the director of public prosecutions v anodius theonest 2023 tzhc 22415 8 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF BUKOBA

AT BUKOBA CRIMINAL REVISION NO. 2 OF 2023 (Originating from Criminal Case 98 of2023 District Court of Muieba) THE DIRECTOR OF PUBLIC PROSECUTIONS....................... . APPLICANT

VERSUS ANODIUS THEONEST................. .......... ........... . RESPONDENT

RULING 7th and 8th November, 2023 BANZI, J.: This ruling emanates from revisional proceedings opened by this Court suo moto, pursuant to section 372 (1) of the Criminal Procedure Act [Cap.20 R.E. 2022] ("the CPA") in order to satisfy itself as to the correctness, legality or propriety of an order of the District Court of Muieba in Criminal Case No. 98 of 2023 issued on 18th October, 2023 which acquitted the respondent on the reason that, the charge was incurably defective. The decision to institute these revisional proceedings was instigated by a complaint from the Regional Prosecution Officer of National Prosecution Services, Kagera Region. In order to uphold the principle of right to be heard, after institution of this Page 1 of 7 application, both parties were summoned, so that, they can address this Court on the correctness or propriety of the order in question. Before determining the propriety of the order in question, it is pertinent to reveal what had transpired before the trial court. On 18th October, 2023, the respondent was arraigned before the trial court charged with the offence of rape contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code [Cap. 16 R.E. 2022]. After the charge was read over to him, the respondent denied the same and a plea of not guilty was entered. Thereafter, preliminary hearing was duly conducted and upon completion, and since

both parties were ready, hearing began right away. Before the victim began to testify, the trial magistrate noted disparity on the surname of the victim as it appears in the charge and the one, she mentioned before she was sworn in. Immediately thereafter, he invited the prosecutor to address the court on whether or not, the charge was proper. After conceding that, the charge was not proper, the prosecutor prayed for another date in order to rectify the defect. It was at that juncture, when the trial magistrate under his order dismissed the charge and acquitted the respondent after a conclusion that, the charge was incurably defective. Page 2 of 7 At the hearing of this application, the applicant was represented by Ms. Blandina Manyanda, learned Senior State Attorney whereas, the respondent appeared in person, unrepresented. When Ms. Manyanda was invited to address the court, she submitted that, the order in question was not proper because, having noticed the defect which is very minor, the trial magistrate was supposed to issue the order of amendment of charge pursuant to section 234 (1) of the CPA. She added that, had the charge been crafted in contravention of sections 132 and 135 of the CPA, it would have been rejected pursuant to section 129 of the CPA. Since it was admitted, the same was proper and it was an error for trial magistrate to dismiss it basing on minor error

and acquit the respondent. In that regard, she prayed for this Court to quash the order that acquitted the respondent and issue any order deemed fit. The respondent being a lay person, he had nothing to say apart from leaving it to this Court to decide. As stated above, the reason behind institution of this revision is to determine the propriety of order of trial court issued on 18th October, 2023. I have carefully examined the entire record of the trial court. I have also Page 3 of 7 considered the submission of learned Senior State Attorney and what was stated by the respondent. It is not in dispute that, the charge presented before the trial court had complied with the requirements of section 132 of the CPA /.ev it contained statement of the offence and particulars giving reasonable information as to the nature of the offence charged. It is also not in dispute that, its form was in compliance with section 135 of the CPA. Obviously, it is upon such compliance which caused the trial magistrate to admit the charge in question, otherwise, he would have exercised his powers under section 129 of the CPA to reject the same. Moreover, it is undisputed that, as the record speaks for itself, the surname of the victim mentioned in the charge sheet is slightly different with the one stated by her before she began to testify. According to the charge, the second name of the victim is

written as Revoctus. However, when the victim appeared before the trial court for her testimony, she introduced herself by the surname of Revocatus. Upon noticing that defect and in disregard of the prayer made by prosecutor to rectify the same, the trial magistrate proceeded to rule Out that, the charge was incurably defective and hence, he continued to dismiss it and acquit the respondent. Now, the Page 4 of 7 next question to be determined is whether the remedy taken by the trial magistrate was correct. Section 234 (1) of the CPA provides that: "Where, at any stage ofa trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration of the charge either by way of amendment of the charge or by substitution or addition of a new charge as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and all amendments made under the provisions of this subsection shall be made upon such terms as the court shall seem just." Notably, the provision of the law cited above gives discretion to the subordinate court to order amendment of the charge when it appears to it that, the same is defective. Nevertheless, the court is cautioned to observe that, having regard to the merit of the case, the amendment in

question is not likely to cause injustice. Obviously, the rationale behind such caution is to vouch fair trial. I am very much aware about the prosecution's duty to ensure fair trial by making sure that, the charge levelled against the accused complies with the requirement of sections 132 and 135 of the CPA. However, in case such charge is defective, either by substance or form, the available Page 5 of 7 remedy is to order alteration by amendment or substitution depending on circumstance of each case. In the matter at hand, the trial magistrate proceeded to dismiss the charge on reason that, the same was incurably defective despite the prayer by the prosecutor to rectify the defect. He relied on the case of Issa Charles v. Republic [2018] TZCA 76 TanzLII and acquitted the respondent. However, the circumstances In the case he relied upon are different with the circumstances in the case before him, First and foremost, the defect in that case was citing non-existence section of law which did not disclose any offence known in law. Also, such defect was discovered at the second appeal. But in the matter at hand, the defect was very minor /.ev misspell of surname of the victim which is far-fetched to be incurably. Besides, such defect was discovered when PW1 was about to testify which as a matter of law and since it was a minor error, the only remedy available was to order amendment

under section 234 (1) of the CPA instead of acquitting the respondent which is not the remedy under such section. Having said so, it is the finding of this Court that, the order of dismissing the charge and acquitting the respondent made on 18th October, 2023 was neither proper nor correct. As a result, I nullify everything Page 6 of 7 transpired on 18th October, 2023, quash the said order and set aside the acquittal order made in favour of the respondent. Consequently, I order Criminal Case No. 98 of 2023 to start afresh before another magistrate and the respondent to be remained in custody until he is re-arraigned before the trial court. If the issue of amendment of charge arises, the same should be dealt with pursuant to section 234 of the CPA. It is so ordered. I. K. BANZI

JUDGE 08/11/2023 Delivered this 8th November, 2023 in the presence of Mr. Yusuph Mapesa, learned State Attorney for the applicant and in the absence of the respondent. I. K. BANZI

JUDGE 08/11/2023 Page 7 of 7