20130325 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MBAROUK, J.A., MASSATI, J.A.. And MUSSA, J.A.) CRIMINAL APPEAL NO. 218 OF 2011 RUZIBUKYA TIBABYEKOMYA................................................... APPELLANT Versus THE REPUBLIC ....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza.) (Mwakipesile, l.) dated the 30th day of March, 2011 in Criminal Appeal No. 07 of 2011 ...............•.......••• RULING -OF THE COURT 14th & 25th March, 2013 MASSATI, l.A: The appellant appeared before the District Court of Misungwi on 12/7/2010 where he was charged with armed robbery. At the end of the I . trial he was "found guilty of the offence,: charged". and sentenced to thirty . . ! . . years imprisonment. He appealed to thd High Court, where Mwakipesile, J 1 dismissed the appeal and upheld "the conviction of the trial court." Now he has come to this Court on a second appeal. The appellant, who. appeared in person, had filed six grounds of appeal to challenge the decisions of the lower courts. The respondent/Republic was represented by Mr. Seth Mkemwa, learned Senior State Attorney. Before hearing the parties on the merits of the appeal, the Court was anxious to hear from the parties on whether the judgment of the trial court · was valid in as much as it proceeded to sentence the appellant without first entering a conviction. The appellant a layman, understandably had nothing useful to contribute to the discussion except to urge the Court to hear his appeal on merit. Mr. Mkemwa however, submitted that in terms of section 235 (1) of the Criminal Procedure Act (the CPA), once an accused is found guilty, the trial -court must enter a conviction. This was not done in this case. If the High Court had noticed this omission, it should have remitted the case file 2 to the trial court for it to comply with the law, before proceeding to hear the appeal. It was further his view that this irregularity was not curable under section 388 of the CPA because in this Court the appellant seeks to challenge the "conviction" and "sentence" but .there was no "conviction" legally speaking, and no sentence could follow without a conviction. He rounded us by asking us to invoke our revisional powers and do that which the High Court should have done, by ordering that, the original case file be remitted to the trial court to enter a conviction before the appellant could reopen his appeal in the High Court. Meanwhile he urged us to find the present appeal incompetent and strike it out. The law demands that a subordinate trial court comply with the requirements of section 235 (1) of the CPA after hearing a criminal case: The section provides:- ( 1) The Court, having heard both the complai.nant and the accused person and their witnesses and the evidence, shall convict the accused and pass.sentence upon or make an order against hirri !:according to law or shall acquit him or shall dismiss the charge under : f, 3 section 38 of the Penal Code. (Emphasis supplied). This means that once the trial court finds an accused person guilty of the offence charged, it is imperative upon the magistrate to convict him before passing sentence. In the absence of a conviction there cannot be a valid judgment in terms of section 312(2) of the CPA. On the strength of those provisions, it has been held that in such a _case, there cannot have been a valid judgment upon which the High Court could uphold or dismiss an appeal and so the judgment of the High Court itself would have no legal basis. As such the appeal would be incompetent (See, SHABANI IDDI JOLOLO & OTHERS V. REPUBLIC, Criminal Appeal No. 200 of 2006) KHAMIS RASHID SHABAN v DPP ZANZIBAR, Criminal Appeal No. 184 of 2012 (both unreported). In the present case, the judgment of the trial court ends up as follows: " ...... ·I am· of the considered views (sic) that the prosecution evidence have proved their case 4 beyond all reasonable doubts that the Accused robbed the complainant, I hereby found (sic) him guilty of the offence charged i.e. Armed Robbery C/5 283 of the Penal Code." There was no conviction and as seen above, this m~kes the judgment fatally defective. In our view, since there was no conviction, no sentence could follow. Therefore even the sentence had no legal basis. It follows that even the notices of appeal lodged in the High Court and in this Court against "conviction" and "sentence" were invalid and could not have instituted the appeals both in the High Court and in this Court. We therefore agree with Mr. Mkemwa that the present appeal before us is incompetent. We invoke our revisional powers under section 4(2) of the Appellate Jurisdiction Act (Cap 141-RE 2002) and quash all the proceedings and judgment of the High Court. We also quash the judgment and sentence of the trial court, and remit the file back to the trial court for it to enable the trial magistrate to compose and deliver a judgment which is in conformity with the law. The present incompetent appeal is struck I out. 5 With regard to the position of the appellant, we order that the status quo ante the trial court's date of judgment be maintained pending the delivery of the new judgement. So, since the record shows that he was in remand, this means that from the date of this ruling the appellant shall remain in remand prison until then. Thereafter the appellant shall be at liberty to start afresh the process of appeal. Order accordingly. DATED at MWANZA this 25th day of March 2013. M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original P.W~A SENIOR DEPUTY REGISTRAR· COURT OF APPEAL 6