20180604 TZHC Mbeya

10 IN THE HIGH COURT OF THE UNITED TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 82 OF 2017 (From Criminal Case No. 6512017 of Mbeya Resident Magistrate's Court) ZAWADI S/O EZEKIEL JABIL ....... . ...................... APPELLANT VERSUS THE REPJBLIC ................................................. RESPONDENT JUDGMENT Date of last order: 0410612018 Date of Judgment: 0410612018 Dr. M. C. Levira, J The appellant, Zawadi Ezekiel Jabil was arraigned in the Resident Magistrate Court of Mbeya with the offence of rape contrary to Section 130 (1), (2) (e) and 13 1(3) of the Penal Code Cap 16 R.E. Upon full trial, he was convicted and sentenced to life imprisonment. Aggrieved by the trial court decision he has lodged this appeal. It was alleged by the prosecution that on 2nd of February, 2017 at Soweto area within the city of Mbeya, the accused person unlawfully did have carnal knowledge with one Rehema d/o Philomen, a girl of 7 years old. Page 1 016 The appellant has preferred 5 grounds of appeal in his petition of appeal. In a summary: That the case against him was not proved beyond reasonable doubt. That voire dire test was not conducted as the victim was a girl of tender age. That identification parade was defective. That the app,ellant was convicted basing on uncorroborated evidence. At the hearing of this appeal, the appellant appeared in person but also under legal representation of Mr. shitambala learned advocate while the respondent/Republic was represented by Ms. Tengeneza learned State Attorney. In his submission Mr. Shitambala quickly pointed out that while going through the judgment he discovered that the court cannot act upon this judgment because at page 13 of the judgment, third paragraph the judgment does not specify the offence under which the appellant was convicted with as per Section 312 of the Criminal Procedure Act. Therefore, the judgment is a nullity Page 2 of 6 because the offence was not specified; for that matter as per the case of Kelvin Myovela Vs. Republic, Criminal Appeal No. 603 of 2015 Court of Appeal of Tanzania, Mbeya (Unreported) where the court stated that it is now settled law that failure to enter conviction is incurable irregularity which renders the purported judgment and imposed sentence a nullity and the same is incapable of being upheld by the High Court in the exercise of its appellate jurisdiction. Therefore, they prayed this court to declare this judgment a nullity and quash it and the judgment to be remitted back to the trial court for the court to enter proper conviction in accordance with the law. In reply, Ms. Tengeneza conceded to the submission made by the learned advocate for the appellant that the trial Magistrate did not write proper judgment. She thus prayed this court to nullify that judgment and remit back the case file to the trial court to prepare proper judgment by entering a proper conviction. Page 3 of 6 I agree with what has been brought to the attention of this court by Mr. Shitambala learned advocate for the appellant and supported by state attorney Ms. Tengeneza that the appellant was not properly convicted at the trial court. I had an opportunity of going through records, I agree with both learned counsels on the irregularity committed by the trial Magistrate in composition of the judgment. At page three of the judgment the trial Magistrate stated as follows: "... I am confident and convinced to hold that, the prosecution has proved its case beyond reasonable doubt to the standard of proof that, the accused person is guilty. And I do hereby convict him accordingly under Section 235 of the Criminal Procedure Act, Cap 20 Revised Edition 2002". From the above extract, it is apparent clear that the offence and the punishment were not stipulated by the trial Magistrate. Being the case, the only available remedy is for this purported judgment to be quashed and set aside the sentence as I do now. Page 4 of 6 ~ J-r- ~ The case file (records) shall be remitted back to the trial court for the trial Magistrate to prepare proper judgment by entering a conviction in accordance to the law. In the mean time the appellant shall remain in custody pending finalization and delivery of the judgment by the trial court. I further order that, when conviction is entered, the prison sentence should consider the time spent by the appellant in prison. However, the appellant will be at liberty to process his appeal in accordance to the law. For the interest of justice, it is also ordered that the process at the trial court should not take more than 21 days from the date of receiving the records. It is so ordered. Dr. M. C. Levira Judge 04/06/2018 Page 5 of6 Date: 04/06/2018 Coram: Hon. Dr. M. C. Levira, J Appellant: Present For the Appellant: Mr. Shitambala - Advocate For the Republic: Ms. Tengeneza - State Attorney B/C: Mrs. F. Mponzi Court: Judgment delivered in the presence of Ms. Tengeneza, learned 'State Attorney, Mr. Shitambala, learned Advocate for the Appellant and the Appellant this 4th day of June, 2018. Dr. M. C. Levira Judge 04/06/2018 Page 6 of 6