20171116 TZHC Dar es Salaam

.. IN THE HIGH COURT OF TANZAN'A . AT DAR ES SA~M. ~ MISC. CRIMINAL APPEAL NO. 242 OF 2016 ATHANAS S/0 NGOMAI ........ ~ ................ APPELLANT VERSUS THE REPUBLIC ...................................... RESPONDENT 9/11/2017 & 16/11/2017 JUDGMENT I.P.KITUSI, J. This appeal presents a familiar but, if true, an unpleasant tale of Athanas Ngomai, the appellant, having carnal knowledge of one Salome . Athanas Ngomai, his own daught~r, aged 15 years. That is an offence under section 158 (1) (a) of the Penal Code Cap 16, under which he was c;harged before the Ilala District Court of Ilala at Samora. It was alleged that Athans Ngomai had carnal knowledge of his said daughter on diverse ·dates between 2008 and 21st January 2014 at Mbondole area within Ilala District in Dar es Salaam Region. The appellant denied these allegations raising the issue of concoction by his wife who had her eye on his house. It is Salome Athanas Ngomai (Pwl) who kicked off the prosecution case. Four other witnesses testified in support_ of the allegations against , the appellant. The following story is told by them; 1 The appellant was a Pastor of the Tanzania Assemblies of God Church and was living at Mbodole area within Ilala District with Pwl · and Baraka Athanas Ngomai, his children born of his divorced wife. The appellant and the said divorced wife were originally living in Dodoma • Region and there is little mention of her in the proceedings. In 2012 the appellant married Tumaini Swolakabeja (Pw2) an enterprising woman who was doing farming and selling tea and buns (vitumbua) at the same time. It was alleged by the prosecution and not challenged by the appellant that between 2008 and 2012 immediately before his marriage to Pw2, the appellant was living with his children in a small, one bedroom · house at Mbagala area within Ilala District. According to Pwl this is the period the said appellant started ravishing her as he used to share a bed with her in the bedroom as Baraka, the elder child, was made to sleep in the sitting room. Pwl testified that her first experience with the appellant caused her pains, and that was in 2008 when they were still living at Mbagala. Pwl further stated that she did not feel pains with the subsequent sexual intercourses with the appellant which were to continue. When the appellant moved with his children from Mbagala to · Mbondole, they started living with Pw2 her step mother, so Pw1 had to : use the sitting room as her bedroom. Baraka went to live with a friend · according to Pwl, but according to Christina Abraham (Pw4) the wife of Baraka's teacher, he went to live with them at their school quarter. 2 Pwl said that the intercourses at Mbondole were now being done at 4.00 a.m in the sitting room whenever Pw2 went out to prepare the buns for her business. Now the appellant started anal sex with Pwl and he would interchange it with virginal sex too. All along, she said , she had not told anyone about what was · going an between her and her father for fear of his threats and for the fact that he was known to be a difficulty person. She went on to say that when she . reached puberty and realizing the danger of her getting pregnant with her own father which she loathed, she decided to • disclose the malpractice to her stepmother (Pw2). Pw2 described the modest house that formed their shelter from November 2012 when she married the appellant. Then she described the appellant · as a very rude hot tampered person who not only assaulted Pwl · frequently for flimsy grounds but picked fight with neighbors and even the Ten cell Leader. Whenever Pw2 wanted to intervene to protect Pwl, the appellant would tell her to step aside because Pwl was his daughter . not Pw2's. Pw2 confirmed the fact that one day (on 21 st January 2014) Pwl approached her in the kitchen as she was preparing her buns, and · asked her tell the appellant to stop the bad habit of raping her. Pwl told her step mother that the appellant had been raping her since the time she was eleven years. Pwl and Pw2 agreed to discuss the matter further at Pwl's school where Pw2 was carrying out her business. At the school, Pw2 managed to secure permission for Pwl to accompany her to hospital but they decided to go lodge a report of the matter at police. They recorded their 3 . statements at Sitakishari police station and by the time they were complete and a PF3 issued to them it was 8.00 P.M. On 22/1/2014 Pwl and Pw2 went to Amana Hospital where their . statement were recorded by social and welfare officers before Pwl was medically examined. Pw2 called the appellant and pretended that she was ill, and that Pwl was with her to render help. When the appellant arrived at the hospital he was arrested. At police station the appellant made his statement, and according to Pw2 he pleaded with her for forgiveness, saying that he had raped his daughter only once. The house in which the appellant and his family lived was described by Pwl, Pw2 and Pw4 as being very inadequate in terms of quality and size, it being grass thatched with walls of sticks held together with mud. And it was a one bedroom house. In his defence, the appellant described the house as spacious, roofed by corrugated iron sheets and the walls were of cement bricks. This fact is relevant as I shall try to demonstrate later. During her testimony Pw2 was cross - examined by the appellant on whether she had not fabricated the case out of grudge as he was cruel and harsh. Pw2's response was that she had not fabricated the case. The fact as to Pwl having had sex was proved by Magreth Ibobo PwS a Medical Doctor working at Amana Hospital where Pwl was taken for medical examination. PwS's conclusion was that Pwl had sexual intercourse for a number of times. 4 The appellant was the sole witness for the defence. He anchored the defence on the alleged bad blood between him and Pw2. The reason for the bad blood was, this time around,Pw2's mission to have his house sold. He stated that immediately he married PW2 she suggested that the house in which she found him living with his two children be sold. It was Pw2's idea that the proceeds of the sale could be used to build another house in Mbeya Region. The appellant's refusal to go along with Pw2's idea brought about misunderstandings and she vowed to even scores with him. The appellant reported this matter to the Ten cell leader. That was between the year 2012 and 2013. On 20th January 2014 Pwl and Pw2 spent the night outside the home. He went in search for. them but ended up being arrested on 21 st January 2014 allegedly for raping Pwl. He denied having carnal knowledge of Pwl and raised the fact that it was Pw2 who was guilty of misusing his ' daughter (PWl) for sex with other men. The appellant went on to say that before he married Pw2, he was occupying a one bedroom house so it was necessary for Pwl to sleep in a friend's house, nearby. He repeated the fact that Pw2 had her eye on the house for which reason she concocted this case. He stated that Pw2 had in fact already sold the house. When cross- examined by the Public . Prosecutor , the appellant stated that he was informed that Pw2 had sold the house and nobody knew where she and the children had relocated to. He wondered how Pw2 could have sold the house which had iron sheets. 5 The trial court was satisfied that the prosecution had proved the .~ case against the appellant beyond any reasonable doubt. It convicted · him for incest under section 158 (i) (a) of the Penal Code and sentenced him to life imprisonment. The appellant was aggrieved, he has therefore appealed both the conviction and sentence. Five numerical grounds were filed by the appellant but they amount to only one in my view, and I shall briefly illustrate this by reference to the grounds. In the first ground the appellant complaints over the proceedings which had no sanction of the Director of Public Prosecutions. On this, Ms Honoriana Munishi learned State Attorney who · represented the Respondent Republic at the hearing submitted that the new position of the law brought about by Miscellaneous Amend Act No. 3 of 2009 removed that requirement. With respect I agree with the learned State Attorney and find no merits in the first ground of appeal. On the third ground the appellant criticizes the trial court for not conducting a void dire test on Pwl. To this Ms Munishi rightly responded · by referring to section 127(5) of the Evidence Act which describes a child for purposes of giving evidence to be a person under the age of 14 years. Pwl was 15 years therefore there was no requirement for a voir dire examination to be conducted on her. The second ground which alleges that Pwl 's loss of virginity could have been caused by things other than sexual, and the fourth ground that Pwl's testimony was not corroborated are in effect asserting that the case was not proved beyond and all reasonable doubts. 6 The learned State Attorney submitted that it is true virginity may be lost through several ways as contended by the appellant but in this case Pwl and PwS proved that it was due to sexual intercourse. On corroboration, she submitted that the evidence of Pwl being the victim . could be enough to base a conviction on, citing section 127(7) of the Evidence Act. The appellant did not submit on the grounds of appeal but made two additional submissions. One was lack of proof that Pwl was a school girl. To this Ms Munishi responded by submitting that whether · or not Pwl was a school girl is neither here nor there because it is not · an ingredient of the offence of incest. The second additional point is on the contradictions as to the dates referring to the alleged rape taking place on 21 st January 2014 whereas the Doctor examined the victim on 31 st January 2014. Ms Munishi submitted that the fact that the victim was taken to hospital ten . days later is not material. The learned State Attorney conceded to ground five regarding sentence and submitted that the appellant's sentence to life imprisonment was unlawful because the lawful sentence for incest is 30 years. To begin with I agree with Ms Munishi, learned State Attorney that the sentence for Incest by males is 30 years as per section 158(1) (a) of the Penal Code. I think, however, this provision needs to be harmonized with section 131(3) of the Penal Code which sets life imprisonment for rape 7 . of girl under the age of ten years. The clear purpose of section 131(3) : of the Penal Code is to punish more severely those found guilty of having carnal knowledge of children who are under the age of ten years. This clear intention of the Legislature is ironically not reflected in . incest, a worse crime, in my view, if proved. In the case of Lawama Dedu Vs Republic, criminal Appeal No . . 318 of 2015, CAT at Iringa (unreported), the Court of Appeal came across · another inconsistence in the law under section 158 of the Penal code not including nieces in prohibited sex. It stated; 1 1Suffice to say, the Penal Code provisions punishing incest by males or females need to be harmonized with the provisions outlining the prohibited marriage relationship in the Law of Marriage Act" While the Court of Appeal was directing harmonization of provisions of two different statutes, the need is all the more legitimate where two provisions of the same statute are in conflict for the law is settled that two provisions of the same statute cannot be contradictory of one another. The Director of Public Prosecutions V. Li Ling Ling, Civil · Appeal No. 508 of 2015 CAT, ( unreported). Now back to the ground of appeal, that is, that the offence was not proved beyond all reasonable doubts. The law is well settled on this area 8 .. as well, that the victim is the best witness in sexual offences. L · of Diha Matofali Vs Republic Criminal Appeal a No. 245 of 2015 at Mbeya (unreported]. This is in line with the submissions of the learned · State Attorney that the victim's testimony may be relied upon in entering conviction according to section 127(7) of the. Evidence Act therefore the . evidence of Pwl could be used to convict even without corroboration. The trial court believed Pwl and found her testimony to have been well supported by Pw2's. I see no basis for holding a different view because Pwl is entitled to credence unless there is a suggestion to the contrary [See Goodluck Kyando Vs Republic. Criminal Appeal No. 118 of 2003 CAT at Mbeya (unreported). In this case there is no suggestion why Pwl should not be believe. I also take Pw2 to have been a candid witness and find no merit in the appellant's suggestion that she was prompted by bad blood in setting the law in motion against him. This ·is because the appellant's main ground that Pw2 wanted to get rid of him so as to sell his house came at the eleventh hour as an afterthought. He did not put that question to her when she was in the witness box. I am aware that failure to cross- examine is not conclusive proof that the one who does not cross- examine accepts the version given by a witness as true. [See Kwiga Masa Vs Samwel Mtubatwa [1989] TLR 103 (HC).] However the appellant seems to have been aware of the meaning of cross- examinations because he put to Pwl and Pw2 many questions meant at contradicting them. I take the appellant's failure to Cross- examine Pw2 on the alleged intention by her to sell the house as having been an afterthought. Beside that the 9 • appellant who had earlier described his house as being roofed by iron sheets, was recorded saying he wonders how Pw2 managed to sell the . house with no iron roof. On the additional points, I agree with the learned State Attorney that the contradictions as to the dates in this case did not go to the root of the matter. I think she is right, on the authority of Mohamed Said Matula Vs Republic[ 1995] TLR 3 cited in the case Alex Wilfred Vs Republic · Criminal Appeal No. 44 of 2015 CAT at Arusha (unreported). In my final judgment, the appeal as to conviction has no merits for the reason that the offence was proved beyond reasonable doubts. I dismiss it. The appeal against sentence is allowed. The sentences of life · imprisonment is hereby quashed and substituted with a sentence of 30 . years imprisonment. JUDGE 16/11/2017 10