CRM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CORAM: KOROSSO, J.A.. KENTE. J.A. And MGONYA. J.A CRIMINAL APPEAL NO. 615 OF 2021 SILIVANUS NYAULULI @ MUSA..................................................... APPELLANT VERSUS THE REPUBLIC........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mbeya) (Monqella, J/) Dated 9th day of November, 2021 in Criminal Session Case No. 48 of 2018 JUDGMENT OF THE COURT 10th & 24th February, 2025 MGONYA, J.A.: The appellant, Silivanus Nyaululi @ Musa, a resident of Limseni village, within Mbarali district in Mbeya region, on the night of 31/01/2017, allegedly caused the death of his one-year-old son Mavuno Nyaululi, by piercing his head with a machete before he buried him inside their hut. He also allegedly attempted to murder his wife, Njendina d/o Kilunduma, and his three years old daughter, Eliza, d/o Nyaululi, during the same incident. i The facts of this case reveal that, on 31/1/2017, during night hours, the appellant returned home from his private movements. Upon arrival, he found his wife, Njendina, sleeping with their two children Eliza and Mavuno in the hut constructed on their farm. Unpredictably, he told his wife that he would finish them that night, as he had finished their other two children, suspecting her of having an extramarital affair with his brother. Suddenly, the appellant held a machete and cut his wife on the head, face, and knee. She fell outside the hut, bleeding profusely. The appellant also cut his daughter Eliza with the same machete on her head and threw her outside the hut. The little boy, Mavuno, who remained inside the hut, was heard crying once, and silence followed. The appellant then disappeared to an unknown place. On the next day, upon information reaching the village authority, some leaders visited the scene and found the appellant's wife and the daughter seriously injured. As the little boy was not found in the hut, they searched and later discovered fresh soil inside the hut. After a thorough search, they discovered Mavuno's body, with a serious wound on his head, buried inside the hut. The causalities were taken to hospital for treatment, and the matter was reported to Rujewa Police Station. The appellant was later arrested at a local pub in Igawa village in Mbarali district, drinking alcohol. He was handed over to police and later arraigned in the High Court of Tanzania, Mbeya Registry (Mongella, J.), charged with one count of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 (the Penal Code), and two counts of attempted murder contrary to section 211 (a) and (b) of the Penal Code. When the appellant appeared before the court for a hearing being charged with the above counts, he pleaded not guilty to the charges and further prayed to plead on the lesser offence of manslaughter contrary to sections 195 and 198 of the Penal Code in lieu of the murder charge. He further prayed that the 2nd and 3rd counts be read over to him, as he also wished to change his plea in those counts. As the prayer was not objected to by the prosecution, the court granted the same. The record on page 25 of the record of appeal reveals that, following the appellant's prayer, the charge of murder was substituted with that of manslaughter c/s 195 and 198 of the Code, respectively. Accordingly, information for manslaughter and attempted murder was read over to the accused, where he pleaded guilty to all three counts. The appellant was then convicted for manslaughter, contrary to sections 195 and 198 of the Penal Code, and on the offences of 3 attempted murder, contrary to section 211 (a) and (b) of the Penal Code. After mitigation, the appellant was sentenced to serve lifetime imprisonment. It is that sentence which is being challenged before us. Initially, the appellant lodged before the Court a memorandum of appeal comprised of four grounds of appeal. However, when the matter was called on for hearing, Ms. Caroline Mseja, the learned advocate, who appeared for the appellant, substituted the earlier filed memorandum of appeal with the supplementary memorandum of appeal having two grounds of appeal. The first ground was to the effect that, the trial court erred in holding that the appellant was properly convicted on his own plea of guilty. The second ground is on the trial court's failure to read the exhibits tendered during trial. Resisting the appeal on behalf of the respondent, Republic was Ms. Caroline Matemu, the learned Senior State Attorney, assisted by Mr. Lordgerd Eliamani, a learned State Attorney. Submitting on the 1st ground, Ms. Mseja informed the Court that after the appellant's previous charge of murder was substituted to that of manslaughter, though the appellant pleaded guilty to all the offences charged, his pleas were equivocal as he did not go further to state which offences he pleaded to. The learned advocate contended that, the appellant's pleas did not show that he knew the nature of the substituted offence charged. In that case, the learned advocate argued that, section 282 of the Criminal Procedure Act, Cap. 20 (the CPA) was not adhered to. Ms. Mseja based her contention in the decision of this Court in the case of Elias s/o Lucas v. Republic Civil Appeal No. 358 of 2020 (unreported), which sited with approval the case of Adan v. Republic [1973] 1 EA 445, a decision by the Court of Appeal for East Africa in which the Court considered the steps which should be followed to ensure a plea is unequivocal. From the said anomaly, the learned advocate prayed the Court to nullify the entire trial court's proceedings, quash the conviction and set aside the sentence meted on the appellant. Submitting briefly in alternative, on the 2nd ground, the learned advocate contended that, all exhibits tendered during trial were not read over to the appellant, rendering them to have been admitted improperly. She thus prayed all the exhibits be expunged from the record. Responding to the grounds of appeal, Ms. Matemu outrightly supported both the appellant's conviction and sentence, stating that the appellant's plea of guilty after substitution of the charge was unequivocal as he faultlessly pleaded guilty on all three counts. However, it was the learned State Attorney's concern that they had failed to find the whereabouts of the new or rather substituted charge to which the appellant pleaded guilty from the record of the appeal. In that regard, Ms. Matemu while acknowledging the importance of the charge in criminal cases, and upon its non-existence in the record, she prayed for a retrial of the case as there cannot be said that there was a legal plea in the absence of a substituted charge to allow the Court to scrutinize it. Concluding her submission on this ground, the learned Senior State Attorney prayed the Court to find merit in the 1st ground in respect of non-existence of the substituted charge in the record of appeal and make an order for retrial. In rejoinder, Ms. Mseja was quick to acknowledge that the information sheet in support of the new count of manslaughter was indeed conspicuously missing from the record. She thus supported the retrial prayer made by the learned Senior State Attorney as the remedy under the circumstances. We have dispassionately examined the submissions for and against the supplementary grounds of appeal and the authorities placed before us. Further, after a careful analysis of the evidence on record, we are now ready to determine this appeal. In the determination to this appeal, we will focus on the legal shortcoming which arose during the learned Senior State Attorney's submission. And this is the inquiry of the missing substituted charge and its fresh facts from the record of the appeal. In order to satisfy ourselves, we have seriously combed the record of this appeal. Indeed, as rightly submitted by the learned Senior State Attorney, there is no dispute that in the entire record of the Court, neither the substituted charge nor the new set of facts read over to the appellant before he pleaded, were found. It is clear that, under those circumstances, the substituted charge of manslaughter against the appellant and its respective facts are not known to the Court. Thus, the conviction and sentence against the appellant remain incomprehensible without the availability of the substituted charge in respect of the new count of manslaughter for our scrutiny. The issue, therefore, is what is the effect of the substituted charge missing from the record of the appeal? Rule 71 (2) (b) of the Court of Appeal Rules, 2009 (the Rules) requires, among other things, that the record of appeal shall contain copies of "the information, indictment or charge". It was held in the case of Paulo Apolo v. Republic (Criminal Appeal No. 260 of 2015) [2016] TZCA 812 (23 May 2016); TANZLII that: 7 "The charge sheet or information is a vital document in a criminal proceeding because it substitutes a criminal case. Its purpose is to give intimation to the accused o f dear, unambiguous and precise notice o f the nature o f the accusation that he is called upon to meet in the course o f a trial. This is an essential component o f any fair trial. (See MUSSA MWAIKUNDA v. R (2006) TLR 387. On the other hand, the purposes of appeals in criminal cases, among others, are: i. to protect appellants against prejudicial legal errors in the proceedings leading to conviction and against verdicts unsupported by sufficient evidence. ii. authoritatively to develop and refine substantive and procedural doctrines o f criminal law; and Hi. to foster and maintain uniform, consistent standards and practices in criminal cases. (See AMERICAN BAR ASSOCIATION http/www. abanet.org)." Further, it is well established that the duty to prepare the charge and facts upon substitution of charge, squarely lies to the prosecution. This was well stated in the case of Josephat James v. Republic (Criminal Appeal 316 of 2010) [2012] TZCA 159 (1 October 2012); TANZLII where it was insisted by the Court that: 8 "The duty is that o f the prosecution to state the facts which establish the offence with which an accused is charged. The statement o f facts by the prosecution serves two purposes: it enables the magistrate to satisfy himself that the plea of guilty was really unequivocal and that the accused has no defence, and it gives the magistrate the basic material to assess sentence" We have revisited the record of appeal. Page 25 of it reveals what transpired before and after the appellant's advocate uncontested prayer to substitute the offence of murder with that of the manslaughter granted by the court. The same reads: "Ms. Mgeni, State Attorney: Madame Judge, we on the Republic do not object the prayer by the defence. We therefore pray to amend the charge o f Murder to Manslaughter contrary to sections 195 and 198 o f the Penal Code, Cap. 16 o f 2019. We bring the prayer under section 276 (2) o f the CPA, Cap. 20 R.E. 2019. Court: The charge o f Murder is substituted with that o f Manslaughter contrary to section 195 and 198 o f the Penal Code, Cap. 16 R.E. 2002. Court: Information on Manslaughter and Attempted murder is read over to the accused person in the language he understands (Kiswahili) and who is asked to piea thereto. Sgd. L M. Mongella Judge 9/11/2021" The absence of the substituted charge in the record, has brought about a considerable uncertainty, so much so, it is not clear under which provision of the Penal Code, the appellant was charged and convicted with. It is equally difficult for this Court now, despite of the above extract from the record, having not seen the substituted charge sheet, to determine whether the appellant was properly charged and convicted, that is whether the plea was unequivocal or not in light of the content of the charge and the facts. It is trite that a plea to a new or altered charge be taken from an accused person. Failure to do so renders a trial a nullity. See the case of Thluway Akonaay v. Republic [1987] TLR 92, CA. We also subscribe in full to the position taken by the Supreme Court of Uganda in Omiat v. Uganda [2003] EA 266 when the Court addressed itself on the missing ruling in the record on a trial within a trial. At page 229, the Court observed: "An appellant is entitled to have at his or her disposalthe entire record o f proceedings under which his or her conviction is founded. Only on this basis is the Appellant availed all the opportunities to challenge every step and aspect leading to his or her conviction and sentence. Moreover, appellate court would be unable to satisfy themselves that the trial court was correct in reaching its decision about the trial within a trial. " Likewise, in the case of Sylvester Albogast v. Republic (Criminal Appeal 309 of 2015) [2016] TZCA 238 (14 April 2016); TANZLII, it was held that: "It is trite law that one o f the fundamental principles o f our criminal justice is that\ at the beginning o f any criminal trial, the accused must be arraigned\ which means that the court has not put the charge or information to him and required him to plead. Non-compliance with this requirement renders a trial a nullity. But to commence lawful proceedings, the charge must disclose an offence known to law. A defective charge cannot commence a lawful trial". In light of our observations above, it is our view that, under the given circumstances, neither the prosecution nor the appellant is to be ii blamed. Moreover, we are not sure whether the appellant received a fair trial, as his conviction is not safe. The right to access to documents during and after the trial was also discussed by this Court in the case of Alex John v. Republic, Criminal Appeal No. 129 of 2006 (unreported). The Court at page 26 held: "... an accused and/or his counsel must be granted access to appropriate information files and documents necessary for the preparation o f the defence ... Such access in our considered opinion, should be granted before the trial during the trial and after the trial in case o f a conviction for appeal purposes. '' This Court in the case of Samwel Gitau Saitoti @ Saimoo & Another v. Republic (Criminal Appeal 5 of 2016) [2019] TZCA 307 (30 August 2019); TANZLII, when dealing with the same situation, had this to say: "We are inclined to agree that the complaint is justified but even if it was not■the determination o f it this way or the other can only be made by examining the charge sheet resulting into the appellants' conviction. Without the substituted charge sheet in the record o f appeal, the Court cannot be in a position to determine whether or 12 not the appellants were convicted on the basis o f a proper charge." In the result and for the aforementioned reasons, under the given circumstances in the absence of the substituted charge and facts of manslaughter in the record, and considering the seriousness of the offence, we are of the view that the prosecution must be given an opportunity to pursue its case against the appellant upon compliance with the law. In the event, having allowed the first ground of appeal on that aspect, consistent with our decision in Paulo Apolo's case (supra), we are constrained to invoke our revisional powers vested on us under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 and nullify the proceedings of the trial court, quash the conviction and set aside the sentence thereof. Further, we proceed to order that the case file be remitted to the trial court with immediate dispatch to proceed with trial immediately before the appellants' plea to the missing substituted charge dated 09/11/2021. Taking into consideration the time the appellant has spent in prison; the remaining trial be conducted expeditiously. Should it be 13 followed by another conviction, the time that the appellant has already spent in prison be taken into account in the new sentence. From the foregoing, we do not see the need to labor in determining the 2nd grounds of appeal presented before the Court. In the meantime, the appellant shall remain in custody awaiting continuation of trial. Ordered accordingly. DATED at MBEYA this 24th day of February 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 24th day of February, 2025 in the presence of appellant in person and Mr. Rajabu Msemo, learned State Attorney for the Respondent/Republic through video conference from High Court Mbeya, is hereby certified as a true copy of the original.