Ludaya Wilson and Another vs Republic (Criminal Appeal No. 572 of 2023) [2025] TZCA 809 (6 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: WAMBALI, J.A.. MGONYA, 3.A. AND FELESHI, J.A'l CRIMINAL APPEAL NO. 572 OF 2023 LUDAYA WILSON ............. MAHEGA GERVAS @ RA5I. FARAJA NGARAMA @ FAJI ,1C T APPELLANT 2 nd APPELLANT 3 rd APPELLANT VERSUS REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) July 22n d & 6th August, 2025 FELESHL J.A.: In this appeal, Ludaya Wilson, Mahega Gervas @ Rasi and Faraja Ngarama @ Faji (the 1s t, 2n d and 3r d appellants respectively) are challenging the dismissal of their appeal by the High Court of Tanzania, sitting at Mwanza, against conviction and sentence of thirty years imprisonment meted on them by the Court of Resident Magistrate of Geita (the trial court) for the offence of armed robbery, contrary to section 287A of the Penal Code, Chapter 16. fMnvukwa. 3 .^ dated the 23r d day of June, 2023 in Criminal Appeal No. 2 of 2023 JUDGMENT OF THE COURT

The antecedent facts giving rise to this appeal are that on 17.1.2022 the 1s t and 2n d appellants along with Ogoma Charles @ John, James Magina @ Henerico, Elisha Malole @ Janja and Faraja Alphonce @ Cyprian, the 3rd , 4th , 5th and 6th accused persons respectively (not parties to this appeal) were jointly charged with the aforesaid offence on allegation that on 2.1.2022 at Kaduda Village within the District and Region of Geita they stole one mobile phone make Tecno worth TZS. 150.000.00, one small radio worth TZS. 10,000.00 and cash TZS. 7.000.00 the property of Emmanuel John. That, in so doing, they beat him with a club and sides of a machete on various parts of his body in order to obtain and retain the said properties. They all pleaded not guilty. The preliminary hearing was conducted on 31.1.2022 and when the case was called on for hearing on 28.3.2022 the prosecution was granted leave to amend the charge to add the 7t h accused whose name was introduced in the charge sheet drawn on 17.3.2022. The added accused was Faraja Ngalama @ Faji. He was subsequently called on to plead and he pleaded not guilty to the amended charge. Then, a preliminary hearing for him only was scheduled to be conducted on 11.4.2022 but was later adjourned to 25.4.2022.

On 25.4.2022 the prosecution was granted leave to withdraw Faraja Alphonce @ Cyprian (former 6th accused) from the charge and then the preliminary hearing for Faraja Ngalama @ Faji was conducted on that day as per the record of appeal. On 12.5.2022 the prosecution was granted another leave to substitute the charge sheet dated 17.3.2022 with the one dated 12.5.2022 in which Maneno Ngadule was added. On that day, the substituted charge was read over to all accused as shown in the record of appeal, and each of them pleaded not guilty to it After conducting a fresh preliminary hearing, the trial ensued where both sides on diverse dates from 25.5.2022 to 6.12.2022 adduced evidence. In establishing the prosecution's case, Emmanuel Richard (PW1), Emmanuel John (PW2), No. G.378 D/CPL (PW3), Insp. William (PW4), No. G.206 D/CPL Matete (PW5), No. E. 8646 S/SGT Said (PW6) testified and eight exhibits were admitted in evidence. While the 1s t, 2n d , 6th and 7th accused were found with a case to answer, the 3rd , 4th and 5th accused were acquitted. In defence, while the 1s t accused elected to remain silent, the 2n d , 6th and 7th accused testified as DW1, DW2 and DW3 respectively. At the end, while Maneno Ngadule (DW3) was

acquitted of the charged offence, the 1s t, 2n d and 6th (the appellants) were found guilty, convicted and sentenced to 30 years imprisonment. Dissatisfied by the trial court's decision, the appellants appealed to the High Court which, as aforesaid, dismissed their appeal. Still not amused, they appealed to this Court raising a total of eight grounds contained in a memorandum of appeal and supplementary grounds. However, as it will become evident shortly, we find it needless to present them herein and so is for the evidence adduced by the parties. When the appeal was called on for hearing, the appellants appeared in person, unrepresented, whereas M r. Robert Magige, learned Senior State Attorney assisted by M r. Mussa Mlawa, learned State Attorney, appeared for the Respondent, Republic. Before the hearing could commence in earnest, considering the charges which were presented and substituted by the prosecution, we prompted the parties to address us whether the appellants were properly charged at the trial court. In response, Mr. Magige assailed the trial court for its order dated 28.3.2022 which caused the 7th accused only to plead to the amended charge. He argued, the exclusion of the other six accused to plead to the

charge after the amendment was contrary to section 234 (1) and (2) of the Criminal Procedure Act, Chapter 20 (the CPA) and it vitiated the proceedings of both the trial court and the High Court. In view of that impropriety, he implored the Court to nullify the proceedings of both lower courts, quash the appellant's convictions, set aside their sentences and order for their release from custody. On their part, the appellants wholly concurred with M r. Magige's submission and had nothing to add. We have duly considered Mr. Magige's submission in the light of the record of appeal and the law. The central issue for our determination is whether it was proper for the trial court to cause the 7thaccused alone to enter plea to the amended charge. The impugned proceedings found in the record of appeal shows the following: "Court: Charge sheet read over and explained to the accused person who are (sic) asked to plead thereto: - 7th accused " not true . " ...... Order: (i) Phg for the 7th accused 11/4/2022 (ii) AFRIC..." [Emphasis added]

In view of what transpired above, we are inclined to agree with M r. Magige's submission that what the trial court did above was improper in law. We wish to begin with an earnest observation that, the order was incompatible with the prosecution's specific prayer to adding an accused to the same charged offence within the purview of section 134 (1) (a) of the CPA. To the contrary, the order impliedly meant to separate the 7th accused from the other six accused persons but without fully adhering to section 133 (3) of the CPA which require a presentation of a separate charge for disjointed accused. The provisions read: "133- (3) Wheref before trial or at any stage o f a trial, the court Is of the opinion that a person accused may be embarrassed or prejudiced in his defence by reason o f being charged with more than one offence in the same charge or information , or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a charge or information, the court may order a separate trial of any count or counts of such charge or information." [Emphasis added] n 134-(l) The following persons may be joined in one charge or information and may be tried together, namely-

(a) persons accused of the same offence committed in the course of the same transaction;"^ Emphasis added] Without prejudice to the observed deficiency above, we find that, as correctly argued by Mr. Magige, the trial court after granting leave to the prosecution to amend its charge on 28.3.2022 in which the 7th accused was added, it was mandatorily required to cause all accused persons to plead to the amended charge under section 234 (1) and (2) (a) of the CPA. That is because, the charge sheet drawn on 14.1.2022 which led to the arraignment of the other six accused to court on 17.1.2022 was vacated and replaced by the one drawn on 17.3.2022 which added Faraja Ngalama @ Faji who was not in court on 17.1.2022. Section 234 (1) and (2) (a) provides: "234r(l) 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 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 of the case.,..; and all amendments made under the provisions o f this subsection shall be made upon such terms as to the court shall seem just

(2) Subject to subsection (1), where a charge is aitered under that subsection - (a) the court shall thereupon call upon the accused person to plead to the altered charge . [Emphasis added]. It is thus evident that the amended charge in the instant case was improperly acted upon by the trial court as it denied a room to the other six accused persons to plead to it contrary to the dictates of the law stated above. The final glaring issue to resolve is whether the omission was fatal and incurable. In our view, a resolution of this issue obviously is tied to the principle of fair trial where a right to enter unfettered plea to the charged offence is one of the fundamental elements which, if not met, amounts to fatal and incurable irregularity. In Evance Chole v. Republic (Criminal Appeal No 457 of 2022) [2025] TZCA 376 (25 April 2025, TANZLII), we underscored that: "...when the appeiiant and his co-accused persons were first arraigned before the triai court on 1/10/2019, that court was mandatoriiy obiiged in terms o f section 228 (1) o f the CPA to read over the charge and ask them to enter their pieas. A failure to do so was fatal./'

Then, from the foundation built on any initial plea taken by an accused, section 234 (1) and (2) of the CPA is a good law governing subsequent changes made to charges for purposes of facilitating fair trials. However, the dutiful role on this is vested to prosecution and trial courts. See- Mohamed Kaningo v. Republic, [1980] T.L.R.279, Sali Lilo v. Republic (Criminal Appeal No. 431 of 2013) [2014] TZCA 2191 (18 March 2014, TANZIJI) and Leonard Raphael & Another v. Republic, Criminal Appeal No.4 of 1992 (unreported). We further underscored the effect of the noncompliance of the mandatory requirement of section 234 (1) and (2) of the CPA in the case of Riziki Jumanne v. Republic (Criminal Appeal No. 370 of 2019) [2021] TZCA 302 (9 July 2021, TANZLII), in these words: "The above quoted provision is couched in a mandatory tone and does not give an option to the trial court not to comply with it. This Court in several occasions has interpreted the said provision and provided guidance on its applicability, for instance, in Thuway Akonaay v. Republic [1987] T.L.R. 92, the Court emphasized that: - "It is mandatory for a plea to a new or altered charge to be taken from

an accused person, failure to do so, renders a trial a nullity. "[Emphasis added] In that case the Court also quoted, with approval head notes from a decision in Akbarali Damji v. Republic, 2 T.L.R. 137 where it was also emphasized that: - "... Where no plea is taken, the trial is a nullity . The omission is not an irregularity which can be cured by...(now section 388 (1) o f the Criminal Procedure Act).” [Emphasis added] In view of the above position, it is apparent to us that, the failure by the trial court to call each accused person before it to plead to the amended charge vitiated its proceedings and rendered the same a nullity right from 28.3.2022. The omission was fatal and incurable. Since nothing lawful can arise from an illegal act, we find all the subsequent proceedings including the substitution of charge and pleas taken on 12.5.2022, withdrawing of Faraja Alphonce @ Cyprian (former 6th accused) from the charge and addition of Maneno Ngadule to the charge, which were founded on the said flown proceedings, a nullity. As no remedial measures were taken, we find the same to have seriously prejudiced the appellants.

In the upshot, we respectfully agree with Mr. Majige and hereby invoke the powers of this Court under section 4 (2) of the Appellate Jurisdiction Act, Chapter 141 to revise and nullify the proceedings of both the trial court and the High Court, quash the appellants' convictions and set aside their sentences. We order for their immediate release from custody unless lawfully held for another lawful cause. DATED at MWANZA this 6th day of August, 2025. F . L. K. WAMBALI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment is delivered this 6th day of August, 2025 in the presence of the Appellants in persons and M r. Evance Kaiza, learned State Attorney for the Respondent/Republic, respectively, both through virtual court, is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL