20180214 TZCA Mbeya 1

m THE COURT OF APPEAL OF TANZANIA

AT MBEYA (CORAM: LUANDA, J.A., MMILLA, J.A. And NPIKA, J.A.^ CRIMINAL APPEAL NO. 607 OF 2015 MICHAEL MPONZI ....................................................... ............APPELLANT

VERSUS THE REPUBLIC ...................................................................... RESPONDENT (Appeal from decision of the Senior Resident Magistrate with Extended Jurisdiction at Mbeya) (Lvamuva, Ext. JurJ dated the 7th day of August, 2015 in Criminal AppeaE No. 3 of 2015

JUDGMENT QF THE COURTI 12th & 15th February, 2018 LUANDA, 3.A.; MICHAEL 5/0 MPONZI (hereinafter referred to.as the appellant) was charged in the Resident Magistrate's Court of Mbeya at Mbeya with rape and causing grievous harm. He was found guilty as charged and sentenced to 30 and 7 years imprisonment respectively without being convicted. The sentences were ordered to run concurrently. Aggrieved by the finding and sentences of the trial court, he unsuccessfully by appealed to the High Court (Mbeya Registry). The High Court transferred the appeal to the Resident Magistrate's Court of Mbeya and the appeal was assigned to A.M. Lyamuya, Senior Resident Magistrate with Extended Jurisdiction. On 11/5/2015 when the appeal was called on for hearing in that court, Mr. Stambuli, learned State Attorney who appeared for the respondent/Republic, informed the court that he had noted that the trial court did not enter conviction as mandatorily required by S. 235(1) of the Criminal Procedure Act Cap. 20 RE 2002 (the CPA). He prayed the record to be remitted to the trial court to enter conviction. Lyamuya - SRM, Extended Jurisdiction before he made ruling, asked the appellant as to whether he had anything to say. The appellant, being a layman, had nothing useful to contribute to the issue .raised'; The. matter was adjourned to enable the court to deliver its ruling. In its ruling, the first

appellate court acknowledged that the trial court did not enter conviction. However, it went on to say that as the omission did not occasion any injustice,, in terms of S. 388 of the CPA, it is curable. He cited the decisionf ’of this Court in B ahati M akeja v R, Criminal Appeal No. 188 of 2006 (Unreported)- and Daudi N o rb ert v R, Criminal Appeal No. 242 of 2009 (Unreported) In his concluding remarks, Lyamuya, SRM - Ext. Jurisdiction said, we quote:- "In view o f the above nam ed decisions, the irregularities can be cured under Section 388 o f the CPA. I hereby 'treat as done that ought to have been done' by entering a conviction. See also A lly Rajabu and Four Others V R, Crim inal Appeal No. 43 o f 2012 (Unreported). Objection is overruled. Lyamuya - SRM Ext- Jurisdiction 30/5/3015." There was no objection raised. Be that as it may, then the appeal was heard, and was dismissed in its entirety. Still dissatisfied, the appellant has come to this Court on appeal. The appellant has raised eight grounds in his memorandum of appeal. He was unrepresented and so he fended for himself. The Republic/respondent enjoyed the services of Ms. Catherine Paul, learned State Attorney. When this appeal was called on for hearing, Ms. Paul rose up and informed-.the- Court that she had a point of law to make and this is no other than the omission on . the part of the trial court to convict.

She submitted that page 48 of the record of appeal shows that no conviction was entered. She said the omission to enter, conviction is a fatal irregularity. It. offends SS. 235 (1) and 312(2) of the CPA and invalidates the judgment. She went on to say, the omission cannot be cured under S. 388 of the CPA. The learned Magistrate with Extended Jurisdiction was wrong, she submitted. She prayed the Court to exercise its revisional powers as provided under S. 4(2) of the Appellate Jurisdiction Act, Cap. 141 R.E, 2002 (the AJA) by quashing and setting aside the entire appellate court proceedings including judgment as well as the judgment and sentence of the trial court and remit the record for the trial court to compose another judgment and enter conviction. She referred us to our decision in Abdallah s/o Ally V R, Criminal Appeal No. 253 of 2013 (Unreported). The appellant, on the other hand, did not object to the submission of Ms. Paul and her suggestion in remitting the record to the trial court to write judgment and pass sentence. From the explanation above f l l f . J I I W V . l l l LI I U V . 11 J v - U I U I I U I U I 1VJL I | t c i conviction. That goes contrary to SS. 235 (1) and 312 (2) of the Act. There are a number of cases where -we held that it is a fatal irregularity to pass a sentence without- a conviction even if an accused person is found guilty. (See Marwa Mwibahi

V R, .Criminal .Appeal No. 7 of 1995; Abdallah s/o Ally cited supra, Shabane Xddi Jololo & Other V R, Criminal Appeal No. 200 of 2006; Jonathan Mluguani V R, Criminal Appeal No. 15 of 2011; Frederick s/o Godson & Another V R, Criminal Appeal No. 88 of 2013; Hassan Mwambanga V R, Criminal Appeal No. 410 of 2013 and Amani Fungabikasi V R, Criminal Appeal No.” 270 of 2008 (all 'Unreported)). In Mwambanga's case {supra) cited in Kelvin s/o Myovela V R/Criminal Appeal No. 603 of 2015 one of the recent decision, the Court said as follows:- 4 "It is now settled law that failure to enter a conviction by any tria l court, is a fata l and incurable irregularity, which renders the purported judgm ent and im posed sentence a nullity and the sam e are incapable o f being upheld by the High Court in the exercise o f its appellate ju risdiction." In Amani Fungabikasi case (Supra) the Court said, we quote:- "It was im perative upon the trial D istrict Court to com ply with the provision o f section 235 (1) o f the A ct by convicting the appellant after the m agistrate was satisfied that the evidence on record established the prosecution case against him beyond reasonable doubt In the absence o f a conviction it follow s that one o f the prerequisites o f a true judgm ent in terms o f section 321 (2) o f the A ct was missing. The sub-section reads:- (2) In the case o f conviction the judgm ent

sh all specify the offence o f which and the section o f the Penal Code or other law under which the accused person is convicted and the punishm ent to which he is sentenced. So, since there was no conviction entered in term s o f section 235 (2) o f the A ct there was no valid judgm ent upon which the High Court could uphold o r dism iss - See also this Court's decision in Shabani Idd i Jololo and Three Others V R, Crim inal Appeal No. 200 o f2006 (Unreported). It is true, as contended by Ms. Pendo Makondo that in the lig h t o f the above shortcom ing we could make an order for a retrial. But it is also true that we could have easily se t aside the decision o f the High Court and consequently direct that the record be rem itted to the D istrict Court so that it enters a conviction." .In our case as there was no conviction entered as provided under S. 235 (1) of the Act, there was no valid judgment upon which the Resident Magistrate's Court with Extended Jurisdiction could uphold or dismiss. ■It means th e ‘appellate Resident Magistrate's Court with’ Extended -Jurisdiction "ought not to'act or use that invalid judgment in any way. This is because a judgment or anything which is a' nullity is incapable of being amended o r resurrected. It is clear therefore that S. 388 of the CPA_was.misapplied by the first appellate court as you cannot cure a non-existent judgment. We agree

with Ms. Paul that the first appellate court was wrong when it stepped into the shoes of the trial court and entered conviction under a non- existent judgment. Thus in the exercise of revisional powers of the Court under S. 4 (2) of the ADA, we quash all the proceedings and judgment of the first appellate court. We also quash the judgment and sentences of the trial court and remit the file to the trial court for it to enable the trial magistrate or his predecessor in terms of S. 214 (1) of the CPA to compose and deliver judgment. The present incompetent appeal is struck out. Meanwhile, the appellant shall remain in prison as a remandee pending delivery of the judgment. Further, the trial court when sentencing to order the sentence to run from 10/4/2014 the date when the purported judgment was delivered. Order accordingly. DATED at M BEYA this 14th day of February, 2018. B. M. LUANDA

JU S T IC E OF A P P E A L B. M. MMILLA

JU STICE OF A P P E A L G. A. M. NDIKA

JU STICE OF A P P E A L I certify that this is a true copy of the original. P.W. Bampikya

SE N IO R DEPUTY R EG IS T R A R

COURT OF A P P E A L 7