joseph mathias v the republic 2023 tzhc 19965 10 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF TABORA

AT TABORA DC. CRIMINAL APPEAL NO. 26 OF 2022 (Originating from Nzega District Court in Criminal case No. 344/2016) JOSEPH S/O MATHIAS...................................... APPELLANT

VERSUS THE REPUBLIC.................................................... RESPONDENT

JUDGMENT Date of Last Order: 13/07/2023 Date ofJudgment: 10/08/2023 MATUMA, J, In the District Court of Nzega, the appellant stood charged of the offence of Rape Contrary to section 130 (2) (a) and 131 of the Penal Code Cap. 16 R.E.

2002. He was alleged to have on the 24th November, 2016 at 00:30 hours at Mwashina Village within Nzega District raped one Christina D/O Evarist a woman aged 58 years old. The appellant is recorded to have pleaded guilty to the charge and admitted all the facts of the case. He was thus convicted on his own plea of guilty and sentenced to a custodial term of thirty (30) years..- i The appellant was aggrieved with the conviction and sentence hence this appeal on three grounds which contains mainly two complaints to the effect that; i) The plea was not unequivocal but equivocal. ii) The charge sheet was defective. At the hearing of this appeal the appellant was present in person while the respondent was represented by Mr. Robert Kumwembe and Nurdini Mmary learned State Attorneys. Both parties were in agreement that the conviction of the appellant was unwarranted because he was invited to plead to the defective charge and thus his plea was not proper for it was taken under a defective charge. The defectiveness alleged in the charge sheet is that the appellant was charged under section 130 (2) (a) of the Penal Code without citing the provisions of section 130(1) which creates the offence. As such, the learned State Attorneys submitted and so joined hands by the appellant that the appellant did not plea to the offence but to section 130 (2) (a) which merely defines one of the

categories of rape. Mr. Kumwembe learned State Attorney citing the case of Lawrence Mpinga versus The Republic (1983) TLR166, argued that despite the fact that no appeal lies on a conviction resulting from a plea of guilty, the appellant in this case is entitled to appeal because he pleaded guilty to the charge which disclosed no offence in law for failure to cite the provision which created the offence under which the appeH^nt was charged. 2 The learned State Attorney further argued that the charge did not even specify the specific subsection which states the sentence in case of conviction. It merely cited section 131 of the Penal Code without indicating the specific subsection thereof under which the appellant would be liable to be sentenced in case of conviction hence the appellant pleaded guilty without appreciating the nature of sentence he was going to suffer. Under the circumstances, the learned State Attorneys urged this court to allow this appeal by quashing the conviction and setting aside the sentence. They however urged this court to order a retrial of the appellant because he has served only eight years out of 30 years. The appellant as I have said earlier joined hands to the learned State Attorneys in everything they submitted. He stated that he is ready to face a retrial. On my part I appreciate the honesty shown by the parties in this appeal. Both the appellant

and the learned State Attorneys appeared to be curious to justice. That is why they didn't want to maintain an illegal conviction or to let the crime go unpunished. They thus without contesting against each other called this court to order a retrial so that the due justice is done. Having appreciated the parties as such, I now turn to determine the substance of their submissions against the conviction and sentence of the appellant. Starting with the failure to cite a specific si^bsdction of the sentencing provision in the charge sheet, I am of theTirm finding that the learned State 3 Attorneys are absolutely right that the charge sheet should cite the specific provision providing for sentence in case of a conviction. That can be seen in the Court of Appeal decision in the case of Elisha Mussa versus The Republic, Criminal appeal no. 282 of 2016. The omission to cite the specific provision providing for the sentence is thus fatal as it did not avail the appellant an opportunity to understand the nature of the sentence he would suffer upon conviction. On the issue of non-citation of the provision creating the offence in the charge sheet, I once again agree with the learned State Attorney to the effect that such omission rendered the charge sheet defective because it offended the mandatory provisions of section 135(1) (ii) of the CPA Cap. 20 R.E. 2019 which provides that; "the

statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence!" Speaking on the above quoted provision, the Court of Appeal in the case of Juma Mohamed versus Republic, Criminal Appeal no. 272 of 2011 cited with approval in the case of HamisiMalikiNgoda versus The republic, Criminal Appeal no. 7 of 2017 CAT at Tanga held that; "It is dear from the above provisions that a statement of the offence should describe the offence and should containa reference to the '4 section of the enactment creating the offence. After the statement of the offence then the particulars of the offence should be set out" With the herein analysis it is obvious that the charge at hand which did not make a reference to the provision creating the offence was defective. As such no proper plea could have been taken from the defective charge as rightly argued by the learned State Attorney. I therefore allow this appeal and quash the conviction of the appellant and set aside the sentence of thirty years meted against him. What remains is what should be the way forward. As to what should be the way forward, both parties were in

agreement that a retrial should be ordered. I however find it to the contrary because a retrial cannot be ordered on a defective charge. I would have left the DPP to exercise his discretion whether to re-charge the appellant or not but I find that the appellant has already served eight years in custody .The victim is said to have been 58 years old by the time of the alleged offence. She might have been settled in mind of what had befallen her if real she was raped as alleged. I do not find it that for those eight years she has settled, the interest of justice demands to start reminding her the ordeal committed eight years ago regards being that currently she is too old i.e 66 years old. If at all the appellant committed this offence, the eight years he spent suffices for the purposes of not allowing the DPPJxrexercise his discretion to recharge the appellant. More so, is the guideline given in the case of Chenga S/O Nyamahanga Versus The Republic, Criminal Appeal No. 122 Of 2016 in which the Court of Appeal held; "However, in our view, since the charge sheet which was the foundation of the complaint against the appellant is incurably defective, then there cannot be a charge on which the appellant can be re-charged. Allowing the DPP to decide on the course of action to take would amount to changing or amending the charge which would ultimately prejudice the appellant. Any amendment of the charge sheet could have been properly made at any stage during trial." I therefore acquit the appellant of the offence and order his immediate release from custody unless otherwise held for some other lawful cause. Right of further appeal explained. It is sac>fdered.- ^X. x Id:'' . VAX MATtlMA I p 'O I JWxXJUDGE V. dj/f 10/08/2023

COURT Judgment delivered in the presence of the appellant in person and 6