CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA (CORAM: MUGASHA. J.A.. MLACHA. J.A. And NGWEMBE, J.A.1 CRIMINAL APPEAL NO. 653 OF 2020 MAUNDA MASATU............................................................... APPELLANT

VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Ismail, J.) dated the 18th day of November, 2020 in Criminal Appeal No. 125 of 2020

JUDGMENT OF THE COURT 16,b & 19,h August, 2024 NGWEMBE. JA.: The appellant, Maunda Masatu was arraigned in the District Court of Ilemela at Mwanza charged for unnatural offence contrary to section 154 (l)(a) and (2) of the Penal Code Cap 16 R.E. 2002 (the Penal Code). It was alleged by the prosecution in the particulars of the offence that; the appellant on 16th day of August, 2019 at Kitangiri area within Ilemela District in the City of Mwanza, did, unlawfully, have carnal knowledge of a boy aged five (5) years against the order of nature. To conceal his identity, we shall be referring to the victim by the acronym of AD, the victim or PW2, in the course of this judgement. i When the incident was reported to Kirumba Police Post they took charge and commenced their investigation. At the end, the appellant was arrested and on 23rd September, 2019 he was arraigned in court for unnatural offence, the offence which he pleaded not guilty. Hence the prosecution came up with six (6) witnesses; Judith Athanas, mother of the victim (PW1), the Victim (PW2), Mary Alexander (PW3), Athanas Salum Kiswa, victim's father (PW4), G. 4937 D/C Rico (PW5) and Dr. Patrick Mwakifunda of Sekou Toure Regional Referral Hospital who examined the victim (PW6). Also, one documentary exhibit, a PF3 was tendered. On the defence side the appellant (DW1), Respiquis Kalyankozile (DW2) and Lydia Yusuph (DW3) gave

their testimonies. We find obliged to give a brief account which led to the appellant's conviction as follows: Judith Athanas (PW1) and Athanas Salum Kiswa (PW4) are husband and wife living at Kitangiri area in Ilemela District, Mwanza region. They are blessed among others, with twins, a male (PW2) and a female. The appellant has been a neighbour to them (PW1 and PW4). He used to visit them and assist with some manual works. Also, there is a period of time when he resided at their home as their servant. He is well acquainted to them and their neighbours. He sometimes addressed PW4 as his boss (employer). The twin children have known the appellant as Uncle Maunda. Most of the times he would move here and there with the twin children. On 16th August, 2019, the appellant visited the homestead of the victim and requested the twins (AD and his sister) to accompany him to go at Kitangiri Sokoni, a request which PW1 accepted and so she allowed the appellant to take the children. But before going any further, the appellant returned the girl child and moved with the boy. PW1 further alleged that sometime later, about 40 minutes the boy returned alone crying while his pants were wet and went straight to his bedroom. It was later on revealed that AD had some fluid on his buttocks. The victim stated that the appellant took him to one of the neighbours' houses in which there were no people

inside, but the door was open and penetrated his "dudu" into his anus. The victim felt serious pains and raised an alarm crying. It was also stated by the victim that the appellant threatened to slaughter him if he disclosed about the offence, that is why he was afraid to reveal the incident at first when asked by PW1. PW1 reported the incident to Kirumba Police Post where a PF3 was issued and took the victim to Sekou Toure Hospital. Dr. Patrick Mwakifunda (PW6) of Sekou Toure Hospital testified to have examined the victim on 16thAugust, 2019 and found the boy had severe pains in his 3 anus and had bruises. He further testified that, he treated him with post exposure prophylaxis and antibiotics for preventing him from sexually transmitted disease. Also, he testified that he found secretion of mucus from his anus a sign of being unnaturally known. He confirmed that the victim was sodomized. He tendered the PF3 which was admitted as exhibit PI. Mary Alexander (PW3) and Athanas Salum Kiswa (PW4) testified similar evidence as adduced by PW1 because the three were together on the fateful time when the appellant took the victim from the homestead of PW1 and the return of AD at home while crying bitterly. The defence case had three witnesses whereas the appellant defended as DW1 that on 17th August, 2019 in the evening time, he was arrested by civilians and taken to Kirumba Police

Station. That, when he was at Police Station his accusation was in respect of stealing, but when he was arraigned in court, he faced a charge of unnatural offence. In cross examination, the appellant gave another account that the source of all those accusations was his refusal to have love affair with PW1. That she (PW1) enticed him to have sexual intercourse, but he refused. Again, he raised another story that PW4 had some grudges against him as he owed TShs. 300,000/- thus caused all those troubles. DW2 had nothing useful to testify in respect to the alleged offence, while Lyidia Yusuph (DW3) testified briefly that on the eventful date together with the appellant went to Igoma for business but upon return, each one left home. Further she testified that the two were from the same church. Upon closure of the defence case, the trial court found the prosecution evidence watertight against the appellant, subsequently, it convicted and sentenced him to life imprisonment. As we have alluded above, the appellant was unsuccessful at the first appellate court, now he is in this Court challenging the impugned decision in two memoranda of appeal. The original memorandum had four (4) grounds, while the supplementary memorandum carried eleven (11) grounds forming an aggregate of fifteen (15) grounds. However, we shall not reproduce the grounds of appeal on account of what will be apparent

in due course. He also raised an additional ground that, the trial magistrate predetermined his guilty in a ruling of case to answer. Despite the fact that the learned State Attorney opposed the complaint on the ruling of a case to answer and suggested that the contents of the ruling did not intend to convict the appellant prematurely, yet, we find imperative, first to consider it in line with the applicable laws, before we can determine other grounds of appeal. It is a trite law that a trial court after closure of the prosecution case, must compose a brief ruling on whether a prima facie case is made or otherwise against an accused person. If the prosecution has failed to establish a prima facie case, the court is mandated to pronounce that the accused has no case to answer and acquit the accused. If the accused is found to have a case to answer, he will be invited to adduce his defence. This is in accordance with section 231 of the Criminal Procedure Act, Cap 20 R.E. 2002, now R.E 2022 (the CPA) quoted hereunder: "231.-(1) At the dose o f the evidence in support o f the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or In relation to any other offence of which, under the provisions o f sections 300 to 309 o f this Act, he is liable to be

convicted, the court shall again explain the substance o f the charge to the accused person and inform him o f his right- (a) to give evidence whether or not on oath or affirmation, on his own behalf; and (b) to call witness in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any o f the above rights and shall record the answer; and the court shall then call on the accused person to enter on his defence save where the accused person does not wish to exercise any o f those rights. (2) Notwithstanding that an accusedperson elects to give evidence not on oath or affirmation, he shall be subject to cross-examination by the prosecution. (3) Where the accused person, after he has been informed in terms o f subsection (1), elects to remain silent, the court shall be entitled to draw an adverse inference against him and the court as well as the prosecution shall be permitted to comment on the failure by the accused person to give evidence. (4) Where the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence o f such witnesses is not due to any fault or neglect o f the accused person and that there is likelihood that they could, Ifpresent, give material evidence on behalf o f the accused person, the court may adjourn the trial and issue process or take other

steps to compel attendance o f such witnesses." 7 The section is unequivocally clear that the trial court upon closure of the prosecution case must decide if a prima facie case is made or otherwise. In case the prima facie case is established, the trial court has a duty to address the accused on all his/her rights including the right to give defence on oath or otherwise and call defence witnesses and produce exhibits if any, to dig holes in the prosecution case. At that stage, it is not allowed to treat the accused as a convict or as a guilty person. In respect to this appeal, after the prosecution closed its case, the court ruled as follows: "After the court having gone through the evidence o f the prosecution witnesses and their exhibit (PF3), the court is satisfied that the prosecution side has established their case against the accused person. Therefore, Maunda Masatu has a case to answer o f unnatural offence c/s 154 (1) (a) and (2) o f the Penal Code" This ruling of the trial court is similar to what we found in Mussa Daudi v. Republic (Criminal Appeal No. 135 of 2019) [2021] TZCA 262 (15 June 2021), where the appellant complained that he was found guilty before he could give his defence. The Court at page 9 quoted the ruling of the trial court as follows: 8 "In this case prosecution side did bring four witnesses. Having seen the evidence adduced by the said

witnesses, then I am satisfied that the prosecution side proved their case beyond reasonable doubt. Hence there is a prima facie case against the accusedperson" The Court discussed in extensor on such ruling and at the end, decided that such ruling was prejudicial to the accused. It has been the position of this Court that to establish a prima fade case as defined by Black's Law Dictionary (9th edition), means the establishment o f a legally required rebuttable presumption or sufficient to establish a fact or raise a presumption unless disproved or rebutted. In the case of Ramanlal Trambakla Bhatt v. R, [1957] E.A 332 at page 335 the Court of Appeal for Eastern Africa, had similar understanding on the meaning of prima facie case, that a reasonable tribunal/court, properly directing its mind to the law and the evidence would convict if no explanation is offered by the defence. Similarly, in the case of Nicodem Daudi v. Republic (Criminal Appeal 528 of 2015) [2016] TZCA 631 TANZLII (5 August 2016), the trial court in its prima facie ruling stated that the evidence showed that the accused murdered the deceased. In that respect this Court held: "We are settled in our mind that the learned trialjudge was not entitled to state that the accused had murdered the deceased at that stage because the defence was yet to be presented to her. No matter how strong the prosecution case is, a

trial court can only find a charge established after it has heard both the accuser and the accused. To do otherwise is a denial o f fair trial to which an accused is entitled" See also Simon Lucas Kiyeyeu v. Republic (Criminal Appeal No. 465 of 2019) [2021] TZCA 602 TANZLil (15 October 2021); Bundaia Mayala v. Republic (Criminal Appeal No. 148 of 2015) [2015] TZCA 112 TANZLII (2 December 2015); Hussein Idd and another v. Republic [1998] T.L.R. 166; and Janeroza d/o Petro v. Republic (Criminal Appeal No. 269 of 2016) [2016] TZCA 249 (24 October 2016). We are therefore, settled in our mind that the wording used by the trial magistrate in the ruling of case to answer gave an impression that the appellant had committed the offence. According to the above quoted section 231 (1) of the CPA, the trial court ought to make a finding only whether a prima facie case had been made out and require the accused to make his defence. See Janeroza Petro (supra); and Kabula Luhende v. R, Criminal appeal No. 281 of 2014 (unreported). 10 Applying the above observations in the circumstances of this case, we are satisfied that the trial court committed an irregularity which goes to the root of fair trial to the appellant. Such irregularity vitiated the defence proceedings at the trial and the entire proceedings and judgment of the High Court. In Bundala Mayala (supra) we had observed that

the irregularity violates the rule of natural justice which is the pillar of fair trial. We therefore, find no compelling reason to consider the rest of grounds of appeal because this complaint alone is capable of disposing of the whole appeal. As to the way forward, having considered the circumstances of the case generally, and for the interests of justice, it is proper to nullify the proceedings of the trial court only from the stage of a ruling of case to answer and the entire proceedings and judgment of the first appellate court. Thus, the complaint is merited and we allow it. We nullify the proceedings of the trial court from the ruling of case to answer, the defence together with the trial court judgment; and the entire proceedings and judgement of the first appellate court. We therefore, remit the trial court file in respect of Criminal case No. 87 of 2019 for continuation of the trial after making ruling of a case to answer or otherwise before another magistrate. Meanwhile, the appellant shall remain in custody awaiting continuation of hearing of the case. DATED at MWANZA this 19th day of August, 2024. S. E. A. MUGASHA

JUSTICE OF APPEAL L. M. MLACHA

JUSTICE OF APPEAL P. J. NGWEMBE

JUSTICE OF APPEAL The Judgment delivered this 19th day of August, 2024 in the presence of Appellant who appeared in person, Mr. Christopher Olembile, learned State Attorney for the Respondent / Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU

DEPUTY REGISTRAR

COURT OF APPEAL 12