20180208 TZCZ Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LUANDA, J.A., MMILLA, J.A., And NDIKA, J.A.) CRIMINAL APPEAL NO. 22 OF 2015 ROBERT ABRAHAM MWAKYUSA ............................................. APPELLANT VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Lyamuya, SRM Ext. Jur.) Dated the 11th day of September, 2014 in HC. Criminal Appeal No. 57 of 2014 JUDGMENT OF THE COURT 5th & 9 th February, 2018 MMILLA, J.A.: The appellant, Robert Abraham Mwakyusa, is behind bars serving a sentence of life imprisonment after he was found guilty and thus sentenced by the Mbeya Resident Magistrate's Court for the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap. 16 of the Revised Edition, 2002. He unsuccessfully appealed to the High Court of Tanzania at Mbeya, hence this second appeal to the Court. 1 'Ii. The brief facts of the case were that on the evening of 7.8.2011, PWl Ester Daima Mwakabaja (the complainant), and her mother decided to go to Nkwenzulu local brew pub at Soweto area at which there was hosted a traditional dance occasion. After sometime, she allegedly met the appellant, a person she purported to have known before who asked her to follow him at a dark alley purporting that he was going to buy her bananas. When they were at that dark alley and far from where the traditional dance was being performed, the appellant allegedly stopped, held and undressed her, unzipped and lowered his trousers, and had carnal knowledge of the complainant. The latter began crying, but her assailant covered her mouth with his hand in order to prevent the attraction of the attention of other people until he quenched his thirsty. According to PWl, at first the appellant inserted his male organ into her vagina, and subsequently into her anus until he ejaculated. He gave her T.shs 200/= and warned her to desist from revealing that incident to anyone. He allowed her to leave but followed her from behind until she arrived at the family home, after which the appellant disappeared. The complainant was still crying at the time she arrived home. On being asked by her mother why she was crying, she told her that she was 2 raped by Mwambete. Her mother examined the complainant's private parts 1► and satisfied herself that indeed her child was sexually assaulted. The former took the complainant to her aunt one Tumwaghile who examined her as well. On being satisfied that the complainant was indeed raped, the trio reported the incident at Mwanjelwa Police Station. They were given a PF3 and directed to proceed to hospital for medical examination and treatment. Meanwhile, the police began investigation. The appellant was subsequently traced, arrested and charged with that offence as it were. The appellant had protested his innocence. In his defence he was categorical that he never met the complainant on the alleged date. He also said that he was not correctly identified as having been the person who committed the charged crime because the complainant said she was raped by Mwambete, a name which does not refer to him. At the end of the trial, his defence was not accepted. As aforesaid, the trial court found him guilty and sentenced him to a life imprisonment term. 3 During the hearing of the appeal, the appellant appeared in person and was not defended; whereas the respondent Republic enjoyed the services of Ms Catherine Gwaltu, learned Senior State Attorney. The appellant's memorandum of appeal raised six (6) grounds which may be bridged into five of them as follows: one that, the evidence of PW1 was wrongly relied upon in that she having been a child of tender age, her evidence ought to have been recorded after subjecting her to a voire-dire test, which was not the case; two that, the appellant was not correctly identified in that PW1 said she was raped by a person named Mwambete, a name which did not refer to him (the appellant); three that the PF3 was not produced as an exhibit in court during trial, therefore that there was no evidence to prove that she was actually raped by anyone; four that, the appellant's defence was not considered by both courts below; and five that, the prosecution did not prove the case against him beyond reasonable doubt. At the commencement of hearing he elected for the Republic to submit first, contemplating to respond thereafter if need would arise. 4 On taking the floor, Ms Gwaltu hurried to inform the Court that she was supporting the appeal for reasons she was going to assign. To begin with, Ms Gwaltu submitted that the judgment of the trial court was defective because after finding the appellant guilty of the charged offence, the trial court did not proceed to-·. convict him as envisaged by section 235 (1) of the Criminal Procedure Act Cap. 20 of the Revised Edition, 2002 (the CPA), thus contravening the demands of section 312 (2) of that same Act. In view of that defect, she urged the Court to invoke its revisional power under section 4 (2) of the Appellate Jurisdiction Act Cap. 141 of the Revised Edition, 2002 (the AJA) and quash the judgment of the trial court for being a nullity, as well as the proceedings and judgment of the High Court for having been based on a null and void judgment of the trial court. Ms Gwaltu submitted however, that under normal circumstances she would have requested the Court to remit the record to the trial court with the direction to that court to compose a proper judgment, but for reasons she vowed to assign, she requested the Court to take an exceptional measure of releasing the appellant. 5 In the first place, Ms Gwaltu submitted that the evidence of the 'r- complainant who was a child then aged 9 years ought to have been subjected to a voire dire test in terms of the provisions of section 127 (2) of the Evidence Act Cap. 6 of the Revised Edition, 2002 (the EA), but that the trial court did not comply with those directions. Relying on the case of Dotto Ikongo v. Republic, Criminal Appeal No. 306 of 2006, CAT (unreported), Ms Gwaltu submitted that to have not conducted a voire dire at all leaves the Court with no better option but to ignore the complainant's evidence. She added that if that evidence is ignored, the remaining evidence is insufficient and/or weak, thus incapable of sustaining conviction, therefore that it will be useless to remit the record to the trial court so that the trial magistrate could compose a proper judgment. She pressed the Court to release the appellant. On his part, the appellant said he was supporting the submission of the Republic. He urged the Court to allow his appeal leading to his release. We begin our discussion by first appreciating the point raised by the learned Senior State Attorney that alter finding the appellant guilty of the charged offence, the trial court did not proceed to convict him as 6 contemplated by section 235 ( 1) of the CPA. At page 57 of the Appeal Record, the trial magistrate said that:- "Therefore having so note~ I am very much satisfied with PWl s evidence that its the accused person who raped her. Therefore this court finds the accused guilty as charged. // As the Record of Appeal will bear evidence, nothing more was said after the above quoted statement, hence that no conviction was entered as demanded by section 235 (1) of the CPA. That section provides that:- "(1) The cou~ having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or n1ake an order against him according to law or shall acquit him or shall dismiss the charge under section 38 of the Penal Code. '' [Emphasis added]. We hasten to add that a conviction is one of the prerequisites of a judgment in terms of section 312 (2) of the Criminal Procedure Act which states: 7 ' 312 (2).- In the case of conviction the judgment shall specify l the offence of which, and the section of the Penal Code or other law under which the accused person is convicted and the punishment to which he is sentenced. [Emphasis added]. Thus, since no conviction was entered in the present case, and because it is a mandatory requirement that conviction must precede the sentence, the omission to enter conviction was a fatal irregularity which cannot be cured under section 388 of the CPA. It is unfortunate that the error escaped the attention of the learned appellate Resident Magistrate exercising Ext. Jurisdiction powers - See the cases of Shabani Iddi Jololo and four others v. The Republic, Criminal Appeal No. 200 of 2006,CAT, Amani Fungamikasi v. Republic, Criminal Appeal No. 270 of 2008, CAT, Kimanga Tlaa v. Republic, Criminal Appeal No. 22 of 2013, CAT and Joseph Kanankira v. Republic, Criminal Appeal No.387 of 2013, CAT (all unreported). The burning question becomes; what then are the consequences of that fatal omission? 8 As we said in the case of Hassani Mwambanga v. Republic, Criminal Appeal No. 410 of 2013, CAT (unreported), where the Court is faced with such a situation, it is duty bound to _intervene under revisional powers enacted under section 4 (2) of the AJA. Clothed with that power, we hereby quash the so called judgment of the trial court and set aside the sentence of imprisonment it imposed, likewise the proceedings and judgment on appeal of the Resident Magistrate's Court - Ext. Jurisdiction for having been based on a nullity. Under normal circumstances, where this is the position, we would be required to remit the record of the trial court to that court to enable it to compose a proper judgment by entering a conviction and sentence the appellant accordingly. However, for reasons we are about to assign, we share the concern of Ms Gwaltu that it would be useless to do so. Thus, we have found it appropriate to take exception to that usual practice. Ms Gwaltu impressed on us, and we agree with her, that the prosecution case wholly depended on the acceptability of the evidence of PWl. Should that evidence be discredited in any manner possible, their case will definitely collapse. 9 ' As correctly submitted by the learned Senior State Attorney, PWl was a child then aged nine (9) years. In terms of section 127 (2) of the EA, she ought to have been subjected to a voire dire test before being allowed to give her evidence. Unfortunately, as the Appeal Record will show at page 15 thereof, her evidence was received without regard to that provision. At that page, the trial court stated in passing that it had interviewed the child and noted that she knew the duty of telling the truth, and allowed her to testify. Even, it was not indicated if she was to testify on oath or without it. In our firm deliberation, failure by the trial court to record the alleged interview amounted to failure to comply with the mandatory provisions of section 127 (2) of the EA. Consequently, we are constrained to hold that her evidence was taken without first conducting a voire dire test! a fact which compels us to ignore her evidence as we accordingly do. Having said that the prosecution case wholly depended on the acceptability of the evidence of PWl, which means after ignoring that witness's evidence there is no other evidence capable of sustaining the appellant's conviction, we hold firm that it will be useless to remit the record of the trial court to it for purposes of composing a proper judgment 10 I by entering a conviction and sentencing the appellant accordingly. For that reason, we are compelled to order the release the appellant from prison as we accordingly do, unless he is otherwise continually held for some other lawful cause. We accordingly order. DATED at MBEYA this 8th day of February, 2018. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. c. ,• .---- -~- ' ~;-" ~ . P. W-;- BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 11