MAKUBI JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 6319 OF 2024 (Originating from Criminal Case No. 239 of 2023 in the Nyamagana District Court at Nyamagana) MAKUBI MALIMA ZABRON………………………………………………APPELLANT VERSUS REPUBLIC………………………………………………………………….RESPONDENT JUDGMENT 11th & 25th November, 2024 KAMANA, J. This is an appeal against the conviction and sentence of life imprisonment passed on Makubi Malima Zabron, the appellant, by the District Court of Nyamagana. The appellant was convicted of rape and unnatural offence against AJ, a 9 years girl. According to AJ (PW1), the incident occurred on 9th April, 2023 at Nyegezi, Nyamagana in Mwanza Region. Around 1800 Hrs when strolling back home from the madrassa in the company of her two friends, AJ was called by the appellant to his kiosk where he was selling chips. Having been called by the appellant, AJ left her two friends and joined the appellant at the kiosk. Thereat, the appellant offered AJ chips and soda. She ate chips and escorted them with soda. 1 After that, the appellant took AJ to Kwa Hekima's house and they settled in a room in which there was a man, a woman and a child. In the room, the appellant was given a mattress on which he slept with AJ. While lying on the mattress, the appellant ordered AJ to undress her underwear and inserted his penis into AJ’s vagina and anus. AJ could not raise any alarm as the appellant gagged her mouth. The next morning, AJ left Kwa Hekima’s house to the Kibo area where he spent some time up to 2000 Hrs when he was found by good Samaritans who took her to her school. From there, the school nurse and watchman took her to his mother. According to AJ’s mother who testified as PW2, on 9th April, 2023 her daughter did not return home from the madrassa. She reported the matter to the local authorities and the police station. On 10th April, 2023, around 2200 Hrs, AJ came home in the company of her school nurse and watchman. AJ narrated to her what had befallen her. She reported her return to the police station where a PF3 form was issued and AJ was medically examined. According to PW2, after the examination, it was found that her genitals were penetrated. Having found that, PW2 asked AJ to show her where the appellant’s kiosk was. AJ took his mother to the appellant’s kiosk and the 2 appellant ran away when he saw them. He reported the incident to the police station and the appellant was arrested. Dr. Hawila Tesila (PW3) testified to having received AJ and examined her. According to his examination, he found that AJ’s vagina and anus were penetrated by a blunt object. He established that after he inserted his two fingers which penetrated the victim’s vagina and anus, he formed an opinion that she had sexual contact. PW3 also testified that she found bruises in both AJ’s vagina and anus whereby there was pus discharge from the vagina. WP7407 DC Mwajuma (PW4) testified that she investigated the case. According to her, the appellant denied having a hand in the said two offences. In defence, the appellant testified to having been arrested by the police officers at 247 Club on 16th April, 2023 and taken to Igogo Police Station. He evidenced that when he was arrested, he was told that his identity was mistaken with a person who sells chips at Kibo. He stated that the victim’s age was not established. He also asserted that the victim did not state that he inserted his penis into her vagina or anus. The appellant told the trial court that AJ did not identify him as it was dark and that the DNA test was not conducted. 3 From the evidence, the trial court convicted the accused of the offence of rape contrary to section 130(1) and 2(e) and sentenced the appellant to life imprisonment. Further, the trial court found the appellant guilty of the offence of unnatural offence contrary to section 154(1)(a) and sentenced him to life imprisonment. Aggrieved by the conviction and sentence, the appellant preferred this appeal which is premised on the initial seven grounds of appeal. When the matter was set before me for a hearing, the appellant filed an additional ten grounds of appeal. While the appellant appeared with no representation, the respondent had the services of Mr. Benedicto Ruguge, learned State Attorney. It should be noted that at this point I will neither reproduce all grounds of appeal nor discuss them. I will only focus on determining the initial seventh ground of appeal, and if the need arises, I will focus on other grounds sufficient to dispose of the appeal. According to the memorandum of appeal, the appellant complained that the trial Magistrate did not append his signature after recording the evidence adduced by witnesses. In his view, that was a contravention of section 210 of the Criminal Procedure Act, Cap. 20 [RE.2019]. 4 Being a layperson, the appellant submitted nothing on that. On his part, Mr. Ruguge admitted that the trial Magistrate did not append his signature after recording the evidence adduced by PW1 and PW2. However, he held the view that such an anomaly is curable as the appellant was not prejudiced. Strengthening his stance, the learned State Attorney relied on the case of Masalu Ipilinga v. Republic, Criminal Appeal No. 263 of 2019-CAT (Unreported). In determining this ground, I think it is necessary to reproduce the provisions of section 210(1) (a) of the Act as follows: ‘210.- (1) In trials, other than trials under section 213, by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner— (a) the evidence of each witness shall be taken down in writing in the language of the court by the magistrate or in his presence and hearing and under his personal direction and superintendence and shall be signed by him and shall form part of the record;’ My understanding of the above-quoted section is that in any trial, save for trials relating to minor offences as mentioned in section 213 of the Act, the magistrate must append his signature after recording the 5 evidence of each witness. The reason behind the requirement is to give an assurance that the evidence on record was recorded by a person authorized to record the same. This is because the court’s records are not easily impeached as they are taken to reflect what transpired in the courtroom. In this regard, I am inspired by the position of the Court of Appeal in the case of Chacha S/O Magoti @Magige v. Republic, Criminal Appeal No. 406 of 2017-CAT (Unreported) where the Court had this to state: ‘The effect of failure to append signature in the proceedings was stated by the Court in Yohana Mussa Makubi (supra) as follows: “In light of what the Court said in WALII ABDALLA KIBWITA's and the meaning of what is authentic can it be safely vouched that the evidence recorded by the trial Judge without appending her signature made the proceedings legally valid? The answer is in the negative. We are fortified in that account because, in the absence of the signature of the trial Judge at the end of the 6 testimony of every witness: firstly, it is impossible to authenticate who took down such evidence. Secondly, if the maker is unknown then, the authenticity of such evidence is put into question as raised by the appellant's counsel. Thirdly, if the authenticity is questionable, the genuineness of such proceedings is not established and thus; fourthly, such evidence does not constitute part of the record of trial and the record before us." In his submissions, Mr. Ruguge contended that the omission to append a signature is curable and he sought solace in the case of Masalu Ipilinga (Supra). I took time to read the cited case and the case of Jumanne Shaban Mrondo v. Republic, Criminal Appeal No. 282 of 2010-CAT (Unreported) which was cited in the case of Masalu Ipilinga (Supra). In both cases, the Court of Appeal discussed whether the contravention of section 210 (3) of the Act was fatal. The section reads: ‘The magistrate shall inform each witness that he is entitled to have his evidence read over to him and if a witness asks that his evidence be read over to him, the 7 magistrate shall record any comments which the witness may make concerning his evidence.’ In this regard, the Court of Appeal held the view that non- compliance with section 210(3) is not fatal when there is no complaint as to the authenticity of the records so far as the evidence is concerned. While I fully subscribe to the position of the Court of Appeal so far as section 210(3) is concerned, the matter at hand has nothing to do with section 210(3). It is about non-compliance with section 210(1)(a). Having taken that position, it should be noted that non-compliance with section 210(1)(a) is incurable. This is because it touches on the authenticity of the records which makes the presiding officers in the trial and appellate stages to make informed decisions. Failure by the magistrate or judge to append his signature after recording the evidence puts the authenticity of such evidence in question. In this, I am again fortified by the Court of Appeal in the of Chacha S/O Magoti @Magige (Supra) in which it quoted with approval its position in the case of Yohana Mussa Makubi and Another v. Republic, Criminal Appeal No. 556 of 2015-CAT (Unreported) where it was stated: 8 ‘We are thus, satisfied that, failure by the Judge to append his/her signature after taking down the evidence of every witness is an incurable irregularity in the proper administration of criminal justice in this country. The rationale for the rule is fairly apparent as it is geared to ensure that the trial proceedings are authentic and not tainted. Besides, this emulates the spirit contained in section 210 (1) (a) of the CPA and we find no doubt in taking inspiration therefrom.’ Fortified by that position, I hold that since the trial Magistrate did not sign after recording the witnesses’ evidence, such evidence is not authentic. Consequently, the proceedings cannot be used to determine the appeal as there was nothing in terms of evidence that was adduced before the trial court. In such circumstances, the normal recourse is to nullify the proceedings, judgment and orders accrued thereon and order a retrial. However, in the interest of justice, I am not prepared to do that. This is because after going through the evidence, I am satisfied that the prosecution did not prove its case against the appellant to the required 9 standard. That being the case, to order the retrial amounts to affording the prosecution to fill the gaps. I take that position while mindful that in any criminal trial, it is imperative for the prosecution to lead evidence that leaves no reasonable doubt that the accused is the person who committed the offence he was charged with. In cases where the accused was not red- handed caught in the commission of the offence or was not well-known to the victim or the witness before the commission of the alleged offence, the prosecution must lead evidence that proves that the accused was properly identified. In this, I am inspired by the Court of Appeal in the case of Daud William Macha v. Republic, Criminal Appeal No. 333 of 2019-CAT (Unreported) where it was stated: ‘In cases where it is undisputed and there is evidence that the accused person was caught red-handed while committing a crime or was well known to the victim or witnesses, the question of identity becomes immaterial. However, where the accused person is not known to the victim or witnesses and his name is not mentioned to anyone, the question of identity becomes significant.’ 10 In this matter, the appellant and AJ were not known to each other before the incident. Further, from the evidence, the appellant was arrested on 16th April, 2023 while the alleged offences took place on 9th April, 2023. It is on record that AJ met the appellant around 1800 Hrs when there was still sunlight. From the records, AJ did not describe the appellant to PW2, his mother, and PW4, the investigator. Though AJ testified to have met the appellant when there was sunlight and slept with him when there was a torchlight, that alone is insufficient to prove that it was the appellant who raped him and not any other person. This is because identification of the accused is a vital element regardless of the time and circumstances in which the victim or witness alleges to see the accused committing the offence. Given that, to establish that the accused was identified, especially when he was not red-handed caught committing the offence or was not well-known to the victim or the witness, the prosecution must lead evidence that the victim or the witness described the accused. In the case of Daud William Macha (Supra), the Court of Appeal had this to state: ‘Identification of the accused person is essential in all conditions, unfavourable and favourable, including an offence committed during day time. Even though the 11 degree and weight attached to identification might be slightly different for the identification under favourable conditions compared to that under unfavourable conditions, still identification and description of the person who committed the offence are vital and an exercise that cannot be dispensed with. See: Jumapili Msyete v. R, Criminal Appeal No. 110 of 2014 (unreported). In the case of Daud William Macha (Supra), the appellant was arrested in a group of persons after being pointed out by the victim as a person who sodomized him twice. There was no prior description of the appellant by the victim. In such circumstances, the Court of Appeal stated: ‘Without a prior description of the purported suspect to the arresting officer or any other person, concluding that the appellant linked to the offence's commission was identified correctly becomes difficult.’ Bound by such wisdom, I am of the view that since AJ testified to having been raped and sodomized by the appellant and did not give any description of the appellant, I find it difficult to conclude that it was the appellant who committed the offences. The description of the appellant 12 by AJ to his mother or any person could give credence to her evidence that it was the appellant who committed the offence. The importance of describing an accused person was stated in the case of Yohana Chibwingu v. Republic, Criminal Appeal No. 117 of 2015-CAT (Unreported) as follows: ‘That in every case in which there is a question as to the identity of the accused, the fact of there having been given a description and the terms of that description are matters of highest importance of which evidence ought to be given first, of course by the person who gave a description, or purports to identify the accused person and then by the person to whom the description was given.’ One may argue that as per the case of Selemani Makumba v. Republic [2006] TLR 379, the best evidence in sexual offences is the victim’s evidence. I fully subscribe to that position. However, it is my considered view that the principle enunciated in the said case was not meant to ignore other established principles including those relating to identification of the accused. In concluding that the best evidence is of the victim, the Court of Appeal considered that since there was no likelihood of mistaken identity of the accused, 13 the evidence of the victim was sufficient to prove the offence of rape. The Court stated: ‘We are of the firm view that once PW1 and PW2 were believed and the question of mistaken identity eliminated and there were no circumstances or evidence which could give rise to doubt in the mind of the trial court, we can find no justification for interfering with the concurrent findings of the two lower courts that PW1 was raped and that the person who raped her was the appellant.’ For the above reasons, I hold that the prosecution failed to prove its case beyond a reasonable doubt. As a result, the appellant's conviction is quashed and the sentence is set aside. The appellant is to be released immediately from prison unless he is otherwise lawfully held. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 25th November, 2024. KS KAMANA JUDGE 14