Athanas Julias vs Republic (Criminal Appeal No. 498 of 2015) [2017] TZCA 1018 (29 September 2017)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUSSA, J.A .. MZIRAY, J.A., And MWANGESI, J.A.) CRIMINAL APPEAL NO. 498 OF 2015 ATHANAS JULIAS •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (Nyangarika, J.) dated the 10 th day of September, 2015 in DC. Criminal Appeal No. 32 of 2015 JUDGMENT OF THE COURT 26 th September & 2 nd October, 2017 MWANGESI, J.A.: The appellant herein was convicted by the district court of Mpanda sitting at Mpanda, in Criminal Case No. 36 of 2015, wherein he stood arraigned with the offence of rape. In a judgment that was handed down on the 11 th day of June 2015, he was sentenced to serve the mandatory term of thirty years im·prisonment. His attempt to challenge the findings of the trial court and the sentence 1

meted at the High Court of Tanzania at Sumbawanga Registry was not successful as per the decision that was delivered on the 10 th September, 2015. Still undaunted and believing that there was no triumph of justice, the appellant has ~ome to this Court with his second appeal armed with about eight grounds of appeal, which were however, compacted and reframed by his leaned counsel ·to make two grounds only which read:

1. That, the trial court committed an incurable irregularity by allowing PWl to assist PW2 in giving evidence contrary to section 212 of the CrimincJI Procedure Act, Cap 20 RE 2002 (the CPA).
2. That, the Judgment was against the weight of evidence which was in favour of the appellant. The appeal has on the other hand, been resisted by the respondent Republic. When it was called on for hearing, the appellant had the services of Mr. Victor Mkumbe, learned counsel, whereas, the respondent Republic was advocated for by Ms Rhoda Ngole learned State Attorney, who was assisted by Mr. Basilius Namkambe also learned State Attorney. 2 .

. . We feel obligated in the first place, to recap albeit in brief, the facts of the case leading to the decision being impugned in this appeal due to its relevance in our deliberations. As hinted above, the appellant stood charged at the district court of Mpanda at Mpanda, with the offence of rape contrary to the_ provisions of sections 130 (1) and (2) (a) and 131 (1) of the Penal Code, Cap 16 RE 2002 (the Code). It was the case for the prosecution that, on the 30 th day of September, 2015 at Mji Mwema area within the district of Mpanda in Katavi Region, the appellant did have sexual intercourse with one Christina Kapufi without her· consent. The appellant did protest his innocence. According to the testimony of Christina Simon Kapufi, the victim of the incident aged about twenty seven years, who testified as PW2, the incident occurred at ·around 2200 hours or so of the fateful date. It all started with the visit that was paid by the appellant to her home as could be grasped from the proceedings as found at pages 10 and 11 of the record of the appeal, where she was recorded by the learned trial resident magistrate to state that: 3,

''I remember on the 30/01/2015 I was at home at Mji Mwema preparing dinner. While cooking, I saw the accused at the window. I did then open the gate for the accused. The accused came to the kitchen. The accused was dressed in a black coat. He asked for some water to take tablets with and I did give it to him. Thereafter, PW1 (who happened to be her sister in law) and our tenant left for wedding ceremony leaving three of us at home (that is, herself who was the elder sister, and her two young sisters), plus the accused. There-afterwards, the accused asked me to open the gate for him to leave. When I was about to open the gate, the accused did drug me to the corridor near the gate, undressed me then had sexual intercourse with me by force. Then he pulled me into the bath room where again he had sexual intercourse with me by force." It is further on record that, a short moment before the occurrence of the incident of rape to PW2, Yunis Lweya (PW3), one 4

of the young sisters of PW2, aged about twenty two years, who had been with PW2 and the accused in the kitchen, had briefly left for the main house within the compound, to charge her mobile phone. In his defense, the appellant did not resist paying a visit at the home of PW2 on the fateful date as narrated by the prosecution witnesses, but, he claimed to have gone there to collect money belonging to the office from PW3 with whom they were working in the same office. He strongly did dispute to the contention that, he did rape PW2 who after all, was his girl friend. The basic issue framed by the learned trial resident magistrate in deliberating the charge against the appellant, was as to whether the appellant did have sexual intercourse with PW2 without her consent on the fateful date. His answer to the issue was in the affirmative basing on the testimony of PW2, who being the key witness, did sufficiently impress him to be a credible witness. Part of the judgment of the learned trial resident magistrate as found at pages 53 and 54 of the record of appeal bears the following wording: 5

"PW2 emphasized that in two occasions, the accused had inserted his male organ into her female organ. The accused did run away when PW3 went to the bath room and called him by his name. She felt humiliated, took bath and changed her clothes, cried all the time until she fell asleep. That, the accused person unzipped his trousers in order to have sexual intercourse with her. She cried for help but his {sic} voice was not audible. That in the main house where PW3 and · another were, a television was switched on with loud voice. PW2 has speech and hearing problem. She is audible with difficulty. She has a low voice. In order .for PW2 to hear, the one talking must talk loud. She used to follow the lips of the one talking. PWl assisted PW2 in court. " In the written submissions that was earlier on lodged by Mr. Mkumbe, learned counse.l for the appellant, which he prayed to adopt in terms of the provisions of Rule 4 (2) (a) of the Court of Appeal Rules, 2009 (the Rules), it has been argued that, the trial court committed incurable blunders in the way it dealt with the 6

evidence of PW2, whom according to the assessment made to her by the learned trial resident magistrate, she possessed speech and hearing problems as indicated in his judgment quoted above. In the view of the learned counsel for the appellant, the· said assessment was fraught for contravening the provision of section 212 of the CPA, which required the trial magistrate to record all remarks considered material regarding the demeanour of the witness whilst under examination. In the same vein, the learned counsel for the appellant has faulted the learned first appellate Judge for falling in the same trap in his judgment at page 71 of the record of appeal, where, he did uphold the assessment made by the learned trial magistrate in the judgment without having any reflection in the proceedings and stated that, it was a mere innovation by the trial magistrate himself, which did not occasion any failure of justice. The firm view of the learned counsel for the appellant was that, the non- recording of the problems of PW2, who was a very crucial witness in the case, seriously affected the determination of the question as to whether the appellant had indeed raped her or not. 7

. ' Mr. Mkumbe learned counsel, has further submitted that, . even if it were to be assumed that, indeed PW2 had hearing and speech problems, the record of the trial court is silent as to how she was assisted to give her evidence and by whom. Since such facts ought to have been contained in the proceedings of the trial court and that, they are not, it is apparent that, there was no fair trial conducted at the trial court, which vitiated the whole proceedings. This Court has therefore been humbly asked to nullify the proceedings of both low~r courts, quash the sentence imposed to the appellant and set him at liberty. In response to what was submitted by his learned friend, Mr. Namkambe learned State Attorney in the first place, did support the conviction of the appellant and the sentence meted. Nonetheless, . upon being urged by the Court to revisit the proceedings of the trial court, he had a change of mind whereby, he was in agreement with his learned friend that, the trial was indeed not fair for want of compliance with the provisions of section 212 of the CPA. In the circumstances, he did invite us to quash the proceedings of both lower Courts as proposed by his learned friend and in lieu thereof, 8

the Court be pleased to order for trial de novo preferably, before another resident magistrate, an invitation that was not resisted by Mr. Mkumbe, learned counsel for the appellant. On our part, upon going through the record of the trial court, we are in agreement with what has been submitted by both learned counsel that, the contents of the judgment is not a pure reflection of what is contained in the proceedings. Apart from omitting to record the remarks concerning the problems of PW2 as regards her speech and hearing as contained in the judgment, there are as well other facts featuring in the judgment which are not in the proceedings. For instance, in his judgment the trial resident magistrate did talk about noises alleged to have been made by PW2 during the incident of rape, which is nowhere to be seen in her recorded evidence. It has also been stated in the judgment that there was a television in the main house which had been switched at a loud voice, which also does not feature in any of the testimonies given by all prosecution witnesses. On the bases of the foregoing irregularities, two issues do stand for our determination that is to say, first, whether the 9

