James Shija vs Republic (Criminal Case No. 894 of 2023) [2025] TZCA 827 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCO RAM: WAMBALI, J.A., MGONYA, J.A. And FELESHI. J.A.^ CRIMINAL CASE NO. 894 OF 2023 JAMES SHIJA...........................................................................APPELLANT VERSUS THE REPUBLIC .................................................................... RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Geita exercising Extended Jurisdi&ion at Geita) fTenawa- SRM, Ext. Jur.^ Dated the 19th day of May, 2023 in RM Criminal Appeal No. 26 of 2023 JUDGMENT OF THE COURT 24thJuly, & 7th August, 2025 WAMBALI. J.A.: The appellant, James Shija was arraigned before the Court of Resident Magistrate of Geita at Geita on accusation of committing the offence of rape against a girl contrary to section 130 (1) (2) (e) of the Penal Code, Cap 16. He pleaded not guilty to the charge. The particulars laid in the charge disclosed that, on 8th July, 2021 at Shahende village within the District and Region of Geita, the appellant had carnal knowledge of a girl aged 11 years, a standard V pupil at Ibanza Village Primary School. We shall refer to the girl as a victim or PW1 to protect her identity.

The prosecution relied on the evidence of the victim (PW1), Veronica Charles (PW2) and Abdallah Mashulu (PW3) to prove the case. There is no exhibit which was tendered at the trial. The substance of the prosecution evidence was that, the appellant had sexual intercourse with the victim in the bush on 8th July, 2021. In his defence, the appellant denied the allegation and stated that the victim lied to the trial court that he was the one who had carnal knowledge of her. Nevertheless, at the height of the trial, having evaluated the evidence of the parties, the trial magistrate concluded that the prosecution proved the case beyond reasonable doubt against the appellant. Ultimately, he convicted and sentenced the appellant to a term of imprisonment of thirty (30) years. Dissatisfied, the appellant lodged in the High Court, Criminal Appeal No. 68 of 2022 which was later transferred to the Court of Resident Magistrate of Geita exercising extended jurisdiction and registered as RM Criminal Appeal No. 26 of 2023. The appeal was presided over and determined by Tengwa, Senior Resident Magistrate (SRM) with Extended Jurisdiction. As it transpired, the appeal was dismissed in its entirety, hence this second appeal before the Court.

Considering the circumstance and the nature of the case that was placed before the trial court and later the first appellate court on appeal, we do not deem it appropriate to revisit the detailed evidence of the parties and the grounds of appeal presented by the appellant in support of the appeal. Before we commenced the hearing of the appeal on merit, it was apparently noted that the charge which was presented before the trial court dated 22n d July, 2021 and admitted on 23r d July, 2021 indicated the name of the accused as James Mwita, Nevertheless, the appellant was called upon to plead. He accordingly pleaded and denied the allegation. On the other hand, though the record of appeal indicates that no order for amendment was made by the trial court altering the charge, the name Mwita appearing in the charge was crossed by a pen and substituted thereof with the name Shija and someone signed to authenticate the changes. It seems to us that the informal alteration of the charge sheet intended to show the name of the accused as James Shija instead of James Mwita. In the circumstances, at the hearing of the appeal, the apparent question was whether the appellant was properly arraigned and tried in

respect of the charge which was placed before the trial court on 23rd July, 2021 . In response, the appellant who appeared in person left the matter upon the Court to decide. However, he emphasized that he did not commit the offence and therefore, the appeal should be allowed by the Court. On the other hand, Mr. Robert Magige, learned Senior State Attorney who appeared for the respondent Republic, readily conceded that the charge which was placed before the trial court indicated the name of the accused as James s/o Mwita and not James Shija. He added that as there is no indication that the said charge was amended in terms of section 234 (1) of the Criminal Procedure Act, Cap 20 (the CPA) at any stage of the trial by a court order to show the actual name of the accused who was before the court, the appellant was unfairly tried, convicted and sentenced on a charge which was not preferred against him. Mr. Magige stated further that, the alteration of the charge which was done by an unknown person by a pen replacing the name Mwita to that of Shija without the order of the trial court was illegal and rendered the charge incurably defective. He thus prayed the Court to nullify the proceedings of both the trial and first appellate courts, quash the

conviction and set aside the sentence. Finally, he urged the Court to order that the appellant be released from prison. It is settled law that the charge is a foundation of a trial, and therefore it must be consistent with the requirement of the law both in its form and substance to enable the accused understand the allegation facing him. In the case at hand, though the appellant was arraigned at the trial court in terms of section 228 of the CPA, he was called upon to plead to a charge whose allegations did not involve him, rather, one James s/o Mwita. Consequently, the proceedings that followed up to the conclusion of the trial were a nullity as no amendment was legally done to substitute the name of James Mwita to that of appellant, James Shija. The appellant was therefore unlawfully tried, convicted and sentenced concerning the offence of rape contrary to the principles of fair trial. In Mussa Mwaikunda v. The Republic [2006] T.L.R. 387, the Court made reference to the case from New South Walles Court of Criminal Appeals in Regina v. Hanley (2005) NSWC CA 126 where the following standards of fair trial were stated: "(a) to understand the nature of the charge; (b) to plead to a charge and to exercise the right of challenge;

(c) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (d) to foiiow the course ofproceedings; (e) to understand the substantial effect of any evidence that may be given in support; and (f) to make a defence or answer the charge." It follows that, if the prosecution and the trial court had noted at any stage of the proceedings, that the name of the accused indicated in the charge did not relate to the appellant, an amendment would have been caused as prescribed under section 234 (1). For clarity, section 234 (1) of the CPA provides: "234 (1) Where at any stage of 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 of the charge either by way of amendment of the charge or by substitution or addition of a new charge as the court thinks necessary to meet the circumstances, having regards to the merit of the case the required amendments cannot be without injustice; and all amendments made under the provisions of this subsection shall be made upon such terms as to the Court shall seemju st"

It is apparent from the reproduced provisions that any alteration of the charge by way of amendment or by substitution or addition of a new charge must be sanctioned by the order of the court upon being convinced that the desired change is necessary to meet the circumstances of the case and that no injustice will be occasioned to the accused. Besides, the court shall make the desired order upon such terms as it shall deem just. For this stance, see, Ally Ngaleba v. The Republic (Criminal Appeal 91 of 2021) [2022] TZCA 643 (21 October 2022, TANZLII) and Rajabu Salim @ Roja v. The Republic (Criminal Appeal No. 311 of 2022) [2025] TZCA 373 (12 April 2025, TANZLII). In the case under consideration, as conceded by the learned Senior State Attorney, there is no indication in the proceedings that the trial court made such an order upon the prayer by the prosecution or on its own motion during the trial. We are aware as intimated above that, the charge sheet in the record of appeal indicates that some alteration to the surname "Mwita" were made by crossing it by a pen and substituting it to "Shija". However, the provisions of section 234 (1) of the CPA does not contemplate such form of amendment of a charge. On the contrary, a formal amended charge backed by order of the trial court must be filled and admitted. The

accused is also supposed to enter a plea as required under subsection (2) of the section 234 of the CPA. It is in this regard that, in Zebedayo Mtetema v. The Republic (Criminal Appeal No. 484 of 2015) [2016] TZCA 2192 (19 October 2016, TANZLII), the Court stated, among others, that it is very unsafe to rely on the unauthenticated alteration. It thus held that such alterations constituted an incurable defect in the charge and declared the proceedings before the trial and first appellate courts a nullity. In the circumstances, the alteration made informally to the charge which was preferred against the appellant in the case at hand are a nullity. More importantly, considering the nature of the proceedings before the trial court in which none of the three witnesses particularly mentioned the name of the appellant, it is unsafe to conclude whether the charge was preferred against James Shija or James Mwita who was mentioned therein. In the result, we agree with Mr. Magige that the appellant was unfairly tried, convicted and sentenced based on a fatally defective charge involving James Mwita. Consequently, the subsequent proceedings of both the trial and first appellate courts were a nullity. It follows that miscarriage of justice was occasioned on the part of the appellant.

To this end, pursuant to section 4 (2) of the Appellate Jurisdiction Act, Cap 141, we revise and nullify the proceedings of the trial and first appellate courts, quash the conviction and set aside the sentence imposed on the appellant. Ultimately, we order that the appellant be released from custody unless his incarceration is in connection to other cause. DATED at MWANZA this 7thday of August, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 7th day of August, 2025 in the presence of the appellant in person unrepresented and Ms. Magreth Mwaseba, learned Principal State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL