abilahi mshamu mnali vs republic 2009 tzhc 78 5 august 2009

IN THE HIGH COURT OF TANZANIA

AT MTW ARA CRIM INAL APPEAL NO. 175 OF 2007

O RIG IN A L NEW ALA DISTRICT C O U R T CRIM INA L CASE NO. 22 OF 2007 Before: H.O Khoja, Esq: P D M ABILAHI MSHAM U MNALI .................... APPE LLA N T

VERSUS THE REPUBLIC .................................... R ESP O N D EN T Date ol La st Order: 29/4/2009 Date or ju d g m e n t: 05/8/2009

JU DG M ENT MIPAWA, J. The appellant Abiiahi Mshamu Mnah was charged in the District Court of Newaia with two counts viz, Rape c/s 130(1)(2)(e) of the Penal Code as am ended by the sexual offences special provision Act No.4/1S98 and Impregnating a school girl while pursuing Primary Education c/s 4(5) of GN 265/2003. In the first count the Appellant is alleged to nave had carnal knowledge with Fadina Hamisi aged 16 years and in the second count the Appellant is alleged to have impregnated Fadma Hamisi before completion of Primary Education. The appellant was convicted as charged and at the end of the day he reaped a sentence of Tnirty years imprisonment in the first count and three years in the second count. Dissatisfied, the appellant has now appealeo to this court 1 The complainant or victim was a schooi girl at Lukokoda Primary School schooling in standard VII. The school girl Fadina Hamisi PW.1 told the lower court that sometime in January, 2006 at about 14.00 hours she was called by the Appellant who told PW.1 that he wanted to make love with her however PW.1 told the Appellant that he should wait until the next day. On the following day PW.1 went to the office of the Appellant who was her headteacher and had had sexual intercourse with him. PW.1 is recorded in evidence like this:- .... [in the officer] the accused told me to put off my cloth, I put off my clothes a

shirt, biouse underwear and then told me to lay on the table, I complied and then the teacher put off his clothes a short and jeans but had no underwear. He- then come on tap of me... and ' had sexual intercourse with m e ..... The learned magistrate recorded the evidence of PW.1 in Kiswahili that: “ . allchukua Iiboro lake alitia kwenye “m cho nyo” uke w a n g u ...” meaning that the appellant inserted his penis in her vagina and had sexual inteicouise with her teacher from 19.00 hours to 20.00 hours and was paid Tsi 1.1,000/- for the work done. The witness further told the court that they continued making love since then until on 18/1/2007 when she was examined at Lukokoda dispensary and found pregnant, [three months pregnancy] PW.1 further told the court that when the appellant realized she was pregnant, he asked PW.1 about the nancy whereupon PW.1 pointed the Appellant as the one who is responsible for the pregnancy. According to PW.1 the 2 DW.2 who is the Ward Executive Officer of Lukokoda told the court below that he was- summoned to question PW.1 about the pregnancy in front of five people who were “ Mratibu Elimu Kata” Ahmad Lilanga, the Headteacher [appellant] Abilahi, Peter and Abilah Mning’eche where the witness PW.1 [victim] stated that she had sexual intercourse with six men namely Hamis Rashidi Nalinga, Athman Nakanda, Azizi Mohamed, Abilah Mussa Kamanya

and Hamisi Seiemam Sobi but said the one who impregnated her was Hamisi Seiemam Sobi. Hamsisi was arrested however the girl changed and mentioned Hamisi Rashidi Nalinga as responsible for the pregnancy The evidence of DW.1 and DW.2 was further corroborated by DW.3 Aham ad Alfan a teacher at Lukokoda Primary Schooi who testified more or less the same that the girl PW.1 her mentioned six men or youths as her lovers. The learned State Attorney who appeared before me declined to support the conviction of the appellant on reasons that first there was nu pi oof of the age of the victim that she was under 18 years. He referred to this court the case of Emm anuel Kibona and others v.R [1995] TLR.241. Secondly the learned State Attorney challenged the trial magistrate for embracing the evidence of PW.1 who was the victim He referred the case of Shebe Salehe v.R [1987] TLR.193, 194. he submitted that the court should warn itself on the unconobcraieci evidence of a single witness in rape cases. He said that the f.ibi count was not established and evidence was not water tight. SuDiiiitiing on count two the learned State Attorney told the court that PW.1 had mentioned many youth who had sexual 4 intercourse with her therefore it was difficult to determine actually who caused PW.1 to be pregnant. The doctor who examined the victim was not called to testify and be cross exam ined as it was

held in the recent court of Appeal case of Selemani Mwitu v.R Cr.App NO.S0/2G00 unrepcrted. In his m em orandum of appeal the appellant asserts that the learned District Magistrate did not bother the importance of another direct witness to give what he or she saw. Generally he says there was no corroborative witness. Further he asserts that although the learned District Magistrate referred to the provisions of R.18 of the Law of persons G.N. 169/63 which provides that; Hata kama m wanam ke alikuwa akitembea na mabwana zaidi ya mmoja aiipopata mimba ambaye atatajwa na m w anam ke huyo hawezi kukataa kuwa baba wa mtoto huyo. ... The aoove except means literally that even if a woman has had love with a num ber of persons the fact that she mentions a person as responsible for the pregnancy at issue that person so mentioned cannot cie-me or dispute to be a father of the child. Therefore at this connection the appellant begs the court to agree for a process of DNA [torn the baby delivered. I will start with the assertion by the appellant that there was no any other dneci evidence/witness to corroborate the evidence of the victim. The learned State Attorney Mr. Mkude on this aspect while 5 not supporting the conviction of the appellant submitted that the court embraced the evidence of PW.1 who was the victim. He referred to me the case of Shebe S alehe v.R 1987 TLR.193, 194

