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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000020712 OF 2024 (Arising from the District Court of Serengeti in Criminal Case No. 000012319 of2024) BETWEEN THE REPUBLIC................................................................................. APPELLANT VERSUS NICOLAUS JOSEPH @ MASENTI............................................. 1st RESPONDENT MARIAM WEISIKO @ NYAMHANGA....................................... 2ND RESPONDENT PAULINA MWITA @ KISIRI................................................... 3rd RESPONDENT EYASU LALISHO @ LAJIBO..................................................... 4th RESPONDENT JUDGMENT OF THE COURT 13/03/2025 & 21/03/2025 Kafanabo, J.: This is a judgment in respect of an appeal arising from the District Court of Serengeti (J. Ndira, SRM) in Criminal Case No. 000012319 of 2024 in a decision dated 11th July 2024. The background of the matter is that the 4th Respondent herein was charged with the offence of unlawful presence in Tanzania, contrary to section 45(l)(j) and (2) of the Immigration Act [Cap. 54 R.E. 2016]. In the particulars of the offence it was alleged that Eyasu Lalisho @Lajibo (hereinafter referred to as the 'accused') on the 29th day of April 2024, at Nyansurura village within Serengeti District in Mara region was arrested by i immigration officers within the United Republic of Tanzania without having a valid passport to allow him to enter and stay in Tanzania. The second count was in respect of the 1st, 2nd, and 3rd Respondents. The said Respondents were charged with the offence of hosting illegal immigrants, contrary to section 46(l)(b) of the Immigration Act, [Cap. 54 R.E. 2016]. In the particulars of the offence, it was alleged that the 1st, 2nd' and 3rd Respondents on the 29th day of April 2024, at Nyansurura village within Serengeti District in Mara region, were found hosting an illegal immigrant to wit one Ethiopian, namely Eyasu Laliso@Lajibo. The third count was in respect of the 1st Respondent only. He was charged with transporting prohibited immigrants, contrary to section 46(l)(g) of the Immigration Act [Cap. 54 R.E. 2016]. In the particulars of the offence, it was alleged that the 1st Respondent Nicolaus Joseph @Masenti, on the 28th day of April 2024, at Nyansurura village within Serengeti District in Mara region, did transport a prohibited immigrant within the Republic of Tanzania, an Ethiopian namely Eyasu Laliso ©Lajibo by using a motorcycle with registration No. MC647DEC, make TVS. All the Respondents pleaded guilty to all the charges read over to them jointly and separately. The trial Court thus found them guilty and convicted them accordingly. Further, as regards the 1st count, the 1st Respondent was sentenced to pay a fine of TZS 300,000/= or serve an imprisonment of twelve (12) months. Regarding the 2nd count, the 1st, 2nd, and 3rd Respondents were sentenced to pay a fine of TZS 100,000/= or serve an imprisonment of twelve (12) months. The 4th Respondent was sentenced to 2 pay a fine of TZS 100,000/= or serve an imprisonment of twelve (12) months. Further, a motorcycle with registration No. MC647DEC, make TVS allegedly used by the 1st Respondent to transport the 4th Respondent was confiscated by the government. Following the said sentence the Appellant was dissatisfied and thus appealed to this Court on one ground, stating: " The learned trial Magistrate misdirected himself by sentencing the Respondents contrary to the requirements of the /aid'. At the hearing of the Appeal Mr. Zarubabel Ngowi, a learned State Attorney, entered an appearance for the Appellant and all four Respondents entered an appearance in person, fending for themselves. However, before the commencement of the hearing of the appeal, when the parties were introducing themselves to the Court, it was noted that the 4th Respondent, who was convicted by the trial Court as an illegal immigrant from Ethiopia, was not responsive to the preliminary questions and proceedings. After a brief inquiry, the Court was satisfied that the 4th accused was an Ethiopian who could not understand English or Kiswahili, but he understood the Amharic language, a major one in Ethiopia. Therefore, it was not possible to proceed with the hearing of the appeal. Thus, it ensued that for purposes of ensuring a fair and just hearing of the appeal, the Court ordered the Deputy Registrar of this Court to secure the attendance of an interpreter from Kiswahili language to Amharic language and vice versa, so as to enable the hearing of the appeal to proceed on the scheduled date. 3 Further, upon review of the trial Court proceedings, it was noted that proceedings were conducted without an interpreter, and the proceedings do not indicate if the trial Court satisfied itself that the 4th Respondent was following the proceedings according to law. Additionally, it is clear that even when the charge was read against the accused, in respect of which the proceedings indicated that he pleaded guilty, it is undoubtedly not indistinct that he did not comprehend the language of the Court, and thus section 228 of the Criminal Procedure Act, Cap. 20 R.E.2022 (hereinafter referred to as the 'CPA') was not complied with. Given the circumstances of the matter, the Court directed the parties to, foremost, address the propriety of the trial Court's proceedings which were conducted in a language that the 4th Respondent did not understand and without the interpreter. On the day the appeal was set for hearing Mr. TAMNA MACORO DAFAR attended the hearing as an interpreter from the Kiswahili language to Amharic language and vice-versa. In addressing the decorum of the proceedings of the trial Court, the learned State Attorney submitted that the proceedings of the trial Court were conducted in English and/or Kiswahili and the 4th Appellant pleaded guilty to the charge. However, before this Court, he said that he did not follow the proceedings as he did not understand Kiswahili or English. It was further submitted that the proceedings and judgment of the trial Court were a nullity because the 4th Respondent did not understand the language of the Court. Citing the case of Moses Mayanja Musoke v. Republic Criminal Appeal No. 56 of 2009. It was thus prayed that the Court be pleased to nullify the proceedings of the trial Court and the judgment thereof. 