Elias Mpori vs Republic (Criminal Appeal No. 405 of 2013) [2017] TZCA 972 (12 October 2017)

• IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUSSA, J.A., MZIRAY, J.A., And MWANGESI, J.A~) CRIMINAL APPEAL NO. 405 OF 2013. ELIAS MPORI ■■ a ■■■■■ II ■ 11•••••••••••••••••••~•11 ■ 1111 ■ 11 ■■ 1111111 ■■ 11 ■■ ••••••••11 ■■ 11 ■■ 1111 ■ 11 APPELLANT VERSUS TH·E· REPUBLIC •.••....•.....•..•.••...•. , ....•.••.•..•.••.•..•...••• ~·········· RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mbeya) (Ngwala, J.) dated thel st day of October, 2013 in 11 th & 13 th October, 2017 MZIRA Y, J.A.: Criminal Appeal No. 21 of 2013 JUDGMENT OF THE COURT The appellant. was charged with and "found gullty" of the offence of rape. He· was alleged to have raped one Tabu d/o Samson, a girl. aged 7 years. He was subsequently senter:1ced by the triai District Court of Mbeya to life imprisonment. His appeal to the High Court sitting at Mbeya was dismissed, hence this appeal. 1

Briefly stated the case against the appellant entirely rested on the . evidence of PW2, Tabu Samson, the victim of the rape. It was alleged that on 21/8/2010 at around 08.00 pm, the victim was at the appellant's business premises in a video show room .watching television. The appellant who was not in the premises emerged and carried PW2 on his bicycle without the latter knowing his real intention. They all headed to the appellant's house. Upon reaching there, tf_appel)ant got hold of the victim and threw her down. He &..;,: . cautioned her from making an alarm and by force had sexual . . intercourse with her. The appellant-spent the.whbJe ·night ravishing the poor innocent girl. The next day, PW1, Samson Njalawawe, the father of the . . . · victim, saw her daughter not sitting poperly and was not in a good· · mood. He smelled -a rat. He took her to th·e Village Executive Officer and when inspected her, he found that despite looking tired, had also sperms-like substance in her vagina. The matter was reported to police and the appellant was· arrested in connection with the offence. Thereafter, the police, Detective Corporal Jail (PV/3), 2 <,.

recorded his statement to which he admitted to have committed the offence. He was later on charged ih court.· In his defence, the ~ppellant denied the allegation of raping her. He also denied that he admitted the offence in his statement which was recorded at the police station. He claimed that he was framed-up by the police as he was arrested in connectior) with the offence of stealing and not with that of rape. In this appeal, the appellant preferred four grounds of appeal, but in essence we think they can conveniently be condensed to two main grounds of complaint, namely:.- •

1. The trial Resident Magistrate did not properly conduct a voire dire examination on PW2.
2. The prosecution side did not prove the case against him beyond reasonable doubt. In this Court,· the appellant appeared in person, unrepresented, to argue his appeal, while the respondent/Republic was represented by Mr. Francis Rogers, learned State Attorney. 3

Before the commencement of hearir)g, the Co'urt suo motu, raised a question on whether the trial court entered conviction against the .appellant before· proceeding to· impose the sentence as 'required bythe law. " On a closer look at the record, the learned State Attorney joined issue with the Court and remarked that the record at page t7 showed that the appellant was found guilty but was not onvicted. The learned State Attorney argued that failure of the trial I . I ¢ourt to enter a conviction w·ent_ against the spirit of both section I . . . :k35(1) and sectio 312(1) of the Criminal· Procedure Act, Cap 20 I . . -. . - - . '-4 tE 2002, (CPA), which are all couched in mandatory terms, and i i ~hat this error made the. proceedings· of the trial court· irregular. J . .I faced with the anomaly of a sentence that was imposed without a ,I ! . . . prior conviction, the learned State Attorney· urged the Court to . i xercise its power of revision under section 4 (2) of the Appellate I . . I - - - - . Jurisdiction Act Cap. 141. He further urged us to quash the I - judgment of the trial court and the sentence of life imprisonment I t I . ~ogether with the proceedings and th·e judgment of the High Court. I . I I I 4

He advised the record to be remitted to the trial court to enter. conviction as required by th~ law. ·. ·The appellant, a layman, had nothing useful to submit on this point of law. He was in all fours :with w_hat wa? su_bmitted by the learned State Attorney. On our part, this appeal is yet another disturbing example of ourts below failing to comply with the statutory requirement to bnter a conviction of te accused persons before proceeding to • I . • • I i mpose sentences. There is no _dispute from the record of appeal at I . . . ! ,• • C . bage 47 that the learned trial magistrate did not enter a conviction !I , . . . - . i I i I I I I I I I ! I I l ! i i . !but merely' made the following conclusion before he proceeded to sentence the appellant: " ... for that I therefore· found (sic) the accused GUILTY as charged, as the prosecution case . - wps proved beyond reasonable doubt. "· [Emphasis added.]. · In light of settled · position which· this Court has· through I several of its decisions taken, we do not think that there was any I l J room for the first appellate court to try and ·equate the words "is 5

found the accused guilty" as a suff:icient. compliance. with . the statutory duty imposed on trial courts to convict first. before proceeding to impose appropriate sentence .. The instructive words ''shall· convict the· accused and pass sentence upon ... " in section 235 (1) of the CPA, were not used in vain but to demand that conviction should precede sentence. The s·ection reads; "The court having_ heard both the :comg/ainant and the accused oerson and I ! their witnesses and the evidence, shall convict the accused and pas-s~~sentence· upon: .. or make an order-against him according to Jaw o~ '.shall acquit ·or discharge him under section 38 of the Penal Code." For. an accuseql p_erson like the appellant was, it is the conviction by the trial court which would have brought the criminal trial against him to ;a conclusion before the court prescribes a •, sentence. That is a· prerequisite of the law which cannot be escaped. 6

On- the statutory obligation to convict first before i·mposing a sentence we ned not reiterate many decisions of the Court that . are _now: unanimous that .failure by the triaL. court · to enter a convictio_n before :imposing. a sentence, contravenes _the provisions _ qf sec;:tion 235 (1) of the CPA. In 1 Matola Kajuni, 2. Enock · Elia, 3. Mandela Jimmy vs. R., Criminal Appeal 146 of 2011 & 147 of 2011 (unrepo_rted), the Court restated that failure by a trial subordinate court to enter conviction is a fatal and_ incurable irregularity which will. _render such Judgment a. nullity and no appeal from a judgme.nt that· is nuli and void can be heard on first appeai. by the High C_ouit This precisely, tII: it· all that, in the case of a conviction, -the conviction must be entered without fail. It is not -' sufficient to find an accused guilty as charged. In AMANI FUNGABIKASI V ·R., ; Criminal Appeal -No. 270 of 2008 . -(unreported) the Court said:: ''It was imperative upon the trial District Court to comply · with the provisions of section 235(1) of the Act by convicting the appellant after the magistrate was satisfied that the evidence on record established the 7

prosecution case. against hiin beyond reasonable doubt. In the absence of a conviction it follows that one of the prerequisites of a true judgment in terms of section 312(2) of the Act was_ ·missing. So/ since there was· no conviction entered in terms of section 235(1) of the Act· there was no valid judgment upon which the High Court could uphold or dismiss. // (See also, SHABAN! IDDI JOLOLO AND TI-IREE OTHERS V R., Criminal Appeal No: 200 of 2006. In similar vein; inthe instant.ca~~-' the.triatcoutt did not enter conviction . before· proceeding·· to· impose· the life imprisonment sentence against the appellant. This was unprocedural· and indeed, contravened the provisions of section 235 (1) of the CPA. The legal consequence of failure to enter conviction before sentencing is obvious as stated in the case of Hassani Mwambanga vs. R.,( supra) . We quote;-; "What then are the legal consequences; where no conviction is entered by the trial court? The answer to this- pertinent questi9n is found in a plethora of the 8

Courts decisions on the issue...... We have to accede to the prayer of Mr. Ahmed without any reservations. We accordingly invoke our revisional powers to quash and set' aside the so called judgment of the trial court and the sentence or imprisonment. As a· necessary consequence/ we also quash and set aside the proceedings in and judgment on appeal of the High Court. We remit the record of the trial court to it to compose a proper judgment by entering a conviction and sentence the appellant . accordingly. In the !,. interests of justice we direct that the prison sentence should begin to run from the day of the initial incarceration that is/ from Jd 17 Decembe0

2008. In the meanwhile/ we order the appellant to continue being detained in cust6dy. // On that bas[s andfrom the foregoing, the Court is minded to ntervene through its revisional powers and hereby quashes and set ! - i ' ,, ' . aside the purported judgment of the trial court and the sentence of I . I ' i \ife imprisonment. We similarly quash and set aside the ~roceedings and judgment on appeal of the High Court. In i ! ¢ompliance with Section- 235(1) of the CPA, we remit the record of ! l 'he trial court to it to compose a proper judgment by entering a . . . . '., 9

C, conviction· and then, proceed to sentence the appellant accordingiy. Further to that, we. direct that the prison sentence should begin to run from· 29/5/2012 .. While this process is being carried, the appellant yvill continue being incarcer~ted in _custody . .. DATED at MBEYA this lih day of October, 2017. · K. M. MUSSA JUSTICE OF APPEAL. R. E. S. MZtRAY JUSTICE OF APPEAL s. s. MWANGEsr·· .··. . . . : . ·. . - JUSTICE· OFAPPEAl:~~-: . . . ' .•; ,, ,• .. ' 10