CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LEVIRA. J.A., MAIGE, 3.A. And MASOUD. J.A/> CRIMINAL APPEAL NO. 482 OF 2021 IDD SAID @ SEKENI. .............. .................. .......... ............... APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Nqunvale. J) Dated the 16th day of August, 2022 in Criminal Appeal No. 45 of 2022 JUDGMENT OF THE COURT 25th & 3(P October, 2024 LEVIRA. J.A.: This appeal originates from an interesting background. Initially, the appellant was charged with the offence of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap. 16 before the Resident Magistrate Court of Mbeya at Mbeya (the trial court) in Criminal Case No. 33 of 2015. He applied and was granted a bail at the very preliminary stages of the case. Nonetheless, he did not adhere to the conditions set and jumped the bail. As a result, hearing of the case against him proceeded in his absence under section 226 (1) of the Criminal i Procedure Act, Cap 20 (the CPA). Finally, he was convicted and sentenced to life imprisonment in absentia, that was on 29th December, 2015. The prosecution evidence was led by four witnesses; to wit, Swaumu Shipela Malembe (PW1), the mother of the victim who discovered that the victim had difficulties in walking; the victim (PW2), a six years old boy who testified on how the appellant sodomized him; WP 9476 DC Pendael (PW3), the investigator and Dr. Adriano Laimu Syumbi (PW4) who examined the victim and discovered that he had been sodomized several times. The trial court was satisfied by the evidence of those witnesses. Therefore, it convicted and sentenced the appellant as alluded to above. On 4th April, 2018, the appellant was arrested and sent before the trial court where the judgment was reread, conviction re­ entered and the sentence was repronounced in his presence. He was aggrieved by both the conviction and sentence. However, for reasons to come into light shortly, we shall not reproduce his grounds of appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent Republic had the services of Mr. Simon Peres, learned Senior State Attorney assisted by Mr. Joseph Mwakasege, learned State Attorney. Before commencement of the hearing of the appeal could take place in earnest, the Court invited the 2 parties to address it on the propriety of the proceedings of the lower courts, conviction and the legality of the sentence meted out on the appellant. Mr. Mwakasege was quick to submit to the effect that, when the appellant was arraigned before the trial court on 30th April, 2015, he was informed of his right to bail upon fulfilment of the conditions set. He fulfilled the bail conditions and on 28th May, 2015 was granted bail. However, he absconded, a fact which led the prosecution to request the trial court to issue arrest warrant to the appellant and summons to show cause to his sureties. Eventually, hearing of the case had to proceed under section 226 (1) of the CPA against the appellant as the efforts to procure his appearance proved futile. On 29th December, 2015, the trial court convicted and sentenced the appellant to serve life imprisonment sentence in absentia. Further, the trial Magistrate ordered the sentence to start running upon arrest of the appellant. Having been arrested on 4th April, 2018, the appellant was sent before the trial court. The trial Magistrate asked him about his whereabouts at all times of his absence. He explained the problems that he encountered which included sickness. The trial court did not invite the respondent to reply to the appellant's submission regarding his 3 whereabouts and it did not give any ruling to that effect. Instead, the trial Magistrate proceeded to read the judgment, convicted and sentenced him to life imprisonment as indicated above. The appellant was aggrieved by the decision of the trial court. As a result, he appealed to the High Court vide Criminal Appeal No. 50 of 2018. Mr. Mwakasege went on to state that, upon evaluation of the record, the High Court Judge discovered that the trial court did not make any decision as to whether the reasons for jumping bail advanced by the appellant were satisfactory and if so, allow him to enter his defence. However, he ended up nullifying the proceedings and judgment of the trial court dated 29th December, 2015 and that of 4th April, 2018, and set aside the sentence as it can be seen at page 65 of the record of appeal. Following that nullification, the first appellate Judge remitted the case to the trial court to be delt with by another magistrate with competent jurisdiction. The said Judge further gave an order that the appellant be sent before the trial court and his case to proceed in compliance with section 226 (2) of the CPA. In addition, he ordered that, if the trial