20120507 TZHC Arusha

IN THE. COURT OF APPEAL OF TANZANIA . ATARUSHA (CORAM: NSEKELA, J.A., LUANDA, J.A., And MASSATI, J.A.) CRIMINAL APPEAL NO. 58 OF 2010 NASORO JUMA AZIZI ......................................................... APPELLANT VERSUS THE REPUBLIC ........................................-...................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Arusha) (Mmilla, J.) dated the 30th day of October, 2009 in Criminal Appeal No. 26 of 2009 JUDGMENT OF THE COURT 4 & 17 May 2012 MASSATI, J.A.: The appellant and another, were charged with the offence of gang rape contrary to Section 131A (1) and (2) of the Penal Code. ~- His co-accused died before judgment and so the case against him abated under section 224 A of the Criminal Procedure Act (the CPA). He was convicted and sentenced to life imprisonment by the District . Court of Arusha. Both conviction and sentence were confirmed by the High Court (Mmilla, J.) hence the present appeal. ~ (!' ,.~ 2 ·c,, It was alleged before the trial court that, on 26th September, 2007 at 22.00 hours, at Mbauda area, Arusha Municipality the duo ambushed and forcefully had carnal knowledge of a 40 year old woman going by the name '?! _M_wanahamisi dLo Shani. According to the record, evidence was led to the eff~q;_tt,at, on_J:he material date and time the victim who testified as PWl aod tJ~r husq_an_d,. w_ere (:) walking from a bar to their home. Suddenly a group of 4 men attacked her husband, Hamis Maganga (PW2), and threw him down. Two of them followed PWl and pulled her to a=-dark spot, undressed her underpants, and had sexual intercourse with her in turns. PW2 could not offer any assistance because he was under the vigil of the other two men. So, he watched the assault on his wife helplessly. According to PWl, she was able to identify her assailants with the aid of electric light from the neighbourhood, before she was pulled to the dark part of the area. Later on the same night, the matter was reported to the police, where she obtained a PF3 and proceeded to Mount Meru hospital for medical examination and treatment, where she was attended by PW3 Dr. Regina Mwandawa in the morning of the 2ih September, 2007. PW3 tendered the PF3 as Exhibit Pl. 3 According to PW3 and Exhibit . Pl,. PWl was found with several scratches on the neck, but genital examination showed no bruises nor bleeding, but she tested HIV positive. The appellant gave a sworn testimony to the effect that he was arrested on 27/9/2007 at Mbauda area, on his way home. At the police station he was charged with gang rape, which he knew nothing about. He said that he never knew PWl. In this Court, the appellant has appeared in person, to argue his 3 main grounds of appeal, and another one in his "Additional Ground of Appeal". The three grounds could be condensed as follows: First; that the evidence of visual identification was insufficient; two; that the trial court did not comply with his request for supply of statements of prosecution witnesses under section 9(3) of the CPA and three; that the prosecution case was not proved beyond reasonable doubt. The additional ground which is really, an expansion on the first one, was that, whatever evidence of identification there was, it was only dock identification which was not 'i 4 corroborated. The appellant referred to us, a number of authorities to support his appeal such as, MAGWISHA MZEE AND ANOTHER v R Criminal Appeal No. 465 of 2007, DEO AMOS v R Criminal Appeal No. 286 of 2007, SOMI SEMU v R Criminal Appeal No. 29 of 2008, EMMANEUEL MARKO AND ANOTHER v R Criminal Appeal No. 303 of 2007, GOODLUCK JACOB@ MAFUWE AND ANOTHER v R Criminal Appeal No. 35 of 2008, ISSA s/ o NGARA v R Criminal Appeal No. 37 of 2005, and RESPIKI MICHAEL @ PENDO v R Criminal Appeal No. 287 of 2007 and AMOS PAULO AND ANOTHER v OPP Criminal Appeal No. 308 of 2009 (all unreported) as well as AZIZ ABDALLAH v R (1940) 7 E.A.C.A. 60. He thus urged this Court to allow his appeal. On the other hand, the respondent/Republic was represented by Ms Immaculata Banzi, learned Senior State Attorney. She took the position that she could not support the conviction for the following ~'----------~ ' reasons. First, the evidence of visual identification was unsatisfactory, and the ___ non _production of a police officer who investigated the case, and the inconsistencies bet:w.~_en PW1 and PW2 ----·· _ on whether there was any light or i~s_ i_ntensity at or near the scene of 5 crime, did not improve matters. Secondly, that on the evidence on record, it cannot be said that the prosecution had proved its case beyond reasonable doubt. Thirdly, the learned first appellate judge did not make a correct re evaluation of the evidence, and made findings which were not supported by the evidence on record. Finally, she submitted that although the record shows that the trial court ~ ordered that the appellant be served with copies of the witnesses' statements, if this was not done, the omission was not prejudicial. In the course of hearing the appeal, we asked the learned Senior State Attorney to address us on the effect of omitting to mention section 130 of the Penal Code, and lack of consent in the particulars in the charge sheet. She admitted that the statement of the offence in the charge sheet _did _r1_ot refer_ t!?