Paschal s/o Juma vs Republic (Criminal Appeal No. 183 of 2022) [2024] TZCA 901 (17 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA. 3.A.. FIKIRINI. J.A.. And KENTE. J.A.^ CRIMINAL APPEAL NO. 183 OF 2022 PASCHAL S/O J U M A .................................................................... APPELLANT VERSUS THE REPUBLIC ....................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Tabora at Tabora) f Noaeie, SRM-Ext. Jurist dated the 10th day of May, 2022 in Criminal Appeal No. 72 of 2021 JUDGMENT OF THE COURT 14th August & 17th September, 2024 KENTE. J.A.: This appeal is against the judgment of the Resident Magistrate's Court of Tabora (Hon. Ngaeje - SRM with Extended Jurisdiction), which sustained the appellant's conviction by the District Court of Urambo in respect of the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Revised Laws of Tanzania and impregnating a school girl, contrary to section 60 A (3) of the Education Act, Chapter 353 of the Revised Laws. The appellant was i

originally sentenced to thirty years' imprisonment for each count, the sentences which were ordered to run concurrently and were subsequently confirmed by the Resident Magistrate's Court upon appeal. The particulars of the offences alleged that, between June and December, 2020 at Ukwanga Village in Urambo District, Tabora Region, the appellant had carnal knowledge of a sixteen years old girl who was a pupil at Ushirika Primary School and that, as a result, she became pregnant. The appellant's conviction was based on the testimony of the said girl to whom we shall hereinafter refer alternatively as the victim or PW1. Other witnesses for the prosecution were Paulo Matole Sima (PW2) the victim's teacher at the said Primary School, the victim's father one Faraji Ramadhani (PW3) and Salum Mponeja (PW5), a Clinical Officer based at Urambo District Hospital who examined the victim and confirmed her pregnancy. Briefly, PWl's evidence was, to the effect that, she met the appellant for the first time in June, 2020 whereupon he begun to seduce her saying that he loved her so much so that he was ready to marry her. She recounted that, without taking heed of what the appellant had told

her, she forthrightly accepted his sexual advances. They then started like mad, having sexual intercourse on a regular basis, in the nearby bushes and wood plants, without anyone knowing. PW1 told the trial court that, the last time to have sexual intercourse with the appellant was in December, 2020 and that, it was sometime in March, 2021 when she discovered that she was pregnant. She said that, on being questioned by her parents and teachers about the person responsible for her unexpected childhood pregnancy, knowing well that pregnancy is not contagious, she named the appellant, without hesitation. After short investigation of the matter by the Police Force at Urambo, the appellant who had already been arrested, was arraigned in the District Court of Urambo where he was charged with the earlier mentioned offences. In his brief defence, the appellant who testified on his own behalf and called no other witness, is on record as having told the trial court that, he never had sexual intercourse with the victim. He also denied to have impregnated her. He explained that, on 13th March, 2021 at about 10 a.m, one Juma Charles went to his home and informed him that he was needed at the office of the Village Executive Officer. That, when he went there, the Village Executive Officer took him to Ushirika Primary School where he was severely beaten up following the allegations that

he had impregnated a school girl, the accusations which he strongly denied. The appellant further recounted that, from the school, he was whisked to the Police Station at Urambo and later on to the District Court where he was charged with and subsequently convicted of the earlier mentioned offences. He said that, he vainly urged the trial court to find him not guilty and consequently acquit him, yelling a frame up, but all to no avail. Having considered and analysed the evidence adduced by the parties to the case, the learned trial Resident Magistrate of the District Court accepted the prosecution's evidence as having established the fact that, the victim had been raped and impregnated and that, the person responsible for the two offences was none other than the appellant. His conviction was accordingly based on these findings of fact. Aggrieved by the conviction and sentence, the appellant appealed to the High Court of Tanzania (at Tabora) advancing the following substantive grounds of appeal:

1. That, the age of the victim was not proved to the required standard;

2. That, the age of the pregnancy was not established so as to prove if it could tally with the dates of the alleged rape;

3. That, it was not established that the victim had named the appellant at the earliest opportunity;

4. The offence of rape was not proved beyond doubt as there was no proof of penetration, and that;

5. The sentence meted out on the appellant in respect of the second count, was manifestly excessive. On 31s t August, 2021 the High Court of Tanzania at Tabora, purportedly acting under the provisions of section 173 (1) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (hereinafter the CPA), transferred the appeal to the Resident Magistrate's Court of Tabora to be heard by Hon. G. P . Ngaeje, a Senior Resident Magistrate with Extended Jurisdiction. In the latter court, the matter was heard to finality culminating in the decision which is the subject of the present appeal. After hearing the parties, the learned Senior Resident Magistrate came to the conclusion that, the evidence led by the prosecution before the trial court had proved the case against the appellant beyond

reasonable doubt. He accordingly went on dismissing the appeal in its entirety for what he called, lacking in merit. Unhappy with the judgment of the Resident Magistrate's Court, the appellant has now appealed to us on four grounds in which the gravamen of his complaint is that, his conviction by the trial court which was subsequently sustained by the first appellate court, was against the evidence on the record. Moreover, at the hearing of this appeal, the appellant who appeared in person without legal representation, prayed informally to argue an additional ground of appeal which challenges the decision of the first appellate court for lack of jurisdiction. From this ground of appeal, it occurs to us that the appellant is complaining that, the appeal which was originally filed in the High Court as Criminal Appeal No. 56 of 2021 was wrongly transferred to the Resident Magistrate's Court to be heard by a Resident Magistrate with Extended Jurisdiction under section 173 (1) of the CPA which is not the applicable law. After the appellant chose to hear the submissions by the learned State Attorney in reply to the grounds of appeal while retaining the right to make a rejoinder if necessary, we invited Mr. Metro Ukongoji learned

State Attorney who appeared along with his fellow State Attorney Ms. Upendo Florian to represent the respondent, to address us in response to the complaint raised by the appellant in the supplementary ground of appeal. In response, the learned State Attorney supported the appellant's complaint submitting that, indeed the transfer of the appeal from the High Court to the Court of the Resident Magistrate to be heard by Hon. Ngaeje, SRM with Extended Jurisdiction, was wrongly made. According to him, it ought to have been made under section 256 A (1) of the CPA. But when we drew the attention of Mr. Ukongoji to the provisions of section 256 A (1) of the CPA which specifically deals with transfers of cases by the High Court in exercise of its original jurisdiction to the Resident Magistrate upon whom extended jurisdiction has been granted by the Minister under subsection (1) of section 173 of the CPA for the purposes of plea taking and trial, the learned State Attorney was quick, to realise, upon second thought that, even section 256 A (1) of the CPA was not the applicable law in the circumstances of this case. We then gradually got the learned State Attorney to realise that, the applicable law was section 45 (2) of the Magistrate's Courts Act, Chapter 11 of the Revised Laws (the MCA), which provides that:

"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)" Following the above discussion, it dawned on Mr. Ukongoji and he accordingly submitted that, the transfer of the appeal to the Resident Magistrate's Court of Tabora was ineffectual for having been made under the wrong provisions of the law. To that end, the learned State Attorney implored us to nullify the proceedings of the first appellate court and set aside its judgment which had sustained the appellant's conviction and sentence by the trial court. In lieu thereof, he urged that we remit the case file to the High Court at Tabora for the appeal to be dealt with, once more, according to law. For our part, we accept the invitation by Mr. Ukongoji without demur. Faced with a somewhat similar situation in the case of Abeid Yahaya v. Republic, Criminal Appeal No. 549 of 2016 in which the transfer from the High Court to the Resident Magistrate's Court was purportedly made under section 173 (1) instead of section 256 A (1) both of the CPA, we held that, the improper citation of the provisions ordering the transfer of the case from the High Court to the Resident

Magistrate's Court, was tantamount to there having been no order of transfer at all thereby making the Resident Magistrate to have had no jurisdiction to try the case, (see also the case of Juma Lyamwiwe v, Republic, Criminal Appeal No. 42 of 2001 (unreported). Following from what we have discussed above, we allow the appeal and nullify the proceedings of the Resident Magistrate's Court for want of jurisdiction. Moreover, we quash the judgment of the said court and set aside the resultant orders. Having found that essentially, the learned Senior Resident Magistrate was not clothed with the requisite jurisdiction to determine the matter as there was no transfer of the appeal from the High Court to the Resident Magistrate's Court and, after quashing the proceedings and setting aside the resultant orders, the appropriate course to take is to remit the case file to the High Court as we hereby do, for the appeal to be dealt with expeditiously, according to law. As for the two matters which we found unnerving and brought to the attention of Mr. Ukongoji that were in respect of the omission or failure by the trial court to ascertain the appellant's age at the time of commission of the offence charged in the first count which would help 9

the court to determine the proper sentence to impose on the appellant and the question as to whether or not, in view of the evidence on the record, the offence in the second count which charged the appellant with impregnating a school girl, was proved beyond doubt as to warrant a conviction, we leave them for consideration and determination by the first appellate court, obviously after hearing the parties. Only to the above extent, the appeal is allowed. DATED at DAR ES SALAAM this 13th day of September, 2024. S. A. LILA JUSTICE OF APPEAL P . S. FIKIRINI JUSTICE OF APPEAL P . M. KENTE JUSTICE OF APPEAL Judgment delivered this 17th day of September, 2024 in presence of Appellant in person and Mr. Nurdin Mmari, learned State Attorney for the Respondent/Republic linked via video conference from High Court Tabora is hereby certified as a true copy of the original.