Bahati S/O Mdobofu v Republic (Criminal Appeal No. 8 of 2013) [2016] TZCA 8; (03 August 2016)

IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA

(CORAM: MJASIRI, J.A. ,JUMA, J.A., And MUGASHA, J.A. )

CRIMINAL APPEAL NO. 8 OF 2013

BAHATI S/O MDOBOFU ....................................................APPELLANT

VERSUS

THE REPUBLIC .............................................................. RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Iringa)

(Mkuye, J.)

Dated the 22nd day of October, 2012

in

(DC) Criminal Appeal No. 24 of 2011

JUDGMENT OF THE COURT

3rd & 5th day of August, 2016

MUGASHA, J.A.:

The appellant was on 12/07/2005 charged with rape contrary to section 130(1) (e) and 131 of the Penal Code in the District Court of Iringa. A year later, he was convicted and sentenced to life imprisonment. Aggrieved, the appellant unsuccessfully appealed to the High Court where his appeal was dismissed in its entirety hence this second appeal.

A brief account of the prosecution case is to the effect that: On 18/03/2005, the appellant went to take local brew (Ulanzi) at the house of the victim's grandfather where he found the victim FLORA MVENA (PW1) who was four years old. The appellant undressed the victim and raped her. He was found lying over the victim in the sitting room by DAMSON MVENA (PW2) the victim's father. PW2 inspected the victim and found a lot of sperms. After the appellant had apologized for committing the offence in the presence of PW2 and PW3 (ELIA MBWILO the ten cell leader)the incident was reported to the Police. A PF3 was issued and the victim was referred to the hospital. NOBERT KILOSE (PW6) examined the victim and established that she had multiple bruises and sores caused by a blunt object. At the trial PW6 also recalled that, the victim was bleeding and had sperms in her vagina.

The appellant denied the charge. He told the trial court that he knew the victim's parents but does not know the victim. He claimed to have been arrested while coming back from his farm and that he was beaten by the Militiaman before he was taken to Ifunda Police Station.

In the Memorandum of appeal, the appellant has listed eight grounds. However, the determination of grounds 1, 5 and 7 suffice to conveniently dispose of the appeal. One, Failure by the 1st appellate Court to consider that the case was heard by two Magistrates at the District Court of Iringa and reason for the transfer was not given. Two, the improper conviction of the appellant based on a defective charge sheet and Three, failure by the courts below to consider the defence evidence.

At the hearing of the appeal the appellant was unrepresented whereas Ms Lilian Ngilangwa, learned Senior State Attorney represented the respondent Republic.

The appellant opted to initially hear the submission of the learned Senior State Attorney. The learned Senior State Attorney supported the appeal. She conceded that, section 214 (1) of the Criminal Procedure Act [CAP 20 RE.2002] was not complied with. She pointed out that, Lyimo RM presided over the entire trial and thereafter Kulita RM took· over and composed the judgment. However, apart from reasons being unstated the appellant was not addressed on his rights so that he could opt for the trial to continue or start afresh and witnesses be recalled. She argued that, such omission is fatal because the appellant was not availed a fair trial. She referred us to the case of SALIMU HUSSEIN vs THE REPUBLIC, Criminal Appeal No.3 OF 2011 (unreported), where the Court categorically said that, discretion under section 214 (1) must be exercised judicially and in the interests of advancing justice.

The learned Senior State Attorney also submitted that, the appellant was convicted on the basis of a defective charge sheet and this vitiated the trial. She pointed out that, the appellant who is alleged to have raped a girl child below the age of ten years was arraigned under the provisions of sections 130 1)(e) and 131 of the Penal Code which do not disclose any offence. She argued that, basically the appellant ought to have been charged under section 131(3) of the Penal Code. She added that, since the charge sheet is defective, the appellant did not understand the nature of charges he faced and he was unduly prejudiced.

Lastly, the learned Senior State Attorney submitted that neither the trial court nor the first appellate court did consider the defence evidence which is a serious misdirection and the trial was vitiated. She referred us to us the case of HUSSEIN IDDI AND ANOTHER VR REPUBLIC (1986) TLR 166 where the Court said, it is a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence.

In conclusion, she reiterated that the said shortfalls vitiated the trial and occasioned a miscarriage of justice. She urged the Court to invoke section 4 (2) of Appellate Jurisdiction Act [CAP 141.RE.2002], to quash the conviction and set aside the sentence. However, on reflection of the circumstances of the case, she did not press for a retrial.

The appellant had nothing to add apart from agreeing with what was submitted by the learned Senior State Attorney. He also urged the Court to allow his appeal.

We have carefully considered the submission of the learned Senior State Attorney and the record of the two courts below and the point for our determination is whether the trial was flawed with procedural irregularities and if the trial was vitiated.

It is apparent that the trial which is a subject of this appeal was conducted by two Magistrates. The initial Magistrate heard all the prosecution and defence evidence and the subsequent one composed the judgment. However, no reason was availed for the transfer of the file to the subsequent magistrate and worse still the appellant was not addressed in terms of section 214 (1) of the CPA which inter alia provides:

"Where any magistrate, after having heard and recorded the whole or any part of the evidence in any trial ..... is for any reason unable to complete the trial … within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial ..... as the case may be, and the magistrate so taking over may act on the evidence ..... 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'

In RICHARD KAMUGISHA @ CHARLES SAMSON AND FIVE OTHERS VS REPUBLIC, CRIMINAL Appeal No 59 of 2002 (unreported) the Court inter alia held:

".... Where a trial is conducted by more than one magistrate, the accused should be informed of his right to have the trial continue or start afresh and also the right to recall witnesses."

The Court went further to say:

"The word used in section 214 (1) of the Criminal Procedure Act 1985 is 'may' which indicates discretion but in view of the fact that the right to a fair trial is fundamental, the court has an obligation to conduct a fair trial is in all respects'

Since in adjudicating criminal cases jurisdiction is vested by law we wish to repeat what we said in SALIM HUSSEIN VS REPUBLIC (supra):

"We only wish to emphasize here that under this section, the second subsequent magistrate can assume the juris diction to “take over and continue with the trial...and act on the evidence recorded by his predecessor" only if the first magistrate ''is for any reason unable to complete the trial" at all, or within a reasonable time" Such reasons must be explicitly shown in the trial court's record of proceedings."

At page84 of the record of appeal, the first appellate Court considered that the irregularity is not fatal due to following reasons:

“The irregularity of the failure to comply with section 214 in above cited case talks of the previous provisions of section 214 (2) (a) of the Criminal Procedure Act 1985, but the current position of which is applicable in the case at hand is that of the revised edition of 2002 which does not import mandatory requirements: The current position does not retain section 214(2) (a) of the Criminal Procedure Act of 1985."

We have no grudge with the old position of the law whereby it was mandatory to inform the accused on his right to have the witnesses re­ summoned and re -heard by the second magistrate when he commences his proceedings. However, we do not agree with the first appellate judge on the current stand of the law. This is because the permissive language used under section 214(1) of the Act, insists that the allowed discretion must be exercised judicially in the interests of advancing justice. The rationale of complying with section 214(1) is that, the discretion given to a magistrate should be exercised with great care for the primary purpose of hearing is to permit the court to observe the demeanour and evaluate the credibility of the witnesses. (SEEREMEBISELE S/ O EDISON vs REPUBLIC (1967) H.C.D n. 72).In this regard, it is imperative to point out that, the presiding magistrate can observe and evaluate the demeanour upon seeing and hearing the witness when testifying in the witness box.

In view of the settled position of the law, in the absence of the reason for the change of magistrate and failure to inform the appellant on his rights to have the trial continued or start afresh and witness recalled, section section 214(1) of the CPA was violated. As such, the trial was not fairly adjudicated and there was a miscarriage of justice on the part of the appellant.

The appellant's complaint that he was convicted on the basis of a defective charge is indeed well sounded because the appellant was arraigned under sections 130(1) (e) and 131 of the Penal Code.

The mode of framing the charge sheet is stated under section 135 (a) (ii) of the CPA which provides:

"the statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence. and, if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence'

In the light of the underlined expression, since it is alleged that the victim was 4 years old, the proper provision creating the offence is section 131 (3) which provides:

''Subject to the provisions of subsection (2), a person who commits an offence of rape of a girl under the age of ten years shall on conviction be sentenced to life imprisonment"

In CHARLES MLANDE Vs REPUBLIC Criminal Appeal No 270 of 2013 (unreported) the Court discussed consequences of charging under non- existent provisions and said:

"Being found guilty on a defective charge based on a wrong and/or non-existent provision of the law it cannot be said that the appellant was fairly tried in · the court below.... In view of the foregoing shortcomings it is evident that the appellant did not receive a fair trial in Court.. "

In another case of SIMBA NYANGURA vs REPUBLIC, Criminal Appeal No. 144 of 2008, the Court observed that, the accused person must know under which of the description the offence he faces fall, so that he can prepare for his defence and lack of particulars unduly prejudices the appellant in his defence.

In the present matter, it is obvious that the appellant was charged, tried and convicted on non-existent provisions of the law which cannot be said to create the offence. It is clear that, the appellant was not made to understand that he was facing a serious charge of rape whereby on conviction he would serve life imprisonment. In this regard, since it is the charge which lays the foundation of the trial, on account of a defective charge the appellant was denied opportunity to make an informed defence and his constitutional right under article 13 (6) (a) of the Constitution was infringed.

In view of the aforesaid, we are satisfied that, the defective charge, unduly prejudiced the appellant.

The other complaint of the appellant is that his defence was not at all considered by the two courts below.

It is settled law that, after the conclusion of the trial, the trial magistrate or judge must consider and evaluate the entire evidence in arriving at the conclusion the omission to do so renders a trial nullity. The learned Senior State Attorney argued that this was a serious misdirection in the light of what the Court said in H USSEIN IDD AN D ANOTH ER v REPU BLIC (Supra) that:

''It was a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence."

The role of the first appellate court was articulated in SIZA PATRICE vs REPU BLIC, Criminal Appeal No. 19 of 2010(unreported) where the Court had an occasion to say the following:

"We understand that it is settled law that a first appeal is in the form of a rehearing. As such, the first appellate court has a duty to re-evaluate the ·entire evidence in an objective manner and arrive at its own findings of fact, if necessary'

We respectfully hold that this was not done in the matter which is a subject under scrutiny since the appellant's defence was not considered by the trial court in its judgment.

In the present matter, apart from making a narration of what the appellant said at the trial, the trial magistrate did not evaluate and consider that evidence in reaching the conclusion. Instead, he ventured to resolve the issue of insanity which was already settled in terms of the report of the Psychiatrist which established that the appellant was sane. The first appellate court was similarly caught in the web of the trial court as reflected at page 78 of the record:

"He was sent to mental hospital and the report from mental hospital revealed that he was sane during the commission of the alleged offence and able to · make his defence as the way he did during his trial as he managed even to cross examine some of the prosecution witnesses. The ground that the trial magistrate did not consider the appellant's defence of insanity lacks merit and it is hereby dismissed'-