Jilala Peter Kidalu vs Republic (Criminal Appeal No. 270 of 2023) [2026] TZCA 205 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA. J.A.. MAIGE. J.A. And MANSOOR. CRIMINAL APPEAL NO 270 OF 2023 JILALA PETER KIDALU..............................................................APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Massam, JJ dated the 28th day of April, 2023 in Criminal Appeal No. 81 of 2022 JUDGMENT OF THE COURT 19th February & 2n d March, 2026 LILA. J.A.: The allegation against the appellant Jilala Peter Kidalu was that while being searched if he possessed the bricks allegedly stolen from the school; he was found in unlawful possession of narcotic drugs to wit cannabis sativa commonly known as "bhangi". He was accordingly charged with and convicted by the District Court of Shinyanga (the trial court) for unlawful possession of narcotic drugs contrary to section 15A(1) and (2)(c) of the Drugs Control and Enforcement Act, Chapter 95 of the Revised Edition, 2019 (the DCEA). He denied the offence. Trial i ensued to its conclusion whereas he was convicted and sentenced to thirty (30) years jail term. This is his second appeal, the High Court of Tanzania at Shinyanga, on first appeal, having concurred with the trial court. In the charge placed at the appellant's door, to which he denied, it was alleged that on 13/10/2021 (the material date) at Bujiga Area within Shinyanga Municipality, the appellant was found in unlawful possession of 170 grams of cannabis sativa, commonly known as "bhangi". To prove the charge, the prosecution case was built through six witnesses. Their evidence poses no difficult to comprehend. Search in the appellant's house was triggered by a completely separate incident. In the due course of investigating a report that there was theft of school bricks, on the material date, police officers led by PW5, Inspector Daniel Thobias, accompanied by PW2, Gabriel Medald Walinguzo (the Village Executive Officer of Ibadakuli), visited the appellant's home with a view to conducting a search. During the search around the appellant's premises conducted in the presence of that team, they discovered a fresh cannabis plant at the rear side of the appellant's house near the bathroom. Upon being questioned, the appellant allegedly admitted before PW2 and PW3 one Helbert Robert, the Agricultural Officer who was called to identify the plant, that he had planted it for his personal use having obtained the seeds from Kolandoto. PW5 prepared a Certificate of Seizure (Exhibit P4) which the appellant signed and the plant was uprooted for use as exhibit in court (exhibit P2). That plant was medically examined and established to be cannabis sativa by PW1 one Paulo Mtango, a Government Chemist at Mwanza Office. The appellant's defence constituted a blatant denial of having any knowledge of cannabis sativa. He attributed existence of it at the rear side of his house with a person he hired to dig a latrine pit who might have planted it. In its view of the evidence before it, the trial court found the prosecution case to have been proved beyond reasonable doubt. It convicted the appellant and sentenced him to the mandatory term of thirty (30) years imprisonment. Aggrieved, the appellant mounted his first challenge before the High Court which upheld both the conviction and the sentence. Still protesting his innocence, the appellant is now before this Court on a second appeal, armed with a Memorandum of Appeal containing five grounds. On account of a reason soon to be apparent, we see no compelling reasons to reproduce such complaints before the Court. The appellant fended for himself before the Court at the hearing of the appeal as he had no privilege of having legal representation. He just adopted, as his submission on the appeal, the complaints as reflected in his memorandum of appeal. He urged the Court to consider them properly and make an order releasing him from prison. Eloquently, Ms. Salome Mbughuni, learned Senior State Attorney, who appeared for the respondent Republic, did not mince words. She, at the very onset, readily conceded to the appeal but on a ground, although not expressly advanced by the appellant, finds place or is embraced in grounds two (2) and five (5) of appeal. Those grounds state: "2. That, the trial court and the first appellate court erred in law and fact by convicting the appellant while he did not commit the alleged offence. 5. That, the learned trial court magistrate and the first appellate court erred by failure to observe that the prosecution side did not prove its case to the standard required in criminal cases." 4 In her submission in support of the position, she had taken to support the appeal, she contended that the prosecution did not prove the charge. Elaborating, she argued that the appellant was convicted for the offence he did not commit. While making reference to the Charge found at page one (1) of the record of appeal, she submitted that, the appellant was charged with being in unlawful possession of narcotic drugs (bhangi) contrary to section 15A(1) and (2) (c ) of the DCEA while all the witnesses testified that, the appellant planted bhangi behind his house near the toilet. That being the evidence, Ms. Mbhughuni submitted that the appellant was supposed to be charged under section 11(1) of DCEA which creates an offence of planting narcotic drugs. The minimum sentence thereon, if found guilty, is thirty (30) years imprisonment. To support her assertion, she referred the Court to page 5 of the Court's typed decision in the case of Salim Abdallah Maganga vs Republic, Criminal Appeal No. 285 of 2020 (unreported), and underscored a point that, the charge is at variance with the evidence which prejudiced the appellant for not knowing the offence he was charged with so as to align his defence properly. As a consequence of unattended variance to seek amendment of the charge, she concluded, the proceedings before the trial court in the cited case were declared a nullity and the appellant was set free which position squarely applies in this case due to similarity of facts. With such favourable submissions from the learned Senior State Attorney, the appellant in his rejoinder submissions, just beseeched the Court to allow his appeal with an ultimate order freeing him from the prison bars. Admittedly, this is such a situation where a short and simple point of law seems likely to be dispositive of an appeal. It is clear that it has been established by a very long unbroken line of authorities that, where there are variances between the charge and evidence during trial, an amendment of the charge should, at any stage of the trial, be sought by the prosecution otherwise the trial is vitiated. That is the spirit encompassed under section 234(1) of the Criminal Procedure Act, Cap 20 Revised edition 2019, (the CPA), [Now section 251(1) of the CPA, Revised edition 2023] which provides: "234(1). Where at any stage o f a trial, it appears to the court that the charge is defective, either in substance or form, the court may make 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 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 to the court shall seem ju s t" It is noteworthy here that, to ensure and guarantee that, justice is done to both sides, that is to the prosecution and accused, in the process of amendment of the charge, the section outlines the procedure to be abided to. Albeit briefly, hereunder is the procedure; Where amendment is sought and granted under section 234(1), the trial court is enjoined to ensure that the accused person is accorded the right to plead to the amended charge (see section 234(2). If it appears to the trial court that the accused is thereby misled or deceived by the amendment, the trial court is obligated to adjourn the proceedings for a reasonable period to allow him reorganize himself (see section 234(4) before the proceedings are continued. The provision, then, permits the prosecution to urge the trial court to recall, and the court must grant the prayer save for reasons to be stated in the event of refusal, its witnesses to testify or be further examined. Definitely, fair trial demands that the accused should also be accorded an opportunity to further cross- examine the witnesses recalled (see section 234(5). The Court has occasionally seized available opportunities to remind the prosecution on their duty to amend a charge which is realized to be at variance with the evidence, as it did in the case of Salim Abdallah Maganga vs Republic (supra) rightly cited by the learned Senior State Attorney and in Leonard Raphael and Another vs Republic, Criminal Appeal No. 4 of 1992 (unreported), where, in the latter case, it stated that: "Prosecutors and those who preside over criminal trials are reminded that when as in this case, in the course o f trial, the evidence is at variance with the charge and discloses an offence which is not laid in the charge, they should invoke the provisions o f section 234 o f the Criminal Procedure Act, 1985, and have the charge amended in order to bring it in line with the evidence . " In putting the matter in proper perspective, we are compelled to also recall the pronouncement of the High of Tanzania, dealing with the need to amend the charge in the event of variance between charge and 8 evidence adduced, in the case of Daudi Othiambo vs R, [1970] HCD n. 221 at 204, in our view correctly, that: "In our opinion any alteration in matters o f discretion and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to accused person...the discretion resting with the trial court which can be trusted to evaluate the situation impartially bearing in mind both the interests o f the public as represented by the prosecution and those o f the accused." In the event there is failure to amend the charge and trial continues to its conclusion, the court has taken it to be prejudicial to the accused. The situation mounts a confusion on the part of the accused as against which offence to defend himself. Faced with an akin situation in Killian Peter v. Republic, Criminal Appeal No. 508 of 2016 (unreported), we underscored the position that where the evidence adduced by all prosecution witnesses does not support the charge laid against an accused person, the charge stands not proved to the required standard. We, again, pronounced ourselves so in Peter Ndiema and Another vs Republic, Criminal Appeal No. 469 of 2015 (unreported) that: 9 "It is important for the particulars o f the charge to be compatible with the evidence adduced by the prosecution witnesses to establish commission o f the offence for the purpose o f ensuring fair trial in that, it will enable the accused person to prepare well his defence." Facts in the instant appeal are no exception from those which obtained in the cited cases. The charge and the particulars thereof, as Ms. Mbughuni pointed out, accused the appellant of being found in unlawful possession of narcotic drugs (bhangi) while the evidence led by the prosecution witnesses sought to establish that the appellant was cultivating bhangi at the rear side of his house. The later facts disclose, as Ms. Mbughuni said, an offence under section 11(1) of DCEA. Unfortunately, this apparent and crucial variance escaped the attention of both the learned trial magistrate and the learned first appellant Judge. Paying homage to the salutary principles pronounced in the above cited authorities of Peter Ndiema and Another vs Republic (supra) and Salim Abdallah Maganga vs Republic (supra), we hold that the omission to amend the charge created a confusion on the part of the accused against which offence to guard himself from, resulting in unfair trial as a consequence of which, the offence charged stood not proved. 10 In fine, we allow the appeal, quash the appellant's conviction and set aside the sentence. We order his release from prison forthwith if not held therein for another lawful cause. DATED at SHINYANGA this 27th day of February, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 2n d day of March, 2026 in the presence of the Appellant appeared in person by virtual Court, and Mr. Christopher Msuya, learned Senior State Attorney for the respondent/Republic and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL l i