Mabula Mashauri vs Republic (Criminal Appeal No. 261 of 2010) [2020] TZCA 1955 (8 December 2020)

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• ·. _, .·: :.:;,;,:-::· :< ·;..:,, : . IN THE COURT OF APPEAL OF TANZANIA ; .. ~ ·::· .. _: ~ . . ' . . AT MWANZA . ..- .. :,·.fCORAM,----t-1wARIJA, l.A., KWARIKO, J.A. And KEREFU, J.A) . •• •• :,; :; :.. •, . ,1.: ,, .-• • - . . - .. ·.. ' . CRIMINAL APPEAL NO.261 OF 2010 MABULA MASHAURI ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••• .:- •• - •••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT . . . ~ . ,, ;{Appeal fr~~ ~~-e decision of the High Court of Tanzania at Mwanza] · ., ·. · · (Somi, PRM) ,·•.•--~•1·.; .. ·· .... f. .... : · ·... :· ·, ·: ... :: ' : : • •••. : · Dated the 23 rd day of March, 2002 '• •,';I'. in . . (f>c.) Criminal Appeal No.219 of 2000 . . ~ . JUDGMENT OF THE COURT oa th . & ..... December, 2020 KWARIKO, J. A.: Toe appellant, Mabula Mashauri stood before the District Court of Sengerema at Sengerema charged with the offence of Grave sexual abuse contrary to section 138 (2) (a) and (b) of Act No.4 of 1998. It was alleged by the Prosecution that on the 10 th October, 1999 at about 13.00 hours at Nyatakala village within Sengerema District in Mwanza Region, the appellant had carnal knowledge of a girl aged six years (name withheld). Having denied the charge, the appellant was fully tried. At the end of the trial, the trial court found that the evidence on record did

··~ not prove the offence of grave sexual abuse against the appellant. It <• instead found the appellant guilty of the offence of rape. He was sentenced to life imprisonment, a corporal punishment of 24 strokes of a cane and a fine of Tshs.20,000.00. He was also ordered to pay compensation to the victim of the offence at tune of Tshs.100,000.00. Aggrieved by that decision, the appellant appealed before the High Court. However, the appeal was heard by Hon. J.M. Sarni, Principal Resident Magistrate, Ext. Jur. His appeal was dismissed. During the trial the prosecution called three witnesses to prove the charge while the defence had a total of four witnesses including the appellant. The following are the salient facts arose out of the evidence adduced the trial. On 10/10/1999, the victim (PW2) had was at a well when he saw the appellant whom she knew before. When the appellant stared at her she took to her heels but the appellant followed her home. Whilst there he inquired whether her mother was at home and told him that her father was on travel. Thereafter, he carved her to her mother's bed and offered Tshs.20.00 which she refused. The appellant lifted her to the bed and raped her. She felt pain as she was injured 2

1 ~ shortly theater, PW2's mother Pilly Zagaraza PW1 appeared where the i:. appellant turn away. The incident was reported to the ten cell leader Selemani Bundala, PW3 who asked his wife to inspect the victim but did not find anything abnormal. Meanwhile, PW1 reported to the incident to Police Station where a PF3 (exhibit Pl) was given for the victim to go to hospital for treatment. The appellant was arrested and charged as thus. In his defence, the appellant and his three other witnesses testified that the appellant spent the whole day of material day doing construction work at one Gedion Ngerageza (DW2) together with two others, Chimani Mashauri DW3 and Kazimiri Gimbishi DW4. Before, this court, the appellant has raised ten grounds of appeal but for the reasons which will be appetent soon, we with not to reproduce them here. At the hearing of the appeal, the appellant was linked from Butimba Prison through video conferencing facility whilst the respondent Republic was represented by Ms. Mwamini Joram Fyeregete, Senior State Attorney. 3

In the course of hearing of the appeal was asked the State -~· Attorney to explain whether it was proper for the trial magistrate to substitute the offence of grace sexual abuse to that rape; The learned Senior State Attorney submitted that although the trial Magistrate found the evidence on record and particulars of the offence proved the offence of rape, he erred to substitute the offence of grave sexual abuse with rape without calling the appellant to plead to the new charge as required under section 234 of the Criminal Procedure Act [CAP 20 R.E. 2019] (the CPA). Ms. Fyeregete submitted further that in Principle the trial Magistrate erred to substitute the lesser offence with less punishment with major one which carries big punishment. She submitted that because the evidence was variance with the charge the trial magistrate ought to have ordered amendment as per section 234 of the CPA. Since that was done the judgment of the trial court was a nullify and so as the proceedings and judgment of the High Court. As regards to the way forward, Ms. Fyeregete submitted that the appellant has been in custody for abut twenty years now that, the appellant would have completed his sentence had he been convicted of . 4

the offence of grave sexual . abuse and sentenced to a minimum sentence. In the circumstances, the learned Senior State left to the Court to decide the fate of the appellant. The appellant being a lay person did not have much to say. He only urged to do justice which has been delayed for long and he has been in custody for twenty years now. We have considered the trial Court's judgment and the submissions by the parties, the issue which call for our consideration is whether the trial Magistrate properly substituted the offence charged in the course of composing judgment. When the appellant was arraigned before the Court the charge of grave sexual abuse was read over and explained to him before he was called on plead. This was in compliance with the provisions of section 228 (1) of the CPA. However, section 234 of the CPA allows alteration or amendment of the charge at any stage of the trial. It provides thus 5

It is therefore cle_ar that where the law allows amendment or ,_ alteration of the charge at any stage at any stage of the case, it requires the Court to call upon the accused to plead the new charge. The provision which is couched in mandatory terms does not give room to the Magistrate to amend, substitute or alter the charge at will without calling upon the accused to plead to it. The Court has had occasions to interprete the cited provision. Some of these decisions are No.A.5204 WRD Viatory Paschal UR, Criminal Appeal No.195 of 2006, Hassan Said Twalibu UR, Criminal Appeal No.91 of 2019 (both unreported). For instance, in the case of .... No. A. 5204 WRD Viatory Paschal (Supra) where the trial magistrate amended the charge in the course of writing judgment, Court stated thus. ''Apparently the trial magistrate had amended the charge in the course of writing the Judgment. The accused persons, therefore, were not accorded an opportunity to enter their pleas as required under section 234 (2) of the Criminal Procedure Act .. " Likewise, in the instant appeal, the trial magistrate strayed into error when he amended the charge in the course of writing the judgment without calling upon the appellant to plead to the new charge 6

and defend himself. In the case of CPL. Jabil Maulid UR, Criminal ,., Appeal No.147 of 2005 (unreported), the Court said thus:- " But the question we have asked ourselves is whether it was proper at the time of wiring judgment to make such amendment. We think the answer to the question is that, it is not proper at of the time of writing judgment for the judge to make such amendment of the charge. This is because at that stage the accused person will be deprived of his right to answer the amendment charge. Furthermore, the accused would have no opportunity to defend himself." Following the authorities referred above, we are in all fours with the learned Senior State Attorney that the contravention of the law rendered the judgment of the trial court a nullity and so as the proceedings and judgment of the High Court which resulted into a . nullity. As such, in by our revisional powers envisaged under section 4 (2) of the Appellate Jurisdiction Act [CAP 141 R.E. 2019], we quash the judgment of the trial court and the proceedings and judgment of the High Court and set aside the sentence metered out against the appellant. 7

Under normal course of things, the said nullification would have been followed by an order of remittance of the case file to the trial court to comply with the law. However, we find that move not proper because as the record shows and conceded by the learned Senior State Attorney the appellant has been in custody for about twenty years now. He would also have completed his sentence had he been found guilty of the offence of grave sexual abuse and sentenced to minimum term. In the circumstances, we order immediate release of the appellant from prison unless his continued incarceration is related to other lawful cause. DATED at MWANZA this ......... day of December, 2020. A. G. MWARIJA JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL R.J. KEREFU JUSTICE OF APPEAL 8