The Director of Public Prosecutions vs Ponda Issa Ponda (Criminal Appeal No. 57 of 2015) [2019] TZCA 598 (4 July 2019)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUGASHA, l.A., WAMBALI, l.A. And KEREFU, l.A.) CRIMINAL APPEAL NO. 57 OF 2015 THE DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT VERSUS PONDA ISSA PONDA RESPONDENT (Appeal from the ludgment of the High Court of Tanzania at Dar es Salaam) (Shangwa, l.) dated the 27th day of November, 2014 in Criminal Appeal NO. 89 of 2013 RULING OF THE COURT 11th June & 4th July, 2019 WAMBALI, l.A.: The appellant, Director of Public Prosecutions (the DPP) is dissatisfied with the judgment of the High Court of Tanzania in which the respondent, Ponda Issa Ponda was acquitted of the second count on appeal, after he was earlier on "convicted" by the Court of Resident Magistrate at Kisutu. It is noteworthy that earlier on, the respondent who was the first accused together with forty nine (49) other persons, appeared before the Court of 1

Resident Magistrate at Kisutu in Criminal Case No. 245 of 2012 in which he was charged together and jointly with Mukadamu Abdallah Swalehe (5 th accused) in respect of the 5 th count and together and jointly with 49 others in respect of the 1st, 2 nd , s= and 4th counts preferred under various provisions of the Penal Code, Cap. 16 R.E. 2002 (the Penal Code). For the purpose of this Ruling, we do not deem appropriate to list or explain in detail the nature and sections of the offences of the Penal Code under which the respondent and 49 other persons were charged and acquitted by the trial court. Be that as it may, at the end of the trial, the respondent and his co- accused were not found guilty in respect of the Pt, 3 rd , 4th and 5 th counts and thus they were acquitted. However, the respondent was found guilty on the z= count of "Forcible Entry" contrary to sections 85 and 35 of the Penal Code. He was accordingly "convicted" and sentenced to a conditional discharge on condition that he commits no offence for a period of twelve months and to keep peace and be of good behavior during the said period. The respondent was not satisfied with both "conviction" and sentence and appealed successfully to the High Court as alluded to at the beginning of this Ruling. 2

On the other hand, the decision of the High Court to acquit the respondent did not please the appellant, the DPP who immediately lodged a notice of appeal to this Court followed by the Memorandum of Appeal to contest the findings of the High Court. The Memorandum of Appeal contains only one ground of appeal, which we do not deem necessary to reproduce it herein, for the reason which will be apparent shortly. When the appeal was called on for hearing, Mr. Nassor Katuga assisted by Mr. Patrick Mwita both learned Senior State Attorneys appeared for the appellant, the DPP, while Mr. Juma Nassor assisted by Ms. Fauzia Kajoki both learned advocates appeared for the respondent. Before he submitted in support of the said ground of appeal, Mr. Katuga rose and informed the Court that upon going through the record of appeal he noted that the trial court did not convict the respondent as required by law as reflected at page 593 of the record of appeal. He thus urged us to grant him leave to address the matter which is a point of law. Upon inquiry from Mr. Nassor for the respondent who did not object to the prayer, we granted Mr. Katuga the requisite leave. 3

In his submission, Mr. Katuga argued that failure of the trial court to convict the respondent with the offence of which he was found guilty is fatal and rendered the proceedings that followed, that is, mitigation and sentence null and void. In his view, the nullity also extends to the proceedings and the judgment of the High Court on appeal. To support his contention, Mr. Katuga referred us to the decision of this Court in Fred Mwakajilo v. The Republic, Criminal Appeal No 252 of 2011 (unreported). In the circumstances, the learned Senior State Attorney urged us to invoke the provisions of section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 (the AJA), to revise and quash part of the judgment of the trial court from the stage where mitigation started after the purported conviction and sentence meted on the respondent. He also implored us to nullify the proceedings and judgment of the High Court on appeal in Criminal Appeal No. 89 of 2013 as the same emanated from nullity proceedings and judgment of the trial court. He further urged us to remit the file containing the rest of the proceedings in Criminal Case No. 245 of 2012 to the trial court with direction to convict the respondent and sentence him accordingly. 4

On his part, Mr. Nassor did not dispute the submission that the trial court did not convict the respondent as required by law, in accordance of what is directed under section 235 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 (the CPA). He was, however, of the view that as conviction was not entered, it is not only part of the judgment of the trial court from the stage of mitigation to the sentence imposed on the respondent which are null and void, but the entire judgment of the trial court. In the event, Mr. Nassor strongly argued that the proper order to be issued is to nullify the entire judgment of the trial court and the proceedings and judgment of the High Court on appeal and set the respondent at liberty. His stance is that as it is long time since the respondent was sentenced and later acquitted on the charge of forcible entry by the High Court on appeal and has enjoyed his liberty for sometime, it would be unfair for him to appear before the trial court to be convicted and sentenced again as argued by Mr. Katuga. He therefore implored us to revise and nullify the entire judgment of the trial court and the proceedings and judgment of the High Court under section 4(2) of the AJA as was the case in Fred Mwakajilo (supra). He submitted further that the order to be issued should be to set the respondent at liberty 5

as there will be nothing left after nullifying the judgment to warrant his conviction and sentence by the trial court. In a brief rejoinder, Mr. Katuga opposed the prayer of Mr. Nassor regarding nullification of the entire judgment of the trial court on argument that the procedural error committed by the trial court is only borne out from stage where the respondent was not subsequently convicted after he was found guilty on the second count as required by law. He submitted that as the respondent was not convicted, the sentence that was imposed is invalid, hence the need for the trial court to comply with the mandatory provisions of the law by convicting and sentencing him accordingly. On our part, having heard the counsel for the parties, the DPP and the respondent, and on the basis of what is contained in the record of appeal (the record), we entertain no doubt that the trial court did not convict the respondent before he was sentenced as conceded by both sides. To appreciate what transpired at the trial court in respect of this matter, we deem appropriate to reproduce the relevant paragraphs as found at page 593 thus; 6

"From all the finding on the issues framed in this case; this court finally find that the prosecution side have not proved their case beyond reasonable doubt in respect of first count; yd count, 4h count and Sh count for all accused person (sic). As to the second count of Forcible Entry this court finds that the 1 st accused person PONDA ISSA PONDA guilty of that offence while the rest of the accused person are found not guilty, and they can walk out of this court freely unless lawfully held. (Sgd) V. Nongwa -SRM 9/5/2013" As may be observed from the above quoted paragraphs, it is vividly clear that although the respondent was found guilty on the second count, he was not convicted as required by law. On the contrary, the respondent and other accused persons were respectively found not guilty and acquitted as required by law in respect of the 1st, 3 rd 4th and 5 th counts. In the circumstances, failure to convict the respondent is fatal to the proceedings that followed thereafter and indeed, it cannot be said that he was sentenced validly. The trial court only made a finding on the guilty of the respondent 7

with respect to the 2 nd count but did not complete its duty of convicting him as directed under section 235 (1) of the CPA which provides as follows: "The Court, having heard both the complainant and accused person and their witnesses and the evidence/ shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 of the Penal Code. N [Emphasis ours]. It is in this regard that in several decisions of this Court, it has been held that finding the accused guilty or not guilty alone is not sufficient as the trial court must go further to either convict or acquit and that failure to convict renders the judgment invalid (See Shabani Idd Jololo and Three Others v. Republic, Criminal Appeal No. 200 of 2006; Aman Fungabikasi v. Republic, Criminal Appeal No. 270 of 2008; Jonathan Mlugyani v. Republic Criminal Appeal NO. 15 of 2011; Fredrick Godson and Another v. Republic, Criminal Appeal No. 88 of 2012; Mang'era Marwa Kubyo v. The Republic, Criminal Appeal No. 320 of 2013 and Fredy Mwakajilo Criminal Appeal No. 252 of 2011 (all unreported). It follows that even the proceedings and judgment that followed at the High Court could not be valid. 8

It is unfortunate that the anomaly was not noticed by the High Court which seat in the first appeal. At this juncture, the issue to be resolved is on the consequences of the said non-compliance. We are alive to the argument of Mr. Katuga that the proceedings of the trial court be revised and nullified from where mitigation started to the sentence meted together with the proceedings and judgment of the High Court. We have also taken note of the request for the file to be remitted to the trial court to enter conviction and sentence the respondent as required by law. On the other hand, Mr. Nassor strongly submitted that the entire judgment of the trial court and proceedings and judgment of the High Court on appeal be quashed and the appellant set free. On our part, we are of the firm opinion that in the circumstances of this case, the proper order is to nullify the proceedings in respect of part of the judgment of the trial court from the stage where submission on mitigating factors of the prosecution and the defence started and the sentence that was imposed on the respondent and the entire proceedings and judgment of the High Court on appeal. Certainly, if that is done the file on the remaining part of the record will be remitted to the trial court to enter 9

conviction and sentence the respondent. We have to emphasize that the course taken by this Court in its decision in Fredy Mwakajilo relied upon by Mr. Nassoro on the procedure to be followed is distinguishable with the present case. In the former, the Court heard the submission of the parties on the grounds of appeal and was satisfied that the several defects which, among others, included failure to convict were serious and in view of the evidence in the record before the Court, there was no any other option than to order the release of the appellant instead of ordering a retrial. On the contrary, in the present case, we have only dealt with one legal issue on failure of the trial court to convict the respondent and have not gone to the extent of considering the ground of appeal in relation to the evidence in the record to arrive to such course. In the event, in exercise of our revisional powers under section 4(2) of the AJA, we accordingly nullify the proceedings of the trial court from the stage where mitigation started followed by the sentence which was meted on the respondent, as the same were based on invalid conviction. Similarly, we nullify the proceedings and judgment of the High Court as the same were based on the incompetent appeal. We further order that the file of the trial 10

court in respect of the remaining part of the proceedings be remitted to it with directions to enter conviction against the respondent and pass sentence according to law. For purpose of clarity, it is without doubt that upon compliance of this order by the trial court, the right of appeal to the High Court will certainly be there for either party from the date of conviction and sentence. We so order. DATED at DAR ES SALAAM this 25 th day of June, 2019. S. E. A. MUGASHA JUSTICE OF APPEAL F.L.K. WAMBALI JUSTICE OF APPEAL R.J. KEREFU JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. MS MI DEPUTY REGISTRAR COURT OF APPEAL 11