Salim Hassan vs Republic (Criminal Appeal No. 486 of 2023) [2026] TZCA 408 (13 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO. 3.A.. MWAMPASHI. J.A. And MLACHA. J.A.^ CRIMINAL APPEAL NO. 486 OF 2023 SALIM HASSAN.............................................................................. APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Babati Manyara) (Barthv, U dated the 27th day of June, 2023 in Criminal Appeal No. 26 of 2023 JUDGMENT OF THE COURT 24th February & 13th April, 2026 MWAMPASHI. J.A.: This is a second appeal by Salim Hassan, the appellant herein. Initially, the appellant was charged before the District Court of Simanjiro at Orkesumet (the trial court), in Criminal Case No. 70 of 2021, with two counts, to wit; unnatural offence contrary to section 154 (l)(a) and (2) and incest by male contrary to section 158 (l)(a), both of the Penal Code, Cap 16. Regarding the first count, it was alleged that, on 16.09.2021, at Zaire Kati Street - Mi reran i area within the District of Simanjiro in Manyara Region, the appellant had carnal knowledge of a girl aged 12 years, hereinafter to be referred to as "PW1" or "victim" against the order of nature. As on the second count, it was alleged that, on the same date and place, the appellant had sexual intercourse with the victim who, to his knowledge, was his daughter. The appellant pleaded not guilty to both counts hence obliging the prosecution to lead evidence in proof of the case. In doing so, the prosecution called four witnesses. The appellant was the only witness in his defence. After the trial, the appellant was found guilty on both countss, convicted and sentenced to 30 years' imprisonment for each count. However, the sentences were ordered to run concurrently. His first appeal to the High Court was unsuccessful hence the instant second appeal before the Court. In brief, the background facts from which the appeal arises goes thus: The victim used to live with her parents, that is, the appellant and Mary Hassan Lyimo (PW2), at Kairo street. PW2 was a petty business woman selling vegetables at the market who, for that purpose, would leave early in the morning for the market leaving behind the victim and the appellant. According to the victim, in the morning hour of 16.09.2021, after her mother (PW2) had gone to the market, the appellant took her to his bedroom where he ravished her by inserting his penis in her vagina and anus. She also testified that, the appellant had ravished her in that manner not once but four times. On her part, PW2 told the trial court that, on 16.09.2021, at about 05:00 hours, while the victim and the appellant were still on bed, she, as usual, woke up and left for the market where she used to sell vegetables. Having sold the vegetable, PW2 returned home at 06:00 hours. Upon getting home, she found the door to the house locked from inside and for that reason she had to ask the victim to open the door for her. No sooner had she entered the house when she saw the appellant hurriedly coming out from the bedroom and getting outside. It was at that point when she also noticed that the victim who had opened the door for her, was wearing only a piece of khanga and a T-shirt. She became suspicious and was questioning the victim why she was not properly dressed when her aunt, one Angelina Kipande, came. They decided to examine the victim's private parts and that is when they observed sperms on her vagina and anus. At that point, the victim opened up and told them that the appellant had ravished her. She also revealed that, the appellant had ravished her in that manner on three other previous occasions. PW2 took the victim to Mirerani Police Station and then to Mirerani Health Centre where she was medically examined by Dr. Fredrick Mtinde (PW4). According to PW4, the victim's hymen was not intact and her anus muscles were loose indicating that she had been penetrated several times. A PF3 in which PW4 posted his findings was tendered in evidence as exhibit PI. The testimony from G.7533 D/Cpl. Best of Mirerani Police Station was simply that, the case was assigned to him for investigation on 17.09.2021, that he recorded statements of witnesses and that, the appellant denied to have committed the offences against the victim who was his daughter aged 12 years. It is noteworthy that, before closing its case, the prosecution sought and was granted leave under section 234 (1) (redesignated as section 251 (1)) of the Criminal Procedure Act, Cap.20 (The CPA), to substitute the charge. The alteration made to the charge necessitating the substitution was in regard to the date the offences were allegedly committed. While in the former charge sheet it was alleged that the offence of unnatural offence in the first count was committed on 09.09.2021 and that of incest by male in the second count was committed on 14.09.2021, the substituted charge alleged that the two offences were committed on the same date, that is, 16.09.2021. The appellant denied to have committed the charged offences. In his defence, he accused PW2 for allegedly framing him because he had separated from her and refused to have sexual intercourse with her. At the hearing of the appeal, while the appellant appeared in person and fended for himself, the respondent Republic was represented by Ms. Mary Lucas, learned Principal