CRM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KOROSSO. J.A.. KENTE. J.A.. And MGONYA. J.A.T CRIMINAL APPEAL NO. 618 OF 2021 BAHATI LUDOVIKO................................................................ APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Mbaawa, J.) Dated the 08th day of November, 2021 in Criminal Appeal No. 124 of 2020 JUDGMENT OF THE COURT 17th & 25th February, 2025 KOROSSO. JA This is the second appeal. It is against the decision of the High Court of Tanzania sitting at Mbeya which upheld the conviction and sentence of thirty (30) years imprisonment meted on the appellant. The appellant was arraigned in the District Court of Chunya, at Chunya on a charge of incest by male contrary to section 158 (1) (a) of the Penal Code, Cap 16 (the Penal Code). The allegations mounted against him were that, on 24/12/2019 at Upendo Village, Chunya District within Mbeya Region, the appellant had sexual intercourse with a school girl aged twelve (12) years and who shall henceforth be referred to as the victim or PW2, who to his knowledge is his daughter. The factual settings that constitute the background to this appeal can be gleaned from the testimonies of seven prosecution witnesses. In addition, two documentary exhibits, the birth certificate of the victim (exhibit PI) and the PF3 (exhibit P2), were tendered and admitted as evidence for the prosecution. It was revealed that after the appellant and his wife, Eva Ally Mwakanyamale (PW1), the mother to PW2 and PW3, parted ways in 2016, the appellant lived in a rented house with his two children, PW2 and PW3, at Upendo Village. The rented house contained a sitting room and a bedroom, PW2 and PW3 slept in the sitting room while the appellant used the bedroom. On the night of 24/12/2019, upon arrival home having passed somewhere to drink alcohol, the appellant woke up the victim and ordered her to enter the bedroom. PW2 entered the bedroom and inside, the appellant directed her to undress while he also did the same. The appellant then inserted his male organ into the victim's vagina and although she screamed from the pain she endured, no assistance came. PW3 testified that while sleeping in the sitting room he heard his sister's cries coming from the bedroom but continued sleeping. Thereafter, the victim went back to the sitting room and continued to sleep. The next day, PW2 went to her grandmother, Maria Maliyabibi, who lived nearby and informed her what had befallen her the previous night in the hands of the appellant. Notably, Maria Malliyabibi was not called to testify, although she was the one who, upon receiving the information, took PW2 and reported the incident to Twigisye Ephraem Mwaipungu, the Village Executive Officer (PW4). In consequence, an arrest order against the appellant was issued and he was apprehended. PW4 testified that when questioned regarding the incident, the appellant admitted having had sexual intercourse with PW2 and claimed he was drunk at the time. The matter was thus referred to the Police station, where the victim was given a PF3, which they took to the hospital. At the Makongolosi Dispensary, PW2 was attended by Bernard Nguli (PW6), a Clinical Officer. The examination revealed that the victim's vagina was perforated and that there was evidence that a blunt object had been inserted therein. Upon his arrest, the appellant was arraigned in the District Court of Chunya and accordingly, charged as alluded to earlier. The appellant was the only witness for the defence; he denied the charge and stated that the evidence was concocted to frame him. Upon hearing the evidence from the rival parties, convinced that the case against the appellant was proved beyond reasonable doubt, the trial court proceeded to convict and sentence him for the offence charged as revealed earlier. Dissatisfied with the decision of the trial court, his appeal to the High Court ran futile, hence his current appeal before the Court. The memorandum of appeal lodged on 19/7/2022 fronts nine grounds that essentially contain the following grievances against the decision of the High Court: One, failure to evaluate the grounds in the petition of appeal. Two, failure to invoke adverse inference on the prosecution case for not calling to testify material witnesses, such as neighbours. Three, relying on the evidence of PW6, who was unqualified to do the medical examination on the victim in terms of the law. Four, failure to properly evaluate the prosecution evidence, particularly that of PW2, PW3, PW6 and exhibit P2 and alleged PW2's delay to undertake medical examination. Five, failure to properly consider his defence that the charge was fabricated and the bad relation he had with PW1. The hearing of the appeal proceeded with the appellant being present in person, unrepresented, while Ms. Caroline Matemu, learned Senior State Attorney assisted by Ms Veneranda Masai, learned State Attorney represented the respondent Republic. When provided with the opportunity to amplify his grounds of appeal, the appellant urged us to consider the grounds of appeal. He emphasized the fact that the case was framed against him by his ex-wife as they had squabbles on who should have the custody of their children. He implored us to carefully examine the evidence of PW2 and find it to be untruthful and wanting since, it does not tally with that of PW3 and PW6, he argued. He urged us to allow the appeal and set aside the imposed sentence. On her part, Ms. Matemu informed us that she was in support of the appeal mainly because she was conceding to the appellant's complaints number one and two. She submitted that having perused the record of appeal, she was in agreement that the first appellate court did not fully consider and determine all the grounds of appeal fronted by the appellant before it. Augmenting on this, she contended that upon perusal of the judgment of the High Court, clearly, the High Court failed to determine most of the grounds of appeal before it, particularly the ground regarding a delay in getting a medical examination and failing to conduct a DNA test and that of STD and not considering family squabbles and grudges that could lead to framing the appellant for the offence charged. She argued that, for the first appellate court, apart from the task of re-evaluating and re-analyzing the evidence adduced and admitted in the trial court, it has the roie to consider and determine all the complaints raised before it. According to the learned Senior State Attorney, the position of the law where there is a failure to consider raised complaints is that it renders the relevant appellate judgment null and void. The remedy thereafter, she contended, has prescribed by case law is for the Court to declare the anomaly fatal and incurable and render the first appeal judgment a nullity. To reinforce the said stance, the case of Salum Njwete @Salum @Scorpion v. Republic, Criminal Appeal No. 122 of 2019 (unreported) was referred. On the way forward, she submitted that case law provides two options where such circumstances, as in the instant case, arise. One, the Court can step into the shoes of the High Court and determine the omitted grounds of appeal. Two, the Court can remit the record of appeal to the first appellate court so that the appeal can be re-heard. She, however, implored us to take the first option and dress ourselves in the coat of the first appellate court therefore, consider and determine the grounds that were not addressed. She asserted that such an action would be in the interest of justice, under the circumstances. The appellant's rejoinder was brief. He reiterated his prayers for his grounds of appeal to be considered and determined favourably and for his acquittal. Having heard and considered the submissions from the appellant and the learned Senior State Attorney, and the record of appeal, in the determination of the appeal, we shall proceed to consider the complaints seriatim, commencing with complaint number one, which faults the first appellate court for failure to evaluate the grounds in the petition of appeal before it. Notably, as alluded to above, the learned Senior State Attorney conceded to this ground. In light of this, we find the pertinent issue for our consideration is whether all the grounds of appeal fronted by the appellant for the determination of the High Court were considered and determined in accordance with the law. Perusing the record of appeal, on page 54, the appellant had lodged eight grounds of appeal before the High Court which faulted his conviction and sentence by the trial court, for: 1. Admission o f hearsay evidence from prosecution witnesses. 2. Giving vaiue to exhibits which were not read after admission. 3. Failure to consider defence only relying on prosecution evidence. 4. Reliance on evidence that PW2 was raped in the absence o f finding o f bruises, swelling, bleeding and spermatozoa in the vagina in the medical evidence or DNA or STD's test for the appellant. 5. Not considering existence of family squabbles and grudges between separated married couples which may lead to such framed charges. 6. Failure to properly analyze doubts raised from the evidence o f PW2 and PW3 regarding the incident and relying on such evidence. 7. Failure to properly analyze prosecution evidence, including that o f PW6 and exhibit PE2, despite exhibit PE2 having been generated four days after the date o f the incident o f the offence charged. 8. Failure to call important witnesses (co-tenants, grandmother or neighbour) to corroborate the evidence ofPW2 and PW3. Traversing through the judgment of the High Court found at pages 68 to 78 of the record of appeal, at page 71, the first appellate Judge decided to condense the eight grounds to five. In condensing thus, we have discerned that the condensed grounds essentially addressed complaints found in grounds one, two and four in the memorandum of appeal, leaving grounds three, five, seven and eight. Furthermore, going through the judgment of the High Court, plainly, the first appellate court essentially addressed and determined grounds one, two, three and four. The High Court failed to fully delve into the determination of grounds five, six, seven and eight in any way or form. Whilst we agree that some of these grounds of appeal are mere statements and may not raise pertinent issues, we are of the firm view that these complaints raised by the appellant were not addressed or determined. We are of the view that in the interest of justice, it was incumbent for the first appellate court to consider and determine them. The complaints not addressed include failure to call important witnesses (ground 8), and failure to consider adversely the delay to examine PW2 and preparation of the PF3 (grounds 6 and 7). It is settled that omitting to consider grounds of appeal is a fatal error and renders the judgment of the appellate court erroneous. This position has been discussed in some of the decisions of this Court. In Nyakwama Ondare v. Republic, Criminal Appeal No. 507 of 2009 (unreported), we observed that: "... failure to consider appellant's grounds o f appeal was a fatal irregularity rendering the first appeal court's judgment a nullity. In this regard, we wish to emphasize that though it is not the duty o f the first appellate court to resolve the issues as framed by the trial court, yet it is expected and bound to address and resolve the complaints o f the appellant on the grounds of appeal either separately or jointly depending on the circumstances o f each appeal". The above position has been re-emphasized in Mwajuma Bakari (Administratrix of the Estate of the late Bakari Mohamed) v. Julita Semgeni and Another, Civil Appeal No. 71 of 2022, we stated: "... the appellate court is bound to consider the grounds o f appeal presented before it and in so doing, need not to discuss all o f them where only a few will be sufficient to dispose of the appeal but it is bound to address and resolve the complaints o f the appellant either separately or jointly depending on the circumstances o f each case". (See also, Salum Njwete @Salum @ Scorpion (supra) and Hassan Mzee Mfaume v. Republic [1981] T.L.R. 167). Flowing from the guidance provided in the cited authorities above, having determined that the first appellate court failed to consider various grounds of appeal, it follows that the appellant was denied the right to be heard properly on some of his complaints which he raised in the grounds of appeal. Consequently, we invoke the provisions of section 4(2) of the Appellate Jurisdiction Act, Cap 141 (the AJA), to revise and nullify the judgment of the first appellate court for being a nullity. 10 The next concern therefore, is what is the way forward under the circumstances as it will not serve any useful purpose to proceed to consider and determine the remaining complaints. In determining this, we are inclined to agree with the Senior State Attorney that the interests of justice demand we should cloak ourselves as the first appellate court and thus proceed to re-evaluate the evidence on record related to the omitted grounds and draw our own conclusions. That being said, the issue we shall venture to address and determine is whether the prosecution proved its case beyond reasonable doubt. The appellant was charged and convicted of incest by a male, that is, having carnal knowledge of PW2, a 12 years of age girl, who, to his knowledge, was his daughter. Sections 158 (1), (2) and (3) of the Penal Code expounds the offence of incest by males and states: "158-(1) Any male person who has prohibited sexual intercourse with a female person; who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence o f incest, and is liable on conviction (a) if the female is of the age o f less than eighteen years, to imprisonment for a term o f not less than thirty years. (b) if the female is of the age o f eighteen years or more, to imprisonment for a term o f not less than twenty years. (2) It is immaterial that the sexual intercourse was had with the consent o f the woman. (3) A male person who attempts to commit an offence under this section is guilty o f an offence. " In a charge of incest by a male contrary to section 158 (1) (a) for which the appellant is charged, the prosecution is expected to prove one, a male having sexual intercourse with a female person, who falls in the category of those he is prohibited from relating in that way listed in section 158 (1) of the Penal Code. Two, knowledge of the accused that the victim is one of the prohibited females to relate with; Three, consent is immaterial; and four, the victim is under the age of 18 years. Notably, proof of sexual intercourse will entail proving requisite ingredients for commission of a sexual offence, such as penetration and whether it is the accused who is the person who committed it to the standard required. In the present case, the evidence of PW1 and PW2 is clear on the fact that the appellant was the father of PW2. The appellant does not deny this fact either as can be discerned from his testimony. For the foregoing, there is no doubt that the appellant knew that PW2 was his daughter. On the second component, which relates to proof of sexual intercourse between PW2 and the appellant having taken place, guided by the principle that true evidence regarding sexual offences is that given by the victim stated in the case of Selemani Makumba v. Republic, Criminal Appeal No. 94 of 1999 (unreported), we agree with the first appellate court that there is strong evidence on this aspect. PW2 testified that on the fateful day, the appellant did have sexual intercourse with her. In her evidence at page 12 of the record of appeal, she adduced that: "I recall on 24/12/2019, I was sleeping with my relative called Lwitiko Ludoviko Bahati. It was night time. My father was not around at home. During night time he came back home, he woke me up and called me to his bedroom. I entered inside and he told me to undress my clothes. I asked him why should I undress my clothes. My father said, I have already told you, undress your clothes. Hon. Magistrate, I undressed my gown, trouser and underwear. My father then told me to sleep on a mat. I laid down on the mat while the accused undressed his clothes. He then took his penis and inserted it in my vagina. Accused did the act five times. Hon. Magistrate, I felt pain during and after the sexual intercourse act. I started crying. Upon completion, I stood up and went to sleep at the sitting room..." There is also the fact that PW2's evidence of having cried from what she endured during the sexual act was supported by PW3, her brother, who on the fateful night slept in the sitting room. PW3 stated that on the said night while sleeping, she heard her sister crying from the appellant's bedroom. With regard to the age of the victim, both PW1 and PW2 allude to the fact that the victim was born on 15/05/2008 and was thus twelve years old at the time of the alleged sexual abuse incident. PW6 evidence also supported the fact that PW2 was intruded sexually. This evidence has not been controverted, we thus take it to be the position. The appellant complained about the delay in reporting the incident, the medical examination which was done three days after the alleged incident took place maintaining that further strengthens his evidence that the charge against him was framed. We have carefully considered the evidence of PW2 and PW3, regarding the incident subject to the offence charged against the appellant, which the record shows occurred on 24/12/2019. Exhibit P2 shows PW7 examined PW2 on 28/12/2019 at 10.42 am, evidence which augurs with that of PW4 and PW5 that the incident was reported to the Village Hamlet leader and the Police on 28/12/12. According to PW7, the PF3 was issued on that date, and PW6 testified that he received it on 28/12/2019. The appellant argues that the fact that exhibit P2 was generated almost four days from the date of the incident is a concern. His other complaint, which exhibits P2 and the testimony of PW6, shows that there were no bruises or blood in the genitalia area observed. To him, this evidence renders the evidence by PW2 that the appellant had sexual intercourse with her on the date stated wanting. Taking into account all the evidence on record, we are of the firm view that the appellant's complaints are misconceived for the following reasons: First, while it is true that the record shows the date of the incident was the night of 24/12/2019, PW2 did not relay her ordeal to her grandmother until when she met her and the next day the 25/12/2019 it seems she had refused to go back home and stayed at her grandmother's place. The matter was reported to PW4 on the day they went to the hospital on 28/12/2018. Second, PW6 testified that his examination showed that the victim's vagina was perforated, a blunt object having been inserted therein by a blunt object. As such, at the time of his examination, the victim had been sexually abused three days before. PW7, received the victim and grandmother on 28/12/2019, the day the appellant was also arrested, events which tally with the evidence of PW4. The PF3 was issued on that date also. There is no doubt that there was a delay in reporting to the Village leadership, the Police and for medical examination. It should be borne in mind the fact that PW2 was 12 years old at the time, and the perpetrator was her father whom she lived with. When the evidence of PW3 is also considered, it is clear that she was confused and fearful at the time. Nevertheless, the underlying issue is that PW2 evidence of being sexually abused is supported by the findings of PW6, as explained above. PW3 evidence materially supports that of PW2 on being in the appellant's bedroom on the fateful night and crying. While it is true that the evidence of her grandmother would have been important and brought some light to the events leading to the report to the police and arrest of the appellant, we are mindful of the fact that Maryabibi, apart from being PW2's grandmother is also the appellant's mother. Nevertheless, if she had been called or even a neighbour had been called, their evidence would have been on what transpired after the incident, not before, during or immediately thereafter. Since the appellant is charged for the act done, we are of considered opinion that failure to call those witnesses has not dented the prosecution case. In the event, we find the case for the prosecution against the appellant proved beyond reasonable doubt and thus dismiss the appeal for being unmeritorious. DATED at MBEYA this 25th day of February, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2025 in presence of appellant in person and Ms. Julieth Katabaro, learned State Attorney for the Respondent/Republic through virtual court, is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL /