TUOMBE JUDGMENT

IN THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA CRIMINAL APPEAL NO. 9618 OF 2024 (Arising from Criminal Case No. 189 of 2020 of Ngara District Court) TUOMBE STAPHORD……………………….……………………APPELLANT VERSUS THE REPUBLIC…………………………………………………RESPONDENT JUDGMENT 05/12/2024 & 13/12/2024 E. L. NGIGWANA, J. At the District Court of Ngara at Ngara the appellant, Tuombe Staphord, and Daudi Andrea (who is not a party to this appeal) were charged with the offence of Gang rape contrary to section 131A (1) and (2) of the Pena Code, [Cap 16 R.E 2019] (Now R.E 2022). The particulars of the offence were that; on the 12th day of August 2020, during evening hours at Kahaza Hamlet, Rusumo Village, within Ngara District in Kagera Region, the appellant and Daudi Andrea unlawfully had carnal knowledge of E. I (name withheld), a girl aged 14 years old. 1 The duo pleaded not guilty to the charge. After a full trial, both of them were convicted and sentenced as follows: the appellant was sentenced to thirty (30) years imprisonment, while Daudi Andrea, aged 14, was sentenced under section 131 A (3) of the Penal Code, [Cap 16 R.E 2019] (R.E 2002) to corporal punishment of four (4) stokes of the cane. Aggrieved by both the conviction and sentence, the appellant knocked on the door of this court armed with seven (7) grounds of appeal. However, for the reasons that will be made apparent, the grounds will not be reproduced. At the hearing of this appeal, the appellant was unrepresented, while the respondent/Republic was represented by Elias Subi, learned Stated Attorney. After the parties had made submissions for and against the appeal, the matter was scheduled for judgment on 11/12/2024. However, while composing the judgment and after a careful perusal of the charge upon which the appellant was convicted and sentenced, I re-opened the proceedings and invited the parties to address me on the propriety of the charge, which unfortunately, had escaped the scrutiny of the trial court. Ms. Agness Lwimike, learned State Attorney conceded that the appellant was charged under section 131A (1) and (2) of the Pena Code, [Cap 16 R.E 2019] 2 without citing any of the provisions under section 130 (1) (2) (a) to (e) of the Penal Code which provide for specific offences of rape. However, she argued that the omission was curable under section 388 (1) of the Criminal Procedure Act, [Cap.20 R.E 2022] as the particulars of the charge were very clear and enabled the appellant to fully understand the nature and seriousness of the offence for which he was being tried. Having heard both sides, the key issue for determination is whether the charge sheet was defective, and if so, whether the defects are fatal and incurable. It is the settled position of the law that a charge is a cornerstone and a foundation of any criminal trial. This position was articulated in several Court of Appeal including Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) Tanzlii where the Court had this to say; “We presuppose, it is an elementary knowledge of criminal justice that, the cornerstone of any criminal trial is the charge sheet. The charge sheet is a heart, brain, and blood of criminal justice and fair trial. It plays a duo role of informing the accused person on the nature of his accusation and allow him 3 to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its jurisdiction and preparing the proper procedure to be applied during the trial. Therefore, the charge sheet is the most important document in any criminal trial” In our jurisdiction, sections 132 and 135 of the Criminal Procedure Act, [ Cap 20 R.E 2022] regulate the framing of charge sheets. The sections provide; "132. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged." "135 (a) (ii) the statement of the offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and, if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence." 4 In Robert s/o Madololyo & Another vs Republic (Consolidated Criminal Appeals 46 of 2019) [2020] TZCA 1909 (17 December 2020) Tanzlii, the Court of Appeal instructively held that: “The emphasis in section 132 of the CPA is that it provides for a requirement for the offence with which the accused is charged to be specified in the charge or information together with such particulars as may be necessary for providing reasonable information regarding the nature of the offence (See also Mussa Mwaikunda v. Republic [2006] TLR 387). In relation to section 135(2) (ii) of the CPA, the emphasis is that the charge must contain the essential elements of the offence and the specific section of the enactment of the law creating the offence. These requirements are vital to enable the accused person to understand the nature of the offence he is facing and thereby prepare his defence (See Mohamed Koningo v. Republic, [1980] TLR 279) and Isidori Patrice v. Republic, Criminal Appeal No. 224 of 2007 (unreported)” As per the above authority, it is clear and settled that a State Attorney or prosecutor drafting a charge sheet must follow this guidance. Otherwise, the charge sheet shall be fatally defective, and if the trial proceeds to finality without any amendment being made to it to cure the defect, the 5 proceedings, conviction, and sentence thereto shall correspondingly become incurably defective. Furthermore, in the case of Robert Madololyo & Another vs Republic (Supra), the Court of Appeal further discussed whether the charge of Gang rape can be predicated under section 131A of the Penal Code, which provides; “131A.-(1) Where the offence of rape is committed by one or more persons in a group of persons, each person in the group committing or abetting the commission of the offence is deemed to have committed gang rape. (2) Subject to provision of subsection (3), every person who is convicted to gang rape shall be sentenced to imprisonment for life, regardless of the actual role he played in the rape. (3) Where the commission or abetting the commission of a gang rape involves a person of or under the age of eighteen years the court shall, in lieu of sentence of imprisonment, impose a sentence of corporal punishment based on the actual role he played in the rape”. The Court held that; 6 “ Our understanding from the above provisions of the law is that it specifically describes gang rape which is a more serious type of the offence of rape and together with its punishment. As it is, it explains the circumstances under which an offence of rape can be categorized to be gang rape. As such offence of rape cannot stand on its own under this provision without citing any of the provisions under section 130 (1) (2) (a) to (e) of the Penal Code which specifically provide for specific offences of rape. In this regard, it is our considered view that in the circumstances of this case, the charge against the appellants ought to have not only predicated under section 131A of the Penal Code but also under section 130 (2) (a) of the same Code" The court further stated; "That said and done, it is our considered view that, the omission to cite any of the provisions under section 130 (2) of the Penal Code in the charge rendered it to be fatally defective which defect cannot be cured under section 388 of the CPA. It is now a settled law that a defective charge leads to an unfair trial for the accused. (See also Mussa Mwaikunda (supra); Mohamed Koningo (supra); Isidori Patrice (supra); and Abdallah Ally v. Republic, Criminal Appeal No. 253 of 2013 (unreported). In fact, in the latter case to which we subscribe, the Court went a step further and stated as follows: - 7 "Being found guilty on a defective charge based on a wrong or non-existent provision of the law is evident that the appellant did not receive a fair trial. The wrong and/or non-citation of the appropriate provisions of the Penal Code under which the charge was preferred left the appellant unaware that he was facing a severe charge of rape" Generally, Section 131A of the Penal Code defines and creates the punishment for gang rape. It does not, however, create an independent offence of gang rape. Gang rape is simply an aggravated form of rape that cannot be charged on its own without citing any of the provisions under section 130 (1), (2) (a) to (e) of the Penal Code, which creates the offences of rape. Under the doctrine of stare decisis or precedent, the decision of the Court of Appeal, as the apex Court of the land prevails as the correct interpretation of the law, unless the Court departs from it or a relevant Statute is amended. See Christina Naftali Kigahe vs Republic (Criminal Appeal No. 58 of 2015) [2015] TZCA 271 (4 May 2015) Tanzlii. I am aware of the case of Jamali Ally @ Salum vs Republic (Criminal Appeal 52 of 2017) [2019] TZCA 32 where it was held that; 8 " Where particulars of the offence are clear and enabled the appellant to fully understand the nature and seriousness of the offence for which he was being tried, where the particulars of the offence gave the appellant sufficient notice about the date when offence was committed, the village where the offence was committed, the nature of the offence, the name of the victim and her age and where there is evidence at the trial which is recorded giving a detailed account on how the appellant committed the offence charged and thus any irregularities over non-citations and citations of inapplicable provisions in the statement of offence are curable under Section 388 (1) of the Criminal Procedure Act, Cap 20 Revised Edition 2002 (the CPA)” Similarly, in the case of Joakim Mwasakasanga vs Daniel Kamali & Others (Criminal Appeal No. 412 of 2020) [2023] TZCA 55 (24 February 2023) Tanzlii, the Court stressed that: “Normally, it is the accused who would raise the complaint of a defect in the charge, be it during trial or on appeal. Courts have dealt with such complaints in two ways depending on the circumstances of each case. One, by sustaining the complaint where they take the view that the accused will be prejudiced by the defect. See the case of Antidius Augustine v. Republic, Criminal Appeal No. 89 of 2017 (unreported). The other way is by treating 9 the defect as curable and inconsequential where they are satisfied that it does not occasion a miscarriage of justice or prejudice the accused. The latter is a more contemporary position of the law but always depends on the circumstances. See the case of Abubakari Msafiri v. Republic, Criminal Appeal No. 378 of 2017 (unreported)” However, the case of Robert Madololyo & Another vs Republic (Supra) directly deals with the charge of Gang Rape, therefore it is more relevant to the matter at hand. Since Gang rape was alleged to have been committed against a 14 years old girl, it was incumbent for the charge sheet to specifically cite sections 130(1) and (2)(e) of the Penal Code, which carters for similar offences. Unfortunately, these provisions were not cited, and no amendment was made as required under section 234 (1) of the CPA. Guided by the decision of the Court of Appeal in Robert Madololyo & Another vs Republic (Supra), it is evident that the charge was fatally defective, and the proceedings before the trial court were nullity for being predicated on a fatally defective charge sheet. See also Ngolo Mgagaja v. The Republic (DC Criminal Appeal No. 73 of 2021) [2023] TZHC 17533 (22 10 May 2023) Tanzlii, and Ernest Johannes and Another versus Republic, (Criminal Appeal No.117 of 2017) [2020] TZHC4035 (25 July 2019) Tanzlii. Even, assuming that the charge was proper, the evidence of identification adduced before the trial court was not watertight to sustain the conviction of the appellant. In the upshot, I allow the appeal, quash the proceedings of the trial court, set aside the conviction and sentence thereof, and order the immediate release of the appellant unless held for other lawful cause. Dated at Bukoba this 13th day of December 2024 E.L. Ngigwana Judge 13/12/2024 Delivered this 13th day of December 2024 in the presence of the appellant, Ms. Lwimike, learned State Attorney for the Republic, Hon. A. A. Madulu- JLA, and Ms. Florentina Bitamale, B/C. 11 E.L. Ngigwana Judge 13/12/2024 12