State Attorney. When invited to argue his appeal, the appellant abandoned the memorandum of appeal comprising two grounds of complaints he had earlier lodged on 08.09.2023. He preferred to be heard on the supplementary memorandum of appeal lodged on 18.02.2026 containing four grounds faulting the conviction on the following aspects; one, that the case against him was not proved beyond reasonable doubt; two, that the trial was vitiated by procedural irregularities; three, that section 251 (2) (b) of the CPA was not complied with; and four, that the prosecution witnesses were not credible. Alongside the supplementary memorandum of appeal, the appellant, had on 19.02.2026, lodged written submissions under rule 74 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). He prayed for the Court to consider the four grounds of complaint together with his written submissions and allow the appeal. We propose to begin with the 2n d and 3rd grounds of complaint which raise an issue of procedural irregularity and which, we think, suffice in disposing the appeal. In his written submissions, the appellant argued the 2n d and 3rd grounds of complaint together. He submitted that, after the prosecution had substituted the charge before closing its case, the appellant was not accorded the right to have the four witnesses who had already testified be recalled. He insisted that, failure to recall the witnesses for cross- examination contravened section 251 (2) (b) of the CPA and rendered the evidence of four prosecution witnesses valueless. To concretise the point, the appellant referred us to our decisions in Ezekiel Hotay v. Republic [2018] TZCA 428, DPP v. Danford Roman @ Kanani & 3 Others [2019] TZCA 295, Balole Simba v. Republic [2021] TZCA 380 and Francis Fabian @ Emmanuel v. Republic [2023] TZCA 17936. He therefore prayed for the appeal to be allowed on account that, after the evidence of the four prosecution witnesses has been rendered valueless, there was no evidence left to support the conviction. In response to the appellant's submissions made on the 2n d and 3r d grounds of complaint, Ms. Lucas readily conceded that, indeed, after the four prosecution witnesses had testified and before closing its case, the prosecution substituted the charge and the hearing of defence continued without the four witnesses being recalled. However, she contended that the charge was read over to the appellant to which he maintained his denial. The learned Principal State Attorney further argued that, even if the appellant was not informed of the right to recall the witnesses and though the witnesses were not recalled, given the nature of the alteration made to the substituted charge, the appellant was not prejudiced. She expounded that, the omission was curable under section 411 of the CPA as the alterations made to the charge involving the dates the offences were committed was minor and did not necessitate recalling the witnesses who had already testified. As we have earlier pointed out, it is evident at page 27 of the record of appeal that the prosecution altered the initial charge sheet and substituted it with a new charge under section 234 (1) of the CPA (now section 251 (1)). The substitution was done after the 4th and last prosecution witness had testified immediately before the closure of the case for the prosecution. In justifying the omission to recall the witnesses, Ms. Lucas impressed upon us that, given the nature of the alterations made to the substituted charge, the omission was not fatal and did not prejudice the appellant. In view of the governing law regarding substitution of charges, the issue being raised before us is on the tenability of the argument by Ms. Lucas. The law under section 251 of the CPA, is clear on the procedure to be followed whenever a charge is altered either by amendment, substitution or addition of a new charge. Relevant for our purpose is subsections (1) and (2) (a) and (b) of section 251 which provides that: "251, ’(1) Where, at any stage o f a trial, it appears to the court that the charge is defective, either in substance or in form, the court maymake such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this subsection shall be made upon such terms as the court shall seem just. (2) Subject to subsection (1), where a charge is altered under that subsection- (a) the court shall thereupon call upon the accused person to plead to the altered charge; (b) the accused may demand that the witnesses or any o f them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate and, in such last mentioned event, the prosecution shall have the right to re-examine any such witness on matters 8 arising out o f such further cross- examination; [Emphasis added]. The Court in the case of Ezekiel Hotay (supra), emphasized the strict compliance of section 251 (2) (b) of the CPA by stating that: "According to the preceding cited provision ; it is absolutely necessary that after amening the charge, witnesses who had already testified must be recalled and examined. In the instant case, having substituted the charge the prosecution witnesses who had already testified ought to have been recalled. This was not done. [In] failure to do so rendered the evidence led by the five prosecution witnesses to have no evidential value". Similarly, in the case of Balole Simba (supra), the Court stated that: "In the present case, although the substituted charge was read over to the appellant, he was not subsequently addressed on his right to have the two prosecution witnesses who had already testified be recalled so as to give fresh evidence or be further cross-examined. On account o f the said omission, this rendered the evidence adduced by PW1 and PW2 with no evidential value". Furthermore, in the case of Godfrey Ambros Ngowi v. Republic [2016] TZCA 2243, the charge was substituted after six prosecution witnesses have testified. Even though the fresh charge was read over to the appellant, he was never informed of his rights pertaining to alteration of the charge as provided for under section 251 (2) (b) of the CPA. On appeal to this Court, it was observed that the law was flouted and there was no way in which the proceedings against the appellant could stand. In view of the above stated position of the law, we find the appellant's complaint under grounds 2 and 3 meritorious. The omission, not only to inform the appellant of his right to have the four prosecution witnesses who had already testified before the substitution of the charge to be recalled but also to failure to recall the witnesses, offended section 251 (2) (b) of the CPA. Having substituted the charge, the appellant ought to have been informed of his right for all four witnesses or any of them to be recalled either for giving fresh evidence or for further cross-examination. At this point, we should, with respect, differ with the position taken by of Ms. Lucas that, the omission to inform the appellant of his rights under section 251 (2) (b) of the CPA and not recalling the witnesses did not prejudice the appellant. As alluded to earlier, in the initial charge, unnatural offence in the first count was alleged to have been committed on 09.09.2021 while incest by male on the second count was allegedly committed on 14.09.2021. In the substituted charge, the dates the offences were allegedly 10 committed were altered by alleging that the two offences were committed on 16.09.2021. We do not think the alterations were minor as Ms. Lucas sought to impress upon us. We assume that the dates the offences were allegedly committed, as indicated in the initial charge, were not concocted by the drafters of the charge but were given by witnesses most probably through their respective statements they made to the police. If that was the case, the fact that, in their respective testimonies the witnesses referred to 16.09.2021 as the date the offences were committed hence necessitating the alteration and substitution of the charge, raises questions which might have been cleared only if witnesses could have been recalled for cross- examination. In that regard, the omission to recall the witnesses for being cross-examined cannot be said to have not prejudiced the appellant. It should also be borne in mind that the time or/and the date an offence is allegedly committed is one of the essential particulars which must not only be stated in the particulars of the offence but must also be proved. It is for the above reasons that we find that the alterations made to the charge were not minor and that non-compliance of section 251 (2) (b) of the CPA prejudiced the appellant. ii The irregularity vitiated the trial court proceedings subsequent to the substitution of the charge, the resultant judgment as well as the High Court proceedings and judgment which are accordingly nullified and quashed. Having nullified the lower courts' proceedings to the extent explained above and after quashing the resultant judgments, the remaining question is what should be the way forward. Ordinarily, where proceedings are nullified what follows, though not always, is an order for retrial. The famous case of Fatehali Manji v. Republic [1966] E.A. 344 provides guidance on what factors have to be considered in deciding whether to make an order for retrial or not, thus: "In general, a retrial may be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because o f insufficiency o f evidence or for enabling the prosecution to fill in gaps in its evidence at the first trial...each case must depend on its own facts and an order for retrial should only be made where the interest o fjustice require it” Guided by the above and having considered the circumstances of the case at hand, we find that the best interest of justice calls for an order for a retrial. We therefore order the case file to be remitted back to the trial court for an expedited retrial before another magistrate of competent jurisdiction beginning with compliance with section 251 (2) (b) of the CPA 12 subsequent to the substitution of the charge. It is also directed that, in case the appellant is convicted, the period he has been in custody should be considered in sentencing him. In the meanwhile, the appellant is to remain in remand prison awaiting his retrial. Order accordingly. DATED at DODOMA this 10th day of April, 2026 L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L M. MLACHA JUSTICE OF APPEAL Judgment delivered virtually this 13th day of April, 2026 in the presence of appellant in person, Mr. Philbert Msuya, learned State Attorney for the respondent and Ms. Christina Mwanandenje, Court Clerk; Court is hereby certified as a true copy of the original. 13