Alikiba Braison vs Republic (Criminal Appeal No. 491 of 2021) [2024] TZCA 1042 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LEVIRA J.A., MAIGE. 3.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 491 OF 2021 ALIKIBA BRAISON.......................................................................... APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Ebrahim. 3 .^ dated 6th day of August, 2021 in Criminal Appeal No. 128 of 2020 JUDGMENT OF THE COURT 1st & 5th November, 2024 MASOUD, J.A.: The appellant was convicted of raping a 13-year-old girl contrary to sections 130(1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 by the District Court of Mbozi at Vwawa and was sentenced to imprisonment for 30 years as per Baha, RM on 23rd June, 2020. The allegation in respect of which the appellant was charged and the particulars of the offence thereof were to the effect that at about 23:00hrs in the fateful night of 1s t August, 2015, the appellant carnally known the above-mentioned girl at Sante village Kamsamba within Momba District in Mbeya Region. The evidence that grounded the conviction, which was taken at the trial conducted by Mpangule, RM in the District Court of Momba at Chapwa, was from the victim (PW1); the victim's friend (PW2); No. E 6859 DC Charles i

(PW3) and WP 5323 Sgt Sinai (PW5) who were police officers involved at different stages of investigation; and Dr. Leons Mwanda, a medical doctor (PW4) who examined the victim and completed PF3. The evidence of the defence was from the appellant (DW1). Aggrieved by the conviction and sentence, the appellant filed his appeal in the High Court, namely, Criminal Appeal No. 128 of 2020, which was heard and determined by Ebrahim J. In her judgment handed down on 6th August, 2021, the learned Judge was satisfied that the evidence that was led by the prosecution proved the charge laid against the appellant beyond reasonable doubt. It, therefore, sustained the conviction that was entered by Baha, RM on 23rd June, 2020 and confirmed the sentence of imprisonment for thirty (30) years. Still aggrieved, the appellant is before us appealing on various grounds against the decision of the first appellate court which sustained the conviction and sentence of the trial court. We undertake not to reproduce the grounds for reasons that will became obvious afterwards. At the hearing of the appeal, the appellant appeared in person unrepresented. On the other hand, the respondent Republic had the service of Ms. Prosista Paul, learned Senior State Attorney. Ahead of the commencement of the hearing, Ms. Paul, with our leave, addressed us on the propriety of the proceedings of the District Court of Mbozi at Vwawa before Baha, RM in Criminal Case No. 349 of 2015 and the 2

first appellate court that gave rise to the instant appeal. The thrust of the complaint, as it will become clear shortly, raises an issue as to whether the said District Court of Mbozi was competent to convict and sentence the appellant; and whether there was a valid judgment of the trial court that was a subject of the first appeal before the High Court and which gave rise to the impugned judgment that the appellant is currently appealing from. Ms. Paul submitted that the appellant was, originally, arraigned before the District Court of Momba at Chapwa (Mpangule, RM) where he was charged with and ultimately convicted of the offence of rape in Criminal Case No. 349 of 2015. Referring us to section 4 of the Magistrate Courts Act, Ms. Paul brought our attention to the fact that the offence was committed at Sante village within Momba District in Mbeya Region which is within the territorial jurisdiction of the District Court of Momba which tried him before Mpangule, RM. She went on to submit that as the appellant was aggrieved by the conviction and sentence meted out to him by Mpangule, RM on 22n d January, 2016, he preferred his first appeal to the High Court. However, Herbert, SRM (Ext. Jur.) in (DC) Ext. Jurisdiction Criminal Appeal No. 20 of 2017 identified a procedural irregularity in the proceedings. The same was to the effect that the trial court had sentenced the appellant without properly convicting him in his judgment. As a result, Herbert, SRM (Ex. Jur.) nullified the judgment and remitted the case file to the trial court for it to properly enter the 3

conviction in accordance with the law. We were, accordingly, referred to the relevant part of the judgment of Herbert, SRM (Ex. Jur.) of 14th September, 2017 at page 29 of the record of appeal. When the record of the trial court was remitted to the District Court of Momba at Chapwa pursuant to the judgment of Herbert, SRM (Ex. Jur.), the District Court, it was argued by Ms. Paul, opened Criminal Case No. 216 of 2017 which was a fresh case file in which it purportedly entered a conviction and sentence against the appellant without composing a fresh judgment as the previous one in Criminal Case No. 349 of 2015 was nullified as afore said. Thus, the original Criminal Case No. 349 of 2015 was abandoned by the trial court for unknown reason. As the appellant was still aggrieved with the outcome in Criminal Case No. 216 of 2017 which convicted and sentenced him for a term of imprisonment of thirty (30) years, he appealed once again to the High Court, submitted Ms. Paul. The appeal was transferred to Kahyoza, SRM- Ext. Jur., as (DC) Ext. Jurisdiction Criminal Appeal No. 40 of 2019. Thus, when the appeal came before him, he found that the trial court did not comply with the previous order in (DC) Ext. Jurisdiction Criminal Appeal No. 20 of 2017 because the conviction was entered in a Criminal Case No. 216 of 2017, instead of the original Criminal Case No. 349 of 2015. In his judgment which he handed down on 12th March, 2020, Kahyoza, SRM-Ext. Jur. quashed the proceedings in Criminal Case No. 216 of 2017 and ordered the trial court's 4

record in original Criminal Case No. 349 of 2015 to be remitted to the trial court for it to enter a proper conviction as is required by the law. It was further submitted by Ms. Paul that, it was as a result of the above decision that the trial court's record was to be remitted to the trial court. However, instead of being remitted to the District Court of Momba at Chapwa which is the trial court, it was remitted to the District Court of Mbozi, at Vwawa before Baha, RM although it has no territorial jurisdiction over the case. Whilst Baha, RM presided over the proceedings in the original criminal Case No. 349 of 2015 at that District Court and entered the conviction and sentenced the appellant to imprisonment term of thirty (30) years, there was, it was reasoned, no judgment on the trial court record for the judgment that was handed down on 22n d January, 2016 by Mpangule, DRM had already been nullified by Herbert, SRM-Ext. Jur. on 14th September, 2017. Ms. Paul argued that the purported proceedings by Baha, RM before District Court of Mbozi at Vwawa in which the appellant was convicted and sentenced, and which conviction and sentence, were challenged by the appellant in Criminal Appeal No. 128 of 2020, were all invalid. In Ms. Paul's view, since the judgment of the trial court was nullified, it was incumbent upon the said trial court, none other than the District Court of Mboma at Chapwa, to compose a fresh judgment. The failure to do so was a fatal irregularity vitiating the proceedings that took place before Baha, RM and those in Criminal Appeal No. 128 of 2020 in the first appellate court. She 5

argued, therefore, that the conviction entered and the imposed sentence were for those reasons improper and invalid. As to the way forward, Ms. Paul invited us to exercise our powers under section 4 (2) of the Appellate Jurisdiction Act (AJA). In so doing, she urged us to nullify the proceedings of the lower courts as per Baha, RM, and Ebrahim, J. and the order made by Hubert, SRM-Ext. Jur., and Kayhoza, SRM- Ext. Jur. directing the trial court to enter a proper conviction in accordance with the law. Having done so, it was submitted that we substitute for the latter, an order remitting the trial court record in the original Criminal Case No. 349 of 2015 to the trial court before another Resident Magistrate with competent jurisdiction for him to expeditiously compose a fresh judgment in accordance with the law. The appellant did not have anything useful to say on the submissions made by Ms. Paul on the procedural irregularity occasioned by the lower courts. Nonetheless, he urged the Court to see to it that justice is done on his part, mindful that he was not responsible for the irregularities raised by the respondent. We have scrutinized the record of appeal in relation to the submissions by the parties. We did so in the light of the issue whether there were indeed procedural irregularities that affect the proceedings in Criminal Appeal No. 349 of 2015 as per Baha, RM and those in the first appellate court as per 6

Ebrahim, 1 We also wondered as to what should be the way forward, in the event we find in favour of Ms. Paul's arguments. Our starting point was on whether the judgment of the trial court in Criminal Case No. 349 of 2015 was indeed nullified by Herbert, SRM-ExtJur. on 14th September, 2017 as argued by Ms. Paul. Having perused the relevant judgment of Herbert, SRM-Ext. Jur., we were unable to disagree with Ms. Paul, for it is quite clear that the Senior Resident Magistrate with Extended Jurisdiction did, in his judgment in (DC) Ext. Jurisdiction Criminal Appeal No. 20 of 2017, nullify the judgment of the trial court in Criminal Case No. 349 of 2015, having found that the conviction by the trial court as per Mpangule, RM was not properly entered. The relevant part of the judgment to that effect is at page 29 of the record of appeal which reads: "In the absence of conviction, one of the prerequisites of section 235 (1) o f the Criminal Procedure Act has not been adhered to, hence there was no valid judgment, therefore for the interest o f justice, the trial court judgment is nullified and the record o f trial court is remitted. ... with direction that, the trial magistrate to enter conviction as provided by the law". [Emphasis added] Consequent to the above decision, the trial court, in its purport to comply with it, commenced fresh proceedings in Criminal Case No. 216 of 7

2017 instead of acting on the original trial case file (i.e Criminal Case No. 349 of 2017) as is apparent at page 30A through 30J of the record of appeal. Thus, the conviction that was entered was not in respect of Criminal Case No. 349 of 2017. To make it worse, it was not supported by a judgment of the trial court as the one that was handed down by Mpangule, RM on 22n d January, 2016 had already been nullified by the judgment of Herbert, SRM- ext. Jur. of 14th September, 2017 in (DC) Ext. Jurisdiction Criminal Appeal No. 20 of 2017. It was not surprising that when the appellant appealed against the conviction and sentence procured under Criminal Case No. 216 of 2017, Kahyoza, SRM-Ext. Jur. observed the irregularity as to compliance with the previous order and as a result, he proceeded to quash the proceedings as there was no judgment to support the first appeal which was before him. That notwithstanding, the learned Senior Resident Magistrate with extended jurisdiction proceeded to order the trial court's record in Criminal Case No. 349 of 2015 to be remitted to the trial court for it to enter a fresh conviction in accordance with the law. In that respect, Kahyoza, SRM-Ext. Jur. stated in his judgment: "On my part, I have had an opportunity o f carefully examining the trial court's record. Indeed, as submitted by the learned State Attorney, the trial court never complied with this court's direction of entering a proper judgment Instead, it opened a fresh case, Criminal Case No. 216 of 2017. And

even before that new case could get anywhere, then the trial magistrate purported to enter a conviction. This was improper, and it is a procedure not known to law. Therefore, so far there is no judgment to support the appellant's appeal, given that thejudgment in Criminal Case No. 349 of2015 was nullified. Generally speaking, the proceedings in criminal case No. 216 of 2017 was uncalled for .... they are accordingly quashed. It is directed that the trial court's record be once again remitted to the trial magistrate for her to enter a proper conviction as required by the law...." It is from the above that the proceedings of the District Court of Mbozi, at Vwawa as per Baha, RM came into place which were, consequently, a subject of the first appeal before Ebrahim J., and hence, the instant appeal against first appellate judge's decision in Criminal Appeal No. 128 of 2020 handed down on 6th August, 2021. Our scrutiny of the proceedings conducted by Baha, RM which appear at page 35 through 40 of the record of appeal left us in no doubt that they were, as correctly submitted by Ms. Paul, not free from procedural irregularities affecting competence of the appeal before the High Court as per Ebrahim J. As submitted by Ms. Paul, the said proceedings were, in the first place, conducted by Baha, RM at the District Court of Mbozi at Vwawa instead of the District Court of Momba at Chapwa which had territorial jurisdiction over the case. In the second place, the conviction at page 38 of the record of 9

appeal was, purportedly, entered notwithstanding that there was no judgment of the trial court supporting the same. In the third place, it goes without saying that there was no judgment of the trial court against which the first appeal before Ebrahim, J. could have been preferred. The order in respect of which Baha, RM entered a conviction against the appellant could not, in the circumstances, be said to be a judgment of its own right. We say so because apart from being entered in the District Court of Mbozi at Vwawa instead of the District Court of Momba at Chapwa, it referred to the judgment of the latter which had already been nullified. The relevant part of the said order reads thus: "Court: The High Court.... ordered this court to comply with conviction order gainst the accused person (as per ruling of G.H. Hubert, SRM-Ext, Jurisdiction in (DC) Ext Jurisdiction CriminalAppeal No. 20/2017 and (DC) High Court Criminal Application No. 78/2016, as well as P. R. Kahyoza- SRM- Ext Jurisdiction Criminal Appeal No. 40/2019.... whereas this matter has now been placed before me to comply with such order. I have had ample opportunity of thoroughly going through the judgment composed by my predecessor Z. A. Mpangule-RM, and on the basis o f her analysis I have formed opinion that the prosecution side has discharged its duty andproved its case against the accused person to the required standards that is beyond reasonable doubt, and I 10

accordingly and incompliance with the mandatory provisions of section 235 (1) and 312 of the Criminal Procedure Act ... do hereby convict the accusedperson of the commission of the offence of rape c/ss. 130 (1) (2) (e) and 131 (1) o f the Penal Code. ... as charged. Order accordingly. Sgd E Y . BAHA- R.M". In view of the foregoing deliberations and findings, we find merit on the point raised by the learned Senior State Attorney as to the propriety of the proceedings of the trial court that led to the first appeal. It, therefore, follows that the appeal before the learned High Court Judge was incompetent for it stemmed from the conviction that was not based on any judgment of the trial court with competent jurisdiction. For the reasons stated above, we invoke our revisional powers under section 4 (2) of the ADA. We nullify the proceedings and judgment of the High Court in Criminal Appeal No.128 of 2020, the proceedings in Criminal Case No. 349 of 2015 of the District Court of Mbozi at Vwawa as per Baha, RM., and the orders made by Hubert, SRM-Ext.Jur., and Kayhoza, SRM- Ext.Jur., directing the trial court to enter a proper conviction in accordance with the law. Consequently, we order that the trial court record in Criminal Case No. 349 of 2015 of the District Court of Momba at Chapwa be remitted to the said trial court (i.e District Court of Momba at Chapwa) before another li

Resident Magistrate with competent jurisdiction for him to expeditiously compose a fresh judgment in accordance with the law. In the event that the appellant is ultimately found guilty and convicted of the offence as charged, the sentence to be imposed at the time of sentencing him should take into account the period spent by him in prison from 22n d January, 2016 when conviction was improperly entered for the first time by the trial court up to the date of the conviction by the trial court as we have just herein ordered. In the meantime, the appellant shall remain in custody pending the composition and delivery of a fresh judgment of the trial court in accordance with the law. DATED at MBEYA this 4th day of November, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of the appellant in person and Mr. George Ngwembe, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of