ABDALLAH SULEIMAN SHIJA V Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA CRIMINAL APPEAL NO. 9516 OF 2024 (Arising from Nzega District Court in Criminal Case No. 000037589 of2023) ABDALLAH SULEIMAN SHIJA .................... APPELLANT VERSUS THE REPUBLIC....................... RESPONDENT JUDGMENT Date ofLast Order; 07/10/2024 Date ofJudgment: 04/11/2024 KADI LU, J, In Nzega District Court,'the appellant was charged with an unnatural offence contrary to Section 154 (1) (a) and (2) of the Penal Code [Cap. 16 R.E. 2022]. The prosecution alleged that on 10th December at Ushirika area within Nzega District in Tabora Region, the appellant had carnal knowledge of a male child aged 11 years against the order of nature. After the trial, the court convicted the appellant as charged and sentenced him to life imprisonment. Dissatisfied, he filed the instant appeal in this court consisting of the following grounds: 1. That, the trial Court erred in law and fact by relying on the testimony of the victim (PW1) which was received in violation of section 127 (2) of the Evidence Act [Cap. 6 R.E. 2022]. 2. That, the trial Court erred in law and fact for failing to comply with a requirement of section 210 (1), (2), and (3) of the Criminal Procedure Act [Cap. 11 R.E. 2022]. i 3. That, the trial Court erred in iaw and fact for failing to conduct a preliminary hearing in compliance with section192 (1) (2) (3) of the Criminal Procedure Act, [Cap. 20 R.E, 2022]. 4. That, the trial Court erred in iaw and fact for failing to consider that the exhibits "P2", "P3", "P4,"P5","P6", "P7", nP8" "P9"and "PIO"were procured contrary to the requirements of the law. 5. That, throughout the court's proceedings, there were serious Irregularities in the admission of evidence; in particular, no proper description of the exhibits was given before admission, the exhibits were not cleared for admission and the contents of the exhibits were not read over after being admitted. 6. That, throughout the court's proceedings, there were serious irregularities that compromised the integrity of the court'sproceedings. 7. That, the trial Court erred in law and fact for failing to analyze properly evidence on record and as a result arrived at erroneous findings. 8. That, the trial Court erred in iaw and fact by failing to consider the defence case which resulted in the miscarriage ofjustice on the part of the appellant. 9. That, the trial Court erred in iaw and fact by failing to consider that the case against the appellant was not proved beyond reasonable. On the strength of the above grounds, the appellant prayed for the court to allow the appeal, quash the conviction, set aside the sentence, and acquit (sic) him. When the appeal was called on for hearing, the appellant was represented by Mr. Saikon Justin, the learned Advocate while Ms. Suzan Barnabas and Ms. Aziza Mfinanga, learned State Attorneys represented the respondent. Mr. Saikon prayed to abandon the 7th and 8th grounds of appeal. Submitting on the 1st ground of appeal, he argued that evidence of the victim (child of tender age) was taken in contravention of Section 127 (2) of the 2 Evidence Act [Cap. 6 R.E. 2022] since the witness did not promise to tell the truth. To support his argument, the learned Counsel cited the case of Godfrey Lymo v. R., Criminal Appeal No. 168 of 2018, Court of Appeal at Bukoba. According to Mr. Saikon, the questions asked to PWl and his answers are not shown in the proceedings to enable the reader to know who asked what question and who answered it. In Yusuph Moto v. R., Criminal Appeal No. 343 of 2017, Court of Appeal at Iringa, it was stated that the promise should be reflected in the trial court's proceedings. Mr. Saikon prayed for the evidence of the victim to be expunged from the records for having been taken contrary to the law. On the 2nd ground, he submitted that the trial court did not comply with Section 210 (1), (2), and (3) of the Criminal Procedure Act on how to record the evidence. The Advocate gave an example of the testimonies by DW1 and DW2 and elaborated that the same was not recorded in narrative form as required by the law. For instance, the evidence of DW1 is full of 'yes' and 'no' without indicating the questions asked. It is hard to comprehend what the witnesses testified. The Counsel cited the case of Mangalu Maduhu k R., Criminal Appeal No. 158 of 2022, Court of Appeal at Tabora in which the court directed how evidence should be recorded and discouraged the 'yes' and 'no' format. He added that the omission to record evidence properly leads to the nullification of the trial court's proceedings. Concerning the 3rd ground, Mr. Saikon alleged that the trial Magistrate did not conduct the preliminary hearing properly. The facts are nowhere to be seen, the Magistrate only prepared a memorandum of undisputed 3 facts. Nowhere in the proceedings is shown that the facts were read over to the appellant and he signed. The Advocate supported his argument with the case of MT. 7479Sgt. Benjamin Hoieia v. R. [1992] TLR 121 where the court discussed Section 192 (3) of the CPA and held that it Was mandatory for the trial Magistrate to read over to the appellant the memorandum of undisputed facts. Mr. Saikon opined that the proceedings on the preliminary hearing were a nullity. About the 4th ground, he submitted that exhibits P2 - PIO were wrongly admitted by the trial court. Exhibits P5 and P6 for example, are the samples taken to the Government Chemist but Exhibit P5 which is a PF3 was accompanied by a paper that is not part of the exhibit. The attachment was used to take samples from the victim for examination by the Government Chemist. As the record is clear that the documents were not properly admitted, all the acts connected to them are a nullity. For these reasons, Mr. Saikon argued that the evidence obtained from exhibits P2 - PIO is illegal and should be expunged from the records. Regarding the 5th ground, the Counsel submitted that PW4 did not lay down the foundation before he was shown the exhibits he tendered. The exhibits were not also cleared for admission, and the contents were not read out after the admission. The problem was repeated when PW5 was testifying where the trial Magistrate only recorded the words, "there is no objection" but it is unknown who said there was no objection. Mr. Saikon referred to the case of Robinson Mwanjisi & Another v. R. in which the procedures for tendering documentary exhibits were laid down. 4 On the 6th ground of appeal, the Advocate for the appellant submitted that the proceedings of the trial court are tainted with several irregularities casting doubt on whether the appellant was tried fairly. According to him, it is hard to understand the evidence given by each witness. Further, throughout the Corum, it is not shown who was the presiding officer, who attended the proceedings, and Who said what. Finally, Mr. Saikon submitted that from what he had presented, the case against the appellant was not proved beyond reasonable doubt. The defence evidence succeeded in casting doubt on the prosecution evidence not warranting the court to convict and sentence the appellant as it did. Responding to the submissions by Mr. Saikon, Ms. Suzan submitted that Section 127 (2) of the Evidence Act was amended by Section 32 (a) of the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023, and provides that non-compliance with Section 127 (2) of the Evidence Act shall hot render the evidence of a child inadmissible. In the case at hand, the victim stated that she knew the effect of telling lies. Therefore, the trial court was justified in relying on the victim's evidence. Concerning the 2nd ground, Ms. Suzan conceded that Section 210 of the GPA was not complied with. She, however, argued that the remedy is not to set the appellant free, but to order a retrial since the remaining evidence is sufficient to convict the appellant. About the 3rd ground of appeal, she submitted that the preliminary hearing was intended to ascertain matters not in dispute. Although the facts are not on record, the paragraphs that the appellant admitted are shown on the proceedings and the appellant and his 5 Advocate signed. According to Suzan, it is not a legal requirement that the facts should be adopted by the court. She contended strongly that even though the preliminary hearing was improper, it could not invalidate the proceedings because a full trial was conducted. She referred to the case of DPP v. Jaba John, Criminal Appeal No. 206 of 2020, in which it was held that where undisputed facts are not read over or signed by the accused, it does not invalidate the trial proceedings as long as witnesses testified and the accused presented his defence. She argued further that, in Jovin Daudi v. R., Criminal Appeal No. 481 of 2020/ the Court of Appeal at Mwanza held that non-compliance with Section 192 of the Criminal Procedure Act only vitiates preliminary hearing proceedings, not the proceedings of the trial. Regarding the 4th ground, the learned State Attorney conceded that the exhibits deserve to be expunged from the records, but she was of the view that the remaining evidence is sufficient to justify the conviction of the appellant as in sexual offences, the best evidence comes from the victim. Ms. Suzan relied on the case of Frank Onesmo k R., Criminal Appeal No. 147 of 2019 High Court at Mwanza, in supporting her argument. About the 5th ground of appeal, she prayed not to repeat what she had submitted in earlier submissions as it relates to exhibits. She added that Exhibit Pl features in the judgment of the trial court but the proceedings are silent about how it got in the court file so, it also needs to be expunged. Concerning the 6th ground, Ms. Suzan also conceded that the proceedings of the trial court are incomprehensible. They are full of inconsistencies and the witnesses' testimonies are overlapping. She urged the court to order a retrial 6 if the court finds that the anomaly violated the rights of the appellant. She cited Section 388 of the CPA in supporting her contention. She finally argued that the case against the appellant was proved to the required standard since the victim and other witnesses showed that the appellant committed the charged offence. The learned State Attorney referred to the case of Bashiru Salumu Sudi v, R., Criminal Appeal No. 379 of 2018, Court of Appeal at Mtwara in which it was stated that evidence of a child of tender age may be used to convict the accused even without corroboration if the court is satisfied that the witness is telling nothing but the truth. She, thus, prayed for the court to dismiss the appeal and the trial court's decision to be sustained. In a brief rejoinder, Mr. Saikon argued that the cited amendment to Section 127 (2) of the Evidence Act does not apply in this case because the victim herein did not fail to promise to tell the truth, rather, the court did not comply with the law. On the irregular proceedings, he disagreed that the remedy is to order a retrial. He opined that in the circumstances of this case, a proper remedy is to allow the appeal. I have keenly examined the records, grounds of appeal, and submissions by the Advocates for the parties. The task before me is to determine the appeal. I will start with the 1st ground of appeal in which the appellant complains that the trial court erred by relying on the testimony of the victim (PW1) which was received in violation of Section 127 (2) of the Evidence Act, [Cap. 6 R.E. 2022], The said Section provides as follows: "/I child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies." 7 Further, Section 127 (7) of the same Act as introduced by Section 32 (a) of the Legal Sector Laws (Miscellaneous Amendments) Act, No. 11 of 2023 stipulates as hereunder: ''Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence ofsuch child Inadmissible." The record reveals that before the victim (PW1) started to testify, the learned Magistrate inquired from him about his name, age, tribe, religion, where he lives if he goes to the mosque, and if he understands the meaning of oath. Indeed, PW1 did not promise to tell the truth to the court. Ms. Suzan argued that even if a child of tender age fails to promise to tell the truth, it does not render his evidence inadmissible. I agree with Mr. Saikon that in the instant case, PW1 did not fail to promise the court that he would tell the truth rather, the court did not require him to do so. Therefore, Section 127 (2) of the Evidence Act was not complied with. The effect is to render PWl's evidence illegal hence, it should be expunged from the court's record as I hereby do. I will resolve the 2nd and 6th grounds of appeal jointly because they both challenge the proceedings of the trial court. The appellant laments that the learned Magistrate did not record the evidence in a narrative form in compliance With Section 210 of the CPA. The learned State Attorney conceded that the proceedings were poorly recorded hence, incomprehensible. Without much ado, I find merit in this ground of appeal and allow it. It is clear from the case file that the replies to cross-examination questions were recorded in the form of "yes' and 'no'thus, one cannot grasp 8 what was meant by the witness or what was the question asked to him or her. In Mangala Maduhu v. R., (supra), it was stated that: ",,. it is a rule ofpractice which is generally recognized and allowed by lawyers in many common lawjurisdictions that, evidence need not be taken in the form of questions and answers but in the form of a narrative.... what appears to be a good rule of thumb is that, whenever a witness is examined at any stage of the proceedings, every answer he or she gives must be recorded in the form of narration in the language of the court...” Apart from an irregular recording of the evidence, I fully agree with the Advocates for the parties that the proceedings of the trial court are full of irregularities. A famous principle in the administration of justice is that justice should not only be done but manifestly seen to be done. With irregular proceedings as shown in this appeal, it is difficult to ascertain how the trial court managed to satisfy itself that the case against the appellant was proved beyond reasonable doubt. Section 388 of the CPA provides that: "... no finding sentence or order made or passed by a court of competentjurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any inquiry or other proceedings under this Act; save that where on appeal or revision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure ofjustice, the court may order a retrial or make such other order as it may considerjust and equitable.” I am of a settled view that the irregularity of the proceedings of the trial court in the case at hand has occasioned a miscarriage of justice. In the 9 circumstances, there is no need to deal with the rest grounds of appeal. I remit the case file to Nzega District Court for expeditious retrial of the appellant before a different Magistrate and in accordance with the law. Order accordingly. Judgment delivered in chamber on the 4th day of November, 2024 in the presence of Mr. Saikon Justin, Advocate for the appellant, and Ms. Suzan Barnabas assisted by Ms. Aziza Mfinanga, State Attorneys for the Respondent. KADILU, MJ. JUDGE 04/11/2024 io