JUDGEMENT GEORGE KASSIM NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA CRIMINAL APPEAL CASE NO. 26429 OF 2024 (Original from Criminal Case No. 0003130 of 2024 of Iramba District Court at Kiomboi) BETWEEN GEORGE KASSIM JUMA...............................................................APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT JUDGEMENT 30/ 12/2024 & 08 / 01/2025 MANYANDA, J.: George Kassim Juma, hereafter referred to as "the Appellant" is appealing against both conviction of the offence of house breaking with intent to commit an offence therein; and sentence of seven (7) years imprisonment meted on him by Iramba District Court, hereafter referred to as "the trial court". He was tried with two counts of offences, the first count was house breaking with intent to commit an offence, contrary to Section 294(1) of the Penal Code, [Cap. 16 R. E. 2022]. In the second count, he was charged with the offence was theft, contrary to Sections 258(1) and 265 of the Penal Code, [Cap. 16 R. E. 2022]. After full trial the Appellant was convicted with an offence of house breaking with intent to commit an offence Page 1 of 25 contrary to Section 294(1) of the Penal Code, [Cap. 16 R. E. 2022], and set free for the offence of Theft Contrary to sections 258(1) and 265 of the Penal Code [Cap. 16 R. E. 2022] wherefore, he was sentenced to serve Seven (7) years imprisonment. It was alleged in the particulars of offence in the first count that on 04th day of February 2024 during day time at Kiomboi Village within Iramba District in Singida Region, willfully and unlawfully did break and enter into a house of one Julius s/o Sangulo with the intent to commit an offence of theft therein. The particulars of the offence in the second count were that on 4th February 2024 at day time hours at Kiomboi Village within Iramba District in Singida Region, willfully and unlawfully did steal one phone valued at Tshs. 45,000/=, one bed sheet, and cash money Tshs. 511,000/= which makes a total value of Tshs. 556,000/=, the property of the Julius s/o Sangulo. He denied all the allegations. The prosecution summoned a total of six (6) witnesses and tendered two exhibits, the caution statement, Exhibite PE1 and certificate of search and seizure, Exhibit PE2. It was evidence of PW1 namely, Julius Sangulo, the Page 2 of 25 owner of the house, that on Sunday dated 4/2/2024 at 8:30 ante meridiem, all members of his family went to a church. Thereafter, PW1 in company of PW2, Charles Alfred Msike while going to their shop upon arriving at the bus the stand, PW1 remembered that he had forgotten the key of the shop in their house, hence, he sent PW2 to follow it. Upon reaching at their house, PW2 suspected that there was a person inside, hence, he opted to call PW1 on phone. Upon receiving the call, PW1 with his family moved quickly back to their home. On arriving thereat, PW1 called PW3 namely, Ramadhani Athumani Massanja, a ten-cell leader who came at the scene of crime immediately along with PW4, Enock Solomon Zephania and other people. When inside PW1's house, these witnesses eye witnessed the Appellant dropping down from the ceiling. People threatened to belabour him before PW3 preventing them from harming him. Upon PW1 searching his house found that his phone value at Tshs. 45,000/=, one bed sheet and cash money Tshs. 511,000/=, all valued at Tshs. 556,000/= were stolen. His wife informed the police about the incident where PW5 F.8360 Sgt Manyonyi and other police officers responded. They found the appellant under arrest; they took him to Kiomboi Police Station for interrogation. PW4 recorded the Appellant's statement under caution, Page 3 of 25 Exhibited PE1, in which he is alleged to admitted that he was found in the house of the complainant without any permit. In his defence, the Appellant, being supported by DW2, Juliana Omary and DW3, Athumani Haruna Timwas denied all the allegations contending that PW1 and his wife fabricated the case against him due to squabbles between them. It was also Appellant's evidence that he is related to PW1, as he is married to appellant's young grand-mother, hence, he used to call PWl's wife as "Bibi Mdogo" and resided with them until reaching Form III, in 2013 when he left them ceasing to assist PWl's wife in her decoration business. Appellant's act of leaving them led their relation to deteriorate. He also defended that there was no evidence showing any stolen item, a pink- coloured bed sheet which he was found with inside the house was given to him by PW1 during the time he used to reside with them. He denied breaking the house as he was not found in possession of any breaking instrument. He testified further that on Saturday, a day before the fateful day, was invited by PWl's wife, to go at their house. He went there on the next day, which was Sunday, whereas upon arriving at the Page 4 of 25 house, he knocked and got invited in by PW2, Charles Msike. That, after entering inside, suddenly the said Msike went outside leaving him inside and closed the door from outside. When outside, PW2, raised an alarm by screaming that there was a thug in their house. People who responded to the alarm carried with them various weapons such as pangas and sticks; they opened the door and put the Appellant under arrest; they were very angry and wanted to harm him. However, they cooled down upon finding the Appellant that was well known to them as he used to live there. He insisted that he did not steal anything as he was innocent. The trial court, as explained above, after evaluation of the evidence, believed the prosecution's evidence and disbelieved the Appellant's story. It convicted him with the offence of house breaking and sentenced him to serve seven years imprisonment, but acquitted him of stealing. He is aggrieved by that decision hence, the instant appeal armed with four grounds namely: - 1. The trial courtgrossly erred in law and facts for believing and treating the prosecution testimonies to have established offence under count 1, while in fact it was full o f doubts; 2. The trial court erred in law and fact to rely on purported caution statement to convict the accusedperson while in fact the same contains a lot o f illegalities and the same was not Page 5 of 25 corroborated by prosecution's evidence, to warrant accused conviction; 3. The trial Court grossly erred in law and fact for allowing amendment o f count number one (1) without affording accusedperson, right to plead to a new substituted[charge] section and relatedparticulars o f offence; and 4. The trial court erred in law and fact by concurring with prosecution testimonies and entering conviction based on a defective charge. When this appeal was called on to hearing orally both parties were physically present in court. The appellant was unrepresented while the Respondent was represented by Mr. Daniel Lyatuu and Ms. Mwilongo Tenge, learned State Attorneys. The Appellant, argued in support of the appeal by adopting his grounds of appeal. He added that PW6, the case investigator, testified in court that the Appellant signed a seizure certificate of the stolen items at police instead of at the crime scene. The Appellant also added that parties did not sign the undisputed facts at the preliminary hearing. Then, he prayed this Court to allow his appeal with a view to quashing the decision and set aside the sentence. Page 6 of 25 In reply, Mr. Lyatuu, the State Attorney, argued together grounds three and four. The complaint in these grounds was about trial procedure that the Appellant was not called on to plead to a new substituted charge after testimonies of four prosecution witnesses. The State Attorney conceded that at pages 16-17 of the proceedings it is clear that the charge was substituted, but the Appellant was not called on to plead to the new charge. However, he quickly pointed out that the Appellant was not prejudiced because the changes were minor. According to him, the first count of house breaking in the old charge was preferred under section 296(1) of the Penal Code, while in the new charge was premised under section 294(1) of the same law. That the particulars of offence remained the same that is on 04th day of February 2024 during day time at Kiomboi Village within Iramba District in Singida Region, willfully and unlawfully did break and enter into the house of one Julius s/o Sangulo with the intent to commit an offence of theft therein. He was of the view that the anomaly is curable under section 388 of the Criminal Procedure Act, [Cap. 20 R. E. 2022]. The Sate Attorney did not cite any case authority to bolster his argument. Page 7 of 25 As regard to ground two, that the cautioned statement was defective and not corroborated. The State Attorney countered this argument submitting that the said statement has no any legal defect at all which could render it inadmissible in evidence. He submitted further that even if the same is held defective, therefore inadmissible, hence expunged, still there is remaining strong evidence to support the conviction. He referred to such evidence as coming from the testimonies of PW1, PW2 and PW3 who found the Appellant infrante delicto. The State Attorney also conceded on the complaint in the additional grounds of appeal that the Appellant did not sign the undisputed facts. However, he pointed that the said undisputed facts concern Appellant's personal particulars and the facts that he was arrested and charged in a court of law. He was of the view that expunging those facts do not affect the prosecution’s evidence, because evidence proving the same facts was adduced during the trial. As regard to the Appellant's complaint concerning PW6 testimony that the Appellant signed a seizure certificate of stolen items at police not at crime scene, the State Attorney pointed out that the trial court did not find Page 8 of 25 guiltiness nor convict the Appellant of theft where such evidence could be important. The State Attorney winded up his submissions by submitting that the prosecution's case was proved to the required standard of proving beyond all reasonable doubts. He summarized the evidence that the evidence is clear and coherent. That witnesses PW1, PW2 and PW3 all testified in court on how they found read handed the appellant in PW1's house. He was found with a bunch of spare keys which went missing long while the Appellant was still living in PWl's house. He was found inside the house after he opened the same using the spare keys he had and broke one inside door. Then, he was found in the ceiling hiding. That on the second day while on police bail, the Appellant went to apologized to PW1. The State Attorney similarly made reference to the defence evidence that though he denied breaking the house alleging that he was invited by PWl's wife a day before and when he went there, found a person Charles Msike, who locked him in after entering. The State Attorney argued that failure by the Appellant to summon the alleged Charles Msike, negates his defence. He prayed the appeal be dismissed in its entirety. Page 9 of 25 In rejoinder, the Appellant simply reiterated his ground of appeal be adopted as it was in the memorandum of appeal. I have painstakingly gone through the grounds of appeal thoroughly, the submissions of both parties and the record generally and found the main issue is whether the appeal is meritorious. I will start with the complaint on the trial procedure because it concerns a legal point. It is trite law that where a court is seized with a legal issue, it becomes obliged to dispose it first before proceeding to other factual issues. See the case of Shahida Abdul Hassanali vs. Mahed M.G. Karji, Civil Application No. 42 of 1999 (CAT). In grounds three and four of appeal the complaint is about violation of trial procedures after substitution of the charge in the first count of house breaking with intent to commit an offence. That, the Appellant was not given right to plead to the new charge. The original charge to which the Appellant pleaded not guilty, was registered on 7/2/2024. It was replaced with a new one registered on 9/05/2024. The first charge states the offence of house breaking to be under section 296 of the Penal Code. The second charge says the same offence is under section 294(1) of the same law. Page 10 of 25 As stated above, on 09/05/2024, after testimonies of four prosecution witnesses, the charge was substituted, unfortunately, the record is not indicative whether the Appellant was availed with a chance to plead or that the right of recalling of witness was explained to him. The procedure to be followed in amendments, altering or substitution of charges is provided under section 234 of the CPA, which reads as follows: - "234(1) Where, at any stage o f a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this subsection shall be made upon such terms as the court shall seem just. (2) Subject to subsection (1), where a charge is altered under that subsection- (a) the court shall thereupon call upon the accused person to plead to the altered charge; "(b) the accused person may demand that the witnesses or any o f them be recalled and give their evidence afresh or be further cross examined by the accused person or his advocate and, in such last mentioned Page 11 of 25 event, the prosecution shall have the right to re-examine any such witness on matters arising out o f such further cross­ examination;"(emphasis added) The words "at any stage of trial" were interpreted in the case of Jaston Masengula vs. Republic [1977] LRT n. 32 to mean at any stage from the arraignment up to and excluding judgement. It follows therefore a charge is a document which the law allows it to be amended from time to time before delivery of a judgement where it is discovered that it is defective in either substance or form. However, that freedom is not without consequential conditions which include, among others, calling upon the accused person to plead to the amended or substituted charge and been told of his right to recall witnesses already testified, although the decision on exercise of that right is discretion of the trial magistrate or judge. The requirement of calling upon the accused to plead to the amended or substituted charge is mandatory as was stated by his Lordship Sir Philip Biron, J., in the case of Republic vs. Salehe Ruhuna, [1973] LRT n. 83, at page 369, that: - Page 12 of 25 "Further, the first proviso expressly states 'where a charge is altered as aforesaid, the court shall thereupon call upon the accused to plead to the altered charge.' That is mandatory. And there is further proviso that the accused may demand the recall o f any witness who has given evidence, which he could hardly do after the completion o f trial." The word "shall' used in the first proviso makes the requirement of calling upon the accused to plead to the altered or substituted charge mandatory. Regarding the right of the accused to recall already testified witnesses in the second proviso, though uses a word "may" yet this provision was interpreted by this Court to mean mandatory too. In the case of ASP John Crysostom vs. Republic [1978] LRT n. 54, regarding requirement of informing the accused of his right to recall already testified witnesses, his Lordship Sisya, J., stated at page 272 as follows: - "However the case in which it has been held that the omission to inform the accused o f their right to recall those witnesses who had already testified at the time o f substitution or amendment o f the charge nullifies the conviction are legion, and the law is also clear and this [principle] was applied in a recent case o f Ramadhani Mwinyisheshe and Abel Page 13 of 25 Kasegera vs. Republic, Criminal Appeal No. 48 o f 1976 (Dar es Salaam Registry (unreported) in which my learned brother Samatta, Ag. J , found that although the evidence against the appellants was 'fairly incriminating 'the omission by the trial court to advise the appellant o f their right under the second proviso to section 209(1) o f the Criminal Procedure Code was fatal to the convictions (See also Anand v. Rf [1951] 24(2) KLR119)" Although in those cases this Court was interpreting provisions of section 209(1) of the Criminal Procedure Code, provisions with the same wording were re-enacted under section 234(1) of the Criminal Procedure Act, Cap. 20 R. E. 2022] which is currently in force. The rationale for mandatory requirement under the provisions in discussion here is as stated in Salehe Ruhuna's case that is it is because an amended or substituted charge assumes the character of a fresh or new charge whose contents must be made known to the accused so that he can re-organize his defence accordingly, or even change his original plea. In other words, the provisions of section 228(1) of the CPA comes into play. The Court of Appeal of Tanzania has taken the same stance on the position of the law discussed above as evidenced in the cases of Aidan Page 14 of 25 Mhuwa @ Joseph and Another vs. Republic, [2014 TLR 1, DPP vs. Danford Roman @ Kanani [2019]1 TLR 218 and Godfrey Isidory Nyasio, [2020] TLR 334, to mention a few. In the latter case the Court of Appeal of Tanzania stated at page 341 as follows: - ”As stated earlier, in the current case, although the charge was substituted twice, it is not known as to who among the three accused was required to plead to it. We agree with Ms. Massue that the mandatory provisions o f section 228(1) o f the CPA were not complied with. This defect is fatal and it renders the subsequent proceedings in the trial and the first appellate courts a nullity as the Court stated in Thuway Akonaay vs. R. [1987] TLR 92 that - 'It is mandatory for a plea to a new or altered charge to be taken from an accused person, as otherwise the trial becomes a nullity.' Therefore, it is our settled position that the trial was nullity in the absence o f the Appellant's plea to the substituted charge." Having discussed the position of the law as demonstrated above, let me now have a glance at the appeal in hand. Page 15 of 25 It is evident from the proceedings by the trial court at page 16 that after testimonies of four (4) witnesses, the prosecutors, Insp. Salum and A/Insp. Omary, prayed under section 234 of the CPA to substitute the charge by withdrawing the existing one, which was registered on 07/02/2024 to which the Appellant had pleaded to, with a new one registered on 09/05/2024. The prayer was granted, and the charge was substituted. While the former alleged the offence committed was burglary contrary to section 296 of the Penal Code, the new one bore a new offence of house breaking with intent to commit an offence therein, under section 294(1). The record is silent as to whether that new charge was read over to the accused and called upon to plead, but it shows that the defence counsel objected to amendments else witnesses be recalled, objection which was opposed by the prosecutors. The trial court ruled as follows: - "On submission by both sides in relation to the envisaging quoted (sic) by the prosecution side, I have had in mind that, there cannot be any circumstances o f injustice so long as the prosecution witnesses and testimonies will remain intact. On that bearing, I hereby order for (sic) the remaining witnesses to testify and at last close up (sic) the prosecution case." Page 16 of 25 Thereafter, the trial court went on taking testimony of the fifth and subsequent prosecution and defence witnesses to the end of trial. As it can be seen, the trial court not only that it did not read the new charge, but also it did not call upon the accused to plead to it. Similarly, it did not address him of his right to have the already testified witnesses recalled for fresh testimony or further cross examinations. This defect, based on the authorities adumbrated above, is fatal rendering the proceedings a nullity. Further, I have noted that both charges, that is, the first charge, which was withdrawn and the new one are defective. The first charge cited section 296(1) of the Penal Code which is non-existence because the said section 296 provides for two offences under subsection(a) and (b). It reads as follows: - "296. Any person who- (a) breaks and enters a school house, shop, warehouse, store, workshop, garage, office or counting house, or a building which is adjacent to a dwelling house and occupied with it but is notpart o fit, or any building used as a place o f worship and commits an offence therein; (b) having committed an offence in any building referred to in paragraph (a) breaks out o f the building, is guilty o f Page 17 of 25 an offence and is liable to imprisonment for ten years." (emphasis added) As it can be seen, the provision under discussion bears two offences, one is under subsection (a) which concern with breaking and entering with intent to commit an offence. The second is under subsection (b) which concern with an offence of breaking out after committing an offence. There is no subsection (1) under section 296 of the Penal Code. The first charge was defective for citing a non-existing law. The substituted charge is also defective for want of a specific subsection creating the offence. Section 194(1) of the Penal Code bears two offences; one, under subsection (a) namely, breaking and entering with intent to commit an offence and two, under subsection (b) namely, having committed an offence therein, breaking out. It reads as follows: - "294(1) Any person who- (a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit an offence therein; or (b) having entered any building, tent or vessel used as a human dwelling with intent to commit an offence therein or having committed an offence in the building, tent or vessel, breaks out o f it, is guilty o f housebreaking and is liable to imprisonment for fourteen years." (emphasis added) Page 18 of 25 The charge drafters ought to specify the subsection creating the offence they preferred against the Appellant between subsections (a) and (b). In Robert S/O Madololyo & Masunga Dudu @ Mlekwa v. Republic, Consolidated Criminal Appeals Nos. 46 and 428 of 2019, [2020] TZCA 1909 (17 December 2020), the Court of Appeal of Tanzania insisted on citation of specific provision of the law creating the offence. In that case the charge of gang-rape was charged under section 131A (1) and (2) without specifying the section and sub-sections that created the concerned category of rape, it stated as follows: - "Our understanding from the above provisions o f the law is thatit specifically describesgang rape which is a more serious type o f offence o f rape and together with its punishment as it is, it explains the circumstances under which an offence o f rape can be categorised to be gang rape. As such offence o f gang rape cannot stand on its own under this provision without citing any o f the provisions under section 130 (1)(2)(a) to (e) o f the Penal Code which specifically provide for specific offences o f rape." It cited with approval its earlier decision in the case of Gerold Moris Hugo vs. Republic, Criminal Appeal No. 204 of 2016, [2017] TZCA 246 (10 Page 19 of 25 July 2017), where it stated that a charge sheet in a criminal trial is the foundation of any prosecution facing an accused person, as it provides him with the road map of what to expect from the prosecution witnesses during the trial of his case and held: - "...the second count o f gang rape is incomplete and unsustainable in so far as it omitted to cite any o f the provisions under section 130 (1) (2) (a) to (e) o f the Penal Code, which create several distinct categories o f rape. We hence allow the sixth ground o f appeal." Since in the case at hand, the provisions of section 294 of the Penal Code create two distinct offences under sub-sections (a) and (b) with different ingredients, failure to specify the proper sub-section renders the charge fatally defective. The rationale for specifying in a charge the provisions of sub-sections to section 294 of the Penal Code is to enable the accused know well the type or category and nature of offence of breaking he is facing, thus avail him with adequate knowledge for him to equipe with proper defence. This is what is termed as fair trial in criminal cases. In this case the defective charge prejudiced fair trial rendering the same a nullity. Page 20 of 25 I am supported by the Court of Appeal of Tanzania in the case of Rajabu Khamisi @ Namtweta vs. Republic, Criminal Appeal No. 578 of 2019, [2021] TZCA 236 (8 June 2021) where it stated as follows: - "It is common that charge sheet is the foundation o f criminal proceedings upon which a criminal case is built. On the one hand if the foundation is weak, the whole purpose o f prosecuting criminals is defeated. On the other hand, a suspect who is charged with a defective charge may end up failing to prepare his defence and/or to raise meaningful doubt to the prosecution. As a result, an innocentsuspect may end up being convicted and the opposite is also possible. This is why the prosecution side and the court have obligation to make sure that a charge sheet is properly framed before its admission. Despite this noble obligation, there has been a trend o f admitting defective charge sheets."(emphasis added) Having found that the charge against the accused person before the trial court was fatally defective and that the proceedings is a nullity; I need not to discuss the rest of the grounds, as doing so will amount to nothing but academic exercise and court are not for academic exercises but of determination of controversies in cases. Page 21 of 25 Regarding to the way forward, the dictates of the law would require a re-trial. However, it is trite law that a retrial should only be made when the interests of justice require it and where it is likely not to cause injustice to an accused person. In the case of Maweda Mashauri Majenga @ Simon vs. Republic, Criminal Appeal No. 255 of 2017, [2021] TZCA 382 (18 August 2021) where the Court of Appeal of Tanzania found that the appellant was prejudiced by a fatally defective charge, held as follows: - "Furthermore, the principles for ordering a retrial featured in the case o f Ahamed All Dharamsi Sumar v. Republic (1964) E.A. 481, in which the appellant challenged a retrial order issued by the High Court. The defunct EastAfrica Court o fAppeal held that: - Whether an order for retrial should be made depends on the particular facts and circumstances o f each case but should only be made when the interests o fjustice require it and where it is likely not to cause injustice to an accused.' Being guided by the above decision, we entertain no doubt in our mind that, having been charged under a fatally defective charge, the appellant was prejudiced. This is because, it is Page 22 of 25 as good as there was no charge laid down against him; as we stated so in the case o f Mussa Nuru @ Saguti vs. Republic, Criminal Appeal No.66 o f 2017 [2019] TZCA 16 (25 February 2019) that: - '...since the charge sheet was incurably defective, there is no charge upon which the Court could order a retrial against the appellant.'" See also the cases of Oswald vs. Republic, Criminal Appeal No. 153 of 1994 (unreported), Hassan Jumanne @ Msigwa vs. Republic, Criminal Appeal No. 290 of 2014, [2015] TZCA 119 (1 December 2015) and Sylvester Albogast vs. Republic, Criminal Appeal No. 309 of 2015 [2016] TZCA 238 (14 April 2016). In the latter case the Court of Appeal of Tanzania held that: - "a fatally defective charge cannot commence a lawful trial" In this case alike, if a retrial is ordered, means the same will have to be commenced on a defective charge, which based on the authorities above, cannot commence a lawful trial. In the upshot, for reasons explained above I find this appeal as rich of fruits. Consequently, in exercise of powers endowed on this Court in appeals Page 23 of 25 under the provisions of section 366(1)(a)(i) of the CPA and revisional powers under section 373(1)(a) of the same law, I do hereby allow the appeal, quash the proceedings, the resultant judgement and the conviction. I do hereby also set aside the sentence of seven (7) years imprisonment. The Appellant be released from prison forthwith, unless is withheld on other lawful cause. It is so ordered. Dated at Dodoma this 08th day of January, 2025 F. K. MANYANDA, JUDGE Delivered at Dodoma this 08th day of January, 2025 in the presence of the Appellant, George Kassim Juma and Ms. Faudhiat Mashina, State Attorney, for the Respondent. Appeal allowed, the proceedings and conviction are quashed and the sentence of seven (7) years imprisonment is Page 24 of 25 set aside. The Appellant be released from prison forthwith unless is otherwise withheld for other lawful cause. Right of appeal dully explained. F. K. MANYANDA, JUDGE Page 25 of 25