Director of Public Prosecutions vs Liku Mangu (Criminal Appeal No. 49 of 2009) [2014] TZCA 2252 (16 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MBAROUK, J.A., MASSATI, l.A., And ~USSA, J.A.) CRIMINAL APPEAL NO. 49 OF 2009 THE DIRECTOR OF PUBLIC PROSECUTIONS ................................. APPELLANT VERSUS LIKU MANGU ......................................................................... RESPONDENT (Appeal from the Order of the High Court of Tanzania at Tabora) (Mujulizi, J.} 10 th & 16 th June,2014 MUSSA. J.A.: Dated the 3 rd day of December, 2008 in Criminal Session No. 141 of 2007 ,RULING OF THE COURT In the High Court of Tanzania, at Tabora, the respondent was I arraigned for child destruction, contrary to section 219 of the Penal Code, chapter 16 of the laws. The particulars on the information alleged that on or about the 30 th day of May, 2006 at Luguru Village within Bariadi District, the respondent destroyed the life of a child capable of being born alive. When the case was called on for preliminary hearing on the 3 rd December, ' 2008 and, upon the information being read over and explained to her, the respondent was recorded to have pleaded:- 1

"It is true" l I The presiding Judge (Mujulizi, l), entered a plea of guilty to the information, following which the facts of the case wJre outlined by the prosecuting State Attorney from a written summary hat was previously filed in court. Toe statement of faJ revealed that, : at all the material times, the respondent was aged eightlen (18) years a 1 nd was a form two I I student at Itilima Secondary School, situate in Bariadi District. It was I further particularized that the respondint had been ;ade the family way and her pregnancy was at an advanced seven (7) month's stage. I On the fateful day, it was said, the respondent intntionally destroyed I . her foetus and terminated the life of the still born whd would have been a baby boy. In her next move, the respbndent threw th~ dead infant into a family latrine but, somehow, the poliJe were informe~ of the occurrence and she was, accordingly, apprehende~ and arraigned. I When the trial court asked the respondent to give 1 her response to the foregoing factual setting, her reply wls in the affirma~ive, whereupon the I presiding Judge entered a conviction on the strength; of her own plea of 2

J I guilty. Nonetheless, the learned JudgJ did not proceed to mete out a . j . I sentence but, instead, he made the following Order:- I I have serious reselations with tle , I correctness of the provision creating this j I I I offence and the peqalty imposed rn I i conviction. Therefore in order to express I I . . . ,,./" . ,!, I d" ,.l my opinion JU<.11c1ous,y, a 71ourn ,ye sentencing to anothJ date to be , fix~ and notified by the , District Regist'f r. For purposes of sentencing I will requYre I ! I the prosecution to call the accuseh's , I I mother and the person wh 1 se I statements are on 1 record of ~he Preliminary investiJation, as cdurt witnesses. The accus1d shall also eJty I ; I as a court witness.1ending sentendng, the accused to be held in confinemen. I i I , I I I I I I 3 , I i , I

The Director of Public Prosecutions (appellant) wa~ aggrieved by the foregoing extracted order and, consequlntly, dully filed :a Notice of Appeal I I to the Court on the 15 th December, 2008. A good deal later, that is during the pendency of the Notice of ApJal, the High ourt record was I . succeeded by another Judge (Lukelelwa, l.), whb summoned the I I respondent for sentencing on the ih May, 2012. In a udden turn about, the successor Judge vacated whateve was desired tiv his brethren and . I I proceeded straight to pronounce sentence as follows:- 1 I I SENTENCE i ''I have taken into coAsideration that the I I accused is a first offender who had pleaded guilty showihg remorsefulnes. The accused has beeh in remand prif n since 2006, a period !of about six years. Given the circuJstance of the commission of the /offence, I heiby invoke the provisions of section 381 of the penal code ahd discharge f he accused on conditio~ that she does hot commit any offencJ for a period I of twelve. Right of A1peal to sentehce explained'~ , I 4

