BARAKA SHINYANGA FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 4207 OF 2025 (Originating from the decision of the District Court of Bukombe in Criminal Case No. 7675 of 2024 before B. J CHITEPO SRM) BARAKA SHINYANGA@ BUCHEYE----------------------- APPELLANT VERSUS THE REPUBLIC------------------------------------------ RESPONDENT JUDGMENT Date of last order: 04 March 2025 Date of Judgment: 05 March 2025 K. D. MHINA, J. At the District Court of Bukombe, the appellant BARAKA SHINYANGA@ BUCHEYE was sentenced to a jail term of twenty years (20) after he was found guilty of Grave Sexual abuse contrary to section 138C (1)(a) and (2)(b) of the Penal Code Cap.16 [RE 2022]. In the charge, it was particularized that the appellant, on 16 February 2024, at Katente Ward within Bukombe District in Geita Region, for sexual gratification did caress the breast of girl child 17 years old, who, for purposes 1 of concealing her identity will be referred to, in this judgment, as the victim. The magistrate who heard the trial was satisfied that the prosecution proved the offence against the appellant beyond doubt. Undaunted, the appellant filed this appeal with nine grounds, which can be paraphrased as follows: - i. The important witness, a driver who saw her touching the breast of the victim, was not summoned as a witness. ii. The case was cooked, and he did not state what was written in the cautioned statement. Further, while the offence was alleged to be committed on 16 February 2024, the cautioned statement was recorded on 27 February 2024. iii. There was no proof that the victim was a secondary school student. iv. Nowhere in the prosecution's case was it stated that he was arrested for the offence charged. v. The trial court violated section 146(2) of the Tanzania Evidence Act. vi. The victim's evidence (PW1) was not corroborated and assessed for credibility. vii. The trial court erred by not considering his defence. viii. The trial court failed to comply with section 312 (2) of the Criminal Procedure Act. 2 ix. The trial Court erred in law by upholding the conviction and sentence despite the charge being not proved against the appellant to the standard required by law. At the hearing, the appellant appeared himself/ unrepresented, while the respondent/ republic had the services of Ms. Concesa Desdery, learned State Attorney. On behalf of the Republic, Ms. Desdery began his submissions by raising a point of law, conceding the appeal and faulting the proceedings and judgment of the trial court. She raised a point of law regarding the jurisdiction of the trial court and elaborated that, as per the proceedings when the preliminary hearing was conducted, the appellant disputed the age of 19 years contained in the charge sheet and alleged that he was 17 years. Therefore, the trial court was supposed to conduct an inquiry to ascertain the age of the appellant before proceeding with the hearing of the case. However, no inquiry was conducted. Further, during the defence hearing, the appellant maintained that he 3 was 17 years old. That issue was not objected to and cross-examined by the prosecution. Thus, it was taken to have been admitted by the prosecution. She substantiated her submission by citing Amos Jackson vs. Republic, Criminal Appeal No. 439 of 2018 [Tanzlii], where the Court of Appeal held that failure to cross-examine leads to the admission of the evidence. She further elaborated that when the appellant was cross-examined by the Court, he stated that he was born on 10 April 2007. That fact was not challenged or cross-examined by the prosecution. It was at that stage that the trial court ordered an inquiry to be conducted by the social welfare officer to ascertain the appellant's age. On this, Ms. Desdery submitted that in law, parents, medical doctors and social welfare officers may prove the age of the child as per the case of Omary Rashid @Milanzi vs. Republic, Criminal Appeal No. 298 of 2021 (Tanzlii) at page 11. Elaborating further, she stated that if the trial court had evaluated the age of the appellant properly, it was required to order the matter to be tried by the juvenile court as per the directives of under per Rules 20 and 21 of 4 the Law of the Child (Juvenile Court Procedure Rules) 2016 and sections 97 and 98 of the Law of the Child Act, Cap 13 R: E 2019. On the way forward, Ms. Desdery invited this court to quash the trial court's proceedings and judgment and set aside the sentence. She stated there was no need to refer to the juvenile court for a retrial because that would be double jeopardy because the appellant had already served seven (7) months of his imprisonment. The learned State Attorney also took me through the evidence presented at the trial. She stated