Jeremiah Lorri v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 20306 OF 2024 (Originating from Criminal Case No. 1 of 2024 of the District Court of Babati at Babati) JEREMIA s/o LORRI alias GOSO ......................................................APPELLANT VERSUS THE REPUBLIC.............................................................................RESPONDENT JUDGMENT 1st October and 21st November 2024 MIRINDO, J: A woman whom I refer as “SP” was living in a house consisting of a room and a kiosk with her daughter, aged fifteen years old, dubbed as “Joha” at Kijiweni area in Mande Village within Babati District. She was running a kiosk selling different household items including soft drinks and fish. In the morning of 10 December 2023, she travelled to Dareda Village on a church mission. She left behind Joha running the kiosk and instructed her to obtain the support of her friend dubbed “Pee” aged fourteen years old. 1 SP spent a night at Dareda and news broke out on 11 December2023 that Joha and Pee had been raped. The girls accused Jeremia Lorri alias Goso of raping them whom upon investigation was arrested, charged before Babati District Court with and convicted of rape contrary to section 130 (1) and (2) (e) and 131 (1) of the Penal Code [Cap. 16 Re 2022]. Jeremia has now appealed before the High Court at Manyara Sub-registry. In his five grounds of appeal, he complains essentially that the case against him was not proved beyond reasonable doubt. The appellant, Jeremia Lorri alias Goso, appeared in person at the hearing of the appeal. He argued that he was unfairly convicted by the trial court and invited to examine his grounds of appeal and acquit him. Ms. Blandina Msawa, learned Senior State Attorney represented the respondent Republic and opposed the appeal. Before proceeding further, I would like to point out two matters. First, the judgement of the trial court refers to the appellant as “Jeremiah Lorri.” However, the charge and the proceedings refer to him as “Jeremia s/o Lorri alias Goso”. I will refer him as such in this judgment. Secondly, it is mistakenly indicated in the title of the Petition of Appeal that the appeal emanates from the conviction of the Court of Resident Magistrate of Manyara at Babati. This is a first appeal against conviction and sentence and I am bound to reconsider the evidence afresh and arrive at my own conclusion. The gist of the 2 prosecution case is that SP went to Dareda and left Joha at home to run the kiosk with the assistance of Pee. Joha and Pee went on with the sales until 20.00 pm when they noticed that it was too late and the customers were still coming. At that time there were three customers. Jeremia Lorri alias Goso was one of those customers. Joha and Pee asked the customers to depart, two customers left but Jeremia stayed behind until his son came and collected fish supposedly purchased by him. It was the evidence of Joha and Pee, the first and second prosecution witnesses respectively, that Jeremia refused to leave when they told customers to vacate so that they could close business. It is their evidence that after other customers had left, Jeremia shut the door and stayed inside. Joha told the trial court that Jeremia threatened her with a knife, undressed her and raped her. After raping Joha, he proceeded to rape Pee. Pee confirmed being raped by Jeremia upon being threatened with a knife. In the first ground of appeal, the appellant complains that the evidence of Joha and Pee having being received in contravention of section 127 (2) of the Evidence Act [Cap. 6 R.E 2022] could not be used to ground his conviction. Ms. Msawa, Senior State Attorney pointed out that Joha was not a child of tender age. It is clear from the record of the proceedings that Joha was fifteen years old and was a competent witness under section 127 (1) of the Evidence Act. I hold that this complaint has no merit. With regard to Pee who was indeed a child of 3 tender years, the learned Senior State Attorney argued that the trial court conducted an enquiry and she promised to tell the truth and so the procedure under section 127 (2) was complied with. It is clear that Pee was fourteen years old and promised the trial court to tell the truth in terms of section 127 (2) of the Evidence Act. Were Pee to testify without promising to tell the truth, her evidence would still be admissible under the “new” subsection (7) of section 127 introduced by section 32 (a) of the Legal Sector Laws (Miscellaneous Amendments) Act, 11 of 2023. This amendment distinguishes admissibility from weight of evidence, a distinction that is frequently overlooked by courts. A child’s evidence is no longer inadmissible unless she is unable to testify. This holding brings me to the fourth ground of appeal. The appellant laments that he was convicted on unreliable evidence that should have been corroborated particularly by Moodi and Masanja, persons mentioned by Joha and Pee. This complaint raises the following question: Were Joha and Pee credible witnesses? In dealing with this question, I will be guided with following principles set forth in Appreciation of Evidence in Criminal Cases, Bhopal: National Judicial Academy, 2010, at pp 77-78 by Justice U.L. Bhat: (i) Those which affect the ability, capacity or credibility of a witness to speak the truth. It depends upon knowledge, power of observation, power of memory and power of reproduction. Knowledge depends partly upon accuracy in observation, 4 partly upon memory and partly on presence of mind. Power of expression depends upon a variety of circumstances. (ii) Those which affect his will to speak the truth. A man’s will to speak the truth depends upon his education, character, courage, sense of duty, his relation to the particular facts, his mood or humour for the moment etc., in varying degrees. (iii) Those which arise from the nature of the statement in evidence itself and from surrounding circumstances, i.e., the probability or improbability of the statement. Yardstick of probabilities is to be adopted. Intrinsic worth and animus of witnesses is to be looked into. (iv) The evidence of official witnesses and experts could always be tested with reference to available scientific material Even evidence of eyewitnesses and other lay witnesses could be so tested if the scientific material available is of a reliable nature. On the facts of the instant case, the capacity of Joha and Pee to tell the truth depends first on their knowledge, the facts of the offence, their relationship with the appellant. Both Joha and Pee know the appellant very well. There is evidence that Jeremia was well-known to the victims and the incident took in a kiosk where there are electric lights. Joha testified that he was well-known to him. Jeremia admitted in cross-examination knowing both girls and stated that they normally assist their mother in selling fish. Secondly, Joha reported the incident to her mother the following day at 14.00 pm who returned the same day at 17.00 pm, reported the incident to Kitongoji Chairperson and took Joha and Pee to Mandi Dispensary. There is no consistent evidence of the time the appellant left from the victim’s kiosk but it is 5 common ground that after he left, Pee returned home at 6 in the morning after the appellant had left. It might be argued that the incident was not immediately reported given that the appellant must have left since morning. It is the evidence of Pee that she was afraid to disclose the incident to her mother. Joha’s mother testified as the third prosecution witness and told the court that Joha informed her about the rape through the phone of Mr. Tass. Could it be said that there was unexplained delay to name a suspect by Joha and Pee so as to discredit them? The general principle echoed in the leading case of Marwa Wangiti Mwita v R [2002] TLR 39 at p. 43 is that: …The ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent Court to inquiry…. The Court of Appeal sitting at Mwanza in Aziz Athuman alias Buyogera v R, Criminal Appeal 222 of 1994 held that the principle of immediacy in naming a suspect is counterbalanced by principle of explainable or explicable delay in naming the suspect: …While the unexplained delay to name a suspect may justify fears on the veracity of a witness, it need not be so where there is a plausible explanation. It is no secret that in this country not many people are prepared on police confidence… 6 In the instant case, there is plausible explanation that Pee was afraid to inform her mother about the incident. The fact that Joha used the phone of Mr. Tass who was not in the kiosk suggest that Joha must have made some effort to find Mr Tass. Considering all these circumstances, I hold that there was no delay in reporting the incident and there is plausible explanation why the incident was reported in the afternoon. The testimony of the sixth prosecution witness, G539 D/CPL Tumaini, is that the nearest police station is Dareda Police Post. The Police Post is however very far from Mandi Village. It was for this reason that the incident took place on 10 December 2023 but the Police Form No 3 were issued on 12 December 2023. Despite the fact that the victims were not immediately issued by Police Form No. 3, efforts were made for the victims to be examined on 11 December 2023 and then re-examined on 12 December 2023 after Police Forms No. 3 have been issued. The Police Forms were admitted in court and showed that the victims’ sexual organs were penetrated by a male organ. This is in essence the evidence of the fifth prosecution witness, Silas James, a clinical officer at Mandi-Dabil Dispensary. This testimony was corroborated by the evidence of Joha, Pee, Joha’s mother, the third prosecution witness, and, Pee’s father, the fourth prosecution witness. This is an additional factor establishing that the matter was dealt with sufficient degree of immediacy. 7 It remains to consider the complaint regarding the failure to call Mood and Masanja who were present when the appellant was at the kiosk. It is the appellant’s complaint that the fact that they were not called raises doubt to the prosecution case. The learned Senior State Attorney, Ms. Msawa argued that these two persons were not material witnesses as they did not witness rape taking place. If I correctly understood the appellant’s complaint, the two persons could have proved the appellant’s presence at the victims’ kiosk. In addressing this issue, I will now consider the appellant’s defence at the trial. The appellant raised two defences at the trial. He testified that he was framed by the Joha’s mother who owed him 72,000/= TZS. She promised to pay him back within four days but she never did so. Having failed to pay him back, she promised to have the appellant “lost.” The second defence was that of alibi. He told the trial court that he was at his kiosk from 21.00 pm, implicitly suggesting it was impossible for him to rape the victims who were on another kiosk. In his second ground of appeal, the appellant complains that the trial court erred in not considering his defence. Ms. Msawa disagreed and pointed out that the appellant’s defence was considered and the trial court ruled that it did not raise doubt in the prosecution case. If this Court rules that the defence was not considered, as a first appellate Court, it has the power to step into the shoes of the trial court and consider the defence. 8 The trial Magistrate considered the first defence and ruled that it was vague, it had no connection with the offence charged and rejected it. The defence of alibi was not considered. Like the trial Magistrate, I am of the view that the defence of being framed does not raise doubt in the prosecution case. There is no evidence showing Joha’s mother borrowing money from the appellant. There are no details of the borrowing arrangement like the date, the manner in which the money was handed over and whether the arrangement was in writing. That the appellant’s claim was a desperate lie is borne out by the fact that on cross-examination he admitted knowing Joha’s mother very well but denied knowing her name or ever going to her kiosk. As to the alibi’s defence, I have come to the conclusion that it cannot stand in light of the prosecution evidence. The appellant’s alibi arises for the first time in cross-examination without any details. As stated earlier, the appellant admitted knowing the victims very well. He also knew that they were assisting their mother in selling fish. This account partly corroborates Joha’s account that fish was among the items sold at the kiosk run by Joha’s mother and that Joha appears to be a credible witness. It is true that Mood and Masanja were mentioned by Joha and Pee. These were witnesses who could have added information about the appellant’s presence at the victims’ kiosk on the day of the incident. In Christopher Nyimbo v R, Criminal Appeal 31 of 1997, Court of Appeal of Tanzania at Mbeya 9 (2004), the appellant’s co-accused for murder who was discharged on a nolle prosequi entered by the prosecution. As he was not called as one of the prosecution witnesses, the appellant’s counsel contended on appeal to no vail that he was a material witness. It was held that after the prosecution opted not to call him as a witness it was up to the defence to call him: … The prosecution is not under an obligation to call every witness who may know something about the commission of a crime. If, however, the prosecution knows a witness has evidence which is favourable to an accused person the better practice is to call the witness and offer him to defence who may elect to use him …. In the circumstances of this case, there is evidence to prove the appellant’s presence at the Kiosk and these witnesses could in fact have supported the appellant’s defence of alibi, if he wished to call them. I have no reason to accept his alibi. From the above analysis, the “comprehensible” third ground of appeal challenging either sentence or evaluation of evidence in the judgment of the trial court has no merit. It follows that I dismiss the appeal and affirm the decision of Babati District Court. DATED at BABATI this 21st day of November 2024 10 F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 21st day of November 2024 in the presence of the appellant in person and in the presence of Mr. Johnson Ndibalema, State Attorney for the respondent. Ms. Anna Mathayo (RMA) present. Right of appeal explained. F.M. MIRINDO JUDGE 11