Siwema d/o Makoye vs Republic (High Court Criminal Appeal No. 129 of 1999) [1999] TZHC 429 (13 September 1999)

I ,· A-4 IJ u-f-4 M(J[---t,(J J)--1 ~ f1A_. NCHALLA, J. IN THE HIGH COURT OF TANZANIA AT MWANZA APPEILATE JURISDICTION (MWANZA REGISTRY) HIGK COURT CRI,M.INAL APPEAL NO. 129 OF 199,- 0RIGINAL CRIMINAL CASE NO. 47 OF 1~ .. J OF THE DISTRICT COURT OF KWIMBA DISTRICT AT NGUDU -BEFORE N.T. !WIRE Esq D/MAGISTRATE SIWEMA d/o MAKOYE •• o •••• ~ •• APPELLANT Versus THE REPUBLIC ' • • • • • • • • • RUL±Nd (iginal accused) • • RESPONDENT (Orig Prosecutor) The applicant Siwema d/o Makoye, a primary school pupil in std IV at Ilungu Primary Shool in Magu District, has filed this application for extension of time to file an appeal to this court, against the entire decision'. of the trial District court at Ngudu in Kwimba District in original Cr.case No. 47/98. The applica- tion has been filed under section 359 CPA, 85, and is supported by the applicant's affidavit. The applicant was not repr-eeented in this a.plic;a.tia, .. . ' while the Republic/Respondent was represented by Mr. Magoma, learned Principal. State Attorney. The applicant did not state anything further at the hearing of her appeal, but simply applied that the averments in her affidavit ba _adopted. -I granted that applieation. On the otherhand, Mr. Magoma learned Principal. State Attorney, did not refute the grounds for the application averred and set forth in the applicant's affidavit. Nonetheless, Mr. Magoma resisted the application fo.r, t following reasons! First t_-::it

2 that the applicants intended apal has no likelyhood of sueeeeding, because the applicant/accused had pleaded guilty to the charge, when the same was read.over and explained to her by the Public Pro- secutor. The applicant pleaded guilty on two different days, that is on 11/5/98 and on 12/3/98, when the facts of the ease were narrated by the Public Prosecutor. Further, the applicant admitted to the court that the facts of the case were true and correct. So, the accused was convicted on her own plea of guilty. On the day the applicant was convicted of the offence, the Public Prosecutor gave the ag'0 of the accused/applicant as being 17 years, as it was also similarly indicated in the chargesheet. The applicant had not disputed that her age was 1? years, but still the learned trial Magistrate (Mr. Bwire, PDM) made an order before sentencing the accused/applicant, that the accused/appli- cant be medically examined by a Government Medical Officer, and a medical report (opinion) on the age of the accused be furnished to the trial court, before sentence was passed on the convicted accused/applicant. The case was therefore adjC"rurned to 13/5/98 for &entence, when the report of the Doctor, on the ag'0 of the applicant/accused, would have been submitted to the trial court• On 13/5/98, when the proceedings resumed before the same trial magistrate, the Public Prosecutor tendered to the court the Doctor's report on the age of the aceused/applicant, ana the Santfl was admitted, and was marked P1. The Doctor's opinion en the age , af the accused/applicant in his report (Exh P1), is to the effect that the accused/applicant was aged 18 years. Howeve1", from my reading of that report, I find that the opinion of the doctor on the age of the accused/applii,ant, is not conclusive. It will be of advantage to reproduce here that report: "(1) Well developed breasts - i.e)14 years old

• 3 (2) She is menstruating monthly i.e), 14 years old (3) Well shed pubic hair i.e 15 years and above Conclusion= she is 18 years old oR above For further confirmation send her for X-Ray of the long bones Tibia/Fibula Sgd DR Mbaga District Medical Officer NGUDU/KWIMBA..n There is no indication on record, that the accused/applicant was sent for X-ray for further confirr_."\tion of her age, as the District Medical officer had directed in his report. This means, the issue on the accused/applicant•s true age, did not receive medical confirmation in full. There was some further step to be undertaken in order to complete the medical examination of the accused's age, to support the t>oct'or•s medical report on the ·age of the accused/applicant. It is 0 for this reason, I think, even the learned trial Magistrate t. lid; riot act on this medical report (Exh P1) t as .. to ·the age of the ·accused/applicant, for purpose of imposing the proper sentence under. the law• The learned trial ma- :. '.. . .I : gistrate merely ruled thus 11 Co.urt: Having seen the accused, I am satisfied and find that she is between 16 and. 17 years old"• So, according to the learned trial Magistrate, the age of the accus~d/applicant was ess th. 18. y_ears, contrary to what the District Medical Officer had opined in his report (Exh P1). In fact, according to the learned trial agistrate, the accused/ applicant's age could as well be less than 17 years, that is, her age •ul-d .· ~ ·. 16 years. But the lea,rned ti-ial Magistrate does not state .ii record the !actors which impelled him to disagree with the doctor's report (Exh P1), that the al§' of the accused/ applica.p.t was above 18 years. Now, in her affidavit in support of her application, the accused/applicant bas first argued ·that her ple to the charge

4 was not i.meq'!livocal. Secon<ti.J.i, ·thatr~~r age was just 12 years, •' , not 17 years, at the time she was eonvieted·or ,the offence. These two issues raised by the accused/applicant 1 are p,-,ints of law, which this court cannot decide in this application. Those points can only be decided in an appeal. Now, since Mr• Magoma, learn~.d Principal State Attorney, has conceded to the grounds put ,f()rth :oy . ,. , the accused/applicant, which caused her delay in filing her appeal to this court, then I feel constrained to gi-ant this application, so that the points of law raised by the accused/applicant; about her age and the unequivocality of her plea, may be justifiably decided. For this reason, I find it is too early in the day in this application, for this court to decide on the question whe- ther or not the applicant's intended appeal ♦ has overwhelming chances of success. On the foregoing diseussions and findings, I grant this application~ I extend the time to the applicant to file her intended appeal to this oourt within 30 days from the delivery of this ruling, that is, on or before 13/10/99• 1 order accordingly• Application granted. μL·1 Ii,; ,,, 11);) ,1l ., _lJJD b\ M.D. LLA , JUDGE 11/9/99 13/9/99 Coram: M.D. Nchalla, Js For Applicant/Convict: Present in person For Republic/Respondent: Mr. Feleshi, S/A Mr. R. Nyabange • Bench clerk Court: Ruling delivered in court at Mwanza, in the presence- of both parties, this the 13th day of September, 1999. Right of appeal explained. . .. /5.