Ex 3105 SGT David Otiga Sangana vs Republic (Criminal Appeal No. 745523 of 2024) [2026] TZCA 360 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA I CORAM: GALEBA. J.A., MASOUP. J.A. And FELESHI, J.A.) CRIMINAL APPEAL NO. 745523 OF 2024 EX 3105 SGT DAVID OTIGA SANGANA ..... ............. ....... APPELLANT VERSUS THE REPUBLIC ................................... ..................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dodoma) (Lonaopa, J.) dated the 5th day of June, 2023 in DC Criminal Appeal No. 3853 of 2023 JUDGMENT OF THE COURT 16th February & 27th March, 2026 GALEBA, J.A.: The appellant in this appeal, EX 31095 SGT David Otiga Sangana was charged and tried before the District Court of Singida at Singida (the trial court), in Criminal Case No. 35 of 2023. His charge was on a single count of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. The appellant was charged for committing the immoral act against his own biological son aged 7 years, (whose name we shall conceal, for the sake of

protecting his dignity, but refer to him just as the victim, in this judgment). As per the charge sheet, the appellant was alleged to have abused the victim at his home at Utemini Police Line area within Singida District in Singida Region, He denied the charge, but based on the evidence of eight (8) prosecution witnesses, the appellant was found guilty of the offence, and was accordingly convicted. He was consequently sentenced to life imprisonment. His first appeal to the High Court (the first appellate court), was partly allowed by nullifying his conviction and setting aside his sentence, on account of some witnesses' evidence having not been signed by the trial magistrate, However, the appeal was dismissed in part, as his prayer for acquittal was refused. The first appellate court directed that the original record of the case be remitted to the trial court for trial de novo. This appeal is against the second part of that decision, and is based on a single ground of appeal, namely: "That, having found that the tria l court's proceedings were tainted with serious irregularities, the first appellate court erred in law and fact to order a retrial . " 2

At the hearing of this appeal, the appellant was represented by Mr. Leonard Mwanamonga Haule, learned advocate, and the appellant himself was virtually closely following the proceedings through video link from Singida prison. For the respondent Republic, were Ms. Miyango Kezilahabi, learned Senior State Attorney, teaming up with Messrs. Nehemia Kilimuhana and Frank Chonja, both learned State Attorneys. In arguing the appeal, Mr. Haule submitted on many minor issues but made significant strides on two major points; first, that the appellant was tried on a charge which was filed on 5th April, 2023, while the prosecution had sought an amendment of that charge and was permitted to amend it with another one dated 12th April, 2023. Second, that the cross examination and re-examination evidence of five witnesses out of eight who testified, was not appended with a signature of the learned trial magistrate who recorded it. Those witnesses according to Mr. Haule were PW1, PW2, PW3, PW4 and PW5 as shown at pages 15, 19, 23, 25 and 28 of the record of appeal, respectively. He argued that, as the evidence was not signed, any order directing a retrial would be 3

seeking to go and cure the defects in the evidence. This argument was Mr. Haule's major point backing the sole ground of appeal raised. On this point, the learned advocate referred us to the case of Cheni Valeri v. R, [2024] 77CA 1187. Mr. Chonja on this point relying on the case of Mathias Mtavangu v. R, [2024] TZCA 1231, moved us to hold that failure to sign the evidence did not prejudice the appellant in any manner. As the bedrock underlying any credible trial is a valid charge sheet, we find it appropriate to start with the complaint targeting that aspect of this matter, before getting to the one relating to the unsigned evidence. That is so because, the effect of the unsigned evidence can be an area of discussion only if there was a valid charge in the first place, for which the evidence was received to prove. In elaborating his first point relating to the charge sheet, Mr. Haule submitted that the previous charge shows that the offence for which the appellant was charged with, was alleged to have been committed between October, 2021 and 18th March, 2023, while in the amended charge (of 12th April, 2023), the offence is shown to have been committed between October, 2021 and December, 2022.

The learned advocate referred to both judgments of the two courts below making reference to the original charge, which was supposed not to feature anywhere in the judgment. According to Mr. Haule, the appellant was tried on a charge that had been amended, which means that his alleged trial was simply a nullity. On his part, Mr. Chonja, despite his agreement with the fact that both judgments referred to the original charge which had been amended, he contended that in order to balance the equation of law and justice, this Court ought to quash the judgment of the first appellate court and direct the trial court to compose a fresh judgment based on the proper charge. Mr. Chonja's reasoning was that there was no evidence that the two courts below relied on the original charge sheet because, the evidence on record shows that the offence was committed between October 2021 and December, 2022 . In determining the issue raised, we will go through the two charge sheets (one of 5th April, 2023 and another of 12th April, 2023), which we were able to trace on record, comment on the missing charge (of 5th May, 2023), and also consider what the two judgements say about the contested matter. We will start with the

