Frola John judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA DISTRICT REGISTRY AT BUKOBA CRIMINAL APPEAL CASE NO. 28925 OF 2024 (Originating from Criminal case No.000018905 of 2024 of the Ngara District Court) FROLA D/O JOHN RWESIMBURA…………………………………………..APPELLANT VERSUS REPUBLIC……………………………………………………………………..RESPONDENT JUDGEMENT OF THE COURT Date of last Order: 11.11.2024 Date of Judgement: 13.12.2024 BEFORE: G.P. MALATA, J The appellant, Frola D/O John Rwesimbura stood charged for unlawful presence in the United Republic of Tanzania contrary to section 45(1) (i) and (2) of the Immigration Act, Cap.54 R.E.2016. That, Frola D/O John Rwesimbura, being a citizen of Rwanda, on 24/05/2024 at Kasulo Ward within Ngara District in Kagera was found without possession of a valid passport or any other document that allowed her to be legally in the United Republic of Tanzania. Upon hearing the case, on 26/09/2024, the Ngara District Court found her guilty, thence entered convicted and sentence. 1 Aggrieved thereof, the appellant preferred the present appeal armed with four grounds of appeal namely; 1. That the trial court erred in law and fact by failing to keenly analyse and evaluate evidence adduced by the appellant and his witnesses which proved that the appellant is the citizen of Tanzania and respondent failed to cast adequate doubt, 2. That, the trial court erred in law and fact by entertaining the case relying on the issues not in dispute to reach into the decision, 3. That, the trial court erred in law and fact by reaching into its decision while there is unfair hearing on the side of the appellant, 4. That, the trial court erred in law and fact by reaching into decision in favour of the Respondent while appellant proved her case beyond reasonable doubt and Respondent failed to cast any doubt on the evidence on the appellant. On the hearing date, both parties appeared represented, while the Republic appeared through Ms. Alice Mutungi learned State Attorney the appellant enjoyed the service of Mr. Dastan Mujaki learned counsel. Mr. Dastan Mujaki learned counsel combined grounds 2 and 3 of appeal and argued together. First, he submitted that, there was unfair hearing of the case. To bolster her submission is support thereof, reference was made to testimony by 2 PW2 who was recalled following the Public Prosecutor’s request. He stated that, there was no reasons given by the Public Prosecutor warranting an order for recalling the witness. Further, the accused was not given right to comment on the prayer by the Public Prosecutor, page 13 of proceedings. Second, he submitted that, upon exhibit P2 being admitted as an exhibit, it was not read over to accused and court as required by law. It is trite law that, on admission, every exhibit must be read to accused and court failure to do so is fatal as it amount to denial of right to know contents and cross examine on the document. To cement his submission, he referred to the case of Robson Mwanjisi Vs R. (2003) TLR 218. Exhibit P2 was returned to Immigration Officer by order of the court before cross examination by the accused. Thus, accused was denied to right to cross examine PW3 on exhibit P2 as reflected on page 17 of the electronically generated proceedings. Exhibit P2 was the key document in reaching the decision, thus denial to have the accused cross examine was grave mistake leading to denial of right to be heard. Arguing in support of grounds 1 and 4, Mr. Dastan Mujaki learned counsel submitted that, the offence was not proven. Under the Immigration Act, the accused has onus of proving that, she is legally present in United Republic. DW3 knows the accused since 2000 and DW2 knows the accused since 2004. The 3 defence witnesses testified that, his father was Mnyambo by Tribe residing and born at Karagwe. The testimony by DW1 is to the effect that, she is a citizen of Tanzania, since her father one John Rwesimbura was Tanzania born at Nkwenda area within Karagwe District. PW3 testified that, the NIDA was obtained through forgery but there is no such case of forgery or any fraud case, or any case to those who issued the said NIDA Card. There are no testimonies from NIDA that, the said NIDA card was forged. The accused was found with NIDA and voting card which was taken by Immigration Officers, thus unable to prove possession of documents under section 45 (1) (i) and (2) of the Immigration Act. Finally, Mr. Dastan Mujaki learned counsel, prayed the appeal be allowed, quash conviction and set aside sentence. In reply by Ms. Alice Mutungi learned State Attorney resisted the appeal and prayed this court to confirm the trial court's decision. Addressing on the lack of reason for recalling of PW2, Ms. Alice Mutungi learned State Attorney submitted that, it is not true that no reason was given by the prosecution side for recalling PW2. As per the record proceedings, it is indicated 4 that, prayer for recalling was made and granted under section 195 of the Criminal Procedure Act. The Public Prosecutor wrongly opted the provision, the correct section is 147 (4) of the Evidence Act, Cap.6 R.E.2022. The section requires pray from either party to recall a witness and upon court determination on the reason thereof grant the prayer. The Public Prosecutor moved the court under wrong citation however that is not fatal thus curable under section 388 of the CPA. On that ground the appellant was not prejudiced in any way. As to the second point, Ms. Alice Mutungi learned State Attorney conceded that, the accused was not given right to object the prayer before being granted by the court. However, that is not fatal as she was given right to cross examine the witness. She submitted that, the present judgement cannot under section 388 of CPA be vacated by mere irregularity unless there is prejudicial on the accused’s party. Ms. Alice Mutungi learned State Attorney admitted that, upon PW2 being recalled he was not sworn or reminded of his previous oath. As to the failure to read exhibit P2, Ms. Alice Mutungi learned State Attorney submit that, it is true that, exhibit P2 was not read to accused and court as required by 5 law. She went on stating that the effect is therefore to expunge that part of evidence as settled in the case of Robson Mwanjisi. She thus prayed, the same to be expunged. She submitted that, this court be pleased to consider oral evidence of the remaining valid evidence by PW2. If it will be expunged then the issue of failure to cross examine on the same also meet similar verdict. As on whether the case was proven, Ms. Alice Mutungi learned State Attorney submitted that as per S.44 of the Immigration Act, it is the duty of the accused to prove that, her presence is in the country is legal. As per section 5 of the Tanzania Citizenship Act, the proof can be orally or documentary. The appellant's testimonies are clear that, her mother is Rwandese while her father is claimed to be Tanzanian. There was no sufficient proof that, the appellant's father was Tanzanian. Ms. Alice Mutungi learned State Attorney referred this court to the case of Daimu Daimu Rashid @double D Vs R, Criminal No.5 of 2018 at page 11 of the judgement, where the court held that, the evidence by defence is hearsay evidence which is not admissible in law thus need to be discarded. The evidence by PW3 was to the effect that, in 2018 there was NIDA application by the appellant. The application was refused for want of proof of appellant’s father citizenship. In 2020, the applicant filed another application and the appellant 6 stated that both parents were Tanzanian citizens. She was thus granted NIDA card. The Appellant stated in the application form for national identification that, both parents are citizens, thence grant of NIDA card. PW3 were not cross examined on the same. Ms. Alice Mutungi learned State Attorney submitted that, by the using the principle in the case of Nyerere Nyague Vs R criminal appeal No.65/2010 on effect of failure to cross examine is that, the matter is deemed to be undisputed. She submitted that, the long living of the accused in Tanzania for more than 20 years is not a criterion and that this offence has no time bar. W hat is in question is legality of being in Tanzania regardless of the period she has been in Tanzania. Ms. Alice Mutungi learned State Attorney ended her submission by praying to the court to uphold the trial court's decision or else order retrial due to the observed shortfalls. By way of rejoinder Mr. Dastan Mujaki learned counsel opined that, the failure to cross examine by DW1 is not ticket to convict him on weak evidence. As to the issue of hearsay evidence, that DW1 was told that, her father was Tanzania, it is true since the accused as never seen her father. 7 Finally, Mr. Dastan Mujaki learned counsel submitted that, under section 198 of CPA as the PW2 was recalled, he ought to have taken oath. He stated that, PW2’s evidence is defective. He referred this court to the case Nobert Kashindi Vs R, Criminal Appeal No.176/2015 CAT where the court held that such failure renders evidence insignificant. Having assembled the submissions for and against the appeal, this court gathered that; one, accused was tried and convicted for unlawful presence within the united Republic of Tanzania contrary to section 45 (1) (i) and (2) of the Immigration Act Cap.54 R.E.2016, two, evidence by PW2 upon recalling including exhibit P1 the national identification card application form was given without oath, three, PW2 was recalled however, the appellant was denied right to comment on the recalling of the said witness, four, exhibit P2 was not read to the accused and court, five, the trial court ordered for return of exhibit P2 to the immigration officer