NA TZCA Dar es Salaam4

IN THE COURT OF APPEAl. OF TANZANIA AT DAR ES SALAAM {CORAM~MBAROUK.-L).A., ORIYO 1 J..A.'-And KAIJAGE,J,A ..} CRIMINAL )\PPEAl C!'1\SE NO. 1/~3 OF 2014 ."JAfftiRI HARUNA ••• -~,,1.~t;:! Al ;t; c:; f ll ,i 11 ,.'IIJ'.llil.'I>!,; f'"liti•i,,i O t:111 ■ 111-(!tl t'll::I .... !1.!tlllilfl•;j!1! iJtt~ , • • APPELt....4\.NT 1n Cr~~in_;nai f\,;)iJ(~?-\1. •:\,~o. __ .1.32,of 2010. _ of rape contrary to sections l30(l)(2)(c) and i31(l) of the Penal Code as amended by section 5 of the Sexual Offences Special Provisions Act No. 4 of 1998. After a fu!i trial, he was convicted and sentenced to serve a jail terrn of U1irty (30) years. Dissatisfied, he unsuccessfully appealed to the High Court. Stiii protesting his innocence, he has filed this · .· The,. .brief background, . to the .. case is. as follows. It was alleged at the· trial that ·on the ·9th day of March, 2007_ at about 5 pm at MbeziSalasalq,_.-;Kinond.oni Di~trict,_ 1?ar es Salaam Region, the • • r I a-ppellant. had carnal knowl~dge of- one Saida Hussein ·- . .. NassoroJ: - . - -· a: . .. - · · chi-Id· of seven-ye2ir.s qld,. . Th~ appellant, who was a sole defence . witness, vehemently-denied to have raped the said child. VlhE~i'i th@ apeealcai!)~_,·U_p·_ for hearing the appeilari_t _appeareo : ·•· "'~ .,:.-. _. . . -· : .' . ;. :. .:. -~ ~=---- ·. . ·. ·:-•-:..' ·--••\: .. ·..-._ - ' forthright:!y2~;h3ted th;)tshe·wo~ld- m.a.kE:~· submissions in_--s~;~;:~,ort.~/. ; ...· :-:..-..:- - illegalities, inconsistendes·and defects. She took off by specifically . . . poi~ti_ng out a.t_thE~ s1.ibstiti.~ted ch"arge which vyas read over to the appelJanton. 16/1/200_8; - . withoqt_his - ., plea thereon being - . - . taken. She . . .· , su_bmitted · that ttie qmission_ - .. ·.. to .take::. the·_ plea of · the accused, . , . offended the mandatory provisions of section 228(1) of the Criminal Procedure .A.ct 2 Another serious discrepancy pointed out by the learned State Attorney were the defects inherent in the charge sheet in general. -- .. . . Ms. - Masue __ submitted . -- ; that the charge sheet ___was full of defects and co~sequen~IY- the accused was unable to understand the nature of the offence he was facing -in court and what he was supposed to. - do in defence. She prayed that on the· basis of the illegalities, inconsistencies and defects, the Court exercises its revisional powers,_ in terms of in terms of sectioIJ -. ....4(2) of_ . . the~--~Appella_te - .:. ... •.: --~ . ... .:'' _ Jurisdiction Act, Cap R.E, 2002 to quash all proc~edings and decisions in the lower courts and set aside the sentence. She · urged us to set the appellant free, thereafter. /\s expr~cted,;- th.e..appeUani:-, :a layman without knowledge of the law,_ readily agreed v\litl1 the learned State Attorney th.at he should be set free. -· . The memorandum of appeal lodged by the appellant had nine grounds of complaints. But in view of the ·position taken by' the respondent Republic at the hearing of the appeal, we think, that ground one (1) thereof suffices to dispose the appeal. It states:- 3 " 1. That· : the - learned first appellate Judge misdirected himself by deviating his authentic initial_findings upon the.trial magistrate~ failure to.· .· .. . - - ·. _call_ upon the· accused/appellant_ to- plead to the - -- . - . - - ~ . - substituted.charge contra,y to section 234(1) and (2){a)-CPA [Cap 20 RE - 2002],- Hence the whole - t(ia/ J-va,s-_ fata!lyllawecl. j, . ·st~ction 228(1} of tl1e Criminal Procedure Act. (CPA), -provides:-· . . . . .· . ··: . .. ~ - _thf:!:-·accused f}er.<.fon by _the cpurt; and he shall be -·rhe !aV'j ls·_ <Jjt-id·fr.~cF--ir'l rnandatory terms and the· trial court had no. ... -~- ci_iscre.Uon but_ .. - . to~-i;ea~J . ·. qvei•. th~ -substituted . -·--..... ..- •·- - :.charge . - .;.... ., ,.,. . . to 'H,~--' -. . . On our ·i)art, wtf ,:i're: iric:!ined to·a~iee-with the learned State • --· p -- ~- Attorney. - • As she )::bri·r~ctly :observed, "'the- charge against the · appellant· was ~ubstittjted ·o~ 16/V2.008;: ·as reflected at page 2 (typed) /5 (handwritten),- ofthe-'reco:rd. "We :find no evide~ce on record that his :plea thereoh ·was taken and recorded. 4 In the case of Joseph Masaganya Vs Republic, Criminal Appeal No. 77 of 2009, the Court cited the case of ThuwayAkonaayVs Republic, [1987] TL.R 92 which held as follows:- ".. !t is 1r1andatory for. a plea to_ a new or altered cha;ge to be taken fron1 an aL--cused person, as ot17E.=-:rwise the trial becornes a nullity. " ... • ~~• •••--"", A - • - The Court proceeded further to observe that omission in plea taking is fatal and nc,t curable:-: urfcJe,~ sectiotf38if{iY ofthe.Criminal Procedurr: Act. See Akbaraiit>an1jivR[1.987] TLR 92,cited in- T'hU\lvayAkona~iy Vs Rt!pubHc, (supra), where the Court stated:- "Tht: anaiqrunent of an accused is not complete until he has pleaded. Where 110 plea is taken the trial is a nullity. 771e 01nission is not an irregularity which can be cured by section 346 of the Criminal Procedure Code {now section 388(1) of the Ctiminal Procedure Act). " 1 • -· In the event and for the reasons stated we are constrained to invoke oui-revisional jurisdiction under section 4(2) of the Appellate Jurisdiction Act. We therefore proceed to quash all the 5 l · : ~, ..>·proceedings and judgments of -both the trial and the first appellate courts and set aside the sentence. . . Our further orders are t-o remit the file back to the trial court for the Director ·of Public Prosecutions (DPP) to institute the prosecution afresh or othervvise determine the matter as deemed fif according J~o law. · · · DJti.TfDzrt DAR ~S SAL'V\M thisday of 2015. M.. S..MSI\ROUK . .. -·--· .• J_USTICE OF_At~~'.fr'.AL '( · K Of<-vn l , , .,. _ J.i __ l...J · · :·•·.··•··.- ... K_'.l•-r· 'J' r I!'.! ·o:i:.~ -Ji i::) i) E-. .r.. G . . i j ,';)L J_,. .11.11,..,~.. ____'.L.t:~fJ! ... ~J.:1-~· . .. ~ -S. S. KAI.JAGE. JUSTICE Of _APPEAL 6 I