Joseph Kanankira vs Republic (Criminal Appeal No. 387 of 2013) [2014] TZCA 2244 (2 July 2014)

r IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: KIMARO, J.A .. MANDIA, J.A .. And JUMA, J.A.) CRIMINAL APPEAL NO. 387 OF 2013 JOSEPH KANANKIRA ••••••••••..••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••.••••••••••••••••••••••••••••••••••••••• RESPONDENT ~ . (Appeal from the conviction and sentence/acquittal of the High Court of Tanzania at Arusha) 1•t &3 rd July, 2014 JUMA, J.A.: (Mwaimu, J.) Dated 5 th day of September, 2013 In Criminal Appeal No. 36 of 2013 JUDGMENT OF THE COURT The appellant, Joseph Kanankira, appeals against the judgment of the High Court of Tanzania at Dar es Salaam (Mwaimu, J.) dated 5 th . · September, 2013 dismissing his first appeal. The appellant was originally · charged in the District Court of Arusha with the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Co~e Cap 16 R.E. 2002. Particulars of the offence alleged that on the 26 th day of December, 2013 at about 18.00 hrs at Mulala village within the Arumeru District and the Region of Arusha, the appellant had unlawful carnal knowledge of a sixteen (16) years old girl. Upon his trial and being found guilty, the trial court 1

•i without so much as entering a conviction against him proceeded to sentence the appellant to serve· a thirty years term in prison. The appellant had initially on 7 th January, 2014 preferr~d five grounds of complaints in his memorandum of appeal to this Court. But later on 30 th June, 2014, Mr. John Materu his learned advocate filed a Memorandum of Appeal containing one ground of complaint. He urged us to consider this sole ground, instead of the five initial grpunds. Through this sole ground of appeal which contends that the trial court failed to enter a conviction before sentencing, Mr. Materu faults the learned Judge of first appeal for regarding the words "is found guilty" in the judgment of the trial court to be akin to "convicting the appellant". Mr. Materu elaborated and expounded on this ground when this appeal finally came before us on the 1 st July, 2014. He referred us to page 68 of the record and submitted that the learned trial magistrate did not record the conviction of the appellant as required in mandatory terms by section 235 (1) of Criminal Procedure Act, Cap. 20 (CPA). The learned advocate reiterated that by merely employing the words "is found guilty," the learned trial magistrate did not comply with the statutory requirement to convict the appellant before imposing a sentence. In 2

,i addition, the learned advocate submitted that as long as the statutory word "conviction" is not reflected in the decision of the trial court as required by section 235 (1), that decision cannot be regarded to have complied with sub section (2) of section 312 of CPA which directs that judgments must specify the law under which the accused person was convicted and the punishment to which he is sentenced. Faced with the anomaly of a sentence that was imposed without a prior conviction, Mr. Materu urged the Court to cloth itself with its power of revision under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141. He further urged us to quash the purported judgments of the trial and the first appellate courts, and also to set aside the sentence of thirty years imprisonment which was imposed without the recording of a prior conviction. Ms Veritas Mlay, learned Principal State Attorney who appeared for the respondent Republic, agreed as much with the submissions of Mr. Materu on the defect appearing in the judgment of the trial court and on the need for the Court to exercise its power of revision to rectify the defect. 3

On our part, this appeal is yet another disturbing example of courts below failing to comply with the statutory requirement to enter a conviction of the accused persons before proceeding to impose sentences. There is no dispute that the learned trial magistrate did not enter a conviction but merely made the following conclusion before he proceeded to sentence the appellant: " ... This court therefore finds that the offence of rape has been proved beyond all reasonable doubt against the accused person. His defence that he did not rape the complainant has no merits at all. Therefore the accused person Joseph s/o Kanankira is found guilty of the offence of rape contrary to section 130 (1) (2) (e) of the Penal Code .... as charged. H [Emphasis added]. It is also apparent from the record that although the learned Judge on first appeal found that the trial court had omitted to enter a conviction against the appellant before proceeding to impose the sentence, he did not consider that failure to be a defect worth any action by the first appellate court. We have a different view of the defect from that of the learned Judge on first appeal. In light of settled position which this Court has 4