irregularities occasioned by the trial resident magistrate did vitiate the entire proceedings. Secondly, if the first issue is answered in the affirmative, then as to what should be the way forward. As regards the first issue, even though the ground of appeal by the appellant has been pegged on the provision of section 212 of the CPA, we are of the view that, the provision is inapplicable in the circumstances of the case at hand because what was not recorded by the trial resident magistrate were the physical impairment of PW2 in her speech and hearing, which had nothing to do with her demeanour, which is the gist envisaged under section 212 of the CPA. It only suffices to hold that, the failure by the trial resident magistrate to record properly the testimony of PW2, did infringe the provisions of section 210 (a) of the CPA of which in its own words reads: "(1) In trials, other than trials under section 213, by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner- (a) the evidence of each witness shall be taken down in writing in the language of the court by the magistrate or in his presence and 10

.. hearing and under his personal direction and superintendence and shall be signed by him and shall form part of the record .. " As it has been highlighted above, the anomalies which were occasioned were of two types. The first one relates to the problems faced by the key witness (PW2) of speaking and hearing as indicated in the trial court's judgment found at pages 53 and 54 of the record of the appeal. Procedurally, such problems ought to have been reflected in the proceedings, and as such, the failure by the trial resident magistrate to do so, did substantially vitiate the proceedings. The second anomaly noted, is the act of the trial resident magistrate to include in his judgment, facts which are not reflected in the recorded evidence in the proceedings. The implication here is that, either, in his judgment, the trial resident magistrate did include extraneous matters which did completely not feature in the evidence of the witnesses who were called to testify, or, the trial resident magistrate did omit to record a number of facts that were said by the witnesses in their testimony. In either· case, we are 11

inclined to join hands with the contention of the learned counsel for both sides that, the irregularity occasioned was fatal, and did vitiate the entire proceedings of the trial court. In that regard, we quash the proceedings of the trial court as well as that of the first appellate Court, because it was founded on null proceedings, and we set aside the sentence imposed thereto. With regard to the second issue in respect the way forward after nullifying the proceedings, both learned counsel have urged us to order for trial de novo. On our part, from what we managed to gather from the evidence relied upon by the prosecution on record, we are inclined to decline from associating ourselves with the joint proposal from the bar. As opined by the learned trial resident magistrate, the basic evidence relied upon by the prosecution in establishing the case against the appellant was that which did come from the victim of the incident (PW2). In our view, _such evidence was shaky regard being to the circumstances under which it was alleged to have been committed, and what did transpire after its commission. We are skeptical that, an order for retrial may only give chance to the prosecution to try to fill up the gaps noted in the 12

previous trial. We believe in so doing, we are not inventing the wheel as we are backed up by a plethora of authorities as we highlight hereunder. Way back in the ·midst nineteen sixties, in the case of Fatehali Manji Vs Republic [1966] E.A 341, the defunct East African Court of Appeal did hold that; ''In general a retrial will be ordered only when the original trial was illegal or defective. It will not be ordered where conviction is set • aside because of insufficiency Of evidence or for purposes of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where the conviction is vitiated by a 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 pf retrial should only be made when the interest of justice require. " 13

' • The foregoing stance has consistently been followed by this Court in cases like Selina Yambi and Others Vs Republic, Criminal Appeal No. 94 of 2013 as well as Salum Salum and Another Vs Republic, Criminal Appeal No. 119 of 2015 (both unreported), just to mention but a few. Citing the holding in Fatehali Manji Vs Repubic (supra), the Court in the case of Selina Yambi and Others Vs Republic (supra), did state that: "We are alive to the principles governing retrials. Generally a retrial will be ordered if the original trial is illegal or defective. It will not be ordered because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up the gaps. The bottom line is that, an order should only be made where the interests of justice require. " Even though in the matter at hand, the irregularity occasioned in the proceedings of the trial court was caused by the court, we are of settled mind that, an order for retrial is unnecessary as it will not serve any interests of justice to either side. To that end, we hereby quash the proceedings of· both lower courts, set aside the 14

• sentence of imprisonment for thirty years that was imposed to the appellant, and direct that, he be set at liberty unless he is otherwise being detained in connection to any other cause. Order accordingly. DATED at MBEYA this 29 th day of September, 2017. K. M. MUSSA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original.· R APPEAL 15