As hinted upon, at the time of sentencing, the appellant had already instituted an appeal through the referred Notice and the same was actually pending before this Court. When the appeal was called on for hearing I before us, the appellant had the services of Mr. Ildephonce Mukandara, learned State Attorney. On the adversary side, Mr. Kamaliza Kamoga Kayaga who represented the respondent below on a' dock brief, was similarly assigned this brief under Rule 31 of the Court of Appeal Rules, 2009 ('the Rules'?. Ahead of the scheduled hearing, the learned State Attorney for the appellant had lodged, on the 9 th June, 2014 a Notice of withdrawal of the appeal under Rule 77(1) of the Rules. After a brief dialogue with us, Mr. Mukandara was quick to appreciate that the Rule does. not contemplate a situation, like the one at hand, where hearing of the appeal has already been scheduled. Thus, he, instead, sought to predicate the withdrawal under Rule 4(2) (a) and (b)of the Rules. For his part, Mr.Kayaga drew our attention to what he conceived as a material impropriety manifest in the High Court record, in that the successor Judge not only trampled over and 5

vacated the earlier order of his brethren but, in addition!, the sentencing I I exercise came about when the appeal by the DPP wa~ subjudice and I I awaiting hearing before the Court. In I the premises, ;counsel for the I I respondent sought the indulgence of his friend to disc~rd his quest for ' I I withdrawal of the appeal, so as to keep the Court seized tjf the matter and, I thereby, afford it the opportunity to rectify the apparent defect. To this I I request, Mr. Mukandara was candidly obliged and, acco;rdingly, withdrew I his quest for the withdrawal of the appeal, if anything, nbt for the sake of I I arguing the intended appeal, rather, to enable the Court rectify the manifest defect. We have carefully considered the arguments presented to us by either counsel and, having dispassionately perused the irecord below, we I I are in agreement that the sentencing of the resRondent by the successor Judge was, indeed, fraught; by a patent illegality. To say the ' ! least, it was improper for the trial court to trample over pnd vacate its own · I earlier order, just as it was illegal for it to adjudicate pn a matter which ' ' I I was on the precincts of the Court. Having discarded the withdrawal, what I remains is the appeal by the DPP with respect of which, !we should note, no I I

memorandum has been lodged pursuant to Rule 72 (1) of lthe Rule. In the ( : normal run of business, the Court would have either dismissed the appeal I I or directed that it be set down for hearing in terms of Rule 72 (5) of the I i Rule. Nonetheless, despite the fact that the appeal is yeti to be activated, . I I, ' I on account of the referred material improprieties, we deem it appropriate, : I ' I I in the interest of justice to, instead, invoke our revisional jurisdiction under ' I ' I I I the provisions of section 4 (3) of the Appellate Jurisdiq:ion Act, chapter i ' I 141 of the laws. In this regard, we wish to significantly rei;nind that this will I, I " I not be the first intervention by the Court. 1 , Of recent the Court intervened in , I : I corresponding circumstances to correct manifest illegalities in Civil I, I I Application No. 109 of 2008 - Tanzani~ Heart Institule Vs The Board ' I, of Trustees, NSSF; and another unreported Civil Appli;cation No. 151 of 2008 - Chama cha Walimu Tanzania ,Vs The Attorn~y General (both unreported). In the end result, we are constrained to nullify! and set aside the · , I , I, I illegal sentence meted out by the successor Judge on fhe ih May, 2012. 1 I I I We note, however, that the respondent 11 has served the entire length of the I, : ! I illegal sentence and from what we 1 11 discerned from: Mr. Kayaga, her ,, i ! 7

•' I whereabouts are presently unknown. To this end, whatever was desired by the trial Judge who postponed the sentence, with passage of time, the intent and purpose has been rendered impracticable. Thus,. as we step into his shoes, we have to take into account the pr~vailing peculiar circumstances of this case and, in the result, we impose on the respondent such sentence as would sustain her immediate liberty as well as conveniently dispose of this matter. DATED at TABORA this 16 th day of June, 2014.' M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. e-:-M WIZU EPUTY REGISTRAR COURT OF APPEAL 8