before the appellant being given right to cross examine on the same, six, the evidence on record was to the issue of dispute of citizenship of the appellant, whereas the appellant claims to citizen of the United Republic of Tanzania in one hand, the Republic alleges that the appellant is not citizen as she is a Rwandese and seven, the conviction was based gathered under the Immigration Act, where the dispute was on citizenship thus to be resolved under the Tanzania Citizenship Act. 8 Before reverting to discussions on the merits of appeal, this court finds indebted to commence by highlighting some key principles governing matters of citizenship and immigration. To start with, section 3 of the Tanzania Citizenship Act, Cap 357 R.E. 2002 has defined; “citizen by birth" to mean a person who is a citizen of the United Republic– (a) by virtue of the operation of section 4; (b) by virtue of section 5; (c) by virtue of his birth in Tanzania Zanzibar and the effect of subsection (2) of section 4; Section 5 of the Tanzania Citizenship Act, Cap. 357 R.E. 2002 has ascribed persons born in the United Republic on or after Union Day as a citizen within the meaning given by the said Act. Section 5 of the Act provides that; 1) Subject to the provisions of subsection (2), every person born in the United Republic on or after Union Day shall be deemed to have become and to have continued to be a citizen of the United Republic with effect from the date of his birth, and with effect from the commencement of this Act shall become and continue to be a citizen of the United Republic, subject to the provisions of section 30. 9 2) A person shall not be deemed to be or to have become a citizen of the United Republic by virtue of this section if, at the time of his birth– (a) neither of his parents is or was a citizen of the United Republic and his father possesses the immunity from suit and legal process which is accorded to an envoy of a foreign sovereign power accredited to the United Republic; or (b) any of his parents is an enemy and the birth occurs in a place then under occupation by the enemy. As to the burden of proof, section 44 of the Immigration Act, Cap.54 R.E. 2016 places the onus on that person who claims to be a citizen of Tanzania or that his presence in Tanzania is lawful. The section reads that; “Where in any proceedings under or for any of the purposes of this Act, any of the following questions is in issue, namely– (a) whether any person is or is not a citizen of Tanzania; or (b) whether any person's presence within Tanzania is lawful, the burden to prove that, that person is a citizen of Tanzania or that his presence in Tanzania is lawful shall lie upon the party contending that, that person is a citizen of Tanzania or, as the case may be, that his presence in Tanzania is lawful”. 10 In nutshell, right to citizenship is intertwined with land of birth and God’s creation as echoed by per section 5 of the Tanzania Citizenship Act, that every person born in the United Republic on or after Union Day shall be deemed to have become and to have continued to be a citizen of the United Republic with effect from the date of his birth, and with effect from the commencement of this Act, shall become and continue to be a citizen of the United Republic. God’s first fundamental work of creation started with “Heaven and Earth”. This is gathered from the Holy Bible in the Book of Genesis, verse 1:1-3 and 1:9-10, I quote; 1. In the beginning God created Heaven and Earth. It is undeniably that, God valued land (Earth) as the first and most important item as without it, there could be no place for living and non-living organism, human being inclusive. As the Earth was empty and unoccupied, God continued placing on the Earth all what he created from time to time. This confirmation comes from the Holy Bible in the Book of Genesis, verse1:2,3, 9 and 10 which state that; 1. But the Earth was empty and unoccupied and darkness were over the face of the abyss; and so, the spirit of God was brought over the waters. 11 2. And God said, “let there be light” And light became. Further, in Genesis 1:9-10 it is stated that; 9. Truly God said “let the waters that are under heaven be gathered together into one place; and let the land appear” And so it became. 