20190724 TZHC Mwanza2

) IN THE HIGH COURT OF TANZANIA ATMWANZA CRIMINAL APPEAL NO. 314 Of 2018 [Appeal from the Judgment of the District Court of Magu in Criminal Case No. 126/2017, fjon. EP. Kente/ Resident Magistrate] MAKUNGU JOHN ······························••a••·····••s ■■■■••··· /"\, APPELLANT ,_ -'~,, '\:\ ,'--..,, VERSUS \ ,. JU" July 2019 & 24h July 2019 M.M. SIYANI, J. . ;:; ,,..---:, .. •·'-· /, ,/\., \. \ \ \ ./ ', ',,, '·v" ',,·,• '\ ... ·· . The appellant one fYl~l<UQgL})~h-~ was/dtr1aigned at the Magu District Court . .----~-,. ',\, ,_ "\, . ',,\' " ............ '',, •.. ""'·· ·-~-~.,,,,,, ., ,., - •-•- '.:_: .-·/ . . and indicted forR~p~ Cohtta,y Jo section 130 (2) (e) and 131 (1) of the < \); ',\"'.!> . . Penal ~gg_~ / 3 Cap J6 BE--2Q02>rt was alleged by the prosecution that on ·-...,, 's,. . ,_ ~-- .,_' _, • 29th~e~t~-~~~-~\~0{7,at ~bout 14.00 hours at Kabila village in Magu \ \\ \ .\ '._ ,. . . .. \ \ ' Distri~>~wanza Region, the appellant did have carnal knowledge of one •··,·. ··,... ,/ ., . Riziki Sim;n-(pseudo· name used to conceal the identity of the victim) a girl aged 14 years old. Evidence tendered at the trial court shows on the fateful day, Riziki who testified as PWl was sent by her grandmother to collect her items from a person called Kusekwa. While on the way PW1 met her neighbour one Stephano Masasila who told her to follow· him. 1 ."'\ PW1 complied and the two matched toward the nearby bushes. While ...,,, walking Stephano told PWl that he wanted her to have sex with his friend I and he will give her Tshs 2,000/t; Upon reachin~ the bushes, they met ' the· appellant who was waiting, there. Staphano left the two alone. . According . to PWl, the appellant iseized the moment, • he undressed her pants and then did the same to himself. PW1 .told the~ ~ a t the two having undressed, the appellant had sexual i ~ ~ i t ~ n d thereafter they went to a place unknown.~~ wi{~y spent a 0 had sexual intercourse with PW1~~~mct morning PW1 returned y home where she revealed to one ~)~nga about what happened to ,~'v . her. Mary decided~~e~ee Station at Kabila and later to hospital for m~exa~i0], : · ~ ·~•·. "\ . >Y!· I . ~~ ~A~ \ . The\s\d Mary~:ay1:1~\,ja was also ~rocured in court and she testified as Pw2\she told 1t1~e court on how she met Riziki around 17hrs on 30th ."'-. - . . . . . _ _ _ ; J \ . ~ . I September 2017 when she returned, home after disappearing the previous . I day. According to PW2 having beenitold by PWl how the appellant raped . . her,--she examined ·her private part~ and witnes~ed a swollen vagina and I 1· blo'od stains. That's when she·decided ' ' to take her to Police Station where ' upon ·reporting the incidence, th~y were given a PF3 for medical . I ! 2 ' I examination. According to PW2, through the medical examination which was done by PW4, it was revealed that PW1 was raped. PW3's story was I similar to PW2. As hinted by PW2 and noted above, PWl's medical examination was done . · PW~ who is a clinical _office _at· Kabila heal~~wever his testrmornes on the findings wrth regard to PWtsta~eehifthe opposite of other prosecut;on's witness~~-~~ J~":urt that when exainining PWl she told her(t~.,wa~~ped and indeed· . ~.'\. ~~ ~ . when he observed her p r i v (~ r ~ ~ s i g n that she was raped. Upon conclusion o~strial}~ant was convicted and sentenced to a term o~~s ~~~ent. Aggrieved, he preferred this appeal agaih~~i1~a~tence advancing eight (8) grounds of corri~laints wlii\~f~he reasons that will be ~oted shortly, I intend not to rl~contents of the sard grounds rn thrs Judgment. · • • I • When the Appeal came for hearing on 18th July 2019, the appellant appeared in personal and Ms: ·Mwanahawa· Changale, the learned State . Attorney appeared for the Respondent. Given a chance to address the . . I court, Ms Ch~ngale was quick to dr~w the attention of the· court on two . i . . 3 , points of law. One; that the charge sheet which arraigned the appellant J and which ultimately led to his conviction and sentence was defective and . two; that the trial court's proceedings are subject of irregularities. With regard to the defects in the charge sheet, the learned State Attorney argued that there was omission to indicate the section 130 (1) of the Penal Code which is a provision that creates an offense of~e. In her view, failure tOindicate a provision of law which c r e a ~ G ~ r e d the charge sheet defective for it tantamou~~~~~';;e?son with a non existing Jaw. Ms Changale ~ \ ~ ~ ~ C o u r t of Appeal decision in Richard Maginga-Ys Repu~minal Appeal No.133 of 2016. ~ Changale contended~~i~~jZgistrate omitted to sign the proceedings . aft(~~Jestimonies of each witness as requirement of law . ,\ '\ '/ . . under,~O (1) (9) of the Criminal Procedure Act Cap 20 RE 2002. The learned State Attorney argued that ·such omis$ion ·was an incurable irregularity which rendered the whole proceedings_and Judgment thereof, a nullity and referred the case of Yohana Mussa Makubi and anothe~ . . . Vs Republic Criminal Appeal No. 556/2015.to support her stance . .4 As to what should be the remedy, the learned State Attorney, argued since the trial was tainted with irregularities in the charge sheet and proceedings, the court should nullify the proceedings by quashing both the conviction and the purported sentence and order a retrial of the case. The appellant on the other ha~d had nothing substantial to argue, presumably owing the technicality nature of the point~ised. He simply· requested the court to allow his appeal. ·~ . -~ \v✓ sheet which arraigned the agpeHant~~~rict Court for an offense of Rape, did not containf~ 3 ~ 6 f the Penal Code which in essence iS the p r o ~ ~ ~ offense charged. Ms Changale .believed t h t ~ t ·indiGati,that provision in the charge sheet the appellanL_i~k~~d the: charges before him. For easy of refeCn'~hat I'w-!1}saying shortly, I find it prudent that reproduce the \\ . \) . ! . conteA~n 130 (1) and (2).as hereunder: · . . I 130 (1) It is an offence for a male person to rape a girl or a woman . . . I (2) A male person commits-the offence of rape if he has se)(ua/ intercourse with agirl or a woman under circumstances falling . . under anv o( the following descriptions: 5 I (a) not being his wif~ or being his wife who is separated from ) him without her consenting to it at the time of the sexual intercourse; (b) with h~r consent where the consent has been obtained by the use of fore~ threats or intirpidatioiJ by putting her in fear of death or of hurt or while she is in unlawful detention; {c) with her consent when her consent has beenrobtained at a time when she was of unsound mind or was ~"'),state ot intoxication induced by any drugs, matter o>-tlff ~d~iisted? . \\ -")~ v to her by the man or by some other p~$On u..nle,.('.p?ovM that there ~as prior consent between<f!!:._e-..tw~\\ .. . If!, m~!Jf!J> he ts not her ( d) with her consent when husban~ and that her censent¼given..:because she has been ma~e to believe .tha~:;;_if:r.f;t''t whom, she is, or be!teves.herse~,o<!:J~wfully mame'd,· · (e) with or with6uther c Y / n she is under eighteen years ofage, u~he ~ n if-,his wife whO is fifteen or more years (( }) \v/, ·~zotsePf]ratlfdfron: the inan Mucq_~s I ag~~) that section 130 '.(1) above being a provision which '\~)j . . . . . . . establislies-.Q_o,.:offense of rape and, so makes it an offense for a male a person to rape a girl or woman, must be indicated in charge sheet where such offense is. involved, I. am of the. view that clarity on . _charges of rape . . is provideq under section 130 (2) or' the Penal Code. -As shown above, it is sectiqn 130_ (2) that explains the offense of rape by giving reasonable information as to the nature of the offense charged and the circumstances ') under which such offense can be committed. In my considered view, it is omission to cite a specific provision under this provision that would. have impacted the accused's ability to understand what he faces before a ·court of law. That was the position of the Court of Appeal of Tanzania Richard Maginga Vs Republic, (supra) a case referred by Ms~qgale. See also A~in Ismail Vs Republic, Crimi_nal Appea. I ~ 8 -'Oi)~A?mba . Nyagura Vs Republic, Criminal Appeal:o, ~ f ~' \\)~ 20\ and'Marekano . . -~-~ .. In the case which is subjed: of thi~'P.13~,~charge sheet indicates that· the appellant Was ~ } y o ~ n t r a r y to section 130 (2) (e) and 131 (1) o f t ~ ~ Co~5v5tated earlier, it was alleged that he had carnal knowledgeJr_1>~11?was a girl aged 14 years. in an incidence ~~~ ' tha{Mappemicl~ Ka~a village around 14hrs on 29th September 2017. By indi~g s~~130 (2) (e) the appellant was informed that it was an ""'-~ . ·. . offense of rape to have carnal knowledge of a girl of under eighteen years of age regardless whether there was consent or not. Those were sufficient information and so' despite omission tq cite sectton ·130 (1) of ttie Penal Code, I believe the appellant was sufficiently informed of the charges . . against him and. the tjefect did not go to the root of the .case itself. : I 7 The above said and done, I will now turn to the issue of failure to sign ) proceedings after records the testimonies of each witness. Apparently, the trial court's proceedings reveals failure by the learned trial ~agistrate to comply with the requirements of ~ection 210 (1) (a) of the Criminal Procedure Act which provides the manner of recording of evidence during trial. For easy of reference, I have. reproduced the c~nts of trye said provision as hereunder: . : ~w l~~-- 210: (1) In tnal~ other than>tnaf!~cJ~n 21,i by or before a magistrate, the Wid~ce i)f~.f!. witnesses shall be recorded in the follo1~nne~ "v {a) the evidence°{ ealh wit~s~allbe taken down in writing in the languag/efthe\~~magistrate or in his presence .and hearing\~ r his personal direction . and superil/e:;ei'ce and snal/1Je signed by him and shall form . "'-V {. V partof..the reco--;;;;::;; ·: . · (( ~~ : . ·. The li3~bove mclkes it mandatory for a magistrate or a presiding officer, ~- ' to sign the proceedings after recording evidence of ~ach · witness. The rationale for that requirement is _to ensure authenticity of court's ·proceedings. In. the matter at harid, the learned trial Magistrate, having recorded evidence of PW1 on 14th November, 2017 did not sign the same. . . . Sim_ilar omission can also be seen.on the testimonies of PW2, PW3, PW4 and PWS. There was completely no authentication of the proceedings ) even on the defense testimonies. Section 210 of the Criminal Procedure Act (supra) has been couched in mandatory terms which presupposes that its compliance is not an option. t therefore agree with Ms Changale that failure to sign proceedings after recording evidence of each witness, is an incurable irregularity. xt . t· ~t·h·. t . ~ t/":---dt . . t· T.h e above . .d d d th sa, an . one, e ne ques 10n th~ awa, s1my e _ermina_ ,on ~e--er~\~~ is what should be the fate of the p r o ~ ~ ~ \ n contravention to section 210 (1) (a) of This question has been a subject of several ~s-:f?om){e €ourt of Appeal of Tanzania. In Kanoni Basumfb~~~ ~pLiblic, Criminal Appeal No. 360 of 2015,~rt o~p@_al ofTanzania faced a situation where the . . t. \ ~ ) ld. >.,/1 .d .fth . t· ·t om1ss1on_ o s1g~pro.ce~--!!!_is,mvo ve some o e prosecu 10n w, _nesses. ·tr~<~\ . The(purt foundthe,-emission was fatal, and therefore expunged from the . \\ \ \ V. . recoras such evidence which were recorded in contravention to section -~ . 210 (1) (a) of the Criminal Procedure Act ~nd proceeded to determine the appeal basing on evidence that was left intact. In another ·case of Yohana Mussa Makubi and another Vs Republic Criminal Appeal No. 556/2015 a decision which referred with approval the . 9 decision in Walii Abdallah Kibitwa and two others Vs Republic, ) Criminal Appeal No. 181 of 2006 (unreported) the Court of Appeal dealt with a scenario where the failure to sign proceedings extended to . . both evidence from the prosecution and defence side. Underscoring the consequences of failure _to sign court proceedings the court observed the following. We are thus, satisfied that; fLlure $vne ~~aMend his/her signature after taking ~ihi',)viJe"nce of eveiy , ., ,s. an. ,ncurau,e whness . . '"'' 1rregu1an'L . /,/ ·n,,~\"'~ '>: ...,-, ,.,. in"-, ,e propeP ac.1m1n1sLTaL1on of criminal ;us/ice in Jh'Pcoudf:~~view of the stated omission the trial prbtf edinJ!f.o~igh Court were indeed vitiated and ac/'li n~lli[Y. and ~ither did they constitute the - ~~ ~"--//I record«½~ a~pealbefore us. . The c~~~e follow'.ng at page 13 of the Judgment: · (le are thus satisfied that before us there is no material dr?iceedinfs,0pon which the appeal ~ould be determined. In this - ~ - . . . regar<t we agree with the learned counsel and therefore invoke our jurisdiction under Section 4(2) of the AJA,, quash the . judgmen_t,, the trial proceedings of the High. Court commencing . . from 5th March,,_ 2014. ..... Thus,, in the interest of justic(!,,- ·we order an expedited retrial-before another judge with a different set Qf assessors. [Underlined Emphasis supplied] 10 . . ) My understanding to the above observation by the apex court of land is that where omission to sign the proceedings having recorded evidence of I I each witness, extends to all witnesses procured, then the entire trial I . proceedings vitiates and so becomes 1 I a nullity. In such circumstanc~, an ' appellate court would have no material proceedings upon which to . I determine the appeal and the remedy would be ~o in~ its revisionary powers to correct the irregularity. i . .. . ~:·. · . . th . . t . ' ~ ~ d - . . ft d' I n. th Is case, e om1ssIon o ~ cou.\ pro~s a er recor ing evidence of each witness, cov-, a ~ l ~ m both the prosecution and the defense side. Undfsect~~ of the Criminal Procedure Act, the entire pro~on'~~),.e did not form part of the record hence renderj~tr~~i~t the appellant a nullity. In my considered . ~~ L t)/ ·, ~ the_circums~ance ~} in- rilS appea th ere,ore . fit I s th e c1rcums . t ances .in view, 17·· -~}~ '--.:./._ . . . . YoHa~sa M_ atubi's c~se and_! in terms of that decision there are ~~ J I. therefore~material proceedings iUpon which· this appeal- could· be ~ I determined. ' . I . In the upshot, since the entire prosecution 1s case did not form· part of the . ; record, the trial against the appellant. was a nullity and this·court . .. cannot I • • I either uphold or dismiss ~hat is a nullity. I. i as a result, invoke revision . I . 11 l- I. . I powers conferred to this Court under section 373 ( 1) (a) of the Criminal I Procedure Act Cap 20 Revised 'Edition of 2002 by quashing the I proceedings and set aside the impuJned Judgment and sentence imposed_ . . by the District Court of Magu in Criminal Case No. 126 of 2017. ' Considering the circumstance_ in this· case, vis a vie the principles set in · H" Fatahali Manji Vs Republic [1966] E.A. 343, I be~~ order for a re-trial will be a just decision. I th~refore orde~th~~the trial Court be remitted to that court' for_ :t~oW~agistrate of competent jurisdiction after tl:le, ~ ~ ~ \ e n t s has beeii . ~\~~ effected to the charge sheeyurthe~der~hat should the new trial lead to the conviction, thllme t~~pe~as spent in prison serving /) \ \ v . ~) ~✓ . the current senteQEe"shoulcL~~.Ja~en into account when passing ~~- sentence. Or0~0rdinglY., j SJ I . -~ . I . :\ DATED at MWANZA this 24th Day of July, 2019 '-~) . - I - - ~ I • ' - M.M.SIYANI JUOGE