Stanslaus Judgment Final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL No. 4629 OF 2025 (Arising from Criminal Case No. 26735 of 2024 of the District Court of Chato at Chato) STASLAUS SAMSON SAMSON………………………………………. APPELLANT VERSUS REPUBLIC………………………………………………………………..RESPONDENT JUDGMENT Date of Last Order: 04/03/2025 Date of Judgment: 11/03/2025 MWAKAPEJE, J.: This marks the first appeal where the appellant contests the decision of the District Court of Chato, where he was convicted for two offenses of a grave sexual abuse offense contrary to section 138C (1) (a) and (c) of the Penal Code, Cap. 16 R.E. 2022. The appellant was therefore sentenced to a 20-year imprisonment term for each offense, which were to run concurrently. The appellant denied the offences, prompting the prosecution to call five witnesses: the first victim's father, Samson Simion (PW1), the second victim's mother, Shija Tryphone Dilamie (PW2), the second victim (PW3, Page 1 of 15 a 13-year-old girl), PW4, and the first victim (PW5, a 7-year-old girl). In his defence, the appellant testified with another witness. PW1 recounted that on the evening of 27/08/2024, his daughter returned from school complaining of pain. He advised her to play, but by 20:00hrs, she complained again and was told to sleep. The next day, her younger sister noticed her walking improperly. Upon inspection, PW1 found bruises on her private parts. On 29/08/2024, PW1 informed the head teacher, who confirmed the bruises. The victim identified the appellant as the perpetrator. They reported to Muganza police station and took her to Muganza health centre, where the bruises were confirmed. PW1 knew the appellant as a fellow tenant. PW2, Shija Tryphone Dilamie, mother of PW3, stated she knew the appellant as a fellow tenant. On 29/08/2024, she received a call from Muganza police station and found her daughter with her teachers. She confirmed her identity and was informed that her daughter was raped by the appellant. They were given PF3 for further medical examinations on 30/08/2024. PW3 stated that on 25/08/2024, the appellant sent her to buy bananas. Upon her return, he undressed her and raped her, warning her not to tell anyone. On 28/08/2024, she reported the incident to the police, who confirmed the bruises. Page 2 of 15 PW5 stated that on 25/08/2024, the appellant raped her. She informed her father (PW1) about the incident. In his defence, the appellant claimed he was at home with his fiancée on 25/08/2024. He sent PW3 to buy bananas and gave her the change to share with his brother. He denied the accusations and questioned why the police officers and doctor were not brought to testify. DW2, Aneth Joseph Dickson, stated that on 25/08/2024, he was at the appellant's home and cooked bananas, which he shared with PW3's mother. After the testimonies from both parties, the trial magistrate convicted the appellant of Grave Sexual Abuse of PW3 and PW5, sentenced him accordingly. Aggrieved by the outcome, the appellant appealed to this Court with six grounds of appeal as follows: 1. That the trial court erred in law and, in fact, for convicting the Appellant basing on contradictory facts between the charge sheet, unreliable and incredible testimonies of PW-1, PW-2, PW- 3 & PW-5 are full of fundamental contradictions and inconsistencies. 2. That the trial court erred in law for convicting the Appellant based on his own extra-judicial statement, which were recorded contrary to the Chief Justice's guidelines. Page 3 of 15 3. That the trial court erred in law and, in fact, for convicting the Appellant basing on contradictory facts between the charge sheet, unreliable and incredible testimonies of PW- 1, PW-2, PW-3 & PW-5 are full of fundamental contradictions and inconsistencies. 4. That the trial court erred in law and fact on account that material witnesses, namely the investigation officer and medical officer (s), did not testify in court, nor were the material documents (PF3 forms) for both victims tendered as exhibits in court. 5. That the case was mis-tried as both PW3 and PW5, being minors, testified in the court without the presence of the social welfare officer. 6. That, the prosecution's case was not proved beyond reasonable doubts. At the appeal hearing, the respondent was represented by Ms. Kabula Benjamin, learned State Attorney, while Merss Costantine Mutalemwa and Erick Lutehanga represented the appellant, learned advocates. In their submission, the advocates for the appellant opted to argue only on the fifth ground of appeal, abandoning the other five grounds of appeal. Addressing the fifth ground of appeal, Mr. Lutehanga submitted that the trial court erred in recording the testimonies of PW3 and PW5 who are tender aged victims without the presence of the social welfare officer. He Page 4 of 15 argued that the presence of a social welfare officer is mandatory according to section 115(4) of the Law of the Child Act, Cap 13 R.E 2019 as amended by the Child Protection Laws (Miscellaneous Amendment) Act of 2024 under section 34. Failure to summon the said officer was a legal error. Additionally, Mr. Mutalemwa stated that the absence of the welfare officer resulted in a mistrial and a lack of a fair trial in taking the evidence of PW3 and PW5, who were the victims. He insisted on a fair trial for both sides and that the law be adhered to. Mr. Mutalemwa further submitted that conviction and sentence should be quashed and set aside since there was a mistrial of the entire trial court proceedings. Furthermore, it is a trite law that the court may order a retrial in such circumstances. However, in the circumstances of the case, he prayed that there should not be a retrial as it would prejudice the appellant and allow the Respondent to fill in the gaps. He further stated that it is crucial to note that the arresting and investigating officers, who were the key witnesses, were not called to testify, where their testimony would have been essential in establishing whether the appellant confessed. Also, as per page 6 of the proceedings, the caution statement was intended to be part of the exhibits, yet the two officers were not called to testify or tender the document in the trial court. Moreover, he contended the victims, thus PW3 and PW5, were sent for Page 5 of 15 medical examination, but their medical reports were not tendered before the trial court, nor were the medical experts called to testify. Therefore, since there are multiple gaps that the respondent might seek to fill through a retrial, they prayed for the position that the appellant should be acquitted. In response, Ms. Benjamin submitted that they partly support the fact that the testimonies of PW3 and PW5 were taken without adhering to section 115 of the Law of the Child Act. She further stated that the law requires the presence of a social welfare officer to protect the interests of child witnesses, and in the case at hand, the rights meant to be protected were not safeguarded due to the absence of the social welfare officer in the proceedings. Ms. Benjamin prayed for a retrial, as a retrial is warranted where the original trial is illegal and defective, and as to this case the trial was conducted in violation of mandatory legal provisions, rendering it defective and illegal. Further, Ms. Benjamin submitted that on the other hand, they see no gaps in the evidence as submitted by counsels for the appellant. On the issue of confession, PW4 tendered an extrajudicial statement, and on page 6 of the proceedings, the respondent stated its intention to tender both a cautioned and an extrajudicial statement, and what was tendered was only the extrajudicial statement, which showed that the appellant had Page 6 of 15 admitted to the offence. She further stated that it is not a requirement that all witnesses or exhibits be presented in court. On the absence of medical expert Ms Benjamin stated that there was no necessity to call one considering the nature of the offence, which was grave sexual abuse. There was no requirement to prove penetration, the testimonies of the victims were sufficient and self-satisfying. She further stated that, on the appearance of the arresting and investigating officers, there was no dispute that the appellant had been arrested. She cited Section 143 of the Evidence Act (TEA), which states that no particular number of witnesses is required to prove any fact. She contended that the witnesses presented were sufficient to establish the charge against the appellant. In cementing her argument for a retrial and the interest of justice, Ms. Benjamin cited the case of Fred John vs Republic (Criminal Appeal No. 17 of 2018) [2020] TZCA 364 (28 July 2020) at pages 9 &10, when the case of Fatehali Manji vs Republic [1966] E. A 343 was referred that a retrial should be ordered only where the original trial was illegal and defective, as in the present case. Therefore, in the interest of justice, she prayed for a retrial. In rejoinder Mr. Mutalemwa submitted that a retrial cannot be ordered to allow the prosecution to fill in evidentiary gaps and cannot be Page 7 of 15 permitted to do so at the appellant's expense. The arresting and investigating officers, as crucial witnesses, did not testify. This omission leads to an adverse inference regarding their nonappearance. He further submitted that Section 143 of the Evidence Act cannot be applied as a blanket provision in every case to excuse the respondent's failure to call material witnesses. He cited the case of Wambura Marwa Wambura vs Republic (Criminal Appeal No. 115 of 2019) [2022] TZCA 429 (14 July 2022), where it was stated that the arresting and investigating officers were crucial in the circumstances, and their absence cannot be justified under section 143. Therefore, their nonappearance creates an inference in favour of the appellant. He also stated that even though the victim's testimony is essential as per section 127, the medical report would have served as corroboration, especially on the given contradictions in the testimony of various witnesses. Mr. Mtalemwa stated that, due to the given circumstances, the prosecution should not be limited to bringing additional witnesses to a retrial, as it would amount to filling evidentiary gaps that would be prejudicial to the appellant. He prayed for the trial court's proceedings, convictions, and sentence to be quashed and set aside and for the appellant to be set free. Page 8 of 15 Having reviewed submissions of both sides on the fifth ground of appeal, the issue that this Court will consider is whether the appeal is meritorious. In considering this ground of appeal, it is imperative to critically examine the provision of section 115 as amended by the Child Protection (Miscellaneous Amendment) Act, No. 10 of 2024, which introduced subsection (4). The said subsection explicitly provides that: “115(4). In all proceedings where a child is called as a witness, the court shall require the attendance of the social welfare officer." [Emphasis supplied] A plain reading of this provision establishes a mandatory legal obligation on the court to ensure that a social welfare officer is present whenever a child testifies. The use of the word "shall" in this provision is a clear indication of an imperative duty rather than a discretionary one. The same is reinforced by section 53(2) of the Interpretation of Laws Act, Cap 1 R.E. 2022, which provides that: "53(2) Where in a written law the word 'shall' is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed." In the case of Salimu Alphan vs Republic (Criminal Appeal No. 547 of 2016) [2018] TZCA 246 (19 April 2018), it was stated that: Page 9 of 15 "Where the word "shall" has been used in an enactment, in terms of the provisions of section 53 (2) of the Interpretation of Laws Act, Cap 1 R.E 2002, it connotes that compliance is imperative." Thus, the requirement that the social welfare officer be present when a child testifies in court, is not a mere procedural formality but a substantive legal duty that must be strictly observed. There is no doubt that the rationale behind this provision is to safeguard the rights and welfare of child witnesses, recognising their unique vulnerabilities and the psychological impact of legal proceedings on their welfare. The presence of a social welfare officer serves multiple critical functions, including providing emotional and psychological support, ensuring the child comprehends the proceedings, and protecting them from potential trauma or intimidation during testimony. Therefore, the duty imposed by this provision is not subject to judicial discretion, and any deviation amounts to a fundamental procedural irregularity that compromises both the fairness of the trial and the rights of the child witness. In the present case, PW3 (13 years) and PW5 (7 years) testified on 4 November 2024 and 10 December 2024, respectively. However, a review of the record reveals no indication that the trial court required the presence of a social welfare officer during their testimonies, as mandated by section 115(4) of the Law of the Child Act, as amended. This omission Page 10 of 15 constitutes a clear violation of the statutory requirement, thereby directly undermining the integrity of the proceedings. Given this fundamental non- compliance, I concur with the submissions counsels of both parties that the proceedings, having been conducted in contravention of section 115(4), are legally flawed. As a result, they are rendered null and void and are hereby set aside. That said, the next issue for determination is whether a retrial is tenable in the circumstances without prejudicing the appellant by affording the prosecution the opportunity to fill in the evidentially gaps. It is settled law that a retrial is ordered in cases where the trial was illegal and defective as stated in the prominent case of Fatehali Manji vs Republic [1966] E.A 341, which has been referenced by numerous decisions in this land including but not limited to Selina Yambi and Others vs Republic, Criminal Appeal No. 94 of 2013 (unreported), Fred John vs Republic (Criminal Appeal No. 17 of 2018) [2020] TZCA 364 (28 July 2020) and Peter Charles Makupila @ Askofu vs Republic (Criminal Appeal No. 21 of 2019) [2021] TZCA 197 (12 May 2021), to name a few. In the said case it was stated that: "In general, a retrial will be ordered only when the original trial was illegal or defective. It will not be ordered where conviction is set aside because of insufficiency or for purpose of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where the conviction is vitiated by mistake of the Page 11 of 15 trial court for which the prosecution is not to blame, it does not necessarily follow that, a retrial shall be ordered; each case must depend on its own facts and circumstances and an order of retrial should only be made when the interest of justice require." [Emphasis supplied] Further in the case of Selina Yambi and Others vs Republic, (supra) it was explicitly provided that: "In general, a retrial will be ordered only when the original trial was illegal or defective. It will not be ordered where conviction is set aside because of insufficiency or for purpose of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where the conviction is vitiated by mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that, a retrial shall be ordered; each case must depend on its own facts and circumstances and an order of retrial should only be made when the interest of justice require." [Emphasis supplied] Guided by these authorities, I should emphasise that the decision to order a retrial is highly dependent on the specific circumstances of each case and must be made where the interests of justice demand. A retrial should not serve as an avenue for the prosecution to rectify deficiencies in its case by introducing new evidence that was not presented in the initial trial, thereby unfairly strengthening a previously weak case in an attempt to secure a conviction; see the case of Peter Charles Makupila @ Askofu vs Republic (supra). Therefore, the court must exercise caution to ensure that a retrial is not used as a tool for the prosecution to gain an Page 12 of 15 undue advantage but rather as a means to uphold fairness, protect the rights of the accused, and ensure that justice is served for all parties involved. In the present case, Mr Mutalemwa highlighted several gaps in the prosecution case, including the absence of the arresting officer or investigator and the contradiction of the prosecution witnesses. On the other hand, Ms Benjamin assured the court that no new evidence would be introduced, as the prosecution evidence is enough to prove the case against the appellant, should a retrial be ordered. Notwithstanding the submissions by the counsels of both parties, it is a well-established principle in sexual offence cases that the best evidence is the testimony of the victim, provided the court finds the witness credible. See the case of Kennedy Mahuve @ Mjaliwa v. Republic (Criminal Appeal No. 540/590 of 2020) [2024] TZCA 19 (6 February 2024), which referred the case of Selemani Makumba v. Republic [2006] T.L.R. 379. In this case, the victims, PW3 and PW5, unequivocally testified that they were raped. PW3 gave a detailed and consistent account of the incident, explicitly stating that the appellant inserted his penis into her vagina. She further testified that the ordeal lasted approximately 20 to 40 minutes, underscoring the prolonged and distressing nature of the assault. Page 13 of 15 Her mother (PW2) also corroborated the testimony, affirming that PW3 had informed her that the appellant had raped her. Similarly, PW5 provided unambiguous testimony of rape. Furthermore, PW1 (her father) who examined PW5, observed bruises on her private parts. These injuries were consistent with the occurrence of rape, providing evidence that substantiated the victim's account. Despite the direct testimonies from both victims and corroborative statements from their parents, the appellant was charged not with rape but with grave sexual abuse which is a distinct offense with elements of proof that differ fundamentally from those required to establish rape. This variance between the charge and the evidence presented is not merely a procedural irregularity, it strikes at the heart of the prosecution's case. The discrepancy undermines the legal sufficiency of the case, as the evidence adduced points to an offence of a different nature than the one charged, rendering a charge of grave sexual abuse unproven, considering the same was not amended in terms of section 234(1) of the Criminal Procedure Act, Cap 20 R.E 2022. See the case of Masota Jumanne vs Republic (Criminal Appeal No. 137 of 2016) [2018] TZCA 175 (19 February 2018). Seeing all the evidentiary gaps identified above, variance between the charge and evidence and the overall circumstances of this case, I am Page 14 of 15 inclined to concur with Mr. Mutalemwa that, this matter does not meet the threshold for ordering a retrial. Accordingly, and for the reasons stated herein, I find merit in the appeal. Consequently, I hereby allow the appeal, quash the appellant's conviction, and set aside the sentence imposed upon him. Consequently, I direct that the appellant be released from custody forthwith unless he is lawfully detained in connection with another matter. It is so ordered. DATED at GEITA this 11th day of March 2025. G.V. MWAKAPEJE JUDGE Page 15 of 15