20170816 TZCA Tabora

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AT TABORA {CORAM: LUANDA, J.A., MMILLA, J.A. And MKUYE. J.A.) CRIMINAL APPEAL NO. 535 OF 2015 GODFREY MAHONA ... ~·····"········••a••··············•······~······················· APPELLANT ·• .. ~N•_. •~ ••-=: ....... : ... ~ ... .::~-~•. •' 0

VERSUS THE REPUBLIC ••..• P ■■ l ■■ 11••···· . ·······························••11••·················· RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Mgonya; l.) Dated the 18th day of November, 2015 in · DC Criminal Appea1-No;•=-12.4•of·-20:i:4 -·''·•·' •'•' ,..._. ·' .,

JUDGMENT OF THE COURT i~ & 16th August, 2017. LUANDA, JA.: This is a second appeal. The above named appellant was charged, convicted and sentenced to life imprisonment by the District Court of Shinyanga at Shinyanga for rape c/ss 130 (1) (2) (e) and 131 (3) of the Penal Code, Cap. 16 R.E. 2902 (the Code). In addition, he was ordered to pay Tshs. 300,000/= as compensation to the victim of rape. Aggrieved by . ,, ,·,, -the,-, ,finding --.and,, sentence of the trial District Court; he unsuccessful 1 i.,.... . '" ...""--'"''°.Kf...•i:.µ, ·'clppealed to: the: High;_Court of'Ta·nta·n,a'"('Ta'obr,rRegistfy):·stilr dis·satisfied" he has come to this Court. In this appeal, the appellant was unrepresented and so he fended for :,.;·"•'=· -~htmsel.f;,i-whereas- the ,:r:espondent/Repub!lc· had- -the services of Ms. Jane · ···-· ,.. -~ Mandago, learned Senior State Attorney. Before ·we commenced hearing the appeal, Ms. Mandago prayed to raise a preliminary point of law under Rule 4 (2) (a) of the Court of Appeal Rules, 2009 (the Rules) wh_ich we allowed her to do. The gist of her po.int . .... ,. _ . , . ' ·- ...., ' ... ·. , - . . . . . . . ·-··~- - ,;~ ----~ ~, ...... -_::.~1 was that because the notice of appeal to the High Court was filed/lodged outside the prescribed time of ten days vide section 361 ·(i) (a) of the Criminal Procedure Act, Cap. 20 R.E. 2002 (the CPA), the decision of

High Court is a nullity and so this appeal has no leg to stand on. She made reference to page 99 of the record of appeaL At first, we were moved by her. presentation. But on reflection and after we had -a dialogue with Ms . . Mandago, we changed our position .in that we were of the firm view that .the notice of appeal was given in time. We will attempt to" explain. On 25/10/2013 the appellant was convicted and_ sentenced to the prison. On 29/10/2013, four days after he was convicted, the appellant 2 r . . .• · .,, ,_,,, ,.. , .,-,. ~..:,..,,indicated·hi5"'1ntehtioli to· appeal to' the High· C6lrff"in~"writfnff'aY18~fffe't}fficer incharge of the Prison certified to that effect. But the Registry Officer of the High Court of Tanzania (Tabora R.egistry) endorsed the notice to have been ·,:~,,. ,,._.'1',,,;::·-:,c•~!odged :,en~1"'3-fel.,2/-2013. The ·questi0r"F' novV·"'iS' '~Vllrch ·:of th~•~. two···dates namely 29/10/2013 or 13/12/2013 should be taken as the correct date for giving notice of appeal? Section 361 (1) (a) of the CPA reads as follows:- '15:361 (1) Subject to subsection (2)✓ no appeal from any finding/ sentence or order referred to in section 359 shall be entertained unless the appellant- ( a) has given notice of his intention to appeal within ten days from the date of the ... , . \. finding/ sentence or order o0 in the case of· a sentence of corporal punishment

on!½ within three days of the date of such sentence;'' 3 lodging or filing a notice of intention to appeal. To give a notice of intention to appeal in our view is not synomous with lodging or filing the :I:-'.:-..:.:;~;:-.?-,.,.v.,,,-.'.,.,,same•. Whereas lodging,;or,-.fiHng-,-,a··,F10tire-of~;int,etition-'-tO appeal implies';'the•n:t.. J,-c'",'""",'., process of filing in appropriate place. On the other hand to give a notice of . intention to appeal is merely to declare or show one's intention. In our case section 361 (1) (a) of the CPA does not demand the process of filing; it is enough if an aggrieved person manifest his intention to appeal even -orally after the trial District or Resident Magistrate Court had passed sentence. Unfortunately, the section does not provide the modalities as to the format as to how it should look like and where-or to whom it should be addressed like that provided in the Court of Appeal Rules, 2009 (the Rules). Rule 68 (1) of the Rules provides how such notice should be given . . _and where it should be lodged, inter alia. The Rule reads as follows:- "68. -(1) Any person who desires to appeal to. the Cowt shall give notice in wtiting, which shall be lodged in triplicate with the Registrar of the High .Court c!t thf3. place wher.e.. tbe decision against which it is desired to appeal was given, within thirty days 4 ,- ............ appeal shall

institute the appeal. '' So long as the appellant has shown his intention to appeal in writing and .. . . . \ . certified:c~by.-,.th~,.! .Off.tG;ei':iilnchar§e., {,f.o,:prison that ·in . our•N~ew,·•-suffices,::..tf.ie1"?.... ·,,;.:.,.,~•~,-,.,..... requirement of section 361 ·(1) (a) of the CPA. The correct date therefore is . that which the appellant gave his intention to appeal i.e. 29/10/2013 and not the date of filing. Since that was the fourth day after the delivery of the decision, the appellant gave his intention to appeal within the prescribed time of 10 days. The High Cou1t did not infringe section 361 (1) (a) of the CPA. The appeal in the High Court as well as in this Court were properly lodged. Back to the appeal. The evidence adduced in the prosecution case was to this effect. Hollo d/o Boniface (PWl) was a resident of Majengo, within Shinyanga Municipality. She was married to Joseph Masansu and stayed with Neema d/o Jiyunga (.PW4), the victim of rape who was the daughter of her sister in law one Juyuga d/o Masansu (PW2). It is the case for the prosecution that the appellant was not a stranger to PWl as well as PVV4. It is further the pro~ecu.tioo. c:.a?.e-;~h 9t the.appellant who was married,_ was not staying_ ............ -.-, . 5 -,- -•, ....... ,, the appellant was a very close friend of PWl. It is the evidence of PWl that before the wife of the

appellant 1 -~r,,;,,.~_--,:-,i••.j-••,eiotr.au~Ue€h~:RV:1/.1:t00k,,s0rne. food stuff and,sent.,to the Wtfe·~@f4-he-appellaAt~in- ... \.: 00 her kitchen utensils. On 7/2/2013, it was not stated the time, the appellant went to the llo_mestead of PW1 and told her to collect her kitchen utensils. · The appellant suggested to her to allow PW4 to go with him to his house to collect the said kitchen utensils. The proposal was accepted. So, the appellant in a company with PW4 went to his house. It is the evidence of PW4 that while in the room, the appellant raped her and told her not to disclose to anyone. But PW4 disclosed the incident to PW1 immediately. PWl checked PW4 and discovered she had spermatozoa on her vagina and bruises. The matter was reported to PW4's mother who responded immediately and eventually PW4 was sent to hospital via Police. In his defence the appellant denied to have committed the offence. He said on 17/2/2013 around night time he was at home sleeping. While . _sleeping,.~he ..wa..~.,-~rre.sted and sent to poli_ce ... On. the, f9Jlow_ing . ;,qay his . statement was taken. 6 one who raped her was no other than the appellant. The prosecution case relied on direct oral evidence and the cautioned statement of the appellant. lower courts on the following areas. One, that the High Court had wrongly upheld the conviction by altering the charge from c/s 130 (1) (2) (e)

and 131 (3) to that 131 (1) (2) (e) and 131 (1) of the Penal Code. Two, the evidence of PV\/4 which both lower courts found credible and reliable was taken without fully conducting a voire dire examination. Three, the medical evidence was received without the appellant being examined to prove that he had sexual intercourse with PW4. Four, the evidence of the cautioned statement of PVV3 WP D/Cpl. Ruth was not received and admitted in evidence in compliance with the law. Five, the evidence of PWl and PW2 is not reliable as the ten cell leader to whom they had reported the offence was not summoned and testified. Lastly, he said the prosecution side did not prove its case to the standard required i.e. beyond reasonable doubt. Having carefully read the memorandum of appeal of the appellant, we w..ish to m;:*e,.tw.o .opservptions. One, the lpst ground in,.thsJtJh~. _...... . prosecution have ·not proved its case beyond reasonable doubt. Strictly 7 .. "' .·····--"""•'-•·"'''SPeakftYg,,.·m-at"iS'"'notd 'ground of appeal:: Rath·er1t"iSa""Ctliminatftli1'"0f··'all··the .--,. · ·. --:·· grounds raised in a given appeal. It cannot stand alone. Two, the fifth ·ground of calling ten cell leader is a new ground. It has 'bei.ng raised for the . . t •( '.1,-,r,-,:,it·.'.·~~~.,::.fivs.t<t~m~:'.l:A1tt!rlifr.;,f0ur-br It· was not raised:rancl ,-Gaf.P✓.a~~dd·~stcthe,11!9J§h~,G0wrt. \ Normally this

Court will not entertain a ground of appeal basing on facts which was not first raised and canvassed in the High Court. So,· we shall not discuss ground number five. When the appeal was called on for h~aring, the appellant told the Court that he relied on the grounds of appeal he h~d raised. So, he opted the Republic to respond to his grounds first and he will make a reply if need be. When the Republic finished its presentation, the appellant said PW4 was a liar. He left it to the Court to decide. Ms. Mandago started with the voire dire examination. She said PW4, the victim of rape was 5 years old. Before she gave .her evidence, the trial Senior Resident Magistrate conducted a voire dire examination as is . mandated by section 127 (2) of Evidence Act, Cap. 6 R.E.

2002. The trial magistrate was satisfied that PW4 understood the meaning of oath. So, he _.did.JJOt..g.o .further to ascertain as to whe.ther .the cl).iJ.9.. poss~~?~ci spfficient intelligence and understood the duty of speaking the truth. It was not 8 Republic, Criminal Appeal No. 57 of 2010 (unreported) where the Court explained in details how to conduct voire dire examination. Magistrate conducted a voire dire examination in respect of the first part of · · voire dire namely oath. He asked PW4 the child bf tender age several . questions to establish whether slle knew the meaning of oath. The questions and answers are in the record of the case. The magistrate was satisfied that PW4 understood the meaning of oath; PW4; was sworn and she gave evidence. We are satisfied that the trial magistrate conducted voire dire examination properly to ascertain whether PW4 could tender evidence on oath. The complaint that he should have also tested her intelligence and see whether she also understood the duty of speaking the truth does not hold as the two tests operates in the alternative and not conjunctive. Indeed that is the interpretation of section 127 (2) of the Evidence Act ·1n Nyasani s/o Bichana vs. R. [1958] E.A. 90 cited in Mohamed Sainyeye case cit~d supra, the then Court of Appeal for Eastern African stated as follows:-:- 9 to ascertain, first whether a child tendered as

a witness understands the nature of oath, and, if the itself that the child is possessed of sufficient intelligence to Justify the reception of the evidence and understands the duty of speaking the truth " From above it is clear that the trial court conducted voire dire test properly .. as per the dictates of section 127 (2) of the Evidence Act. The evidence of PW4 was that while in the house of the appellant, the appellant took her to a bed, undressed her, lubricate her vagina with saliva and put his penis in her vagina. She felt pain. The appellant warned her not to disclose that incident to anyone. PW4 disclosed it to PW1 .. immediately that it was the appellant who raped her. PWl checked her, she saw spermatozoa in PW4's vagina and bruises. The doctor PW4 Richard Okwaeli who attended PW4 observed blood spot, bruises, spermatozoa and hymen was torn in her vagina. W'e agree' ··with th·e··-findihg ·of the lower courts that PW4 was•··a~' •·--- · · ·· · ·· credible witness. PW4 explained to PWl what took place. And the appellant 10 - . t>•-aa,:•:... '.'..,,,,b",'.":"'.!Was-not a ·straAger·to -these'Witnesses:...,Tlle''B'PP~iiant·did not suggest why-';,-_.,,.. ,.~"••-"'" they framed a serious case against him. With regard to cautioned statement of the appellant, Ms. Mandago l"'"'T":~-- .• '~·-"'~··, ·"l:.•-U• ,-u i.'".J. h'••: ~i.. "I .• _ - ' ' :\• ..... :"1.t.A,.,;~,;-.r 7:t

•.'"!'=T.Jt.~!::'.;!l..1":.".':-":.;r:.-r""..!::.~--:.r;·;.r~t.,-t};!.ft.>:t;."r~,'.(:~ ~-1•,r,-_;;~•~1-, . ·: .. • ... • • • ~ .... : , " ' _;_; ~ ..,.•.,:,,s ,.,, ::'--.:-;.•"!'.'.!!!f.:.-::-.::• . --·-••,--· ---• -"'- ·conceded this ground that if was taken beyond the prescribed time of four hours. We entirely agree with Ms. Mandago. The evidence on record on the prosecution side does not show as to when the appellant was arrested. It is in the defence which shows the -~·--•--i• ··.' .,·.appellant was- airested·on 7/2/2013 around 21:00 hours. His evidence oh'· his arrest was not challenged at all. The cautioned statement of the appellant was taken on 11/2/2013 . beyond the prescribed time as mandated by SS 50 and 51 of the Criminal Procedure Act, Cap. 20 R.E. 2002 (the CPA). In lanta Joseph Komba vs. Republic, Criminal Appeal No. 95 of 2006 ( unreported) this Court said: "The obtaining of the statements of the appellant while still in custody outside the time provided under the law for investigative custody,'·, coniravened'·"the provisions of 11 " . provides for exclusion of evidence illegally obtained ,✓ The cautioned statement of the appellant was not taken within the 1.·: · · .· • · ·:. ,,.,,<;>Y,.~:- />!~?·r.:.--.\-:-:~•·."":·:i!;~.-~:...r: •.T:.,;_• :.""';.'":"'...,'.':'; • 1.:.•l:-.;...~~::-;-i-i'.1;,,.__.. .. .;,.-~f--v ,;,. : ·· · · ·. ~- . · :~ .,.,.~.,.r ..

,_,.~·,r.-.::-:~t.~·-•-r;1.:.:-:..i.!•~~---:'I·::.:-:-:;.;:-,;.:~,:...:::i::'~-;; ..i, prescribed time. The same is not admissible in evidence. We expunge it from the record. As regards the charge sheet, Ms. Mandago said the complaint of the appellant is that the order of compensation for a person convicted for --rape-is ·covered tlnder··;S; 131- (-1)·of the Code; The charge·sheet·does· not~·- -'~•--➔ 1 indicate that section. So the order of compensation cannot stand. We wish to reiterate that the Charge Sheet must always contain with sufficient information to enable the accused person understand the offence he was going to face as well as the sentence including the order of compensation. ·,, ,· ..-· .. · · ,.,_, -Since ·sectiort·'13'1-{t) of,.:the Code was not included in the charge sheet, the order of compensation cannot stand. In the exercise of our revisional powers as provided under section 4 (2) of the Appellate Jurisdiction Act Cap. 141 R.E. 2002, we set aside the order of compensation. _Turning to the_, appellant. that he should have _also been rnedJ~a_lly. ___. examined, Ms. Mandago did not touch this ground. But all the same, the 12 ravisher to undergo a medical examination. As shown above the evidence on record is very clear that PW4 was ··· .· •·. ,.raped'"by lHetappefi'anf... Her evidence was· cor·robcira·tecf·5y\he·'.ev1clen'ce··of PW1 and PW4. VVe find no reason to differ with the concurrent findings of the lower courts. Save for the compensation order, the appeal is devoid of merit. The . .-. . . ... , .. • j, ~-·,. ,. • , • • • -~ .... ~ •• •' ' • Order accordingly. · DATED at TABORA this 15th day of August, 2017. B. M. LUANDA

JUSTICE OF APPEAL B. M. MMILLA

JUSTICE OF APPEAL R. K. MKUYE

JUSTICE OF APPEAL I certify that this is a true copy of the original. P. w~t~~A ·-· .... ·--y·-- ... ,- ,~··

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL 13