NDWATA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (OAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 23633 OF 2024 (Originating from the decision ofthe District Court ofKinondoni at Kinondoni in Criminai Case No. 287of2023 deiivered on 25^^ Juiy, 2024 before Hon. H.I. Mwaiioio-SRM.) PAMPHIL EMMANUEL NDWATA. APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT ON APPEAL S.M. MAGHIMBI, J: In the District Court of Kinondoni at Kinondoni, the appellant stood charged with one count of unnatural offence contrary to section 154(1) (a) & (2) of the Penal Code, Cap.16 R.E 2022. The particulars of the alleged offence are that on the 03''^ May, 2023 at Makumbusho area within Kinondoni District in Dar es salaam Region the appellant did have carnal knowledge of one "SOQ"(whose name is preserved for dignity reasons) a male person of nineteen (19) years old against the order of nature. The appellant pleaded not guilty to the offence charged and the trial commenced. Subsequently, on 05/12/2023, the respondent substituted the charge sheet and upon conclusion of trial, the appellant was convicted of the offence charged with and sentenced to 30 years imprisonment. Aggrieved by both conviction and sentence, the appellant has preferred this appeal based on the following grounds: - 1. That, the trialcourterredin iawandin fact to convictandsentence the appellant based on the weak, uncorroborated, contradictory, and dubious evidence. 2. That, the trial court erred in law and fact to convict and sentence the appellant without considering his evidence. 3. That, the trial court erred in law and fact to convict and sentence the appellant after importing extraneous matters into the evidence. 4. That, the trial court erred in iaw and fact to deny the appellant right to enter piea and be informed of the content ofsubstituted charge. 5. That, the trial court erred in iaw and fact not to provide reasons as to why there was a shift ofhands of the criminal proceedings from predecessor to successor magistrate. It was appellant's prayer that the appeal be allowed by quashing and set aside the decision of the trial court. As per the court's order dated 15/10/2024, the appeal was ordered to be argued by way of written submissions. Mr. Jacob Mashenene learned advocate appeared for the appellant, whereas Ms. Florida Wenseslaus, Ms. Grace Kibaki and Ms. Caroline Assenga, learned state attorneys had the audience on behalf of the respondent. Both parties conformed to the order of the court accordingly. Having gone through the records of this appeal and the parties' submissions for and against the appeal, I find It pertinent that I should start with the determination of the fourth ground of appeal that the trial court erred In law and fact to deny the appellant right to enter plea and be Informed of the content of substituted charge. The appellant's complain Is that the charge sheet was substituted without complying with the dictates of Section 234(1) (2) (a) of the Criminal Procedure Act, Cap.20 R.E 2022 which mandatorlly required the trial court after substituting the charge to call upon the accused to enter plea and inform him of his rights such as recalling of wltness(es). If any. This being a noted procedural Irregularity, It will be canvassed first before I proceed into determining the merits or contra wise of the appeal, should the need still be. It was Mr. Mashenene's submission that the prosecution side did amend the charge sheet and subsequently the matter was scheduled for hearing on 15/01/2024. He uttered that, on the aforesaid date, the matter was adjourned to 08/02/2024 at page 20 of the trial court proceedings and later adjourned to 04/03/2024; 27/03/2024; 13/06/2024 and 04/07/2024 as evidenced at page 20, 21 and 22 of the trial court proceedings. That hearing of the matter commenced on 01/07/2024. It was Mr. Mashenene's argument that the records is apparent that the trial court did not accord the appeiiant the right to be informed of the contents of substituted charge so as to enter his plea and recall witness(es) if any, contrary to the provisions of Section 234(1) (2) (a) of the Criminal Procedure Act, Cap.20 R.E 2022 ("CPA"). To fortify his proposition, he cited the case of Kurubone Baairiawa & Others vs Republic (Criminal Appeal No. 132 of 20151120161 TZCA 272 <28 October 2016) and Paulo Kumburu vs Republic(Criminal Appeal No 98 of 20161 (20181 TZCA 508 (16 Mav 20181. He urges this court to declare that there was no fair trial against the appeiiant. In contest, Ms. Wenseslaus submitted that on 05/12/2023 they prayed to amend the charge and the same was granted, (see page 6 of the trial court proceedings). That the charge was read over and explained to the appeiiant whom he pleaded not guilty,(see page 4 of the trial court proceedings). She concluded that there no way the appellant can say he was curtailed his rights thereof. In retort, the appellant stated that the learned counsel for the respondent is not oniy misieading the court but attempt to amend court proceedings. He submitted that the way she has interpreted the trial court's proceedings raises a serious doubt as to its properness on how they were conducted. To bolster his submission, he has referred this court to the case of Musa Mohammed vs The Republic, Criminal Appeal No. 216 of 2005. Having considered the rival submissions of the parties, the pertinent question is whether the appellant was accorded his right to plea to the substituted charge in accordance to section 234(1)(2)(a) of the Criminal Procedure Act, Cap.20 R.E 2022? To begin with, I find it apposite to reproduce the provision of Section 234(1)(2)(a)(b) of the CPA which provides: - (1) Where at any stage of a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration of the charge either by way ofamendment of the charge or by substitution or addition ofa new charge as the court thinks necessary to meet the circumstances ofthe case unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and aii amendments made under the provisions ofthis subsection shall be made upon such terms as to the courtshallseemjust (2)Subject to subsection (1), where a charge is altered under that subsection- (a)the courtshall thereupon call upon the accused person to plead to the altered charge; (b) the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate and, in such iast-mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out ofsuch further cross-examination. In light of the above provision of the law, it is now to see whether the Section was complied with. Fortunately, the proceedings are up-front and they speak for themselves. On 05/12/2023, the charge was read over and explained to the accused who pleaded not guilty (See page 4 of the trial court proceedings (6.3)). Then, the trial magistrate [Hon. Rweikiza] progressed with preliminary hearing (PH),(see page 5 and 6 of the trial court proceedings (6.5; 6.6; 6.7 and 6.8)). Furthermore, the trial court proceedings exposes that the charge was substituted by the order of the trial court on the same day, see page 6 of the trial court proceedings (6.9). It is on record that when the case was scheduled for PH on 05/12/2023 the accused did enter his plea to the initial charge and not the substituted one, see page 4 of the trial court proceedings (6.1; 6.2 and 6.3). As rightly submitted by the appellant's counsel, the trial court did not accord the appellant the right to be informed of the contents of substituted new charge so as to enter his plea in terms of section 234(1) (2) (a) of the CPA. The omission is fatal and affected the validity of the whole trial. When faced with the same situation in the cited case of Kurubone Bagirigwa & 3 Others vs Republic, (Supra), the court made the following finding: ..It is mandatory for a plea to a new or altered charge to be taken from an accused person, failure to do so renders a trial a nullity. (See THUWAY AKONNAY VS REPUBLIC(1987) TLR 92". At this juncture, reading the whole of page 4, 5 and 6 of the trial court's proceedings, it does not disclose whether the accused person was given a right to plea to the new charge after the prayer by the respondent to substitute charge. That being the case, the unsubstantiated argument by the respondent's counsel cannot be taken as sugar-coating the matter under the prevailing circumstances while the records reveal contrary to what she had submitted. There is no records in the trial court's proceedings to show whether the appellant was afforded his right to enter a plea to the substituted charge and being well Informed of his rights thereafter. The irregularity is fatal. On the way forward, in the prominent decision of Fatehali Manji vs Republic [1966] EA 343, restated the principles upon which court should order retrial. It said: .//7 genera!a retrial will be ordered only when the original trial was Illegal or defective; it will not be ordered where the conviction is set aside because ofinsufficiency ofevidence or for the purpose ofenabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the 1 trial court for which the prosecution is not to biame, it does not necessariiy foiiow that a retriai shouid be ordered; each case must depend on its particuiar facts and circumstances and an order for retrial should only be made where the interests ofJustice require it and shouid not be ordered where it is Hkeiy to cause an injustice to the accused person As regards to this appeal, it Is clear that the trial court's proceedings were tainted with procedural Irregularity which I see that it is necessary to order retrial in the course. Further to that, upon revisiting the evidence on record; it is my considered opinion, having analysed the prosecution evidence placed before the trial court, an order for retrial is sufficient under the circumstances. The third ground of appeal is therefore found meritious. And from what I have found above, the ground suffices to dispose this appeal. Therefore I see no justifiable reasons to address on the other grounds of appeal as opting to do so tantamount to an academic exercise which I'm not prepared to do so for being jealous with this court's time and resources whereas the 4'^'' ground of appeal has disposed of the appeal. In the upshot, the appeal is allowed to the extent explained above. Consequently, the proceedings ensued after 05/12/2023, along with the judgment, conviction and sentence are hereby nullified. The records of the trial court are remitted back to the trial court for a retrial after the appellant/accused is accorded a right to enter plea on the substituted charge. In the meantime and pending trial, the accused's right to bail is resumed in the same manner as it were before Conviction. Dated at Dar es salaam this 10^^ day of December, 2024. u ui .M. MAGHIMBI ★ JUDGE