CRIMINAL APPEAL NO 375 OF 2022 DANIEL AMOS VS REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWARIJA J.A., LEVIRA, J.A. And MASOUP, J.A.) CRIMINAL APPEAL NO. 375 OF 2022 DANIEL AMOS................................................................................... APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Philip, J.) dated 5th day of June, 2020 in Criminal Appeal No. 41 of 2020 JUDGMENT OF THE COURT 6th & 11th December, 2024 MASOUP, J.A.: The appellant was at the District Court of Babati at Babati (the trial court) charged with the offence of unnatural offence contrary to section 154 (1) (a) (2) of the Penal Code, Cap. 16. The allegation by the prosecution was that the appellant, then aged 19 years, did have, on 7th February, 2020 at Imbilili village within Babati District in Manyara Region, carnal knowledge of a girl of 4 years, whose identity is herein concealed, against the order of nature. Before the trial commenced, the trial court had on 25th February, 2020, entertained doubt on the age of the appellant and required it to be established before the case could procecd. Consequently, a copy of clinic card of the appellant was on 17th March, 2020 brought by the prosecution to the attention of the trial court. As a result, the trial court made a finding on that day that the 1 appellant was, indeed, aged 19 years as indicated in his personal particulars in the charge sheet. The proceedings, thereafter, continued to the preliminary hearing stage on 14th April, 2020 and was followed by a full trial which commenced from 27th April, 2020 up to 1st October, 2020 when defence evidence was given and the defence case was eventually closed. After the trial in which the prosecution procured a total of six witnesses and tendered two exhibits and the appellant was the only defence witness, the trial court found the appellant guilty as charged, convicted and sentenced him to life imprisonment. Apparently, the full trial that was conducted and the sentence that was imposed were all based on the understanding that the appellant's age was, following the doubt entertained by the trial court, eventually established as that of an adult of 19 years. As the appellant was aggrieved by the conviction and sentence meted out on him, he unsuccessfully preferred a first appeal to the High Court in which he complained, among other things, about the finding of the trial court that he was of 19 years of age when he was arraigned before the trial court for the offence he was charged with. In this appeal, therefore, the appellant is, on a number of grounds of appeal, challenging the concurrent findings by the two lower courts which found him guilty of the offence as charged and sentenced him to life imprisonment as a result. For the purpose of determination of the instant appeal, it is critical to consider whether there was misapprehension of evidence, misdirection or non­ 2 direction on evidence, violation of some principle of law or practice, or any miscarriage of justice entitling us, as a matter of the rule of practice, to interfere with the finding as we held in, among many others, the cases of D.P.P v. Jaffari Mfaume Kawawa [1981] T. L. R. 149; Musa Mwaikunda v. Republic [2006] T. L. R. 387; Emmanuel Mwaluko Kanyusi and 4 Others v. Republic (Consolidated Criminal Appeal Nos. 110 of 2019 and 553 of 2020) [2021] TZCA 215 and; Noel Gurth a.k.a. Bainth and Another v. Republic, Criminal Appeal No. 339 of 2013 (unreported). At the hearing of this appeal, the appellant appeared in person unrepresented. On the other hand, the respondent Republic was represented by Ms. Blandina Msawa, learned Senior State Attorney who was assisted by Raphael Rwezahula, learned State Attorney. Having heard oral submissions from both sides, we thought that there was only one issue to be determined in this appeal involving the age of the annellant, which was, as in this appeal also, raised though unsuccessfully by him in his first appeal. As it will turn out subsequently, we need not reproduce and deal with the other grounds of appeal raised by the appellant. The substance of the comp!a;nt on the appellant's age at the time of his arraignment which gave rise to the ahove issue was that although the issue of age was at stake after being raised by the trial court, it was not properly resolved which as a result raise doubt on whether the appellant was a child or not when he was arraigned before the trial court for the charged offence, and 3 therefore whether he was properly tried, convicted and sentenced as an adult of 19 years of age as charged. On our part, the determination of the issue by the trial court was critical because if the appellant was a child his trial was to be conducted by the Juvenile Court pursuant to the procedure provided for under the Law of the Child Act, Cap. 13 (LCA) which, among other things, entails the presence of a social welfare