20160429 TZCA Dodoma

'IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA {CORAM: KILEO, J.A., ORIYO, J.A., And JUMA, J.A.) CRIMINAL APPEAL NO. 585 OF 2015 .. ALAWIA HALIFA ............ ....................... ~ ....... ........... APPELLANT .•:• ------------------,~- •-..-~--~~----- . -- -------- ·- ··- ·VERSUS T·HE REPUBLIC .................................................. ~ .•.... RESPOND.ENT {Appeal from the decision of the Resident Magistrate's Court of Dodoma at Dodoma- Extended Jurisdiction W. E. Lema PRM, Ext. Jurisdiction dated the 26th day of November, 2015 in PRM Criminal Appeal No. 585 of 2015 .•••............ JUDGMENT.-OF THE COURT 27tri & 29th April 2016 KILEO, l. A.: In the District Court of Kondoa at Kondoa in Criminal Case No. 44 of 2012, the appellant Alawia Halifa was charged with attempt to commit unnat'-:lral . ::.. offence . ·-· ~ contrary to section ·.; . . ,155 . . of . the .. Penal Code, .- . '•'"'· Cap. 16 R.E.

2002. He was convicted and sentenced to fifteen (15) years imprisonment. Aggrieved, the appellant filed his first appeal against the decision of the trial court to the High Court. Pursuant to section 45· (2)- of the Magistrate's C0urts Act; Gap 11 R. E. 2002-, his appeal was transferred to be heard by W. E. Lema, Principal Resident 1 · Magistrate.... upon whom Extended Jurisdiction had been cdriferred. Oil 26th November, 2015, the learned PRM with Extended Jurisdiction (PRM, EJ) dismissed his appeal in its entirety. Undaunted, he has now preferred this second appeal. The appellant appeared in person at the hearing with no legal representation. The respondent Republic was represented by Ms. Lina Magoma; learned State Attorney. Briefly stated, the facts leading to this appeal were as· follows: PWl, Adrian s/o Said, who was aged 15 years at the time he gave his testimony, was at home with Mussa Turika and the appellant on 2nd March, 2012. On this day the appellant gave PWl 1,000/= to buy tobacco for him and told PWl to take the same to the appellant's home. It was PW l's story that when ·he took the tobacco· to the appellant who was then armed with a panga the appellant grabbed him, dropped him on the bed, stripped off his pair of trousers and also . . removed his (appellant's) trousers allegedly in an attempt to sodomize the young. man. PWl resisted while being strangled by the

appellant. It was PWl's evidence that the appellant's sister (PW3) h~ard what was happenin_g_ anq came to rescue PWl.. When. PW3 came the 2 appellant chased her while wielding the panga he had. PW3, raised an alarm, people cameand PW1 was sent to hos.pital·as he was bleeding from his mouth and nose. According t<? PW2, while_ he was at a nei9hbour's house conversing . with, fello~:· viilagers they heard someone saying "Alawia · usiue · mtoto wa watu", (Alawia don't kill someone's child) and then later on, one Zelfina Halifa who testified as PW3 came and told PW2 and his fellows that Alawia is killing a certain child. PW2. continued to state that they went to the room where the sound came from; they pushed open the door and met PW1 without a trouser crying. PW2 and his fellows saw the_ appellant 'dressing his trouser',. and then the accused came out and chased his sister (PW3). PW3 who is the appellant's sister, on the other hand testified to the effect that on the material date as she was cooking, she saw the appellant ·and PW1 entering the appellant's room, then after a moments she heard PW1 crying for help. When she went to find out what was amiss she saw PW1 coming out while bleeding from his nose .f. and mouth; She raised an alarm which prompted fellow vHlagers to gather at the scene. Essentially she thought the. appellant had been strangling PW1. 3 The appellant was

arrested and PW4 who was the Acting VEO was informed of what had happened. When he asked what the matter was the victim~s f~ther informed him that hls -son was beaten - by the __appellant. ~ventually the matter ~as reporte~ to the police where PWS was assigned to carry on investigations. PWS stated that upon examination he noted that PWl had bruises arid---blood on the nose and the appellant had bruises on his arm. In his defence, the appellant categorically der"1ied to have committed the offence. He claimed that, the case was fabricated against him. He said on that date i.e 02/03/2012 at 21:00 hrs he was at the bar. Some people called him out and one of the people stabbed him with a knife and -took him to VEO. The _appellant . . . ,stated that at . VEO's office, he met Adrian (PWl). He revealed to the VEOthat it was a merely an assault case but they changed the case to be an attempt to commit unnatural offence. The appellant preferred five grounds of appeal in his memorandum, however, the second ground which relates to improper admission of t_he evidence of PWl without conducting the voire dire te_st can disposed of right away. PWl was not a child of tender age at the time he testified as he was 15 years of age. A child of tender age 4 upon whom a voire dire test has to be applied in accordance with the provisions of section 127 (2) of the Evidence Act, Cap 6 R. R. 2002,

is defined under_ subsection (5) of the same section to mean a child whose ap(!)arent age is not more than fourteen years. Ms; Magoma was right to submit that PWl was not bound by section 127 (2) of the Evidence Act. The above takes care of the second ground ·of appeal .which we find. to have no merit. The remaining grounds centre on· insufficiency of evidence for the proof of attempt to commit unnatural offence, and contradictions in the testimonies ofthe prosecution witnesses.· When called upon to address us on his grounds the appellant merely asked us to adopt them and opted to have the respondent resp9nd to -~is- grounds first. Ms. Magoma supported the appeal mainly for the. reason that the case for the prosecution was so wrought with contradictions such that conviction could not be sustained! She also submitted that the drcumstances of the case were.more suggestive of an assault than attempt to commit unnatural offence. This. is a second appeal. We are aware that the principle has always been t~at an appellate court will not interfere w,ith findings of fact by the court(s) below unless they are manifestly unreasonable, 5 where there yvas a misapprehension of the evidence, where there were misdirections or non-directions on the evidence, etc. This Court has pronounced itself that much in its numerous decisions - See, for example, DPP v laffari Mfaume Kawawa [1981] TLR 149

to the more receqtdecisio~s in Issa Said Kumbukeni ~· Re,pu:blic [2006] TLR 277, Benjamini Nziku v Republic, Criminal Appeal No. 151 of 2010, Eriot Ezekiel Diombe v Republic, Criminal Appeal No. 248 of . 2013, and Maneno Daudi v Republic, Criminal' Appeal No; 165 of 2013 (all unreported). In Ludovide Sebastian v Republic, Criminal Appeal No. 318 of 2009 (unreported) we specifically stated:- " On a second appeal, we are only supposed to deal. with qllestions of law. But this approach rests on the premise that the findings of fact are based on correct appreciation of the evidence. If both courts completely misapprehended the substance, nature and quality of evidence, resulting in an unfair conviction, this Court must in the interest of justice intervene. (Emphasis supplied.) . The:.assertion· in Ludovide Sebastian (supra) that generally in a second appeal we are supposed to deal with questions of law only 6 is a borne out of the provisions of section 6 (7) (a) of the Appellate Jurisdiction Act, CAP .. 14.1 R. E. 2002 which states: "6 (7l Either party- ( a) to proceedings under Part X of the Criminal Procedure . ~ . . Act ·may appeafto.th·e·ci,ui-t of Appeal on a· matter- of law (not inclu~ling .. . ~ severity · . : of sentence) but riot on- a matter of ~ fact;" The question is whether or not there is basis for us to disturb the respective findings of fact by the courts below that

