isaya rojas erigi vs republic 2023 tzhc 22549 1 november 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA DC. CRIMINAL APPEAL NO. 81 OF 2022 (Originating from the District Court of Miele at Miele in Criminal Case No, 103 of2021) ISAYA s/o ROJAS @ERIGI APPELLANT VERSUS REPUBLIC .RESPONDENT MRISHA, J The appellant, Isaya Rojas @Erigiherein has come to this court with a view being charged, trieSbnd convicted by the District Court of Miele at Miele (the ■'WiK W k:' w. It trial court). 1or:the ..offence of Rape contrary to section 130(1) (2) (e) and 131(1) of the Penal Code, Cap 16 R.E 2019 (the Penal Code) vide Criminal Case NO. 103 of 2021. At the trial court it was alleged that on the 19th Day of November, 2021 at Songambele Village within Miele District in Katavi Region, the appellant did i have carnal knowledge of one GG (her name withheld for being a juvenile child). When called upon to plead to the charged offence, the appellant pleaded not guilty and a plea of not guilty was entered as per the law. As a result, the matter went to a full trial. To prove their case, the prosecution paraded five witnesses namely Dr. Beatrice Mwambope (PW1), Jiganza Joseph @Luhende (PW2), GG a child (PW3), No. G. 9926 D/CPfoTuraha (PW^) and Durushi W W 'W' Joseph (PW5). tWiK ’“'W Its They also tendered a PF3 and the^accus^/appellahLcaution statement which W Mbs were admitted as exhibits PFand P2 'respectively. On the adverse side, the 0 A accused fended for himself as DWi and reiterated his denial on the strong ti <-■ allegations. H ilevelledaqamsthim. "Mfe-gs. „*O' wl. > . After a fullitdal. the>:triak<x>urt found that an offence of rape the appellant stood charged before it,:%as proved by the prosecution side on the standard required by the law.^hereafter, it convicted and sentenced the appellant, as indicated above. Dissatisfied, the appellant lodged the instant appeal in order to challenge the conviction and sentence awarded to him by the trial court. His petition of appeal is predicated on seven (7) grounds of grievance, but for the reasons to 2 be stated shortly I will refrain from dealing with them; rather I will choose a different direction in order dispose of the present appeal. At the hearing of the present appeal the appellant appeared in person with no legal representation and urged this court to adopt his grounds of appeal so that they form part of his submission in chief. He also requested the court to allow his appeal and let him free. On the adverse sid^,. Ms. Godliver Shio, learned State Attorney who was assisted by Mr. Gerinus Mzanila; also learned State Attorney, appeared for the respondent Republic> 'irV Wk kepk'k:.... ''kk Kb In essence, Ms. Godliver Shio strongly opposeclthe^present appeal stating that the appellant's grounds ofKappeal areKunmerited because the prosecution evidence which reliedoAdire^^iderfe of PW3 (the victim), was corroborated by.<ttiie/evideripe PW5 and documentary evidence tendered by ,PWrand;?RW- Hence, she was of the view that such evidence proved ®ie offence of? tape against the accused/appellant beyond any W WK % reasonabledoubts. B Based on the above reasons, the respondent's counsel prayed to this court to dismiss the instant appeal, uphold the trial court's decision and sustain the conviction as well as the sentence imposed upon the accused/ appellant. On his side, the appellant had nothing to rejoin, thus paving a way for this court to compose its respective judgment. 3 However, in the course of doing so, I noticed two legal points which neither party pointed at the hearing of the present appeal. One was that at the preliminary hearing the accused/appeilant disputed that he was above eighteen years (18) old at the time of his apprehension and arraignment, but during trial the trial court never conducted an inquiry in order to determine the age of the accused person/appellant. This can be Werred at page 7 of the Sgd RM 15/02/2022 [Emphasis added] 4 The second point was that the accused's/appellant evidence was recorded without the trial magistrate to take his oath; also, his personal particulars were not recorded before he began to enter his defence. I propose to let part of the trial court typed proceedings to speak for themselves. At page 29 the learned trial magistrate recorded as follows: - I was residing at Songambele, at Matata's place, he transported me to Didia, I was working for Matata, it was around November, 2021, on day, when Matata came to me, he took me to Songambele village. At Songambele we found a gathering of civilians, there was a person who 5 was apprehended, it is when I was apprehended, I was shocked. I was tortured, I claimed that I didn't know my faulty. I was found with two police officers, who took me to police station. At police station, two police officers interviewed me. Then I was taken to a Magistrate then I was returned to police station. That is all. TL U The above I excerpt4. clearly ! r reveals 4.U 4- 4-U I that thejearned.: trialsmagistrate recorded the accused's/appellant evidence without taking/his bath as per the law. Due to the above omissions, I asked both . parties to dddrdss the court on the same ' -Sa w " before I could deliver the judgment. Asaa rule/of thumb directs, it was the jflh. ’W. appellant ought to bea-thezfirst in taking the floor; however, he let the respondent's coun^l 'to^tart;before:Me;d6uld make his address as well. Mr. Mzanila opted to-addressthe court in respect of the second point that the W B % W trial magistrate recorded the accused's/appellant defence without taking his W w oath. He conceded.Tfet the trial magistrate omitted to take the oath of the accused person/appellant during defence hearing. He referred the court to page 29 of the trial court typed records in order to fortify his observation. He therefore, submitted that the omission to take the accused's/appellant oath before recording his testimony was an irregularity 6 meaning that the evidence of the accused/appellant does not have weight in the eyes of the law, and added that the legal consequence thereof is that the omission vitiates the proceedings before the trial court. Still on the same point, the respondent's counsel submitted that it is a mandatory requirement for the trial magistrate to take oath of the witness before recording his/her evidence. He cited the case ortijnga International School vs Elizabeth Post, Civil Appeal Nowl55 of72019z CAT at Iringa(unreported) in which it was held that:<2, /W- WF wife?,. ’Wfe. 'The requirement for a ^pes^ff^g^^^ytadnce under oath is mandatory and omission 'to do so vitiatesThe proceedings/' In conclusion, Mr. Mzanila submitted that^the^mission by the trial magistrate to take oath Qfjm^Wuse^appWalWuring defence hearing, is as if the accused trial which according to the respondent's counsel;^ontravene^Artic|e. 13(1) of the Constitution of the United Republic of Tanzania, 19)g as amended from time to time. Coming to the first point which is all about age of the accused persbn/appellant, the respondent's counsel referred the court to page 7 of the trial court typed proceedings, and submitted that the said records reveal that at the preliminary hearing the accused person denied that he was 20 years old 7 as recorded in the charge sheet; however, despite such denial, the trial court continued to entertain the main case without conducting an inquiry. Mr. Mzanila drew the attention of the court on the trite law that when the accused person denies his age as mentioned in the charge sheet, the trial court should stop the case and conduct an inquiry in order to determine the age of the accused person stating that such mandatory procedure is for the purpose, as it helps the trial court to determine thrgedi^portanyad£y According to him, the first one is to ,know the^biliWpfthe'accused person W W determine jurisdiction of the' court and ;the "third one, is to determine the sentence to be imposed on -the aGcused1;vperson upon being convicted by the After pointing-out theebbyefacts, Mr. Mzanila submitted that failure by the WO Wk, ' • ■ 7 trial coutfeto complyt^itfrsuch procedural requirement caused a miscarriage of Republic, Criminal Appeal No. 275 of 2020 CAT at Iringa(unreported) to bolster that position of the law. Having addressed the court on the above two points, the respondent's counsel submitted that it was illegal for the trial court to convict the appellant in the light of the above illegalities because the same affected the appellant herein. 8 He, however, argued that although there were such omissions yet it is their humble prayer that this court be pleased to order for a retrial of the appellant's case because prosecution evidence is sufficient to prove all the ingredients of an offence of rape the appellant stood charged before the trial court. He concluded by submitting that there are no possibilities for them to fill up the gaps if a retrial order is made by this court, The appellant on his side, submitted that on 29Tdv2021 when the matter came before the trial court for a preliminarWhearihgy he'disputed the age of W' if W record his age, that is why he deni.edthe age that was written in the charge W. sheet. Jf W, ws He went on submittinq that at tnktime he was addressing the court on such omissiofthe had no documentary proof, but his mother can prove that he was w 'Wl 'Ws, 16 at the time of his atrest and arraignment. Regarding the issue of oath, the appellant submitted that at the trial he was not asked about his age, place of residence, nor was he given a chance to make his oath. That was all from him. From the above submissions by the respondent's counsel as well as the appellant together with the authorities cited therein which I have paid much 9 consideration, the issue for determination of this court is whether it was correct for the trial court to convict and sentence the appellant in the light of the anomalies pointed out by the parties herein. The answer to the above issue cannot detain this court as its answer is not farfetched. It is apparent from the trial court typed records, as indicated by both parties, that during a preliminary hearing the appellant who by then was "Mik the accused person facing a charge of rape contraiylto section 130(1 )(2) and W Wilk 131(1) of the Penal Code, disputed that he was above eighteen years (18) old ** ... J. It is a trite law that in a case?where agetef thesaccused person is at issue, the court of law is duty bound to^stay'h earing ofethe main case and conduct an inquiry in ordeq^ffi^rriM^ theyageW an accused through either of the Wfc W 'Wk A w. if any, that are sufficienfcto prove an accused's age, and in the event of failure % w > to do so, Mt^should {place reliance on the age mentioned by the accused J® person, his parehtpguardian or a social welfare officer. lam fortified in that position by borrowing the words of their lordship Justices of Appeal in the case of Athanas Mbilinyi vs The Republic (supra) which was also cited by the respondent's counsel. At page 9 of its Judgment, the 10 Court of Appeal had the following to say, which I find to be instructive to ail trial judges and magistrates: - "...the trial magistrate ought to have conducted an inquiry to establish the same through any of the following; medical evidence, DNA test, Birth Certificate and if failed to do so, the law required her to consider the age stated by the appellant, his parent, guardian, relative or social welfare officer as the correct age of the appellant." ,A. complied with the above procedurejn order to.'avoid causing miscarriage of Wk. Wk justice on the part of the accused person as rigptly submitted by Mr. Mzanila. In my view, the omission tow so^Was-a serious irregularity which attracts an Wk 'ife Wk order of retrial shouicl;there be nbchancesfor the prosecution side to fill some Wk Wk ti gaps in order, to fikthe-accused person if the same is issued. Before IWonclude^Sn that point, I should also reaffirm the trite law that the citation in adcharge Jsheet relating to the age of an accused person is not evidence. (See Andrea Francis vs The Republic, Criminal Appeal No. 173 of 2014 (unreported). All that indicates that it is imperative for the trial court to conduct an inquiry or a trial within a trial, if the matter is tried by the High Court, in order to :ii determine the age of an accused person in a situation where the same is in dispute. It will be difficult, I must say, for the trial court to know the exact age of an accused person without conducting an inquiry/ a trial within a trial. That procedure is mandatory and it is also provided under the provisions of section 113 of the Law of the Child Act, Cap 13 R.E. 2019(thBLCA) which declares that: xs. ■ "113. - (1) Where a person, whether charged with an offence or not, is brought before any court ^tfierwi^l^^^^ n^ purpose of giving * evidence, and it appears to the court that he is a child, the court shah make due inquiry asto hat person." [Emphasis added] The fact that the appellantMenied the - age of 20 years written in a charge sheet andithat theitrialmagistrate noted his denial when recording memorandum of disputed-and undisputed facts, as it appears at page 7 of the trial court typed proceedings, entails that the trial court was alerted that the appellant was a child; therefore, the trial magistrate ought to have conducted an inquiry in order to determine the age of the appellant instead of continuing with the main case. This is because age of an accused person is an important factor for it may help the court of law to determine its jurisdiction, and also it may affect the 12 kind of sentence to be imposed upon the accused person should the trial court find the accused guilty of a charged offence and convict him accordingly. (See MMN (A Child vs The Republic, Criminal Appeal No. 173 of 2019(uhreported). With jurisdiction, once it is established that an accused person is a child as construed under section 4(1) of the LCA, automatically the ordinary court lacks a criminal jurisdiction to try the accused's'cate.-In thecircumstance, it a- % has to dismiss the charge and direct that the'accused jbe tharge and arraigned in a Juvenile Court in terms of ^ct®MlS^^^Wtl^_CA. (See Athanas Mbilinyi vs The Republic(siipra). fkisS W&i While the former provision of the law "prpyides-that: Ik 'W ’14 person 'belowothe age of e/ghteen years shall be known as a child", "W. Wi Mb. Mt . ML thelatterorovidesthat' "777e JuvenilegCouriCshall have power to hear and determine criminal W M chargesaga/psta child. Also, in the case of Furaha Johnson v. Republic, Criminal Appeal No. 452 of 2015 the Court of Appeal observed that: "...if it had been proved that the appellant was under age, he would have been arraigned before the Juvenile Court in terms of section 98 (1) 13 (a) of the LCA and not the District Court in which he was arraigned and if found guilty, he would have been sentenced accordingly." Regarding the issue of sentence, as I have said before, age of the accused affects the sentence to be imposed upon the accused person once found guilty and convicted of a criminal offence. This is because even if found guilty and convicted, a child cannot be sentenced to serve asentence of 30 years or that: % ’X child shall not be sentenced to /mp/isdnmbht" > ’W "Wk WB ' Also, even the Penal Code does not impbwer subordinate courts to impose an imprisonment sentence^iipohca persona-who is a first offender and who is found to be a^iilcTWiis is becausessection 131 (2) of the Penal Code is > k ■ , , 'W JU. W categorical: that:. 'l(2)-,Notwithstanding-tthe provisions of any law, where the offence is ’Igk committedJoydrffboy who is of the age of eighteen years or less, he shall— (a) if a first offender, be sentenced to corporal punishment only; (b) if a second time offender, be sentenced to imprisonment for a term of twelve months with corporal punishment; 14 (c) if a third time and recidivist offender, he shall be sentenced to five years with corporal punishment"[Emphasis supplied] Having in mind the above provisions of the law, I am of the settled view that had the trial magistrate conducted an inquiry as required of him under the law, he would have not convicted and sentenced the appellant to serve a sentence of thirty years (30) in prison for an offence of tape. He could only be justified to do so after conducting an inquiry-apdksatisfy^himself;, that the Now back to the second point thafthe tnal magistrfte recorded the appellant's w w ***^ evidence without first taking- his oath^again>this was fatal and a serious ■ A ■'% irregularity because theJawds very clear that: the oath of a witness must be W, W Wk " taken by a trial cdurtbeforeTistestimony is recorded failure of which vitiates 'Wk ■ 8 ’Wk the proceedings, as it .was emphasized in the case of National Microfinance .jfm W '* Stay Ww Bank PLC v. Ali^MWamsojb, Civil Appeal No. 235 of 2021 (unreported). The logic there is that the omission to take oath or affirmation of a witness Wk vitiates the proceedings because it renders the evidence that is recorded without oath/affirmation, invalid. (See Unilever Tea Tanzania Limited vs Davis Paulo Chaula, Civil Appeal No. 290 of 2019). I am aware that the above authority is emanating from civil cases and the circumstances may be different. However, I am firm that still the principle is stated thereto applies to the circumstances of this case which is of a criminal nature because the TEA is there to regulate the manner that parties to civil actions and criminal cases may prove their cases or disprove their counterpart's, in trial courts. (See The Attorney General & Another v. Fatma Amani Karume, Civil Application No. 694/01 of 2021(unreported). In the instant case, since it is apparent from the triai’court records that the trial magistrate recorded the appellant's evideht^yyithouWakingThis oath and/or even recording his personal particulars, I IfejfaiW^td join hands with the counsel for the respondent whpcorrectly.argued that such omission vitiated the proceedings befpre the tria^ourt^ As for the way forward., thescounsel for. the respondent while admitting that 'Mbs. there were such^sefibus irregularities;which occasioned failure of justice of the part of the ^ppellaqt,z|ls|appealeb to this court to order for a retrial stating the appellant^ and thatrthere will be no chances for them to fill gaps, probably in order to fix the appellant. Due to the above submission, I am constrained to rely on the principle stated in the case of Fatehali Manji v. The Republic (1966) E.A. 343, before I decide whether or not to follow such invitation by the respondent's counsel. In that case, the Court of Appeal for East Africa held that: 16 "In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill gaps in its evidence at the first trial... each case must depend on its own facts and circumstances and an order for retrial should only be made where thg interests of justice require it." From the above principle of law, there are tWq factors tp-jbe considered by the appellate court before ordering a:.retriaMrst;-is^wherebthe original trial was % % illegal or defective and second,ds where theOnteresfs of justice requires that "WK a retrial order be made, On the first factor/ichave'alreadycpointed above that the original trial of the appellant was defective/due thewct that the trial court did not conduct and inquiry injorder todetermine the age of the appellant which was in dispute. ft In regards tcfethe second factor, since the omission to conduct an inquiry and Wr taking the oath of the appellant prior to recording of his evidence occasioned a miscarriage of justice on the part of the appellant, I am of the considered opinion that a retrial order will be suitable in the circumstances of this case? in order to meet the ends of justice. 17 Not only thatz but also, I had enough time to go through the evidence of all the five prosecution witnesses and that of the appellant. I am settled that, save for the defects that have been pointed above which I hope will be rectified after a retrial order is made, the prosecution evidence is still water tight to prove the charge against the appellant. Hence, basing on the above reasons, I agree with the respondent's counsel that it will be proper and in the w interests of justice, for this court to order for a retrial of tnwiappellant herein. The above discussion and the reasons assigned therein .suffice to answer the issue raised by this court suo motu, in the negative. % to,-i > .x, ■''sarc'* t ' In the circumstances, and taking into "account the foregoing reasons, I allow if 4% to the extent hereinabove stated, nullify the proceedings before the trial court, quash the judgment 's well astthe conviction entered by the trial court and W. set aside the sentence passed thereto. I also order for a retrial Of the appellant with immediate effect before another magistrate? and subject'to an inquiry being made as of the age of the appellant as I have discussed above, and taking an oath of the appellant during defence hearing. In the meantime, the appellant should remain in custody pending retrial and determination of his case. It is so ordered. 18 JUDGE 01.11.2023 DATED at SUMBAWANGA this 1st day of November, 2023. THE 19