IN THE COURT OF APPEAL OF TANZANIA

AT TABORA
fCORAM: MWANGESI. 3.A.. MWANDAMBO. 3.A. And LEVIRA. J.A.T

CRIMINAL APPEAL NO. 404 OF 2015

NASORO S/O M U SSA......................................................................APPELLANT

VERSUS
THE REPUBLIC ........................................................................... RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Tabora)
(Rumanvika, J.l

dated the 24th day of August, 2015

in
Criminal Appeal No. 36 of 2013

JUDGMENT OF THE COURT

20th & 25th November, 2020

MWANDAMBO. 3.A.:
The District Court of Kigoma, tried and convicted Nassoro s/o

Mussa, the appellant herein, of the offence of rape contrary to section

130(1) (2) (e) of the Penal Code, Cap. 16 R.E. 2002 [now RE.2019].

The particulars of the charge were to the effect that on 17th August,

2010 at about 12:00 hours the appellant had carnal knowledge of a girl

aged 16 years at a place called Kahabwa-Gungu area in Kigoma

Municipality to which the appellant pleaded not guilty.

To prove the charge, the prosecution paraded the victim of the

offence (PW1) and a doctor who examined her (PW2). According to

the judgment of the trial court appearing at pages 9 to 21 of the

record of appeal, the appellant aided two persons who committed the

offence; "a pastor" and another undisclosed person who raped her in

turn whilst the appellant held PWl's legs apart facilitating the

commission of the offence. It is also evident from the trial court's

judgment that after the fateful incident, PW1 narrated the ordeal to

her sister stating that she identified her assailant; the appellant by a

scar above his eye. However, it was not until 17th November, 2010;

three months later to be exact, when the police arrested the appellant

who was later arraigned in the trial court for the offence of rape. It is

equally evident from the judgment of the trial court that the appellant

had told the trial court that his arrest was initiated by one Bob Dullah

in connection with a demand for TZS 35,000.00 or his clothes. Neither

PW l's sister nor the police who investigated the case was called to

testify before the trial court. The judgment is equally silent if there was

any identification parade conducted through which the appellant was

identified. Furthermore, that judgment said nothing about the

appellant's defence.

In its judgment, the trial court made a finding that the appellant

did not personally have carnal knowledge of PW1 other than aiding the
assailants both of whom were at large. Nonetheless, it held that the

appellant was culpable on the strength of section 22 (1(c) of the Penal

Code. It thus convicted the appellant as charged. Upon such

conviction, the appellant earned a custodial sentence of 30 years'

imprisonment with 6 strokes of the cane. Both conviction and sentence

did not amuse the appellant who unsuccessfully appealed to the High

Court sitting at Tabora in DC. Criminal Appeal No. 36 of 2013.

The first appellate court determined that appeal on three main

grounds of complaint namely; conviction founded on weak evidence

which did not prove the charge beyond reasonable doubt, appellant's

conviction founded on uncorroborated evidence and lack of evidence

proving that the appellant committed gang rape.

Mr. Rwegira Deusdedit, the learned Senior State Attorney who

represented the respondent/Republic before the first appellate court

did not support conviction and the sentence. He was emphatic

supporting the appeal on four main grounds to wit; one, the evidence

by the prosecution was at variance with the charge; two, non-

compliance with section 132 of the Criminal Procedure Act, Cap. 20

R.E. 2002 [now R.E. 2019] (the CPA) in preferring the charge against

the appellant who only aided the actual offenders; three, weak
evidence of visual identification in the absence of identification parade;

and four, unexplained delay in arresting the appellant coupled with the

failure by the prosecution to call an arresting officer or investigator to

testify (at pp 37-38 of the record of appeal). Nevertheless, the High

Court (Rumanyika, J.) did not purchase in any of those arguments. It

concurred with the trial court and dismissed the appeal culminating

into the instant appeal.

Initially, this appeal was called on for hearing on 13th February

2018 on which date hearing could not proceed for reasons which will

become apparent shortly. It turned out on that date that the

proceedings of the trial court were missing from the record of appeal.

The Court was apprised through an affidavit of Beda Nyaki, Deputy

Registrar of the High Court that efforts to trace the missing copy of the

proceedings were barren of fruit. In the course of hearing, Ms.

Upendo Malulu, learned Senior State Attorney representing the

respondent/Republic intimated to the Court that her office was in a

position to assist in retrieving the missing copies of proceedings. With

that assurance, hearing of the appeal was adjourned pending

reconstruction of the record of appeal from the copies of proceedings

to be availed by the office of the Director of Public Prosecutions (the

DPP) here in Tabora.

In our ruling adjourning the hearing, we registered our concern

on the disquieting state of affairs surrounding the appeal and urged

the Deputy Registrars to try and draw lessons from other jurisdictions

which have had similar experiences. We made reference to several

decision from other jurisdictions drawing inspiration on how such

courts have dealt with situations involving lost or destroyed records. Of

particular relevance is the decision of Woods (Mrs.) CJ of the Superior

Court of Judicature of Ghana in John Bonuah @ Eric Anor Blay v.