The evidence was uncorroborated and that the court should warn itself on the uncorroborated evidence of a single witness in rape cases. To my mind the evidence of the prosecutrix PW.1 is very direct and suffice so to speak to clear the doubts that it was the appellant who used to have had sexual intercourse with the victim the act which caused the witness PW. 1, than a STD VII pupil, to conceive. It would appear from the evidence that the appellant had enticed the girl several times until he won his pupil by virtue of his position. Look at what this girl stated in her evidence. . on January, 2006 it was at 14.00 hrs where Mwalimu Mnali called upon me stating that he wanted to make love with me I told him to wait until tomorrow then on the said next day I went the accused in his office and told me to put of my clothes I Put off my clothes a skirt blouse underwear and then told me to lay on the table I complied and then the teacher put off his ciothes a short and jeans but had no underwear. He then come on top of me and... hau sexual intercourse with me. “alichukua iiDoro iake aiitia kwenye “m chonyo” uke w a n g u ... We stated at 19.00 hrs to 20.000 iiib and fimsned by discharging his sperms ii ko my private parts. He then withdraw his pens and gave me 1,000/= s h s ..... The learned trial Magistrate clearly observed the evidence of PW.1 that trie appellant continued to have

sexual intercourse with the 6 appellant till 18/1/207 when PW.1 was found pregnant. The learned Magistrate was aware also that there was no corroborative evidence. The learned State Attorney challenged this finding of the trial magistrate and submitted that corroborative evidenced was needed and the warning of the magistrate on acting on the uncorroborative evidence of PW.1 was missing. However with respect to the learned State Attorney submission, it is clear from the judgm ent of the lower court that the learned magistrate warned himself on the danger of acting on uncorroboralive evidence of a prosecutrix when he said that; On the foregoing I warn myself of the dangers and as I stated previously that the victim is a honest witness and what she stated is true version..... It is pertinent.clear and trite law nowadays that the days of seeking corroborative .evidence in order to secure conviction in rape cases have been dum ped in a quagmire of unnecessary by virtue of the enactment of the sexual offences special provisions Act, 1998 which section 127 of the Evidence Act 1967 by adding sub-section (7) the amendment allowed conviction of rape even on uncorroborated evidence of a child of tender years and a single witness where the court is satisfied that she was/is telling nothing but truth. This is what the lower court observed and satisfied itself that the witness was honest and

was telling the truth. In this vein see the supreme court of Appeal case in G m a ry Kijuu v.R Cr. App. No. 39/2005 [unreported] Kaji J.A ir.eie was no evidence on record to confirm that there were other s;x persons allegedly to have been involved with PW.1 apart 7 from the evidence of the appellant himself that the girl named six men who had love with her. Neverthless I consider such defence as a “mere kicks of a dying house in articuio m o rtis ” because even when she was cross examined severely the victim went on to state that the only person named was the accused[appellant]. According to her mother PW.2 the victim ’s Clinical Card was written the name of the appellant. The court had observed that the prosecutrix was an honest witness and was telling the truth of what had happened. The appellant in my views being a school teach should blame himself for engaging into lover affairs with his students which was a very dangerous undertaking The appellant could have raised the issue of testing DNA before the trial court when the case was going on investigation. This court cannot embark on the issue of testing for DNA at this m om ent regard being had also the ample evidence implicating die appellant who was rightly convicted by the lower court. The trial Magistrate was right to convict the appellant because it is the victim who knew the details of her mating with the appellant

as evidence shows that they did not make lover only once but they continued to making love from January, 2006 to January, 2007 when the girl conceived, i think it was right for the trial Magistrate to go throuufi wiiSu to the provisions of the law of persons GN 109/83 which provided that; .... Hata kama mwanam ke aiikuwa akitembea na mabwana zaidi ya mmoja wakati alipopata nnmba yule ambae atatajwa na m wanamke huyo hawezi kukataa kuwa baba wa m toto..... Although the learned magistrate had went through the above provisions it is my view that he based his decision on the sole evidence of PW.1 whom he observed as being honest and telling nothing bui the truth that the appellant is the one who raped her and as a result she conceived and delivered a baby boy her being a student in a primary school. With respect I entirely agree with the learned Magistrate that the appellant had committed the offence. On the issue of age it is pertinent clear that the act of rape took place in January, 2006 when the girl was in standard VI (six), it is in the circum stances difficulty if not impossible for a standard VI girl to be of the age above 18 given the rules of enrolment of primary school children in our education system where pupils finish standard seven at the age between 13-16 years hence I believe that the victim was still under the age of 18 years when the rape was committed in

January, 2006 at the time the girl was in standard VI (six). Hence the act of “unproven age” cannot be placed here as a base on which to thwart the conviction as the learned State Attorney contends in his submission. In the event I dismiss this appeal in its entirely. IS Judge 5/8/2009 9 Judgment delivered in chambers today the 5th day of August, 200S in trie present of the appellant and M/S Leopold, State Attorney. Iklf I.S. Mipawa), Judge 5/8/2009 Further right of appeal is explained. I S. Mipawa, Judge 5/8/2009 Date: 5/8/2009 C o ra m : Hon. I.S. M ipaw a, J. For the R e p u b lic : Ms. L e o p o ld , State A tto rn e y A p p e tia id : P re s e n t B 1C: G. L u c y a, RMA C ourt: Ju cym e n i delivered today in the presence of the appellant ^nci M/S Leopold, State Attorney for the Republic. I S. Mipawa, Judge 5/8/2009 10