abdul festo vs republic 2021 tzhc 9294 14 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA DISTRICT REGISTRY AT BUKOBA CRIMINAL APPEAL NO. 43 OF 2020 {Arising from Criminal Case No. 181 of 2018 in the District Court ofBukoba before Gasabiie R.M. date on 31/03/2020) ABUDUL FESTO................................... ...............APPELLANT VERSUS REPUBLIC................................................... RESPONDENT JUDGMENT 15/10/2021 & 14/12/2021 NGIGWANA, J. The appellant, Abdul s/o Festo was charged before the District Court of Bukoba at Bukoba on two counts; Rape contrary to section 130(1) (2)(e) and 130(1) and of the Penal code cap. 16 R: E 2002, now R: E 2019, the second count being Impregnating a school girl contrary to section 60A of the Education Act Cap. 353 R: E 2002, now R: E 2019, as amended by section 22 of the written Laws (Miscellaneous amendment) (No. 2) Act No. 4 of 2016. The prosecution alleged that the appellant on unknown date, day of August 2018 at Kashai area within Bukoba Municipality in Kagera Region, did have carnal knowledge of a girl aged 17 years old who for the purpose of this judgment, will be referred to as the victim or (PW1), a secondary school student. It is further alleged that, as a result of the said rape, PW1 conceived. i According to the record, when the appellant was arraigned before the District Court on 23/11/2018, he pleaded not guilty to the charge. As a result, the prosecution summoned six (6) witnesses namely; the victim (PW1) Farida Rajabu (PW2) Venant Johakim (PW3), Fredrick Anthony (PW4), Thomas Ngilwa (PW5) and WP 6542 D/C Rosemary (PW6) and tendered four (4) exhibits to wit; PWl's Clinic Card (exhibit Pl) PF3 (exhibit P2), Attendance Register (Exh. P3) and DNA report (exhibit. P4) to prove the case against the accused person, while the appellant stood himself as the only defense witness. At the end the trial, the court was convinced that the prosecution had proved the charge beyond reasonable doubt, therefore the appellant was convicted and sentenced to thirty (30) years imprisonment on each count, and sentences were ordered to run concurrently. The appellant was aggrieved by both the conviction and sentences, hence lodged the present appeal on the following grounds:- 1. That the presiding Magistrate erred both in law and facts in admitting exhibit P4 which contravened the provisions of section 240(3) of the Criminal Procedure Act. 2. That, the appellant was convicted on evidence which required corroboration. 3. That, essential ingredients of the offence were not proved. 4. That, no explanation as to why the incidence was not reported at the earliest opportunity moment. 2 5. That, the identification of the appellant by the VEO-Maiga was improper. 6. That, there was noncompliance section 291 (3) of the Criminal Procedure Act, Cap. 20 R: E2002. 7. That, the case against the appellant was not proved beyond reasonable doubt. When the appeal was called on for hearing, the appellant appeared in person and unrepresented while the respondent Republic was represented by Ms. Veronica Moshi, learned State Attorney. Submitting on the first ground of appeal, the appellant stated that exhibit P4 was admitted contrary to the law. On her side Ms. Veronica submitted that the 1st ground of appeal is devoid of merit because exhibit P4 was admitted in the presence of the appellant and when asked as to whether he had any objection, the appellant raised no objection. Veronica further stated that exhibit P4 was tendered by the investigator (PW6) of the case, hence a person who had knowledge and competent to tender it. In the case at hand, the records revealed that preliminary hearing was conducted on 07/01/2019. The prosecution listed only four (4) exhibits as their intended exhibits to wit; PF3 of the victim, birth certificate of the victim, ultra sound of the victim and attendance Register of Bukara Secondary School. However, on 04/11/2019, the hearing was adjourned on the ground that the DNA report was not yet sent by the Government Chemist. Let the record speak for itself; 3 PP:" We are still waiting for the DNA test from Government Chemist Agency" The same ground for adjournment was repeated on 18/11/2019, 02/12/2019 and 17/12/2019. On 28/01/2020, the prosecution side vide Mr. Haruna, learned State Attorney prayed to the court to abandon the intended DNA test and proceed with the hearing. The trial court record is as follows:- Haruna: "For hearing and I pray to abandon the DNA test and proceed with the hearing" Court: "Prosecution prayer to abandon DNA test granted. Sgd: N.S. Gasabiie, RM" On 10/03/2020, PW6 appeared and testified in court. Examination in-chief was led by Mr. Haruna, learned State Attorney, where as he led PW6 to tender DNA test. The same was admitted as exhibit P4. The trial court record read; "Court: DNA report in hereby received as exhibit P4 Sgd. N.S. Gasabiie, RM" Under the circumstance it cannot be said by any means or whatever standard that exhibit P4 was properly admitted in evidence it was improperly admitted. That renders Exh.P4 exhibit ineffective and the available remedy is to expunge it from the