BOAY BAHA EDITED 22222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB REGISTRY OF MANYARA

AT BABATI CRIMINAL APPEAL NO. 19239 OF 2024 (Originating from Criminal Case No. 123 of 2023 of Babati District Court.) BOAY BAHA................................................ APPELLANT

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

JUDGMENT 20h August & 23rd September, 2024 Kahyoza, J.: Boay Baha, the appellant was arraigned before the District Court of Babati at Babati, where he was charged with an offence of grave sexual abuse. The trial court found him guilty, convicted and sentenced him to a minimum custodial sentence of 20 years' imprisonment. He appealed to this Court complaining that trial court erred to rely on the evidence of a child of tender age recorded in violation of section 127(2) of the Evidence Act, [Cap.6 R.E. 2022] (the TEA), that the court erred to convict him based on unreliable, uncorroborated, and contradictory evidence, that the court did not consider his defence, that the court did not evaluate evidence and that the prosecution did not prove the offence beyond reasonable doubt. i When the appeal was called on for hearing, the appellant appeared in person, whereas the Republic was represented by Ms. Blandina, learned state Attorney. A brief background is that; the appellant cunningly made the victim to suck his cock. The victim's father deposed that on the fateful date the victim came from the sugar cane plantation spitting. He asked the victim what had happed, the victim told him that the security guard, the appellant, put his"c/t/c/e" {penis) into his mouth asked him to suck it on a promise to buy him sweet. The appellant denied to commit the offence. The trial court believed,

the prosecution's story convicted and sentenced the appellant as shown above. This is the first appellate court with a duty to re-evaluate the evidence, hence, the basic issue is whether the prosecution prove the case beyond reasonable doubt. The parties argued the appeal orally. The appellant had nothing to add to his grounds of appeal. Ms. Blaindina, the learned state attorney, opposed the appeal. She argued that the trial court did comply with section 127 of the TEA, thus, the appellant's complaint was baseless. The victim, a child of tender age, is required to promise to tell the truth and not to lie. The victim promised to 2 tell the truth. She cited the case of John Luoga v R., Criminal Appeal [2024] TZCA 762 to support her position. As to the complaint that the prosecution did not prove the case beyond reasonable doubt, the state attorney opposed the complaint and submitted that the prosecution proved the case beyond reasonable doubt. She argued that the prosecution summoned three witnesses who testified and proved the prosecution's case. She added that the appellant did not cross examine the victim, that implied that, the appellant accepted the truth of the victim's evidence. As to the ground that the evidence of the defence was not considered, the state attorney argued that the trial court considered the defence. She prayed this Court to consider the defence, should it

find that the trial court did not consider the defence evidence. To support her position, she cited Marco Maibasi V. R., tanzlii [2024] TZCA 729, where the Court of Appeal held that the first appellant court may evaluate and consider the defence evidence. After the parties argued the appeal, this Court entertained doubts if the trial court had complied with some basic procedural steps. It invited the parties to go through the proceedings and submit whether the trial court 3 complied with sections 210 (3) and 231 of the Criminal Procedure Act, [Cap. 20 R.E. 2022] (the CPA). The learned state attorney, Ms. Biaindina, was the first to take the floor. She submitted that section 210 (3) was not complied with as after the appellant was cross-examined, the trial magistrate did not read the evidence to the accused person as the law requires. She added that the trial court did not comply with section 231 of the CPA as it did not address the appellant as to his rights after the appellant was found with a prima facie case. The appellant as expected being a layperson had nothing to argue in support or in opposition of the issues I raised. Having considered the parties submission, there are two issues; one, whether there were procedural irregularities in the trial court proceedings; and two, whether they are curable under section 388 of the CPA. The record of the trial court, as submitted

by the learned state attorney the proceedings of the trial speak volumes that section 210(3) of CPA was not complied with. Section 210(3) of CPA requires a magistrate to read the evidence to the witness or obtain his opinion if he would wish the trial court to read the evidence to him. The record shows that after (Pw2) testified in chief and the appellant gave the evidence in chief, the trial court complied 4 with the requirement of section 210(3) of the CPA but it omitted to so after cross-examination. Section (3) of the CPA requires the trial court to inform the witness that he is entitled his evidence be read to him and if so, he demands the evidence to be read, the court will comply and if the witness makes comments regarding his evidence, the court ought to record them. Unfortunately, the court forgot to read the evidence to after cross- examination. This was an irregularity. Both the witness and the appellant did not whether the court did properly record the evidence. For clarity's sake, I produce 210(3) of CPA, which reads that- "210.- (3) The magistrate shall inform each witness that he is entitled to have his evidence read over to him and if a witness asks that his evidence be read over to him, the magistrate shall record any comments which the witness may make concerning his evidence." It is beyond dispute that the trial court did not comply with section 210(3) of

CPA. The Court of Appeal held in Jumanne Shaban Mrondo v. R (supra) took a position the omission to comply with section 210(3) is not fatal it is curable under section 388 of the CPA. It stated- "The record of proceedings of the trial court shows that there was no compliance with section 210 (3) in the process of recording the evidence of the witnesses. However, we do not see the substance of 5 the appellant's complaint because it was the witnesses who had the right to have the evidence read over to them and make comment on their evidence. We do not even think that the omission occasioned a miscarriage of justice to the appellant. " In the present case, the trial court, among other things, omitted to inform the appellant that he had a right his evidence to be read to him. This omission was serious, the appellant did not know if his defence was properly recorded. The appellant had the right to know the evidence on record. I think the facts in Jumanne Shaban Mrondo v. R (supra) is different from the facts in the present case. It is my position that failure to address the accused person on his evidence as required by section 210(3) of the CPA is fatal. The former situation as it denies the accused person to appreciate if his defence was properly recorded and more so when the appellant complains that his defence was not considered. No one can tell that whether the

