20041027 TZCA Arusha 2

- THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: RAMADHANI, J. A.; NSEKELA, J. A.; And I(A.JI, J. A.) CRIMINAL APPEAL NO. 25 OF 2002 BETWEEN EZEKIEL NOEL on APPELANT AND THE REPUBLIC ... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Munuo, 3.) dated the 301h day of November, 2000 11 in Criminal Appeal No. 19 of 2000 JUDGMENT OF THE COURT RAMADHANI, ).A.: A girl of nine years called Neema Misael (PW 1) was sent by her mother, Martha Misael (PW 2), to her elder aunt to collect some bananas. On her way back, she met the appellant, Ezekiel Noel, who stopped her, led her by the hand to a place behind a classroom where he undressed her and had carnal knowledge of her. When he was through with her, and while brandishing a knife, he warned her not to tell anybody about the incident. That was on 12th January, 1999 at about 1700 hours. 2 PW 1, being scared, kept mum. Her parents, PW 2, and her father, Misael Aron Mangia, (PW 3), noticed some changes in the way she walked and sat but she would not say what was the matter with her. Her parents being concerned took her first to Marangu Dispensary and then to Mawenzi Hospital where it was established that she had been defiled but not deflowered. Eventually, PW 1 spilt the beans and told them about what the appellant did to her. The appellant was arrested and charged before the District Court of Moshi with rape c/s 130 and 131 of the Penal Code as amended by The Sexual Offences Special Provisions Act, 1998, (Act No. 4 of 1998). The learned District Magistrate, being satisfied that PW 1 1 though a youth of tender age, understood the duty to say the truth and that she was a reliable witness, convicted and sentenced him to life imprisonment. His first appeal to the High Court was dismissed by MUNUO, J. (as she then was). This is his second attempt. The appellant was in person while the respondent/Republic had the services of Mr. Mwampoma, learned Senior State Attorney. The 3 appellant had five grounds of appeal. However, this being a second appeal we are only concerned with points of law and not facts. The appellant firstsaid that it was not proved scientifically that PW 1 was under the age of nine years. We agree with Mr. Mwampoma that this is not relevant. The new section 130 (1) (e) of the Penal Code, as amended by Act No. 4 of 1998, provides that it is rape for a man to have sexual intercourse with a female person who is under the age of 18 years whether or not she consented. So, it is immaterial whether PW 1 was or was not under ten becEause she was certainly under 18 years which is the age relevant to the offence charged. The appellant also complained that PWs 2 and 3 could not corroborate the evidence of PW 1 because they are in filial relationship. Again we agree with Mr. Mwampoma that there is no law prohibiting persons in filial relationship from corroborating one another's evidence. Besides, in this case PWs 2 and 3 did not corroborate the identification of the appellant as the rapist. They only confirmed that their daughter was defiled and that is supported by the PF 3 (Exh. P. 1). The appellant also asked us to make an adverse inference on the fact that a certain woman called Rahel was not called by the prosecution to testify. Now, PW 3 explained that PW 1 broke her silence and said what had happened to her when Rahel intervened. It is our considered opinion that it was not at all necessary to call Rahel to testify though it were her efforts which broke the silence. The appellant also referred us to the legal principle stated by the East African Court of Appeal and also by this Court that where there is identification by description then the terms of that description should be clearly stated. The appellant submitted that that was not done here. However, in this case there was no description which led to the identification of the appellant. PW 2 when cross-examined by the appellant answered: "Nobody saw you except that the child named you". In the examination—in-chief PW 2 said "The child named that Ezekiel was the one who did that". So, PW 1 "named" the appellant 5 and did not describe him and hence there was no need of any description. We are, therefore, satisfied that the appeal is devoid of merit and we dismiss it. DATED at ARUSHA this 27th day of October, 2004. A. S. L. RAMADHANI JUSTICE OF APPEAL \ ( 1 A : H. R. NSEKELA JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of th/original. S. M. R1ANYIKA EPUTY'REGISTR6