20130228 TZCA Dodoma

IN THE COURT OF APPEA OF TANZANIA . AT DODOMA {CORAM: LUANDA, J.A., ORIYO, J.A., And MMILLA, J.A.) CRIMINAL APPEAL NO. 15 OF 2011 JONATHAN MLUGUANI ............................................................... APPELLANT

VERSUS THE REPUBLIC ................................ ~ .................................... RESPONDENT {Appeal from the -Decision of the High Court of Tanzania at Dodoma) {Mwangesi, J.) dated the 17th day of November, 2010 in Criminal Appeal No. 15 of 2010

JUDGMENT OF THE COURT 26th February, & 1 st March, 2013 LUANDA, J.A.: When the appeal was called on for hearing, Ms. Neema Mwanda learned Principal State Attorney for the Republic/respondent informed the Court that the judgment of the trial District Court does not show the appellant to have been convicted though the court proceeded to sentence him.· It is Ms. Mwanda's contention that that goes contrary to section 235(1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 which imposes a duty upon the trial court to convict, if it is satisfied. the 1 prosecution to have proved its case beyond reasonable doubt before embarking on sentencing process. Since the trial District Court did not convict the appellant as mandated by law, the appeal is incompetent, she charged. She urged the Court to quash the High Court proceedings arising from that decision as the same has no leg to stand namely Criminal Appeal No. 15 of 2010 and remit the record to the trial District Court to enter conviction. She referred us to our decision in Shabani Iddi lololo and Another v R Criminal Appeal No. 200 of 2006 (Unreported). The appellant being a layman had nothing useful to contribute to ·the above legal point save lamentation that he has been in prison for almost four years now. He prayed the Court to release him from prison. In the District Court of Singida at Singida, the appellant with three others were charged with stealing a weighing scale the property of Mtama Village contrary to Section 265 of the Penal Code, Cap. 16 R.E.

2002. At the end of the trial, two were acquitted whereas the appellant and another were sentenced to a term of 4 years imprisonment. Page 2 105 of the record does not indicate the appellant and his colleague to have been convicted. What follows at the end of the judgment is the statement from the Public Prosecutor who prayed for a stiff sentence be imposed and thereafter allocutus and then the sentence. From above, it is clear that no ·conviction was entered. So we entirely agree with Ms. Mwanda that no conviction was entered. Section 235(1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 imposes a duty on the trial Court to enter conviction before embarking on the question of sentence. In other words conviction to precede sentence. To put it neater there cannot be a sentence without conviction. The Section provides: 235(1) The court having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under Section 38 of the Penal Code. [Emphasis Supplied]. 3 The above cited section is couched in mandatory terms; conviction must first be entered before embarking on the sentencing process. Failure to enter conviction is a fatal irregularity. Ms. Mwanda suggested to us that we should quash the High

Court proceedings and remit the record of the District Court with direction to enter conviction. Indeed in Amani Fungabikasi v R Criminal Appeal No. 270 of 2008 CAT (Unreported) where the facts are almost similar, the Court put across the following scenarios as a solution to such irregularity. The Court said:- ''It is true, as contended by Ms. Pendo Makanda that in the light of the above short coming we would make an otder for a retrial. But it is also true that we could have easily set aside the decision of the High Court and consequently direct that the record be remitted to the District Court so that it enters a conviction. " (See also Shabani Idd Jololo cited supra) As regards quashing the High Court proceedings, that is obvious as the High Court judgment cannot stand because there is no valid 4 judgment of the District Court upon which the High Court could uphold or dismiss. We would not however discuss the second suggestion of remitting the record so that the District Court enters conviction as well as the question of retrial for reasons we shall give here under. It is on record that on 4/3/2010 the trial District Court sentenced the appellant to 4 years imprisonment for stealing contrary to Section 265 of the Penal Code, Cap. 16 R.E.

2002. In the first appeal, the learned High Court Judge was of the impression that the District Court had imposed a sentence of 8 years imprisonment which he said was proper! The learned Judge said: "........ the sentence of imprisonment for eight years that was awarded to the appellant by the trial Magistrate on the offence which he was convicted with is found to be justifiable and this court finds no any justification whatsoever to interfere with it. The appellant will thus have to serve the sentence of eight years imprisonment as ordered by the learned trial Magistrate.// 5 Indeed, following that development, a fresh committal warrant was issued by the District Registrar. The District Registrar took it that the Judge enhanced the sentence from 4 years to 8 years imprisonment. The appellant is now serving that sentence of 8 years imprisonment. From what we have tried to explain, it is obvious that the learned Judge was wrong to assume that the trial District Court had imposed that sentence. Equally wrong was the District Registrar who issued the fresh committal warrant thinking the judge had enhanced the sentence. By now the appellant has almost served 3 years of his sentence. Indeed that is substantial portion of his sentence. And probably he would have, if he qualified to the grant of remission, finished serving his sentence by now. Under the aforesaid circumstances, we

don't think it is proper and in the interest of justice to order retrial or order the record be remitted to the District Court to enter conviction. To order retrial or direct the District Court to enter conviction, is tantamount to persecution. 6 Exercising our revisional powers as they are provided under Section 4(2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002 we quash and set aside the proceedings and judgment of both the District Court and High Court. We order the appellant to be released from prison forthwith unless he is otherwise lawfully held. Order accordingly. DATED at DODOMA this 28th day of February, 2013. B.M. LUANDA

JUSTICE OF APPEAL K.K. ORIYO

JUSTICE OF APPEAL . B.M. MMILLA

JUSTICE OF APPEAL ~ t thiS \s a true copy of the original. ·lewo DEPUTY RE,

COURT OF 7