Saidi and 4 others vs Republic unnatural offencefinal final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 104 OF 2025 (Arising from the Judgment of the District Court of Shinyanga at Shinyanga before Hon Y. Zahoro SRM, dated on 3rd December 2023 in Criminal Case No.922 of 2024) SAID MSAFIRI ABDALLAH@STOPER….….............1ST APPELLANT NATHANIA SIMON@MSANDA...............................2ND APPELLANT MASUMBUKO OMARY JUMAPILI…………………….3RD APPELLANT SAMWEL ALEX ROBERT @SAMU……………………..4TH APPELLANT VERSUS THE REPUBLIC……………..…………..…………………..RESPONDENT JUDGMENT 13th February & 12th March, 2025 MASSAM, J: The appellants herein above were arraigned and charged before the District Court of Shinyanga at Shinyanga with two counts one of unnatural offence contrary to Section 154(1)(a) of the Penal Code Cap 16 RE 2022 and second of Armed Robbery C/s 287A of the Penal Code Cap 16 RE 2022. It was alleged that on 10th day December 2023, at East Mbezi area within Shinyanga Municipality and Shinyanga region, the accused persons did have carnal knowledge against the order of nature with a woman aged 39 years old and for the purpose of hiding her identity she 1 will be termed as a victim and steal mobile phone the property of the victim. After the full trial, the appellants were found guilty with both offences charged, convicted and sentenced to life imprisonment in the first count of unnatural offence and thirty years in the second count of armed robbery. Aggrieved therein, the appellants rightly lodged their appeal in this court with 3 grounds as follows; - 1. That, the learned trial court Magistrate erred in law and in fact in convicting and sentencing the appellant relying on weak evidence of the prosecution side which did not prove the case beyond reasonable doubt. 2. That, the learned trial court Magistrate erred in law and in fact in denying the Appellants’ defence that they were minor under the age of 18 years and no plausible reason was given for such denial. 3. That, the learned trial court Magistrate erred in law and in agreeing with the prosecution side evidence that the mobile phone of the victim was found in the 2nd appellant’s pocket upon being searched as SP Club, Lubaga area within 2 Shinyanga Municipality while there was no evidence tendered by prosecution side proving that PW3 (Police Officer) had searched warrant authorizing him to do the said search. During the hearing of this appeal, the same was argued orally and the appellants enjoyed the legal service of Emmanuel Sululu Learned Advocate whilst the respondent was represented by Mr. Goodluck Saguya Learned State Attorney. Mr. Emmanuel Sululu advocate in his submission prayed to argue only the 2nd ground of appeal and abandon the other grounds. In arguing the appellants appeal Mr Sululu submitted that the trial court denied the defence of appellants that they were under age of 18 years and there were no good reasons given by the trial court to deny their defence as the appellants brought some birth certificates to prove their age that they were 17 years, all certificates were brought to the court but prosecution objected the same because the appellants had no capacity to tender the same but also they did not inform the trial court that they had exhibits. Additionally, Mr Sululu said that despite the said objection the same was admitted by the court, but in the judgment the trial court 3 disregarded on the reasons the same was tendered during defence hearing. Moreover, Mr Sululu said that the trial court sentenced the appellant wrongly, because no other proof was brought to counter the age of the appellant. Finally, he prayed the appellants to be left free, or to give punishment according to their age. On his part, Mr. Saguya supported the appellants submission that trial court denied their defence on the issue of age as appellants informed the trial court that they were under age of majority and the trial court was required to conduct inquiry concerning the age of the appellants because age determine the punishment. Again, Mr Saguya prayed this court to nullify the proceedings of the trial court and set aside the punishment given, and order retrial, as the evidence given by the prosecution was strong, though there was this irregularity the right order is re trial and not acquittal. He supported his argument with the case of Athanas Mbilinyi vs Republic, Criminal Appeal No 275/2020 Court of Appeal Iringa, in page no 9-13 in this case the court held that because there were procedural irregularities conducted by the trial court so it ordered re trial. 4 Finally, he prayed this court to see the evidence which was given by the prosecution was strong and order the retrial and not acquittal as prayed by the prosecution side. In the way of rejoinder, Mr. Sululu said that the act of trial court to deny their defence was not right, as no other evidence was brought to counter the appellants age. Additionally, he argued that the evidence adduced by the prosecution side was weak and not strong and by ordering the re trial will give the chance to the respondent to fill the gaps as when there are procedural irregularities the appellants should benefit on it, so he prayed the appellant to be left free. Upon going through the entire records and carefully considered the submission from both sides, it is in view that the appellants are challenging that, their defence of age was not considered. Therefore, the main issue to be determined by this court is to whether there was procedure irregularity on inquiry of age and if their defense was considered by the trial court. It is trite law that where there was a procedural irregularity the court may order acquittal or re trial. Retrial is ordered when there is procedural irregularities but the evidence adduced by prosecution side 5 was strong and no gaps to be filled while acquital is done when there is procedure irregularities and the prosecution evidence is weak and there is possibility of the prosecution side to fill gaps. This postion was emphasised in the case of Fatehali Manji V.R, [1966] EA 343, cited by the case of Kanguza s/o Machemba v. R Criminal Appeal No. 157B OF 2013. The Court of Appeal of East Africa restated the principles upon which court should order retrial. The court observed that: “...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person... ” Having considered the above stated legal stance,I shall now, for convenience purpose, address the ground of appeal in the same manner adopted by the learned advocate. Mr Sululu argued that the trial court denied the defence of appellants that they were under age of 18 years and prayed the 6 appellants to be left free, or to be given punishment according to their age. Likewise, Mr. Saguya supported that defence of appellants regarding age was not considered and the trial court was required to conduct inquiry concerning the age of the appellants because age determine the punishment. I take liberty to reproduce at length what is provided under section 113 and 114 of the Law of Child Act here under; - 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 judgement of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the 7 court and the age found by the court to be the age of the person 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. 114.- (1) Where it appears to the court that any person brought before it is of the age of beyond eighteen years, that person shall, for the purposes of this section, be deemed not to be a child. (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, parent, guardian, relative or social welfare officer shall be deemed to be the correct age of that person. In the current case, no doubt that at beginning the appellant did not raise the defence that they were minor but during the defence hearing raised the same and tendered clinic cards and birth certificate which were admitted by the court as exhibit De 1, De2, De3, De4 and De5, and become part of proceedings . The trial court has duty to make inquiry on genuiness of the certificate and determine whether the appellants were minor or not. Failure to do so. I agree with both counsels that their defence on age was not considered which has implication on punishment to be imposed. 8 I wish to point out that, the life imprisonment sentence meted out to the appellants is tantamount to causing more injustice to them under the circumstance of this case where their age was not established. I therefore agree with Mr Saguya that the proper cause to take in this case is to nullify the lower court proceedings and order for a retrial of the appellants because there was strong evidence adduced by prosecution witness. In a retrial, the trial court must abide by the procedure of establishing the appellants’ age at the time of commission of the offence as it was held in the case of Athanas Mbilinyi vs The Republic, Criminal Appeal No. 275 of 2020. For the reasons stated, I allow the appeal in respect of the second ground, nullify the proceedings of the trial court, quash the conviction and set aside the life imprisonment sentence meted out on the appellants. I order for a retrial of the appellants with immediate effect before another magistrate and subject to an inquiry being made as of the age of the appellants. In the meantime, the appellants shall remain in custody pending retrial in accordance with the law upon of their age at the time of commission of the offence It so ordered. 9 DATED at SHINYANGA this 12th day of March, 2025. R.B. Massam Judge 10