20190412 TZHC Mbeya

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) AT MBEYA CRIMINAL APPEAL NO. 81 OF 2017 (Appeal from the judgment of the District Court of /vlbozi District at Vwawa, Hon. Makwaya C. C. DRA4 in Criminal Case No. 277 of 2014) DIDAS S/O LUSAMBO ............................................................... APPELLANT VERSUS THE REPUBLIC ....................................................................... RESPONDENT RULING Hearing dote: 0810412019 Judgernent dote: 1210412019 MONGELLA, J. Didas son of Lusambo was convicted with the offence of rape contrary to section 130(1) and 131(1) of the Penal Code Cap 16 R.E. 2002 by the District Court of Mbozi District in Mbeya Region. In the trial it was alleged that, on the 30 91 of November 2014 during nighl hours, that is, at 20 hours, at Tontele 1 Village within Momba District in Mbeya Region, Didas had carnal knowledge of one Violeth daughter of Florence Simchimhi, a girl aged 15 years. The trial court found Didas guilty of the offence of rape, convicted him and sentenced him to thirty years imprisonment. Dissatisfied with this decision, he appealed to this Court. On the hearing date, Didas appeared in person and the respondent was represented by Ms. Rosemary Mgenyi, State Attorney. However, before the hearing of the appeal could proceed, Ms. Mgenyi submitted before the court that she has noted some legal flaws which have to be addressed before the hearing coud proceed. These flaws are: 1. That the trial court did not properly convict the accused person; 2. That the accused was charged under section 130(1) & (2) and section 131(1) of the Penal Code instead of section 130(1)(2)(e) and (3)(d) and 131(1) of the Penal Code, Cap 16; 3. That the preliminary hearing (PH) was not properly conducted. However, she submitted that among these flaws, it is only the one on omission to enter a proper conviction that was not cUrable. I basically agree with her arguments and therefore I will not dwell much on that. Regarding the sections of rape which were used to charge the appellant, the same is curable as long as it did not occasion any injustice to the appellant, particularly if he knew what was the real charge against him, that is, of rape of a girl aged 15 years. See, Jamal Ally @ Salum vs. Republic, Criminal Appeal no. 52 of 2017 whereby at page 9 the CAT stated: 'We have token note of the fact that the charge against the appellant was preferred under section 130 and 131 of the Penal Code, instead of section 130(2)(e) and 131 (1). However, we are of the firm view that the irregularity is curable under section 388 of the CPA, the particulars of offence having sufficiently informed the appellant that he was charged with the offence of raping a girl of twelve years old. Regarding the PH that was not properly conducted, the some is also curable where no injustice was occasioned to the accused person. The record of the trial court does not show any facts read to the accused, but only indicates the paragraphs that were admitted. Since the accused pleaded not guilty and the trial was conducted by calling witnesses to prove the case, then no injustice was occasioned to the appellant herein. 3 See the case of Joseph Munene & Ally Hassani vs. The Republic, Criminal 1 Appeal no. 109 of 2002 whereby the CAT stated that: 'Omission to do preliminary hearing does not vitiate the whole trial court proceedings if no injustice was occasioned to the accused person On the omission to convict, Ms. Mgenyi submitted that the appellant was not convicted by the trial court. The trial court did not adhere to the legal requirement which requires the judgernent to analyse the offence and the law which was used to convict the accused. She cited the case of Kelvin Myovela vs. The Republic, Criminal Appeal no. 603 of 2015, in \4'hich the CAT, at page 5 stated: 'It is not sufficient to find an accused guilty as charged. Failure to enter a conviction renders a judgement invalid. In fact, there is no valid judgement without a conviction having been entered, as itis one of the prerequisites ofo valid judgement. 4 At page 7 the CAT also stated: "Since in the instant case, the trial court did not enter a conviction, the judgement and the subsequent sentence were a nullity. Since they were a nullity there was nothing which the High Court could have upheld. The appellant had nothing significant to say when given the chance by the Court to respond to the respondents submission. He only said he partly agrees with the respondent's submission, but could not state what exactly he agrees or disagrees in that submission. I have gone through the judgment of the trial court and found that, at page 6, the trial court used the following words in convicting the appellant: 'On the foregoing reasons I hereby convict the accused and consequently to be liable for p unish men t. ! I in fact agree with the learned State Attorney that there was no conviction entered by the trial court. The words used in the trial court judgernent do not cmount to a proper conviction. Section 312(2) of the Criminal /- -.-, 5 Procedure Act, Cap 20 R.E. 2002 gives directions on what a judgement should contain where there is a conviction. It specifically states: "In the case of conviction, the judgement shall specify the offence of which, and the section of the Penal Code or other low under which, the accused person is convicted and the punishment to which he is sentenced." The provision thus requires the court to state the offence and the law in which the conviction lies. The omission to do this amounts to an incurable defect. Apart from the decision of Kelvin Myovela (supra) cited by the learned State Attorney, there a number of other decisions from the Court of Appeal which have stressed on this point. These include: Aman Fun gabikasi vs. Republic, Criminal Appeal no. 270 of 2008: Shaboni Iddi Jololo and three others vs. Republic, Criminal Appeal no. 200 of 2006; and Hassan Mwambanga vs. Republic, Criminal Appeal no. 410 of 2013 (all unreported). In all these cases the Court stated that the failure of the trial court to enter a conviction is a fatal and incurable irregularity. It renders the purported judgment and imposed sentence a nullity and thus the some cannot be upheld by the High Court in the exercise of its appellate jurisdiction. (See also, George Patrick Mawe & 4 others vs. Republic, 'j Criminal Appeal no. 203 of 2011 and John slo Charles vs. Republic, Criminal Appeal no. 190 of 201 1(unreporfed)). Following such defect in the trial judgement, the only remedy available is to remit the case file to the trial court for it to enter a conviction in accordance with the law before passing a sentence. (See, Kelvin Myovela (supra) at page 7; I therefore hereby order for the case file to be remitted to the trial court for a proper judgement to be composed. I as well hereby instruct the trial court the following: The trial court should compose a legally acceptable judgement by including a proper conviction based the same evidence adduced in court during trial. The judgement should comply with sections 235(1) and 312(2) of the Criminal Procedure Act, Cap 20 R.E. 2002; The trial court file should be returned to the trial court to comply with the above instructions; The appellant shall remain in custody and should be returned to the trial court for proper conviction and.upon the trial magistrate 7 compliance with the above instructions, the appellant may wish to lodge his appeal afresh; The time to appeal shall commence from the date when a proper judgement of the trial court is pronounced to the accused/appellant; For the interest of justice, the date of sentence of the accused shall remain the some date as he was put under confinement on the first time; The new judgement shall be completed within thirty (30) days from the date of this ruling. Order accordingly. L.M. MONGELLA JUDGE 12/04/2019 Dated at Mbeyo this 121h day of April 2019 :7. L.M. MONG ELLA JUDGE 12/04/2019 Pi 4 Court: Ruling delivered at Mbeya in Chambers on this 12 11, day of April 2019 in the presence of the Appellant andMs. Rosemary Mgenyi, State Attorney for the Respondent. Right of Appeal to the Court of Appeal has been explained. / / / 4;, •_' U 1? Z. L. M. MONG ELLA •v \ JUDGE .' -Ay "2 .f I /• -:r1 12/04/2019 k:-rç •.'