The Republic, Criminal Appeal No. J3/1/2015 (unreported) dated 9th

July, 2015. That decision drew experiences from the US, South Africa

and Kenya on similar problems like ours in this appeal. From the above

decision, this Court stressed that:-

"We think that any loss or m isplacem ent o f any

court record or part o f court proceedings is a
serious m atter that requires Deputy Registrars
o f the High Court to not only particularize the
concrete efforts that they have made to trace
back or restore the m issing record, but to show
what concrete efforts beyond mere words they
have taken to reconstruct or restore the record

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 before scheduling the m atter for hearing by
either High Court or this Court." [at page 6].

In compliance with the Court's order of 13th February 2018, the

Deputy Registrar, High Court, Tabora Zone wrote to the office of the

DPP in Tabora requesting for the missing copies of proceedings vide

letter Ref. No. J/HCT/C-90/Vol. VII/2/87 dated 11th June 2018. By its

letter Ref. No. NPS of TB/C.20/D.R/01 dated 24th September 2020, the

Office of the National Prosecution Service (NPS), Tabora Region

informed the Deputy Registrar that the copies requested could not be

traced from its office. Earlier on, the Deputy Registrar had sent similar

letters to the Prison Officer-In-charge, Uyui Central Prison which, like

the NPS, could not be of any assistance towards reconstruction of the

record of appeal in line with the order made on 13th February 2018.

Against the above background, on 20th October 2020, Mr. Beda

Robert Nyaki, Deputy Registrar, deponed to an affidavit indicating that

the efforts to obtain missing copies from the stakeholders had failed.

In other words, the position obtaining on 13th February 2018 had not

changed despite the order for adjournment pending exhaustive efforts

towards reconstruction of the record of appeal after engaging other

stakeholders.

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 The above notwithstanding, the appeal was cause listed for

hearing during the current sessions of the Court. On 20th November

2020 on which the appeal was called on for hearing, Ms. Upendo

Malulu, Senior learned State Attorney appeared representing the

respondent/Republic. The appellant fended for himself. In view of the

fact that the position obtaining on 13th February 2018 had not changed

rendering the record of appeal deficient on account of the missing

copies of proceedings of the trial court, Ms. Malulu offered what she

considered to be a solution to the quagmire. She did so placing

reliance on our previous decision in Mfaume Shabani Mfaume v. R,

Criminal Appeal No. 194 of 2014 (unreported) in which, faced with a

similar situation, we invoked our revisional power under section 4 (2)

of the Appellate Jurisdiction Act, Cap. 141 [R.E 141 2019] henceforth

the ADA, and nullified the proceedings of the trial court resulting in the

discharge of the appellant.

The learned Senior State Attorney invited the Court to do alike in

the instant appeal having regard to the fact that the appellant had

served substantial part of the sentence. Not surprisingly, the appellant

welcomed the learned Senior State Attorney's prayer.

 Arising from the above, it is clear that this appeal is still riddled

with uncertainties which render it impossible for the Court to proceed

with its determination this way or the other. Admittedly, the state of

affairs in the instant appeal, are, to say the least quite disturbing. We

registered our concerns during the previous occasion in this appeal

that loss of court records and other documents erodes the confidence

and trust bestowed on the judiciary for the proper administration of

justice. Undeniably, the proceedings of the trial court are missing that

as indicated earlier, efforts to trace them from the stakeholders have

not been successful as can be discerned from the affidavit of the

Deputy Registrar.

Naturally, in the absence of such proceedings, the Court cannot

meaningfully and objectively determine the grounds in the

memorandum of appeal. Sadly, the solution going forward has not

been provided for under the law. As remarked previously, the

legislature has left it to the courts to look for a solution. There is not so

much precedent locally and so, resort must be had to global

jurisprudential best practices for guidance. Faced with a similar

situation like ours, in Bonuah's case (supra) the Superior Court of

Judicature of Ghana made very pertinent to observations which we

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subscribe. At the risk of making this judgment unduly long, we have

found necessary reproducing at length the relevant excerpt thus:

'!'Judicial records are clearly vita! to the proper

functioning o f courts. But these m ay be lo st or
destroyed either through plain burglary, or fire
o r some other unfortunate natural calam ity. In
this technological age, it m ay also be lost
through the inability to recover electronic data;
that is recorded court proceedings, or scanned
exhibits, from a crashed computer. Thus, it is
not only against sound ju d icia l policy but clearly
im practicable to prescribe a one-size- fit a ll
uniform conduct in m atters o f lo st or destroyed
ju d icia l records, given the varying circum stances
o f each case and also the several related factors
that m ust legitim ately influence ju d icia l
decisions arising from such incidents.
Thus, in cases o f this kind, the real challenge
lie s in reconciling two competing interest.
These are firstly, an appellant's unfettered
constitutional right to a fa ir hearing, as already
noted, a fa ir and ju st appeal hearing on the
m erits within a reasonable time, by direct
access to the tria l record, in conform ity with the
fundam ental principle that an appeal is a re­
hearing; and secondly, the overriding

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 constitutional duty o f appellate courts, indeed
a ll courts, to keep the stream s o f justice pure;
to protect it from m anipulation and abuse, and
from being overran by unscrupulous persons
acting in collusion with dishonorable court
officials to pervert its course. Inevitably, an
appellate court faced with this im passe has a
duty to ensure, on balance, that these
com peting interests are sim ultaneously
realized. "[A t page 6]

In its subsequent decision, in Kwame Nkrumah@ Taste v.

Republic, Criminal Appeal No. J3/1/2016 (unreported) dated 26th July,

2017 the said court referring to Bonnuahs' case summarized the

relevant factors which must inform an appellate court like ours in cases

of lost or destroyed records as follows:

1. An Appellant sh all not be a t fault, responsible or blam able

for the loss or destruction.

2. An appellant is not autom atically entitled to an acquittal

upon the mere p ro o f o f lo st or destroyed tria l proceedings.

3. The quantum or m agnitude o f the m issing record-lost or

destroyed-and its relevance to the appeal in question sh all
be determ ined by the court.

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 4. Where it is proven that the m issing record is m aterial to the
determ ination o f the appeal it is for the court to determ ine
the viability o f a reconstruction o f the lo st record.

5. Where reconstruction is im possible then a retrial may be

ordered depending on the circum stances such as the nature
o f the offence and the length o f tim e spent in custody. [At
page 6].

Back home, in Mfaume Shaban Mfaume v. R. (supra) cited to

us by Ms. Malulu, the Court was confronted with a similar problem of

loss of record of proceedings of the trial court. Apparently, the first

appellate court had determined an appeal before it without the record

of proceedings of the trial court.

Like in the instant appeal, copies of trial court proceedings went

missing in Mfaume's case which made it impossible to proceed with

the hearing of the appeal. Similarly like in the instant appeal, efforts to

trace the missing copies failed to enable reconstruction of the record of

appeal. Furthermore, there was evidence through an affidavit of the

Deputy Registrar of the High Court explaining failed efforts to trace the

much needed copies of proceedings. The only difference lies in the fact

that the High Court in Mfaume's case determined the appeal which

gave rise to the impugned decision without being seized with the trial
court's proceedings. Confronted with the dilemma in balancing the

scales of justice between the appellant's right to a hearing on his

appeal and the fact that his conviction had not been reversed by any

court, the Court resorted to its revisional power and declared the

proceedings before the first appellate court irregular so was the

resultant judgment. In consequence, it nullified those proceedings.

Having nullified the proceedings of the first appellate court in exercise

of its revisional power under section 4(2) of the AJA, it became

inevitable to order that there could not have been any valid appeal

from the irregular proceedings of the High Court. At the end of it all,

the Court quashed the conviction and set aside the sentence meted

out to the appellant.

The Court arrived at that conclusion having regard to the period

the appellant had spent in prison serving his sentence which it

considered to be substantial. We have found ourselves compelled to

take a similar path as in this appeal.

The appellant in this appeal was sentenced to serve 30 years'

imprisonment with 6 strokes of the cane. He was sentenced by the

District court on 13th April 2011. He has thus spent 9 years and more

than seven months in prison. That period may not be as substantial

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compared to 16 years in Mfaume Shaban Mfaume's case but we do

not consider that it is in the best interest of justice holding the

appellant indefinitely in prison in the absence of any guarantee of the

availability of proceedings which will pave way for the hearing of his

appeal. That possibility remains a moot one given the position

explained above which militates against the appellant's right to a fair

determination of his appeal guaranteed under Article 13(6) (a) of our

Constitution.

There is one more factor behind the approach which has

informed us to take the approach in this appeal. As indicated earlier,

the respondent/Republic did not support the appellant's conviction.

The learned Senior State Attorney expressed his doubt on the validity

of the charge which, to him was not drawn in conformity with section

132 of the CPA taking into account the role the appellant is claimed to

have played in the commission of the offence. Similarly, he was

emphatic that the evidence adduced by the prosecution was at

variance with the charge. Sadly, the first appellate court's judgment is

conspicuously silent on these pertinent legal issues.

In consequence, all factors taken into consideration, we find it

inevitable to exercise our revisional power under section 4 (2) of AJA

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and quash the proceedings of the High Court in DC. Criminal Appeal

No. 36 of 2013 as well as the judgment of that Court dismissing the

appellant's appeal. Further, the trial court's proceedings giving rise to

the appellant's conviction and sentence in Criminal Case No. 368 of

2010 are quashed and the judgment convicting the appellant quashed

and sentence set aside. Inevitably, our order shall result in the

appellant's immediate release from custody unless held therein for any

other lawful cause.

Order accordingly.

DATED at TABORA this 25th day of November, 2020.

S. S. MWANGESI
JUSTICE OF APPEAL
L. J. S. MWANDAMBO
JUSTICE OF APPEAL
M. C. LEVIRA
JUSTICE OF APPEAL

The judgment delivered this 25th day of November, 2020 in the

presence of appellant in person and Mr. Tumaini Pius Ocharo, Senior

State Attorney for the respondent/Republic is hereby certified as a true

copy of the original.

D.R/LYIMO
DEPUTY REGISTRAR
COURT OF APPEAL

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