20140305 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA CORAM: MSOFFE. J.A.. KIMARO. J.A.. And MJASIRI. J.A.^ CRIMINAL APPEAL NO. 296 "B" OF 2011 DAUDI YONA.......................... .................................. APPELLANT VERSUS THE REPUBLIC.........................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Tabora) (SonqoroJ.) dated 9th day of November, 2011 in Criminal Appeal No. 179 of 2011 JUDGMENT OF THE COURT 4th & 6th March, 2014 KIMAROJ.A.: On 31st January, 2007, the District Court of Nzega convicted the appellant of the offence of rape contrary to section 130 and 131 of the Penal Code, [CAP 16 R.E. 2002]. He was sentenced to thirty years imprisonment. The particulars of the charge sheet alleged that: i " That Daudi son o f Yona is charged on the l f h day o f October, 2006, at about 03.00 hours at Isanzu Village within Nzega District in Tabora Region, did have sexual intercourse with one Eva d/o Robert not being his wife without her consenting to it at the time o f such intercourse." The testimony of the complainant was that at the time of the* commission of the offence she was aged 12 years. The appellant was aggrieved by the conviction and the sentence that was imposed by the trial court. His petition of appeal to the High Court had seven grounds of appeal. He complained that the prosecution did not prove the case beyond reasonable doubt because some of the prosecution witnesses were related; the age of the complainant who said she was 12 years was not proved and that there was no evidence to prove that there was penetration. When the appellant presented his petition of appeal to the High Court, pursuant to section 362 of [CAP 20 R.E.2002] the learned judge, (Songoro, J.), acting under section 364 (1) (c) of the Criminal Procedure Act,. [CAP 20 R.E.2002], summarily, rejected the appeal. He stated that: 2 "I have considered the appellant grounds o f appeal in the petition o f appeal and copy o f proceedings o f the lower court which was submitted to the court pursuant to section 362 o f the Criminal Procedure Act Cap.20 (RE 2002) and find that the conviction o f the appellant and sentence leaves no reasonable doubt as to the accused guilt and the appeal is frivolous. For the above stated reason I hereby in terms o f section 364 (1) and (c) summarily rejects the appeal for reasons that I am is satisfied that on the basis o f the prosecution evidence that appellant raped PW1 who was a girl o f 12 years old, leaves no reasonable doubt as to the guilt o f the appellant thus the appeal has been lodged without doubt as to the guilt o f the appellant thus appeal has been lodged without sufficient ground o f complaint therefore dismiss it. " The appellant was aggrieved by the summary rejection of his appeal. He filed an appeal with several grounds of appeal which essentially shows his discontent with the decision of the trial court. Among his complaints is the prosecution witnesses who he contends are related. Another is admission of evidence of PF3 without calling the doctor for cross- 3 t examination. Also in contest is the age of the complainant which the appellant says was not established to be 12 years. When the appeal was called on for hearing, the appellant appeared in person. Ms Jane Mandago learned State Attorney appeared for the respondent Republic. She simplified the responsibility of the appellant in arguing the appeal because she supported his appeal. The appellant who opted to hear her views first on his grounds of appeal had nothing to tell the Court after the learned State Attorney supported his appeal. In support of the appeal the learned State Attorney said very briefly that it was wrong for the learned judge on first appeal to reject the appeal summarily because there were matters to be looked at in the charge sheet, the severity of the punishment that was imposed on the appellant and the right to be heard. She prayed that the Court allows the appeal. Looking at the petition of appeal that was filed by the appellant, we agree with the learned State Attorney that it raised a number of issues which did not entitle the learned judge on first appeal to summarily reject the appeal. First we will start with the charge sheet. The complainant testified that she was 12 years when the offence was committed. However, the charge sheet did not give the specific sub section of section 130 under which the appellant was charged. Since she was below 18 years, the appellant had to be charged under section 130(1) and (2)(e) of Cap 20. This is a matter which needed a finding by the first appellate court. Second, the appellant raised a complaint that the prosecution witnesses were related. The truthfulness of the complaint and it effects had to be sorted out. Third, the appellant said that there was no concrete evidence to establish the age of the complainant that it was 12. Fourth, he complained that there was non compliance with section 63 of the Magistrates Courts Act [CAP 11 R.E 2002] and that there was no evidence to prove that there was penetration. With respect to the learned judge on first appeal, the grounds of appeal filed by the appellant raised issues which did not justify a summary rejection of the appellant's appeal. There was need to hear the parties and be satisfied that the offence of rape was proved on the standard required by the law, given the nature of the offence that the appellant was charged with and the severe penalty that was imposed on him. In the case of Issa Saidi Kumbukeni V R Criminal Appeal No. 147-of 2002 (unreported) the 5 High Court made a summary rejection of an appeal to a charge of rape under section 364(l)(c) of Cap. 20. The Court after going through the petition of appeal and the record of the trial court observed that: " The order o f summary rejection which was given by the learned High Court judge does not give assurance that he read the evidence that was given at the trial and consciously considered that such evidence left no reasonable doubt as to the appellant's guilt and hence lacked substance or that there was no material in the trial court judgment that would justify the reduction o f the sentence which was imposed on the appellant ...in other words that it is quite possible the judge made the order o f summary rejection o f the appeal casually without giving the grounds o f appeal or even the trial court record any serious consideration. We are saying so because; with respect, the memorandum o f appeal to the High Court in fact raised points which needed consideration. " After going through the record of the proceedings of the trial court and the petition of the appeal and the authority cited above we are satisfied that the appellant's appeal has merit. Considering the severe sentence that was imposed on the appellant* and his complaints against the evidence upon which his conviction was based, with respect to the learned judge, his petition did not deserve a summary rejection. The High Court was required to hear his appeal and determine it on merit. Consequently, we allow the appeal, and remit the record back to the High Court for the hearing of the appeal on merit. To avoid prejudice and to ensure that justice is done to the respective parties to the appeal it should be heard by a different judge. It is so ordered. DATED at TABORA this 5th day of March, 2014. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. ^ — P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL.