20110629 TZCA Tabora

1 . I IN THE COURT OF APPEAL OF TANZANIA AT TABORA,: :1 ...,GS 1'0 TH~ . ) .d ~: '{{ 13Y.L0 l" (CORAM: MSOFFE, J.A., KIMARO, J.A., ~n MANDIAol:A.yOO TU£ coUR1' Of -r. '! BRAR\' O, . NIA CRIMINAL APPEAL Nq. 45 OF 2009q ~11-.,v,A.L OF ·r~ZA _ ;I - - - LAYFORD MAKENE ................................ ...•...................................APPELLANT VERSUS. THE REPUBLIC .......................................... .- .............................. RESPONDENT 7 :i I _ (Appeal from the judgment of the Highl Court of Tanzania at Tabora) , . (Kaduri, JJ) . · . h '! dated the 4t day ~f N1vember, 2008 : m I , Criminal Appeal No. ll.14 of 2008 · ---------l · JUDGMENT OF THE COURT 28 & 30 June, 2011 MSOFFE, l .A.: 1 This is an appeal against the concur: rent findings of act by the courts \ • below that one day on a friday at arolnd 10.00 a.m. in the month of ,- . . . . . . . . . -~ . . . . · August 2006 the appellant LAYTON , M4KENE, a teacher by profession, raped his pupil PW1 Celina Cornel, agedi 14 years at the time, contrary to Sections 130 (1) and 131 of the Penal Core as amended lby Sections 5 and 6 of the Sexual Offences Special Provisi1ns Act No. 4 of\1998. The High Court of Tanzania at Tabora (Kadu'.i, . f·) upheld the 0istrict Court of ·:, t . I ~~ r ti_, (l •. I· I I I 1 I ' .I. 2 Kahama (Hassan, RM) that on the date in issue, during recess time, the appellant called PWl to the staff room. The appellant told her to open a cupboard in order to take out books. As PWl was ir, the process of opening the cupboard the appellant covered her mouth and told her that he had admired to have sexual intercourse with her for a long time. He fell her down and laid her upwards and then undressed her underpart. Having done so, he inserted his penis into her vagina to the extent that he I eventually ejaculated. She felt much pain since that was her first time to have sexual intercourse. When the appellant was through with the sexual act he released and warned her not to disclose the sexual encounter to anybody. PWl obliged and did not disclose the affair to anybody until November 2006 when she realized that she was pregnant,. Upon telling the I I appellant about the pregnancy the latter advised that it was better to terminate the pregnancy by way of an abortion.c They agreed to travel together to Kahama township for the purpose upon getting permission from her parents, who did not up to that time know about the rape and the eventual pregnancy. PWl together with the appellant travelled to one Dr. Kamu's hospital at Kahama where the abortion was successfully carried out. On the way back home to the village, PWl and the appellant hired a bicycle. Some how the pedalist discovered some strange behaviour in PWl 3 , I and suspected that she must have :•aborted and sb went around disseminating news about the abortion. IThe news reached PW2 Corne! ,, i !I . I Benedicto, PW l's father who reported the:: matter to the Pf lice. The police •I ! issued a PF3 to PWl and also arranged tio have the appellant's cautioned : I I I statement. Meanwhile, a school comm;;ittee meeting was convened to deliberate the matter. Before the school ~ommittee meet:ing the appellant I I admitted having .raped PWl and reduce:d the admissio~ to writing vide I, I., 1, I• exhibit Pl. j ! 'I j ' In his defence, the appellant denii.~d everything firom the alleged ;I l rape, the abortion and the school committee meeting. He also stated that i he was forced into making the cautioned ~tatement. ,ii I :1 1 i The appellant filed a six-point memorandum of app~al. In our view, I ' :1, I ! . . the memorandum boils down to one major ground of complaint - That the . · evidence on . re~ord. did not establish! the prosecutitjn case beyond.·. - :: I reasonable doubt. Before us, he repeat~d the same basic complaint and ,!, i ,j I urged further that he was forced into rr~aking the admission before the I, II I I school committee meeting for fear of sungusungu militia. ! He also wanted 'I i 'i to impress upon us that the whole case is a frame up by PW3 against him ' because he was not in good terms with him. On the alle@ed frame up we I i: I I I ., I • I I [ 'i .., , . I I:· wish to observe here and now that the aipellant is a liar. The allegation i: () :1 not borne out by the record. On 9/4/2008 when he 7as responding to questions by the court he is on record . as :having I replied tHus: - I taught with the head teacher for tour years. We were living at . . ' :1 I the school vicinity. . ·.· We had fami(ies there. ·I wJ had good relation with.the head teacher.. ; (Emphasis supplied.) .Ii I Under Section 6(7) (a) of the ~ppellate luris4iction Act (CAP · i1~ J 141 R.E. 2002) we are mandated to ~eal with "a mrer of law (not : I I i including severity of sentence) but not oJ a matter of fact". Inspite of this clear provision, over the years this Courf has held that it ban interfere with matters of fact where there was a misap~rehension of thJ evidence, where there . are misdirections or. non-directior;I~ I on the evide'jl ce by the_ lower . courts etc. - See . for instance • .. The . -DirJ.ctor I . of Public!I Prosecutions .. v l . Jaffari Mfaume Kawawa (1981) TLR 149. ! I I The question is whether in this cas¢ there is basis for us to interfere 1 with the findings of fact by the courts bel ow. From the oltset, our answer to this question is in the negative. . i I. f;. · 1 ....... . 1: •. I 1' :.. As correctly submitted- before us bj Ms. Lilian Itemba, learned Stat: Attorney, even without some other evidJnce the testimohy of PW1 alone I I . I I . was enough to ground the conviction ag~inst the appellant. PWl was so thorough in her evidence that, like the cpurts below, we too are satisfied that she spoke nothing but the truth. S~e was so thoroUJgh that she was even able to describe the size of the app~llant's penis thJ - "your penis is . .I big; but not very big". Taking her evidend:e in totality, we are satisfied that there was penetration within the provisiohs of Section 1· 0(4) (a) of the i Penal Code (CAP 16 R.E. 2002). I ' The evidence of PWl was corrobbrated by the s,chool committee . ,1:11 1 · meeting in whose minutes it is apparent tJhat the appellant admitted raping . 'I ,I . I PWl and apologized for doing so. He should not now be heard to deny ·1 ! . that he. did not admit committing the .offe~ce. ' . As already observed, it is also I on record that: the ·appellant's I ', i cautioned statement was produced and d~mitted in evidehce. On this, we go along with Ms. Lilian Itemba that it wls wrongly admi~ed in evidence. . " ·1 j But even if it is to be expunged from. the· evidence, the e idence of PWl is · enough to sustain the conviction. I !! 6 It is also known that the PF3 was also introduced in evidence as part I of the prosecution case. But yet again, since the provisions of Section 240 (3) of the Criminal Procedure Act (CAP 20 R.E. 2002) requiring the Court to inform the accused of his right to require the doctor summoned for cross-examination, were not complied with, the PF3 has no probative evidential value. If it is expunged from the evidence still the evidence of PWl alone established the appellant's guilt beyond reasonable doubt. Of I I course, in dealing · with the PF3 the judge on first i appeal slightly misdirected himself thus: - ... In my view the PF3 was not objected to duing its admission and for this reason I would hold that the appellant knew the contents of the PF3 and had nothing to object to that required the maker to the court for the appellant to cross-examine him. The non-objection meant that the appellant agreed with the contents and had nothing to question the maker on the substance of the document The non-compliance did not cause a failure ofjustice... With respect, the fact that the appellant did not object to the production in evidence of the PF3 did not absolve the court of the duty to inform him of his right provided for under Section 240(,3) (supra). 7 • There was no serious dispute that PWl was aged 14 years at the time of incident. So, in terms of Section 130 (2) (e) o~ the Penal Code I whether or not there was consent was im · aterial. When all is said and done, we ar of the settle~ view that the appellant's conviction of rape and re sentence of thirty years ·imprisonment with corporal punishment of 24 strokes of the cane meted on him cannot be faulted. The appeal is devoid of merit. Wf- hereby dismiss ; ' it. th DATED at TABORA this 29 day of June, 2011. J.H. MSOFFEI JUSTICE OF. APPEAL N.P. KI~ARO I JUSTICE OF APPEAL W.S. M~NDIA I JUSTICE ·OF APPEAL I certify that this is a true copy of the original. ~- E. Y. Mkwizu I DEPUTY REGISTRAR COURT OF: APPEAL