20140630 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA _,, ATARUSHA __... (CORAM: KIMARO,J.A., MANDIA,J.A.,And JUMA,J.A.) CRIMINAL APPEAL NO.296 OF 2013 ... '·ZAINABU NASSO RO @ZENA .........................................APPELLANT

VERSUS THE REPUBLIC .... ■ • ■ •••• ■■■ ••••••• I • • • • • • • • ■■• ■ •••••• ■■■•■■■ ••••••••• • RESPONDENT (Appeal from the judgment of the High Collrt of Tanzania at Moshi} (Mugasha,J.) Datedthe 9 th day of July, 2012 In Criminal Sessions Case No. 28 of 2008

JUDGMENT OF THE COURT 25 th June & 1st July, 2014 KIMARO,J.A.: ZainabuNassoro@ Zena was charged and found guilty with commission of the offence of involving in Trafficking of Narcotic Drugs contrary to section 16(1) of The Prevention of Illicit Traffic in Drugs [Cap 95 R.E. 2002]. She was sentenced to pay a fine _of Shillings ten million and in addition to serve imprisonment for twenty years. 1 p Aggrieved by the sentence the appellant has through Mr. YasinMembe learned advocate filed a five ground memorandum of appeal as follows: 1. That the learned Madam Judge erred in fact in making and unveiling that there is a fragmented between the date where they mistrusted the appellant with drugs and the date wh~re the said drugs tied up to the government chemist.

2. That the learned Madam Judge erred in fact and law in holding that the prosecution did prove its case beyond reasonable doubt without considering that the evidence tendered is weak and fails short of supporting evidence.

3. That the learned Madam Judge erred in fact and law by wrongly convicting the accused without considering the principles which have to be taken into account in respect to chain of custody and preservation of the exhibits.

4. That the learned Madam Judge- erred in fact and law by committing and sentencing the appellant without considering the failure of the prosecution to provide certificate of seizure to prove that the drugs were seized from the appellant. 2 5. That the learned Madam Judge erred in fact and law by finding the appellant guilty by relying on inconsistence and contradictory statements by prosecution witnesses. When the appeal was called for the hearing, the appellant was present and Mr. YasinMemba learned advocate appeared for her to prosecute her appeal. Mr. HaruniBengeMatagane, learned State Attorney represented the Respondent /Republic. The learned advocate for the appellant filed submissions to support the appeal. He did not indicate the enabling provision of the law he used to file the submission but it must be Rule 74 of the Court of Appe~I Rules, 2009. At this juncture it is important to point out that the appeal will not be determined on merit because of an apparent error in the judgment of the High Court. It was not a ground of appeal but the learned advocate for the appellant brought it to our attention that the learned trial judge did not enter a conviction after finding the appellant guilty. Instead, she proceeded to imposethe sentence we have shown above. The learned advocate said the failure by the learned trial judge to enter a conviction flouted the provisions of

section 312 of the Criminal 3 · Procedure Act [CAP 20 R.E. 2002]. Notwithstanding the anomaly, the learned advocate for the appellant requested the Court to consider the grounds of appeal and his submissions and make a finding that the case li' against the appellant was not proved, quashand set aside the sentence and • order the acquittal of the appellant. The learned State Attorney had intended to support the appeal but when he noted that the appellant was sentenced without a conviction, he requested the Court to remit the case file back to the High Court for preparing a judgment in compliance with section 312 of [CAP 20]. The record of appeal at page 114 of the judgment of the High Court supports the error noted by the learned advocate for the appellant and the learned State Attorney representing the respondent/Republic. The learned trial judge in concluding her judgment said: ''In view of the aforesaid, the accused was arrested trafficking, narcotic drugs. I find like the lady and gentleman assessors that, the accused is guilty of the offence of trafficking narcotic drugs." (Emphasis added). Section 312 (1) of the Criminal Procedure Act, is explicit on the ingredients of a judgment. The section provides: 4 "Every judgment under provisions of section 311 shall,except as otherwise expressly provided by this Act be written by or reduced to writing under the personal direction

and superintendence of the presiding judge or magistratein the language of the Court and shall contain the point or points for determination/ the decision thereon and the reasons for the decision and shall be dated and signed by the presiding officer as of the ·date it is pronounced in open court." · Under subsection 2 of section 312, the presiding judge or magistrate must show the offence the accused is found guilty, the section of the law and must convict him/her. The section says: "In the case of conviction the judgment shall specifythe offence of which and the section of the Penal Codeor ·other law under which/ the accused person is convicted and the punishment to which to he is sentenced. " In this case the learned trial judge having found the appellant guilty she should have proceeded to convict her before imposing a sentence on her. This was not done. The omission makes the judgment before the Court incompetent. · 5 The issue we have to determine is what should be done under the circumstances. The learned advocate for the appellant asked the Court to determine the appeal on merit. With respect to the learned advocate we cannot accede to his prayer because the notice of appeal filed by the appellant at page 116 of the record of appeal is clear. She is appealing against conviction and the sentence that was imposed on her. However, as indicated at page 114 of the record of

appeal, the learned trial judge, may be out of oversight, did not enter conviction before she imposed a sentence on the appellant. Under the circumstances, we have no appeal before us which can be determined on merit. Section 4(2) of the Appellate Jurisdiction Act, [CAP 141 R.E.2002] confers to the Court powers of revision to correct any illegality or impropriety made by the lower courts. We therefore remit the trial court record to the High Court with an order that the trial court should comply with sections 312(1) and (2) of the Criminal Procedure Act, Cap.

20. It is accordingly ordered. DATED at ARUSHA this 30th day of June, 2014. N.P.KIMARO

JUSTICE OF APPEAL W.S.MANDIA

JUSTICE OF APPEAL 6 • - ·• / l.H.JUMA

JUSTICE OF APPEAL I certify that this is a true copy of the original. • M.A. MALEWO

DEPUTY REGISTRAR

COURT OF APPEAL 7