ELIMIGIUS JKUDGEMENT 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB - REGISTRY

AT DAR ES SALAAM CRIMINAL APPEAL NO. 19553 OF 2024 (Originating from the Criminal Case No. 282 of 2023 at Ilala District court)

BETWEEN ELIMIGIUS SAFARIFAI...........................................„,.„..„...............APPELLANT

VERSUS THE REPUBLIC..........................................................................RESPONDENT

JUDGMENT Date of last order: 21.10.2024 Date of Judgment: 29.11.2024 NGUNYALE, J. ne Appellant Elimigius Safarifai was charged and convicted before the district court of Ilala at Kinyerezi with the offence of arson contrary to section 319 of the Penal Code Cap 16 R.E 2022. The Charge sheet together with the prosecution witnesses indicates that on 02nd May 2023 the appellant did set fire to the house located at Kipunguni and caused damage to the house and properties therein. =M' When the charge was read and explained to the appellant, he entered a plea of not guilty the procedure which attracted full trial. Upon a full trial the appellant was found guilty as charged, he was convicted and sentenced to serve life imprisonment. Being dissatisfied with the findings of the trail court, an appeal was preferred in this court with five grounds of appeal that: 1. That the trial court erred in law and fact by failing to enter conviction contrary to S.312 (2) and 235 (1) of the criminal procedure Act, cap 20 RE 2022.

2. That the tr al court erred in law and fact by sentencing the appellant in the absence of conviction contrary to s.312 (2) and 235 (1) of the criminal procedure Act Cap 2022.

3. That the trial court erred in law and fact by sentencing the appellant contrary to the provision of s.319 (a) of cap 16 RE 2019.

4. That the trial court erred in law and fact by convicting the appellant basing on non-existence offence in the penal code cap 16 RE 2019 namely felony. 5. . That the trial court erred in law and fact by convicting the appellant while the prosecution case was not proved beyond reasonable doubt. On consensus the appeal was heard by way of written submission. The appellant filed his submissions in person while the respondent’s submissions were file by the National Prosecution Services. Both parties filled their written submissions as ordered by the court. Having passionately gone through the rival submissi9ns for and against the appeal. I appreciate the research done by both parties. However, I am not intending to reproduce the submission of the parties in detail but they will fairly be considered in the course of my determination of the grounds of appeal. Starting with the 1;t ground of appeal that the trial court failed to enter conviction as per the requirement of Section 312 (2) and 235(1) of the CPA, I understand from the appellant submissions and the provisions of section 235 (1) and section 312 (2) of the CPA, the trial court is required to enter a proper conviction once the accused is found guilty. Ttle law requires proper conviction according to law and the relevant provision to be indicated. I have read the records of the trial court especially where the Magistrate

entered conviction, there is a mistake. Ttre said part in the judgment reads: - "Therefore, the accused person is found guilty as charged." From the above quotation, I agree with the appellant that conviction was not properly entered the way it is required per Section 235 (1) of the CPA. Sometimes ago, failure or an error to properly convict the accused person was an incurable irregularity as it was decided in a number of cases decided by the Court of Appeal including the case of John Charles versus Republic, Criminal Appeal No. 190 of 2011 as =@ cited by the appellant in his submissions. Also, the cases of Musa Mohamed versus Republic, Criminal Appeal No. 216 of 2005, Shabani Iddi Jololo and Others versus R., Criminal Appeal No. 200 of 2006, and Khamis Rashid Shaban versus DPP, Criminal Appeal No. 184 of 2012 are relevant on the issue of proper conviction. Tbe Court of Appeal departed from that old position. Currently, failure to properly enter conviction is an irregularity which is curable as rightly submitted by the State Attorney that where conviction is improperly entered the provisions of section 388 of the CPA cure the same. TIe section provides: "388.-(1) Subject to the provisions of section 387, no finding sentence or order made or passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or

irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any inquiry or other proceedings under this Act; save that where on appeal or revision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure of justice, the court may order a retrial or make such other order as it may consider just and ego/fa£7/e.”remphasis added) The court of appeal when expounding the provisions of section 388 of the CPA and the overriding objective principle; came with a different approach. In the case of Mabula Mkoye and Another versus R, .M Criminal Appeal No. 227 of 2017 where a similar situation to this case was under scrutiny, the court said: "We think, with the overriding objective in our midst, the position taken in Musa Mohamed (supra), Ally Rajabu & 4 Others (supra) and Amitabachan Machaga @ Gorong'ondo (supra), would be the most progressive path to take in the determination of this appeal. Tbat is why, we think, the first appellate court took a proper path to entertain the appeal, despite the omission by the trial court to enter a conviction before sentencing the appellants. After all, that infraction prejudiced nobody, not even the law. In the premises, we find and hold that the appeal is competent before us" Being guided by the principle in Mabula Makoye (supra), it is my considered view that the failure of the

trial Magistrate to enter conviction as per the requirement of section 235(1) and section 312(2) of the CPA is not fatal as the omission is curable under the provisions of section 388 of the CPA because the appellant was not prejudiced by any means in such failure. On the 2-d ground of appeal that the trial court erred in law and fact by sentencing the appellant in the absence of conviction contrary to S. 312 (2) and S. 235(1) of the CPA cap 20 R.E 2022. Following the determination of the lst ground of appeal that, the irregularity on failure to enter a proper conviction was not fatal, then this ground of appeal automatically lacks legs upon which to stand, it will not be determined. On the 3'd ground of appeal that the appellant was sentenced contrary to section 319 (a) of Cap 16 R.E 2022; This ground of appeal will not by any means detain the court because the charge sheet seems to be perfectly drafted. According to the charge sheet, the appellant was charged with the offence of Arson contrary to Section 319 (a) of the Penal code cap 16 R.E 2022 however in the judgement the trial Magistrate convicted him basing on the same provisions of section 319(a) of the Penal Code Cap 16 R.E 2019. Such provision of R.E 2019 sets the punishment of the offence of arson to be life imprisonment while R. E 2022 provide a sentence of 30 years imprisonment. Tbe trial Magistrate ought to rely to

section 319(a) of the Penal Code R.E 2022 which sets sentence to be thirty years imprisonment. Following the anomaly, I am in agreement with the respondent that the appellant was only prejudiced to the extent of the sentence given by the trial court and the same can be cured by the provision of Section 388(1) of the CPA where the court has mandate to substitute the sentence and set a sentence according to the law. On that basis, this ground succeeds to the extent that the sentence meted by the trial court was incorrect, it is set aside and substituted with the sentence as stipulated by Section 319 (1) of the Penal Code Cap 16 R.E 2022 which is thirty years imprisonment. On the fourth ground of appeal the appellant raised a complaint that the trial court entered conviction basing on non-existence offence namely felony. In a careful consideration of this ground of appeal I have noted that at page three of the judgement the trial Magistrate reproduced the provisions of Section 319 of the Penal Code Cap 16 R.E 2019 as a provision which created the offence. I have ruled that the said provision still creates the same offence save for punishment which was rectified. I think the use of the word felony was just a mistake of fact which is tolerable. Tbe word was wrongly used by the trial Magistrate. Tbe judgment of the trial court provided in part: - ".......is guilty of a felony and is

liable to imprisonment for life" It is my profound view that the same was just a minor error since the appellant was charged with the offence of arson, he made a plea on the offence of arson, the prosecution evidence was on arson and he was able to cross examine the witnesses on the offence of arson and he entered his defence on the offence of arson and lastly, he was convicted and sentenced with the offence of arson contrary to section 319(a) of the Penal Code. nat much this ground lacks merit. On the fifth ground of appeal that the trial court erred in law and fact by convicting the appellant while the prosecution case was not proved beyond reasonable doubt. I have carefully read both the prosecution and defence evidence as recorded by the trial court; I am of the firm view that the offence was proved beyond all reasonable doubt per evidence adduced in court. It is true that there was no eye witness who saw the appellant setting fire to the suit house, however the circumstances of the incident suggests that it was the appellant and no other person who committed the offence. The court of appeal in a number of cases discussed about circumstantial evidence. In the case of Shilanga Bunzali versus Republic, Criminal Appeal No. 600 of 2020 the court had this to say: "We disagree and shall give our reasons in due course. We are aware about the settled position of the law that, one,

