CR

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NPIKA. 3.A.. MWAMPASHI. J.A. And MGEYEKWA. 3.A.) CRIMINAL APPEAL NO. 575 OF 2021 RAMADHANI S/O IDDI @ MNYAMPAA.................................... APPELLANT VERSUS THE REPUBLIC...................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Mzuna, J.^ dated the 21st day of June, 2021 in (DO Criminal Appeal No. 53 of 2020 JUDGMENT OF THE COURT 16th & 20th August, 2024 MWAMPASHI. J.A.: The appellant, Ramadhani s/o Iddi @ Mnyampaa, Was arraigned before the District Court of Babati at Babati ("the trial court") facing two counts, to wit: rape contrary to sections 130(1) (2) (e) and 131(1) of the Penal Code [Cap. 16 R.E. 2002, now R.E. 2022] ("the Code") and impregnating a school girl, contrary to section 60A (3) of the Education Act, [Cap. 353 R.E. 2002] as amended by Miscellaneous Amendments Act No. 2 of 2016. He was found guilty as charged, duly convicted and sentenced to serve a term of 30 years' imprisonment on the first count of i rape and 1 year imprisonment on the second count. The sentences were ordered to run concurrently. On the count of rape, it was alleged that, on unknown date of December, 2018, at Nakwa Village within the District of Babati in Manyara Region, the appellant had carnal knowledge of a 16 years-old girl, who for the sake of protecting her privacy, will be referred to as "PW1" or "the victim". With regard to the 2nd count, it was alleged that, on the same unknown date of December, 2018, at the same place, the appellant, impregnated PW1, a Form Two student of Nkati Secondary School. In its endeavour to prove the case against the appellant, the prosecution evidence, albeit in brief, was as follows: The victim was a Form II student at Bagara Secondary School. She used to live with her mother (PW2) at Nakwa Village within the District of Babati. However, during school days, the victim stayed at the school hostel. During school vacations, the victim used to fetch firewood and sell to the appellant. For that purpose, during the December, 2018 vacations, when the victim went to the appellant's house, the appellant seized the opportunity by seducing and taking her into his room where he carnally knew her after promising to assist her with school necessities. He also gave her TZS. 5500.00. Four days later, the two had sexual intercourse again. In April, 2018, the victim realized that she was pregnant and when she approached the appellant, she was chased by him and advised to run away. The victim heeded and fled to Dodoma. She was however, returned back home by the police and that is when she disclosed that the appellant made her pregnant. The victim's mother Hadija Rajabu Hangaleii (PW2), told the trial court that the victim is her daughter born on 30.03.2003. On 29.04.2019, she learnt that the victim who was a student at Bagara Secondary School, was not at the school hostel. She reported the missing of her daughter to the School Headmaster and the police. On 01.05.2019, PW2 was informed that her daughter was at Dodoma. When the victim was brought back home by the police, she revealed that she had been impregnated by the appellant. The fact that the victim was pregnant was confirmed by Dr. Felix Joseph Komba (PW3) of Babati District Hospital whose evidence was to the effect that by 03.05.2019, when he medically examined the victim, the pregnancy was 3 months old. The evidence proving that the victim was a student, came from Emmanuel Shayo (PW5) who testified that he is a teacher at Bagara Secondary School and that the victim was a Form IIB student whose Registration No. was 2138. 3 In his unsworn defence evidence, the appellant, in two sentences, said he had no any evidence in his defence and further that he was leaving the wisdom of the court to take course. As alluded to above, after a full trial, the appellant was found guilty of both counts, duly convicted and sentenced in the manner indicated above. His appeal to the High Court vide Criminal Appeal No. 53 of 2020, was found devoid of merit and was accordingly dismissed in its entirety. Still aggrieved, the appellant has preferred the instant second appeal raising a total of 6 grounds of complaint. However, for the reason that we are of a settled view that the appeal can be disposed of by ground 6 of appeal, we will not reproduce all the grounds raised by the appellant except for ground 6 which is to the effect that: The trial court erred in failing to address the appellant in terms o f section 231 (1) o f the Criminal Procedure Act [Cap. 20 R.E. 2002; now R.E. 2022] C'the CPA"). At the hearing of the appeal, while the appellant appeared in person unrepresented, Mses. Naomi Mollel, Neema Mbwana and Eunice Makala, all learned Senior State Attorneys, represented the respondent Republic. When invited to argue his appeal, the appellant adopted his written submissions he had earlier filed and let the learned State Attorneys to respond to the grounds of appeal first. Submitting against the appeal, Ms. Mollel covered all the grounds of appeal as raised by the appellant. However, for the purpose of this judgment and for the reason we have earlier alluded to, our interest is in the submissions made on ground 6 only. In that regard, it was contended by Ms. Mollel that, though the record of appeal at page 37 shows that the trial magistrate did not indicate that section 231 (1) of the CPA, was complied with, what the appellant averred in his defence, shows that he was properly addressed in terms of section 231 (1) of the CPA. Ms. Mollel insisted that based on the manner the appellant responded after being found with a case to answer, he was informed of his rights in defence. She thus urged us to dismiss the ground. On his part, the appellant rejoined by praying for the appeal to be allowed on the basis of his grounds of appeal. He insisted that, the trial court did not inform him of his rights in defence. The issue for our determination is simply whether section 231 (1) of the CPA was complied with. It is provided under the said provision that: "231.-(1) At the dose o f the evidence in support o f the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation 5 to any other offence o f which, under the provisions o f sections 300 and 309 o f this Act, he is liable to be convicted the court shall again explain the substance of the charge to the accused and inform him of his right- (a) to give evidence whether or not on oath or affirmation; on his own behalf; and (b) to call witness in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any of the above rights and shall record the answer; and the court shall then call on the accused person to enter on his defence save where the accused person does not wish to exercise any o f those rights". [Emphasis added] The import of the above provisions of the law, was explained by the Court in the case of Ndamashule Ndoshi v. Republic (Criminal Appeal No. 120 of 2005) [2007] TZCA 176 (16 March 2007; TanzLII), thus: "Section 231 o f the Act contains a fundamental right o f an accused person: the right to be heard before they are judged. It directs that a trial magistrate must inform an accused that he has a right to make a defence or chose not to make one in relation to the offence charged or to any other 6 alternative offence for which the court could under the law convict. Not only is an accused entitled to give evidence in their defence but also to call witnesses to testify in their behalf. So, the section is an elaboration o f the all-important maxim - audi alteram partem and that no one should be condemned unheard". Having demonstrated what section 231 (1) of the CPA provides, we also find it imperative, for the sake of appreciating the issue for our determination, to reproduce part of the proceedings of the trial court on what transpired on 13.01.2020 following the closure of the prosecution case and after the appellant had been found with case to answer. At pages 36 to 37 of the record of appeal, the proceedings go thus: "Luciana State Attorney: The case is for hearing. We pray to dose our case. Sgd: VJ. Kimario RM 13/01/2020 Court: Prayer granted. The prosecution case is hereby dosed as prayed. Sgd: V.J. Kimario RM 13/01/2020 RULING An accused person is charged with offence o f rape contrary to Section 130 (1) (2) and 131 (1) o f the Penal Code Cap. 16 R.E. 2002. He did plea not guilty to the charge and the prosecution side did call five (5) [witnesses] to give their evidence against him. Also we have two exhibits. Having [gone] through the evidence in record together with prosecution exhibits I find that, the accused person has a case to answer. Sgd: V.J. Kimario RM 13/01/2020 Accused: I do not have any kind o f evidence in my defence. I [leave the matter to the] wisdom o f this honourable court". It is clear, from the above excerpt that, there is no indication by the trial court that section 231 (1) of the CPA was complied with. Ms. Mollel was of the view that the alleged fact that the appellant was addressed in terms of section 231 (1) of the CPA can be inferred from what the appellant averred in his brief defence evidence. With due respect, we are unable to agree with her. The trial court's record clearly speak volumes that, after finding the appellant with a case to answer, the trial court did not explain of his rights under section 231 (1) of the CPA which is contrary to what is mandatorily required by the law. 8 Further, the fact that the trial court did not inform the appellant of his rights to call witnesses and to opt either to give his defence evidence on oath or affirmation or not, is evident from the fact that the appellant did not testify in his defence. He simply stated that he was leaving the matter to the wisdom of the court. Under section 231 (1) (a) and (b) of the CPA, it is mandatorily required that after the accused person is informed of his rights, he is required to express his choice which must be put on record. In the instant case, there is no indication to that effect on record. The Court has pronounced itself on the requirement of the strict compliance with section 231 (1) of the CPA in a number of its decisions. For instance, in the case of Maneno Mussa v. Republic (Criminal Appeal No. 543 of 2016) [2018] TZCA 242 (20 April 2018; TanzLII), the Court observed that: "Indeed, as submitted by the learned State Attorney, the trial court's failure to comply with the provisions o f S. 231(1) o f the CPA is a fatal omission. In the case o f Richard Malima & 4 Others v. The Republic, Criminal Appeal No. 183 o f 2010 (unreported), the Court emphasized the duty bestowed on trial magistrates o f strictly complying with the provisions o f S. 231(1) o f the 9 CPA, particularly where an accused person is not represented by a counsel". Further, in the case of Richard Malima (supra) the Court stated that: "As pointed out earlier, the appellants who are laypersons and unrepresented were not made aware o f their rights pursuant to section 231 o f the CPA. In the circumstances o f this case, we think, the omission stated herein above occasioned a miscarriage o f justice, since the appellants were not represented by an advocate and were not made aware o f their rights. We think so because the appellants could have opted for any option among those stated therein if they were made aware o f their rights. The problem is, they had no legal representation and worst enough the trial court failed to comply with the requirements under section 231 o f the CPA". The effect of failure to comply with the mandatory provisions of section 231 (1) of CPA, was stated by the Court in Juma Limbu @ Tembo v. Republic, Criminal Appeal No. 120 of 2005, thus: "For the irregularity o f non-compliance with section 231, we are o f the view that all the proceedings after the closure o f the prosecution's case were null and void and vitiated all those proceedings thereafter". 10 (See also- Salum Nassoro v. Republic, Criminal Appeal No. 234 of 2009 (unreported), Ally Juma Faizi & Another v. Republic (Criminal Appeal No. 401 of 2013) [2015] T7CA 59 (16 July 2015; TanzLII), Cleopa Mchiwa Sospeter v. Republic (Criminal Appeal No. 51 of 2019) [2020] TZCA 287 (11 June 2020; TanzLII) and Maduhu Sayi @ Nigho v. Republic (Criminal Appeal No. 560 of 2016) [2020] TZCA 1723 (17 August 2020; TanzLII). Based on the foregoing observations and the position of the law, we find ground 6 of the appeal meritorious. The trial court failed to address the appellant who is a layperson and unrepresented, in terms of the mandatory provisions of section 231 (1) of the CPA. The omission is fatal and it renders the proceedings immediately after the trial court's ruling on a case to answer, a nullity. Consequently, we nullify the proceedings of the trial court which followed immediately after the ruling on a case to answer. We also quash the trial court's judgment and set aside the sentence imposed on the appellant. In the same vein, the High Court's proceedings and judgment are as well quashed. Finally, we remit the trial court's record to the trial court and direct that, having duly complied with section 231 of the CPA, the same trial magistrate, if practicable, should proceed with hearing of li the case by recording the appellant's defence evidence and composing the judgment. We also direct that, should the trial court convict the appellant, section 172 (2) (c) of the CPA should be taken into consideration in as far as the sentence is concerned. DATED at ARUSHA this 19th day of August, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 20th day of August, 2024 in the presence of the Appellant in person and Mr. Godfrey C. Nugu, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 12