Sefania John Mduma vs Republic (Criminal Appeal No. 83 of 2022) [2024] TZCA 1079 (8 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: WAMBALI. 3.A. KENTE. 3.A. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 83 OF 2022 SEFANIA JOHN MDUMA ...................................................... APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the decision of the Court of the Resident Magistrate of Arusha with Extended Jurisdiction at Arusha) ( Massam, SRM-Ext. Jur.1 Dated the 4thday of July, 2022 in Criminal Appeal No. 33 of 2021 JUDGMENT OF THE COURT 22n d October & 8th November, 2024 WAMBALI, J.A.: The appellant, Sefania Johnson Mduma was convicted and sentenced to life imprisonment by the Court of the Resident Magistrate of Arusha at Arusha after being found guilty of unnatural offence of a boy aged 10 years, whom we will refer to as the victim or PW2, contrary to section 154 (1) of the Penal Code, Cap 16. The allegation which led tc conviction of the appellant was to the effect that, on unknown date of September, 2018 at Lovonovo Street Sokoni One area within the City, District and Region of Arusha, he did have carnal knowledge of the

victim against the order of nature. The appellant strongly disputed the allegation. The prosecution relied on the evidence of five witnesses, including the victim, and two exhibits, namely, the PF3 and the Identification Parade Register (exhibits PI and P2 respectively) to prove its case. Essentially, through the said witnesses and exhibits, the prosecution maintained that the appellant was fully responsible for committing the offence with which he was charged. In his defence, the appellant stated that the case against him was preferred because he refused to pay TZS. 1,000,000.00 to settle the allegation while he consistently denied to have committed the offence. At the height of the trial, having evaluated the evidence of the parties on the record, the trial magistrate was satisfied that the prosecution proved its case beyond reasonable doubt. Consequently, it found the appellant guilty, convicted and sentenced him in connection with the offence as alluded to above. The appellant's appeal to the High Court, that is, Criminal Appeal No. 30 of 2021 was transferred to the Court of the Resident Magistrate of Arusha and registered as Criminal Appeal No. 33 of 2021 on 6th May, 2021. More importantly, in terms of section 45(2) of the Magistrates

Court Act, Cap 11 (the MCA), the Judge Incharge formerly transferred it to be heard by F. Kabwe, Resident Magistrate with Extended Jurisdiction (RM. Ext. Jur.). Nevertheless, according to the record of appeal, it is Massam, Senior Resident Magistrate with Extended Jurisdiction (as she then was), who heard and determined the appeal instead of Kabwe, RM Ext. Jur. Be that as it may, the appeal was dismissed, hence this second appeal. The appellant's disagreement with the decision of the first appellate court is expressed through two memoranda of appeal containing a total of fourteen (14) grounds. However, during the hearing before us, it was apparent that the appeal can be disposed of on the basis of the complaint of the appellant in the fourth ground of appeal contained in the supplementary memorandum of appeal. The epicenter of the complaint of the appellant is that the Magistrate who heard and determined the appeal, the subject of the impugned judgment, had no jurisdiction. In the circumstances, we do not intend to reproduce or deal with the rest of the grounds of appeal in the memoranda of appeal. The appellant appeared in person, unrepresented whereas, the respondent Republic was duly represented by Ms. Lilian Kowero, Ms.

Eunice Makala and Ms. Naomi Mollel, learned Senior State Attorneys at the hearing of the appeal. As intimated above, the substance of the appellant's complaint in the fourth ground is that Massam, SRM Ext. Jur. who heard and determined the appeal had no jurisdiction because it was Kabwe, RM Ext. Jur., to whom the appeal was transferred by the Judge Incharge. Elaborating briefly on the complaint, the appellant submitted that the proceedings conducted by Massam, SRM Ext. Jur., are a nullity for offending the law. In the circumstances, he prayed that the appeal be allowed and the trial and first appellate courts' proceedings be nullified. Ultimately, he urged the Court to set him free. On behalf of the respondent Republic, Ms. Kowero supported the appeal on the strength of the complaint in the fourth ground of appeal. She submitted that, it is apparent in the record of appeal that it was Kabwe, RM Ext. Jur., to whom the Judge Incharge transferred the appeal on 6th May, 2021, in terms of section 45(2) of the MCA. In her submission, since there is no indication in the record of appeal that, later the Judge Incharge transferred or retransferred the appeal to be heard by Massam, SRM Ext. Jur., the proceedings she presided over are a nullity as she had no jurisdiction.

Finally, the learned Senior State Attorney prayed that the appeal be allowed followed by an order of the Court for the Judge Incharge to transfer the appeal to another Magistrate with extended jurisdiction in accordance with section 45(2) of the MCA. Having heard the parties' concurrent submissions in respect of the fourth ground of appeal, we entirely agree that Massam, SRM Ext. Jur., had no jurisdiction to hear and determine the appeal, the subject of the impugned judgment. The record of appeal indicates that though the appeal was transferred to Kabwe, RM Ext. Jur., he never presided over it. On the contrary, it is on the record of appeal that soon after the transfer of the appeal by the Judge Incharge, on 1s t June, 2021 and 28th June, 2021, the appeal was placed before Mahumbuga, Resident Magistrate for mention. Subsequently, on 28th June, 2021, the appeal was placed before Massam, SRM Ext. Jur., who on 30th July, 2021 ordered the parties to file written submissions for and against the appeal. Thereafter, she composed the judgment which was delivered to the parties by Meena, Resident Magistrate on 14th March, 2022.

The record of appeal is silent on how the appeal was transferred to Massam, SRM Ext. Jur. as the only transfer order is the one that was directed to Kabwe, RM Ext. Jur. Basically, there is no order of transfer to be relied upon as a basis of conferring jurisdiction to hear and determine the appeal directed to Massam, SRM Ext. Jur. The omission is a fatal as the law is clear on the requirement to transfer an appeal to be heard and determined by a specific magistrate. For clarity, section 45 (2) of the MCA states: "The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a Resident Magistrate upon whom extended jurisdiction has been conferred by section 45(1)." It is in this regard that in Hamis Said @ Juma v. The Republic (Criminal Appeal No. 627 of 2021) [2024] TZCA 819 (23 August 2024, TANZLII), the Court stated that: " ... for a resident Magistrate to have jurisdiction to preside over a case ordinarily presided by a Judge o f the High Court, two processes must be done. One; is vesting him with extended jurisdiction which is done by the Minister in consultation with the O and the AG, and two; the High Court has to transfer such case to such

a resident Magistrate vested with extended jurisdiction. For trial in criminal cases, transfer is made under section 256A (1) o f the CPA and for transfer o f appeals such as the one under considerationf the provision to be invoked by the High Court is section 45(2) o f the MCA and according to the cited provisions, transfer is done to a specific magistrate with extended jurisdiction." Moreover, in Emmanuel David v. The Republic (Criminal Appeal No. 295 of 2019) [2022] TZCA 201 (10 November 2022, TANZLII), the Court held that: " ... when a transferred appeal is heard by the Magistrate who is not named in the transfer order, then notwithstanding the fact that he is vested with extended jurisdiction, the proceedings becomes a nullity for having been conducted contrary to the transfer order." To this end, see also the decisions of the Court in Richard Sipiriano & 2 Others v. The Republic [2013] T.L.R. 457, Abraham Ramadhani @ Chino v. The Republic (Criminal Appeal No. 130 of 2013) [2013] TZCA 182 (12 December 2013, TANZLII) and Sefu Snayo v. The Republic (Criminal Appeal No. 477 of 2019 [2022] TZCA 632 (18thOctober 2022, TANZLII).

In the circumstances, in the absence of a transfer order by the Judge Incharge in terms of section 45 (2) of the MCA to Massam, SRM Ext. Jur., the proceedings in Criminal Appeal No. 30 of 2021 are a nullity because she had no jurisdiction to hear and determine the appeal though she was vested with extended jurisdiction. In the event, we allow the appeal on the strength of the fourth ground. Consequently, we nullify the proceedings of the first appellate court. Ultimately, we order that the Judge Incharge should retransfer the appeal to the Magistrate with extended jurisdiction in accordance with the law as soon as practicable. DATED at ARUSHA this 7th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 8th day of November, 2024 in the presence of the appellant in person and Mr. Mahfudhu Mbagwa, learned State Attorney for the respondent/Republic is hereby certified as a true copy