Gerald Efata vs Republic (Criminal Appeal No. 73 of 2024) [2026] TZCA 320 (18 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO. J.A., MWAMPASHI, J,A. And MLACHA, J.A.) CRIMINAL APPEAL NO. 73 OF 2024 GERALD EFATA ................ .......................................... ........ APPELLANT VERSUS THE REPUBLIC....................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Arusha) (BadeJ.) dated the 08th day of September, 2023 in Criminal Appeal No, 144 of 2022 JUDGMENT OF THE COURT 02n d & 18th March, 2026 MWAMPASHI, J.A.: This is a second appeal by Gerald Efata, the appellant herein, arising from the decision of the District Court of Arusha (the trial court) in Criminal Case No. 02 of 2021 in which the appellant was charged and convicted of unnatural offence under section 154 (l)(a) and (2) of the Penal Code, Cap. 16 (the Penal Code). Having been convicted, the appellant was sentenced to life imprisonment. His first appeal to the High Court in Criminal Appeal No. 144 of 2022 was found to be lacking in merit and it was, for that reason, dismissed in its entirety. Still aggrieved and undaunted, the appellant has preferred the instant second appeal before the Court. On 09.03.2021 when the appellant was arraigned before the trial court, the charge which was read over to the appellant to which he pleaded not guilty, had particulars of the offence alleging that, on unknown date in January, 2021 at Kimandolu area within the City, District and Region of Arusha, the appellant did have carnal knowledge of one "CD", a boy aged 13 years, against the order of nature. On 07.09.2021, when the case was called on for hearing, the prosecution opened its case by calling one witness. Thereafter, the hearing was adjourned to 13.09.2021. On that date, as reflected by the trial court's proceedings at page 16 of the record of appeal, the prosecution sought leave of the trial court to produce an altered charge in substitution of the former one. The appellant had no objection and it was thus marked by the trial court that, the former charge has accordingly been substituted. It is noteworthy that the alteration made to the former charge was in respect of the victim's name. While in the former charge the victim was referred to as "CD", in the substituted charge he was referred to as "CD @ DD". The former charge having been substituted, without more, the trial court proceeded recording the evidence from other prosecution witnesses as well as from defence witnesses. After a full trial, the appellant was convicted and sentenced in the manner stated above. As alluded to earlier, the first appeal to the High Court was dismissed hence the instant second appeal before the Court. At the hearing of the appeal, while the appellant was unrepresented and fended for himself, the respondent Republic had the services of Ms. Janeth Sekule and Mr. James Pallangyo, both learned Senior State Attorneys. In support of the appeal, 10 grounds of complaint contained in the memorandum of appeal filed on 23.01.2024, were raised by the appellant. Further, in terms of rule 74 (1) of the Tanzania Court of Appeal Rules, 2009, the appellant lodged two sets of written arguments in which the grounds of complaint were expounded. In concretising his arguments, the appellant placed reliance on a list of authorities which was filed on the hearing date, that is, 02.03.2026. In the course of hearing of the appeal, Mr. Pallangyo, learned Senior State Attorney who addressed us for the respondent and who had initially, expressed his stance of opposing the appeal, changed the position. He supported the appeal on the 1s t and 2n d grounds of complaint. The two grounds conceded by Mr. Pallangyo which suffice to dispose of the appeal are as follows: 1. That the first appellate court erred in law and fact for upholding the decision o f the trial court which erroneously contravened the mandatoryprovisions o fsection 234 (2)(a) and (b) redesignated as section 251 (2)(a) and (b) o f the Criminal Procedure Act (Cap 20 R,E. 2023). 2. That the first appellate court erred in law and fact for upholding the decision o f the trial court which erroneously had convicted and sentenced the appellant on a charge which he did notplead to. The appellant argued the two grounds of complaint conjointly. Referring us to pages 16 and 17 of the record of appeal, the appellant submitted that the substituted charge was not read to him and he did not plead thereto in contravention of sections 245 (1) and 251 (2)(a) of the Criminal Procedure Act, Cap. 20 (the CPA). Making reference to the decision of the Court in the case of Alban us Aloyce & Another v. Republic [2016] TZCA 616, the appellant contended that he was convicted and sentenced based on a charge to which he did not plead. He thus prayed for the appeal to be allowed by letting him free. As we have alluded to earlier, at first, Mr. Pallangyo's standpoint was that since the alteration made to the former charge was just in respect of the victim's name and thus very minor, the appellant was not prejudiced by not reading and explaining to him the substituted charge. However, after his attention has been drawn to the fact that it is not only that the substituted charge was not read out to the appellant but also that he did not plead thereto, Mr. Pallangyo conceded that the omission to read out the substituted charge and let the appellant plead thereto, was fatal and that the trial was vitiated. He conceded that section 251 (2)(a) of the CPA was offended rendering the trial a nullity. On what should be the way forward, Mr. Pallangyo asked for a retrial on account that the evidence on record against the appellant is overwhelming. As rightly argued by both the appellant and the learned Senior State Attorney and as the record of appeal speak loudly and clear at pages 16 and 17, the charge in the instant case was not only altered but it was also substituted. It is also on record that the substituted charge was neither read over and explained to the appellant nor was he asked to plead thereto. Alteration of a charge is allowable under section 251 (1) of the CPA which provides that, unless injustice may be occasioned by an alteration, a charge can be altered at any stage of a trial either by way of amendment, substitution or by addition of a new charge. It also goes without saying that where a charge is substituted the former charge becomes non-existent and its place is taken by the substituted charge. Where a charge is altered and substituted, sections 245 (1) and 251 (2)(a) of the CPA come into play. In terms of section 245 (1) when an accused person is arraigned before the court on a criminal charge, the substance of the charge must be read over and explained to him and the court shall require him to plead thereto. Similarly, and more relevant to the case at hand, in terms of section 251 (2)(a) of the CPA where the charge is altered, the accused person shall be called to plead to such an altered charge. It is provided under section 251 (2)(a) of the CPA that: "(2) Subject to subsection (1), where a charge is aitered under that subsection- (a) the court shail thereupon call upon the accused person to plead to the altered charge; The above being the law and as rightly argued by the learned Senior State Attorney, the omission to read and explain the altered and substituted charge to the appellant and not calling upon him to plead thereto was a fatal irregularity which vitiated the trial and rendered it a nullity. The effect of such an irregularity was underscored by the Court in the case of Thuway Akonaay v. Republic [1987] T.L.R. 92, whereby the Court cited with approval the following passage from the old case of Akbarali Demji v. R. 2 TLR 137: "The arraignment o f an accused is not complete until he has pleaded. Where no plea is taken, the trial is a nullity. The omission is not an irregularity which can be cured by S. 346o f the Criminal Procedure Code [Now section 411 o f the CPA]" [Emphasis added]. Furthermore, in Alban us Aloyce & Another (supra), where the substituted charge was neither read over to the appellant nor was he asked to plead thereto, it was stated by the Court that: "It follows therefore that the appellant was tried on a charge that was neither read over to him norpleaded to. Withoutmincing words, we agree with both the appellant and the learned Senior State Attorney that the trial which led to his conviction was a nuiiity, It being a nullity we hereby quash and set aside all the proceedings o f the High Court which hinged on null proceedings as well as the proceedings o f the triai court beginning from 24.5,2001. Consequently, conviction flowing from the nuiiity proceedings is quashed and sentence is set aside". Subscribing to the position and the course we took in Albanus Aloyce & Another (supra) and as there can be no valid trial in the instant case where the appellant herein did not plead to the altered and substituted charge brought against him, we declare the trial which led to his conviction and sentence imposed on him, a nullity. In the event, we nullify the whole High Court's proceedings and part of the proceedings of the trial court beginning with the proceedings of 13.09.2021 after the admission of the substituted charge. The conviction is also quashed as well as the sentence which is set aside. Regarding the way forward, having taken a bird's-eye view of the evidence on record, we entirely agree with the learned Senior State Attorney that under the circumstances of this case, the interest of justice calls for an order for retrial. For that reason, we accordingly order the case file to be remitted back to the trial court for an expedited retriai before another magistrate of competent jurisdiction beginning with reading over the substituted charge to the appellant and taking his plea in terms of section 251 (2)(a) and (b) of the CPA before proceeding with the trial in accordance with the law. DATED at DODOMA this 17th day of March, 2026 L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered Virtually this 18th day of March, 2026 in the presence of appellant in person and Ms. Caroline Kasubi, learned State Attorney for the respondent and Ms. Anna Utou, Court Clerk; Court is herel true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL