20190531 TZHC Mbeya

() IN THE HIGH COURT OF TANZANIA ATMBEYA CRIMINAL APPEAL No. 232 OF 2018 (Original Criminal Case No. 239 of 2016, In the District Court of Mbarali District, at Rujewa). CHAMBI S/0 LUKELESIA..I..U............I.....I.......APPELLANT VERSUS REPUBLIC. 11•U • ... . . . . . .............. .......... •1• RESPON DE NT )UDGEMENT 27 & 31/05/2019. UTAMWA, 1 In this appeal, the appellant, CHAMBI Sf0 LUKELESIA challenges the judgement (impugned judgement) of the District Court of Mbarali District, at Rujewa (the trial court) in Criminal Case No. 239 of 2016. Before the trial court the appellant stood charged with the offence of rape contrary to section 130 (2) (e) and 131 of the Penal Code, Cap. 16 R. E. 2002. It was alleged that, on 1st day of September, 2016, at Nyamakuyu village within Mbarali District and Mbeya Region, the appellant did unlawfully have sexual intercourse to one Minza d/o Fadhili, a girl aged 14 years. The appellant pleaded not guilty to the charge, hence a full trial. At the end of the trial, the trial court found the appellant guilty, convicted and sentenced him to serve 30 years in prison. It also ordered him to Page lofl t I compensate the victim of the offence with Tanzanian Shillings (Tshs.) 1, 000, 000/= (One Million). Aggrieved by the conviction, sentence and the compensation order, the appellant preferred this appeal for search of better justice. His petition of appeal is based on seven (7) grounds of appeal. However, the grounds can be smoothly condensed to only two (2) as shown bellow: That, the trial court erred in law and fact in convicting and sentencing the appellant, and in making the compensation order against him though the prosecution had not adduced sufficient evidence to prove the charge beyond reasonable doubts. That, the trial court erred in law in not considering the appellant's defence in deciding the case. Regarding the first improvised ground of appeal shown above, the appellant in his petition of appeal, essentially complained that, the trial court had erroneously based the conviction on insufficient evidence. He further protested that, the victims evidence was erroneously received since no voire dire was conducted before she testified. The PF. 3 in respect of the victim's medical examination was also erroneously received in evidence. Furthermore, the medical examination of the victim revealed that, there was not bruises on her private parts. Regarding the second innovated ground of appeal, he barely complained that, the trial court did not consider his defence case/evidence. Owing to the above highlighted grounds of appeal, the appellant urged this court to allow the appeal, quash the conviction, set aside the sentence and set him free from prison. Page 20112 14 11 which said particula .. When the appeal was called upon for hearing State Attorney thus court and the respondent (Republic) was represente the glitches mentior learned State Attorney. Before the hearing of the ap On his part, t prompted the parties to address it on the legal effec the reason that, he that are notable in the proceedings of the trial co The court the include the following: firstly, the trial court did not r decision regarding I appellant and take his plea after conducting prelir merits of the appea section 192 of the Criminal Procedure Act, Cap. 20 F unnecessary delays, the trial commenced by recording the prosecution e During the he charge sheet did not specify the sub-section of s€ his petition of appez being the sentencing section. On his part, In replying to the court's inquiry, the learned essentially argued respondent conceded to the existence of the irr conviction. There v. above. He however, argued that, the omission the victim of the a irregularity was not fatal to the trial court's proceedin below 14 years). I the trial court had read the charge to the appellai conduct voire dire before it and his plea was taken. Again, soon b section 127 (2) of t hearing was conducted, the charge sheet was read Act No. 2 of 2016. was accordingly taken. 2016 before the vici The learned State Attorney further contend The learned S omission was equally not lethal for the following rea5 properly received ii that creates the offence of rape was properly cited recalled for the Pu The particulars of the charge sheet were also clear s contended that, lac age of the accused. Moreover, he contended that, s irrelevant since the provides sentences according to the age of the acci Page 3 of 12 has to be proved. He added that, the appellant's defence was properly considered by the trial court as shown at page 8 of the impugned judgment. Even if it is found (by this court) that the defence was not considered, this court, as the first appellate court has powers to re- evaluate the trial court evidence and make a proper decision. He fortified this position of the law by a decision of the Court of Appeal of Tanzania (CAT) in the case of Prince Charles Junior v. Republic, Criminal Appeal No. 250 of 2014, CAT at Mbeya (unreported). He therefore, urged this court to dismiss the appeal. I have considered the arguments by the leaned State Attorney, the grounds of appeal, the record and the law. My adjudicating plan in this appeal is thus, to firstly consider the legal effect of the abnormalities in the trial court's proceedings discussed above. In case I will find them not fatal, I will proceed to consider the grounds of appeal and the details of the arguments by the learned State Attorney. In case I find the irregularities lethal to the proceedings, I will make necessary orders according to the law of the land. The major issue before me at this juncture is therefore, this: what is the legal effect of the slips discussed above. In answering this issue I will consider the blunders one after another. Regarding the first anomaly, I am of the following views: The law is clear and trite that, reading and explaining the charge to the accused appearing before a subordinate court and taking his plea is not only mandatory, but also a process that ensures that the accused's fundamental right to plead is observed. The same also promotes his right to fair trial, hence the existence of section 228 (1) of the Page 5 of 12 CPA. It is also a requirement under the law of this land that, even after taking the accused's plea before conducting preliminary hearing, the trial court must re-take his plea after conducting preliminary hearing, i. e. before it commences the trial by recording the prosecution evidence. This legal requirement was underscored by the CAT in the cases of Emmanuel Malahya v. Republic, Criminal Appeal No. 212 of 2004, CAT at Tabora (unreported) and Cheko Yahya v. Republic, Criminal Appeal No. 179 of 2013, CAT at Tabora (unreported). In the Cheko Yahya case (supra), it was further held that, failure by the trial court to take the plea of the accused after conducting preliminary hearing, and before the trial commences (by receiving the prosecution evidence) is fatal. This is because the right to plead is a fundamental right of the accused person. That omission deprives the accused of his right to fair trial. The CAT based this decision on the reasons that, the actual plea that counts is the one taken after preliminary hearing, i.e before the trial commences by taking the prosecution evidence. Other pleas, say those taken during or before the preliminary hearing are not for purposes of trial. They are merely intended to get an overview of the trial which has otherwise not began because, preliminary hearing is not a trial itself. Indeed, in the Emmanuel Malahya case and the Cheko Yahya case (just cited above) the CAT considered trials that had been conducted before the High Court, as differentiated from summary trials conducted before subordinate courts like the one under discussion. Nonetheless, the rules of preliminary hearing under section 192 of the CPA apply equally in Page 6 of 12 both situations, i. e. before the High Court and in subordinate courts. Moreover, the legal requirement to read and explain the charge/information to the accused person and take his plea before commencing trials, applies in the High Court and in subordinate courts; see sections 275 (1) and 228 (1) respectively, of the CPA. By parity of reasons therefore, this particular stance of the law just demonstrated above, makes the two precedents by the CAT (just cited above) applicable to the appeal at hand. I also underscored the above highlighted legal position in my previous decisions including Rashid s/o Lugolola v. Republic, (DC) Criminal Appeal No. 36 of 2017, High Court of Tanzania, at Tabora (unreported) and Peter s/o Joseph v. Republic, DC Criminal Appeal No. 53 of 2016, High Court of Tanzania, at Tabora (unreported). It must also be noted here that, according to the common law doctrine of stare decisis which is also applicable in our legal system, decisions made by the CAT, as the highest court in the court hierarchy of our jurisdiction, are binding to courts and tribunals subordinate to it, including this court; see )umuiya ya Wafanyakazi Tanzania v. Kiwanda Cha Uchapishaji cha Taifa [1988] TLRI 146 (by the CAT). The right to fair trial underscored in the Cheko Yahaya Case (supra), is one of the fundamental rights of an accused person. It is also effectively enshrined under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, Cap. 2 R. E. 2002. The significance of this right was efficiently underlined by the CAT in the case of Kabula d/o Luhende v. Republic, Criminal Appeal No. 281 of 2014, CAT, at Page 7 of 12 Tabora (unreported). The CAT in this case held that, this right is one of the cornerstones of any just society. It is also an important aspect of the right which enables effective functioning of the administration of justice. Furthermore, it our trite law that, a decision of the court reached upon a denial of the accused's right to fair trial cannot stand. The accused's right to fair trial cannot thus, be easily violated by any court. Having observed as above, and owing to the stance of the law I have highlighted, I find that, the omission discussed above regarding the case under consideration, was fatal to the trial court's proceedings for occasioning injustice to the appellant. I now consider the consequences of the second irregularity regarding the omission to specify the sub-section of section 131 of Cap. 16 in the charge, as the sentencing section. Before I discuss this anomaly, I find it pertinent to elaborate on the statutory anatomy of sections 130 and 131 of Cap. 16 and their relationship. It is common ground that, section 130 of Cap. 16 has five sub-sections stipulating various circumstances of committing the offence of rape. Some of the sub-sections embody sub-sub- sections. Section 130 (2) (e) of Cap. 16 under which the appellant was charged, is among the sub-sub-sections mentioned above. It reads thus: and I quote the same for a swift reference; "130 (2): A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions:' (e): with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man." Page 8 of On the other side, section 131 of Cap. 16 encompasses three subsections. The