officer, and if found guilty of the offence as charged, he would only be entitled to an appropriate sentence under the law and not life imprisonment which was in the end imposed by the trial court sitting not as a Juvenile Court and which sentence was upheld by the first appellant court. See for instance, our earlier decision in the cases of Furaha Johnson v. Republic (Criminal Appeal No. 452 of 2015) [2016] TZCA 620 (1 August 2016); and Amos Robare @ James v. Republic (Criminal Appeal 401 of 2017) [2021] TZCA 130 (23 April 2021) and; Athanas Mbilinyi v. Republic (Criminal Appeal 275 of 2020) [2022] TZCA 663 (1 November 2022). Addressing us on the issue, the appellant argued that having raised the doubt as to his age as he appeared to be under 18 years, the trial court did not properly conduct the inquiry to establish his age which as far as he is concerned, he was then just 16 years. In so doing, he argued that the trial court received and relied on a copy of a clinic card from the prosecution and erroneously concluded that he was 19 years old without according him a right to be heard as to his age, and as to the appropriateness of receiving and relying on the copy of the clinic card produced by the prosecution. For such reasons, he 4 argued, the finding by the trial court was a nullity and must be disregarded and instead, the Court should find that the doubt entertained by the trial court remained unresolved. Relying also on the case of Samson Kitundu v. Republic, Criminal Appeal No. 195 of 2005 (unreported), the appellant submitted that since there was reasonable doubt raised by the trial court on whether he was 19 years of age as he appeared to be a young boy of under 18 years which doubt had to be resolved by ascertaining his age, the failure by the trial court to properly resolve it and in the absence of any other evidence properly received from the prosecution, such doubt, which remained unresolved, ought to have been resolved in his favour. In that respect, he called upon us, to resolve the issue in his favour by taking his words that he was just 16 years of age when he was arraigned before the trial court. We understood the appellant, being a layperson unrepresented, as saying that the omission by the trial court to afford him a right to be heard during the inquiry of ascertaining his age in a bid to resolve the entertained doubt was a fatal irregularity that occasioned miscarriage of justice on his part and rendered the entire trial proceedings and those of the first appellate court a nullity, which as a result, entitles us to interfere with the concurrent findings by the two lower courts. It was in that respect, that the appellant also raised a complaint that the lower courts erred in the end in imposing on him the sentence of life imprisonment which ought not to have been imposed on him given his age if at all, and which is in itself, he further argued, a violation of the 5 law and procedure relating to sentencing a person who is under 18 years of age if found guilty. He relied on the cases of Abubakari Shabani v. Republic (Criminal Appeal No. 312 of 2021) [2024] TZCA 527 (8 July 2024), and Paul Juma Daniel v. Republic (Criminal Appeal 200 of 2017) [2020] TZCA 1753 (28 August 2020). On the strength of his submissions, the appellant urged us to allow the appeal and set him free. Replying, Ms. Msawa admitted that, there were irregularities in the whole procedure adopted by the trial court found at page 4 through page 6 of the record of appeal that led to the finding that the appellant was 19 years old as indicated in his personal particulars in the charge sheet. In that respect, she submitted that the clinic card which sought to show that he was of that age was a copy, was not read out before it was relied on by the trial court, was not on the record, and above all, the appellant was not afforded the right to be heard in relation to it. Ms. Msawa was, however, quick to submit that such irregularities did no occasion any miscarriage of justice on the part of the appellant as, in the course of the preliminary hearing, the appellant admitted that he was 19 years of age and that when he was eventually sworn in to testify, he stated that he was 19 years old which meant also that his trial was properly conducted by the trial court and his sentence of life imprisonment was properly imposed on him after his conviction. With that in mind, Ms. Msawa implored us to find that the complaint was an afterthought and dismiss it. 6 In our resolve, we went ahead to peruse the record of appeal before us from pages 1 and 2 where the charge sheet is found and noted the fact that the personal particulars of the appellant had it that he was then 19 years of age. Our scrutiny took us to page 4 of the said record on which we were clear of the doubt that was entertained by the trial court on the age of the appellant. The same reads thus: "25/2/20220 Coram: V. J. Kimario, RM PP: Luciana Shabani, State Attorney. C/C: Mtei Court: Charge is read over and fully explained to accused person who is required to plea thereto: Accused plea: It is not true. Entered: Plea o f not guilty. Sgd 25/2/2020 Bail condition: Accused will be out on bail o f Tshs 5,000,000/- surety who will sign bail bond. Also, he must produce his ID. Sgd 25/2/2020 Court: Accused person appear to be a young boy under 18 years but the charge sheet shows that 7 he is 19 years. It should be proved before we proceed with the case. Sgd 25/2/2020 Order: Mention on 2/3/2020. Accused person wiii be in prison remand due to lack o f surety. Sgd 25/2/2020"[Emphasis added] In so far as the doubt that was entertained by the trial court is concerned, if the appellant was indeed under 18 years of age, it means that he was a child within the meaning of the provision of section 4 (1) of the LCA which defines a child as a person below the age of eighteen (18) years. Accordingly, his trial ought, in that regard, to have been conducted by the Juvenile Court pursuant to sections 97, 98 and 99 of the LCA. Our further scrutiny revealed that, it is at page 6 of the record of appeal where the trial court purportedly acting under the provision of sections 113 and 114 (2) of the LCA, conducted an inquiry to ascertain the age of the appellant. The relevant record, in particular, reads thus: 17/3/2020 Coram: V.J. Kimaro, RM PP: Luciana Shabani Accused: Present C/C: Mtei 8 PP: Luciana- At the first time, there was doubt that the present accused was under 18 years old. We did get his clinic card which shows that the present accused was born on 8/9/2000. He is adult person. We have a copy o f the said clinic card. Sgd 17/3/2020 Court: A photocopy o f the said clinic card o f the accused is received and filed in the case file. Accused is an adult person. He is able to answer his case. Sgd 17/3/2020 The above record of the purported inquiry left a lot to be desired which explains why the learned Senior State Attorney had nothing other than admitting that it was flawed, having, amongst other things, failed to afford the appellant an opportunity to be heard during that inquiry. With that record, we are satisfied that the purported inquiry being flawed as it was, it did not resolve the controversy regarding the age of the appellant in accordance with the law. Since the controversy was not resolved, it means that the appellant was affected because the question whether he was under 18 years of age and not of 19 years as doubted by the trial court had a bearing on the mode of the trial he should have been subjected to and the type of sentence to be imposed on him upon being found guilty of the offence. 9 Although it is not on the record of appeal before us as the appellant was not afforded an opportunity to be heard, the appellant made it clear to us that he was just 16 years of age when he was arraigned before the trial court for the charge that was laid against him. It follows, in our view that, had the appellant been afforded the right to be heard when the trial court purportedly conducted the inquiry, he would have told the trial court that he was 16 years old at the time of his arraignment, and not 19 years of age, and further that pursuant to the provision of section 114 (2) of the LCA and in the absence of any other evidence, reliance should have been placed by the trial court on the age that he would have stated in the inquiry. We are in that respect guided by the position we took in Athanas Mbilinyi (supra) where we were faced with analogous situation, and in our resolve whilst referring to our earlier decisions, we stated that: 'Tor the purpose of this case.... the trial magistrate ought to have conducted an inquiry into the age o f the appellant.... and in the event o f failure, she should have placed reliance on the 16 years age claimed by the appellant. Failure to do so, in our considered view, occasioned miscarriage o f justice on the part o f the appellant as it left a lot to be desired. This is so because if it had been proved that the appellant was under age, he would have been arraigned before the Juvenile Court in terms of section 98 (1) (a) o f the LCA and not the District Court in which he was arraigned and if found guilty, he would have been sentenced accordingly - see: Furaha Johnson v. Republic, 10 Criminal Appeal No. 452 o f 2015 and Amos Robare @ James v. Republic\ Criminal Appeal No. 401 o f 2017 (both unreported). In Furaha Johnson's case (supra), the District Court o f Moshi tried the appellant who was 17 years old in connection with the offence o f rape. On appeal to the Court, it was held that, since the appellant at the time o f his arraignment and trial was a child, he was not triable by the district court, but Juvenile Court. The trial court, therefore, lacked jurisdiction ratione personae to try the appellant and hence, the trial was declared a nullity. We wish also to point out that, the life imprisonment sentence meted out to the appellant is tantamount to causing more injustice to him under the circumstances o f this case where his age is not established. We therefore, agree with Ms. Massambu that the proper cause to take in this case is to nullify the lower courts' proceedings." Consequently, the trial which resulted to the appellant's conviction and sentence of life imprisonment was conducted on the basis that the appellant was an adult of 19 years of age as charged while his age was not ascertained as the purported inquiry was improperly conducted, for among other things, failure to afford the appellant an opportunity to be heard on his age. It means, therefore, that the trial was conducted by the trial court without establishing the appellant's age at the time of his arraignment. Yet, the trial was conducted by the trial court, and after being convicted, the sentence of life imprisonment was imposed on him, as if the doubt that was entertained by the trial court that li the appellant appears to be a "young boy o f under 18 years o f agd' had been resolved to the effect that he was 19 years of age whilst it was not in view of the fatal irregularity occasioned at the purported inquiry. The submission in reply by Ms. Msawa that the irregularity is cured by the admission by the appellant at the preliminary hearing that he was 19 years of age and that later during his defence, he was also recorded of having that age, is of no avail. We say so because, whilst the memorandum of undisputed facts at page 11 of the record of appeal bears the age of 19 years as amongst matters that were not being disputed by the appellant, the listed facts narrated by the prosecution at page 9 through 11 of the record of appeal fall short of a fact bearing that age which was also not supported by an inquiry of his age conducted in accordance with the law. We equally think the purported appellant's age of 19 recorded by the trial court during his defence cannot cure the fatal irregularity occasioned in the purported inquiry in which the appellant was not afforded the right to be heard. As we held in Athanas Mbilinyi (supra), the irregularity has occasioned miscarriage of justice on the part of the appellant. This is because if the inquiry was properly held and the appellant was proved to be under the age of 18 years at the time of his arraignment, he would have been arraigned before the Juvenile Court in terms of section 98 (1) (a) of the LCA and not the trial court in which he was arraigned, found guilty, convicted and ultimately sentenced to life imprisonment. Indeed, life sentence imposed is tantamount to causing injustice to the appellant given that due to the irregularity occasioned, his age 12 was not established. It is unfortunate that the first appellate court did not consider it that way although the complaint on the appellant's age and the doubt that were entertained by the trial court were raised and argued before it. We are of the view, at this juncture, that the ground of appeal is merited and is herein allowed. Consequently, the proper cause to take as was in Athanas Mbilinyi (supra), Amos Robare @ James (supra), and Furaha Johnson (supra) is to nullify the lower courts' proceedings and judgments. Accordingly, we quash the appellant's conviction and set aside the custodial sentence imposed on him. Since the appellant has served an illegal sentence for not less than four years and has been in custody since his arraignment on 25th February, 2020, we think retrial after ascertaining the age of the appellant at the time of his arraignment will not serve the interest of justice. Likewise, considering the fact that the victim was just four years old when the alleged incident occurred, we think it may not serve any useful purpose to make her revive what had happened to her when called as witness which may also make trial of the appellant difficult on the part of the prosecution. See for instance, Juma Mhagama v. Republic, Criminal Appeal No. 71 of 2011 (unreported); Alkard Mahai v. Republic [2013] TZCA 186 (29 July 2013); Barnabas Leon v. Republic [2015] TZCA 23 (8 October 2015); and Yohana John v. Republic [2021] TZCA 619 (29 October 2021). 13 In the end, and having already herein above nullified the proceedings and judgments of the two lower courts, quashed the conviction and set aside the custodial sentence of life imprisonment imposed on the appellant; we order immediate release of the appellant, Daniel Amos from prison, unless he is otherwise lawfully held. DATED at ARUSHA this 11thday of December, 2024. A. G. MWARD A JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 11th day of December, 2024 in the presence of the appellant in person and Ms. Tobiesta Chang'a, learned State Attorney for the Republic/respondent; is hereby certified as a true 14