Abubakari Beyanga vs Republic (Criminal Appeal No. 435 of 2023) [2026] TZCA 236 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (g-Q-RAM: LILA, J.A., MAIGE, J.A. And MANSOOR, J J U CRIMINAL APPEAL NO 435 OF 2023 ABUBAKARI BEYANGA..................................................... APPELLANT VERSUS THE REPUBLIC ............................................................. RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Shinyanga) (Massam, J/) dated the 26th day of May 2023 in Criminal Appeal No. 89 of 2022 JUDGMENT OF THE COURT 26th February & 4th March, 2026 MAIGE. J.A.: At the District court of Shinyanga (the trial court), the appellant was charged with rape contrary to section 130 (1), (2) (e) and (131 (3) of the Penal Code. The charge sheet asserted that on the 8th day of April, 2022, at Ndala Area within the Municipality of Shinyanga in Shinyanga Region, the appellant had sexual intercourse with a child aged one year and eleven months (the victim). In a bid to prove their case, the prosecution paraded five witnesses and tendered two exhibits, namely a sketch map of the i scene (exhibit PI) and a PF3 medical report (exhibit P2). PW1, Fauzia Hamis, the victim's mother and the appellant's wife, testified that on the material date at around 2:00 pm, she went to buy charcoal leaving the victim with the appellant. Upon returning, her landlady one Asha Kulwa (PW2) advised her to inspect the victim which she did, and found some blood in her vagina. When she asked the appellant what had happened with the victim, he claimed that she had cut herself with a knife. On casting a glance over the bedroom, she found it not in the order she left it in. The white bedsheet, she submitted, was missing and that, the floor was wet as if it was recently mopped . Besides, the victim was naked despite that she was dressed at the time of PWl's departure. PW2 testified that, as soon as she had heard a single loud cry from the victim, she saw the appellant coming out holding the victim. She was naked and bleeding from her private parts. On being dissatisfied with the appellant's explanations of what had happened as afore stated, she proceeded into the bedroom where she observed the floor as if it had been mopped and the bedsheets being tainted with blood and feaces. In a company of the appellant, PW1 rushed the victim to the Regional Hospital where she was examined by Dr. Alestide Laudifas 2 Ngalawa (PW5) who established as per exhibit P2 that, she had been penetrated by a blunt object. In his defense, the appellant denied involvement in the crime. He testified that, a short while before the incident, he faced antagonistically with a man called Raphael, leading to them fighting. On returning home, he told PW1 what had happened. Afterwards, PW1 went to buy charcoal leaving her with the victim. The moment after, he fed the victim and washed her after which, he went to the bathroom. While there, he heard the victim crying loudly but once. On returning in the bedroom, he found the victim seating at the angle of the mattress with some blood coming from her vagina and there was blood in the bedsheet. Subsequently, him, together with PW1, took the victim to Kambarage Hospital where she was inspected by a nurse who remarked that a knife had deeply penetrated into her vagina. She also suggested that she might have been raped, and, therefore, referred them to the Regional Hospital. He further testified that, while awaiting to see the doctor, he was arrested. The trial court found the case proved beyond reasonable doubt and convicted the appellant with the offence and sentenced him to life imprisonment. Dissatisfied, he appealed to the High Court, the appeal which was dismissed and the conviction and sentence upheld. Once again aggrieved, the appellant instituted the current appeal in which, the concurrent decision of the two courts below is criticized on seven grounds. It is worth of a note that, when the matter came for preliminary hearing on 21s t June, 2022, the prosecution prayed in terms of section 127 (1) of the Evidence Act, that the victim be, for the reason of being incompetent, discharged from giving testimony. In response and, without affording the appellant an opportunity to comment thereon, the trial court granted the prayer and thereby disqualifying the victim from testifying in terms of section 127 of the Evidence Act. In view of what we have just narrated, the appellant has, in his second ground of appeal, which in our view is capable of disposing of he appeal, faulted the trial court for determining the prayer by the prosecution to have the victim disqualified from giving testimony for the reason of her age, without affording him a right to be heard. As this ground suffices to wind up the appeal, we find it uneconomic to reproduce the other grounds. At the hearing, the appellant appeared in person and without representation. Having fully adopted the grounds of appeal, the appellant prayed that they be considered and in the event they are found with merit, he be set aside. Conversely, the respondent Republic enjoyed the services of Ms. Immaculata Mapunda, learned Senior State Attorney and Ms. Gloria Ndosi, learned State Attorney. In address of the second ground, Ms. Mapunda submitted that since the duty to determine competency of a witness as per section 127(1) of the Evidence Act is on the trial magistrate or judge, there was nothing wrong with the decision of the trial court to disqualify the victim from testifying. In the alternative, she submitted, the omission was inconsequential as it did not operate prejudicially against the appellant. In his rejoinder submission, the appellant insisted that he was denied his right to be heard under article 13(6) of the Constitution. As per the complaint in the second ground of appeal and the submission by the learned Senior State Attorney, the issue is whether the trial court's summary order disqualifying the victim from testifying has the effect of denying the appellant a right to be heard. With respect, we are preparing ourselves to answer the question affirmatively for the reasons which are going to be apparent gradually as we go on. As it may be apparent from page 8 of the record, when 5 the matter came for preliminary hearing, the prosecution prayed under section 127(1) of the Evidence Act, for the victim to be declared incompetent to testify. Right away, the trial court remarked: "I have seen the child aged two years she was born on 22/06/2020. Due to her tender age she is incompetent to testify and therefore disqualified from testifying under S. 127 of the Evidence A c t" Much as we agree with the learned Senior State Attorney that the duty to determine competency of a witness in terms of section 127(1) of the Evidence Act is upon the trial court, what transpired in this matter, as above demonstrated, has in law different implications. We say so because, it is apparent as above shown that, the summary order disqualifying the victim from testifying was at the instance of prosecution. It was prayed before the trial court has made any inquiry into the competence of the victim and come out with its own finding in accordance with the well -known procedure. In such kind of situation, and, considering that the right to be heard under article 13(6) of the Constitution is linked with natural justice and it includes the right to equal treatment and right to equality of arms, we think, justice cannot be seen to have been done in a situation where, on the one hand, the prosecution is heard on a prayer to exclude a material witness and, the accused, is, on the other hand, denied a right to either object and or admit to the prayer. As the omission amounts to curtailment of the fundamental right to be heard, it is not, as suggested by the learned Senior State Attorney, a mere procedural technicality which can, if not prejudicial to the appellant, be ignored. We wish to recapitulate the notorious long standing principle in our jurisdiction that, denial of a right to be heard vitiates the whole proceedings even if the result thereof would have been the same had the victim of the violation been heard. For instance, in Abbas Sherally and Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 (unreported) ,the Court held: " The right o f a party to be heard before ana adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision in which is arrived at in violation of it wiii be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a beach o f the principles of naturaljustice". It is noteworthy that in arriving at the above position, the Court traced the genesis of the principle from the English authority in General Medical Council v. Spackman [1943] A.C. 627 as per His Lordship Wright which was judicially recognized by the Court of Appeal of Eastern Africa, the predecessor of the Court, in the case of Hypolito Cassiano De Souza v. Chairman and Members of the Tanga Town Council [1961] E.A and by this Court in D.P.P. v. I. Tesha and Another [1993] TLR 237. In the said the English authority, His Lordship observed: " I f principles o f naturaljustice are violated in respect o f any decision > it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles ofjustice. The decision must be declared to be no decision." Armed with the above principle and, in view of what we have discussed herein above, we find the second ground with merit and consequently, we hold that, the decision of the trial court insofar as was reached at in violation of the appellant's right to be heard as above demonstrated, was as good as no decision at all. Equally so, for the proceedings of the trial court as from the date of the order disqualifying the victim from testifying. In the final result and to the extent as afore said, we allow the appeal. We quash the appellant's conviction and set aside the sentence imposed thereon. We further nullify the proceedings as from 21s t June 2022 to the date of the judgment. We remit the record to the trial court for retrial before another trial magistrate. For avoidance of doubt, the appellant should remain in prison custody unless otherwise decided. DATED at SHINYANGA this 4th day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 4th day of March, 2026 in the presence of Appellant appeared in person, and Ms. Mboneke Ndimubenya, learned Senior State Attorney for the respondent/Republic by virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 9