20101014 TZHC Mtwara

IN THE COURT OF APPEAL OF TANZANIA

ATMTWARA (CORAM: MBAROUK, J.A, BWANA, J.A. AND MASSATI, J.A.) CRIMINAL APPEAL NO. 60 OF 2007 -- ----- ------ RAMADHANI KARUNDA .................................... APPELLANT

VERSUS THE REPUBLIC ............................................. RESPONDENT (Appeal from the conviction and sentence of the RM's Court with Ext. Juris. at Mtwara) (Kinemela, PRM (Ext Jurisdiction)) .dated the 2 nd day of February, 2007 in Criminal Appeal No. 38 of 2006

JUDGMENT OF THE COURT 13 & 15 OCTOBER, 2010 MBAROUK, J.A.: The appellant was convicted of the offence of rape contrary to Section 130 (1) (2) (e) of the Penal Code as amended by sections 5 and 6 of the Sexual Offences (Special Provisions) Act No. 4 of 1998 by the District Court of. Liwale at Liwale. He was sentenced to thirty 1 (30) years imprisonment. Aggrieved by the conviction and sentence, he appealed to the Resident Magistrate's Court with Extended Jurisdiction at Mtwara. His appeal was dismissed. Still aggrieved, hence this second appeal. A brief account of the case which was before the trial court was as follows:- On 15th February, 2005 at about 2.30 p.m Salima Issa (PWl) was on her way to Mkutano village from Nduruka riding a bicycle with her child. Somewhere at the forest, she met a man unknown to her. The man asked her where she was going and answered that she was sending her sick child to the dispensary. The man identified as the appellant, further asked her why she was alone while lions threaten people in that forest. PWl answered that, God is with her. Having gone some distance, PWl's bicycle got a certain defect and hence started to repair it. Thereafter, the appellant followed her and asked her to have sexual intercourse with him. PWl refused, but the appellant pushed her down and caught her neck so as she would not 2 to raise an alarm. He then grabbed her and

tore her underwear and ravished her. Having satisfied his desire, the appellant left. She then collected herself and proceded to Mkutano village assisted by Mr. Nombore where she reported the incident to the Village Executive Officer (VEO). PWl described the features of the appellant to the VEO and then taken to a dispensary for treatment with her child. The VEO ordered the arrest of the appellant after he was picked by PWl in an identification parade consisted of five other youths. He was sent to the police the next day, where he was accordingly charged. In his brief defence at the trial court, the appellant denied. to have committed the offence and claimed that, the VEO had grudges against him, having worked for him and never paid his money. He also raised a defence concerning his age, but the same was not considered. In this appeal, the appellant has filed his memorandum of appeal containing ten grounds with six other additional grounds. 3 However we have noted that, most of the grounds seem to have repeated themselves. All in all, the most important thing we have noted among his grounds of complaint is that, the first appellate court contravened the principles of natural justice because it failed to consider the appellant's grounds of appeal in his memorandum of appeal. Mr. Ismail Manjoti, learned State Attorney for the respondent/ Republic, conceded that, the record shows

that the first appellate court noted to have stated in its judgment that, it found no reason to go through the appellant's grounds of appeal, because they were "superfluous." He added that, the PRM with extended jurisdiction contravened the rules of natural justice for not have taken into consideration the appellant's grounds of appeal. Mr. Manjoti then urged us to invoke our revisional powers and order that the appellant's appeal at the High Court be heard again. With respect, we are of the opinion that, considering the weight of the irregularity which has appeared in the first appellate's court 4 judgment, we are constrained not to go into the merits of the appeal. This is because, it seems clear to us that the PRM (Ext. Jurisdiction) who dealt with the appeal contravened the rules of natural justice for his failure not to consider the appellant's grounds of appeal. As the record shows, the PRM (Ext. Jurisdiction) simply noted as follows:- ''I find no reason of going into his grounds of appeal for in one way or another they are superfluous. " We are of the opinion that, the first appellate court failed to consider the appellants' grounds of appeal in their totality, he found the appellant's grounds of appeal "superfluous" without analyzing as to how he reached to that conclusion. In our view, this is a serious misdirection. It is a trite law that, both sides in a case have to

be heard. See for instance, the decision of this Court in the case of Hussein Idd & Another v R, [1986] TLR 166, where a trial judge failed to consider the defence evidence and so the defect was taken as a serious misdirection. In the instant case such rules of natural 5 . justice were violated for not having considered the appellant's grounds of appeal. In the event, and in the interest of justice, we find that the misdirection done by the PRM (Ext. Jurisdiction) has forced us to invoke our revisional powers conferred upon us by Section 4 (2) of the Appellate Jurisdiction Act and order the appellant's appeal before the first appellate court to be heard afresh. We so order. DATED at MTWARA this 14th day of October, 2010. M.S. MBAROUK

JUSTICE OF APPEAL SJ. BWANA

JUSTICE OF APPEAL

COURT 6