the circumstantial evidence under consideration must be that of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. See: LUCIA ANTHONY @ BISHENGWE VS THE REPUBLIC, Criminal Appeal No. 96 of 2016 (unreported); two, that each link in the chain must be carefully tested and, if in the end, it does not lead to irresistible conclusion of the accused’s guilt, the whole chain must be rejected. See; SAMSON DANIEL VS REPUBLIC, (1934) EAC.A. 154]; three, that the evidence must irresistibly point to the guilt of the accused to the exclusion of any other person. See: SHABAN MPUNZU @ ELiSHA MPUNZU VS REPUBLiC, Criminal Appeal No 12 of 2002(unreported); four, that the facts from which an inference adverse to accused is sought must be proved beyond reasonable doubt and must be connected with the facts whieh inference is to be inferred. See ALLY BAKARI VS REPUBLIC (1992) TLR, 10 and ANETH KAPAZYA VS REPUBLIC, Criminal Appeal No. 69 of 2012 (both unreported); and five, the circumstances must be such as to provide moral certainty to the exclusion of every reasonable doubt- see SIMON MSOKE VS REPUBLIC (1958) EA 715" See also the case of Armand Guehi versus The Republic, Criminal Appeal No. 242 of 2010. It was the evidence of PW2 that he was at their home and the appellant came around and threatened him while he was in his

room. He was at the room which is outside the main house which was burnt by the appellant. Shortly PW2 went to the main house and found the appellant leaving. After he left, the witness witnessed smoke from the main house where the appellant came from. This evidence was supported by the evidence of PW4 who encountered the appellant at his gate running and he told her that ~ nimekiwasha humo ndani’ and PW4 noted smoke coming from inside where the appellant came from. Ibis circumstances directly points a finger to the appellant as the perpetrator of the offence. In his submission the appellant contented that there was contradiction between PWI and PW2 on their evidence whereby one stated that he saw the appellant with a gallon of petrol with a match box while the other stated that he saw the appellant with kerosine and the match box. It is true that contradiction of witnesses in evidence may weaken the M evidence adduced, however, it is only the contradictions which goes to the root of the case. The court of appeal in the case of Dikson Elia Nsamba Shapwata & Another versus Republic, Criminal Appeal No. 92 of 2007 stated that: "In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the discrepancies and contradictions are only

minor or whether they go to the root of the matter". (emphasis added) Looking at the prosecution evidence, it is true that the evidence of PWI and PW2 have a slight difference on whether it was petrol or kerosine, but the question which arises was the petrol or kerosine mentioned to have been used in setting the fire? are answer it obviously NO. The witnesses PWI & PW2 testified that they saw the appellant with either petrol or kerosine after the house had been burnt. After it was burnt is when they returned back home because they could not concentrate with the nature of the fuel used. Therefore, to me the contradiction does not go to the root of the case because such piece of evidence was not used in proving the prosecution case. All said and done, I invoke my revisional powers under section 373 of the CPA to confirm that the appellant was accordingly convicted with the

IAWF offence of Arson contrary to section 319(a) of the Penal Code Cap 16 R.E 2022 though sentence imposed was contrary to law. Sentence of life imprisonment is substituted with thirty years imprisonment. Sentence starts from the date of judgement of the trial court. It is so ordered. Dated at Dar es Salaam this 29th day of November, 2024. ' It;,

JUDGE Judgement delivered this 29th day of November, 2024 in presence of the appellant in person. U FiT

JUDGE 11