Joseph Marando Ikanda vs Republic (Criminal Appeal No. 555 of 2015) [2018] TZCA 680 (5 July 2018)

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MMILLA, J.A., MUGASHA, J.A., And MWANGESI, J.A.) CRIMINAL APPEAL NO. 555 OF 2015 JOSEPH MARANDO IKANDA ••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••.•••••••••.••.•.••••••..••..•••••.•.•.••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) 3 rd & 6 th July, 2018 MMILLA, J.A.: (Matupa, J.) dated the 3 rd day of November, 2015 in HC. Criminal Appeal No. 13 of 2015 JUDGMENT OF THE COURT Joseph Marando Ikanda (the appellant) is currently behind bars. He is serving a sentence of thirty (30) years in prison following his conviction by the District Court of Tarime, Mara Region, before which he was charged . with rape contrary to section 130 (1) (e) and 131 of the Penal Code Cap 16 of the Revised Edition, 2002 (the Penal Code). Aggrieved by the conviction 1

,, and sentence, he unsuccessfully appealed to the High Court, Mwanza Registry, hence this second appeal to the Court. The complainant, R. d/o A. (PWl) who was then 14 years old, was living at Panyakoo village in Rorya District in the Region of Mara together with her family. She was in standard VI at Panyakoo Primary School. Also living there was the appellant, a traditional healer who was invited by the victim's family to stay with them during the period he was contracted to offer treatment to one of the family members. The latter was given a hut within the family compound in which he was staying. Initially, the appellant was friendly to all family members, including the complainant who had known him as "Mzee Malando". On 19.01.2014 at about 4:00 pm, the appellant called her to his hut and asked her to go to the nearby shop to buy an airtime voucher for him.

She honoured the request and proceeded to the shop. Unfortunately, she missed that item and returned to the hut at which the appellant was waiting for her and gave him the feedback. She found the appellant in the hut seated on the bed. After furnishing the report and before she left, the appellant reached for a knife which he put on her head and ordered her to 2

,, lie on the bed. Frightened and fearing for the worst, she obeyed the instructions. After stripping her naked and also removing his clothes, the appellant took a certain powdered local medicine and instructed her to hold his penis and rub it with that substance. She was similarly instructed to put some of that medicine into her vagina, subsequent to which he set upon her and forcefully inserted his penis into her female organ until he satisfied his devilish desire. The complainant narrated that she experienced untold pain, and saw blood oozing from that part of her body, at which point in time she cried bitterly. She was subsequently freed after which she reported the nasty incident to her brother Kelvin Ndege, who was in the company of one other family member known as Paulo Otea. The matter was eventually reported to the police who arrested and charged the appellant with that offence of rape. The appellant's defence was very brief. He all through protested his innocence, claiming that PW1 was a liar, and that the lower Courts wrongly found that she was credible.

On the date of hearing of this appeal, the appellant appeared in person and was not defended. On the other hand, the respondent 3

Republic was advocated for by Mr. Mamti Sehewa, learned Senior State Attorney. The memorandum of appeal filed by the appellant raised six (6) grounds which, when closely examined merge into three of them as follows: one that the voire dire in respect of PWl was unsatisfactory; two that, PWl was not a credible witness; three that, the evidence as a whole was tainted with contradictions. Upon the appellant's election for the Republic to commence, of course, while reserving the right to say something thereafter if need would arise, we invited Mr. Sehewa to make his submissions. At the outset, we informed parties of the concern that the charge against the appellant was defective and required him to address us on the point. The learned Senior State Attorney unhesitatingly submitted in the affirmative that indeed, the charge against the appellant was fatally defective. 4

He elaborated that the section on which the offence was anchored did not cite under which category among those under section 130 (2) of the Penal Code the charged rape fell, among the many categories indicated thereunder, so also that it did not cite the subsection concerning the appropriate sentence for an offender who raped a person of tender age. In the premises, he requested the Court to invoke the provisions of section 4 (2) of the Appellate Jurisdiction Act Cap. 141 of the Revised Edition, 2002 (the AJA) to quash conviction, set aside the sentence and order a trial de nova. On the other hand, the appellant said he was in agreement with the Republic's submission. After considering the submission made by the parties, we find it convenient to reproduce the charge sheet with a view of vindicating the defect under consideration. It states that: - ''IN THE DISTRICT COURT OF TARIME ATTARIME CHARGE SHEET 5

NAME, TRIBE AND NATIONALITY OF THE PERSON CHARGED NAME TRIBE AGE ACCUPATION RELIGION ADDRESS FIRST ACCOUT . . . . . . · JOSEPH S/O MARANDO /KANDA : MK/NE 53YRS PEASANT CHRISTIAN RARANYA VILLAGE OFFENCE, SECTION AND LAWS: Rape c/s 130 {1} {e} and 131 of the Penal Code Cap. 16 of the laws R.£ 2002. PARTICULARS OF OFFENCE: That Joseph s/o Marando lkanda charged on the 19 day of January 2014 at about 16:00hrs at Panyakoo village, within Rorya district in Mara Region did have sexual intercourse of one [R. d/o A.] a girl of thirteen years old STATION: UTEGI DATE: It is important to point out at this juncture that while section 130 (1) of the Penal Code defines rape, section 130 (2) of thereof covers different categories of rape. Subsection (2) of that section provides that:- 6

"(2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time of the sexual intercourse; (b) with her consent where the consent has been obtained by the use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; (c) with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by any drugs, matter or thing, administered to her by the man or by some other person unless proved that there was prior consent between the two; ( d) with her consent when the man knows that he is not her husband, and that her consent is given because she has been made to believe that he is another man to whom, she is, or believes herself to be, lawfully married; 7

• (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. " The existence of these several categories of rape under that section is the basis why it - becomes necessary for any charge of rape to particularize the specific category under which the charge falls. Even, it is essential to point out that the sentences too may vary. Thus, where any charge of rape does not make such particularizations, ipso facto, the charge will be fatally defective because it will not have complied with the provisions of section 135 (a) (ii) of the CPA. That section provides that:- "The statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and, if the offence charged. is one created by enactment, shall contain a reference to the section of the enactment creating the offence. "[Emphasis added] From the above_ provision, we note the emphasis that a statement of the offence must describe the nature of the offence and should 8

contain a reference to the section creating the offence, of course, followed by the particulars of the offence which then will contain the ingredients of the said offence. Thus, where the charge preferred against any accused person does not specify a particular category of rape he may have committed, that may deny him chance to prepare a good defence as he may be unaware that he is facing a serious charge. This has been expressed in a number of cases, including those of Christian Sanga v. Republic, Criminal Appeal No. 512 of 2015, CAT and Lawama Dedu v. Republic, Criminal Appeal No. 318 of 2015, CAT (both unreported). In a range of cases, the Court had the occasion to emphasize that where a person may have been charged and found guilty on incorrect provision of law, such a person is considered as having not been fairly tried by the courts below. We have in mind the cases of Marekano Ramadhani v. Republic, Criminal Appeal No. 201 of 2013, CAT and Abdalla Ally v. Republic, Criminal Appeal No. 253 of 2013 (both unreported). We stated in the case of Abdalla Ally v. Republic (supra) that:- 9

" ... being found guilty on a defective charge/ based on wrong and/or non-existent provisions of the law/ it cannot be said that the appellant was fairly tried in the courts below... In view of the foregoing shortcomings/ it is evident that the appellant did not receive a fair trial . . . The wrong and/or non-citation of the appropriate provisions of the Penal Code under which the charge was preferred, left the appellant unaware that he was facing a serious charge of rape ... " Since we have said that the appellant's charge before the trial court was not properly anchored, therefore that it amounted to unfair trial, we need to take remedial action. In the circumstances, we are constrained to interfere in terms of section 4 (2) of the AJA on the basis of which we quash the proceedings and judgment of both lower courts and set aside the sentence which was imposed against the appellant. That leaves us with one crucial question; what is the way forward? Ordinarily, where proceedings and judgment are nullified and the sentence is set aside, it is upon the Court to deliberate on whether or not to order a retrial. In doing so, the Court has to take into consideration the 10

.. factors surrounding any such particular case before making directions, including the aspect of demands of public interests - See the case of Fatahali Manji v. R, [1966] E.A. 343. It was expressed in that case that:- "in general a retrial will be ordered when the original trial was illegal or defective. It will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the trial. Even where a conviction is vitiated by mistake of the trial court for which the prosecution is not to blame; it does not necessarily follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order of retrial should only be made where the interests of justice requires. " We have carefully considered the surrounding circumstances of the present case, particularly the nature of the evidence on which the appellant's conviction was founded, also the time he has been in jail after he was convicted, which is approximately four ( 4) years. On the basis of that, we are in agreement with Mr. Sehewa that it wi-11 be in the interests of justice if we order a trial de nova. 11

Thus, for reasons we have advanced, we remit the record to the trial court for retrial of the appellant after an appropriate action by the Director of the Public Prosecutions in ensuring that the charge sheet filed in the Distri.ct Court is in accordance with the law. We further direct that should the new trial lead to the appellant's conviction, the time he has spent in prison serving the current sentence should be taken into account when sentencing him. We accordingly order. DATED at MWANZA this 5 th day of July, 2018. B. M. MMILLA JUSTICE OF APPEAL S.E.A.MUGASHA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. B.A~O DEPUTY REGISTRAR COURT OF APPEAL 12 ,, .. I