CRIMINAL APPPEAL CASE NO 95 of 2023RAMADHANI NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY ATMTWARA CRIMINAL APPEAL CASE NO 95 OF 2023 (Originating from Criminal Case No 74 of 2022 in the District Court of Newaia at Newala) RAMADHANI SALUMU MOHAMED!............ .........APPELLANT THE REPUBLIC .......... ..................................... ......RESPONDENT 'A Sf.- JUDGMENT Date ofLast Order: November 2023 ,e S Date ofJudgement: 27:: November2023 ' - LALTAIKA, J, A The appellant herein RAMADHANI SALUMU MOHAMEDI, was arraigned inlhe District Court of Newala at Newala in Criminal Case No 74 of 2022 charged with two counts of 1. Impersonation contrary to section ■4^. A ft 369(1) of the Penal Code Cap 16 RE 2022 and 2. Obtaining goods by false pretence contrary to section 301 and 302 of the Penal Code (supra). Page 1 of 10 It was alleged by the prosecution that on 17/6/2022 at about daytime in Chiwonga Village, Newala District, with intent to defraud the appellant obtained hard cash to the tune of TZS 600,000/= from one Juma s/o Issa Kavinga pretending to register students at TAMTA, SHAMSIA, MAARIFA and ZAHARAWE Islamic Colleges at Tanga Region while knowing the same not to be true. When the charge was read over and explained the appellant (then accused) he pleaded not guilty. The court conducted a full trial. After the full trial, the learned Magistrate was convinced that the prosecution case was proved beyond reasonable doubt. Consequently, the appellant was convicted as charged and sentenced to serve three years in prison. Aggrieved, the appellant has appealed to this court by way of a petition of appeal containing six (6) grounds. Irrespective of many typographical and grammatical errors, I take the liberty to reproduce them as hereunder: [■ d.That, the prosecution side didn't prove its case beyond reasonable, X doubt. That, the trial Court having failed properly to examine, evaluate and analyze evidence on record. Page 2 of 10 3. That, no exhibits brought before the court to verify that, the appellant has receive money from different people alleged by prosecution. 4. That, the manner in which the proceedings at the trial court were conducted, was irregular or/and Improper. 5. That, an order for refund has no basis in this case and in making it causing serious injustice on the part of the appellant. , . - . * 6. That, the trial Magistrate erred in low and in fact in failing to make a finding that the evidence on record dp not establish the offence charged. . When the appeal was called on for hearing ohthe 6th of November 2023, the appellant appeared in person, unrepresented. The respondent, Republic, on the other hand, appeared through Mr. Steven Aron Kondoro, learned State Attorney. / Not been learned Jn law, the appellant indicated that he had nothing substantial toaddto his expounded grounds of appeal. He requested that the learned State Attorney proceeds with his part while reserving the right to a rejoinder. Mr. Kondoro, the learned State Attorney, started off by stating that after going through the impugned judgment and proceedings of the trial court, he noted several mistakes. These included the lack of citation of the section Page 3 of 10 providing the sentence. He emphasized that the learned magistrate only mentioned that the sentence was 2- and 3-years imprisonment for the first and second counts, respectively. It was Mr. Kondoro's submission that the omission had offended ... procedural requirements because, even in the proceed) ng s^irr^spdctive of the documentation of the evidence of both sides, thetrial court failed to provide how it evaluated the evidence of both sides. To this end, since the v prosecution is charged with ensuring justiceA:Mr/ Kondoro expressed the hope that the court would provide directives<on the two issues raised. Mr. Kondoro acknowledged that the prosecution is aware that section 366(l)(a) (1) to (iii) provides that the high court can fix such discrepancies. However, he conveyed the view that the matter should be sent back to the trial court for retrial,^ The appellant, in his brief rejoinder submission, expressed dissatisfaction with the lower court, stating that it did not act justly. He asserted his innocence, claiming no involvement in the charged offense. The reason he provided was a conflict related to the administration of mosques. He explained that he established a madrassa that attracted 200 students in Page 4 of 10 two years, and due to his contributions, villagers questioned why he should not become the District Sheikh. According to the appellant, a party was arranged to celebrate Idd al Hajj, and many sheiks were invited to conduct elections that would..have elected him the District Sheikh. However, the event led to division/with some people opposing him, ultimately resulting in the establishment of the scenario in question. He mentioned sharing this story with-,thOearned Magistrate, although ■4= ■'k zi % it was challenging. The appellant expressed difficulty in conveying how bad the situation was, especially since Jhe was denied bail, and the case took a year with only two witnessestlrning up. Sfe:. Citing health challenges, the appellant explained that he struggled to attend court and asserted that the trial court was not fair, citing a multitude of casesr and expressing disappointment in the perceived lack of justice in lower courts. He prayed for the appellate court to carefully review the matter. The appellant drew attention to conflicts within their religious organization, noting the complexity for outsiders to understand them, leading to accusations of bewitchment and mysterious deaths. Page 5 of 10 Providing background information, he mentioned being born in Handeni Tanga, educated at Handeni Madrassat, and attending a college called East Africa Mabrui in Mombasa for six years. He came to the South with a former classmate, started preaching in Mtama, Lindi, and late^jnQVed to Newala. He is married to a woman from Newala, and his children reside in Dar es Salaam. The appellant claimed that the charges against him were carefully framed, alleging that the authorities aimed fpNmpersonation, resulting in his imprisonment. He insinuated that the magistrate may not have been smart enough and might have beeni involved. .A I have dispassionately considered the grounds of appeal and submissions by both^parties. It is noteworthy that although he did not support the appeal, Mr. Kondoro began by highlighting several procedural rM mistakes jn the impugned judgment and trial court proceedings. These in eluded the lack of citation of the section providing the sentence. He noted that the learned magistrate only mentioned that the sentence was two- and three-years' imprisonment for the first and second counts, respectively, without specifying the relevant legal provisions. Page 6 of 10 Mr. Kondoro submitted that this omission violated procedural requirements. Despite documenting the evidence from both sides, the trial court failed to show how it evaluated the evidence. Mr. Kondoro suggested that the matter be sent back to the trial court for a retrial, as,.section 366(l)(a)(i) to (iii) of the Criminal Procedure Act allows the high court to address such discrepancies. My only concern here is whett(§hthe matter can be sent back to the trial court for retrial as prayed foryby'the learned State Attorney. The power to order a retrial should; be exercised with great caution. Retrials are generally ordered when there is a substantial likelihood that the outcome of the trial might have been different had the error not occurred. The primary purpose of a retrial is to remedy a significant procedural or legal error that had a prejudicial impact on the fairness of the original trial. This ensures that’justice is not only done but seen to be done. JjtOppellaht has raised valid concerns about the fairness of the trial court: He has cited specific instances of perceived bias and has described the prolonged duration of the proceedings, which took a significant toll on his personal and family life. The appellant has also highlighted the broader Page 7 of 10 context of the conflict within his community, which suggests that the charges against him may have been influenced by factors unrelated to the alleged criminal conduct. Retrials should not be ordered lightly, especially when thfrejare indications that the initial trial was tainted by procedural iri^gularities or potential bias. Subjecting the appellant to another trial,without compelling X evidence of a different potential outcome would not serve the interests of justice. Instead, it would prolong his ordeal^bicl further strain judicial resources. > Considering these factors,-and to serve the interests of justice, I find that ordering a retrial wddlcknot be appropriate. There is insufficient evidence to justify aretrial, and it would not serve the ends of justice to subject the appellant to another prolonged legal process without strong ( grounds. Th^id^ntified procedural errors, while regrettable, do not warrant the drasticTneasure if of a retrial. In the Upshot, I allow the appeal. I hereby quash conviction and set aside the sentence. Further, I order that the appellant RAMADHANI Page 8 of 10 SALU MU MOHAMEDI be released from prison forthwith unless he is being held for any other lawful cause. It is so ordered. This judgement is delivered under my hand and the seal of this court this 27th day of November 2023 in the presence of Mr. Steven Kondoro learned Page 9 of 10 Court The right to appeal to the Court of Appeal of Tanzania is fully explained. Page 10 of 10