Sadam Adam vs Republic (Criminal Appeal No.637 of 2020) [2024] TZCA 845 (30 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MKUYE. 3.A.. KITUSI. 3.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 637 OF 2020 5ADAM ADAM ..................................................... .............. APPELLANT VERSUS THE REPUBLIC ................................. ................... ............ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Mashauri. 3 ^ dated the 29th day of September, 2020 in Criminal Appeal No. 121 of 2020 JUDGMENT OF THE COURT l S h & 3Cfh August, 2024 MKUYE, J.A.: The appellant, Sadam Adam, was charged and convicted by the District Court for Nyamagana District of rape contrary to section 130 (2) (e) and 131 of the Penal Code, Cap 16 (the Penal Code). It was alleged that the appellant on diverse dates of April, 2019 at Unguja Area within Nyamagana District in the City and Region of Mwanza had unlawful sexual intercourse with one V.S (her name is withheld to hide her identity but shall be referred to as the "victim" or "PW1"). Upon conviction, he was sentenced to life imprisonment and being aggrieved by that decision, he unsuccessfully appealed to the High Court. Still protesting his innocence, he has now appealed to this Court.

Briefly, the appellant in this matter is the paternal father of the victim but had separated with the victim's mother. The victim together with her brother A.S (PW4) used to live with their mother Neema Charles (PW3). On 4/4/2019, their mother took them to their father's home as they were on school vacation. It was alleged by the prosecution that while the victim was at the appellant's home, on diverse dates within the month of April, 2019, the appellant had carnal knowledge on her daughter (PW1). PW1 testified that, she lived with her father and brother in a single room whereby she used to sleep on the floor while the appellant and her brother occupied the bed. However, on various occasions the appellant carried her into the bed and had carnal knowledge of her. According to PW1, she reported the incident to her maternal aunt. It is not known how the incident was revealed to authorities but according to Aisha Mtumwa (PW2), a Children's Rights Protection Activist, on 11/4/2019 she was called to the Social Welfare Offices where she was informed of PW l’s rape. PW2, then, reported the incident to the police and the victim was issued with PF3 for medical examination. Then, PW3 was informed of the incident and the appellant was arrested. Upon arraignment and conclusion of trial, the appellant was convicted and sentenced, as alluded to earlier on. 2

Before this Court, the appellant has marshalled four grounds of appeal. However, for a reason that will become apparent soon, we propose not to reproduce them. At the hearing of the appeal, the appellant appeared in person without any legal representation and the respondent Republic was represented by Ms. Sophia Mgassa, learned Senior State Attorney. The appellant prayed to adopt his grounds of appeal and to let the learned Senior State Attorney respond first, reserving his right to rejoin, if need arises. Ms. Mgassa commenced by making her position known that she did not support the appeal. Before progressing further with her submissions, we required her to address us on whether the High Court determined the grounds of appeal which were lodged before it by the appellant. In her response, Ms. Mgassa stated that at the hearing of the appeal before the High Court it seems that the grounds of appeal were consolidated and determined generally without addressing some of the grounds. However, in her view, grounds Nos. 3 and 5 by their nature required to be determined separately. She was candid to point out that that omission rendered the appeal before the High Court not to have been heard and determined properly. She further observed that, the appellant was not fully accorded his right of fair hearing before the High

Court. In the circumstances, as to the way forward, she implored upon the Court to invoke its revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 (the AJA) and nullify the proceedings and judgment of the High Court. The matter then be remitted to the High Court for a proper determination. On his part, the appellant had nothing useful to add apart from making a prayer that he be set free. Having heard the position of the learned Senior State Attorney pertaining to the issue that we had required her to address us, we are inclined to agree with her. We will explain. We begin by observing that, according to the appellant's petition of appeal that was lodged before the High Court on 17/8/2020, as shown at page 57 of the record of appeal, the appellant had raised seven grounds of appeal that he wanted the High Court to consider. The appellant's complaints were focused on a number of issues among them being: One, that the evidence was shaky and contradictory. Two, that his basic right to a fair hearing was infringed. Three, the credibility of PW1 was not assessed. Four, that the charge was a frame-up. However, the judgment of the High Court bears that in its determination of the appeal it dealt with some grounds generally without addressing the specific complaints in each ground as preferred by the appellant. In particular, grounds nos. 3

and 5 which touched the appellant's right of fair hearing and assessment of credibility of PW2 were not addressed. The position of the law regarding failure to consider grounds of appeal is settled that the judgment is rendered null and void - See: Simon Edson @Makundi v. Republic, Criminal Appeal No. 5 of 2017 [2020] TZCA 1730 (18 August 2020); Firmon Mlowe v. Republic, Criminal Appeal No. 502 of 2020 [2022] TZCA 694 (9 November 2022); Salum Njwete @ Scorpion v. Republic, Criminal Appeal No. 182 of 2019 [2022] TZCA 650 (24 October 2022) and Elly Msalilwa v. Republic, Criminal Appeal No. 265 of 2021 [2023] TZCA 17991 (14 December 2022). For instance, in the case of Salum Njwete @ Scorpion (supra), the Court considered this issue and while referring to the case of Nyakwama s/o Ondare @ Okware v. Republic, Criminal Appeal No. 507 of 2019 [2021] TZCA 592 (21 October 2021), it stated as follows: 'We therefore, agree with Mr. Byamungu that failure to consider appellant's grounds of appeal was a fatal irregularity rendering the first appeal court’ s judgment a nullity. In this regard, we wish to emphasize that though it is not the duty of the first appellate court to resolve the issues as framed by the trial court, yet it is expected and bound to address and resolve the complaints o f the 5

appellant in the grounds of appeal either separately or jointly depending on the circumstances o f each appeal In this case, much as some grounds of appeal were dealt with jointly, as was rightly submitted by the learned Senior State Attorney, we think grounds nos. 3 and 5 in which the appellant's complaint was on the denial of his basic right of fair trial; and the assessment of credibility of PW1 who was the key witness in this matter, ought to have been dealt with separately. This was not done. We are alive that in terms of section 6 (1) of AJA, this Court is mandated to hear and determine appeals from the High Court or by a subordinate court exercising extended powers. An attempt to determine an appeal whose grounds of appeal before the High Court were not considered is tantamount to the Court sitting as a first appellate court on the matter. Being guided by the above cited decisions, we have no hesitation to hold the view that the appellant was denied the right to be heard and the resulting effect is that both the proceedings and judgment before the High Court are rendered, a nullity. As to the way forward, we accede to the proposal by the learned Senior State Attorney. Hence, we invoke our revisional powers bestowed on us under section 4 (2) of the AJA and nullify the proceedings and

judgment of the High Court and remit the matter to the High Court for an expedited hearing of the appeal before another Judge. It is so ordered. DATED at MWANZA this 28th day of August, 2024 R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 30 day of August, 2024 in the presence of the Appellant who appeared in person and Ms. Hellena Mabula learned State Attorney for the Respondent/Republic, is hereby certified asj^ F^ f& jjy of the original. 1 S I N JQ lW * - A. S. qjUGULU DEPUTY REGISTRAR COURT OF APPEAL 7