4 It was further argued that since the case was not heard properly, the provisions of section 211 of the Criminal Procedure Act, Cap. 20. R.E. 2022 be invoked and the case be remitted to the trial Court and be heard afresh, considering that the plea of the 4th Appellant was not taken properly. The 1st Respondent had nothing substantive to submit save that he asked about the fate of the fine he paid if the matter is heard afresh. The 2nd Respondent simply wondered how the proceedings were wrongly conducted whilst none of the immigration officers attended. The 3rd Respondent submitted that the case came from Serengeti to the High Court, then if it is returned to Serengeti it will be a disturbance to them. The 4th Respondent submitted that the Court be pleased to help him because he had stayed in remand for a long time. In light of the above submissions of the parties, this Court is called upon to determine the issue of whether the proceedings of the trial Court were conducted properly in the unearthing of the failure of the trial Court to ensure that the conduct of the proceedings was with the aid of the interpreter. This Court deems it appropriate to commence with the guiding provision of the law on what should be done when the accused is arraigned in Court for the first time. The relevant provision is section 228 of the CPA which provides that: "(1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. 5 (2) Where the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary." In this case, the record of the trial Court indicates that the charge was read over to the accused persons who in turn pleaded guilty to the charge, however, as alluded to earlier in this judgment, the 4th Respondent was not following the proceedings of the Court and upon inquiry it was noted that he did not understand Kiswahili or English languages used by the trial Court to conduct the proceedings, but he understood Amharic, a language of the Ethiopian natives. Under the circumstances, it is clear that the substance of the charge purportedly read over to the accused was not understood by the 4th Respondent and thus the provisions of section 228(1)(2) of the CPA were not complied with and the 4th Respondent might have been seriously prejudiced. The importance of using the language that the accused understands or providing the services of an interpreter to enable the accused to follow the proceedings is demonstrated in section 211(1) of the CPA which provides that: "Whenever any evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in open court in a language understood by him." 6 Moreover, the inevitability of ensuring that the accused who does not understand the language of the Court is provided with an interpreter in order to ensure that he understands the proceedings of the Court, has been restated several times by the Court of Appeal in a plethora of authorities. In the case of Lekeni Lokondorotu & Another vs Republic (Criminal Appeal 338 of 2015) [2015] TZCA 39 (15 October 2015) the Court held that: "Failure by the learned trial magistrate to record the reason for providing an interpreter to the 1st appellant at one stage of the proceedings and for not doing so at subsequent stages raises doubt that the said appellant was denied a fair hearing. Section 211 (1) of the CPA provides in mandatory terms that where an accused person does not understand the language of the court, he shall be provided an interpreter.” Also, in the case of Juma Ndodi vs Republic (Criminal Appeal No.588 of 2020) [2023] TZCA 17411 (17 July 2023) the Court observed that: "As observed above, in the case at hand, the committal court did not avail an interpreter to the appellant. It thus denied him the right to know the nature of the charge preferred against him and the substance of the evidence intended to be relied upon by the prosecution. We are ofthe settled mind therefore, that the omission rendered the committal proceedings fatally defective." The Court of Appeal in the above case proceeded to declare the proceedings conducted in a language not understood by the accused nullity. Further, in the case of Dastan Makwaya & Another vs Republic 7 (Criminal Appeal No. 179 of 2017) [2018] TZCA 181 (24 August 2018) the Court held that: "Section 211(1) of the CPA requires that, whenever it appears that an accused person does not understand the language spoken during the proceedings of the case, an accused person should be provided with an interpreter so as to enable him to understand the proceedings of his case. The omission not to comply with the requirements of section 211(1) of the CPA renders the proceedings of the case null and void." Besides, in Makwaya's case (supra), the Court further held that: 7/7 the case ofJoachim Ikechukwu Ike (supra) just like in this case, it was learned at an appellate stage that at the trial court though the appellant was represented, but no interpreter was provided to him to interpret "Kiswahiii" to the language the appellant understood. Consequently, the Court nullified the proceedings andjudgment of the trial High Court and quashed the conviction and set aside the sentence". In light of the foregoing authorities which fall squarely under the circumstances of this case, where trial Court proceedings were conducted without provision of an interpreter to the 4th Appellant who did not understand the language of the Court, it is a fit situation for this Court to invoke its revisional powers as provided for under the provisions of sections 372(1) and 373(1) of the CPA. Therefore, in the exercise of such powers, the trial Court's proceedings are hereby nullified, convictions of the Respondents thereof are quashed and the sentences of all the Respondents 8 are also set aside. Moreover, the fines paid by all Respondents be refunded according to law. Further, the order of forfeiture of a motorcycle with registration No. MC647DEC, make TVS is also set aside. Since the above is sufficient to dispose of the appeal, the ground of appeal set forth by the Appellant will not be determined for being rendered nugatory. As a matter of way forward, the interest of justice demands that a retrial be ordered. Therefore, the record is remitted to the trial Court to conduct a trial afresh with the use of the services of an interpreter. It is further directed that retrial proceedings be conducted before another Magistrate and the said proceedings should expedited considering the time the 4th accused has spent in remand since his arrest. It is so ordered. The Judgment was delivered in the presence of Mr. Zarubabel Ngowi, a learned State Attorney for the Respondent, in the presence of the 1st, 2nd, and 4th Respondents, and in the absence of the 3rd Respondent. K. I. Kafanabo Judge 21/03/2025 9