_ sectio_n 130 of the - Penal Code, the substantive provision creating the offence, but only section 131 A (1) (2) which is a penalty provision; and that it was also true that in the particulars of the offence there was no allegation of "absence of consent" from the victim, which was an essential ingredient of the offence of rape. She submitted that those omissions were not curable. She also responded to our inquiries on the (.,I 6 sentence of life imprisonment meted out on the appellant. She submitted that since the appellant was recordedly only 18 at the time of the commission of the offence, the lawful sentence would have been corporal punishment in terms of Section 13l(A) (3) of the Penal Code. So the sentence of life imprisonment was unlawful, and urged us to intervene and correct the illegality. As these points were CJ matters of law, the appellant had nothing useful to say. We intend to dispose of this appeal only by examining the infractions in criminal procedure which the Court raised suo motu. These relate to the wording of the charge sheet. We will reproduce the charge sheet for ease of reference: TANZANIA POLICE FORCE CHARGE SHEET NAME, TRIBE OR NATIONALITY OF THE PERSON(S) CHARGED 1 ST ACCUSED: NAME: NASORO JUMA@ AZIZ! TRIBE: RANG! AGE: 18 YEARS OCC: BUSINESS ADD: WAGOSI STREET - MKUBWA 2ND ACCUSED: NAME: ATHUMANI SABASI @ MKUBWA TRIBE: PARE AGE: 26 YEARS OCC: PEASANT ADD: MBAUDA 7 OFFENCE SECTION AND LAWS: Gang Rape cls 131A (1) (2) of the Penal Code as revised Edition 2002. PARTICULARS SECTION AND LAW: That Nasoro Juma @ Azizi and Athumani Sabas @ Mkubwa charged on 26th day of September, 2007 at about 22:00 hours at Mbauda area within the Municipal and Region of ARUSHA did have carnal knowledge of one MWANAHAMISI DIO SHANI a woman of 40 years old. STATION: POLICE ARUSHA {Sgd) DATE:3/10/2007 PUBLIC PROSECUTOR The mode in which offences are to be charged is laid down in Section 135 of the CPA. Of particular relevance is paragraph (a) (i) (ii) and (iii) which, for ease of reference, we reproduce them below. 135. The following provisions of this section shall apply to all charges and informations and, notwithstanding any rule of law or practice/ a charge or an information shall subject to the provisions of this Act not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this section:- (a) (i) A count of a charge or information shall commence with a statement :v 8 of the offence chargecl called the statement of the offence; (ii} the statement of . offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence ancl if the offence charged is one created by enactment, - shall contain reference to· the section of the a enactment creating the offence; ( emphasis supplied) (iii) after the statement of the offence/ particulars of such offence shall be set out in ordinary language/ in which the use of technical terms shall not be necessary, save that where any rule of law limits the particulars of an offence which are required to be given in a charge or an information/ nothing in this paragraph shall require any more 9 particulars to be given than those · so required;" From the above, it is clear that a statement of offence ought to describe the offence and should contain a reference to the section of the enactment creating the offence. After the statement of the offence, the particulars of such offence should be set out. The problem with the charge sheet in the present case, is two fold. First, the statement of offence does not contain a reference to the section of the enactm.erit creating the offence. The statement only refers to section 131 A (1) and (2) of the Penal Code, which reads: V 131A (1) Where the offence of rape is committed by one or more persons in a group of persons, each person in the group committing or abbetting the commission of the offence is deemed to have committed gang rape. (2) Every person who is convicted of gang rape shall be sentenced to ... imprisonment for life, regardless of the actual role played in the. rape." From the wording of section 131A, it is obvious that the provision does not create a separate offence, but only a different category of rape; that emanates from "the commission of the offence -- of rape". It must always therefor~ be read in conjunction with the ,.· principal section 130 which creates and defines the offence of rape. This section 130 should therefore have been referred to as one creating the offence. This is missing in this case. In MOHAMED KANINGU v R (1980) TLR 279 this omission was held to have rendered the charge incurably defective. ~v0~ The second problem is with the particulars of the offence. Ast I\) y' shown above the principal provision creating the offence of rape is section 130. But section 130 as presently worded has also made /i classification of circumstances in which a male person could be said to have committed the offence of rape. They are five of them listed in section 130 (a) to (e). From the way the charge sheet was framed here, it is not known at all, under which of those categories of rape 11 the appellant is alleged to have committed. At best, from the facts, and the rest of the ·particulars, one can only guess, that since the ' victim was above 18 and not the appellant's wife, the offence fell under Section 130 (2) (a), impliedly that, the sexual intercourse was I without her consent. This essential ingredient of the offence of rape, that is consent, was omitted in the charge sheet. As this Court observed in ISIDOR! PATRICE v R Criminal Appeal No. 224 of 0 2007 (unreported) ''It is now trite law that the particulars of the charge sheet disclose the essential elements or ingredients of the offence. The requirement hinges on the basic rules of criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence charged with the necessary mens rea. Accordingly the particulars in order to give the accused a fair trial in enabling him to prepare his defence/ must allege the essential facts of the offence and any intent specifically required by law. " ,l,i 12 After highlighting these defects in the charge sheet, the next question for determination, is, what is the effect of these defects? It cannot be gainsaid that generally the purpose of all the rules of procedure is, to guide the courts and the parties in the orderly and fair administration of justice, and it cannot be overemphasized that it is important that they be strictly complied with. Non compliance with those rules certainly has consequences, but these differ depending on the effect of the infringement and importance of the particular rule(s) breached. This is so because rules of procedure differ in importance. Some are vital and go to the root of justice and fair trial and can only be infringed with attendant dire consequences. Some ' rules are of less significance and have cosmetic value only, and when they are breached, the court may afford to look the other s!de. The drawing line between these is always, whether the breach has • occasioned a failure of justice. Thus, generally, in a criminal case, it has been held that for an appellate court to fault any trial and declare it a nullity due to any irregularity in procedure, it must be shown that, the irregularity was --~__:_---~---------'---- ~ 13 such that it prejudiced the accused and therefore occasioned a failure ' of justice (See MICHAEL LUHIYO v R (1994) TLR 181, followed in KOBELO MWAHA v R Criminal Appeal No. 173 of 2008 (unreported). Under Section 388 of the CPA, it is a court sitting in appeal or revision which is empowered to declare which infringements in criminal procedures, amount to failure of justice, and to make appropriate orders befitting the circumstances of each \. case. This Court has exercised those powers and declared several infringements fatal, and some not. In respect of the rule relating to the mode of drawing charges, this Court once remarked: - "We wish to remind the magistracy that it is a salutary rule that no charge should be put to an accused before the magistrate is satisfied, inter alia, that -.. it ....disclosed an offence known to law. It is intolerable that a person should be subjected to the rig9rs of a trial based on a charge which in law is no charge. It shall always be remembered that the provisions of Section 129 of the CPA 85, are mandatory. The charge laid at 14 the appellant's door having disclosed no -""':-- offence known to law all the proceedings _r:;rra _:;: conducted in the District Court on the basis - thereof were a nullity since y__ou cannot 12..ut something on nothin_g: - (See OSWALD MANGULA v R Criminal Appeal No. 153 of 1994 (unreported) and ISIDOR! PATRICE v R (supra) In the present case, we have demonstrated above, that the particulars of the charge have omitted to state that the alleged sexual intercourse was without the victim's consent, an essential ingredient to the offence of rape. Faced with a similar situation, this Court in KHATIBU KHANGA v R Criminal Appeal No. 290 of 2008 ( unreported) said: - "If the charge did not disclose this ingredient in the particulars, it was manifestly wrong and could not be cured under Section 388 of the Criminal Procedure Act.'' In MUSSA MWAIKUNDA v R (2006) TLR 387 the appellant was charged with attempted rape, but the particulars omitted to 15 . mention the treats used by the appellant in doing so; this Court held that: "............... in the absence of such disclosure the nature of the case that the appellant faced was not adequately disclosed to him; the charge was, therefore defective. ,, In a case decided by the Court of Appeal of Kenya of ACHOKI v REPUBLIC (2000) 2 E.A. 283, where the appellant was charged and convicted of attempted rape but whose particulars did not allege that the attempted sexual intercourse was among other elements without the victim's consent, it was held that, without such ingredient; the charge was incurably defective and did not disclose an offence known to the law and the appellant was wrongly convicted. The Court went on to observe; after quoting the definition of the term "rape" under section 139 of the Penal Code of Kenya, which is substantially similar in effect to our section 130(a) to (e) of the Penal Code that: "This definition makes it clear beyond a peradventure that it is lack of consent on the part of the woman or girl that is at the core of rape. Indeed lack of consent is so vital that even if there be apparent consent • 16 obtained by false personation etc, a charge of rape would still lie against the ravisher. A . fortiort if there is consent there cannot be . rape. S,o a charge of rape must allege it in its particulars. " We are persuaded by that reasoning and we do not hesitate to adopt it in the present case. Since in the present case the ingredient 1 of consent was not particularised in the charge sheet, it did not disclose an offence known to law, and we cannot say that the appellant got a fair trial, and so he was wrongly convicted. In exercise of our revisional powers, we quash all the proceedings and conviction in the trial court and the first appellate court, and set aside the sentence. We have thought over the idea, whether or not to order a retrial, vis a vis the principles set out in FATEHALI MANJI v R (1966) E.A. 343. In view of the discrepancies in the prosecution evidence, and the flawed sentence imposed on the appellant, we think, it would not' be in the interests of justice to ord~r a retrial. (V I\ '• •" . 17 As this ground alone is sufficient to dispose of the appeal, we .. ~J do not see the need to venture into the merits of the grounds of ":' . appeal. Consequently, we. allow the appeal. As the conviction of the · I appellant is a nullity, we quash it, and set aside the sentence. We order that he be . released from prison forthwith, unless he is ;' otherwise lawfully held. · DATED at ARUSHA this 7th day of May, 2012. H. R. NSEKELA JUSTICE OF APPEAL 8. M. LUANDA JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL I certify that this is a true copy of the original. (M.A. MALEWO) DEPUTY REGISTRAR ·couRT OF APPEAL \