Emil Elias vs The Republic (Criminal Appeal No. 275 of 2011) [2020] TZCA 1965 (19 March 2020)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: MUGASHA. J.A.. MWANGESI. J.A. And SEHEL. J.A.) CRIMINAL APPEAL NO. 275 OF 2011 EMIL ELIAS •••••••••••••••••••••••••••••••••••••••••.•••• ~ ••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) lih & 20 th March, 2020 SEHEL, J.A.: (Nyerere. l.) dated the 21 st day of September, 2011 in Criminal Appeal No. 50 of 2010 RULING OF THE COURT The appellant was charged with and convicted of raping a school girl aged 17 years old, who we shall refer to in her initials, "DB" contrary to sections 130 and 131 of the Penal Code, Cap. 16 RE 2002. He was consequently sentenced by the District Court of Babati at Babati (the trial Court) to thirty years imprisonment. Aggrieved with both the conviction and sentence, he unsuccessfully appealed to the High Court hence, the present appeal.

It was alleged that on the ih day of April, 2008 at about 16:30 hours at Gidamara Village within Babati District in Manyara Region, the appellant did unlawfully had carnal knowledge of DB (PW2) without her consent. The appellant denied the allegation thus the prosecution to establish its case called a total of five witnesses who were E6749 DC Donald (PW1), DB (PW2), Doho Lossi (PW3), Phillipo Chapa (PW4), and Dr. John Kaaya (PWS). The respondent also tendered two exhibits, namely, PF3 (Exhibit P2) and PW2's torn underpants (Exhibit Pl). PW2 recalled that on the fateful date and time, she was grazing cattle at Gidamara village in the farm. Thereby, appeared the appellant who was riding a bicycle on it there was a plastic bag. The appellant asked J her as to who had given her a permission to graze therein. Fearing rebuke, she begged for forgiveness. On hearing that, the appellant requested for sexual favour in order to forgive her, she refused because she had never done that act in her life. The appellant then forcefully took her to the farm where he tore PW2's underpants and forced himself into her. When she was being taken to the farm, she tried to raise an alarm but no one responded to it. It was the evidence of PW2 that she felt pains when the appellant was forcing himself into her. She sustained bruises and blood 2

oozed therefrom. When enduring all that suffering, she tried once again to raise an alarm and at this time two men appeared for her rescue. They were PW3 and Kwalema Lusii. PW3 gave an account on how the appellant was arrested. He told the trial court that as they were returning home, they heard the alarm raised by PW2. Hence they responded to it. At the scene they found the appellant running, therefore, they asked him why he was running but he did not have any answer. Thus, they chased him and managed to arrest him. They took him to the hamlet chairperson of Gidamar, PW4 who then sent him to the police on the next day as on that day it was already late. PW1, an investigative officer, told the trial court that he was the one who issued PF3 to the victim for her to go to the hospital for medical examination and he also collected all exhibits including the underpant of PW2. That underpant was tendered and admitted as Exhibit Pl, without objection from the appellant. PWS testified that he examined and treated PW2 on 9 th April, 2008 and recorded his findings in a Police Form Number 3 (PF3) that PW2's thighs had scratches, her vulva was strained with dry secretion and the 3

virginity was no more. The PF3 was tendered and admitted without objection from the appellant as Exhibit P2. With that evidence, the prosecution closed its case and the trial court made a finding that the appellant had a case to answer. It thus addressed the appellant his rights in terms of section 231 (1) of the Criminal Procedure Act, Cap. 20 RE 2002 (the CPA). The appellant chose to give evidence under oath and opted to call three defence witnesses, namely, Joseph Eli, Hiiti Eli, and Emmanuel Elias. In his defence he admitted to have been found with PW2 at the scene of the crime by PW3 and Kwalema Lusii but he disputed to have committed the crime. He testified that he only punished PW2 by hitting her with a stick. The trial court having weighted the evidence of both sides, found the appellant guilty as charged. As such, the appellant was convicted and sentenced to thirty years imprisonment. As stated earlier, the appellant was dissatisfied with that decision. He appealed to the High Court but his appeal was dismissed, hence the present appeal. 4

In this appeal, the appellant filed a three point memorandum of appeal and at the hearing of appeal he presented a supplementary memorandum of appeal comprising of four grounds. For the reasons to be shortly revealed, we are not going to reproduce the grounds of appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas Mr. Felix Kwetukia and Ms. Amina Kiango, learned State Attorneys, appeared for the respondent/Republic. At the very outset, we wanted to satisfy ourselves with the propriety or otherwise of the proceedings of the trial court. Being mindful that the appellant is a layperson and u:nrepresented, we first invited the learned State Attorney to address us on whether the trial magistrate was legally justified to close the defence case and deny the appellant his right to parade his witnesses whom he had during the trial shown intention to call three defence witnesses. In responding to the issues, Mr. Kwetukia took us through to page 19 of the record of appeal where the appellant after being addressed in terms of section 231 (1) of the CPA, chose to testify under oath and to call three witnesses, namely, Joseph Eli, Hiiti Eli, and Emmanuel Elias. He 5

submitted that after the appellant gave his sworn evidence on 15 th day of September, 2008 the defence case was adjourned thrice for the appellant to bring his witnesses but he failed to do so thus on 29 th day of November, 2008 the trial magistrate had to issue a date for delivery of a judgment. On being probed by the Court, Mr. Kwetukia acceded that the trial magistrate did not comply with the provision of section 231 (4) of the CPA. It was his submission that non compliance with that provision renders the proceedings after DW1 's testimony a nullity because the appellant was denied his right to call witnesses and ultimately, he was denied his right to close his defence case. With that irregularity, he urged us to invoke our revisional powers provided under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) by nullifying all the proceedings which followed after the appellant's testimony, quash the conviction and set aside the sentence metted against him. He further submitted that since the proceedings of the High Court emanated from the null proceedings of the trial court, he also prayed for those proceedings and judgment be quashed and set aside. He urged us to make an order for resumption of the trial from where DW1 ended his evidence. 6

The appellant being a layperson and not conversant with the legal issues, he had nothing to say apart from adopting the submission made by the learned State Attorney. We wish to preface our determination by revisiting the trial court's proceedings where the appellant was addressed in terms of section 231 (1) of the Criminal Procedure Act, Cap. 20 RE 2002 (the CPA). It is on record that on the 3 rd day of September, 2008 the trial court after forming an opinion that a case was made out sufficiently to require the appellant to give his evidence, it addressed him on his rights in terms of section 231 (1) of the CPA. The trial court informed the appellant that he had three alternatives: to give evidence under oath; or without taking the oath; or he may elect to say nothing at all in his defence. If he would give evidence under oath or without oath, he would be cross examined by the prosecution or the trial court, or both. If he would elect to remain silent then the trial court would be entitled to draw an adverse inference against him. Further the trial court informed the appellant that he had a right to call any witness on his own behalf. The appellant as rightly observed by Mr. Kwetukia chose to give his evidence under oath and to call three witnesses: Joseph Eli, Hiiti Eli, and 7

Emmanuel Elias and the case was adjourned to 15 th day of September, 2008 for hearing of the defence case. On the 15 th day of September, 2008, the appellant took the witness stand and he was sworn in. He then testified in chief, followed by cross examination from the prosecution side and there was no question from the trial court. The case was then adjourned to 25 th day of September, 2008. On the 25 th of September, 2008 the case was adjourned again to 8 th October, 2008. Unfortunately, it is not apparent on the record why it was adjourned because both the prosecutor and appellant were present in court and the prosecution informed the trial magistrate that he was ready to proceed with the defence. It is not indicated in the proceedings as to whether the appellant was asked anything. The record is silent. On 8 th October, 2008 the presiding magistrate was indisposed thus the case was adjourned by another magistrate to come for defence hearing on 21 st October, 2008. Again, on 21 st October, 2008 the defence case was adjourned by the presiding trial magistrate without giving any reason despite the fact that both parties were present and the prosecutor was ready to proceed with 8

the hearing of the defence case. However, the record is silent on the position of the appellant as it is not known whether there was any attempt by the trial magistrate to get his position. Thus, the defence case was adjourned to 29 th October, 2008. It is gathered from the proceedings that on the 29 th October, 2008 both parties were present and the prosecutor notified the trial magistrate that the matter was set for the defence hearing and he was ready but immediately after receipt of such information, the trial court issued a date for the pronouncement of the judgment. That, the judgment would be delivered on 11 th day of November, 2008. Indeed, as it was scheduled and according to a copy of it appearing at pages 25 to 32 of the record of appeal, the judgment was delivered on 11 th day of November, 2008. This means that there was no closure of the defence case nor was there a reason given by the trial magistrate as to why the witnesses for the appellant were not summoned. In the case of Abdallah Kondo v. Republic, Criminal Appeal No. 322 of 2015 (unreported) we were faced with a situation where the trial magistrate closed the prosecution case after he had given the prosecution several adjournments to enable them ensure the attendance of its 9

witnesses. While grappling with the issue as to whether the trial magistrate has a right to close a prosecution case we also said: ''.As indicated above, the position is now settled that a magistrate or judge has no power, under our laws, to close the prosecution case. We would add that the same applies in the case of defence case that a magistrate or judge is not mandated to close the defence case. Both the prosecution and defence are at liberty to close their respective cases as and when they are satisfied that the evidence, their respective witnesses have adduced, is sufficient. '' Further section 231 ( 4) of the CPA stipulates: ''If the accused person states that he has witnesses to call, but that they are not present in court, and the court is satisfied that, the absence of such witnesses is not due to any fault or neglect of the accused person, and that there is likelihood that, they could, if present, give material evidence on behalf of the accused person, the court, may adjourn the trial, and issue process, or take other steps to compel/ the attendance of such witness.'' Form the above provision of the law, a trial magistrate may adjourn the trial and issue process, or take other steps to compel the attendance of the defence witnesses, only if he/she is satisfied that the accused person in 10

terms of section 231 (4) of the CPA chose to call witnesses but such witnesses were not in court; that the non-attendance of such witnesses was not due to any fault or neglect of the accused person; and that there is likelihood of the intended witnesses to give material evidence on behalf of the accused. In other words, the law bestows upon the trial magistrate with a discretionary power to adjourn the trial and take steps to compel attendance of defence. But where the accused person is denied an opportunity to call defence witness, the trial magistrate must record his/her reasons. This was held so in the case of Musa and Others v. Republic [1967] E.A 573. In that case, the three appellants who were convicted of robbery argued in the appeal, inter alia, that they had been debarred from calling defence witnesses. Unfortunately, the trial court recorSd was unclear and incomplete as to what, if any, the requests for witnesses had been made. That apart, it was insisted that the trial magistrate must give reasons for refusing to call witnesses of the accused person where the accused has opted to do so. It was thus said: '~ trial magistrate should record whether or not an accused person wishes to call defence witnesses, and in the event of witnesses for the defence being applied for, he should call such witnesses or record his reasons for refusing the application. " 11

• In the present appeal, we have demonstrated that the appellant chose to call three defence witnesses. On 15 th September, 2008 the appellant testified as DW1 followed by several adjournments and on the 29 th October, 2008 when the case was called for the continuation of the hearing of the defence case, the trial magistrate issued a date for delivering a judgment. It is not indicated in the proceedings whether the witnesses were absent in court and whether their absence was due to the appellant's fault or neglect. It is also not indicated in the record as to whether the trial magistrate satisfied himself on the weight of those defence witnesses for him to exercise his discretionary power to adjourn the trial and take steps to compel attendance of defence witnesses. Worst still the trial magistrate failed to give reasons why the defence witnesses should not be called. This is contrary to the mandatory requirement of section 231 (4) of the CPA where the trial magistrate is required to give reasons. Failure to do so rendered the proceedings dated 29 th October, 2008 a nullity and the proceedings that follow thereafter are also a nullity. Accordingly, we invoke our revisional powers provided under section 4 (2) of AJA. We quash the proceedings dated 29 th October, 2008 and the ensuing proceedings therefrom. We set aside the conviction and sentence 12

• imposed against the appellant. We further quash and set aside the proceedings and judgment of the High Court as they emanate from the null proceedings. We make an order that the matter recommences from where it ended on 21 st October, 2008, after the appellant gave his testimony, as soon as possible. Meanwhile, the appellant shall remain in custody while waiting for his trial to resume. DATED at ARUSHA this 19 th day of March, 2020. S.E.A.MUGASHA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL B. M.A.SEHEL JUSTICE OF APPEAL This Ruling delivered on 20 th day of March, 2020 in the presence of the appellant in person and Ms. Amina Kiango, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. ~ B.A. Mpepo DEPUTY REGISTRAR COURT OF APPEAL 13