Shedrack Loshoc @ Lota vs Republic (Criminal Appeal No 28 of 2016) [2017] TZCA 313 (15 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CRIMINAL APPEAL No. 28 of 2016 ( CORAM: MJASIRI. J.A., MWARIJA, J.A., And MWANGESI, 3.A .) SHEDRACK LOSHOC @ LOTA ......................... APPELLANT VERSUS THE REPUBLIC................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Arusha) (Mwaimu, J.^ Dated the 16th day of April, 2013 In Criminal Appeal No. 85 of 2014 JUDGMENT OF THE COURT 11th & 15th December, 2017 MWANGESI, J.A.: In the District Court of Arumeru in Arusha Region, the appellant stood charged with the offence of rape contrary to the provisions of section 130 (1), (2) (a) and 131 (1) of the Penal Code Cap 16 R.E 2002 (The Penal Code). The particulars of the offence were to the effect that, on the 15th day of July, 2012 at night time at Maweni area within Arumeru District in the Region of Arusha, the accused did unlawfully have sexual intercourse with one Rahel Sumarini, who was not his wife. He resisted the charge and i

as a result, the prosecution summoned five witnesses to establish the case against him, while in his defence, he relied on his own testimony. The findings of the learned trial Resident Magistrate after hearing evidence from both sides, was to the effect that the appellant committed the charged offence. He was therefore convicted as charged and sentenced to the mandatory term of thirty years imprisonment. Additionally, the appellant was ordered to compensate the victim an amount of TZs Four Hundred Thousands (400,000/=). The appellant unsuccessfully challenged the findings of the learned trial Resident Magistrate and the sentence meted out to him at the High Court of Tanzania at Arusha. In his second appeal to this Court, the appellant armed himself with six grounds of appeal. And at a later moment, he lodged one additional ground to make a total of seven grounds. The record in the case file further reveals that, there was another memorandum of appeal which was prepared by an advocate on the same case, which contains the following grounds of appeal namely:

1. That, the learned Judge erred in law and in fact in not finding that the PF3 (exhibit PI) was wrongly admitted by the trial court.

2. That, the learned Judge erred in law and in fact in holding that the identification environment was conducive for the proper identification o f the accused person.

3. That ; the learned Judge erred in law and in fact in holding that the appellant was correctly identified through the wound said to be inflicted by the complainant

4. That, the learned Judge erred in law and in fact in not finding that the prosecution evidence was full o f contradictions and failed to prove the charge against the appellant beyond reasonable doubt When the appeal was called on for hearing on the 11th December, 2017, the respondent/Republic was represented by Mr. Innocent Njau, learned Senior State Attorney, whereas, the appellant who was present in Court, was ably represented by Mr. John Materu, learned counsel. Before we commenced hearing of the appeal, Mr. Njau rose to argue on a preliminary point which he raised on the spot that, the appeal by the appellant was not properly before the Court, because the notice instituting the appeal in the High Court was defective. Accounting for the defect, Mr. Njau argued that, the appellant was convicted on the 27th November, 2012 by the District Court of Arusha, vide DC Criminal Case No. 292 of 2012. Nevertheless, the notice of appeal that

was lodged by the appellant on the 05th December, 2012, was in respect of Arusha RM Criminal Case No. 292 of 2012. Since the two case numbers presented two different cases, in the view of the learned Senior State Attorney, the appeal before the High Court was in respect of a different case from the one in which the appellant was convicted of. In that regard, the proceedings at the High Court were a nullity. He urged us to invoke our powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E 2002 (the Act), to nullify the proceedings of the High Court and require the appellant to process his appeal from the District Court afresh if he still wishes to pursue it. In response Mr. Materu argued that, the District Court of Arusha and the Resident Magistrates Court of Arusha were using the same register, as such there was only one case bearing the number criminal case No. 292 of 2012. Since the notice of appeal lodged by the appellant bears all the particulars of the case that included, the case number, the name of the appellant and the name of the trial Magistrate, in his view the anomaly occasioned by naming the RM's Court instead of the District Court of Arusha in the notice of appeal was not fatal. He urged us to find it innocuous and proceed to hear the merit of the appeal. 4

After hearing the submissions from the learned counsel for both sides, we reserved our ruling and invited them to submit on the merit of the appeal. In case in our ruling of the preliminary objection we would sustain it, then that would mark the end of the business whereas, if the preliminary objection would be rejected, we would proceed to consider the merits of the appeal. In his submission on the appeal, Mr. Materu submitted that, since there are three types of grounds of appeal in Court, of which he failed to lodge a supplementary memorandum of appeal to consolidate them for the reason that he had poor communication with the appellant, he prayed to argue the additional ground of appeal by the appellant first, and then proceed with the grounds of appeal which he lodged, which in essence have incorporated the grounds of appeal which were lodged earlier by the appellant. We granted his prayer and thereby, resulting to having five grounds of appeal starting with the additional ground of appeal, which we shall treat as the first ground followed sequentially by the grounds that were lodged by the learned counsel. In the first ground, Mr. Materu challenged the charge sheet placed at the door of the appellant that, it was defective for omitting the words

"without her consent"and thereby, infringing the provisions of section 130 (2) (a) of the Penal Code. This is from the fact that, the victim alleged to have been raped was an adult of which for the offence of rape to stand, her having not consented was crucial. Such omission in the view of Mr. Materu did prejudice the appellant as it made him not to understand properly the offence which he stood charged with. The challenge on the second ground of appeal by the learned counsel was pegged on the PF3 which was tendered by the victim (PW1) and admitted as exhibit PI. It was the view of Mr. Materu that, its admission infringed the provisions of section 240 (3) of the Criminal Procedure Act in that, the appellant was not informed of his rights by the trial Resident Magistrate. In the circumstance, he asked us to expunge it from the record in terms of the provision of section 169 (1) of the Criminal Procedure Act. The learned counsel submitted further to the effect that, according to the charge, the offence was committed by the appellant during mid night at about 0100 mid night. The circumstances under which he was identified, which is the gist of the third ground of appeal was not made clear by the prosecution witnesses. It is on record that, in order to commit the offence, the culprit entered into the room wherein PW1 was sleeping alone, through

the window which he broke. And after he had accomplished his mission, he again disappeared through the same window. Even though in the room there was a kerosene lamp, it was said that the same was put off by the culprit. It would appear that PW1 did not recognize the culprit instantly because, she claimed to have recognized him at the Ward Executive Officer after he had been arrested. As regards the other prosecution witnesses that is, Ndekiriwa Sumarini (PW2), Emiliano Piniel (PW3) and Elisaria Efatha (PW4), they all told the court that, they went to the scene of the incident in response to the alarm which was raised by PW1, which was after the culprit had left. All of them claimed to have seen a person running away in the maize field from the house of PW1. Regard being made to the fact that by then it was dark, there is no way in which they could claim to have identified him properly. On his part, the appellant gave a clear narration in his defence that, he was arrested while on the way from Doli village where he had been watering his vegetables in the garden, towards his home place at Marurani village. At the said period he was met by two people armed with bush knives and sticks, who started beating him arguing that, he was the one,

while he knew nothing about what was going on. The learned counsel urged us to believe the story of the appellant that, he was arrested on mere suspicion that, he was the one who raped PW1, while he was not. Relying on the holding in the case of Omari Vs Republic [2009] 2 EA 370, he implored us to allow the third ground of appeal. With regard to the identification of the appellant through the wound on his shoulder, which was said to have been inflicted on him by the complainant, which constitutes the fourth ground, Mr. Materu submitted that, there was no evidence to establish such contention as opposed to the assertion by the appellant that, the said wound was not fresh but a scar, which was re-opened through the beatings which he received on the fateful night from the people who arrested him on the suspicion that he was the one who raped PW1 and thereby, starting to bleed. For the foregoing reasons, the learned counsel for the appellant requested us to allow the fourth ground of appeal. On the fifth and last ground of appeal, Mr. Materu did point out some discrepancies noted in the exhibits which were tendered by the prosecution witnesses to establish the case against the appellant. These included a sheet that was admitted as exhibit P2 containing some blood stains and a 8

knife also containing some blood stains, which was admitted as exhibit P3. In both, there was no evidence to establish the linkage between those exhibits and the appellant. It was thus the view of the learned counsel that, there was misdirection on the part of the trial Resident Magistrate as well as the first appellate Judge, in evaluating the entire evidence of the prosecution witnesses, which was full of contradictions in the disfavour of the appellant. He implored us to reverse the concurrent findings of the two lower courts and set the appellant at liberty. On his part, the learned State Attorney did support the appeal. It was his view that, indeed the PF 3 was admitted in contravention of the law and further that, the identification of the appellant alleged to have been made by the prosecution witnesses was with serious doubt. In general, Mr. Njau did argue that, there was no clear chain of evidence from the commission of rape against PW1 to when the appellant was arrested. Mr. Njau however, had a different view from the one expressed by his learned friend in regard to the defect on the charge sheet. Even though there was omission of the words "without her consent" in the charge sheet, in his opinion, the omission was not fatal as the appellant grasped well the 9

nature of charge under which he stood charged. All in all, he asked the Court to allow the appeal. Our take off in resolving the appeal before us is the preliminary objection that was raised by the learned Senior State Attorney in respect of the notice of appeal to the High Court. The said notice was contained in a form resembling that which is used in the Court of Appeal. When the learned Senior State Attorney was asked by the Court if the format had specifically been made for the purpose, he answered the question in the negative. When he was further required to name the provision of law that had been contravened, he again was unable to name any on the obvious fact that, there was none. The provision that regulates lodgment of notices of appeal to the High Court is section 361 (1) (a) of the Criminal Procedure Act, Cap 20 R.E 2002, which reads: "(1) Subject to subsection (2), no appeal from any finding, sentence or order referred to in section 359 shall be entertained unless the appellant- (a) has given notice o f his intention to appeal within ten days from the date o f the finding ; sentence or order or, in the case o f a 10

sentence o f corporal punishment only, within three days of the date of such sentence; and — " After going through the notice of appeal that was lodged by the appellant in the instant appeal and its contents, we are satisfied that, there was no serious irregularity occasioned by the appellant in writing the RMS Court instead of DC Court as the information regarding the particulars of the case were sufficient not to cause any confusion. We hereby dismiss the preliminary objection and proceed to consider the merits of the appeal. From the four grounds of appeal presented by the appellant, there are basically four issues that stand for our deliberation and determination these are, first, whether or not there was defect on the charge sheet. Second, whether or not, the appellant was properly identified. Third, whether or not, the PF3 was properly admitted and lastly, whether or not the case against the appellant was established to the hilt. Starting with the first issue, the particulars of the offence under which the accused/appellant stood charged which reads that: "Shadrac Loshoc @ Lota, on the l$ h day o f July, 2012 at night time at Maweni area within Arumeru 11

District and Region o f Arusha, unlawfully did have sexual intercourse to one Rahei Sumarini who is not his wife." The wording of section 130 (1), 2 (a) of the Penal Code under which the offence was committed reads: "(1) It is an offence for a male person to rape a girl or a woman. (2) A male person commits the offence o f rape if he has sexual intercourse with a girl or a woman under circumstances falling under any o f 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 o f the sexual intercourse; Apparently, there is variance between the particulars of the offence and the words in the enactment which creates the offence. It is the law that, in order not to prejudice the accused person, the charge has to specify all the necessary ingredients of the offence. In its own words the provisions of section 135 (a) (ii) of the Criminal Procedure which stipulates the mode of drafting charges provide that: "the statement o f offence shall describe the offence shortly in ordinary language avoiding as far as 12

possible the use of technical terms and without necessarily stating all the essential elements o f the offence ana [ if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence [Emphasis supplied] It has been the position of the Court that, where the charge sheet does not make proper reference to the enactment creating the offence, such irregularity is fatal. See: Omari Setumbi Vs Republic, Criminal Appeal No. 277 of 2015 (unreported). In that regard, we answer the first issue in the affirmative. Since the appellant was tried and convicted under a defective charge, both the proceedings at the trial court as well as in the High Court were a nullity. Using our powers under the provisions of section 4 (2) of the Appellate Jurisdiction Act, we hereby nullify both the proceedings and judgments of the District Court and the High court. The subsequent question which we had to ask ourselves after nullifying the proceedings of the lower courts is as to what should be the way 13

forward. Ordinarily, we ought to order retrial. Nonetheless, upon going through the nullified proceedings of the trial court, we are reluctant to do so for the reason that, the evidence given by the prosecution witnesses in the nullified proceedings, did miserably fail to establish the commission of the offence by the appellant. We therefore direct that, the appellant be set at liberty unconditionally unless he is otherwise lawfully held for some other justifiable cause. Order accordingly. DATED at ARUSHA this 14th day of December, 2017. S. MJASIRI JUSTICE OF APPEAL A. G. MWARDA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. I DEPUTY REGISTRAR COURT OF APPEAL 14