Abdul-Rahman s.o Kassimu @ Dodo vs Republic (Criminal Appeal No. 510 of 2021) [2024] TZCA 1163 (29 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: SEHEL, 3.A., FIKIRINI, 3.A, And MLACHA, 3.A ^ CRIMINAL APPEAL NO. 510 OF 2021 ABDUL-RAHMAN s/o KASSIMU @ DODO . .................. ............ APPELLANT VERSUS THE REPUBLIC ...... . ..... .............. ...... . ...... ......................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Moshi) (Simfukwe. 3.) Dated 20th day of September^ 2021 in Criminal Appeal No. 22 of 2021 JUDGMENT OF THE COURT 26th &. 29th November, 2024 MLACHA, J.A.: At the District Court of Moshi, at Moshi, in Criminal Case No. 285 of 2019, the appellant, Abdul-Rahman Kassimu @ Dodo was charged with Unnatural Offence contrary to section 154(l)(a) and (2) of the Penal Code, Cap 16, R. E. 2002 (now R.E. 2019). He was found guilt, convicted and sentenced to life imprisonment. His appeal to the High Court, at Moshi, in Criminal Appeal No. 22 of 2021 was not successful hence the appeal now before the Court.

To appreciate the matter properly, the factual background is reproduced, albeit briefly, as follows: The prosecution case is based on the evidence of five witnesses. As we shall see later there was no defence evidence. The complainant (hereinafter referred to as "BE") appeared as PW2. He was in the company of his friend, Elisha Emmanuel (PW3) going to a milling machine on 20/7/2019 at 14:00 hours. At a certain point in a forest, they met the appellant who held him by the hand. The appellant soon pulled a knife and threatened them. Elisha run away, The appellant pulled "BE" to the forest where he ordered him to undress and bend. He inserted his penis to the anus of "BE" who felt pains and cried. The appellant adjourned the exercise and took "BE" deeper in the forest, at the riverside where he asked him to bend again. He inserted the penis to his anus. "BE" raised an alarm in protest but could not get an assistance as there was no nearby houses. "BE" returned home and gave the story to Elisha. The later told mama Zai (PW5). PW5 examined the anus of "BE" and found that it was reddish. She made a phone call to the parents of "BE" who turned up. The matter was reported to the police who issued a PF3 and referred "BE" to hospital. Elisha confirms the story of "BE" and what was done by PW5. The accused was arrested later in the day and sent to the police station.

Mary Erasto Singano (PWl), the mother of "BE", said they picked her son aged 9 years, following allegation of sodomy and sent him to the police station and later to the hospital where it was confirmed that he had been sodomised. Oscar Mapunda (PW4), a Medical Officer of Mawenzi hospital gave evidence that he received "BE" on 20/7/2019 at 22:00 hours for medical examination following reports that he had been sodomised. He examined the external parts of the anus but could not see any bruises. Nevertheless, the anus was not tight as it should have been. He formed the opinion that it had been penetrated by a blunt object and endorsed so in the PF3, exhibit Pl. The record of appeal (the record) shows that the appellant was in court when PWl, PW2 and PW3 gave evidence. He could not attend the court, as scheduled, in the period which followed. When the case was called for hearing on 15/10/2020 as appearing in page 19 of the record, the state attorney prayed for the issue of arrest warrant against the appellant and summons to show cause to his sureties. He also prayed to proceed under section 226 of the Criminal Procedure Act, Cap 20 R.E. 2019 (the CPA) in case the appellant could not be found. The magistrate granted both prayers and proceeded to fix the case for hearing on 20/10/2020. The appellant could not appear on this date. The hearing was adjourned to 26/10/2020. He was still absent. In view

of his absence and based on the previous orders of the court, the magistrate received the evidence of PW4 and PW5 in the absence of the appellant. The prosecution case was closed and the case was set for judgment When the case was called on 15/12/2020 for delivery of judgment, the appellant appeared in court under arrest. The magistrate demanded to know the reason as to why he could not attend the Court. He said that he was sick. He added that his sureties were on safari and could not report on what had be fallen to him. The magistrate was not convinced by the defence of the appellant and ordered the case to proceed for judgment as scheduled. The appellant was found guilty and sentenced to life imprisonment as intimated above. The grounds upon which this appeal is based can be paraphrased to read as follows: one, the successor magistrate was not in a position to assess the evidence of the complainant because he had no chance to assess his demenour; two, the evidence of PW2 and PW4 was unreliable because "BE" aged 9 years, could not be sodomised by an adult twice without blood, bruises or raptures; three, that the refusal to allow the appellant to give his defence denied him a fair hearing; four, that failure of PW3 to report what had happened to the complainant at an early stage rendered him incredible; five, the evidence from the

prosecution was weak, tenuous, contradictory, incredible and unreliable and six, that the charge against the appellant was not proved beyond reasonable doubts. The appellant appeared in person, unrepresented whereas the respondent Republic was represented by Ms. Janeth Sekule, Senior State Attorney, assisted by Ms. Tusaje Samuel, State Attorney. When the appellant was called to address the Court on the grounds of appeal, he opted for the respondent Republic to respond to the grounds of appeal while retaining his right of rejoinder, if need be. On taking the floor, Ms. Sekule supported the appeal on ground 3. Making reference to page 18 of the record, she contended that the appellant was denied a right to be heard after his arrest unfairly. She submitted that much as it was correct to proceed for hearing under section 226 (1) of the CPA in view of the absence of the appellant, it was not fair to deny him a right to give his defence after his arrest because the judgment was yet to be pronounced. She relied on the decision of the Court made in Shija Ndali @ Malongo v. The Republic (Criminal Appeal No, 52 of 2021) [2023] TZCA 17744 (6t h October, 2023; TanzLII) to support her stance. She urged the Court to allow the appeal, set aside the conviction and sentence and order the case to be heard again to accord the appellant his right of defence.

The appellant being a lay man, could not respond to what was submitted by Ms. Sekule, He urged the Court to decide the case based on his grounds of appeal and set him free. We have examined the record closely and considered the submission of the learned Senior State Attorney. The applicable law, as correctly pointed out by the learned Senior State Attorney is section 266 (1) (2) (4) of the CPA. It reads as under: "266 (1) where at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court in which the order o f adjournment was made, it shall be lawful for the court to proceed with the hearing or further hearing as if the accused person was present; and the complainant does not appear, the court may dismiss the charge and discharge the accused with or without costs as the court thinks fit (2) Where the court convict the accused person in his absence, it may set aside the conviction^ upon being satisfied that his absence was from causes over which he had no control and that he had a probable defence on merit (3) N/A

(4) The Court, in its discretion, may refrain from con victing the accused in his absence, and in every such case the court shaii issue a warrant for the apprehension o f the accused person and causes him to be brought before the court. (5) N/A (6) N/A." [Emphasis supplied] Following our earlier decisions in Marwa s/o Mahende v. Republic [1998] T.LR. 249; Lemoyo Lenuna and Lekitoni Lenuna v. Republic [1994] T.L.R. 54; Norbert Komba v. Republic (Criminal Appeal No. 226 of 2008) [2014] TZCA 163 (30th June, 2014:TanzLII) Fweda Mwanajoma and Another v. Republic (Criminal Appeal No. 174 of 2008) [2010] TZCA 96 (23rd March,20lO:TanzLLII) and Magoiga Magutu @ Wansima v. Republic (Criminal Appeal No. 65 of 2015) [2016] TZCA 608 (25th May, 2Q16:Tanz!_II) in an akin situation, the Court had this to say in Shija Mdali Matongo (supra): " . . . we are settled that section 226(4) o f the C P A which empowers the trial court to refrain from convicting an accused person in absentia and causing him to be brought before the court is meant to afford an opportunity to the accused person upon his appearance before the court to expiain whether he had good cause for his

absence and whether he had a probable defence on the merit before the trial court may determine to proceed to convict him as charged or re-open the proceeding to hear the accused in his defence on the merit" [Emphasis supplied] Section 226 (1) allows the court to proceed with the hearing of the case in the absence of the accused but if he appears before or after a conviction is entered, sub section (2) imposes a duty on the trial court to ask him whether he had any explanation for his absence and a probable defence. Once that opportunity is afforded to the accused and the court is satisfied that there was good cause and a probable defence, the court may set aside the conviction if he is already convicted and give him a right to give his defence, And if there was no conviction, as was in this case, the court will refrain from pronouncing its judgment and receive the defence of the accused and incorporate in its judgment. On the other hand where there is no good explanation and a probable defence, the court, in its discretion, may rule out against the accused and procced accordingly. The issue now is whether the appellant was accorded the right to explain for his absence and show if he had a probable defence. This takes us to pages 24-25 of the record. They read as follows:

"Date: 15/12/2020 Coram: Jeni E. Edward, RM Pro: Agata, State Attorney CC: Mary Accused: Present State Attorney: For Judgment The accused absconded bail but today he is present in court, after being arrested following an order for warrant o f arrest that was issued by this Court. Court: Accused has been asked to show cause why she was not attending in court Accused: I was sick. Also, my sureties were not available as they had travelled. Hence there was no person to be sent in order to inform the court about my absence , My sureties travelled in October, 2020< I have no medical report or any document to prove that I was sick ; Also, I have no travelling tickets to prove that my sureties had travelled. State Attorney: Since the accused has no proof that he was sick , I therefore leave to the court to decide." Based on the above submissions, the trial court made a ruling dismissing the story of the appellant as being baseless, pronounced the judgment and sentenced the appellant as alluded above.

We think, as correctly pointed out by the learned Senior State Attorney, the trial court was in error because it did not inform the appellant of his right to establish a probable defence on merits. Failure to address the appellant on this element, which is a requirement under section 226 (2) of the CPA, and proceed to pronounce the judgment was contrary to principles of natural justice. It violated a fundamental right that no person shall be condemned without a hearing which is enshrined under Article 13(6) (a) of the Constitution of the United Republic of Tanzania, [CAP 2 R. E, 2002], The proceedings and the resultant judgment and sentence were thus vitiated and cannot be left to stand. See also Mbeya-Rukwa Auto Parts &Transport Limited v Jestina George Mwakyoma, (Civil Appeal No. 45 of 2000) TZCA 14 (9th August 2001: TanzLII) and Abbas Sherally & Another v Abdul Sultan Haji Mohamed Fazalboy, (Civil Application No 33 of 2002) TZCA 105 (17th November, 2005: TanzLII) on the right to be heard before an adverse decision is passed and the consequences. With this finding on ground 3, like the learned Senior State Attorney, we see no base for discussing other grounds of appeal. As to the way forward, we nullify the proceedings of the trial court conducted on 15/12/2020 and 16/12/2020 appearing at pages 24 and

25 of the record and those of the High Court. We also quash and set aside the judgments of the lower courts and the sentence imposed to the appellant. We order the appellant to be heard in his defence before another magistrate of competent jurisdiction who shall decide the case based on the evidence on record according to law. DATED at MOSHI this 29th day of November, 2024 The Judgment delivered this 29th day of November, 2024 in the presence of the appellant in person and Ms. Tusaje Samwel, learned State Attorney for the Respondent/Republic, is hereby certified as a true B. M. A. SEHEL JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL