petro nadoho vs republic 2016 tzca 2090 27 june 2016

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA (CORAM: MJASIRI. J.A.. KAIJAGE. J.A. And MMILLA. J.A) CRIMINAL APPEAL NO. 457 OF 2015 PETRO NADOHO.................................................................................APPELLANT

VERSUS THE REPUBLIC.................................................................................RESPONDENT (Appeal from the conviction and sentence from the Judgment of the High Court of Tanzania at Tanga) (MsuyaJ.) dated 31st day of August 2015 in Criminal Appeal No. 47 of 2013

JUDGMENT OF THE COURT 22nd & 27th June, 2016 MJASIRI, J.A: The appellant Petro Nadoho is appealing against the decision of the High Court of Tanzania at Tanga. He was charged in the District Court of Handeni District with three (3) counts, wounding contrary to section 228 (a), rape contrary to section 130 (1) (2) (a) and 131 (1) and theft contrary to section 258 (1) and 265 of the Penal Code Cap 16, RE 2002 (the Penal Code). He was found guilty on all the three counts and was sentenced to five (5) years imprisonment on the 1st and 3rd counts and thirty (30) years imprisonment on the second count. The sentences were to run concurrently. He was also sentenced to suffer 12 strokes of the cane and was also ordered to pay Shs 500,000/= compensation to the victim. His appeal to the High Court was unsuccessful, hence his second appeal to this Court. It was the prosecution case that on the 19th day of February 2012 at about 10.00 hours at Negore Village within Handeni District in Tanga Region, the appellant wounded, raped and stole Esta Mzee's mobile phone. The appellant lodged a three (3) point memorandum of appeal which is reproduced as under:- 1. That, both the appellate Judge and the learned trial Magistrate erred in law and in fact by failing to notice that the evidence of the victim PW1 did not establish the ingredients of the offence of rape i.e. penetration as required by section 130 (4) (a) of the Penal Code.

2. That both the appellate Judge and the learned trial Magistrate erred in law and in fact by failing to analyse that the credibility of the duo PW2 and PW4 was under mined because the precise date the PF3 was issued by the police was unknown.

3. That both the appellate Judge and the trial Magistrate erroneously believed that the prosecution had proved their case beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person and was unrepresented while the respondent Republic had the services of Ms. Rebecca Msalangi assisted by Mr. Tulumanywa Magigo, learned State Attorneys. The appellant opted to let the learned State Attorney submit first. Before hearing the parties on the merits of the appeal, Mr. Tulumanywa, sought leave to address the Court on two points of law.

1. That the trial Court proceeded to sentence the appellant without entering a conviction.

2. The appellant failed to file a notice of appeal when lodging his appeal to the High Court. In view of the anomalies, he asked the Court to use its revisional power under Section 4 (2) of the Appellate Jurisdiction Act, Cap 141, RE. 2002 (the Act) to nullify the proceedings of the High Court. 3 The appellant being a layman, and having no benefit of counsel did not have anything to say in respect of the legal issues raised by Mr. Magigo. He simply stated that he left everything in the hands of the Court. We shall commence with issue No. 2 relating to the failure by the trial Court to enter a conviction. We on our part entirely agree with the observations made by the learned State Attorney that the trial Court failed to comply with the statutory requirement to enter a conviction before he proceeded to sentence the accused person. At page 28-29 of the record the trial magistrate stated as under:- "From the above reasoning, this Court finds the accused person guiity of rape contrary to section 130 (1) and (2) (a) and 131 (1) of the Penal Code Cap 16, Volume I [R.E] 2002 as charged in the second count The Court also finds the accused person guilty of wounding contrary to section 228 (a) of the Penal Code as charged on the first count of the charge sheet" The trial Magistrate did not make any finding on the 3rd count of theft though he sentenced the appellant to 5 years

imprisonment. The law requires that a conviction should precede sentencing. Section 235 (1) of the Criminal Procedure Act, Cap 20 [R.E. 2002] (the CPA) provides as follows:- "235 (1) 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 or discharge him under section 38 of the Penal Code" [Emphasis provided] The appellant's right to appeal to this Court is dependant upon his conviction. The sentencing process must therefore be preceded by a conviction. It is evident from the record that no conviction was entered by the trial magistrate. Failure to enter a conviction is a fatal irregularity. This means there is no valid judgment upon which the High Court could up hold or dismiss an appeal. 5 In Shabani Idi Jololo and Others versus Republic, Criminal Appeal No. 200 of 2006 it was stated that a conviction should precede sentence. It is one of the pre-requisites of a judgment under section 312(2) of the CPA. If there is no conviction, there is no valid judgment of a trial court against which a first appeal can be filed in the High Court and subsequently the second appeal to this Court. See also Omary Hassan Kipara v. Republic, Criminal Appeal No. 80 of 2013 CAT (unreported). Section 312(2) of the CPA provides as

follows:- In the case of conviction thejudgment shall specify the offence of which, and the section of the Pena/ Code or other law under which, the accused person is convicted and the punishment to which he is sentenced. [Emphasis provided]. In view of our findings on the failure to enter a conviction by the trial court, we need not delve into the issue of notice. 6 For the forgoing reasons, and in exercise of our revisional jurisdiction under section 4(2) of the Appellate Jurisdiction Act Cap 141, [RE 2002] we hereby quash and set aside the proceedings and judgment of the High Court and the judgment of the District Court and the sentence of thirty (30) years and five (5) years imprisonment. It is ordered that the record be remitted to trial the court for it to enter a conviction and to deliver a judgment in accordance with the requirements under the law incompliance with sections 235(1) and 312 (2) of the CPA. It is so ordered. DATED at TANGA this 24th day of June, 2016. S. MJASIRI

JUSTICE OF APPEAL S. S. KAIJAGE

JUSTICE OF APPEAL B. M. MMILLA

JUSTICE OF APPEAL I certify that this is a true copy of the original. • P. W. BAMPIKYA

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL