CRM

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: LILA. J.A.. KENTE. J.A.. And MGONYA, J.A.^ CRIMINAL APPEAL NO. 467 OF 2020 MWITA CHARLES MACHUMBE.................................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Musoma) (Galeba, J.) dated the 14th day of August, 2020 in Criminal Appeal No. 78 of 2020 JUDGMENT OF THE COURT 3rd & 17th July, 2024 KENTE. 3.A.: If what is a alleged in this appeal is what happened, it suggests a serious and insidious disregard of human values by some self-absorbed individuals slowly eating away at the family fabric. This appeal is characterized by two prominent features which include the fact that the alleged victim of the deplorable offences of rape and impregnating a school girl of which the appellant was convicted, is the appellant's biological daughter, and the difficult circumstances the trial court found itself in when the appellant declined to utilize the fundamental right to defend himself after he was found to have a case to answer and informed of his rights in terms of section 231 (1) of the Criminal Procedure Act, Chapter 20 of the Revised Laws. The appellant was sentenced to a total of sixty years imprisonment by the Serengeti District Court following a conviction for two counts of rape and impregnating of a school girl. Whereas the first count was for contravention of sections 130 (1), (2) (e) and 131 (1), of the Penal Code, the second count charged the appellant with the infraction of section 60A (1) and (3) of the Education Act, Chapter 353 of the Revised Laws. The particulars of the offence in respect of the first count alleged that, on diverse dates between June and 6th September, 2018 at Iseresere village in Serengeti District, Mara Region, the appellant was involved in a series of sexual intercourse with a girl aged fifteen years who was by that time, a standard seven pupil at Iseresere Primary School. Regarding the second count, it was particularised that, between June and 6th September, 2018, the appellant impregnated the said girl. Embittered by the above decision of the trial court, the appellant appealed to the High Court (the first appellate court) which, upon considering the evidence adduced in support of the prosecution case, went on dismissing the appeal against the conviction and sentence in both counts for being devoid of merit. Notably, the sentence of thirty years imprisonment in respect of the first count which was imposed on the appellant by the trial court was enhanced to fourty five years imprisonment. Still aggrieved, the appellant appealed to this Court citing four grounds of complaint which can be conveniently paraphrased along the following lines: One, that the trial magistrate was so biased as to loose the necessary moral authority to preside over the matter; two, that the appellant was not accorded a hearing; three, that the evidence of PW1 which turned out to be a pack of lies, was relied on to found a conviction without being evaluated; and four, that the medical examination of the victim was not properly conducted as she was not examined on the day of the commission of the alleged offences. The evidence led in support of the prosecution case was briefly to the following effect. As stated earlier, the appellant and the victim are undeniably and respectively a father and daughter. At the time which is material to the occurrence of the charged offences, the appellant and the victim were living together (but each in his/her own hut) at Iseresere village in Serengeti District. Apparently, the appellant at the time of perpetrating the charged offences was either unmarried, a widower or divorced. As regards the sequence of events culminating in to the commission of the alleged offence on the material day and subsequently thereafter on various occasions, the victim testified that, during one night as she was a sleep, she saw a man who was holding a torch and panga entering the hut she was sleeping in. The said man whom the victim did not recognise at first but later on easily recognised as the appellant, ordered her not to raise any alarm. He then undressed her and went on to insert his manhood into her vagina causing her a lot of pain as her private parts were then oozing with blood. The victim recounted that, for the following three consecutive days, she could not go to school. She told the trial court that the appellant gave her paracetamol tablets which she had to take with water to ease the increasing pains. The victim further testified that, the appellant did not stop there and that this continued on various occasions between June and September, 2018. According to her, on 5th and 6th September, 2018 she took her Primary School Leaving Examination. That, on the first day of the exams, after she returned home, the appellant accused her of being late, held himself aloof and quite oddly refused to eat the food which she had prepared for him. Having given her oral reprimands, he then ordered her to come back home much earlier on the following day. PW1 told the trial court that, even though, to the appellant's chargrin, she came home very late on the last day of the exam which was the following day. Thereupon, the appellant who had gone irrationally irritated and outraged, collected and took away all her clothes and thereafter he closed and locked her hut. Upon seeing this, the victim took a hike and went to her grandparent's home leaving the appellant alone. She said that, after she told her grandmother what the appellant had been doing to her, her grandmother advised her to flee further to her aunt and tell her the ordeal she had been going through. PW1 went on testifying that, upon receiving the very disturbing news, her aunt informed the Village Executive Officer one Kimori Makongoche @ Moremi (PW2) who in turn reported the incident to the Police where a case of rape was subsequently opened against the appellant. Meanwhile, the victim was referred to hospital where she was examined by one Amos Kitie an Assistant Medical Officer (PW3) whose report confirmed not only that the victim had been enduring sexual abuse but she had also been impregnated. Upon the foregoing evidence the appellant was arraigned in the Serengeti District Court where he was charged with rape and impregnating a school girl, the charges which he denied in no uncertain terms. During cross examination, the appellant questioned the victim why she had all along not informed anyone that she was enduring sexual abuse perpetrated by him, whereupon the victim responded that the appellant had threatened to kill her if she disclosed to anyone the ordeal she was going through. Asked as to who had made her pregnant, the victim pointed an accusing finger at the appellant. She said that before the occurrence of the charged offences, she was not living with the appellant. As stated earlier, after closure of the prosecution case, the record shows that the trial magistrate was satisfied and he accordingly went on ruling that a case had been made against the appellant sufficient enough to require him make a defence. For purposes of clarity regarding what transpired in court, we will let the record of the trial court speak by itself starting from page 48 through to page 50 of the record of appeal. RULING "Taking into consideration the prosecution evidence herein above, this court finds that a prima facie case has been established against the accused person and the accused is called to defend himself. S. 230 o f Criminal Procedure Act Cap 20 R.E. 2002 Complied With. SGD.A. C. MZALIFU - RM 16/ 01/2020 COURT: The accused person is addressed in terms o f section 231 o f Criminal Procedure Act Cap 20 R.E. 2002 and he replies: - Accused person: I elect to give evidence without oath and I will call one witness. SGD: A. C. MZALIFU - RM 16/ 01/2020 i Accused person: I am not ready to give evidence today; I pray for another defence hearing date. ORDER: 1. Defence hearing on the 22/01/2020 2. AFRIC SGD: A. C. MZALIFU - RM 16/ 01/2020 DATE: 22/01/2020 CORAM: A. C. MZALIFU - RM PROS: D/SGT PASCHAL ACC: Present B/C: ANNA SAMWEL - RMA PP: The matter is for defence, I am ready. SGD: A. C. MZALIFU - RM 22/ 01/2020 Accused person: I am not ready for defence hearing today, I pray for another defence hearing date. SGD: A. C. MZALIFU-RM 22/ 01/2020 ORDER: 1. Defence hearing on the 10/02/2020 2. AFRIC. 8 DATE: 10/02/2020 CORAM: A. C. MZALIFU - RM PROS: D/SGT PASCHAL ACC: Present B/C: ANNA SAMWEL - RMA PP: The matter is for defence; I pray to proceed. SGD: A. C. MZALIFU - RM 10/ 02/2020 Accused person: I am not ready to give my defence. COURT: In this case the accused person is called upon to give his defence evidence but he does not want to, no reason has been advanced for his failure. From this, I can draw an adverse inference that the accused person did the offence. The case be fixed for Judgment SGD: A. C. MZALIFU - RM 10/ 02/2020 ORDER 1. Judgment on 24/02/2020 2. AFRIC SGD: A. C. MZALIFU-RM 10/ 02/2020." 9 Having found that the appellant had in effect chosen to remain silent and call no witness, the trial magistrate went on observing that he could draw an adverse inference that indeed the appellant had committed the offences with which he stood charged. Thereafter the learned trial magistrate ordered that the matter would come for judgment on 24th February, 2020. After a careful consideration of the evidence and the applicable law, the trial court found in its judgment that, the prosecution had proved all the necessary ingredients of the offences of rape and impregnating a school girl. In particular, the trial court was satisfied that the evidence led in support of the prosecution case had established beyond doubt that there was penetration and that, it was none other than the appellant who had committed the said rape. Moreover, the trial court was satisfied and it accordingly found as a matter of fact that, the victim was a school girl and that as a result of rape by the appellant, she was pregnant. Accordingly, the trial court went on to convict the appellant as charged and sentence him accordingly. Disconsolate with the conviction and sentence by the trial court, the appellant appealed to the High Court (sitting at Musoma) fronting 10 four grounds of appeal which were however condensed into three grounds of complaint and restructured by the first appellate court as follows: 1 and 2. That the trial magistrate erred in law for convicting the appellant without affording him a right to be heard in defending himself which offended the principles of natural justice. 3. That the trial magistrate erred in law for holding that the victim had never had sex with any other man except the appellant whereas the victim did not mention the date of the offence. 4. That the trial magistrate erred in law and in fact for according weight to the evidence of the medical test taken many days after the event to implicate the appellant. After re-analysing the evidence led before the trial court, the learned Judge of the first appellate court was satisfied that the evidence of the victim supported the charge. With regard to the appellant's complaint that he was not accorded a hearing and allowed to call witnesses who would testify in support of his case, the learned Judge referred to the proceedings of the trial court starting from the 16th January to 10th February, 2020 and found this complaint to have no ii substance. The learned Judge was satisfied that there was nothing more that the trial court could have done to guarantee the appellant a fair hearing. The High Court Judge premised his position on the fact that, the trial court had adjourned the defence hearing three times with a view to accommodating the appellant who however, as it turned out, he finally informed the court that, he was not ready to give his defence evidence. In these circumstances, the learned Judge was satisfied that the appellant was granted the right to be heard and to call witnesses but he turned it down. To that end, the appellant's appeal to the first appellate court was found to have no merit and dismissed in its entirety. Regarding the sentences of thirty years imprisonment for each count which were meted out on the appellant, the learned Judge of the first appellate court sua ponte took the view that, for all purposes and intents, the sentences for the first count was quite inadequate. We will revert to this aspect of the appeal at the most opportune moment. In the meantime, we proceed to consider the appeal in so far as it relates to the appellant's grounds of appeal starting with a complaint that he was denied the right to be heard to which he has directed the main thrust of his appeal. 12 It would be pertinent to state here that, at the hearing of this appeal, the appellant who was fending for himself appeared in person through a video link from Bugando Hospital in Mwanza where he was hospitalized. We begin by agreeing with both parties that, indeed there was no defence evidence from the appellant's side after he was found to have a case to answer and subsequently put on his defence. As stated earlier, the appellant had raised the same complaint before the first appellate court but the Judge rejected his complaint holding that, the trial court had done all that it could to accord him a hearing but all to no avail. It should be trite to the legal fraternity that, the requirement that no one should be condemned unheard or the principle of audi alteram partem as it is commonly known, requires all parties to a dispute to be heard and accorded the opportunity to present their witnesses if any. Among other things, the right to a fair hearing to which every party to a dispute is entitled, includes within its ambit, the right to present one's case and evidence and to call witnesses and cross-examine any witnesses called by the other side. 13 It is very frown upon for non-compliance with the audi alteram partem principle such that, the courts both in Tanzania and elsewhere within the common law jurisdictions have held times without number that, no matter the merits of the case, the denial of the right to be heard is seen as a basic fundamental error which should nullify the proceedings made pursuant to the denial. (See for instance The Republic v. High Court, Accra; ex parte Salloum & Others (Coker, Interested Party), Suit No. J5/4/2011 (unreported). This principle of law which dates back to the early 1940s in the English case of General Medical Council v. Spackman [1943] A.C. 627 was followed with approval by the now defunct Court of Appeal for Eastern Africa in the case of Hypolito Cassiano De Souza v. Chairman and Members of the Tanga Town Council [1961] E.A 377 and later by this Court in the case of Director of Public Prosecutions v. I Tesha and Another [1993] T.L.T 237. (see also our recent decision in the case of Director of Public Prosecutions v. Rajabu Mjema Ramadhani, Criminal Appeal No. 223 of 2020 (unreported). 14 At first, Mr. Isihaka Ibrahim Mohamed who appeared along with Mr. Tawabu Yahya Issa both learned State Attorneys representing the respondent/Republic, sought to support the second ground of appeal proffered by the appellant as he was then convinced that indeed the appellant had been condemned unheard. However, after we drew his attention to the fact that appellant had thrice turned down the opportunity to defend himself and call witnesses, the learned State Attorney took a different tack and submitted that the appellant's complaints were baseless. Mr. Isihaka submitted further that, in all those three instances, it was the appellant's inaction that was to blame. Based on the foregoing situation, the learned State Attorney supported the approach by the trial court which was sustained by the first appellate court. For his part, the appellant remained steadfast and refused to accept the blame that for the reasons best known to himself, he had foregone his right to be heard. He faulted the first appellate court for putting the blame on him and not on the trial court. We have closely examined the record of appeal and the principle of audi alteram partem in the light of the facts and circumstances of 15 this case. With respect, we are unable to go along with the appellant regarding his complaint that he was denied the right to be heard. It should be evident from the record of the trial court that, after closure of the prosecution case, the appellant was availed the opportunity to defend himself and call witnesses, which he however declined to utilize. The view we take is that, as correctly found by the learned Judge of the first appellate court, there was nothing else the trial magistrate could have done to further accommodate the appellant who was clearly indifferent and disinclined to defending himself. Moreover, given the seriousness of the appellant's complaint, this matter could be pursued further. As a general rule, the accused person has a privilege not be compelled to testify at the trial unless one voluntarily wishes to do so. According to the libertarian school of thought and this must be common knowledge, there is no law that mandates the accused person to make a defence and give evidence. It is worth noting that this common law principle originates from the most celebrated presumption that, every person accused of any crime is considered innocent until proven guilty. 16 In the circumstances of this case and according to our own law, section 231 (1) of the CPA mandates the trial magistrate to call upon the accused persons to launch their defence if at the closure of the prosecution case, a prima facie case is made against them sufficient enough to require them to make a defence. But in terms section 231 (3) of the same Act, where the accused opts not to give evidence and to call witnesses as it happened in the instant case, the court is entitled to draw an adverse inference against him. Moreover, both the court and the prosecution are permitted to comment on the failure by the accused person to give evidence. It is important to keep in mind however that, if the accused fails or refuses to open and make a defence against the prosecution's case, he faces a potential of a conviction. (See: I Kwando Tufuor 'Due process or crime control? An examination of the limits to the right to silence in criminal proceeding in Ghana' (2002) 22 African Human Rights Law Journal 187-212 http://dx.doi.org/10.17159/1996-2096/2022/v22nla8^ (visited on 13/7/2024). Coming back to the instant case, we can see no reason for holding that the appellant was denied the right to be heard. As correctly 17 submitted by Mr. Isihaka, the appellant was given the opportunity to defend himself which he refused to utilize. For these reasons, we entirely agree with the decision by the first appellate court and subsequently dismiss the first and second grounds of appeal which are essentially interwoven. The third ground of appeal also appears to us to have no merit in the light of the strong evidence led in support of the prosecution case. As concurrently found by the two lower courts, the victim was a single eye witness as far as the acts of rape committed against her by the appellant are concerned. Both the trial magistrate and the learned Judge of the first appellate court correctly interpreted the applicable principles on the evidence of a single witness who is a victim of a sexual offence with reference to section 127 (6) of the Evidence Act and the relevant case law. The two courts below found the victim to have been candid in her testimony regarding what happened to her in the hands of the appellant. We note that she gave a detailed explanation of what happened on the first day of the rape when the appellant entered the hut in which she was sleeping ordering her to keep quiet and threatening her with a panga before he went on undressing her and 18 inserting his manhood into her vagina. She said that thereafter, the appellant threatened to kill her if she spoke of his deeds to anyone. While approaching the evidence of the victim who was the single eyewitness with the attendant caution, the two lower courts were satisfied, correctly so in our view that, the evidence of the victim was not only cogent and coherent but it was also materially corroborated by her testimony in cross-examination and the testimony of the medical expert. For our part, being mindful that when the court considers the evidence of a single witness to a sexual offence, such evidence needs to be approached with caution, in that it should be credible and of such a nature that constitutes proof beyond reasonable doubt of the guilt of the accused, we are satisfied that in the present case, the victim was candid throughout her testimony. For instance, she gave a plausible explanation of her failure to tell anyone what the appellant was doing to her. As would be expected, no court properly guided would draw a negative inference from the victim's omission to disclose to anyone the ordeal she was going through. Moreover, the victim's evidence was corroborated on 19 some material aspects by the evidence of the material expert regarding what happened to her. Upon the above discourse, we are firmly of the view that the appellant's guilt was proven to the required standard and on that account, we have no reason to interfere with the concurrent findings of guilty by the lower courts. We in particular find the evidence of the victim regarding her sexual gratification by the appellant sufficiently credible. She was a credible witness who could not have fabricated such incriminating and deplorable evidence against her own father. For the above reasons, the appeal against conviction stands dismissed. As regards the minimum sentence of thirty years imprisonment which was in respect of the first count of rape, the learned Judge took the view that the minimum sentence was not adequate. He cited the fact that the appellant was a daring character who had exhibited a disgraceful behaviour not suited for human beings. The reason in support of the view which was taken by the learned Judge is particularly seen to stem from the answer the victim gave to the trial court saying that, the appellant had threatened to kill her if she disclosed his deeds to anyone. Accordingly, in a clear expression of his strong sentiments, 20 before enhancing the sentence, the learned Judge reasoned, at pages 88 to 89 of the record of appeal, thus: " Sixthly, PMC when responding to cross examination questions, she said at the top o f page 27 o f the typed proceedings; "... I was afraid because you promised to kill me if the matter would be known by people, my properties were into your house, the pregnancy was yours and you're the one who impregnated m e . . . This means, there is still a life threatening dragon hanging over the head o f the victim any time that the appellant becomes free unless the court does not believe the evidence o f the victim. I f the threat is real, what does the court provide as a cover to the victim in the circumstances? What if the appellant is punished leniently and is easily released and then he implements the threat? A ll these reasons do not suggest that the appellant was entitled to receive a punishment reduced to the minimum sentence o f 30 years imprisonment; yes he could be pardoned because we are encouraging to forgive but forgiving ought to start from life imprisonment 21 and end somewhere at the middle before getting to the minimum punishment." In his burning desire to have the appellant deservedly given a sentence commensurate to his proven misdeeds, the learned High Court Judge had more than one string to his arrow. He went on observing that: "Courts need also to take into account that the years they sentence criminals to, are not necessarily the number o f years the prisoners stay in jail; the prison authorities have some mandate or discretion to reduce the sentences by a proportion o f the term so that although the prisoner could have been sentenced to 30 years imprisonment, he could as well end up serving only 22 or 23 years there, although the statute provided 30 years as the minimum. Based on the above reasons, the conviction in both offences and a sentence o f 30 years imprisonment for impregnating a school girl as imposed by the trial court are upheld. But as for the offence of rape, having taken into consideration all the above factors, this court under the provisions o f section 366 (a) (ii) of the CPA, enhances the sentence o f thirty (30) 22 years imprisonment to a deserving fourty five (45) years imprisonment". When we invited Mr. Isihaka to comment on the propriety or otherwise of the procedure adopted by the learned Judge of the first appellate court in enhancing the sentence meted on the appellant, his brief submission was that, in terms of section 366 (a) (ii) of the CPA, the Judge had the mandate to enhance the said sentence as he did. However, the learned State Attorney was quick to agree with us that the appellant was not accorded a hearing before enhancement of the punishment imposed on him by the trial court. Given the circumstances, Mr. Isihaka implored us to invoke our powers pursuant to section 4(2) of the Appellate Jurisdiction Act Chapter 141 of the Revised Laws (the AJA) and restore the sentence of thirty years imprisonment in respect of the first count which charged the appellant with rape. Indeed, the learned Judge due to error, went on enhancing the punishment meted out on the appellant from thirty years to fourty five years imprisonment without affording him a hearing. We must mention here that while it is not in dispute that in terms of section 366 (a) (ii) of the CPA, the learned Judge had the powers to enhance the sentence as 23 was correctly submitted by Mr. Isihaka, section 29 (a) (i) of the Magistrates Courts Act, Chapter 11 of the Revised Laws (the MCA), provides that: "29. In the exercise o f its appellate jurisdiction under this Part, the High Court shall have power: (a) to take or to order some other court to take and certify additional evidence and, whether additional evidence is taken or not, to confirm, reverse, amend or vary in any manner the decision or order appealed against (including, without prejudice to the generality o f the foregoing, power to substitute a conviction, or a conviction and sentence, for an order o f the district court substituting an acquittal for a conviction, and power to make declaratory orders), so however that the decision or order as altered shall not be in excess o f the jurisdiction o f the court o f first instance: Provided that: (i) No conviction or conviction and sentence shall be substituted for an order o f the district court substituting an acquittal for a conviction, and no 24 sentence shall be enhanced, unless the accused or convicted person, as the case may be, has been given an opportunity o f being heard;." [Emphasis added] As stated earlier, Mr. Isihaka submitted correctly so that, the appellant was not accorded a hearing, before enhancement of his custodial sentence by the first appellate court. This in our view, is a correct submission which must be accepted. The enhancement of the sentence was clearly governed by the above-quoted section 29 (a) (i) of the MCA and, needleless to say, the provision being mandatory, it ought to have been observed. Failure to do so rendered illegal the sentence of fourty five years imprisonment imposed on the appellant by the first appellate court and, for that reason, we are inclined to set it aside as we hereby do. Since the ground regarding the legality or otherwise of the sentence meted out on the appellant by the first appellate court was raised suo motu by the Court, in exercise of our revisional powers in. terms of section 4(2) of the ADA, we proceed to substitute the said sentence with the minimum sentence of thirty years imprisonment which was imposed by the trial court. For the foregoing reasons, and to the above extent, the appeal is partly allowed and partly disallowed. DATED at MUSOMA this 15th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 17th day of July, 2024 in the presence of the appellant via video conference linked from Mwanza and Mr. Isihaka Ibrahim, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.