emmanuel so samwel iman so samwel vs republic 2009 tzhc 120 23 february 2009

IN THE HIGH COURT OF TANZANIA AT TABORA (Tabora Registry) (DC) CRIMINAL APPEAL NO. 134/2007 ORIGINAL CRIMINAL CASE NO. 120 OF 2007 OF THE DISTRICT COURT OF KIGOMA DISTRICT AT KIGOMA . BEFORE; S. 3 AWASI PRINCIPAL RESIDENT MAGISTRATE EMMANUEL S/O SAMWEL @ IMANI S/O SAMWEL...APPELLANT VERSUS THE REPUBLIC....................................................... RESPONDENT REASONS FOR JUDGMENT 2 4 h November, 2008 - 2 3 d February, 2009 A. K. MUJULIZI, J. The Appellant EMMANUEL S/O SAMWEL @ IMANI S/O SAMWEL was convicted on 5th July 2007 by the District Court of Kigoma on one count of: RAPE C/SS 130 (1) (2) and 131 of the Penal Code, Cap. 16 R.E. 2002. He was sentenced to thirty (30) years imprisonment plus 12 strokes corporal punishment. He appealed against both conviction and sentence. At the trial it was alleged that .the appellant had, in the month of February, 2007 at day tifne at Burega Kigoma, within the Municipality, District and Region of Kigoma, had carnal knowledge of one Dorini d/o Mbuna a girl of 17 years. The Appellant, acting through Mr. M. R. G. Kabuguzi, learned Advocate had filed a total of Six (6) grounds of appeal. However, for the purpose of this decision I will reproduce only grounds No. 5 and 6 which were framed as follows: "5. T h a t the tria l learned Principal Resident M agistrate grossly erred in law and fact when, having found that the victim (PW1) was aged 19 years o ld (as p er Birth certificate). H eld that such om ission was not fa ta l to the alleged offence o f rape to be com m itted against the same. "6. T h a t since the alleged victim 's (P W l's) age was evidently 19 years old, the tria l learned Principal Resident M agistrate ought to have acquitted the Appellant o f the alleged charge o f rape since thee was no enough evidence on record to p ro o f (sic) lack o f consent o f the alleged victim fo r the alleged sexual intercourse . " 2 \ Arguing the appeal before me, Mr. Kabuguzi urged the C o u rt to allow the appeal on the basis that on the evidence on record th e re w as no foundation to lay the charge of rape under s e c t io n . 130 (2) (e) of Penal C ode w hich is statutory »apr- relating to alleged victim s aged : s vears or below, in w hich ew iv. :v - i s s i o t consent w o uld be ’ 1 : Vc5 Pit. ■.1! K h - • > I ! •«•. s !i (• - r i; o:.: vo be i v y e a n at tr;< •«'■ ! -I ’( C in that event the propei < n; ■ ■ ;; <'.i v\" ,iid hr-v- been Ra-i; v /rh'N or (c) in whirl- r ~'r r Mir P ,r ' f r r ui . ■- i o b lig e d 'tc p io vc lack c< c ..a r * i - n< \ Mi . m Mr. Mwitasi learned State A \ - < r :oi ‘ih c R e sp o n d e n t Republic toncurred with the subm ission by Mi. : rb u y u zi. He subm itted furtho-i that since in her ow n testim o ny PW3 . ■.ad stated that she had e n g a g e r •:: a consensual sexual relationship ■ ■< •. would not have arisen on h u •. iven age. He there fo re urged the Coun to find that the learned trial Principal M agistrate had erred in Saw :n disre g a rd in g the e v id e n ce of :he Birth Certificate. Both counsel were correct. In terms of section 88 (1) & (2) of the evidence Act - Cap. 6 R.E. 2002; "(1) A Court sh a ll presum e to be genuine every docum ent purporting to be a certificate, certified copy o r other document, which- (a) is b y law declared to be adm issible as evidence o f any p a rticu la r fact: (b) purports to be duly certified by a pu blic o fficer in the 1 1n i t e r ! R e p u b l i c - (c) is su bstantially in the from and purports to be executed in the m anner directed by law in that b eh alf." (2) A Court sh a ll also presum e that any o fficer by whom any such docum ent purports to be signed o r certified held, when he signed it, the o fficia l capacity which he claim s in such p ap er." The only issue for determination is whether the learned trial Principal Resident Magistrate, properly overruled the Contents of the Certificate "Exh. P. 1" admitted by the very Court in evidence. 4 Exhibit P. 1, being a certified copy of the Certificate of Birth No. 0615238 issued by the District Registrar, Kigoma, issued on the 1st day of July 1988, certified under the Births and Deaths Registration Ordinance (Cap 108 of the Laws) to be a true copy of an entry in the Register in the custody of the said District Registrar, certified that one Dorine d/o Edward Mbuna (father) and Monica Jastine (mother) was born on 2nd May, 1988. Contrary to this clear evidence, the trial Principal Resident Magistrate held; (Page 6) "The difference o f num ber o f years i.e age is not evidentially fata! as the Sfrth certificate was not prepared by a fnedica! doctor/or expert and not a receipt o f the Labor W ard o f a clinic. It is a product o f an Adm inistration organ o f the Governm ent nam ely the D istrict Com m issioner which prepared it This can not w ater down the exact date o f the g irl who was in Form 3 in 2006 which fits the age o f any student in that class, taking into account that students are norm ally aged 18 years in form 4 and not m ore" With much respect, if it is deserved in this respect, to the learned Principal Resident Magistrate, he was writing his own law. Courts of law are bound by law. They can interpreter it, but certainly can not write their own law. In this event the issue had indeed not even arised since the certificate was produced by the prosecution itself. I have no difficulty therefore in finding this reasoning of the learned trial Principal Resident Magistrate being contrary to the express provision of the Evidence Act cited above. It was erroneous. It is hereby reversed. For those reasons I allowed the appeal on 24/11/2008 when I made consequential orders reserving my reasons for today. Order accordingly. A. K. M U J U L m r JUDGE. 23rd February, 2008 6 Date: 23/2/2009 Coram: Hon. A. K. Mujulizi, Appellant: Absent Respondent: Represented by Ms Kitally the S.A for the Republic. B/c: Mzige - RMA Miss. Kitally - State Attorney For the Respondent Republic. The matter is for reasons in judgment. A. K. MUJULIZI, JUDGE. 23rd February, 2009 Reasons read out in the presence of Miss Kilali State Attorney for the Respondent Republic. A. K. MUJULIZI, JUDGE. 23rd February, 2009 7