FRED MADEJE

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 126 OF 2023 (Originating from Criminal case No. 140 o f2022 of the District Court of Mpwapwa) FRED RASHID MADEJE......................................................... APPELLANT VERSUS REPUBLIC............................................................................ RESPONDENT JUDGMENT . 15 08.2024 HASSAN, J.: The accused person Fred Rashid Madeje stands charged with the offence of Rape contrary to section 130 (1) and (2) (e) and section 131 (1) of the Penal Code, [Cap. 16 R.E. 2022]. The particulars of the offence as revealed in the charge sheet makes available that the accused person Fred Rashid Madeje on 23th day of September, 2022 at about 20:00hours at Hazina village within Mpwapwa District in Dodoma Region did have carnal l knowledge with one Jasmin d/o Seleman Zahoro, 9 years, Kurya, Christina, a pupil of primary school. In brief, the story behind the charge is that, on 23rd September, 2022 at 2000hours the victim went to buy "Maandazf at mama Mbula home. Mama Mbula lives at Hazina where the distance is not long from where the victim lives. The victim had a torch which she was given by her mother to light up on the pass way. She went there and successfully bought the said "mandazi"for TZS. 1000/=. When she was coming back home, on the way she met the accused. The accused hold her hand and took her to alley. After that, the accused undressed the victim's trouser and then inserted his "mdudu" (to mean penis) in her place where she uses for urinating. The accused used his hand to cover her mouth and when she was raped, she felt pain. And that, when he was doing the act, the accused bent her down. That was the story which I was able to dictate from the evidence. Coming on the 6th day of June, 2024 when the matter was called on for hearing, the court suo motto observed some irregularity which is material to the validity of the decision meted out by the trial court thus, the trial magistrate failed to append her signature at the end of each witness's 2 evidence after she had recorded it. Upon such observation, parties were invited to address the court on the legality of otherwise of the proceedings. As usually, at the hearing, republic was represented by learned State Attorney Ms. Bertha Kurwa. Whereas, the appellant appeared himself unrepresented by counsel. Addressing the court on the issue raised, learned State Attorney Ms. Kurwa readily conceded that it is true that the trial Magistrate had not appended his signature at the end of each witness statement of evidence after he completed to record. And in terms of section 210 of the CPA, the trial Magistrate was obliged to append his signature. She indicated that there are quite a lot of decided cases of this court and the court of appeal which lectured about the same issue. For instance, to mention a few, the case of Chacha Majiga v. Republic, Criminal Appeal No. 406 OF 2017 CAT (unreported) had referred case of Yohana Musa Makubi and Another v. R, Criminal Appeal No. 516 of 215 (unreported) at page 12 and 13 the court decided that failure to append signature renders the proceedings nullity. 3 Further to that, on her own volition, Ms. Kurwa observed more flaws in the records of the trial proceedings such that, there was an error in the charge sheet as such, a charge sheet was filed under section 130 (1) and (2) (a) of the Penal Code, Cap. 16 R.E. 2022 and later, it appeared that subsection (2) (a) was altered to become subsection (2) (e). Although the alteration was signed, but the same was not dated to show exactly when it was altered. Also, going back to the proceedings to ascertain as to when order of amendment was pronounced, at worse, there is nowhere in the record where payer for amendment was raised by the prosecution and the order of the court for the same was delivered. Adding to that, she pressed that section 132 of the Criminal Procedure Act, Cap. 20 R.E. 2022 requires that statement of offence should be properly cited in order to avoid technical errors or even if alteration is to be made, as allowed under the law, the same should follow procedure in order to avoid unfair trial to the accused person. Thus, since the alteration was not properly made for failure to write the date of amendment, and since the record is silence as to when the said amendment was ordered, it cannot be said the amendment was properly made. 4 To that effect, she cemented that, it appears that there was a variance between the charge and evidence which was adduced by the prosecution's witnesses. Therefore, due to that reason, she saw no need to oppose the appeal. Hence the same should be allowed without order for retrial. In response, the appellant had nothing material to submit, he shortly prayed the court to help him not to order for retrial thus, the court should decide as it was decided in the Yohana's case (supra). On my part, I have meticulously studied the proceedings of the trial District Court particularly from 31.10.2022 when the trial court started to record the evidence, and on that I have observed and noted that indeed no signature of the trial Magistrate was appended after recording the evidence of Jasmin Selemani Zahoro (PW1), Agnes Raphael Mtuli (PW2), Eva Maselo (PW3), Mwajuma Said (PW4) Mary Adam Maweza (PW5) and F. 1739 D/SGT John (PW6). This was in respect of the prosecution case. As for the defence case, the evidence of Fredy Rashid Madeje (DW1), Careen Kelvin (DW2) and Lilian Shikoko (DW3) have experienced the same blunder that the Trial Magistrate had not appended his signature at the end of evidence. 5 For that note, as rightly observed by the court and supported by learned State Attorney in her submission, in deed the trial Magistrate did not sign at the end of any of the witnesses' evidence. Ms. Kurwa is equally right, as to the appropriate remedy she proposed, because where a judicial officer recording evidence in a judicial proceeding omits to append his signature after recording it; he commits an error that vitiates the proceedings, and rendering them a nullity. All the same, where the evidence on record is not signed by the judicial officer who recorded it as such, the evidence is short of authenticity and cannot form part of the court record. In fact, that is the line of reasoning arrived in the number of authoritative decisions. For instance, in Yohana Mussa Makubi and Abuubakar Ntundu v. R, (supra) the court of appeal had this to say: "We are thus satisfied that failure by the Judge to append his or her signature after taking down the evidence of every witness is an incurable irregularity in the proper administration of criminal justice in this country. The rationale for the rule is fairly apparent as it is geared to ensure that the trialproceedings are authentic not tainted. 6 Besides, this emulates the spirit contained in section 210(1) of the CPA and we find no doubt in taking inspiration therefrom." Other decisions in which the above position has been adopted and upheld as the law on the subject in this jurisdiction include Chacha Ghati Magige v. R, (supra), Magita Enoshi Matiko v. R, Criminal Appeal No. 407 of 2017 and Sabasaba Enos Joseph v. R, Criminal Appeal No. 411 of 2017 (all unreported). Indeed, and rightly so, that the significance of appending a signature to the evidence after recording it is also to positively affirm that indeed the evidence was recorded by an appropriate magistrate who is purported to have recorded it. See for example in Richard Mebolokini v. R, [2000] TLR 90. In the circumstance, I am therefore satisfied that, as the evidence of all witnesses in this case were not appended with the signature of the trial Magistrate, the same does not constitute the record of the court or to put in a better perspective, the unsigned evidence is no better than the evidence that was not taken. 7 Thus, in view of the above erroneous omission, I invoke this Court's powers under section 373 (1) (a) of the Criminal Procedure Act, Cap. 20 R.E. 2022 and nullify the whole proceedings, consequentially, I therefore quash the conviction of the appellant and set aside the sentence. As for the way forward, I am alive that in addition to the anomaly pointed out by the court of which Ms. Kurwa was invited to address, she has further addressed incurable fault in the charge sheet which by itself renders the entire trial futile. In my position, I subscribe to what she had submitted at the fullest. In the end, owing to the circumstance of this case, I will make no order for retrial as so proposed by the parties, and as such, I order for immediate release of the appellant from incarceration unless he is lawfully held for different course. Ordered accordingly. DATED at DODOMA this 15th day of August, 2024. JUDGE 15/ 08/2024 8 This Judgment delivered this 15th day of August, 2024 in the presence of the parties and the appellant was acquitted. 9