ELIAS FRANCISCOMINANI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA CRIMINAL APPEAL NO. 12814 OF 2024 (Arising from Criminal Case No. 4 of2022 District Court ofMissenyi) ELIAS FRANCISCO @ MINANI............................................... APPELLANT VERSUS REPUBLIC............................................................................... RESPONDENT JUDGMENT 26th November and 6th December, 2024 BANZI, J.: Before Missenyi District Court (the trial court), Elias Francisco @ Minani, the appellant was charged with the offence of Incest by males contrary to section 158(l)(a) of the Penal Code [Cap. 16 R.E. 2022]. It was alleged that, on 21st October, 2022 at Kyakasiga Byeju area, within Missenyi District in Kagera Region, the appellant did have prohibited sexual intercourse with his daughter (name withheld), a girl of six years old. The appellant pleaded not guilty to the charge and in order prove the case against him, the prosecution called in seven witnesses and tendered four exhibits. After a full trial, the learned magistrate was satisfied that, the case was proved to the required standard and hence, he convicted and Page 1 of 10 sentenced the appellant to thirty years imprisonment. Being aggrieved with the conviction and sentence, the appellant lodged this appeal containing eight grounds. However, for the reasons to be apparent shortly, I am not going to reproduce the grounds of appeal. When the appeal was called for hearing, the appellant appeared in person, unrepresented whereas the respondent republic was represented by Mr. Erick Mabagala, learned State Attorney. In the course of their submissions, parties were probed to address the Court on irregularities found in the proceedings of the trial court including, preliminary hearing to be conducted twice, admissibility of cautioned statement and non-compliance of section and 231 of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the CPA). The appellant being a lay person, had nothing to say and decided to leave it to Court to decide. On his side, Mr. Mabagala submitted that, although the proceedings of the trial court indicate that, the preliminary hearing was conducted twice, such irregularity is curable under section 388 of the CPA as the accused person was not prejudiced. He cited the case of Daktari Jumanne v. Republic (Criminal Appeal No. 602 of 2021) [2023] TZCA 18020. Concerning non-compliance with section 231 of the CPA, he Page 2 of 10 submitted that, the record is silent if the appellant was informed his right to defend himself, call witnesses and remain silent with its consequences. He added that, compliance of section 231 of the CPA is mandatory and failure by the trial magistrate to comply with that section, prejudiced the appellant who failed to defend himself as reflected at page 23 of the proceedings. He cited the case of Abdallah Kondo v. Republic (Criminal Appeal No. 322 of 2015) [2016] TZCA 836 to support his argument. He also urged this court to take a similar recourse by ordering a re-trial as it was in the case of Mathias Juma Kulaba v. Republic (Criminal Appeal No. 67 of 2023) [2024] TZHC 2372. In respect of admissibility of cautioned statement, he argued that, according to the record, when the appellant was asked if he has objection, his reply was equivocal which required the trial magistrate to conduct inquiry. Basing on his submission, he prayed for proceedings to be nullified and the case to be heard afresh. The appellant had nothing to rejoin other than insisting to be released. I have carefully perused the record of the trial court more especially, the proceedings. Section 192 of the CPA mandates the trial court to conduct a preliminary hearing in order to consider such matters as are not in dispute between the parties and which will promote a fair and expeditious trial. In the case at hand, the record reveals that, on 18th November, 2022 when the Page 3 of 10 appellant was arraigned to court, he pleaded not guilty to the charge. On the same date, the trial magistrate conducted the preliminary hearing and recorded the fact which were not in dispute. Thereafter, the case was adjourned to another date for hearing. However, after several adjournments, on 7th February, 2023, the public prosecutor informed the trial magistrate that, the matter was coming for preliminary hearing and once again, the trial magistrate conducted the preliminary hearing. It is obvious from the record that, by conducting preliminary hearing twice, the trial magistrate adopted the procedure known to himself instead of following the procedure predicated under section 192 of the CPA. However, like in the cited case of Daktari Jumanne v. Republic (supra), what was done by the trial magistrate is irregularity but it is curable under section 388 of the CPA. See also the case of Director of Public Prosecutions v. Lengai Ole Sabaya and Others (Criminal Appeal No 231 of 2022) [2023] TZCA 17853. Reverting to the second issue, the record reveals that, when PW7 sought to produce cautioned statement of the appellant, the appellant stated as follows: "I admit though I did not write it as I don't know how to read and write." Page 4 of 10 It is apparent from the extract above that, the reply by the appellant was equivocal in the sense that, it is not clear if the appellant has accepted admission of the statement in question. Moreover, his reply indicates that, he denied to have written the statement in question. In other words, the appellant repudiated his cautioned statement. Under the prevailed circumstances, the trial magistrate was supposed to conduct inquiry in order to determine whether the appellant had made