appellant's complaint that his defence was not considered is based on the recorded defence evidence or on what he told the trial court. As held by the Court of Appeal in Jumanne Shaban Mrondo v. R (supra) failure to comply with the same section regarding the evidence of the prosecution's witness is not fatal. It is curable. 6 That done, the next question is whether the trial court violated section 231 of the CPA. It was the learned state attorney's submission that the trial court did not comply with 231 of the CPA. She argued that the trial court did not address the appellant as to his rights under section 231 of the CPA. I have nothing to add to the state attorney's submission. Indeed, the trial court did not address the appellant his rights under section 231(1) of the CPA after it found him guilty. Section 231 (1) state as follows- "231.-(1) At the close of the evidence in support of the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defense either in relation to the offence with which he is charged or in relation to any other offence of which, under the provisions of section 300 and 309 of this Act, he is liable to be convicted, the court shall again explain the substance of the charge to the accused and inform him his right:- (a) to give evidence whether or not on oath or affirmation, on his own

behalf; and (b) to call witness in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any of the above rights and shall record the answer; and the court shall call on the accused person to enter on his defense save where the accused person does not wish to exercise any of those rights/' 7 As the trial court's record bears testimony, after the learned State Attorney closed the prosecution's case, the trial magistrate marked it closed and made a ruling that the accused person, now the appellant, had a case to answer. It set a defence date. It is nowhere depicted that, the trial magistrate explained to the appellant his rights under section 231 of the CPA. The record is silent on what was the appellant's reply, particularly, on how he intended to exercise his right to call witness and the mode of giving his evidence which is mandatorily required to be recorded. The Court of Appeal in the Director of Public Prosecutions v. Seleman Juma Nyingo @ Mwanyingo, Criminal Appeal No. 363 of 2022 held that; "In our view, the statutory duty imposed on the trial court to explain to the accused about his rights upon closure of the prosecution case, is not a mere formality but aims at achieving a purpose." Also, the Court of Appeal in Emmanuel Richard @ Humbe v. The Republic, Criminal Appeal No. 369 of 2018 stated that the provision of 231(1) of the

CPA requires the trial court to explain to the accused person his right as to the mode of giving his defense whether on oath or affirmation or not; and whether he has a witness to call. In which case, it is mandatorily required to record the answer thereof from the accused. 8 Failure to comply with section 231 of the CPA implies that the appellant was denied his right to marshal his defence. He did not know whether he had a right to call witness and to defend himself or decline from giving his defence. Section 231 (1) of the CPA imposes a mandatory duty upon the trial court to address the accused person on the rights to call witness and the way he shall make his defence. The Court of Appeal in Mabula Julius & Another v. Republic, Criminal Appeal No. 562 of 2016, held that non- compliance with section 231 of the CPA was fatal and not curable under section 338 of the CPA. It held- "... failure by the trial court to record whether the appellants would call witnesses in terms of section 231 (1) (b) prejudiced the appellants. The infraction, on the authority of the decisions cited above, is fatal. It vitiated all subsequent proceedings. ” Yet, in Cleopa Mchiwa Sospeter v. Republic, Criminal Appeal No. 51 of 2019, the Court of Appeal confirmed it position in Mabula Julius & Another v. Republic, (supra) that where the trial court failed to explain to the appellant the substance of the

charge after closure of the prosecution's case, and to inform him of his right to give evidence whether on oath or affirmation and his right to call witness in his defence, that failure to comply 9 with the mandatory provisions of section 231 (1) and (2) of the CPA vitiated the subsequent proceedings. Applying the principles propounded in the above cited authorities, it is settled in my mind that the trial magistrate failed to comply with section 231 (1) of the CPA and, thus, prejudiced the appellant as he was not able to utilize his right of calling his witnesses and to prepare a proper defence. It is a settled law that failure to comply with the mandatory requirement of the law under 231(1) of the CPA, 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. Hence, I find the proceedings a nullity and I quash them, set aside the conviction and sentence on account of both the trial court's failure to comply with sections 210(3) and 231(1) of the CPA. The next question is a course this court ought to take in the interest of justice after nullifying and quashing the proceedings. The question confronting my mind is whether to order a re-trial or not to do so. I wish to refer the case of Fatehali Manji V.R, [1966] EA 343, where the Court of Appeal of East Africa stated the

principles upon which court should order a re-trial. It said: - io "...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 of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for 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 for 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..." I considered the evidence on record, of cause, bearing in mind the settled position of the law that, the best evidence in sexual offences comes from the victim, and formed an opinion that there is evidence to lead to the accused person's conviction. Thus, to order a re-trial will not to amount to giving the prosecution a chance to fill the gaps in their case. I therefore, find it in the the interest of justice to the appellant to be re-tried. In the end, I nullify and quash the proceedings, set aside the conviction and sentence. I order the appellant to re-tried with immediate dispatch. If the appellant's re-trial is

not commenced with 30 days or if a retrial is commenced within the specified time but it is not completed within 3 months for any reason, from the day of this judgment, the appellant be discharged 11 and upon being discharged, the appellant shall not be arrested and charged on same facts. All in all, the prosecution is at liberty to initiate a re-trial or cause the appellant's discharge. I order accordingly. Dated at Babati this 23rd day of September, 2024. John R. Kahyoza Judge Court: Judgment delivered in the physical presence of the appellant and the virtual presence of Ms. Blandina Msawa-SA for the Respondent. B/C. Ms. Fatina (RMA) present. Right of appeal explained. John R. Kahyoza Judge 23.9. 2024 12