-, through several of its decisions taken, we do not think that there was any room for the first appellate court to try and equate the words "is found · guilty" as sufficient compliance with th_e statutory duty imposed on trial courts to convict first before proceeding to impose appropriate sentence. The compulsive words ''shall convict the accused and pass sentence upon .. ~" in section 235 (1) were not used in vain but to demand that convictions should precede sentencing. For an accused person like the appellant was, it is his conviction which would have brought the criminal trial against him to a conclusion before the court prescribes a sentence as provided for by law. The relevant section 235 of CPA which· Mr. Materu and Ms Mlay cited to us, state in the following mandatory terms: 235.-(1) The court having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit or discharge him under section 38 of the Penal Code. [Emphasis added]. 5

Further, we wish to point out that our reading of section 6 of Cap. 141 leave us in no doubt that the statutory right of present appellant to lodge this criminal appeal to this Court is predicated on the appellant having been convicted following a trial held by · the District Court of Arusha/Arumeru. Section 6 of Cap 141 envisages a statutory right to appeal dependent on conviction in the following way: 6.-(1) Any person convicted on a trial held by the High Court or by a subordinate court exercising extended powers may appeal to the Court of Appeal- (a). .. (b). .. (2) Where the Director of Public Prosecutions is dissatisfied with any acquittal, sentence or order made or passed by the High Court or by a subordinate court exercising extended powers he may appeal to the Court of Appeal against the acquittal, sentence or order, as the case may be/ on any ground of appeal. [Emphasis added]. On the statutory obligation to convict first before imposing a sentence we need not reiterate so many decisions of the Court that are now unanimous that a failure by the trial courts to enter conviction before 6

imposing a sentence, contravenes the provisions of section 235 (1) of the CPA. In 1. Matola Kajuni, z. Enock Elia, 3. Mandela Jimmy vs. R., Criminal Appeal 146 of 2011 & 147 of 2011 (unreported) 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 judgment that is null and void can be heard on first appeal by the High Court. Mr. Materu and Ms Mlay have separately demonstrated how in the present appeal, the first appellate court regarded the words "is found guilty"to be capable of dispensing with the statutory obligation to record a conviction. As we have noted earlier, there is no room in section 235 (1) of CPA to read "is found guilty" instead of "conviction". In Shabani Iddi Jololo and Three Others vs. R., Criminal Appeal No. 200 of 2006 (unreported) this Court reiterated that a · conviction is one of the prerequisites of a judgment in terms of section 312 (2) of the Criminal Procedure Act which states: 312 (2). - In the case of conviction the iudgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is 7

convicted and the punishment to which he is sentenced. [Emphasis added]. The Court (in Shabani Iddi lololo and Three Others vs. R) also went on to state that conviction should not miss in the judgment of the trial court. If the conviction is missed out, there can be no valid judgment of a trial court against which a first appeal can be filed in the High Court and subsequent second appeal to this Court. This Court has in an occasion recently presented in Omari Hassan Kipara v. The Republic, Criminal Appeal No. 80 of 2012 (unreported), _held that even where the lack of conviction goes unnoticed in the first appellate court, the judgment of that first appellate also becomes defective because it is based as it were, a fatally defective judgment of the trial court. We think this is the fate which shall befall the judgment of the first appellate court. As to what this court should do where as we have seen, conviction of the appellant did not precede his sentence; the two learned counsel urged us to invoke our power of revision. It is worth emphasising that as we have stated earlier, this is not for the first time that this Court has to deal with legal consequences that should visit a failure on the part of the courts below to enter conviction before sentencing. The Court- dealt with similar 8

issue in Hassani Mwambanga vs. R., Criminal Appeal No. 410 of 2013 (unreported):- What then are the legal consequences/ where no conviction is entered by the trial court? The answer to this pertinent question is found in a plethora of the Court's 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 of 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 Jdh December/ 2008. In the meanwhile/ we order the appellant to continue being detained in custody. From the foregoing, the Court is minded to intervene through its· revisional powers and hereby quashes and set aside the purported judgment of the trial court and the sentence of thirty year imprisonment. 9

. ' We similarly quash and set aside the proceedings of the High Court on first appeal together with its resulting judgment. It is ordered that the record of these proceedings be returned back to the trial court for it to prepare and deliver a judgment of trial court- that complies with the mandatory requirements of sections 235 (1) and 312 (2) of CPA. It is so ordered. DATED at ARUSHA this 2 nd day of July, 2014. N.P.KIMARO JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I.H.JUMA JUSTICE OF APPEAL. I certify that this is a true copy of the original. M.A. MALEWO DEPUTY REGISTRAR COURT OF APPEAL 10