Deogratius Peter Shayo vs Republic (Criminal Appeal No. 509 of 2021) [2024] TZCA 1156 (28 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: SEHEL 3.A.. FIKIRINI. J.A, And MLACHA, J.A^ CRIMINAL APPEAL NO. 509 OF 2021 DEOGRATIUS PETER SHAYO ..................................................... APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania Moshi, at Moshi) fMwenemoazi. 3) Dated 6th day of September, 2021 in DC. Criminal Appeal No. 30 of 2021 JUDGMENT OF THE COURT 26th & 28th November, 2024 FIKIRINI, J.A.; In the District Court of Siha, at Siha, the appellant, Deogratius Peter Shayo, was charged with one count of rape contrary to sections 130 (1) (2) (b) and 131 (1) of the Penal Code Cap. 16 Revised Laws. The alleged rape was committed to RAM a woman of 18 years old without her consent. The appellant pleaded guilty to the charge. He was convicted and sentenced to 30 years imprisonment. Despite pleading guilty to the charge, in hindsight, the appellant seemed not to have been satisfied with the conviction and sentence meted to him. He preferred an appeal to the High Court after his

application for an extension of time was granted on 9th March, 2021. His memorandum of appeal contained four (4) grounds, all of which mainly focused on his plea of guilty, which led to his conviction and sentence. The High Court dismissed his appeal on 6th September, 2021. Discontent with the High Court decision and unstoppable the appellant approached this Court with six (6) grievances in his initial memorandum of appeal lodged on 21s t April, 2022 followed by a supplementary memorandum of appeal containing three (3) grounds lodged on 28th November, 2022. On 19th November, 2024, the appellant filed his written submissions in support of his grounds of appeal. The following are the paraphrased grounds: one, that the appellant was not heard before the High Court when the appeal was called on for hearing on 6th September, 2021, two, the appellant was denied his deserved chance of addressing the court first or rather asked if he would wish the respondent to go first and he will rejoin if need arise, three, that the first appellate court failed to explain to the appellant if the plea was unequivocal and that he understood the charge read to him and he had no defence, four, that the first appellate court failed to note that the accused who pleaded guilty should not be convicted on their own plea of guilty on capital charges, five, that both courts failed to observe that

the charge should be read and explained to the accused person and should be asked if he understood the elements of the charge and whether he pleaded to every ingredient of the charge unequivocally, and six, that the plea "it is true" admitted by the accused person did not amount to plea of guilty of all the ingredients of the charge. In the supplementary memorandum of appeal, the grievances were: one, that the trial court's entertaining the plea of guilty on admitted facts, while the plea was imperfect, ambiguous, or unfinished; two, the appellant's plea of guilty was as a result of misapprehension and three, that based on the admitted facts the appellant could not in law have been convicted of the offence charged. During the hearing, the appellant appeared in person unrepresented. On the respondent/Republic's part, Ms. Janeth Sekule, learned Senior State Attorney, appeared assisted by Ms. Tusaje Samwel, learned State Attorney. When allowed to address the Court expounding on his grounds of appeal and his written submissions, the appellant preferred the respondent/Republic to go first, and he would rejoin if the need arose. Ms. Samwel addressed us on behalf of the respondent. She informed the Court that they did not support the appeal but supported

the conviction and sentence meted out. She went on to submit that all the grounds of appeal in the initial memorandum of appeal, supplementary memorandum of appeal and written submissions were in regard to the "plea of guilty", which led to the appellant's conviction and sentence. However, pursuant to section 360 (1) of the Criminal Procedure Act, Cap. 20 Revised Laws, (the CPA) no appeal can be generated from an unequivocal plea of guilty unless the Court is satisfied that the plea of guilty entered was improper. Likewise, the Court can interfere where the sentence is problematic. The learned State Attorney contended that the appellant admitted to have pleaded guilty but controverted the plea as incorrect as he did not name the victim. This was, however, not what the record of appeal on page 5 reflects. From the record, the appellant was brought before the court on 14th November, 2019. The charge was read over to him, and he pleaded guilty. The trial court entered a "plea of guilty." Facts illustrating how and when the offence was committed were read out that the appellant, without the victim's consent, forcefully undressed her and unlawfully had sexual intercourse with her. When asked if the facts read to him were correct, as shown on page 5 of the record, the appellant narrated what he did and that he raped the victim.

The learned State Attorney underscored that there was no ambiguity in the guilty plea entered. To her, the appellant understood the charges levelled against him and pleaded guilty, followed by an explanation of what he did. Dissecting the case of Amani Onesmo @ Rume v. R, Criminal Appeal No. 248 of 2020, cited by the appellant in his written submissions, she contended that the facts in the present appeal were different to those in the cited case. The cited case was, therefore, immaterial. On the victim's name, the complaint raised by the appellant stated that there were two different sets of names, RA and RAM; she dismissed the grievance as non-existent as both names refer to the same person. Moreover, the appellant, on page 5 of the record, admitted raping RA. If the omission is considered an issue, the same is curable under section 388 (1) of the CPA. Furthering her contention on the appellant's complaint that seven significant steps in plea taking were not observed as articulated in the case of Adan v. R, [1973] 1 EA 445, she forcefully argued that all the steps were followed. Before the trial court, the proceedings commenced with reading over the charge and explaining it to the appellant in the language he understood. The charge stipulated the elements of the

offence. The appellant was asked to plead to the charge of which he pleaded guilty, and a "plea of guilty" was entered. The "plea of guilty" entered propelled reading out of the facts, of which the appellant was asked if there were additional facts or if the appellant intended to change his plea. Since there was no change of plea, the trial court convicted the appellant based on what he stated in the facts when read over to him. All the required steps were followed, and there was nothing to fault the trial court. On the complaint that the appellant was not heard on appeal, the learned State Attorney disputed the assertion, contending that the matter came for hearing on 2n d August, 2021 but was adjourned to 6th September, 2021, a month later. The appellant had, therefore, a month to prepare himself. On the date set for the hearing, the appellant informed the court that he had nothing to add. It was, thus, her position that the appellant was afforded the right to be heard, only that his appeal had no merit. She maintained that the plea of guilty was correct and that the conviction and sentence were proper. Referring to the case of Onesmo Alex Ngimba v. R, (Criminal Appeal No. 157 of 2019) TZCA 26 (16th February, 2022; TANZLii) in which all the steps to be

observed had been demonstrated and under what situation an omission could count. ITie Court probed whether the appellant's age was confirmed and how. The learned State Attorney admitted that though the appellant's age was not verified, and the record is silent on that fact, his age was impliedly what was stated on the record and facts admitted on page 5 of the record. She was again asked if she considered the appellant to have been afforded the right to be heard, referencing what took place on 6th September, 2021 when the appeal came for hearing. Without hesitation, she admitted that the appellant was not afforded the right to be heard complained about. The appellant had nothing to rejoin besides urging the Court to consider his grounds of appeal. We are invited to determine whether the appeal before the Court is with merit. The appellant is challenging the "plea of guilty" entered against him, which led to his conviction and subsequent sentence of thirty (30) years in prison. However, considering the irregularity on record, which was also raised as grounds one and two, which read as follows:

1. That the 1s t appellate Judge grossly erred both in law and fact in prosecuting the appellant's appeal on 6. 09.2021 without first asking the appellant whether he was ready and prepared for the hearing of his appeal. Therefore, the 1s t appellate court and the respondents herein ambushed the appellant. As a result, the appellant was dumb, with nothing to argue or reply to.
2. That, the 1s t appellate Judge grossly erred both in law and fact in accord the appellant with an unfair trial during the appeal stage since the appellant was the one supposed to be given the 1s t chance to address the court on his grounds of appeal. Astonishingly, nothing was asked of the appellant, whether he wished to address the appellate court first or just allow the respondent to start and whether he would wish to rejoin if the need arose. Fortunately, this is not an unchartered area as we had previously decided on the like scenarios. In the case of Ex. D. 8656 CPL Senga Idd Myembo & 7 Others, (Criminal Appeal No. 16 of 2018) TZCA 381 (7th August, 2020; TANZLii), the Court quoted from other previously decided cases, one of which is the Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T. L. R. 251, in

which the Court in underscoring upholding of natural justice, that one must be heard before being condemned had this to state: - "In this country, natural justice is not merely a principle o f common law; it has become a fundamental constitutional right Article 13 (6) (a) includes the right to be heard amongst the attributes o f the equality before the law...." Similarly, in the famous case of Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 (unreported), the Court, emphasizing the right to be heard, made a decision that followed the principles set out in the case of Mbeya- Rukwa Autoparts & Transport Ltd (supra) and in Dishon John Mtaita v. The Director of Public Prosecution, Criminal Appeal No. 132 of 2004 (unreported), the Court stressing on the right to be heard held that: - "77?e right o f a party to be heard before an adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it will be nullified, even if the same decision would have been reached had the party

been heard because the violation is considered to be a breach o f the principles o f naturaljustice." The consequence of such procedural irregularity is that it vitiates the proceedings. Before us, the issue is whether the irregularity complained of by the appellant and admitted by the learned State Attorney could vitiate the proceedings. Any irregularity's fatality depends highly upon whether or not it occasioned a miscarriage of justice. And if it has, then it is incurable. In the present appeal, the questionable proceedings are found on pages 27 - 28 of the record, whereby the order of address has been blemished. For ease of grasping the complaint, we let the record speak for itself: "Date: 6/9/2021 Coram: Mwenempazi, J Applicant: Present For applicant: Respondent: For respondent: Kassim Nassir State Attorney C/c: Bahati

Kassim Nassir State Attorney: The case is for hearing. We do not have a copy o f the Judgment o f the trial court and a complete proceeding. We pray to be served. Court: Let copies o f charge sheet, Judgment (Ruling) and proceedings be served. Kassim State Attorney: We are ready to proceed now. According to section 360(1) o f CPA, the appellant has been barred from appealing where he pleaded guilty. He is only allowed to appeal against the sentence. Looking at the grounds o f appeal, the appeal is misplaced. Even if we look at the grounds o f appeal, particularly the 1st ground o f appeal, where the appellant complaints that the plea was unequivocal. The accused the commission o f the offence (sic!). It is our argument that the plea was complete. AH ingredients o f the offence o f rape were proved. In the case o f Nyerere Nyague Vs. Republic. The best evidence in court is the confession o f the accused himself.

For the reasons ail other grounds are relations (sic!). We pray this court to dismiss the appeal. The grounds o f appeal are vexatious. Appellant : Nothing to add. Order: Judgment at 11:30 a.m . " Ordinarily, the appellant starts to address the court by expounding on his/her grounds of appeal. The respondent responds to the submissions by the appellant before the appellant is allowed to rejoin. In the present appeal, the appellant and respondent were in court, yet the record is silent on the appellant's participation, considering he was the one who appealed. All these should be reflected on the record of proceedings, that the appellant started, the respondent replied and the appellant rejoined, unless otherwise directed. It is well settled that court proceedings are presumed to be accurate and authentic, representing what transpired in court. There is a plethora of decisions on that. See, Alex Ndendya v. R (Criminal Appeal 207 of 2018) [2020] TZCA 202 (6th May, 2020: TANZLii); Stanley Murithi Mwaura v. R (Criminal Appeal 144 of 2019) [2021] TZCA 688 (22n d November, 2021; TANZLii) and Security Group T. Limited v. Steven Gerson Kizinga (Consolidated Civil Appeal No. 386 of 2020 &

50 of 2021) [2024] TZCA to mention a few. In Alex Ndendya (supra), the Court of Appeal held thus: - "It is settled law in this jurisdiction that a court record is always presumed to accurately represent what actually transpired in court. This is what is referred to in legal parlance as the sanctity o f the court record." By skipping the appellant's turn to address the court first, it is obvious the appellant's right to address the court on his grounds of appeal without him opting not to want to address the court or that the respondent goes first and he will rejoin if the need arose, was infringed. While the fatality of the omission, as stated above, depends highly upon whether or not it occasioned a miscarriage of justice. And if it has, then it is incurable. We think this has occasioned a miscarriage of justice, as it has interfered with the appellant's right to be heard and hence incurable. Having concluded that the appellant's right to be heard was infringed, we find the proceedings and judgment stemming from those proceedings before the High Court a nullity. We, therefore, quash the proceedings and judgment and set aside the orders resulting from the decision. As to the way forward, we find the appropriate course to take

is to remit the record to the High Court for a hearing of the appeal before another judge. The appeal is thus allowed, and the record is ordered to be remitted to the High Court for hearing of the appeal. DATED at MOSHI this 26th day of November, 2024 The Judgment delivered this 28th day of November, 2024 in the presence of the appellant in person and Mr. Makore Maheri, learned State Attorney for the Respondent/Republic, is hereby certified as a true r t f f k a r v r i n i m l B. M. A. SEHEL JUSTICE OF APPEAL P.S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL