EBELO PETER NYONDO pdf

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CRIMINAL APPEAL NO. 7583 OF 2024 (Originating from the Court of Resident Magistrates of Songwe at Vwawa in Criminal Case No. 21 of 2023) EBELO PETER NYONDO.......................................................... APPELLANT Versus THE REPUBLIC..................................................................... RESPONDENT JUDGMENT 30th July & 9th September 2024 TIGANGA, J. The appellant, Ebelo Peter Nyondo is behind bars serving 30 years imprisonment passed by the Court of Resident Magistrate of Songwe at Vwawa (the trial court). Before the trial court, in Criminal Case No. 20 of 2023, the appellant was arraigned and convicted of an unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code Cap. 16 R.E 2022. It was stated in the particulars of the offence that on 8th day of May 2023 at Isongile Village within Ileje District in Songwe Region the appellant had carnal knowledge against the order of nature of one FKM (name concealed to protect his dignity) a boy aged 10 years. The i appellant pleaded not guilty to the charge. The case went to a full trial, at the end, the trial court was satisfied with the prosecution evidence, it thus convicted the appellant and sentenced him to serve a jail term of 30 years. The prosecution and defence case went thus; the victim also PW2 lives with parents and relatives notably brothers. He used to sleep with one of his brothers and the appellant used to sleep at their home as he was a friend to one of them. That on the material date, on 8th May 2023 at night the victim was sleeping as usual (with his brother) the appellant entered their room and switched the electrical light on. Then went to the bed undressed his clothes took his penis and inserted it into the victim's anus. The victim tried to call for help but was threatened (the nature of the threat was not stated) then he (the victim) moved aside from the room. During the daytime at noon of the following day, the victim went to his father and narrated the ordeal. His father phoned a Village Executive Officer (VEO) then they took the victim to Isongole dispensary. Thereat, PW1, social welfare was called and with her assistance, the victim was taken to the police station where they were issued with PF3 and they were directed to go to Itumba Hospital. Medical examination of 2 the victim revealed his anus sphincter to be loose and it was concluded that he was penetrated by a blunt object supposedly to be penis. Having received the information, the VEO searched for and arrested the appellant before taking him to the Police station where after investigation, he was taken to the trial court and charged. In his defence, the appellant denied committing the offence, he told the trial court that on the material date, he went into the room of the victim and his brother, switched the light on, and went to bed to sleep. He chased the victim from the bed as a result, the victim fell from the bed and started crying. However, afterward, he returned to the bed and slept at the side of it. At dawn of the next day, the victim left for school and thereafter the appellant also left to his normal duties. Moreover, he was later arrested and taken to the police station before being arraigned to court. As I have hinted, after full trial which involved four prosecution witnesses and one for the defence, as well as one exhibit, the trial court was satisfied that, the prosecution evidence proved the case at te required standard, it thus convicted and sentenced him to serve 30 years imprisonment. 3 Dissatisfied with the conviction and sentence, the appellant preferred this appeal on four grounds. They are reproduced hereunder with all grammatical challenges as follows: - 1. That the trial magistrate erred in law and fact to convict the appellant by mere evidence of PW2 who said that when the incident was going on, he tried to call for help but appellant threatened him, so how come that non-held alarm as he tells the trial court that they sleep three of them at the same bed. 2. That, the trial Magistrate erred in law and fact to convict the appellant relying on the evidence of PW4 who gave his testimony that when he was at a working place the victim narrated to him the whole story about the appellant then they went to VEO to report the matter but, it is strange that important key witnesses like militia and VEO were not called to come at the trial to corroborate the said testimony. 3. That the trial Magistrate erred in law and fact without evaluating properly the prosecution evidence as it was not watertight evidence and based on contradictory evidence to each conclusion over the appellant. 4 4. That, the trial Magistrate erred in law and fact to consider that the case was proved beyond reasonable doubt while in fact not, as the same case with the same parties was withdrawn by the prosecution on 22nd day of May 2023 from the District Court of Ileje at Itumba, Criminal Case No. 20 of 2023 after they have failed to build the case, the same re-opened at Songwe Resident Magistrate at Vwawa on 2nd day of June 2023 hence the case was cooked afresh. During the hearing of the appeal, the appellant was represented by Advocate Jalia Hussen Nyamoga while the respondent/Republic appeared through Mr. James Mwenda, learned State Attorney. By consensus of the parties and leave of this Court the appeal was argued by way of written submissions. Arguing in support of the appeal, Ms. Nyamoga started by praying this Court to take judicial notes under section 59 of the Evidence Act, [Cap. 6 R.E 2022], that before the appellant was arraigned to the trial court for the case which is a subject of this appeal, he was firstly charged with the same offence before the District Court of Ileje at Itumba where a total of three witnesses had already adduced their evidence. But that the case was withdrawn after one of the witnesses, 5 that is a doctor had told the District Court that the examination of the victim revealed nothing as everything was intact. According to Ms. Nyamoga, that action culminates in nothing but the inference that the charge against the appellant was concocted. Ms. Nyamoga raised another issue which she said is an additional ground of appeal where she faulted the proceedings of the trial court for contravening section 127 (2) of the Evidence Act. She argued that the trial Magistrate received the evidence of PW2 a child of tender age without showing questions which were put to him. And that he indicated that the evidence was recorded under section 127 (3) while that subsection was not yet into being. She, therefore, prayed for expunging of PW2's evidence for contravening the law. In so far as the grounds of appeal are concerned, Ms. Nyamoga combined ground 1, 2, and 4 and argued together that the prosecution failed to prove the case beyond reasonable doubt as per the requirement of the law. She argued that the brother who slept with the appellant and victim was not called as a witness while he was material as he would have corroborated the victim's testimony. To Ms. Nyamoga Erick was a material witness since he would have witnessed the appellant sodomizing the victim. And that failure to call him renders to 6 the suspicion that the case was concocted as it was already said that the doctor did not find any wrong with the victim's anus. Ms. Nyamoga submitted wondering how a person sleeping in the same room and the light on could not observe an evil act of sodomization. About the 3rd ground of appeal, Ms. Nyamoga had not much to state than making a summary of the grounds of appeal. She insisted that the trial court did not properly analyse the evidence as they left a lot to be desired. She thus prayed for allowing the appeal and the appellant be released from custody. In response, Mr. Mwenda opposed the appeal and supported the conviction and sentence. As to the issue that the appeal was concocted against the appellant, he was firstly charged to Ileje District Court and then the charge was withdrawn, and later on, recharged to the trial court, Mr. Mwenda did not dispute that issue, however, he submitted that the issue was not raised before the trial court and raising it at this stage is an afterthought. To support his argument, he cited the case of Yusuph Ismail Akandu vs. The Republic, Criminal Appeal No. 623 of 2021. 7 Mr. Mwenda added that the action did not offend any law nor cause injustice to the appellant since withdrawal before judgment does not bar re-arraigning the accused for the same offence. As to the issue that the trial Magistrate contravened section 127 (2) of the Evidence Act, Mr. Mwenda implored the Court to disregard it as it was added as an additional ground of appeal without leave of the Court. Alternatively, Mr. Mwenda argued that non observance to section 127 (2) of the Evidence Act is a defect curable under section 127 (6) of the same Act. Also, that what the law requires is a child of tender age like PW2 in this case to promised to tell the truth before giving his evidence. According to him, PW2 promised to tell the truth before he gave his evidence in the trial court. To reinforce his contention, he relied upon the decision in the case of Ally Ngozi vs. The Republic, Criminal Appeal No. 216 of 2018 CAT at Dar es Salaam. Regarding the complaint that the case was not proved beyond reasonable doubt for non-calling a material witness. Mr. Mwenda argued that there is no requirement for the number of witnesses as per section 143 of the Evidence Act. He also argued that the evidence showed that the offence was committed during the night when they were asleep. 8 Thus, the said Erick (the alleged material witness) was sleeping and did not witness the commission of the offence thus, he could not be a material witness while he did not witness the commission of the offence. And it was upon the prosecution to call a witness that she thought would prove her case. To him, the victim was a material witness whose evidence should be believed. To support his argument, he cited the case of Goodluck Kyando vs. The Republic [2006] TLR 363. Summing up, Mr. Mwenda contended that the trial Magistrate properly evaluated evidence as PW2 testimony was credible and unquestionable since he knew the appellant and the act was committed while the electric light was on. Mr. Mwenda, however, gave a bizarre argument, that the complaint by the appellant that the case was concocted is an afterthought since the appellant did not prove his innocence. In the end, he urged the Court to dismiss the appeal for want of merits. To rejoin, Ms. Nyamoga reiterated the submission in chief. She added faulting Mr. Mwenda's argument that a new issue cannot be raised at this appellate Court. She submitted that the principle applies to a 2nd appellate court. But in this Court, being the 1st appellate Court, anything can be raised as there is a chance of re-evaluating the 9 evidence. Ms. Nyamoga, therefore, distinguished the case of Yusuph Ismail Akandu vs. The Republic (supra). She reiterated her prayer that the appeal be allowed. I have considered the grounds of appeal, the rival arguments by the learned counsel for the parties, the record, and the law. The duty before this Court is to decide whether the appeal is meritorious. To start with the prayer that this Court takes judicial notice that the appellant was charged with the same offence in the Ileje District Court and then withdrawn after noting it was not in the prosecution's favour but later on the appellant was charged to the trial court. In essence, this is also a complaint in the 4th ground of appeal. Unfortunately, the instant record does not bear the complained proceedings, that is the proceedings of Ileje District Court and it is not subject of this appeal. Although it seems the respondent's side is aware of the same, this Court neither can take judicial notice nor decide the complaint which is from the vacuum and does not have a base on record. Even if I assume that the proceedings are on record, it is my view that the act of withdrawing a case which is allowable by the law cannot form a legally ground of appeal in the subsequent case. This is because, 10 as it was correctly argued by Mr. Mwenda, section 98 (a) of the Criminal Procedure Act, Cap. 20 R.E 2022 provides powers for the Director of Public Prosecution through a prosecutor to withdraw the charge against any accused person at any time before judgment whereas the withdrawal and discharge of the accused person does not operate as a bar to a subsequent charge on the same fact. In that regard, the 4th ground of appeal is found to have hereby dismissed. Second for determination is the complaint raised by Ms. Nyamoga in her submission that evidence of PW2, a child of tender age was received in contravention of section 127 (2) of the Evidence Act. Her complaint was premised on two reasons; one, the trial Magistrate was recorded to have received the evidence under section 127 (3), and two, there were no recorded questions that the trial Magistrate posed to PW2. To Mr. Mwenda, any defect in receiving the evidence of a child of tender age is curable under section 127 (6) of the Evidence Act. Indeed, the trial court proceedings show that the trial Magistrate recorded to have acted under section 127 (3) of the Evidence Act as PW2 was a child of tender age. He also recorded to have asked PW2 if he promises to tell the truth. Thereafter, he recorded PW2 promising to speak the truth. ii I have read section 127 (3) of the Evidence Act, in fact, it does not relate to oath or promising to tell the truth or otherwise. As correctly argued by Ms. Nyamoga, the relevant subsection is (2). The question, nonetheless, is whether citing a wrong subsection in a court proceeding may render the evidence inadmissible. The answer is negative. This is because, if the act is within the powers of the court and in the ambit of the law, then wrong citation or non-citation is not fatal. In the second limb of the complaint, no questions recorded. Again, the flaw is not fatal. This is because of the amendment that introduced Section 127 (7) in the Evidence Act. The amendment, that is section 32 of the Legal Sector Laws (Miscellaneous Amendment) Act No.ll of 2023 provides that the failure of a child of tender age to meet the requirement of Section 127(2) of the Act would not render the evidence inadmissible. It provides that: "32. The principal Act is amended in section 127, by (a) adding immediately after subsection (6) the following: (7) Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible." 12 I am abreast that when the evidence of PW2 was recorded by the trial court on 05.06.2022, the amendment to Section 127 (7) had not been introduced. The amendment took effect on 01.12.2023. However, in George Jonas Lesilwa vs. The Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (TANZLII), the Court of Appeal, that is the apex Court in the Land, noting the essence behind the amended provision. It observed that the evidence of a child of tender age should not be discarded for flimsy reasons without proof that something is lacking that affects the quality and credibility of such evidence. The Court had this to say: "For the sake of completeness, we are constrained, before leaving this subject, to observe that, going by the above interpretation of the law, it must be dear that, the evidence of a child of tender age should not be discarded on flimsy reasons without proof on a balance ofprobabilities that there was something tacking that really affected the quality and credibility of such evidence. In other words, an appellate court should took at the substance of the complaint raised by the appellant and see whether the alleged non-compliance with section 127 (2) of the Evidence Act was of such a nature as to be said, in rational terms, to have produced a substantial defect upon such evidence. The above observation, no doubt is the reason behind the recent 13 introduction of section 127 (7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of2023..." Deriving from the above law, and considering the appellant's complaint is on failure to record the questions posed to PW2, I find discarding the evidence on that reason may amount to flimsy reason. In the circumstance, the complaint is rejected and dismissed. It follows the complaints in the 1st, 2nd, and 4th grounds of appeal which are to the effect that the trial court failed to analyze the evidence properly and thus, reached an unjust decision. This complaint can be conveniently resolved by subjecting the entire evidence into afresh scrutiny since this is the 1st appellate court, I hold so because this court being the first appellate court is mandated by the law to stepped into the shoes of the trial court and objectively evaluate the evidence and come up with its own findings where necessary. On that, there is a plethora the case laws like Kaimu Said vs The Republic, Criminal Appeal No. 391 of 2019, Leonard Mwanashoka vs The Republic, Criminal Appeal No. 226 of 2014, Rashid Abiki Nguwa vs Ramadhani Hassan Kateya and Another, Civil Appeal No. 421 of 2020, to mention but few. 14 In accomplishing this noble duty, the guiding principle is none other than the one in section 110 read together with section 3(2)(a) both of the Evidence Act [Cap. 6 R.E 2022] that a burden of proof lies upon the prosecution and standard of proof is beyond reasonable doubt. It is also the law that, the burden never shifts to the accused person. See the holding in Hezron Ndone vs The Republic (Criminal Appeal No. 263 of 2021) [2024] TZCA 15 (6 February 2024) (Tanzlii) where it was held on page 12 that: "It is momentous to state that, in our criminal justice system like elsewhere, the burden of proving a charge against an accused person is on the prosecution. This is a universal standard in all criminal trials and the burden never shifts to the accused. As such, it is incumbent on the trial court to direct its mind to the evidence produced by the prosecution in order to establish if the case is made out against an accused person. This principle equally applies to an appellate court which sits to determine a criminal appeal in that regard..." For a better appreciation of the evidence adduced before the trial court, I find it pertinent to give a summary of each witness's evidence. The 1st witness was PW1, a social welfare officer, who testified that on the material date of 08/5/2023, she received a call from the 15 police gender desk informing the alleged offence. Having received that call, she went there and was handled with a victim, a child whom she took into her office for interrogation. The victim told her about being sodomized. Then she took the victim to the doctor who examined and found him to be ravished against an order of nature. The 2nd was the victim (PW2), he told the trial court that he used to sleep with his brother and the appellant sometimes slept at their home. On the material date, they slept three of them that is the victim, Erick, and the appellant. That when the appellant entered the room, he switched the light on, took off his pants, and inserted his penis in his anus. That he tried to call for help but the appellant threatened him then he (PW2) moved from the bed and went to the side of the room. Then at noon, the next day, the victim informed his father about the ordeal. The third witness was PW3, the doctor at Itumba Hospital. He gave evidence that he medically examined the victim whom he was satisfied that he was sodomized for his anus muscles and sphincter were loose and fingers were easily penetrated. He concluded that a blunt object like a penis might had penetrated the victim's anus. He also tendered a PF3 which was admitted as exhibit Pl. 16 The fourth and final witness to testify was PW4, the victim's father. He stated that on August 5, 2023, around noon, the victim came to his workplace, appearing anxious and complaining of hunger. Concerned, he asked what was wrong. The victim then disclosed that the appellant had sodomized him. PW4 contacted the Village Executive Officer (VEO), who took the victim to the Isongole Dispensary. There, the doctor called social welfare, who advised them to proceed to Itumba Hospital via the police. The VEO then went to locate the appellant and brought him to the police station. In his defence, the appellant told the trial court that on August 5, 2023, he returned home and found his younger brothers, including the victim, asleep. He entered the room, turned on the light, removed his shirt, and went to bed. He asked the victim to move off the bed, causing the victim to fall and start crying. DW1 then instructed him to get back on the bed. They both slept until morning, after which the victim went to school. DW1 requested that the victim give him his shirt and shorts, which were outside on the rope. DW1 then stayed home for a while before going to work. He was later at 20.00 hours arrested by the militia, taken to Itumba Police Station, and subsequently to court. 17 From the above evidence, it is lucid that no eye witness or direct evidence other than that of PW2 was given to prove that the offence was committed by the appellant. PW1 said about how she was called and responded to the call but did not speak if, in interrogating the victim he mentioned the appellant to be a ravisher. This is also so for PW3. The appellant was mentioned by PW4 who said that the victim told him to have been sodomized by the appellant. However, his testimony has left much to be desired when compared with other evidence especially that of PW1. Where PW1 said that she was phone-called by police at the gender desk, PW4 said that PW1 was called at the Isongole dispensary by the doctor. PW1 said she took the victim to the doctor without saying to which hospital but, PW4 said that he was advised by PW1 to take the victim to Itumba Hospital via Police station. PW3 only said he medically examined the victim but he did not say who brought him, either PW1 or PW4. Again, PW3 tendered exhibit Pl in which he indicated that the victim's sphincter was intact but the anus was somehow loose. This contradicts his oral testimony where he said that the anus and sphincter were loose. For these shortcomings of the witnesses' evidence, the remaining evidence is that of the victim (PW2). I am aware that in sexual offences, 18 like the one under consideration, the best evidence is that of the victim of the offence. This is according to section 127 (6) of the Evidence Act, and the CAT decisions in a plethora of cases like the Seleman Makumba v. The Republic [2006] TLR. 379. and the case of Edward Nzabuga vs The Republic, Criminal appeal No. 136 of 2008 CAT at Mbeya (unreported). Nevertheless, though the conviction may be solely based on the uncorroborated evidence of the victim, the evidence of the victim is not required to be taken as a gospel truth but should pass all credibility tests. See Mohamed Said vs. The Republic (Criminal Appeal 145 of 2017) [2019] TZCA 252 (TANZLII). In this case, PW2 said that the appellant entered their room for sleep, switched on the light, removed his clothes and started sodomizing him. He also said that when he tried to raise the alarm for help, he was threatened. PW2, however, did not state which kind of threat the appellant used. And if tried to alarm why the other brother they slept with did not hear said nothing. It is also on the record that when PW2 was cross-examined for not reporting the incident promptly to his father he said that he had been firstly thinking either to report or leave it. For this fact, this Court try to ask itself, if there was no explanation as to the 19 nature of the threat made by the appellant to the victim what made him think about reporting the incident? Additionally, it is not appealing to this court, why the appellant had to commit such an evil act, seeing it is important to firstly switch on the light when entering the room. All these questions raised from PW2's evidence, make this court believe the appellant's defence that when went to bed he was chasing out the victim from the bed which made him cry before he called him back to sleep. It should be further noted that the evidence of PW1 does not show that when he went to PW4 he intended to tell his father what PW1 did to him. To put it in the tongue of PW4 as reflected on page 10 of the typed proceedings he said; "On 08/05/2023 at 12.00 hours was in my business place where came my son, (name withheld) complaining hunger, he looks anxious thus I opted to ask him what was wrong thus be break the news that Ebeio (accused) knew him carnally against the order of nature during the night." From the above excerpt taken from the evidence, it is vivid that, the victim did not go to the PW4 to tell him what had befallen him, but he went there complaining hunger. It was when he was asked when he broke the news by informing PW4 what had befallen him. If failure to 20 mention the offender at the earliest opportunity possible affects the quality of prosecution evidence, in my considered view, the consequence should be worse for the failure by the victim to mention at the earliest opportunity possible that the offence was committed against him. In my view, this raises doubt on the prosecution case which should be resolved in the favour of the accused person. Owing to the above discussion, I find the prosecution evidence to have left much to be desired. Therefore, the charge against the appellant was not proved to the hilt. In the end, I allow the appeal, quash the conviction and set aside the sentence. I also order the release of the appellant from custody unless is held for other lawful reasons. It is so ordered. DATED and delivered at MBEYA this 24 day of September 2024. J.C. TIGANGA JUDGE 21