the appellant committed the offence in question. It is true as claimed by the appellant, a claim which is supported by the learned State Attorney, that there are serious contradictions which go to the root of the matter and which ought to have been resolved in favour of the appellant. To begin with, PW2 stated that it was PW3 who came to them and informed them that the appellant was killing a c~_rtain child. Receiving that informatio_n, they went to the scene. The· wording of PW2 connotes that together with his fellows and PW3, they went to the scene of the crime. In- arriving, they pushed the door open; they met the child (PWl) crying with no trouser on. PW3 however, narrated a different story which contradicted that of PW2. 7 At page· 13 o.f the record PW3 is recorded to have stated that when she heard Adrian (PW1) crying, she went and entered into the room, that she saw. PW1 coming out while bleeding from his nose and mouth. She cried and many people came. During cross-· examination by the appellant at page 14 she said that she did not enter the appellant's room. If at all PW3 cried and many people came, how then can PW2 pe h~ard ·to say that it was the same PW3 who went to inform them that the appellant was killing a certain child? These contradictions in our considered view, cast doubt on the credibility of PW2 and PW3 on ·whether they were · really present· at the

scene. Further, PW3 stated, during examination in chief that she entered the appellant's room, however, she changed the story when she was cross-examined saying that she did not enter the said room. ;•. The question is what exactly did PW3 see? PW2 said that when they went to the appellant's room they found the victim crying with no trouser on. He also. said that the appellant was 'dressing' his pair of trousers then he came out with a panga and chased his sister,· PW3. PW3 herself did not mention anything a.bout being .. chased with a P.anga. If indeed such a terrible thing had happened PY'/.3 would not ... - have failed to mention it. The two courts below did not address these 8 contradictions .:as ·. they . ought to have done, and b~cause . :... they did. not. there was no resolution. A .trial court has a duty to address and resolve contradictions which appear in the evidence before it as held in t~e case of Moha_m~~. Said Matula y. R (19~~) T-L~...3. T_he .. . Court there held: 11 Where the testimony by witnesses .contain inconsistencies and contradictions/ the court has a duty to address the inconsistencies a_nd try to . resolve them where possible/ else the court has • to decide whether the inconsistencies and contradictions are only minor or whether they go to the roo,t of the matter. " It is unfortunate that the PRM, EJ instead of resolving the contradictions imported

into her judgment facts that were not borne out of the evidence. In ~ssessing the evidence of PW1. at page 68 and 71 of the record the first appellate court added its own Words to the effect that: 11 the appellant undressed Adrian Said (PWl} his trouser ahc[forced him on bed on his stomach .The appellant. tried to sodomize the victim trying to insert the penis into his anus after he had undressed his trouser'~ At page 71 the PRM further stated: 9 "PWl did testify the appellant did order him to lie on the bed on his stomach. " It is not reflected in PWl's evidence that the· appellant forced or ·,.,. . .. :·, ordered PWl• to sleep on the bed by his stomach, neither that the . -ap-pellant fried tofrisert l"iis penls into the anus of the victim (PWi). In the case of Said Salum and 2 others v Republic, Criminal Appeal No. 228 of 2011 (unreported) the Court observed that adding words to a judgment which are not reflected on the evidence is fatal. Adding, in a judgment, words or statements that were not made by witnesses in their testimonies denotes that there was no rational- or balanced reasoning on the part of the trial magistrate or judge. In his fourth ground of appeal the appellant complained that the courts below failed to properly determine the source. of the problem. Ms Magoma went along with this ground, submitting that the crime might have been assault rather than attempt

to commit unnaturc1I offence. Even the victim's"father was heard to say that his son wa~ beaten. PW3 said that it was as if the appellant was strangling the victim. We are settled in our minds that there was a haunting doubt as to whether the crime committed was actually attempt to commit unnatural offence or mere assault. 10 Given the above circumstances and the u11reso!ved contradictions that were apparent in the prosecution. case, we are convinced that we are entitled to 'interfere With the ·finding ·of facts by-the courts 'below. ·The appellant ought to have been given the .benefit of doubt, which we hereby .give.. In an upshot, we agr~e with both the appellant and the learned State Attorney that the case against the appellant left lingeri_ng doubts to which the · appellant was entitled the benefits thereof. In the circumstances we allow the appeal, quash conviction .and s'e~t aside the sentence in,posed. We order the immediate release of the appellant from prison unless otherwise lawfully held. DAl"ED at DODOMA this 28th day of April, 2015. E. .

DEPUTY TRAR COURT PEAL ,, 11