200607055 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MAKAME, J.A., MUNUO, J.A. AND KAJI, J.A.) CRIMINAL APPEAL NO. 111 OF 2004 UBWA OMARI JUMA ............................................APPELLANT VERSUS THE REPUBLIC .•.••.•••.••••.••••.••.••.•••••••••••...••••••••• RESPONDENT (Appeal from the Decision and Judgment of the High Court of Tanzania at Tanga) (Mkwawa, J.) dated the 29 th day of October, 2001 in Criminal Appeal No. 38 of 2001 J UDGMENT O F TH E COURT -------------------- 20 June & 5 July, 2006 MAKAME, J. A.: UBWA OMARI JUMA, the appellant, received· a sentence of thirty years imprisonment and twelve strokes of corporal punishment 2 following his conviction for rape. He was also ordered by the trial court, Muheza District Court, to pay shs.10,000/= to the complainant, P.W. 1 Josephine Joseph, or serve a year in prison, consecutive to the thirty years imposed. He has come to this court on second appeal, having failed in the High Court to persuade Mkwawa, J. to overturn the trial court's decision. His present effort is resisted by Mr. Tangoh, learned State Attorney. The appellant is complaining that there was no proof that the complainant was really eleven years old; for all that one knows "the real age could be less than five years", so there should have been a voir dire examination. He said that none was held. His other ground is essentially that the evidence was not enough to convict him on, bearing in mind that there was only one witness whose identification ,. ' of the rapist was unreliable. Mr. Tangoh, learned State Attorney, submitted that the complainant's age was given as eleven years and this was not challenged during the trial! A Voir Dire examination, in terms of 3 Section 127 of the Evidence Act, was conducted, counsel submitted. There was corroboration of P. W. l's evidence provided by the testimonies of her grandmother and her grandfather, P.W. 2 AKWILINA JOSEPH and P.W. 3 STEVEN KIPILI, respectively. Learned State Attorney also drew our attention to the fact the appellant owned that there was a time when P.W. 2 had left the house to go to purchase some liquor so the appellant and P.W. 1 were left alone. Mr. Tangoh also added that the question of identification did not arise because, it is common ground, that the appellant was known to the family. The accepted fact's giving rise to this second appeal are in short compass. The appellant was employed to daub mud on the walls of the house of P.W. 3, who was living with P.W. 2 and their grandchild, P.W. 1. The evidence shows that on the material day the appellant employed a ruse to get P.W. 2 out of the way by telling her that some body with a bush knife belonging to her, P.W. 2, was at a pombe pub and he suggested to P.W. 2 that she should go there to collect it. This gave the appellant opportunity to get hold of the girl 4 and ravish her. He gagged her mouth so as to stifle her cries when she was performing on her and when he finished he threatened to kill her if she dared tell anyone. When P.W. 2 and the absent grandfather came home the appellant suggested to them that the girl, P.W. 1, who was then crying, must be stupid to do so for no reason at all. It was not until the following morning when P.W. 1 was found walking with an unusual gait and was asked that she disclosed that the appellant had raped her. Both the trial court and the first appellate court were satisfied that the girl told the truth, and we have no reason to fault the trial court's assessment of the credibility of P.W. 1, P.W. 2 and P.W. 3. We are satisfied that it was correct to hold that the evidence of P.W. 2 and P.W. 3 regarding the condition they found their grandchild in was corroborative of P.W. l's story implicating the appellant. The evidence on record established the appellant's guilt and we are unable to buy the appellant's fib to the effect that lies were told against him because P.W. 3 was trying to get even with him for the reason that he, the appellant, was demanding shs.45,000/= he was -I 5 owed by P.W. 3 for a house the appellant had built for P.W. 3. We cannot fail to note that the appellant has come up with this story for the first time, orally, when he was before us. He did not make the . assertion in any of the two courts below and he did not furnish us with it even in his Memorandum of Appeal. Like the learned State Attorney we are also of the view that, essentially, a voir dire examination was held; but we wish to add that it is better workmanship to stay close to Section 127 of the Evidence Act when determining whether, and how, a child of tender years should testify in court and indicate that the said section had been complied with. The conviction and sentence were well merited. The appeal against them is therefore dismissed. DATED at TANGA this 5th day of July, 2006. 6 . L. M. MAKAME JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original.