awadhi abdul kamugisha vs republic 2014 tzhc 2411 12 may 2014

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL NO; 106 OF 2011 (Originating from Criminal Case No; 16 o f 1999 in the District Court o f Kisarawe, at Kisarawe). AWADHI ABDUL KAM UGISHA........................................... APPELLANT. Versus; REPUBLIC..........................................................RESPONDENT

JUDGMENT 12/12/2011 & 12/05/2014. Utamwa, J. In this first appeal the appellant Awadhi Abdul Kamugisha challenges the judgm ent o f the District Court o f Kisarawe, at Kisarawe (trial court) in Criminal Case No; 16 o f 1999. The judgem ent had the effect o f convicting and sentencing him to serve in prison for thirty years following the charge against him for a single count o f defilement o f a girl under fourteen years c/s 136 (1) o f the Penal Code (Cap. 16, R. E. 2002). The appellant is now appealing against both the conviction and sentence. The respondent, Republic through the services o f Mrs. Kombakono learned State Attorney, supported the appeal on the grounds that will be seen later. Before the trial court, it was alleged according to the charge sheet that on the 22nd day o f January, 1999 at about 10. 15 hours at Kifuru village within Kisarawe District in Coast Region the appellant did carnally know one Staleds d/o Richard a girl under the age o f fourteen years. He pleaded not guilty to the charge, hence a full trial. Four prosecution witnesses (PWs.) testified in support o f the charge sheet. The appellant did not give his defence because he absconded before the prosecution case was closed. The trial court then found him guilty and sentenced him accordingly, hence this appeal. In his petition o f appeal filed through Mr. Kyariikuka learned counsel the appellant preferred nine grounds o f appeal which can conveniently be reduced to five as follows; 1. That the trial magistrate grossly misdirected him self to allow the sentence to start running upon the appellant been arrested without giving him a chance for his defence while the appellant was convicted and sentenced in absentia.

2. That the trial magistrate grossly misdirected him self for denying the appellant his right to cross examine the medical officer on the exhibit, the PF.3.

3. That the trial magistrate grossly misdirected him self in convicting the appellant against the weight o f evidence.

4. The trial magistrate grossly misdirected him self in convicting and sentencing the appellant who was charged under the repealed provisions o f law and for non-existing offence.

5. That the trial magistrate misdirected him self in law and fact for not affording the appellant a counsel to defend him while it was clear that he was facing a serious charge. For these grounds the appellant urged this court to allow the appeal, quash the conviction and set aside the sentence. At the hearing o f the appeal, when the learned counsel for the appellant had made arguments in support o f the grounds o f appeal, the learned State Attorney for the respondent simply and briefly argued that the respondent Republic supports the appeal because the appellant was convicted on a repealed law. There was thus no matter (case) in court, she submitted. In my adjudication map I intend to firstly examine the fourth refined ground o f appeal. My option is based on the fact that in case this ground is upheld; there will be no need for testing the rest o f the grounds o f appeal. This, I believe is the reason why at the hearing o f the appeal Mr. Kyarukuka learned counsel for the appellant also opted to argued this ground (originally ground No. 8) before he could argue the rest. The pertinent questions in respect o f this ground are two as shown hereunder; i. W hether or not the appellant was in fact charged with, convicted and sentenced under the repealed provisions o f law. ii. If the answer in the first issue is in the affirmative, then what was the effect o f such conviction

and sentence? In supporting this ground o f appeal, the learned counsel for the appellant argued that, the provisions o f 136 (1) o f Cap. 16 under which the appellant was charged were repealed by the Sexual Offences Special Provisions Act, 1998 (Cap. 101 R. E. 2002) which came into force on the 1st July, 1998, and for this reason the conviction cannot stand. He cited the case o f Lukaka Ndege v. Republic, High Court Criminal Appeal No. 258 of 1990, at Mwanza (unreported) to support his contention though he did not provide for the copy o f the decision as he promised. i The learned counsel also cited the case o f Republic v. M borola [1987] TLR. 30 to cement the legal point. As hinted previously, the learned State Attorney for the respondent supported the arguments by the learned counsel for the appellant. I have remarked time without numbers in other cases and I repeat similar remarks here: that though the parties in this appeal are in accord, their mere consensus is not necessarily a warranty for this court to agree with them and make the prayed orders, see the envisaging by the Court o f Appeal o f the United Republic o f Tanzania (CAT) in the case o f Tanzania Electrical Supply Company (TANESCO) v. Independent Power Supply Tanzania Ltd (TPTL) AND 2 others [2000] TLR 324. This is a court o f law, justice and record. Decisions o f this court form part o f laws (precedents) o