particulars of offence in the first charge of 5th April, 2023. They are as follows: "PARTICULARS OF OFFENCE E X 3105SGTDAVID OTIGA SANGANA from O cto b er 2021 to 18th M arch, 2023, at Utem ini Police Line area , Ipembe Ward, Mungum aji Division within D istrict and Singida Region, did have carnal knowledge with one [VICTIM ] a c h ild o f 7 ye a rs o ld and a standard IV pupil a t Utem ini Prim ary School against the order o f nature. Dated at SINGIDA this 9 h A pril ' 2023 Sgd. STATE ATTORNEY Presented for filin g this 5th day o f April, 2023 Sgd. COURT REGISTRY OFFICER . " [Emphasis added] However, when the case came up for plea taking on 12th April, 2023, according to court record at page 7 of the record of appeal, the following transpired: DATE; 12/4/2023 CO RAM : U. S. SWALLO PRM P .P .: BARABARA S/A, NURU, CHIW ALOAND 6

BAGENDA S/A ACCU SED : PRESEN T-M W IRU AD V C.C.: ZAWADI S /A : The m atter is for hearing. We have four witnesses today, H ow ever, w e p ra y to am end th e charge sh e e t u n d er se ctio n 23 4 (1 ) o f th e CPA. COURT: Prayer granted. Accused: la m not feeling w ell I have m alaria [and] diarrhoea I pray for adjournm ent I also pray fo r b ail so that I engage a lawyer. S /A : We have no objection if the accused has documents to prove that he is sick. As to b a il we also don't [have] objection if he has com plied with the bail conditions. C ourt: The accused looks sick though he has no m edical evidence. I w iii allow his prayer for adjournment. Sgd. U. S. SWALLO PRM 12/4/2023." [Emphasis added] Although the amended charge sheet that was filed as per the above order, was not read over to the appellant, and also not in the 7

record of appeal, we were nonetheless, able to trace it in the original record of the trial court, and availed copies to the parties at the hearing. The said amended charge has the following particulars of offence: "PARTICULARS OF OFFENCE E X 3105SGTDAVID OTIGA SANGANA from O ctob er 2021 to D ecem ber, 2022, at Utem ini Police Line area, Ipembe Ward, Mungum aji Division within D istrict and Singida Region, did have carnai knowledge with one [VICTIM ] a c h ild o f 8 y e a rs o ld and a standard IV pupil at Utem ini Prim ary School against the order o f nature. Dated a t SINGIDA this 12th A p ril 2023 Sgd. STATE ATTORNEY Presented for filing this 12th day o f April, 2023 Sgd COURT REGISTRY OFFICER . " [Emphasis added] 8

The notable difference between the two charge sheets above is that, the original one states that the offence was committed between October, 2021 and 18th March, 2023 and the age of the victim was 7 years. Whereas in the amended charge, it shows that the offence was committed between October, 2021 and December, 2022 and the age of the victim was 8 years. The above remained the position up to 5th May, 2023. On that day, when the case was called on for hearing, the following transpired, as per page 9 of the record of appeal. "DATE; 5/5/2023 [C O R A M ]: U. S. 5WALLO PRM P.P .: BARARABA AND CHIWALO 5/A ACCU SED : PRESENT - MWSRU ADV C.C.: ZA WADI S /A : The m atter is for hearing. W ehavetwo witnesses. H ow ever, b e fo re p ro ce e d in g w e p ra y to am end the charge u n d er se ctio n 2 3 4 (1 ) o f the CPA. COURT: P ra y e r g ra n te d a n d charge su b stitu te d . Charge is read over to the accused person who is asked to plead thereto. 9

A ccused: It is not true. C ourt: EPNG S /A : I pray to proceed with preiim /nary hearing. FACTS COURT: Typed facts read over to the accused [ oerson]. Sgd. U. S. SWALLO PRM 5/5/2023." [Emphasis added] It is significant for us to point out at this moment that, it appears that the prosecution amended the charge twice; the first time being on 12th April, 2023 and the second, on 5th May, 2023. However, only two charge sheets are available; one in the record of appeal at page 1, which is the original charge, and the one containing the first amendment of 12th April, 2023. The charge we were unable to trace is the one relating to the order of 5th May, 2023 upon which, a trial was to be conducted, if it was to be valid. The complaint of Mr. Haule is that although there were amendments of the charge sheets, the appellant was tried on the original charge and even, on appeal the first appellate court 10