10. And God called the dry land, ‘Earth,’ and he called the gathering of the waters, ’Seas’, And God saw that it was good.” It is evident therefore that, God’s creation started with earth/land as without it there could be nowhere to place his creations. On the strength of the words from the Holly Bible, it is evident that, the place/land of birth which is in fact determined by God through the work of creation. Our almighty God decides who (person), when (time, date and year) and where (place of birth) a person to be born. In other words, God is the only found of citizenship of a person by designating who is to be born, time, date and year and place/land of birth Tanzania or elsewhere. God’s holly task is thereafter legalized by the National laws on citizenship of a respective country, Tanzania as an example. In Tanzania, section 5 of the Tanzania Citizenship Act depicts, inter alia that, for a person to be a citizen of the United Republic of Tanzania must prove; one, that 12 he was born in the United Republic or after Union Day, two, one of the parents was a citizen of the United Republic, three, that he has never denied his Tanzanian citizenship in accordance with any law be it local or foreign law and four that, he is still a Tanzanian. In that regard, it is without malingering of doubt that, right to citizenship of a person cannot be taken slightly but sensitive and delicate one as it touches one inborn and inherent God’s given right through creation as stated herein. In my view therefore, right of citizenship is a fundamental right next to right to life as articulated under articles 14 to 17 of the Constitution of the United Republic of Tanzania, 1977. By easy of reference, it is hereby reproduced. Article 14 states that; Kila mtu anayo haki ya kuishi na kupata kutoka kwa jamii hifadhi ya maisha yake, kwa mujibu wa sheria. Article 15 provides that; 1) Kila mtu anayo haki ya kuwa huru na kuishi kama mtu huru. 2) Kwa madhumuni ya kuhifadhi haki ya mtu kuwa huru na kuishi kwa uhuru, itakuwa ni marufuku kwa mtu yeyote kukamatwa, kufungwa, kufungiwa, kuwekwa kizuizini, kuhamishwa kwa nguvu au kunyang'anywa uhuru wake vinginevyo,isipokuwa tu– 13 (a) katika hali na kwa kufuata utaratibu uliowekwa na sheria; au (b) katika kutekeleza hukumu, amri au adhabu iliyotolewa na mahakama kutokana na shauri au na mtu kutiwa hatiani kwa kosa la jinai. Article 16 provides that; 1) Kila mtu anastahili kuheshimiwa na kupata hifadhi kwa nafsi yake, maisha yake binafsi na familia yake na unyumba wake, na pia heshima na hifadhi ya maskani yake na mawasiliano yake ya binafsi. 2) Kwa madhumuni ya kuhifadhi haki ya mtu kwa mujibu wa ibara hii, Mamlaka ya Nchi itaweka utaratibu wa sheria kuhusu hali, namna na kiasi ambacho haki ya mtu ya faragha na ya usalama na nafsi yake, mali yake na maskani yake, yaweza kuingiliwa bila ya kuathiri ibara hii. Article 17 stipulates that; 1) Kila raia wa Jamhuri ya Muungano anayo haki ya kwenda kokote katika Jamhuri ya Muungano na kuishi katika sehemu yoyote, kutoka nje ya nchi na kuingia, na pia haki ya kutoshurutishwa kuhama au kufukuzwa kutoka katika Jamhuri ya Muungano. 2) Kitendo chochote cha halali au sheria yoyote yenye madhumuni ya– 14 (a) kupunguza uhuru wa mtu kwenda atakako na kumweka chini ya ulinzi au kifungoni; au (b) kuweka mipaka kwa matumizi ya uhuru wa mtu kwenda anakotaka ili– (i) kutekeleza hukumu au amri ya mahakama; au (ii) kumlazimisha mtu kutimiza kwanza wajibu wowote anaotakiwa na sheria nyingine kuutimiza; au (iii) kulinda manufaa ya umma kwa jumla au kuhifadhi maslahi fulani mahususi au maslahi ya sehemu fulani ya umma, kitendo hicho hakitahesabiwa au sheria hiyo haitahesabiwa kuwa ni haramu au ni kinyume cha ibara hii On the other hand, all matters in relation to allied immigrants are dealt by allied immigrants as defined under section 3 of the Immigration Act, Cap.54 R.E.2016. Bearing that in mind, any condemnation that, one is not citizen must be decided based cogent evidence not a mere allegation. 15 Having pointed out some governing principles, I am now in a position to discuss and decided on the fate of the appeal. To start with, the appellant was charged and convicted for being in unlawful presence in the United Republic of Tanzania contrary to section 45 (1) (i) and (2) of the Immigration Act. Cap.54 R.E.2016. For easy of reference, I shall reproduce the charge Sheet CHARGE SHEET STATEMENT OF THE OFFENCE Unlawful presence in the United Republic of Tanzania contrary to contrary to section 45 (1)(i) and (2) of the Immigration Act. Cap.54 R.E.2016. PARTICULARS OF THE OFFENCE Flora John Rwesimbura being a citizen of the Rwanda country, on 24/05/2024 at Kasulo ward within Ngara District in Kagera region was found without possession of valid passport or any other document that allowed her to be legally in the United Republic of Tanzania. Dated and Signed at Ngara 05/07/2024 ……………… STATE ATTORNEY Section 45(1) (i) and (2) of the Act reads; Any person who; - (a)-(h) are not applicable 16 (i) unlawfully enters or is unlawfully present with Tanzania in contravention of the provisions of this Act; (2) Any person who commits an offence under this Act shall, except where any other penalty is specifically provided therefore, be liable on conviction to a fine not less than five hundred thousand shillings or to imprisonment for a term not exceeding three years or to both such fine and imprisonment. Commencing with evidence on record, it evident that, one, the evidence by PW2 given after the said witness being recalled is nullity as the same was given without oath thus in contravention with section 198 of the Criminal Procedure Act, Cap.20 R.E.2022. The section reads that; . (1) Every witness in a criminal cause or matter shall, subject to the provisions of any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act. (2) Where an accused person, upon being examined, elects to keep silent, the court shall have the right to draw an adverse inference against him and the court and the prosecution may comment on the failure by the accused to give evidence”. In the eyes of the law as stated in the case of Nobert Kashindi Vs R, supra and section 198 of the Criminal Procedure Act, Cap. 20 R.E.2022 such evidence is 17 incompetent. As such, I am inclined to agree with the appellant’s counsel that, it be expunged from the court record as I hereby do. Two, the record shows that, exhibit P2 was not read to the accused and court as required by law. Exhibit P2 was just admitted and the court ordered the same to be returned to Immigration officer before being read and cross examined on the same. The rationale behind reading contents of documentary exhibits after being admitted in evidence is to enable the parties to understand what is contained therein. In the case of Nkolozi Sawa and Another vs Republic, Criminal Appeal No. 574 of 2016 (unreported) the court of appeal settled that: “In our considered view, the essence of reading the respective exhibits is to enable the accused to understand what is contained therein in relation to the charge against them so as to be in a position of making an informed and rational defence. Thus, the failure to read out the documentary exhibits was irregular as it denied the appellants an opportunity of knowing and understanding the contents of the said exhibits.” The court of appeal has given directives through the case of Robson Mwanjisi, supra in which it stated that, such evidence has to be expunged to expunged. In 18 view thereof, this court hereby expunge exhibit P2 for being in contravention of the law. Three, PW2 was recalled however, the appellant was denied right to comment on the prayer of recalling PW2, the appellant’s right to have objection if any notwithstanding that, appellant was given right to cross examine is fatal as the case was turned to be between the court and prosecution side while in fact the case was between Republic and appellant. What transpired is that, the appellant was turned a stranger with no right to address the court on the issues raised by the opponent party, the Republic. This goes to denial of right to be heard which is fundamental right, thus fatal irregularity. Four, on record shows that, the central dispute was on the citizenship of the appellant. The evidence by PW1, PW2 and PW3 and DW1, DW2 and DW3 confirm the same. Whereas, the Republic claimed that, the appellant is not a citizen of Tanzania, the appellant denied the allegations by stating that, she is a Tanzanian born from two parents, the father one John Rwesimbura, Tanzanian, Mnyambo by tribe who was born at Nkwenda area, Karagwe District and her mother was Rwandese currently leaving in Uganda. The evidence by the DW1, DW2 and DW3 are to the effect that, in 2000 the accused was living at Nyabugombe- Biharamuro. 19 Thereafter, the accused shifted to Kamuli -Ngara District. From the evidence on record appellant has been in Tanzania for more than forty years. All said and done, the evidence from both sides were in respect of dispute on citizenship of the appellant. However, the charge laid against the appellant, Flora John Rwesimbura is that, being a citizen of the Rwanda, on 24/05/2024 at Kasulo ward within Ngara District in Kagera region was found without possession of valid passport or any other document that allowed her to be legally in the United Republic of Tanzania contrary to section 45 (1) (i) and (2) of the Immigration Act. As the appellant was charged under the Immigration Act, she had onus of proving that, legal presence in Tanzania under section 44 of the Immigration Act. Having gone through the testimonies by both sides, this court assembled that; first, the dispute between the Republic and appellant is on citizenship, thus she was to be dealt under the Tanzania Citizenship Act, Cap.357 R.E.2002, second, the appellant was charged under the Immigration Act which deals with allied immigrants as defined under section 3 of the Immigration Act, thus not the proper law for dealing with proof of citizenship of a person, the appellant, under the Tanzania Citizenship Act. Third, it is undeniably that, the appellant has been in Tanzania for more than forty years as per evidence on record, fourth, the republic did not table any evidence 20 disproving that, the appellant do not fall within section 5 of the Tanzania Citizenship Act, let alone allegations, fifth, republic did not tender evidence countering that, one John Rwesimbura alleged father of the appellant was not a Tanzanian, Mnyambo by tribe born at Nkwenda area, Karagwe District in Kagera region as claimed by the appellant, sixth, the evidence on record shows that, the appellant has been in Tanzania for more than twenty years but the charge sheet indicates that, Flora John Rwesimbura is that, being a citizen of the Rwanda, on 24/05/2024 at Kasulo ward within Ngara District in Kagera region was found without possession of valid passport or any other document that allowed her to be legally in the United Republic of Tanzania contrary to section 45 (1) (i) and (2) of the Immigration Act, seventh, republic did not table any evidence to prove the charge that, the appellant is Rwandese by citizenship let alone allegations, eighth, the mere fact that, the duty to prove lawfulness of the appellant in Tanzania cannot be interpreted that, the accuser, the republic is not required to tender evidence to substantiate their allegations. Ninth, failure by the appellant to table documentary evidence proving the date, month and year of birth by the appellant’s father who is dead, that alone cannot be a justification thence deciding that, the appellant is not a citizen. One has to go one step ahead and adjudge the matter according to the situation on ground as to the awareness and accessibility of such facilities. To the contrary, majority of 21 people will be found none citizens by mere failure to have birth certificates by their parents or ancestors. Other factors have to be considered before arriving to decisions touching complicated and delicate matters with inborn and inherent rights arising from God’s creation as explained herein above. The court must be satisfied beyond sane of doubt before pronouncement of the decision thereof as it has the effect of making that person with his/her family stateless. It is on that ground that, by declaring a person a non-citizen must be preceded and confirmed by cogent evidence proving beyond sane doubt such matter and not on a mere allegations or human errors made deliberately with view of getting certain service or under ignorance as such right of citizenship goes beyond and beyond any human errors as it renders that person stateless. The effect extends to the family and properties he acquired for the entire life in land of the respective country where he has been declared to be not citizen. Citizenship as right of every person is a God’s given right by virtue of creation as one acquires it upon proof of; the time of birth, date, month, year, place and land/country of birth. That God’s given right cannot be easily taken away by a person having committed another offence but with compellingly and cogent evidence and operation of law that he is not a citizen. 22 All said and done, the charge laid against the appellant had nothing to do with citizenship but adduced all the evidence from both prosecution and defence side were in respect of citizenship of the appellant. Legally the prosecution side ought to have applied for amendment of charge to align with evidence. In the case of Francis Fabian @ Emmanuel Versus Republic, Criminal Appeal No. 261 Of 2021 the court of appeal principled that; “In the circumstance of this appeal, we want to sound a note on the propriety of proving the contents of the charge sheet. We presuppose, it is an elementary knowledge of criminal justice that, the cornerstone of any criminal trial is the charge sheet. The charge sheet is a heart, brain and blood of criminal justice and fair trial. It plays a duo role of informing the accused person on the nature of his accusation and allow him to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its jurisdiction and prepare the proper procedure to be applied during trial. Therefore, the charge sheet is the most important document in any criminal trial.” Additionally in the same case of Francis Fabian @ Emmanuel V R, the court went on stating that; 23 In fact, the road map of what to expect from the prosecution witnesses during trial is provided in a properly framed charge sheet. So much so, sections 132 and 135 of Criminal Procedure Act, Gap 20 R.E. 2022 of the (CPA) restate that foundation on the following compulsive words 132, "Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged" The catch word in this section is the word 'shall' meaning that, it is mandatory that the particulars of the offence in the charge sheet must be proved by evidence during trial. Therefore, framing a proper charge according to the dictates of law is mandatory to the prosecution. It is evident therefore that, in case of any variation between charge sheet and evidence, the prosecution side is obliged to apply for amendment of charge to tally with the evidence being adduced thereto. The next question is whether the failure to amend the charge to reflect evidence adduced in court was fatal. The answer is found in the case of 24 Lengai Ole Sabaya and 2 Others vs Director of Public Prosecutions (supra), in which this court referred to numerous decisions of the Court of Appeal, it held inter alia that: “As indicated earlier, the settled law provides that failure to amend the charge is an incurable irregularity. That being (sic), I respectfully disagree with the learned State Attorneys and the learned trial magistrate who held the view that the omission did not prejudice the appellants. Similar stance was taken in the case of Masota Jumanne vs R, Criminal Appeal No. 137 of 2016 (unreported). In that case items such as 4 kg of sugar, 2 bars of soap, 7kg of rice featured in evidence, while the particulars of offence of armed robbery named a bicycle and Tshs. 15,000/= only. When the matter reached the Court of Appeal, it was held that:- “In a nutshell the prosecution evidence was riddled with contradiction on what actually was stolen from PW1. Such circumstances do not only imply that there was a variance between the particulars in the charge and the evidence as submitted by the learned State Attorney. This also goes to the weight of evidence which is not in support of the charge." 25 Additionally, in Mashaka Bashiri vs Republic, Criminal Appeal No. 242 Of 2017 (unreported), the Court of Appeal while deliberating on a similar issue observed that: “It is therefore evident that, even at this initial stage, the prosecution did not seek leave to amend the charge to include all the alleged stolen properties therein. The failure to amend the charge sheet is fatal and prejudicial to the appellant hence leads to serious consequences to the prosecution case as it was stated by this Court in various cases some of which have been cited to us by the appellant. We however wish to add more cases such as Mohamed Juma @ Mpakama v. Republic, Criminal Appeal No. 385 of 2017, Noah Paulo Gonde and Another v. Republic, Criminal Appeal No. 456 of 2017 and Issa Mwanjiku @ White v. Republic, Criminal Appeal No. 175 of 2018 (all unreported). Specifically, in the latter case, when the Court dealt with an akin situation where the charge sheet was at variance with the evidence in relation to the type of properties which were alleged to have been stolen from the complainant PW1, it stated that: "We note that, other items mentioned by PW1 to be among those stolen like, ignition switches of tractor and Pajero were not indicated in the charge sheet. In the prevailing 26 circumstances of this case, we find that the prosecution evidence is not compatible with the particulars in the charge sheet to prove the charge to the required standard." [Emphasis added] We entertain no doubt that in this case there was variance between the charge and the evidence on the items alleged to have been stolen from PW2. The prosecution case, as rightly argued by the appellant, was not proved to the required standard. In the circumstances, we find the second ground to have merit.” The evidence by prosecution and defence side are to the effect that, they knew the appellant since a year, 2000. Now the issue which the republic raised through evidence is on citizenship and not as it appears in the charge sheet. All said and done, when determining an appeal, the first appellate court is required to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrived at independent decision. This court can either side with the trial court’s decision or differ therefrom. The above legal position is gathered from the case of Salumu Muhando vs. Republic [1993] TLR 170, Siza Patrice vs R, Criminal Appeal no. 19 of 2010, CAT, unreported, Alex Kapinga and 30 others vs R, Criminal Appeal no. 252 27 of 2008, CAT, unreported. In the case of Siza Patrice (supra), the court held that; “We understand that, it is settled law that a first appeal is in the form of a rehearing. The first appellate court has a duty to re- evaluate the enter evidence in an objective manner and arrive at its own findings of fact, if necessary.” Having discharged the above legal obligations as first appellate court, it is evident that, there was no proven charge of against the appellant based on the afore stated reasons. In the event, therefore this court hereby allow the appeal, quash conviction and set aside sentence imposed by the trial court. Moreover, it is ordered that, the appellant be released forthwith unless held in custody for any other lawful cause. IT IS SO ORDERED. DATED at BUKOBA this 13th December, 2024. 28 G.P. MALATA JUDGE 12/12/2024 JUDGEMENT delivered at BUKOBA this 13th November, 2024, in the presence of Ms. Gloria Lugeye State Attorney for the Republic and Mr. Dastan Mujaki learned counsel for appellant and as well as the appellant. G.P. MALATA JUDGE 13/12/2024 29