NATHANAEL JAMES for tanzlii

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 13241 OF 2024 (Arising from Criminal Case No. 58 of2023 in the District Court of Dodoma) NATHANAEL JAMES @ NATHANAEL........................... APPELLANT VERSUS THE REPUBLIC............................................................ RESPONDENT RULING 4h & 13h September, 2024 MUSOKWA, J. In the District Court of Dodoma (trial court), in Criminal Case No. 58 of 2023, the appellant herein together with three other accused persons; were charged and convicted of the offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16 R.E. 2022 (Penal Code). It is alleged that the incident occurred on 17th April, 2023 in Mkonze Maua area, within the region of Dodoma. Further facts provide that on the material date, the four accused persons beat up one Bahati Joji with a machete and immediately after the assault, stole from the victim TZS. 200,000/-. The trial court convicted the four accused persons and sentenced them to serve three years imprisonment each, including corporal punishment. Being 1 | P a ge aggrieved thereof, the appellant herein timely filed a notice of appeal and the corresponding petition of appeal. However, the grounds of appeal shall not be reproduced as the appeal was not heard on merits. Before the hearing, parties were directed to address this court on the propriety or otherwise of the proceedings of the trial court. To be precise, on whether the age of the appellant herein; including one Haruni Chilewa, was properly determined in accordance with the requirements of the law. Mr. Robert Owino, learned advocate appeared for the appellant and was the first to submit. In addressing the issue raised by this court suo mottu, the appellant's counsel referred to section 372 (1) the Criminal Procedure Act, Cap. 20. R.E. 2022 (CPA). At the onset, Mr. Owino prayed that this court should invoke its revisional powers and accordingly, revise the records of the trial court. The appellant's counsel invited this court to exercise its revisional powers in order to satisfy itself on the propriety of the procedure in the determination of the age of two, of the four accused persons in the trial court. The issue of age at the trial court related to Haruni Chilewa who was the 2nd accused; and Nathaniel James@ Nathanael, who was the 3rd accused and the appellant herein. However, the said Haruni Chilewa, did not lodge an appeal before this court. 2 | P a g e The aforementioned accused persons, during the preliminary hearing, admitted their personal particulars including their names, tribe, residence, religion; and that they were arrested and arraigned before the trial court. Yet, both the accused persons did not admit as to the age articulated in the charge sheet and further stated that they were below the age of 18 years. Mr. Owino referred to pages 6 to 7 of the trial court proceedings, whereby both the accused persons stated that they were born in the year 2007. In this regard, at the time they were charged of the offence, thus on 17th April 2023, the said accused persons were 16 years old. Section 4 of the Law of the Child Act, Cap. 13 R.E. 2019, (LCA) provides that any person below the age of 18 years is a child. Therefore, for the purposes of the LCA, the two accused persons at the time they were charged, were indeed, children. The appellant's learned counsel further referred to sections 113 and 114 of the LCA; which provide that the duty to determine the age of the child is borne by the trial court. For instance, section 113(1) provides that the court is required to conduct an inquiry where the age of an accused person is in question. Further, section 113 (2) (3) (4) and (5) of the LCA clearly articulate the legal procedures in conducting the said inquiry. 3 I P a g e Mr. Owino submitted that should the trial court fail to conduct an inquiry to determine the age of the accused person; then the age provided by the accused person, the parents, guardian, or the social welfare officer, shall be considered as the correct age of the accused person. This is provided under section 114 (2) of the LCA. Upon the two accused persons stating their age to be 16 years, the trial court ought to direct an inquiry to be conducted in order to determine the proper ages of the accused persons before proceeding with the trial. In emphasis, Mr. Owino contended that the rights of the 2nd and 3rd accused persons at the trial court, were not properly observed and protected in accordance with the LCA. Thus, as the accused persons were children, the trial ought to have been conducted in the Juvenile Court. Further, the proceedings ought to have been conducted in camera and in the presence of a social welfare officer. The case of Samson Cosmas Mwananzuni vs Republic, Cr. Appeal No. 66 of 2023, (unreported) held by this court was cited in support thereof. In the circumstances, the appellant prayed for the nullification of the proceedings of the trial court, the conviction be quashed and the corresponding sentence to be set aside. Further, that the court should order 4 | P a ge the immediate release of the appellant herein and Haruni Chilewa who are children. The appellant's counsel asserted further that the trial court had no jurisdiction to determine the matter as it concerned the two accused persons who were below the age of 18 years. The High Court case of Ramadhani Juma Mpalupalu vs Republic, Cr. Appeal No. 109 of 2020, (unreported) was preferred in support of the proposed consequential orders. The respondent's counsel, Mr. Sadik Abdulkheri, state attorney also made his submission. The learned counsel for the respondent essentially conceded with the submissions of the appellant; in that the trial court erred by failing to conduct an inquiry in order to determine the proper age of the two accused persons. The case of Athanas Mbilinyi vs Republic, Cr. Appeal No. 275 of 2020, (unreported) held by the Court of