20170424 TZHC Dar es Salaam 1

· IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO 304 OF 2016 (Original C~iminal Case No 127 of 2015, of Temeke District Court at Temeke) ABDALLAH ALLY NASSORO ...............................................................·... APPELLANT VERSUS THE REPUBLIC ........................................ RESPONDENT JUDGMENT Date of last Order: 21 / 4/201 7 Date of Judgment: 24/4/2017 Munisi,J. The appellant, Abdallah Al,ly Nassoro stood before the District Court of Temeke at Temeke, charged with an offence comprised of three counts of rape contrary to section 130( 1)(2) (e) and 131 ( 1) of the Penal Code, Cap 16 RE 2002. In the 1st count, it was alleged that on diverse dates in the year 2015, at Mbagala Kuu area within Temeke District in Dar es Salaam Region, appellant had carnal knowledge of one Nadia Renaed a girl of 6 years of age. Similarly . in the 2 nd count, it was alleged that on diverse dates in the year 2015, at Mbagala Kuu area within Temeke District in Dar es Salaam Region, he had carnal knowledge of one Aneth Lugano a girl of 7 years of age. And, in the 3rd count, he was alleged to have had carnal knowledge of one Vanesa Goodluck a girl of 6 years of age in similar circumstances. To prove the allegation, the 1 prosecution summoned seven witnesses while the appellant defended himself in person and called one witness - his wife to support his defence. At the conclusion of the trial, despite the insistence by the appellant in his defence to the effect that he was impotent, the court was satisfied that the prosecution proved its case to the required standard and convicted the appellant as charged. The court sentenced the appellant to 30 years imprisonment for each count. Aggrieved by the decision, appellant preferred the present appeal through a petition comprised of eleven grounds of appeal. Having studied them closely, they seem to revolve around two areas, i.e. 1st sufficiency of the evidence to ground a conviction and 2nd contradiction & credibility of the prosecution evidence. On 21/4/2017 when the appeal was called on for hearing, Dr. Chacha, learned counsel appeared for the appellant while Miss Masue, learned State Attorney appeared for the respondent. Dr. Chacha started his submission by seeking leave to condense his grounds of appeal to only two in the same line as I had assessed them, namely; sufficiency of evidence and credibility & contradictions within the prosecution evidence. The learned counsel contended that looking at the totality of the prosecution evidence, there was hardly any cogent evidence to support the allegations of rape leveled against the appellant. He elaborated that while the three victims were alleged to have been of tender age. i.e. 6 and 7 years, no evidence whatsoever was adduced to substantiate the fact of the victims' ages, arguing that such failure affected the prosecution case adversely. The learned counsel criticized the reliance by the magistrate on exhibit P1 a mere sketch drawn by PW3 while testifying in court allegedly representing the impression of the appellant's manhood. Dr. Chacha argued that the exhibit was irrelevant and had little probative value and its admission offended the provisions of sections 62(2), 63 and 66 of the Evidence Act. Dr. Chacha submitted further that the accounts given by the prosecution 2 witnesses contradicted themselves so much hence rendering the whole prosecution evidence incredible. Referring to the victims' evidence, i.e. PW3, PW4 and PW5, he argued that it was inconsistent and contradictory hence the magistrate erred in believing it. He also argued that there was no clear evidence on how the offence was committed or when and where exactly it was committed, he cited the cases of Marekano Ramadhan V R, Criminal Appeal No.202 of 2013; Tumaini Mtayomba V R, Criminal Appeal No217 of 2012 and Augustina Samson V R, Criminal Appeal No 257 of 2014 (all unreported) as authorities supporting his propositions. The learned counsel also attacked the charge sheet, arguing that it was bad as it did· not specify the dates when the offences were committed, for that reason it was unclear and appellant did not understand the nature of the charges he was confronted with. On another score, relying on the case of Leonard Mwanashoka V R, Criminal Appeal No 226 of 2014 (unreported), he complained that the trial magistrate erred in failing to consider the defence put forward by the appellant as not much was said about the medical report he produced. Dr. Chacha thus concluded that in totality there was no evidence to justify the conviction entered. Consequently, he prayed for the appeal to be allowed. Miss Masue on her part opted to support the appeal. The learned State Attorney conceded that the evidence adduced by the prosecution left a lot to be desired as it was flawed by a lot of contradictions coupled with unclear accounts by the three victims of rape. She argued that in addition to the weak evidence, there was another serious anomaly apparent in the record of the proceedings. She elaborated that at page 10 of the proceedings, it is shown that on 11/4/2016 the prosecution substituted the charge sheet, yet upon . the same been read over to the appellant, he only pleaded to one count while the charge contained