20110708 TZCA Mbeya

-.J IN TttE ~~URt OF APPEAL OF TANZANIA AT MBEYA' . ,. . . l. _· (CORAM: MBAROUK. J.A., MASSATI, J.A., And ORIYO, J.A.) CRIMINAL APPl:AL.NO. 141 OF 2010 1.. MARKO PATRICK NZUMILAl_ · . ._ · 2. • FRANK WILLIAM @SHOKAJ .. :......... ~.......................... APPELLANTS l VERSUS ··THE REPUBLIC .•.. }....•....•........... . ~ ..•................•.............. RESPONDENT . ~ . {Appeal from -the decision. of the High Court of . ,/ Tanzania at Mbeya) .. (Lukelelwa, J.) Dated the 15~ December, ,,, . 2009. in . CD<;:l Criminal Appeal No~ 27 of- 2009. · · . . . . /. ---- . ------· . .. ~ . . ... JUDGMENT OF THE COURT ... 5 &: 8 )uly, 2QU r · MASSATI, J.A.: · .'if""he. app~llants . •. w~re~charged - . wi_th . the- ... counts . . ·of conspiracy, .. . armed ' . . . . robbery . and.. gang . . ·- rape .. "fhe District Court of Mbeya which tried them,. . . '· .· . . ,· .. ·convicted ~ . . them. - of the first two counts. and sentenced them to three . . . ( years. and _fifteen . years imprisonemt and six strokes of. the cane .-. ·. f . . . respectively. Their appeals against conviction in the High Court were . ..A dismissed, while the.ir s~ntences on the -second count were enhanced to • 30 years imprisonment and the corporal punishment increased. to twelve strokes to be levied in two instalments, of· six each. Still protesting their innocene::-e, they have now filed a second appeal. 1 I .... . . : Each of the 'appellants filed a separate memorandum of appeal. . . The first appellant had nine gr9unds,. which could conveniently be concretized into five main ones. First, that the appellant was not properly identified. Second, that the PF3 of the victim was not legally tendered in evidence,. Three, the courts below wrongly based his conviction on the cautioned statement of the second appellant. Four, that the· defence case was not considered. Lastly, (which was a general one), that the charge . . was not proved against him beyond reasonable . ( doubt. On the · other hand, _the -second appellant's memorandum contained eight grounds, but which could also· be concretized into five ., major ones, more or .less similar to those of the. first apQellant. r The only difference is that on the_ ground relating to the cautioned statement, the . ' second appellant's complaint is' that the . ca-utioned statement was improperly admitted. The Appellants a~opted those grounds at the ' hearipg of the appeaL . ( Before us, .the appellants appeared in person and fended for themselves. The respondent Republic was represented by Mr.. Prosper • Rwegerera, learned State Attorney. The brief background to this case is that, on the midnight of 15th August 2008, ELIZAH ANTHON'/ (PWl) was asleep in her house in Iyanga, Mjele village, Mbeya District, Mbeya Region. She was alone as 2 ' . her husband, ANTHONY ALIHOKA (PW2), had travelled to visit a sick relative. PW1 then heard_ a child crying outside. When she tried to go out to respond to the cries, she was met by a horde of people who kicked the door open, entered insid~, and started beating her. The men asked for m~ney and when she could not tell where it was, they • • • I · reached for _ PW2's · jacket which was · hanging by the rope, helped . . - ' . . themselves with some stis 173,600/= and then started raping her in turns. She had a c~u~t of- five men who did that. After ravishing her, ,, (' the thugs l~ft. · Overcome by r:1aternal instinct, she first located her · , : . children andjfound them hiding in _a river bed. Then, she woke up her • . I • . .. l neighbours Who . came_ to the scene of crime .and. rushed her to the . •. ''i . {i th dispensary. finally the matter was reported to the police on 18 August .2008, who t~ok over the investiga.tion .. On 20th August, 2008, 2983 OT SSGT DANSON (PWS) was -... ' . assignetf ·to investigate the case. On interviewing PWl, she mentioned five persons: who raped her and robbed the money. She mentioned . those as Marco, Ndele Julias, John, Chukuani, and Frank. . On 26 th August,· 2008, the $econd appellant was arrested, and on interrogation, gave a cautioned statement (Exh.P2). in which he implicated other persons. This is w_hat led to the arrest of the 1st appellant. It was on the basis of this and other evidence such as that of PW8 that the appellants were charged with the offences. In their defences, the 3 .. --.z. - ,....1,., ... ~- - ·-- ~- ·,.