magistrate would be satisfied with the reasons for his absence, he should proceed to hear him on his defence. In the circumstances, Mr. Mwakasege submitted that it was not proper for the High Court to give such an order after nullifying the proceedings and the judgment. He thus urged us to exercise our powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 (the AJA) and nullify the proceedings and judgments of the lower courts and order for a retrial of the appellant. Understandably, being a layperson without legal representation, the appellant had nothing useful to reply. He only said that if the proceedings had any problem, it was not his fault. We have considered the submissions by the parties and the entire record of appeal. The main issue for our determination is whether the courts below adhered to the proper procedures in prosecuting the appellant. We have already indicated above that, the appellant in the present case was sometimes granted bail when his case before the trial court was in a preliminary stage. However, he did not honour the bail conditions set to the extent of absenting himself during hearing of the case. As a result, the trial court proceeded with the hearing of the case under section 226 (1) of the CPA. The said section provides: 226.-(1) Where at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court in which the order o f adjournment was made, it shall be lawful for the court to proceed with the hearing or further hearing as if the accused were present; and if the complainant does not appear, the court may dismiss the charge and discharge the accused with or without costs as the court thinks fit". Ultimately, on 29th December, 2015 the appellant was convicted and sentenced to life imprisonment in absentia with an order that he would start serving the imposed sentence upon his arrest. On 4th April, 2018, the appellant was arrested and sent to the trial court for the court to reread the judgment and convict him. According to the record of appeal, before reading the judgment, the trial court gave the appellant an opportunity to state where he was in all times of his absence. We think it is not insignificant at this juncture to reproduce what had transpired at the trial court, as extracted from the original record as follows: "Mr. Mtenga - LSA : This matter is coming for rereading the judgment which was read in absence o f the accused who jumped bail during the hearing o f the case and the matter was proceeded in his absence under section 226 (1) and227 o f the CPA .... Sgd 04.04.2018 6 Court: Asks the whereabouts o f the accused person in all times o f his absence. Sgd 04.04.2018 Accusedperson: I was arrested at Mtae - Lushoto, after being granted bail I was seriously ill, my wife suffered road accident which caused the lose o f life o f my father. I communicated with my surety who also told me to have faced road accident which maimed him. I have forgotten my medical sick sheets at home. Sgd 04.04.2018 Court: Reads thejudgment and completes. Sgd 04. 40. 2018 OPINION ON SENTENCE Mr. Mtenga - LSA 0•m t Sgd 04.04.2018 7 ALLOCUTUS Convict: Sgd 04.04.2018 SENTENCE The convict to serve the sentence passed on 29.12.2015o f serving life imprisonment. Sgd 04.04.2018 // As it can be observed from the extract above, having been asked about the whereabouts of the appellant and recorded the answers, the trial magistrate proceeded to read the judgment and sentenced him. He did not make any finding or ruling regarding the appellant's reply. Instead, without complying with the requirements under section 226 (2) of the CPA, the trial magistrate proceeded to sentence the appellant as it can be observed above. The said provision requires as follows: (2) Where the court convicts the accused person in his absence, it may set aside the conviction; upon being satisfied that his absence was from 8 causes over which he had no control and that he had a probable defence on the merit". The appellant was dissatisfied with his conviction and the sentence. Thus, he appealed to the High Court vide Criminal Appeal No. 50 of 2018. In its judgment of 21st July, 2020, the High Court made the following observation: "I will agree with the learned counsel that when the appellant was brought before the trial magistrate, the court did not determine his reasons for absence and rule out on whether such reasons have merit or otherwise. The trial magistrate did not allow the prosecution side to reply on what has been submitted by the appellant. The handwritten records o f the trial court o f 04.04.20[18] clearly shows that the trial court magistrate did not rule out whether the reasons adduced by the appellant have merit or not that may warrant him to enter his defence, instead he went on to read his