MOHAMED ATHUMAN vs THE REPUBLIC Crim , App.No.45 o f 2015observed that: “Although there was a finding that the appellant was guilty was not convicted before he was sentenced. This was itself irregular. Sentence must always be preceded by conwction, whether it is under section 282 (where there is a plea o f guilty) or whether it is under section 312 o f the CPA (where there has been a trial). ”(emphasis supplied with). Reference can further be made to the court in Amani Fungabikasi V

Republic, criminal appeal No 270 of 2008 (unreported) where the court made similar observation. In this case the court said that;- “It was imperative upon the trial District Court to comply with the provision o f section 235 (1) o f the Act by convicting the appellant after the Magistrate was satisfied that the evidence on record established the prosecution case against him beyond reasonable doubt. In the absence o f a conviction it follows that one o f the prerequisites o f a true judgment in terms o f section 312 (2) o f the Act was missing. So, since there was no conviction entered in terms o f section 235 (1) o f the Act, there was no valid judgment upon the High Court could uphold or dismiss/'(emphasis added). 4 Reference can also be made to section 312 of CPA, Cap 20 [R.E 2002] for content of judgment as follows: "(1) Every judgment under the provisions o f section 311 shall, except as otherwise expressly provided by this Act, he written by or reduced to writing under the personal direction and superintendence o f the presiding judge or magistrate in the language o f the court and shall contain the point or points fo r determination, the decision thereon and the reasons fo r the decision, and shall be dated and signed by the presiding officer as o f the date on which it is pronounced in open court. (2) In the case o f conviction the judgment shall specify the offence o f

which, and the section o f the Penal Code or other law under which, the accused person is convicted and the punishment to which he is s e n t e n c e d ”(emphasis added). Now having observed those serious irregularities, the question before me is to determine what should be the best way to deal with this matter in the interest of justice. In my considered view the best way to deal with this matter is by way of revision. In this regard I wish to invoke section 272 and 273 of the Criminal Procedure Act, Cap 20 [R.E.2002] which empowers this court to exercise its revision powers to examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court. This in accordance with section 372 of the Act. Section 5 373 further empowers the court that in the case of any proceedings in a subordinate court, the record of which comes to its knowledge, the High Court may in the case of conviction, exercise any of the powers conferred on it as a court of appeal by sections 366, 368 and 369 and may enhance the sentence. The Court is also empowered in the case of any other order other than an order of acquittal to alter or reverse such order. I wish to refer section 372 of the Criminal

Procedure Act, Cap 20 [R.E.2002] as follows: “372. The High Court may call fo r and examine the record o f any criminal proceedings before any subordinate court fo r the purpose o f satisfying itself as to the correctness, legality or propriety o f any finding, sentence or order recorded or passed, and as to the regularity o f any proceedings o f any subordinate court. Furthermore, section 373 of the same Act provides that: “(1) In the case o f any proceedings in a subordinate court, the record o f which has been called fo r or which has been reported fo r orders or which otherwise comes to its knowledge, the High Court may- (a) in the case o f conviction, exercise any o f the powers conferred on it as a court o f appeal by sections 366, 368 and 369 and may enhance the sentence; or (b) in the case o f any other order other than an order o f acquittal, alter or reverse such order, save that fo r the purposes o f this paragraph a special finding under subsection (1) o f section 219 o f this Act shall be deemed not to be an order o f acquittal. 6 (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity o f being heard either personally or by an advocate in his own defence; save that an order reversing an order o f a magistrate made under section 129 shall be deemed not to have been made to the prejudice o f an accused

person within the meaning o f this subsection. (3)... (4) Nothing in this section shall be deemed to preclude the High Court converting a finding o f acquittal into one o f conviction where it deems necessary so to do in the interest o f justice (5)....’ Reading between the lines on the above provisions of the law empower this Court wide supervisory and revisionary powers over any matter from the lower courts where it appears that there are illegalities or impropriety of proceedings that are likely to lead to miscarriage of justice. Reference can also be made to other laws. In the regard I will refer section 44 (1) (a) and (b) of Magistrates Courts Act Cap 11 [R.E. 2002] which clearly provides that: “44 (1) In addition to any other powers in that behalf conferred upon the High Court, the High Court- (a) shall exercise general powers o f supervision over all district courts and courts of a resident magistrate and may, at any time, call fo r and inspect or direct the inspection o f the records o f such courts and give such directions as it considers may be necessary in the interests o f justice, and all such courts shall comply with such directions without undue delay; 1 (b) may, in any proceedings o f a civil nature determined in a district court or a court o f a resident magistrate on application being made in that behalf by any party or o f its own motion, if it appears that

there has been an error material to the merits o f the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit:” From the above findings and reasoning, I hold that from the above provision of the law including various decision by the court, this court is right in exercising its supervisory and revisionary power on the matter at hand as noted by the learned State Attorney. The law is clear it is proper to for this court to invoke provisional powers instead of appeal save in exception cases. Having observed those irregularities that are incurable will it be justice to remit the file back for proper conviction?.I wish to refer the case of Fatehali Manji V.R, [1966] EA 343, cited by the case of Kanguza s/o Machemba v. R Criminal Appeal NO. 157B OF 2013, where the Court of Appeal of East Africa restated the principles upon which court should order retrial. It said:- “...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because o f insufficiency o f evidence or fo r the purpose o f enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake o f the trial court fo r which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each

case must depend on its particular facts and circumstances and an order fo r retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person ..." Having observed those irregularities that are incurable will it be justice to remit the file back for proper conviction?. In this regard I will refer Section 388 (1) of the Criminal Procedure Act, Cap 20 [R.E.2002] and see what would be the proper order this court can make in the interest of justice. As I alluded and observed above that, since there was no conviction entered in terms of Section 235 (1) of the Act, there was no valid judgment upon this Court could uphold or dismiss and there is nothing this court can entertain as appeal. It is a settled law that failure to enter a conviction by any trial court, is a fatal and incurable irregularity, which renders the purported judgment incapable of being upheld by the High Court in the exercise of its appellate jurisdiction. In the circumstances I therefore remit the file back to the trial court for it to enable the trial magistrate to compose and deliver a judgment which is in conformity with the law. This means that the judgment must contain both proper conviction and sentence. Where it appear that the trial magistrate has ceased jurisdiction for one reason or another, in terms of section

214 (1) of the CPA another magistrate should be assigned the case to compose and deliver the judgment. The Trial Court should consider this matter as priority on and deal with it immediately 9 within a reasonable time to avoid any injustice to the appellants resulting from any delay. It should be noted that all appeals that are remitted back for proper conviction or sentencing need to be dealt expeditiously within a reasonable time. With regard to the position of the appellants I order them to remain in custody pending the delivery of the new judgment. Depending on the outcome of the new judgment, the appellants shall be at liberty to start afresh the process of appeal. Judgment delivered electronically this 30th day of June, 2020 in presence or 1~ ~~ DR. ’AYJ. MAMBI

JUDGE 30/ 6/2020 Right of Appeal exnlained. DR. A.JV MAMBI

JUDGE 30/ 6/2020 10