that the incident allegedly happened on 16 February 2024 and was reported on the same date at Bukombe Police Station. The appellant was arrested on the same date at 21:00 hours. However, his cautioned statement was recorded by PW4 on 27 February 2024. Therefore, it was recorded beyond the described basic four (4) hours and thus offended section 50 (1) of the CPA. Another issue she raised was the absence of testimony from the key witness, the driver who allegedly witnessed the offence. She explained that the driver was not summoned to testify as a witness. Therefore, this Court may draw an adverse inference for failure to call a key witness. She 5 bolstered her submission by citing Justus Evarist vs. Republic, Criminal Appeal No. 242 of 2021 (Tanzlii), where it was held that the prosecution has a prima facie duty to call all material witnesses who formed their connection with the trial in question and can testify on all material facts. The court may draw an adverse inference to the prosecution if such a witness is not called without sufficient reason. She concluded this issue by submitting that failure to call the driver as a witness weakened the prosecution’s case in proving the offence beyond a reasonable doubt. Lastly, Ms. Desdery submitted that the trial court did not consider the appellant’s defence, and failure means a misapprehension of evidence as it was held in Saidi Peter@Ndila @Said Ramadhani vs. Republic, Criminal Appeal No 490 of 2020 (Tanzlii). On his side, the appellant had nothing to submit. I have carefully considered the submission by the Republic. The main issues for consideration were whether the age of the appellant was resolved in accordance with the law and whether the trial Court had jurisdiction to try 6 the appellant. The procedure of ascertaining the age of the offender, in case of dispute, is well articulated by the Court in Athanas Mbilinyi vs. Republic, Criminal Appeal No. 275 of 2020 (Tanzlii). However, first, it is important to know who a child is. According to section 4 (1) of the Law of the Child Act, Cap 13 (“the LCA”), the child is defined as; “A person below the age of eighteen years shall be known as a child”. The law as provided under Rule 12 (1) of the Law of the Child (Juvenile Court Procedure) Rules, 2016, (“for this judgment shall be referred to as “the Rukes 2016”0 reads that "12 (1) Where a person appearing before the court claims to be a child, and that claim is in dispute, the court shall cause an inquiry to be made into the child's age under section 113 of the Act. This is a foundation for dealing with the disputes regarding the age of the offenders when claiming that they are children. 7 In the cited case of Athanas Mbilinyi (Supra), the Court of Appeal reproduced sections 113 and 114 of the LCA in relation to the procedure of conducting such an inquiry. For this appeal, I will reproduce section 113 (1) – (5) of the LCA. "113. - (1) Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due inquiry as to the age of that person. (2) The court shall take such evidence at the hearing of the case, which may include medical evidence and/or DNA test as is necessary to provide proof of birth, whether it is of a documentary nature or otherwise as it appears to the court to be worthy of belief. (3) A certificate purporting to be signed by a medical practitioner registered or licensed under the provisions of the law governing medical practice in Tanzania as to the age of a child shall be sufficient evidence and shall be receivable by a court without proof of signature unless the court orders otherwise. (4) An order or judgment of the court shall not be invalidated 8 by any subsequent proof that the age of that person has not been correctly stated to the court, and the age so brought before it shall, for the purposes of this section, be deemed to be the true age of that person. (5) Medical evidence and or collection of blood for the purpose of DNA from the child shall be conducted in the presence of a social welfare officer From above, the following can be gleaned: One, evidence must be obtained when hearing an inquiry to ascertain the age. Two, the evidence may include any evidence worthy to be believed by the Court. Three, the evidence may consist of medical evidence and or DNA if necessary. Fourth, the evidence may be documentary or otherwise. Apart from the LCA, Rule 12 (2) of the Law of Rules 2016 also provides the vital evidence needed to ascertain the age of the child. It reads (2) The court may, in making inquiries, under sub-rule (1), rely upon: (a) the child’s birth certificate; 9 (b) such medical evidence as is necessary to provide proof of birth, whether it is of a documentary nature or otherwise; (c) information from any primary school attended by the child as to the child’s date of birth; (d) any primary school leaving certificate or its equivalent certificates; and (e) any other relevant, credible information or document. The provisions of the law cited above were cemented by the Court of Appeal in the cited case of Athanas Mbilinyi (Supra). It was held that “….an inquiry to establish the same through any of the following; medical evidence, DNA test, Birth Certificate and if failed to do so, the law required her to consider the age stated by the appellant, his parent, guardian, relative or social welfare officer as the correct age of the appellant”. At the end of an inquiry, the court conducting it must make a finding on the age of the offender. This is important as it determines in which court the offender is supposed to be tried. In the event the court fails to establish the offender’s age, then section 114 (2) of the LCA comes into play. That section reads; 10 (2) “Without prejudice to the preceding provisions of this section, where the court has failed to establish the correct age of the person brought before it, then the age stated by that person's parent, guardian, relative or social welfare officer shall be deemed to be the correct age of that person." In the instant appeal, the issue of age, as rightly submitted by Ms. Desdery, was raised during the preliminary hearing; however, the trial court did not conduct any inquiry and proceeded with the hearing of the prosecution case. Thereafter, during the defence hearing on 22 July 2024, that issue arose again after the appellant stated that he was 17 years old. The trial Court asked him when he was born; he stated that he was born on 10 April 2007. Then, the trial court ordered the social welfare officer to conduct an inquiry and submit a report before the judgment. The trial record indicated that the social welfare officer submitted the report on 30 July 2024. In that report, it was written that the appellant was 17 years old, based on the information gathered from the appellant’s mother. However, the records are silent and do not reveal if there was any finding of the court after 11 receiving that report. Instead, on 23 August 2024, the trial court delivered its judgment, convicted the appellant and sentenced him to 20 years in jail. Further, the findings of the social welfare report (regardless of whether the inquiry was conducted within the meaning and procedure under the LCA) did not feature in the judgment. From above, it is clear that despite the dispute of the appellant or whether he was a juvenile or an adult, the trial court did not conduct an inquiry to ascertain his age. Therefore, in the absence of an inquiry, the trial court should have placed reliance on the 17 years as testified by the appellant. This is also a position in a cited case of Athanas Mbilinyi (Supra). The remedy of failure to ascertain the age of the offender it occasioned miscarriage of justice on the part of the appellant. This is because if it had been proven that the appellant was a child, it would have ousted the trial court's jurisdiction, and in terms of section 98 (1) (a) of the LCA, he would have been charged at the Juvenile Court. 12 In Furaha Johnson vs. Republic, Criminal Appeal No. 452 of 2015 (Tanzlii), in a similar situation to the instant appeal, the Court of Appeal held that; “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 by 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. As a way forward, I agree with what the learned State Attorney submitted. The order to refer the case to the juvenile court for the appellant to be re-tried is inappropriate. It will be a double jeopardy. The appellant has already served seven (7) months in prison for an unlawful sentence. Therefore, if the case was to be referred to the juvenile court and the appellant found guilty and sentenced again, that means the appellant will be punished twice for the same 13 offence. This is prohibited by the Penal Code, Cap 16 R: E 2022, in which section 21 states that; “21. A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence”. Thus, I find merit in this appeal, but based on the first issue raised by Ms. Desdery, a point of law which touches the jurisdiction of the Court. Further, I will not determine the remaining issues because they will not change the outcome of the decision, and the first issue is decisive in this appeal. Consequently, I nullify the trial court’s proceedings and set aside the conviction and sentence imposed on the appellant. Further, I order the appellant's immediate release from prison unless he is otherwise lawfully held. It is so ordered. 14 K. D. MHINA JUDGE 05/03/2025 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 05/03/2025 15