20101018 TZCA Mwanza2

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IN THE COURT OF APPEAL OF TANZANIA •

ATMWANZA i ·I' (CORAM: RAMADHANI, C.l, KIMARO,:l.A., And MANDIA, l.A.:) I CRIMINAL APPEAdNo. 1s1 OF 2001 ·1: : ' HAKIZIMANA SYRIVERSTER............... .J ................................... ;j. APPELLANT VERSUS I, THE REPUBLIC .....................................!i~ •••••••••••••••••••••••••·•••••••••• RESPONDENT ,1· ' ,j ·II (Appeal from the conviction ofI the High Court of Tanzania . at Bukoba} ·I• ., I' (Sambd, l.) ·f ·\ dated the 31ST day of May, 2006 in l Criminal Appeal No. 41 of 2006 I --------i---- 1'

JUDGMENT OF JHE COURT 'I 11th October & 18th October, 2010 MANDIA, J.A.: The appellant appeared before the District Court of Muleba on a . . 'l charge of Rape c/s 130(1) and 131(1/iof the Penal Code as amended by the Sexual Offences Special Provisions\ Act, Number 4 of 1998. He was ·)' i:! found guilty, convicted and sentenced to life imprisonment. He preferred an appeal to the High Court of Tan~nia at Bukoba. His appeal was dismissed in its entirety. He has preferre1 a second appeal to this Court. I 1 Evidence which led to the appellant's conviction and subsequent sentencing tended to show that on 13/10/2002 PW2, Nduwimana Apolonia, a refugee from Burundi then living at Lukole A refugee camp in Ngara District, sent her grand daughter PWl Hatungimana Lucine, with whom she was living, to the appellant's shop situated in the _same neighborhood within Lukole A camp to buy kerosene. According to PW2 Nduwimana Apolonia, her grand daughter delayed in returning home which made her worry so she decided to follow her. She met her daughter c~ming out of the appellant's house I while crying. On asking her why she was crying, the girl told her the appellant had raped her. She examined the girl's private parts and found her discharging some mucoid substance. She raised the alarm which led to the arrest of the appellant by PW3 Nyandwi Deodone, amongst other people. The appellant and the

victim were taken to the Police Post situated within the refugee camp where the girl was issued with a PF3 with which she was refered to hospital for treatment. The victim of the alleged rape i~ PWl Hatungimana Lucine. After conducting a thorough voire dire examination, the trial District Court took her testimony on oath. We use the word "thorough" advisedly. We are of ' 2 . the opinion that the examination conducted by the trial court covered every aspect of voire dire examination as required under Section 127(2) of the Evidence Act, Chapter 6 R.E. 2002 of the Laws. At the end of the voire dire examination, the trial magistrate took the evidence of PW1 on oath. In her testimony, PW1 Hatungimana Lucine identified the appellant as a person who used to live in the same building, called "blende", with her but in a separate apartment. She said the appellant was a petty trader selling, among other things, kerosene. Hatungimana Lucine narrated the events on the day she was sent by her grandmother PW2 Nduwimana Apolonia to go and buy kerosene at the appellant's shop. She testified that instead of selling kerosene to her, the appellant seized her arm, dragged her into his house, stripped her naked and had carnal knowledge of her. She said the appellant covered her mouth with his palm while raping her. After a while the appellant left her free and she went out crying. Outside she met

her grandmother and narrated her ordeal to her. The grandmother raised the alarm which led to the arrest of the appellant and report to the Police. She tendered the PF3 issued to her which was admitted and marked Exhibit Pl. 3 In his defence, the appellant acknowledged his arrest but denies the allegation of rape. As we said earlier, the first appeal filed by the appellant was dismissed in its entirety, largely on the ground of credibility of witnesses. The record of appeal in the High Court shows that the first < ground of appeal in the High Court was. based on the improprieties on the PF3 as pointed out by the appellant. This ground was not addressed at all by the High Court in its judgment. In this appeal the appellant has filed a memorandum of appeal. The memorandum filed is a do-it-yourself job which essentially raises three grounds, namely:- 1. That the contents of the PF3 were of doubtful reliability and the Court 1 did not summon the doctor who perform the ~edical examination to prove the contents of the 'pf3. I I 2. That the whole case for the prosecution depended on circumstantial evidence where 4 there was material discrepancy between different witnesses.

3. That the trial was conducted by Biyereza DM and the judgment was written by Komba DM which was illegal. As remarked earlier, the appellant appeared in person. The respondent/Republic was represented by Mr. Edgar Luoga, learned Senior State Attorney. At the start of the hearing of this appeal, the appellant appraised us of the fact that the case was tried to finality in the Court of first instance but the proceedings were quashed on appeal for failure by the trial court to observe some requirements of procedural law. The High Court ordered trial to commence de novo in the same trial court. The appellant prayed to this court that the record of proceedings which was vacated by the High Court be called up for inspection by this court so that the evidence given by the witnesses in the two records be compared for veracity. 5 We will start with the application ·made by the appellant to have the record of vacated proceedings be calle1 up by this court for comparison. In this we observe that the High Court, a\ a first appellate court, acted under Section 29(b) of the Magistrates' Courtt Act, Chapter 11 R.E. 2002 of the laws which reads thus:- ''29(a). ....... . (b) to quash any · roceedings (including proceedings which term~nated in a decision or order of a district court kubstituting· an acquittal for a conviction, not b~ing a decision or order confirming an acquittal qy a primary

court) and where it is considered desirable, order the case to be heard de novo either before the Court of first instance or some !bther primary court or district court having Juris~iction: Provided that where p,:bceedings are quashed and an order for rehearinb is made as aforesaid- (i) the provisions of para~raph (b) of sub;ection (1) of section 49 and 01 subsection (2) of that section shall be applicabl~ to such rehearing as if the case had been transferred, ! and (ii) no plea of res Judica}e or autrefois acquit or autrefois convict shall b~ entertained in respect of any decision or order in the proceedings so quashed; (c).............. . 6 I I In view of section 29(b) of the Magistrates' Courts Act, proceedings ' that are quashed are a nullity and that is why under Section 29(b)(ii) no I plea of res Judicata or autrefois acquit or autrefois convict can be raised as regards them. As such no order of recall can be made regarding them. The I prayer by the appellant is therefore reje~ed. The appellant also raised a querry about the PF3 issued to PW1 I Hatungimana Lucine when he said he was not afforded an opportunity of examining the medical officer who made the report. It is true when the PF3 I was put in evidence the appellant did not object. The record however ' shows clearly that the trial court did not' inform the appellant of his right to ' have the medical officer who

filled in the report summoned for examination I as to the contents therein. This court has consistently held that failure by a trial court in informing an accused person of his right under s. 240(3) of the Criminal Procedure Act to have a person who makes a medical report I called renders the medical report valueless. We have said so much ni ' laphari luma V R, Criminal Appeal No 104 of 2006 (unreported), Jackson Mlonga V R, Criminal Appeal 'No. 200 of 2007 (unreported) and I 7 Wilbard Kimangano V R, Criminal Appeal No 235 of 2007 (unreported). We therefore discount the PF3 put in evidence as Exhibit Pl. ' Having discounted the PF we are left with the evidence of the prosecutrix herself, PWl, Hatungimana Lucine, her grandmother PW2 Nduwimana Apolonia and PW3 Nyandwi Deodene. We start with the evidence of PW3 Nyandwi Deodene. His role was merely to go to the appellant's house and apprehend him so he had nothing to do with proof of the offence. We are therefore left, with the prosecutrix and her grandmother. Before we go into the substance of the evidence we should point out that this is a second appeal, and in a second appeal the court is supposed to deal with questions of law only. In Ludovide Sebastian V Republic, Criminal Appeal No 318 of 2007 (unreported) we said this:- ' "On a second appeal we are only supposed to deal with questions of law. But this approach rests on the

premise that the findings of fact are based on a correct appreciation of the evidence. If both courts completely misapprehend the substance, nature and quality of the evidence, resulting in an unfair conviction, this Court must, in the interests ofJustice, interfere'~ 8 I Can it be said the two courts below dealt with the findings of fact and ,1 : . law exhaustively so that we cannot inierfere? Both the trial court and the High Court on appeal found it as a flct that the prosecutrix PWl was a credible witness and that her evidenle was corroborated by that of her grandmother PW2 Nduwimana ApoloJia ..The record however shows that both courts did not address themselvJ on a very necessary ingredient Of . j the offence the appellant was charged with, to wit, penetration. The only reference to penetration by the victim is at page 20 of the record where the victim says:- \ ' "...... seized me by my arm dragged me into the house where he stripped me :nacked (sic) and had my ;carnal knowledge. The accused person at a/I material time he was having my carnal k~owledge was c,overing my mouth with his palm '~ · :! On the part of the grandmother,· ~W2 Nduwimana; Apolonia, the only J : evidence which suggested something w'rong with the vi(:tims private parts is at page 25 of the record where she sar:- . "..... .! observed in ':!ttatungimana's private parts and detected some discharge of •1'

I mucoid substance therein '~ · 9 !' An essential ingredient of the 1ffence of rape js as laid in Section 130(4)(a) of the Penal Code which statbs thus:- ! I "(4) For the purposes of proving the offence of rape- ! (a)penetration, however slight is sufficient to constitute ttie i sexual intercourse necessary to the offence. This Court has amplified the requirement of penetration .and laid down guidelines to assist in proof of t~e offence in the case of Mathayo I Ngalya @ Shabani V Republic, ~riminal Appeal • No 170 of 2006 (unreported), when it said:- .' ~'For the offence of ~ape it is of ,utm~st importance to lead ~v,dence of penetration and not simply to gl:ve a general statement alleging that rape was committed without elaborating what actually took place. It is the duty of the prosecution and the court to ensure that the witness gives the relevant 11 , evidence which proves the offence'~ , '1 ' Other cases which have put emphaisis on proof of penetration are:- 1 . 10 .I I 1: (1) Alfeo Valentino ·V Republi~: Criminal Appeal No 92 of 2006 I . . (2) Charles Kayo'l<a V Republi~ · Criminal ' Appeal No 325 of 2007 I (3) Ally Mlawa VR, Criminal Appeal No 77 of 2007 (unreportecl) Both the trial court and the High :court did not address themselves on I . this fundamental requirement which must be proved in cases of rape. Failure of the victim to say what exact happened is necessarily

fatal. As ,[: this court held in Selemani Makumba V Republic, Criminal Appeal No: i I 94 of 1999 (unreported):- "True evidence of {ape has to come from the victim if .an adult, that there was 1: penetration and no r;onsent, and in case of 'I any other wome{J where consent is irrelevant that there ',[was penetration'~. . '.,.j:,. '' Both the evidence of the victim aid that of her gr~ndmother did not prove penetration, and since we have discounted the PF3 put in evidence, Ii it remains that an essential element dfI the offence remained . unproved both at the level of the trial court and d~ring the appealiin the High Court. ·r . . Failure to apprehend this important a~pect of the law regarding sexual , !, . ' 11 offences entitles this court to intervene and correct this situation which has in fact led to miscarriage of justice. Lastly, the appellant raised the point that two District Magistrates wrote the judgment. We have checked the record. From the time the charge was read over to the accused person, now the appellant, and he entered his plea to the date on 22/3/2006 when the trial court made an order that judgment will be delivered 6n 3/4/2006 the trial magistrate was one G.G. Biyereza, District Magistrate. Then at page 43 of the record the coram shows that the magistrate who wrote the judgment is one D.D. Komba, District Magistrate. At the end of the judgment on 5/4/2006

when the trial court found the appellant guilty and convicted him, the magistrate who signed the judgment and dated it is G.G. Biyereza, District Magistrate, who continued, on the same day, to sentence the appellant. The record is therefore not clear who wrote the judgment between D.D. Komba and G.G. Biregeya who are both District Magistrates, and whether one took over from the other in terms of Section 214(1) of the Criminal Procedure Act. 12 • We would have been minded to exercise our revisional jurisdiction I under Section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the ' Laws R.E. 2002 as amended by Act ~umber 17 of 1993 as regards the I breach of the provisions of Section 214(1) of the Criminal Procedure Act, but in view of our findings as regards the medical report PF3 and the fact that the offence was not proved at all, we are constrained to agree with I the learned State Attorney who didI not support the conviction and I sentence, that there was no evidence to sustain a conviction. Accordingly we quash the conviction and set aside the sentence. The appellant should be released from custody unless he is held on some other lawful cause. I I th DATED at MWANZA this 18 day of October, 2010. A. S. L. RAMADHANI CHIEF JU.STICE i 13 "' I N. P. KIMARO '

II

JUSTICE OF APPEAL t, ,I

I I I J' W. S. M~NDIA JUSTICE d!F' APPEAL . 1.- ,( '' i I \ I' I certify that this is a true copy ~f the original.

I I I ' ii P. W. Bampikya

SENIOR DEPUTY REGISTRAR ·1 f i ,,, ! ',, f i 14 , I l.