such statement. Instead of doing so, the trial magistrate proceeded to admit the statement in question. This is also irregularity which in normal circumstances, its remedy would be to expunge it from the record. However, I am not going to take that position for the reasons to be apparent shortly. Now, turning to the third issue, it is a long-established practice that, after a closure of prosecution case, the trial magistrate is required under section 230 of the CPA to compose a ruling on whether or not, the accused person has a case to answer. If the court finds that a prima facies case has not been established, it will proceed to acquit the accused person. However, if it finds that, prima facie case has been established, the trial court shall comply with the provision of section 231 (1) of the CPA which provides as follows: Page 5 of 10 "(1) At the dose of the evidence in support of the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which, under the provisions of sections 300 to 309 of this Act, he is liable to be convicted, the court shall again explain the substance of the charge to the accused person and inform him of his right- fa) to give evidence whether or not on oath or affirmation, on his own behalf; and (b) to call witness in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any of the above rights and shall record the answer; and the court shall then call on the accused person to enter on his defence save where the accused person does not wish to exercise any of those rights." (Emphasis supplied). Back to our case, after the closure of prosecution case, the trial magistrate made a ruling on the following manner and I quote: "Having passed through the prosecution case, I am satisfied that the prosecution has managed to establish the Page 6 of 10 primafacie (sic) case against the accused person, thus the accused has a case to answer." As to what is required to contain in the ruling of a case to answer, the Court of Appeal through the case of Abdallah Kondo v. Republic {supra) stated as follows: "...we wish to make reference to the provisions of section 230 of the CPA which is relevant to the complaint we have fully quoted above. Closely read and comprehended, it does not provide that the trial magistrate should prepare a ruling so as to determine whether a case is made out against the accused to require him enter defence. That apart, it is now a long established practice that after the dose of the prosecution case, the trial magistrate prepares a short ruling in which he very briefly analyses the prosecution evidence so as to establish if the evidence adduced sufficiently incriminates the accused so as to require him account for in an effort to exonerate himself from liability. "(Emphasis is added). The Court went on and gave instruction on how sections 230 and 231 of the CPA should be complied with by stating that: 'We would have stopped there but we find it prudent that we use this opportunity to direct that the interest ofjustice Page 7 of 10 is best served if trial magistrates andjudges are to observe the now well established practice of composing a ruling on case to answer in which the material evidence implicating the accused with the offence charged is made known to the accused. This will enable the accused give a focused defence. Statements such as "the accused have a case to answer" and "section 230 or 231 of CPA is complied with or done" leave the appellant in the dark not knowing what line of defence to adopt and what are the crucial areas to concentrate in his defence." Notably, according to the extracts above, in preparing such ruling, the trial magistrate is required to analyse the prosecution evidence in brief. That is to say, the material evidence implicating the accused with the offence charged must be made known to the accused. This will enable the accused to give a focused defence. As alluded above, in our case, the ruling of the trial magistrate did not contain any material evidence which implicates the appellant with the offence charged. Apart from such flaw, he did not explain again the substance of the charge to the appellant as required under section 231 (1) of the CPA. Likewise, he did not inform him of his right to give evidence whether or not on oath or affirmation, on his own behalf; and to call witness in his defence as predicated under section 231 (1) (a) and (b) of the CPA. Page 8 of 10 These irregularities are fatal because they prejudiced the appellant who failed to make his defence as reflected at page 23 of the proceedings. Under the prevailed circumstances, it cannot be said that, the appellant was fairly tried. Basing on all irregularities, it is the considered view of this Court that, the appellant was not afforded a fair trial. Considering the particular circumstances of this case which concern child sexual abuse, it is my finding that, this is a fit case for retrial so that the rights of the victim and the appellant can be determine on merit. Consequently, I invoke my revisional powers under section 372 of the CPA and nullify the proceedings of the trial court, quash the conviction and set aside the sentence meted against the appellant. The case file is remitted to the trial court for retrial before another magistrate. In the meantime, the appellant should remain in custody until he is taken back to the trial court. It is accordingly ordered. I. K. BANZI JUDGE 06/12/2024 Page 9 of 10 Delivered this 6th day of December, 2024 in the presence of the appellant, Mr. Erick Mabagala, learned State Attorney for the respondent, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. I. K. BANZI JUDGE 06/12/2024 Page 10 of 10