20180705 TZCA Mwanza 3

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA (CORAM: MMILLA, J.A., MUGASHA. J.A.. And MWANGESI. J.A.^ CRIMINAL APPEAL NO. 558 OF 2015 MSOLOLO WETANGA........................................ ................... APPELLANT

VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Matupa. J.) dated the 6th day of November, 2015 in HC. Criminal Appeal No. 123 OF 2014

JUDGMENT OF THE COURT 4th & 6th July, 2018 MUGASHA. J.A.: The appellant was charged in the District Court of Ukerewe with two counts namely: Burglary contrary to section 294 (1) (a) (2) and rape contrary to section 130 (2) (a) of the Penal Code [CAP 16 RE.2002]. The prosecution alleged that, on 12/6/2013 at about 23.00 hours, the appellant did break and entered into the house of Suzana Madei with intent to commit the offence and had carnal knowledge of her without consent. The matter was reported to the Police which was followed by the arrest and arraignment of the appellant. After a full trial, the appellant was found guilty as charged and sentenced to thirty (30) years imprisonment in respect of first count. 30 years for the second count and twelve (12) strokes of the cane. It was further ordered that he should compensate the victim a sum of Tshs. 2,000,000/=. Aggrieved, the appellant unsuccessfully lodged an appeal before the High Court against the decision of the trial court. The appeal was dismissed hence this second appeal. In the memorandum of appeal the appellant has raised eight grounds of complaint which we have not reproduced because of what will be apparent in due course. At the hearing of the appeal, the appellant was unrepresented whereas the respondent Republic was represented by Ms Maryascinta Lazaro assisted by Ms Mwanahawa Changale all learned

State Attorneys. The appellant opted to address us on the grounds of complaint raised. Before addressing us on the merits of the appeal, we invited parties to address us on a material irregularity to the effect that the trial court did not convict the appellant as per the mandatory requirements of sections 235 (1) and 312(2) of the Criminal Procedure Act [CAP 20 R.E. 2002] (the CPA). After a brief dialogue with the Court, theappellantopted to leave it to us to determine the matter. On the other hand, Ms. Lazaro submitted that, since thetrial court did not convict the appellant as per the mandatory requirements of the section 235 (1) of the CPA; the subsequent sentence was a nullity. In this regard, she argued that there was no valid decision to be appealed against in the High Court and subsequently this Court. To back up her proposition she cited to us the case of m angera m arw a kubyo vs re p u b lic , Criminal Appeal No.320 of 2013 (unreported). On the way forward, she urged us to remedy the anomaly by invoking Section 4(2) of to the Appellate Jurisdiction Act [CAP 141 RE.2002] (the AJA), set aside the sentence, nullify the proceedings and judgment of the High Court and remit the case file to the trial court for it to compose a proper judgment according to law. The appellant had nothing to rejoin apart from urging us to hear the merits. Having carefully considered the

submission and the record of appeal, we are certain that the appellant was not convicted. This is reflected at page 37 of the record of appeal whereby, after being satisfied that the prosecution had proved its case against the appellant, the trial magistrate stated: "Having so noted I am hereby finding the accused guiity o f the offence charged in aii two counts". Thereafter, the trial magistrate proceeded to record the appellant's mitigations, previous record of convictions, and passed the sentence. The sentence did not follow the conviction as mandatory required by section 235(1) of the CPA which provides: " 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 o f the Pena! Code". [Emphasis supplied] Similarly, the judgment of the trial court which lacked a conviction, missed one of the essential components of a judgment in terms of section 312 (2) of the CPA which provides: "In the case o f conviction the judgment shall 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 punishment to which he is sentenced". The reading together of sections 235 (1) and 312 (2) of the CPA clearly indicate

that, the conviction must precede the sentence. In the case of jo h n s/o C h a rle s vs. r e p u b lic , Criminal Appeal No. 190 of 2011, the Court was confronted with the purported appeal whereby the appellant was found guilty but he was not convicted. The Court emphasized on the essence of compliance with the mandatory requirements of sections 235(1) and 312 (2) the Criminal Procedure Act, having said: "It is dear that both the provisions o f the CPA require that in the case o f conviction; the conviction must be entered. It is not sufficient to find an accused guilty as charged; because the term guilty as charged is not in the statute; and the legislature may have a reason for not using that term, but instead, decided to use the word "Convict"." In view of the settled position of the law, in the absence of conviction, there can be no valid judgment upon which the High Court could uphold or dismiss. Therefore, failure to enter a conviction is a fatal and incurable irregularity and no appeal could arise before the High Court and to the Court in the exercise of appellate jurisdiction. (See the cases of amani fu n g a b ik a s i vs re p u b lic , Criminal Appeal No 270 of 2008, FREDRICK GODSON vs re p u b lic , Criminal Appeal No. 88 of 2012, Jo n a th a n m lu g u a n i vs re p u b lic , Criminal Appeal No. 15 of 2011, ru z ib u k y a tibabyekom ya vs re p u b lic , Criminal

Appeal No 218 of 2011, juma ja c k s o n @ s h id a vs re p u b lic , Criminal Appeal No 254 of 2011, (all unreported) and MANGERA MARWA KUBYO VS REPUBLIC (supra). Given the circumstances, on account of the missing conviction of the appellant, we think that, in the interests of justice this is a fit case for us to invoke our revisional powers under Section 4(2) of AJA. We hereby nullify the proceedings and the judgment of the High Court, quash and set aside the sentence. We order the case file to be remitted to the trial court for it to enter conviction in accordance with the requirements of sections 235 (1) of the CPA. Meanwhile the appellant shall remain in custody. DATED at MWANZA this 5th day of July, 2018. B. M. MMILLA

JUSTICE OF APPEAL S. E. A. MUGASHA

JUSTICE OF APPEAL S. S. MWANGESI

JUSTICE OF APPEAL I certify that this is a true copy of the original. b .a . W epo

DEPUTY REGISTRAR

COURT OF APPEAL 7