Appeal of Tanzania (CAT) was cited. Mr. Sadik submitted that the said anomaly that is apparent in the records of the trial court, resulted in the miscarriage of justice. This is due to the fact that, the manner in which the proceedings were to be conducted, ought to have been guided by the outcomes of the inquiry on the age. The law provides that in any trial that involves children, the presence of a social welfare officer is mandatory. However, the learned state attorney had a 5 | P a ge different view regarding the assertions by the appellant's advocate that the trial ought to have been conducted at the juvenile court. The reason being that, the trial also included other accused persons who were adults. Thus, the trial could not have been conducted in a Juvenile Court. Needless to state that the entire proceedings of the trial court were marred with illegalities and irregularities for failure by the trial court to properly ascertain the ages of the two accused persons in accordance with the law. As regards to the consequential orders, the respondent's counsel prayed for orders of a trial de novo against the appellant herein and Haruni Chilewa who are children. The case of Fatehali Manji vs Republic, [1966] 1 A. E 343, cited in the case of Chacha Kisabo Wankyo vs Republic, Cr. Appeal No. 502 of 2020 (unreported) was cited. Mr. Sadik averred that for the interests of justice, the accused persons should be subjected to a proper trial in accordance with the law. In emphasis, he submitted that the re-trial should observe the rights of the two accused persons, in case they are found to be children. Upon hearing of the submissions from the parties, the issue for determination is on the consequential order for an illegal or defective trial of the appellant (Nathaniel James@ Nathanael) and Haruni Chilewa. Indeed, 6 | P a g e both parties are in agreement that the trial of the said persons was illegal or defective for failure to observe the prevailing laws. The only contentious issue between the parties relates to the consequential orders. While the counsel for appellant is pressing for nullification of the proceedings and release of the appellant and Haruni Chilewa forthwith; the counsel for the respondent has proposed a re-trial of the appellant and Haruni Chilewa. As indicated earlier, Haruni Chilewa did not appeal before this court. However, it is a cherished legal principle that this court cannot close its eyes on a glaring illegality originating from the subordinate court. The CAT case of Diamond Trust Bank Tanzania Ltd vs Idrisa Shehe Mohamed, Civil Appeal No. 262 of 2017, (unreported) held that: - "We wish to point out that, the court cannot normally justifiably dose its eyes on a glaring illegality in any particular case because it has a duty of ensuring proper application of the laws by the subordinates courts, See the case of Marwa Mahende v. Republic, [1998] T.L.R 249"[emphasis added] Looking at the original records of the trial court, the proceedings provide that the two accused persons did not admit to the ages as indicated in the charge. For ease of reference, the relevant part of the proceedings is reproduced hereinafter; 7 | P a g e i "2nd Agreed Facts I admit my name, I was born in 2007. Admits Particulars except age and tribe Memorandum ofAgreed Facts The accused admits his name, religion, occupation and residence. That he was arrested and arraigned to court, the rest of the facts are disputed. Accused Sgd (Haruni) S/A Sgd 3d Agreed Facts I admit my name, tribe, mechanic, Christian, Mkonze (born 2007). I was arrested and arraigned to court. Memorandum of Undisputed Facts The accused admits his personal particulars save for his age, that he was arrested and arraigned to court; the rest of the facts are disputed. Accused Sgd (Nathaniel) S/A Sgd" In that regard, the age of the appellant and Haruni Chilewa being below 18 years, was not in dispute. Thus, inquiry to determine the ages of the accused persons and the proposed order of re-trial is not in the interest of justice in the circumstances of this matter. The case of Fatehali Manji (supra) cited by the learned state attorney is relevant to the effect that: 8 I P a g e "...each case must depend on its own facts and an order for retrial should only be made where the interest of justice requires". Additionally, in the case of Furaha Johnson vs Republic, Criminal Appeal No. 452 of 2015, (unreported) the CAT held as follows: - "The Court takes judicial notice of the fact that the District Court of Moshi which tried the appellant is not a Juvenile Court. Since the appellant at the time of his arraignment and trial was a child, he was not triable by the district court, but a Juvenile Court. The trial court, therefore, lacked jurisdiction ratione personae to try the appellant. This alone rendered his trial a nullity. But even if the appellant had been tried by the appropriate court, the conduct of the trial in the absence of a social welfare officer would have equally rendered the trial a nullity", [emphasis added] In consequence whereof, I find merit in this appeal but only on the basis of the issue raised by this court suo motu. Acting under section 372 (1) of the CPA, I accordingly, nullify the trial, conviction and sentence relating to the appellant (Nathaniel James@ Nathanael) and Haruni Chilewa only who are children; and proceed to quash and set aside thereof. Guided by the holding in the case of Furaha Johnson (supra), and considering the interest and welfare of the said children; I further order the immediate release of the appellant (Nathaniel James@ Nathanael) and Haruni Chilewa only from prison, unless they are otherwise lawfully held. 9 | P a ge It is so ordered. Right of appeal explained. DATED at DODOMA this 13th day of September, 2024. Ruling delivered in the presence of the appellant and in the presence of counsel for the respondent Ms. Margareth Tiegray, state attorney. 10 | P a g e