20170720 TZHC Dar es Salaam 1

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 86 OF 2017 (Originating from the Resident Magistrate Court of Dar es Salaam at Kisutu, Criminal Case No. 912/2007) ·\ \\ MOHAMED HATIBU JUMA •••••••• APPELLANT

VERSUS REPUBLIC ■ ■• ■■■■■ I RESPONDENT

JUDGMENT Date of last order 13/7/2017 Date of Judgment 20/7/2017 KITUSI,l Mohamed Hatibu Juma claims that he was tried before the court of Resident Magistrates of Kisutu at Dar es Salaam for · unnatural offence contrary to Section 154 of the Penal Code, Cap 16 R.E.

2002. According to the judgment of that trial court it was alleged that between 1st April, 2001 and 10th June, 2007 at diverse times, the Appellant had carnal knowledge of one Ahmed Hemed aged 8 years, and Abdulkarim Mohamed age 8 years against the order of nature. 1 Further it was alleged that between 1st April, 2007 and 31 st May, 2007 at different times at Mwananyamala Komakoma area the appellant had carnal knowledge of Juma Mohamed aged 9 years and Hussein Ally aged 9 years against the order of nature. Lastly it was also alleged that between 1st April, 2007 and 30th April, 2007 at Mwananyamala Komakoma the appellant had carnal knowledge of Hamidu Hamza aged 10 years against the order of nature. All this is gathered from the judgment of the lower court, because the record that has been transmitted to this court does not have a copy of the charge sheet in it. It may not be irrelevant here to remind trial magistrates of their sacred duty to keep court records in an orderly manner. This is a well known, but often ignored, duty, the importance of which was stated by the Court of Appeal in the case of Clement Aloyce Versus The Republic Criminal Appeal No. 13 of 2012, CAT at Tanga (unreported):- "A part from good ,sequence of the court records, an appellante court will be in a position to have a good approach in 2 determining the appeal before it. It will also save the time and

cost of litigation and allow the appellate court to focus on real issues in dispute. We emphasize here the need and importance of trial ~ourts to keep proper records of proceedings". After the trial court had recorded testimonies of ten prosecution witnesses and the defence case, it found the appellant guilty and convicted him on two counts of unnatural offence, and sentenced him to life imprisonment. The appellant was aggrieved by the conviction and sentence and has petitioned this court to quash the said conviction and set aside the sentence on the basis of his grounds of appeal. The grounds of appeal criticize the_ trial court for basing its conviction on contradictory and weak evidence by the prosecution witnesses. He also raised the fact, conceded by the Respondent Republic during hearing, that no voir dire was conducted on PWl. Further he raised issue with how the Medical Doctor PWlO could see dead sperms on the victim's anus examined four months after the alleged sodomy. 3 During the trial the appellant was represented by Mr. Kiozya, learned advocate but he stood in person at the appeal. The respondent Republic was represented by Ms. Selina Kapanga, learned State Attorney. The learned State Attorney conceded the omission to conduct a voir dire examination on PWl but went on to submit that even if PWl's testimony were to be expunged, there is sufficient evidence that

remains to base a conviction. Then the learned State Attorney's attention was drawn to the fact that there was a succession .of trial magistrates that appears to have been in violation of Section 214 of the Criminal Procedure Act, Cap 20. She conceded and prayed that the court be pleased to order a retrial. With respect I am inclined to test the evidence for the prosecution before considering a retrial. This is because, I think, a retrial should not be ordered so as to afford one side an opportunity to rectify errors, and the appellant came up with a Court of Appeal decision to the same effect. It is the case of Shaban Seif and another versus The Republic Criminal Appeal No. 215 of 2016 CAT at Dar es Salaam (unreported). There is also the famous case of Fatehali Manji versus Republic [1966] E.A. 341. 4 In the former case the Court of Appeal held in part:- "The only remaining issue is whether we should order a retrial as urged by the learned State Attorney or not. Our concern here is whether ordering a retrial will not amount to affording the respondent an opportunity to fill in the gaps apparent in the evidence tendered in the trial court". In this case there are gaps in the prosecution case which must be addressed right at this stage. The first is that which is conceded, that no voir dire was conducted befor~ taking PWl 's testimony. Since it is trite law that the best

evidence in sexual offences comes from the victim, which witness would sustain the conviction. Even if the Medical Doctor (PW10) could prove that PWl was ravished, he could not establish the perpetrator and the dates of the alleged intercourse. Busides that, the evidence of medical opinion is not binding on the court. In the final analysis it is my finding that the trial court proceeded to convict the appellant on evidence that was not solid 5 enough. Accordingly I quash the conviction and set aside the sentence. The appellant to be released from prison if not otherwise lawfully held. • ~~ I.P. · usi

JUDGE 20/7/2017 6