Ruling Sospeter

Page 1 of 13 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CRIMINAL APPEAL NO. 24771 OF 2024 (Arising from Criminal Case No. 152 of 2023 of the District Court of Geita at Geita) STEPHANO FADHALI……………………………………………………... APPELLANT VERSUS REPUBLIC…………………………………………………………………RESPONDENT RULING Date of last Order: 11/09/2024 Date of Judgment: 18/09/2024 MWAKAPEJE, J.: The appellant was arraigned before the District Court of Geita and charged and convicted of the offence of rape contrary to section 130 (1)(2)(e) and 131(1) of the Penal Code. He was ultimately sentenced to serve thirty years imprisonment. The background of this appeal is as follows: on 26/08/2023 at Kabondo Kabayole village, the victim “X”, aged 15 years, a sardine’s vendor, sold the sardines to her friend Chausiku Msafiri on credit with a promise that immediately after she finished, her mother will make payments. As earlier agreed, the victim, at around 19:00 hrs, went to Chausiku’s house to collect her money. Chausiku’s mother, who was Page 2 of 13 preparing the food, welcomed her to eat before giving her money, a request the victim accepted and ate the food. After eating, Chausiku’s mother took the victim with her to the house for payment, and when they got inside the house, she told the victim to go with her to her room, which she declined. The victim chose to remain in the sitting room where the accused was sitting on the chair. Chausiku’s mother left the victim with the accused without paying her money. The accused carried the victim to the room, undressed her and did the same thereafter, having sexual intercourse with her. At around 22:00 hrs, the victim’s parents arrived and inquired about the whereabouts of the victim but were told by Chausiku’s mother not to have seen the victim. The victim was able to hear as she was in the sitting room, leaving the accused in the room. At that time, the victim was crying, then his brother knocked on the door, which the accused opened while shirtless, and when trying to escape, they managed to catch him. The victim came out while limping and told her parents that the accused raped her. Both the accused and the victim were taken to “VEO’’s office, where they were locked in until the next morning when the matter was reported to the police. The victim was later taken to the hospital for treatment. The accused was charged, tried and convicted of the offence of rape by the Page 3 of 13 District Court of Geita to serve 30 years imprisonment. Being dissatisfied with the decision, he is now before this court on appeal, armed with an initial seven grounds and one additional ground at the hearing of the appeal. They are listed hereunder; 1. That the District Court erred in law and fact to convict the appellant by relying on the weak evidence of PW3 (the Doctor), whose evidence was contradictive as to the date and time of the commission of the offence, that he attended and examined the victim on 7/8/2023 while the commission of the offence was said to have been on 26/8/2023. This means he attended to the victim before the commission of an offence. 2. That the District Court erred in law and fact to convict the appellant by failing to consider the contradictive evidence by PW2 and PW4 during the arrest of the appellant, that the appellant came from inside the “house” or from the “msitu” when he appeared from the locality chairperson of Kabondo and others who were there at appellant’s home? 3. That the District Court erred in law and fact to convict and sentence the appellant by failing to prove the allegations beyond all reasonable doubts on why the appellant took so long time to stay at the police station where he was taken to, that is from 27/8/2023 up to 11/10/2023. Hence, this situation leaves untreated doubt about this case. The time was beyond the prescribed time to stay at the police station. 4. That the District Court erred in law and facts by accepting all weak evidence from the prosecution side without considering the appellant’s side of his defence during the trial stage. 5. That the District Court erred in law and facts by failing to determine a doubt and contradiction on the interrogation made at Msafiri’s home Page 4 of 13 about Mariam’s (victim) information by PW2 and PW4 evidence, was it Msafiri or Mrs Msafiri who interrogated? This situation also shakes their evidence; that is, the credibility and weight of the evidence were not reliable enough to prove the case. 6. That the trial Magistrate erred in law and facts to convict the appellant by relying on the doubtful and hearsay evidence from the prosecution side for the fact that the appellant was no cough red handed on the spot (locus in quo) or the scene committing an offence of rape. 7. That the trial court Magistrate erred in law and facts to convict the appellant, failing to consider and determine the contradiction of the victim’s father's name and the names of the locality Chairperson shakes their evidence and leaves untreated doubts throughout. Hence the proceeding for this case is full of reasonable doubts. At the hearing of the appeal, the appellant appeared in pro se while the respondent was represented by Ms Luciana Shabani, learned Senior State Attorney. The appellant requested the State Attorney to remind him of his grounds of appeal, which, with the leave of the court, Ms Shabani complied by reading to him all his seven grounds of appeal contained in the petition of his appeal. Soon after, the appellant prayed to add another ground of appeal to make them eight in total, as; “There was no connection between the witnesses, nor were they present at the scene as each gave inconsistent accounts. The trial court accepted their testimony while disregarding mine.” Submitting his grounds of appeal, the appellant generally submitted to his grounds of appeal by stating that prosecution witnesses were not present at the scene of the crime and that no independent witness Page 5 of 13 testified against him. He also added that one of the witnesses claimed to have interrogated Chausiku’s mother, while another stated they interrogated Chausiku’s father. He concluded by praying for the court to evaluate the evidence and set him free. On the other hand, Ms Shabani argued the first, second, fifth and seventh ground jointly for they appear to be interrelated. She admitted that the testimony of PW3 shows that he attended to the victim prior to the incident. However, she argued that it was a human error as the remaining witnesses, PW1, PW2, PW4 and PW6, all stated that the incident happened on 26/8/2023, and the following day, the victim was taken to the hospital for treatment. She added that PF3 admitted as exhibit P1 indicates that the victim was treated on 27/8/2023; she, therefore, termed the variation in the testimony of PW3 as human error, which was rectified by other pieces of evidence. Regarding the contradiction in a crime scene, Ms Shabani told the court that PW2 narrated that a shirtless man came from the forest while PW4, whose testimony was supported by PW6, stated that a young man came from the house. She concluded that from the evidence, the appellant was seen coming from the house. And that the term site (forest) should be understood in the context of the entire testimony. Page 6 of 13 Furthermore, regarding the contradiction in the names, Ms Shabani argued that the victim is referred to as “XYZ” while her father is “ABC”. However, in the proceedings, it was never stated whether he was her biological father; rather, he was married to the victim’s mother. She maintained that the said discrepancy does not undermine the prosecution evidence. Regarding the contradiction of who was asked the question at the scene between Mr Msafiri and Mrs Msafiri. She submitted that the victim and PW2 mentioned Mrs Msafiri, while PW4 mentioned Mr Msafiri. She argued that it could be a typographical error as there is no evidence that Mr Msafiri was at the scene of the crime. In conclusion, Ms Shabani argued that the contradictions were very minor and could not affect the main case as was established in the cases of Dickson Elia Nsamba Shapwata and Another vs Republic, (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008) and Vuyo Jack vs DPP, (Criminal Appeal No. 334 of 2016) [2018] TZCA 322 (13 December 2018) that, not every discrepancy in criminal case will lead to its collapse, only those touching the heart of the case. She was of the opinion that the contradictions in the present case are minor for the prosecution case against the appellant, which was very strong. Page 7 of 13 Submitting on the fourth and sixth grounds of appeal jointly, Ms Shabani argued that the appellant was convicted after the prosecution side had proved the case beyond a reasonable doubt. She referred to the cases of Mohamed Haruna vs Republic, Criminal Appeal No. 259 of 2007) [2010] TZCA 141 (4 June 2010), and section 111 of the Evidence Act. She argued that in statutory rape, two elements to be proved are the victim’s age and the penetration. She told the court that the victim was aged 15 years, which was proved by PW2, the father; PW6, the mother; and PW3, the medical doctor. She referred to the case of Rutoyo Richard vs Republic (Criminal Appeal No.114 of 2017) [2020] TZCA 298 (16 June 2020). Concerning penetration, the victim proved to have been raped by the appellant by inserting his penis into her vagina. PW3 also testified that the victim’s hymen was perforated, and there was evidence of blood. Ms Shabani further argued that in sexual offences, the victim’s testimony is always reliable evidence, as was held in the case of Galus Kitaya vs Republic (Criminal Appeal No. 196 of 2015) [2016] TZCA 301) (15 April 2016). She told the court that in the instant appeal, the victim narrated how the appellant dragged her into the room and sexually assaulted her. She concluded by saying that the trial magistrate properly Page 8 of 13 evaluated the evidence of both sides and concluded that the prosecution proved its case to the required standard based on the strength of the evidence adduced before the court, finally convicting the appellant. In his rejoinder, the appellant had nothing more to add from his grounds other than praying for this court to acquit him, as he was of the view that the case was not proved beyond reasonable doubt as required. After the conclusion of the submissions for and against the appeal by the parties, the court probed Ms Shaban to address on the trial court's compliance with section 214 of the CPA. This was after this court became aware that the instant appeal passed through the hands of three trial magistrates before coming to its conclusion. That being a legal issue, having in mind that the appellant appeared in person and lacked legal knowledge, his contribution was of no significance; he did not submit as far as the aspect of compliance or non-compliance of the said provision of the law is concerned. Ms Shabani started by confirming that, indeed, the case was tried by three Magistrates. Initially, it was entertained by Hon. Kijuwile SRM, who recorded the testimonies of PW1 and PW2. This was followed by Hon. Maweda PRM, who took over from Hon. Kijuwile SRM, who was Page 9 of 13 transferred. Again, the case was heard by Hon. Daudi SRM, who recorded the final prosecution witness and defence and finally delivered judgment. Furthermore, Ms Shabani argued that as far as section 214 of the CPA is concerned, when a presiding magistrate is unable to proceed, he must provide reasons for the transfer to another magistrate. Unfortunately, the same did not happen in the instant appeal when the case was transferred from Hon. Maweda to Hon. Daudi. The learned Senior State Attorney argued that the procedural irregularity renders the proceedings conducted by the said Hon. Daudi null and void as he did not have jurisdiction. To bolster her argument, she cited the case of Sikujua Mwinula vs Republic, Criminal Appeal No. 22461 of 2024) [2024] TZHC 7444 (23 August 2024). She, thus, urged the court to nullify the proceedings, quash the conviction, and order that the case be reheard from the testimonies of the sixth prosecution witness before another magistrate with proper jurisdiction. Having heard the arguments of the learned State Attorney, I would like to start where she ended and narrate what transpired in the trial court. Gleaned from the record, the case was filed before the District Court of Geita on 11/10/2023, where the accused’s plea was recorded by Hon. Kijuwile SRM and further recorded the testimonies of two prosecution Page 10 of 13 witnesses, PW1 and PW2. On 19/03/2024, Hon. Maweda PRM took over from the predecessor and, while addressing the parties in terms of section 214 of the CPA, recorded the reason for so doing, being the transfer of the presiding Magistrate and proceeded to record the testimonies of three witnesses PW3, PW4 and PW5. On 14/03/2024, the case was further transferred to Hon. Daudi SRM, who recorded to have addressed the accused person as per section 214 of the CPA and proceeded to record the testimony of the final prosecution witness PW6, defence, and composed the judgment without stating the reasons for taking over the case from the predecessor magistrate. Now, to appreciate, and for clarity purposes, first and foremost, I find it useful to reproduce what the law provides under section 214(1) of the Criminal Procedure Act, Cap 20 RE 2022, as follows; “(1) Where any magistrate, after having heard and recorded the whole or any part of the evidence in any trial or conducted in whole or part any committal proceedings is for any reason unable to complete the trial or the committal proceedings or he is unable to complete the trial or committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial or committal proceedings, as the case may be, and the magistrate so taking over may act on the evidence or Page 11 of 13 proceeding recorded by his predecessor and may, in the case of a trial and if he considers it necessary, resummon the witnesses and recommence the trial or the committal proceedings.” [Emphasis supplied] The above provision is to the effect that the successor Magistrate taking over the case for the purposes of presiding over, the reasons for the said take over must be stated and recorded. In the instant appeal, unlike the first successor, Magistrate Hon. Maweda PRM, Hon. Daud SRM, who presided over the case to the finality, did not record the reasons for the transfer of the case, which was before Hon. Maweda PRM. Hence, in a simple term, he failed to comply with the provision under section 214 of the CPA. This court was recently faced with a similar issue in the case of Sikujua vs Republic (supra) case, cited by Ms Shabani while referring to the case of Priscus Kimaro vs R, Criminal Appeal No. 301 of 2013 (unreported), where it was stated that: “…where it is necessary to reassign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete must be recorded. If that is not done, it may lead to chaos in the administration of justice. Anyone, for personal reasons, could just pick up any file and deal with it to the detriment of justice. This must not be allowed." [Emphasis supplied] Page 12 of 13 This court made the observation in the case of Sikujua (supra), which it had not deviated from, where it stated as follows: “Section 214(1) mandates the recording of the reasons behind the reassignment or replacement of a trial magistrate to deter against potential misuse of authority by those responsible for such decisions, thereby preventing arbitrary actions.” [Emphasis Supplied] Moreover, in the case of Abdi Masoud @Iboma vs Republic (Criminal Appeal No 116 of 2015) [2015] TZCA 426, it was categorically stated that: “In our view, under section 214 (1) of the CPA, it is necessary to record the reasons for reassignment or change of trial magistrates. It is a requirement of the law and has to be complied with. It is a prerequisite for the second magistrate's assumption of jurisdiction. If this is not complied with, the successor magistrate would have no authority or jurisdiction to try the case. Since there is no reason on record in this case as to why the predecessor trial magistrate was unable to complete the trial, the proceedings of the successor magistrate were conducted without jurisdiction, hence a nullity”. [Emphasis Supplied] Being alive to the precedents cited and having fully subscribed to the reasons stated therein, it is inevitable to hold that what transpired when Hon. Daudi SRM took over, and all that he did was without having proper jurisdiction, as this court expected him to conduct himself in the Page 13 of 13 same manner as Hon. Maweda PRM did so by acknowledging that he took over the case because of the transfer of the then-presiding Magistrate. It should, therefore, be noted that the essence of section 214(1) was not for the purpose of merely informing the parties to the case of the changes of the presiding magistrate; rather, it was to deter the assigning authority who could possibly in any way be tempted to misuse it. That said and done, the proceedings conducted and the judgment pronounced by Hon. Daudi SRM are hereby quashed and declared null and void. Consequently, the conviction and sentence against the appellant is set aside. Furthermore, I order a prompt retrial before another magistrate with requisite jurisdiction from where Hon. Daudi SRM commenced. Should the appellant be found guilty, the period he has spent in prison is to be considered. It is so ordered. DATED at GEITA this 18th day of September 2024. G.V. MWAKAPEJE JUDGE