judgment, convicted and sentenced the appellant". Having noted as above, the first appellate Judge held that failure by the trial magistrate to exercise his discretion under section 226 (2) of the CPA was fatal as it denied the appellant his fundamental right to be heard 9 and vitiated the proceedings. His conclusion, which is the centre of our decision, at page 65 of the record of appeal, was as follows: "The only option remaining is to nullify the proceedings andjudgment of the trial court dated29/12/2015and that o f04/04/2018 andset aside sentence. I hereby remit the case to the trial court before another Magistrate o f the competentjurisdiction with the direction that the appellant be brought before the trial court be delt with in compliance with the provisions ofsection 226 (2) of the Criminal Procedure Act I f so, satisfied on the reasons for his absence, to proceed to hear him on his defence". [Emphasis added]. It is glaring from the above decision that, the High Court Judge gave the trial court a direction to comply with the requirements of the law under section 226 (2) of the CPA after nullifying the proceedings and judgment of the trial court. The question that follows is, how the said provision could be invoked without any existing decision of the trial court which could guide the trial court to either set aside or sustain the conviction of the appellant. Worse still, with respect, the High Court Judge 10 nullified even the proceedings of the trial court. This means that although he directed the trial court to hear and determine the appellant's reasons for his absence and if satisfied to give him an opportunity to give his defence, as what exactly happened, whatever was done subsequent to that order was without basis. When the case file was remitted to the trial court, the trial magistrate stated on page 67 of the record of appeal as follows: "Court: This case is assigned to me following an order o f the High Court before Hon. Nd'unguru, Judge dated 21/07/2020 with directions that the appellant (accused in this case) before this court to be deit with in compliance with the provisions o f section 226 (2) o f the Criminal Procedure Act and if so satisfied the reason for his absence, to proceed to hear him on his defence". Upon compliance with the direction of the High Court, the trial court was satisfied with the reasons for absence advanced by the appellant and therefore allowed him to enter his defence. Having heard the appellant's defence, the trial court relied on its previous nullified proceedings, particularly the evidence of PW1, PW2, PW3 and PW4 to hold that the charge against the appellant was proved beyond reasonable doubt. Thus, ii the appellant was convicted and sentenced to life imprisonment, hence the present appeal. Having considered the procedural irregularities and the fact that the appellant's conviction was based on non-existent prosecution evidence, we find that the appellant was convicted and sentenced to life imprisonment unjustifiably. Under normal circumstances, the High Court, for whatever reason, having nullified the proceedings and judgment of the lower court ought to have ordered for a retrial. But this was not the case. For the interest of justice, in exercise of our revisional powers under section 4 (2) of the AJA, we nullify the proceedings and judgments of the High Court in Criminal Appeal No. 50 of 2018 of 21st July, 2020 and in Criminal Appeal No. 45 of 2022 of 16th August, 2022 subject of the present appeal. We, as well, nullify the proceedings and judgment of the trial court from 21st July, 2017 up to 17th June, 2021 when the appellant was convicted and sentenced vide Criminal Case No. 33 of 2015 subject of Criminal Appeal No. 45 of 2022 which is also a subject of the present appeal whose proceedings and judgment, we have already nullified. We restore the proceedings and first judgment of the trial court of 29th December, 2015 which convicted and sentenced the appellant and 12 the order of reconviction and sentence of 4thApril, 2018. We further order for a retrial before another magistrate with competent jurisdiction to comply with the requirements of section 226 (2) of the CPA. In other words, a retrial should start by requiring the appellant to state the reasons for his absence and if the trial court will be satisfied, proceed to hear his defence and make a decision in compliance with section 226 (2) of the CPA. In the meantime, the appellant shall remain in custody pending retrial. DATED at MBEYA this 29th day of October, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 30th day of October, 2024 in the presence of the appellant in person/unrepresented and Mr. Albert Kikuli, learned State Attorney for the Respondent/Republic, is hereby certified as