~~--. . . · appellants denied being anywhere near the scen_e of the crime ··on the ~ material day. The second appellant further explained how he was forced to write a cautioned statement w~ich was produced as ari exhibit in the prosecution case. Some of the appellant's grounds. of appeal were also cons.idered by '.: 4 ; the first appellate court. on· the· question of identific.atibn, the High < .J Court· found that indeed there were weak conditions of ider:itification, but. that the evidenc.e was' corroborated by .the second appellant's cautioned ( · statement and the firs~ appellant's oral ·admissions to PW& and PW8 and . . his conduct of hiding away from arrest. On the admisibilfry ar1-d weight; Qi ·~ ! of the c;autioned statement (Exh. -P2) the first ·appellate~fourt, 9pined 11 . . • _L that, it was voluntary, .properly received, and act~d upon against the ..• . . . . ·.· second appella_nt. In .any case, that, ~ there was sufficient ):orrQboration. . .· . . . ·. ' · ·to support both the retracted confession against the. maker ahd to be · · · ·. . .\ . . ' ' . used to;convict the first appellant. The first appellate court was also convinced that t~e p·rosecution case had .been proved beyond reasonable . . doubt. The grounds on the admisibility of the PF3, and failure to " consider the defence case were not considered by the first appellate court b~cause they were not raised· by the appellants in their memoranda of appeal. And we do not think they can legitimately be raised at this stage (see GANDY v. CASPAR (1959)23 EACA 139). 4 . .,,,· ...: " . ' I . Mr. Rwegerera, the learned State Attorney ·declined to support the conviction. He has forcefully argued that, the evidence of identification was so· weak that it cannot support the convictions of the appellants. Specifically, he submitted that the evidence of PW 1, the key prosecution witness, was not admissible because she was not sworn or affirmed contrary to section 198(1) of Jhe Criminal Procedure Act (Cap 20 RE . . l'I • I / 2002)i The other eye witnesses of identification namely PW3 and PW4, . were children of tender .years whose evidence was taken contrary to the _ provisions of section· 127(2) of the Evidence Act (Cap 6 RE 2002.) · Besides, there were contradictions in the testimonies of these eye _·,. . 1 ~ . . _,··witnesses that couJd not be ignored. /1. . ' . ·After going through the record of appeal, we felt that we did not .. . . ; , · have to decide the appeal on merit We shall explain. .. Section 198(1) ·of the Criminal Proced~re Act,· (the CPA) requires that, -_ every witness in a -criminal case . . · be •sworn, or affirmed in . accordance with the provisions of the Oaths and· Statutory Declarations • Act, s~bject to the provisions of any other written law to the contrary. Section~ of the Oaths, and Statutoty Declarations Act (Cap 34 RE 2002) provides:- 5 ,. . ."( 4) subject to the pr0visons to the contrary . 1 contained in any written law, an oatn shall be made by:- (a) any person who may lawfully b~ examine9 •upon- oath or give or be · requir~d to give evider'lce upon oath by : - / ,J . ' or before a court; (b) any perscm _acting as interprete·r ~f .· . . • .f • - . ' questions put to and evidence given by I a ·person being,-=-examined by or giving . '/ I . ;'· · Jvidence before a court: ·· • . . •·; • . • I . provided that ·where ariy person who is requ_ired to - . I make an oath prof~sses . ;·" any.- faith other than the christian faith or objec:ts to. being: sworn,stating as the . . '\ _; ,, - . ground of such objection,· either. he has no religious ( \ i belief or that the making of an oath is contrary to his . . ' religi~us belief, such person shall b~ permitted to make his solemn afffrmation instead of making an oath and such affirmation shall be of the same effect as if he ~ad made an oath". 6 I I I. I ... ' . . "·· ·._ • Briefly,· then the effect of section 4 of this law, is that in all judicial X proceedings, all witnesses who are Christians must take oath, and all other witnesses -(including those without religious· beliefs) have to be· affirmed. The evidence of c~ildren of tender years, however, is one of the recognized exceptions under section 198(1) of the CPA because, subject to certain conditions, :their evidence may be accepted withou~ , I oath or affirmation (see GODI KASENEGALA v.. R., Criminal Appeal No. 10 of 2008 (unreported). (' - In the present case, the evidence of PWl ELIZA ANTHONY, PW2 ANTHONY ALIHOKA anc;t PW7 JOSEPH NGAYA (all adults) was taken without affirmatibn, after the trial court had -noted· t11at they were . 1· pagans. · As seen above, this· was wrong- in law. The evidence of PW3 • SIKAL ANTHONY, who wa_s a child of tender years was also take0· • contrary to section, 127.(2) of the Evidence Act, because,· the voire dire -, . ~ . ' . _test conducted on her, was most unsatisfactory. · ( \. The effect of non compliance with section 198(1) of the CPA is that · such fvidence must be discarded from the record ( see MWIT A SIGOKE @ OGORA v. R., Criminal Appeal No. 54 of 2008 (unreported). The effect of non compliance with section 127(2) of the Evidence Act is also the same (see GODI KASENl:GALA v. R., (supra). But the total effect. of all these irreguJatires has to be weighed against the test set in 7 ♦ . - section 388 of the Criminal Procedure Act and it is "whether such error has occassoned a failure of justice". The term "failure of · justice" has eluded a precise definition, but in criminal law and practice, · case law has mostly looked at it from an accused/appellant's point of view. But in o~r vi~ from the wordi~g of sectfon 388 of the CPA, that term is not designed. to protect only the the interests , . of the . accused. It , I - encom.passes both sides in the trial. · Failure of justice or (sometimes, referred to as "miscarriage of just~c:e") _has, in more than one occassion been held to happen where an accused is denied an opportunity of an ~ acquittal. (see for instance ~ILLIBALD KIMANGATO v. R., Criminal / .· .'/. }. . Appeal . No. ·235 rof · 2007 (unreported) but in our consJdered ,:. . view,. it\. , ~- · _equally o<;curs where the . prosecution is denied an opportunity of a· . conYiction.. This is-because, . . while it is always: safer tp err in acquitting · . .. . . . . ~than in punishment~· it ·is also. in the interests of the state that crimes do not go'..· unpunished. So, in deciding whether a failure of justice has been occasioned, the interests ·-· of IJoth sides . of the scale of justice have ' to be considered. In the present case, by unwittingly allowing PWl, PW2 and PW7 . to give unaffirmed testimony, the trial court certainly prejudiced the prosecution case substantially as those were crucial witnesses for its case but for which· they were not to. blqme for giving of their evidence in 8 violation of the law. To that ext,ent, we think, there was a failure of justice. ·. ·,_,_.<.:. , The procee9ings of the trial Court cannot therefore be left to stand. The same fate· will have t6 befaU all the proceedings of .the High Court on first appeal. In exercise:.of our revisional powers under section J , 4(2) of the Appellate Jurisdiction Act, Cap 1~1 RE 2002, we-quash all the J ' proceedings and judgments of the_ lower courts> and set aside the sentences. In the circumstances of this case, an~ in the interests of justice, we •. , .·,. order that the•appellants be retried as ..expeditiouslylas possible. ~ . d "~ .. Ii It is so ordered. - . .". DATED atMBEYA this 8th day of ~uly, 2011.: · M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL. K.K. ORIYO JUSTICE OF APPEAL • I certify that this ; . is a true copy of the original. ~MP1KYA • .SENIOR DEPUTY REGISTRAR COURT OF APPEAL 9