f this country and bind subordinate courts unless they are reversed by the CAT, see the holding by the CAT in the case o f Rev. Christopher Mtikila & Another v. The Attorney General & another Civ. Appeal No. 28 of 1995, CAT at Dar es salaam (unreported). This court is therefore duty bound to exercise the greatest care in making its orders or decisions, in which said case all matters before it must be decided according to the law and justice and not necessarily according to the consensus o f the parties, unless such accord by the parties is in harmony with the law and justice. It is for this reason that I found m yself obliged to adjourn this appeal, sit and consider the non-contentious arguments by the respective counsel for all the parties and the applicable law before I could come out with a proper decision according to law and justice, hence this judgement. I now embark m yself on testing the first issue posed above. I will not west time in discussing this issue. As agreed by both sides the provisions under which the appellant was charged were repealed. This is in accordance with s. 10 o f Cap. 101 which shortly stated that “Section 136 o f the Penal Code is hereby repealed” . I thus determine the first issue positively. This determination calls upon me to consider the second issue posed herein above. As to the second issue, the parties are at one that the effect o f the

irregularity is fatal and thus entitles this court to allow the appeal, quash the conviction and set aside the sentence. In my view, the above discussed repeal o f s. 136 o f Cap. 16 did not absolutely exonerate male persons who have carnal knowledge o f girls under the age o f 14. A trail for the law reveals that s. 5 o f Gap. 101 amended s. 130 o f Cap. 16 and still rendered these acts an offence termed as rape. According to the current s. 130 (1) and (2) (d) o f Cap. 16 therefore, it is an offence for a male person to rape a girl or a woman, and a male person commits the offence o f rape if he has sexual intercourse with a girl with or without her consent when she is under eighteen years o f age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. It follows therefore that the above discussed change o f the law had the effect o f disestablishing the previous offence o f “defilement o f a girl under fourteen years o f age” but converted it into rape with some more other ingredients which must be included into a charge sheet and proved in evidence before an accused is properly convicted for that offence. Our law is to the effect that, a charge and conviction under a repealed law is an iiTegularity which is curable if the repealed section is re-enacted in identical words, see Magesa s/o Mjunja v. The Republic [1986] TLR 10 (HC).

In the case at hand however, the re-enactment o f the offence was in different words as shown above, hence the iiTegularity is incurably fatal. This court also held that a charge under a repealed law cannot support any conviction, see John Mlingi v. Republic, High Court Criminal Appeal No. 10 of 2006, at Dar Es Salaam (unreported, Mihayo J, as he then was). In my above finding I did not rely much upon the precedents cited by the learned counsel for the appellant because he did not cause the availability o f the copy o f judgem ent for the unreported case o f Lukaka Ndege v. Republic. As to the Republic v. Joseph Mbolole case I find it slightly distinct from the circumstances o f the case at hand, hence distinguishable. This is because, in Republic v. Joseph Mbolole case the appellant, one Joseph Mbolole, had been charged with the offence o f neglect o f official duty contrary to s. 121 o f the Penal Code. It was alleged that he had failed to perform his official duty as provided for under sec. 7(1) (a) (i) and (ii) o f the Cotton Ordinance Cap 362 o f the Laws. This court found that the Cotton ^Ordinance had been repealed and by then there was no law containing provisions similar to those in section 7(1) (a) (i) (ii) o f the repealed statute. It ultimately held that an offence o f neglect o f official duty under s. 121 o f the Penal Code could be said to have been committed

only if there was a specific law imposing a specific duty on the person charged. The court then quashed the conviction and set aside the sentence. It is thus notable here that unlike in the case under discussion where the basic law under which the appellant (Awadhi Abdul Kamugisha) was charged (i. e. section 136 o f Cap. 16) had been repealed when the charge was filed in court, what had been repealed in the Republic v. Joseph Mbolole case was not the basic law under which the appellant (Joseph Mbolole) was charged (i. e. section 121 o f Cap. 16). In that case only the specific law allegedly imposing a specific duty on the appellant (Joseph Mblole) had been repealed. For the above reasons, I agree with the parties, though on slightly distinct bases, that it was fatal to charge the appellant under the repealed law and the irregularity is incurably incapable o f supporting the conviction and sentence. This finding in my view, disposes o f the entire appeal and reliefs me from the task o f examining the rest o f the grounds o f appeal. I therefore, allow the appeal, quash the proceedings o f the trial court for being a nullity and also quash the resulting conviction. I further set aside the sentence imposed against the appellant. He shall thus be released from prison forthwith unless held for any other lawful cause. Lastly, will not order for any re-trial since the appellant has served the unlawful sentence for about 15 years now as the record show. It is accordingly ordered, JHK. UTAMW A r

JUDGE 12/05/2014. 12/05/2014 CORAM; Hon. Utamwa, J. For; Appellant; Present in person. For Respondent; Ms. Honorina Munishi, State Attorney. BC; M/s. Chema Omary. C ourt; Judgement delivered in the presence o f the appellant and Ms. Honarina Munishi, State Attorney, in court this 12th day o f May, 2014. JHK. UTAMW A

JUDGE 12/05/2014