considered the original charge of 5th April 2023, as the proper charge upon which the trial was conducted. Against the above background, we will then thoroughly investigate the validity or otherwise, of Mr. Haule's arguments. According to the judgment of the trial court at pages 58 to 59, it is recorded that: "Herein is the story o f [a] seven y e a r boy, biological son o f the accused person herein to be called the Boy (name withheld fo r child protection)....The accused is charged o f unnatural offence, contrary to section 154 (1) (a) and (2) o f the Pena! Code, Cap 16 R.E. 2022, henceforth, "the Penal Code". The p a rtic u la rs o f th e o ffen ce are that, from O cto b er 2021 to 18th M arch, 2 0 2 3 a t U te m in i P o lic e Lin e area, Ipem be W ard, M u n g u m aji D iv isio n w ith in D is tric t a n d S in g id a R egion, th e a ccu se d p e rso n d id h ave ca rn a l kn o w ledg e o f th e boy. The a ccu se d e n te re d a p le a o f n o t g u ilty to th e charge, th u s th e p ro se cu tio n assum ed th e d u ty vested to them u n d e r se ctio n 3 (2 ) (a) o f th e Eviden ce A c t Cap 6 R.E. 2 0 2 2 to li

p ro v e th e case, w here a to ta l o f e ig h t (8 ) w itn e sse s w ere c a lle d to te stify , n a m e ly P2, w ho in th is case is a lso id e n tifie d a s PW 1, P 3 (PW 2), P 7 (PW 3), P I (PW 4), P 4 (PW 5), P 6 (PW 6), P l l (PW 7) a n d P 5 ( P W 8 ) . [Emphasis added] It is therefore crystal clear as to which charge were the eight prosecution witnesses called to prove. In our view, the judgment of the trial court in the second paragraph of the judgment as quoted above, shows that the prosecution witnesses were called to prove the original charge which shows that the offence was committed between October, 2021 and 18th March, 2023. That means the appellant was tried on a charge, which was not before the court, that is the charge dated 5th April, 2023. This is so because, that charge was amended on 12th April, 2023 and even the latter charge was amended further on 5th May, 2023. In this jurisdiction, trying a suspect on a charge which has already been amended is unlawful, because once a charge is amended under section 234 (2) (a) and (b) redesignated as section 251 (2)(a) and (b) of the Criminal Procedure Act (Cap 20 R.E. 2023), the previous charge is rendered 12

obsolete. This is also the position of the Court in Gerald Efata v. R, [2026] TZCA 320 where the Court stated that: "Alteration o f a charge Is allow able under section 251 (1) o f the CPA which provides that, unless injustice may be occasioned by an alteration, a charge can be altered a t any stage o f a tria l either by way o f amendment, substitution or by addition o f a new charge. It also goes without saying that w here a ch arg e is su b stitu te d the fo rm e r ch arg e becom es n o n -e x iste n t a n d its p la ce is taken b y th e su b stitu te d charge. "[Emphasis added] In other words, we fully agree with Mr. Haule, that the appellant's trial was unfair and illegal on the above score. The final aspect of this matter, we think, is appropriate to comment upon, concerns the amended charge of 5th May, 2023, but which we were unable to trace. The comment is in the context of Mr. Chonja's proposal and contention that the appropriate order to make in the circumstances, was to remit the original record to the trial court, for it to compose a fresh judgment, based on a proper charge and deliver it to the parties. With respect, we cannot do so 13

because then, we would be unjustifiably assuming the validity of two scenarios; one, that the appellant was charged on a charge other than that of 5th April, 2023, which assumption lacks basis, because the trial court stated in the quoted text above that the appellant was tried on the original charge; two, we would be assuming that the last amended charge (of 5th May, 2023) is the proper charge, and it is the charge upon which the appellant was tried, which assumption is equally unauthentic. With all escape routes sealed, we are unable to agree with Mr. Chonja, that to remit the matter to the trial court to compose a fresh judgment is a lawful order to make. The above discussion is sufficient to dispose of the appeal, without having to discuss the effect of relying on unsigned evidence, because a determination of that point will not lead us anywhere. In view of the above discussion, acting on this Court's powers of revision under section 6 (2) of the Appellate Jurisdiction Act, we set aside the order of retrial as ordered by the first appellate court. The order to remit the original record to the trial court for recomposing the judgment is also refused, instead we order that 14

the appellant be release from prison and set to liberty unless held there for any other lawful cause. DATED at DODOMA, this 26th day of March, 2026. Z. IN . GALEBA JUSTICE OF APPEAL B. M. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered virtually, this 27th day of March, 2026, in the presence of the Appellant in person, Mr. Frank Chonja, learned State Attorney for the Respondent/Republic and Ms. Harida Hamis, Court Clerk, is hereby certified as a true copy of the original. j D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 15