three counts. She argued that the procedure adopted was contrary to the provisions of section 228 ( 1) and (2) of the 3 Criminal Procedure Act Cap 20 RE 2002 which prescribes how pleas should be taken. Miss Masue argued that what could be inferred from the way the appellant. pleaded is that he did not understand the nature of the case that he was facing. In that regard it meant he was not afforded a fair trial. She was emphatic that the omission is not curable as it went to the root of the constitutional guarantee of the right to be heard enshrined in Article 13 of the Constitution. She cited the case of Paulo Maduka V R (2006) TLR 387 as supporting her proposition. She thus joined hands with Dr. Chacha that the appeal should be allowed. Dr. Chacha did not have much to rejoin apart from agreeing with Miss Masue that indeed the appellant was not afforded a fair trial. I have gone through the trial court's record thoroughly together with the submission by the learned counsel. I hasten to say that I am in agreement with the learned counsel that the evidence supporting the conviction was not cogent enough and left a lot to be desired. Admittedly, there were several loose ends; for instance, it was not clear when the offence was committed as the charge sheet itself was not specific of the date of the commission of the offence. It is discernable that none of the three victims mentioned the exact date when the rape took place. But assuming the rape was committed on 25/3/2015 as claimed by PW 1, her account is not supported by the charge sheet or the rest of the witnesses. It is thus not clear whether before the trial court, appellant understood the charges that he was facing or the nature of the proceedings. Miss Masue raised another pertinent issue with regard to the substitution of the charge sheet which was done on 1 l / 4/2016. It is indeed a legal requirement that once the charge is substituted; it has to be read over to the accused person for him to plead in line with the provisions of section 228. The said provision provides: 4 228 -( 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. (2) If 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 .... (3) If the accused person .does not admit the truth of the charge, the court shall proceed to hear the case ...... . It is glaring from the record that on 11/4/2015, the charges were substituted, the day's proceedings reveal as follows: 11/4/2016 Coram: Hon Mfanga - RM PP: Janeth Cc: Editha Aced: Present Pros: For hearing but we pray to substitute charge sheet by adding Jrd count Court: PIG charge sheet is hereby substituted and 3 rd count is added Sgnd by - Hon Mfanga 11/4/2016 Court: the substituted charge read over to the accused person and explained to him in order to plead there to. Accused: it is not true Court: EPOG to the charge Sgnd by - Hon Mfanga 5 11/4/2016 From the above extract, it is unclear how were the charges read over because the plea entered by the appellant was only one contrary to the fact that the charge sheet comprised of three counts. To augment her position that this state of affairs constituted unfair trial to the appellant, Miss Masue relied on a case of Paulo Maduka V R which she said is reported in (2006) TLR 387. With respect, I think the learned State Attorney mixed up the cases as the case reported under the. said citation is the one involving one Mussa Mwaikunda and not Paulo Maduka. Having gone through the same, I am certain that it must be the case the learned State Attorney intended to cite as it propounded exactly what she submitted. In the said case, the Court of Appeal after thorough deliberations with regards to the attributes of a fair trial came up with the following minimum standard, thus: "The minimum standards which must be complied with for an accused person to undergo a fair trial are: he must understand the nature of the charge, he must plead to the charge and exercise the right to challenge if, he must understand the nature of the proceedings to be an inquiry info whether or not he committed the alleged offence, he must follow the course of the proceedings, he must understand the substantial effect of any evidence that may be given against him, and he must make a defence or answer to the charge." Considering what transpired at the trial as explained herein above and the above listed attributes of a fair trial, I am of a humble view that the appellant was not afforded a fair trial. The omission of causing the appellant to plead to all the three counts of the substituted charge as revealed by the proceedings constituted a fatal error which is incurable. I have no doubt such omission embarrassed and prejudiced the appellant's defence as it had the effect of denying him the opportunity of knowing the nature of the charges that he was facing. The situation is compounded by 6 the fact that the charge itself is not specific on the dates when the offences were committed against the three victims. From the foregoing discussion, I am satisfied that the conviction entered by the trial court against the appellant cannot be sustained. Consequently, the appeal is allowed, the conviction quashed and the sentence imposed set aside. Accordingly, appellant is to be released forthwith unless otherwise held for other lawful causes. 7