sub-sections provide for various punishments of rape. Each of such specific punishment corresponds with specific circumstances stipulated under the sub-sections (or sub-sub-sections) of section 130 of Cap. 16. It follows therefore that, according to the makeup of sections 130 and 131, where an accused is charged with rape under given circumstances stipulated under section 130 of Cap. 16, the charge sheet must specify, not only the proper sub-section (or sub-sub-section) of section 130 under which the accused is charged, but also the proper sub- section of section 131 that provides for the sentence corresponding to the circumstances at issue, otherwise the charge becomes incurably defective. The above highlighted legal requirement was underscored by the CAT in the case of Elisha Mussa v. Republic, Criminal Appeal No. 282 of 2016, CAT at Tabora (unreported). In this case, the CAT considered an appeal regarding the offence of rape (statutory rape). The statement of offence in the charge sheet showed that, the appellant had been charged under section 130 (1) (2) (e) of Cap. 16 and 131 (1) of Cap. 16. The CAT held that, the proper sentencing section was section 131 (3) and not section 131 (1) of Cap. 16. It thus, resolved that, the sentencing section was wrongly cited in the statement of the offence for the charge sheet. The CAT in the Elisha Mussa case (supra) further highlighted the significance of citing a proper sentencing provision in the statement of offence for any charge sheet. It observed that, an accused person is Page9of entitled to know the specific sentence applicable in case he would be found guilty. It added that, such properly cited sentencing section of law keeps him (the accused) informed of the nature of the sentence to be imposed upon him in case he will be convicted of the offence charged. The CAT also stated that, the requirement assists the accused not to take his case lightly, but more seriously, hence properly arrange his defence. It further underscored that, citing a wrong sentencing provisions in a charge sheet, cannot be considered as giving a fair trial to the accused. In deciding the Elisha Mussa Case (supra), the CAT followed its previous decision in the case of Swalehe Ally v. Republic, Criminal Appeal No. 119 of 2016 (unreported). The CAT (in the Elisha Mussa case - supra) therefore, quashed the proceedings of both the trial District Court and this Court for the omission discussed above. Now, since the CAT held in the two precedents just cited above that a wrong citation of the sentencing section of the law in the charge sheet is fatal to the proceedings of the case for depriving the accused of his right to fair trial, by parity of reasons, this court is also entitled to hold, in the case at hand, that, the absolute failure to cite the sentencing sub-section of section 131 of Cap. 16, was equally fatal to the proceedings of the trial court and rendered the charge sheet incurably defective. I accordingly hold so. The guidance by the CAT in the Elisha Mussa case (supra), must be followed by this court. This follows the understanding that, decisions made by the CAT are binding this court as emphasized earlier. Page The right to fair trial underscored by the CAT in the Elisha Mussa Case (cited previously), is one of the fundamental rights of an accused person. It cannot thus, be easily violated by any court as I underlined previously. Owing to the grounds demonstrate above, I find that, the proceedings and the conviction against the appellants are liable to be quashed for being a nullity. The impugned judgment, the sentence and the compensation order are also liable to be set aside for invalidity. This particular finding is forceful enough to dispose of the entire appeal.. It therefore, makes it legally unnecessary to consider the merits or otherwise of the grounds of appeal listed above. I will not thus consider them. I have also considered whether or not to order a retrial upon making the above finding. However, it is apparently the law that, it is improper to order for a retrial where the charge has been declared incurably defective. In underscoring this stance the CAT rejected the invitation by the respondent (Republic) to order for a retrial of the appellant in the Elisha Mussa case (supra). It observed, at the last page (i. e. page 11) of the printed version of the Judgment thus, and I quote the pertinent paragraph for a readymade reference: "With due respect to the learned State Attorney, we decline his invitation. As we have endeavored to demonstrate above, the charge is the foundation of any criminal trial. After we have held that the charge is fatally defective it means there is no charge in existence on which the appellant can be retried." In underscoring the legal position just highlighted above, the CAT in the Elisha Mussa case (supra), followed its previous decision in the Mayala Njigailele v. Republic, Criminal Appeal No. 490 of 2015 (unreported). I will not therefore, order any retrial against the appellant in Page 11 c the case at hand since I have already declared the charge against him incurably defective. Having observed as above, I exercise revisional powers of this court and make the following orders: The proceedings and the conviction against the appellant are declared a nullity and are accordingly quashed. The impugned judgment, the sentence and the compensation order are also set aside for invalidity. The appellant shall be released from prison forthwith unless held for any other lawful cause. It is so ordered. 31/05/2019. Page 12 of 12