records. That being the case, I 4 hereby expunge exhibit P4 from the records for being un procedurally admitted and relied on. I have also noted there was non- compliance of section 214 (1) of the CPA Cap. 20 R: E 2019, the fact which was conceded by the parties to this case and fully supported by the trial court record. In the case of DPP versus Laurent Neophistus and 4 others, Criminal appeal No. 252 of 2018 the Court of Appeal of Tanzania interpreting the herein above provision had this to say. " The change of trial Magistrates is not a simple act to be taken casually but such a serious matter which should be approached with the seriousness it deserves, that is to say; whenever it is compelling for a new trial magistrate to take over from a previous one, he must record the reasons for doing so and invite the accused person to express his position if he will require that the witnesses whose evidence had been taken by the previous magistrate be recalled to testify before a new trial magistrate, and the non-compliance of section 214(1) of the CPA renders the proceedings before the new magistrate a nullity for lack ofjurisdiction." In the case at hand let page 29 of the typed trial court proceedings speak for itself; Haruna, State Attorney: "For mention and the case was before Hon. Rwehabuia of pray for court directives" 5 Court: "Kes, the case was before Rwehabuia who has been transferred to another working station and the case re-assigned before me, and I will proceed from where it ended pursuant to section 214 of the CPA Cap. 20 R:E2002" Sgd: N.S. Gasabile, RM 14/01/2020 It apparent that the successor magistrate partly complied with the said provision because he assigned reasons for the takeover of the proceedings but he did not invite the accused person to express his position if he will require that the witnesses whose evidence had been taken by the previous magistrate be recalled to testify. The Court of appeal further insisted in the case of Gharib Ibrahim Mgalu Versus Republic, Criminal Appeal No. 05 of 2019 CAT (unreported) that as per section 214(1) of the CPA Cap. 20, an accused should be informed of his right to have the trial Continue or start afresh because the right to be heard is so fundamental, and therefore the court has an obligation to conduct a fair trial in all respects. The records further revealed that, on 28/01/2020 when the case came for hearing the appellant without being invited by the court, attempted to exercise his right. Let page 30 of the typed proceedings speak for itself; Accused: " I pray for the case to start afresh" 6 Court: Accused's prayer denied as I previously introduced to both parties that I will proceed with the hearing from where Hon. Rwehabuia ended following his transfer to another working station pursuant to section 214 of the CPA cap. 20 R: E 2002. This is due to the fact that I went through trial court records and being satisfied that the hand writing is readable and there is no reason from accused why he want the case to start afresh with regard that this is a case of November, 2018 and today is January 2020 therefore accused prayer is denied. Sgd: N.S. Gasabiie. The prosecution side was not even afforded an opportunity to react on the appellant's prayer. Under the circumstance of this case, it cannot be said that there was compliance of section 214 of the CPA Cap. 20 or that the trial Magistrate discharged the duty imposed upon him by the said provision of law. Again, it cannot be said that, the trial was fair. Given to what transpired in the trial court, nullification of the entire proceedings of the trial court proceedings is unavoidable. For that matter, I see no compelling reasons to consider the other grounds of appeal as it would be a mere academic exercise which I opt not to do. The question now is whether this court should make an order for retrial or otherwise? In the case of Selina Yambi and Others versus Republic, Criminal Appeal No. 94 of 2013 CAT (unreported). It was held that; "Generally, a retrial will be ordered if the original trial is illegal or defective. It will not be ordered because of insufficient of evidence or for the purpose 7 of enabling the prosecution to fill up gaps. The bottom line is that, an order should only be made when the interest ofjustice require" What transpired in the case at hand rendered the trial a nullity. In the event, I allow the appeal, nullify all the proceedings of the trial court, quash the conviction and set aside the sentence of 30 years imprisonment meted by the trial court on each count. However, bearing in mind what transpired in this case and the interest of justice, I find it to be a fit case to order, as I hereby do, a trial denovo before another Magistrate with competent jurisdiction. I accordingly direct the trial court's record be remitted back for the trial to be expeditiously recommenced. It is so ordered. Judgment delivered this 14th day of December, 2021 in the presence of the Appellant by Virtual Court while in Kwitanga Prison, Mr. E .M. Kamaleki, Judges Law Assistant and Mr. Gosbert Rugaika B/C, but in the absence of the Republic/ Respondent. 8