YAHAYA SELEMANI SUNGI

IN THE HIGH COURT OF TANZANIA DODOMA SUB- REGISTRY AT DOPOMA DC. CRIMINAL APPEAL NO. 8563 OF 2024 (Arising from Criminal Case No. 62 o f2022 in the District Court of Singida) YAHAYA SELEMANI SUNGI........................................ APPELLANT VERSUS THE REPUBLIC........................................................ RESPONDENT RULING 11thJuly S 9hAugust, 2024 MUSOKWA. J. Before the District Court of Singida (trial court) in Criminal Case No. 62 of 2022, the appellant herein, was charged with the offence of grievous harm contrary to the provisions of section 225 of the Penal Code, Cap. 16, R.E. 2022 (Penal Code). It was alleged that on 13th November, 2022 at Munyu Village, Irisya Ward, within Ikungi District in the region of Singida, the appellant did cause grievous harm to his child aged eight years whose identity will be concealed but shall simply be referred to herein as "the victim". The appellant's act caused the victim to suffer serious injuries. Upon hearing, the trial court convicted and sentenced the appellant to serve six years imprisonment. Being aggrieved thereof, the appellant has preferred the present appeal. On the day scheduled for hearing, the appellant appeared in person, unrepresented, whereas the respondent had the service of Mr. Sadik Adlulkheri, learned state attorney. Before proceeding to the merits or otherwise of the appeal, the court suo mottu raised a concern based on the composition of the judgment; specifically, on whether the trial court entered a conviction against the appellant as per the requirements of the law. Parties were invited to address this court on this issue. Mr. Sadik, learned state attorney submitted that upon perusal of the typed judgment, he noted the existence of an error that is apparent on the records. The trial magistrate did not enter conviction against the appellant, and that such anomaly contravenes section 235 of the Criminal Procedure Act, Cap. 20, R.E. 2022 (CPA). The section provides for the legal requirement of a trial court to enter conviction based on the evidence. The provision, which is coached in mandatory terms, requires the trial court to convict the accused person and to pass a sentence; or make any order against him according to the law. However, in the instant appeal, the impugned judgment falls short of the requirements of the law. The respondent's counsel further stated that section 312(2) of the CPA has also been contravened. The section provides that in case of conviction, the judgment shall specify the offence to which the accused has been charged with, the law which creates the said offence, and the respective punishment. According to Mr. Sadik, the impugned judgment fell short of all the aforementioned requirements. The remedy in such circumstances is provided under section 388 of the CPA; to remit the case file to the trial court with the directives of composing a fresh judgment in accordance with the law. In suppport of his position, the respondent cited the case of Noah Sajilo and Another vs The Republic, Criminal Appeal No. 478 of 2021. In addressing the issue at hand, the appellant had nothing substantial to state, rather he prayed that the court should decide in his favour for the interests of justice. I have carefully considered the submissions of the parties and the records before the court. Additionally, I have read the recent case of Noah Sajilo and Another (supra) cited by the learned state attorney. On page 13 to 15 of the said case, the Court of Appeal of Tanzania (CAT) held as follows: - "It is now trite law that omission to enter conviction before sentence, is not a fatal ailment as the same is 3 curable under section 388 of the CPA. The Court in a number o f cases has insisted on the same, for instance in the case o f Amitabachan s/o Machaga @ Gorong'ondo vs Republic, Criminal Appeal No. 271 o f 2017 (unreported) it was held that: "Ordinarily we would have remitted the record to the High Court for it to enter the conviction so as to make the matter be properly before us for determination on the merit However, both attorneys, for the appellant and for the respondent urged us to proceed with the hearing and determination o f the appeal to its logical conclusion because on the merit, the justice o f the case militates against remitting it to the High Court. We readily agreed. Although we are aware that an appeal is not properly before us where no conviction has been entered by the trial court, we think it is not always that such omission to enter a conviction will necessarily lead to an order of remission o f the record to the trial court especially, as in this case, where the justice o f the case demands otherwise. In other cases, it has been considered prudent to treat the omission as a mere slip and the Court has deemed the conviction to have been entered. See the case oflm ani Charles Chimango v. Republic CriminalAppeal No. 382 o f 2016 (unreported). We shall therefore ignore the omission and proceed with the determination o f the appeal on the merit"[Emphasis added] Based on the cited case, the omission to enter conviction before sentence is not fatal and the same is curable under section 388 of the CPA. In that regard, the said omission by the trial court is a mere slip and this court has deemed the conviction to have been entered accordingly. Accordingly, the appeal will be heard on merits. The parties will be notified on the hearing date. It is so ordered. DATED at DODOMA this 9thday of August, 2024. Ruling delivered in the presence of the appellant; and in the presence of the counsel for the respondent, Ms. Margareth Tlegray. 5