CRIMINAL APPEAL NO 351 OF 2021 VALENTINE CHRISTIAN MASSAWE VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CORAM: JUMA, C.3., LEVIRA, 3.A.. And ISMAIL. 3,AO CRIMINAL APPEAL NO. 351 OF 2021 VALENTINE CHRISTIAN MASSAWE............................ ............... APPELLANT VERSUS THE REPUBLIC ..................... ................. ........... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Mkapa 30 dated the 25th day of 3une, 2021 in Criminal Appeal No. 5 of 2021 JUDGMENT OF THE COURT 13th & 20th August, 2024 LEVIRA, J.A.: In the District Court of Rombo at Mkuu, the appellant, Valentine Christian Massawe was charged with incest by males contrary to section 158 (I) (a) of the Penal Code, Cap 16 (the Penal Code). The particulars of the offence were that on 29th February, 2020 at about 12:00 hours at Katangara Village within Rombo District in Kilimanjaro Region, the appellant did have carnal knowledge with a girl of 12 years of age (whom we shall refer as the victim or PW2 to conceal her identity) who at his knowledge is his daughter. Upon a full trial, he was convicted and sentenced to thirty (30) years imprisonment. He unsuccessfully appealed to the Hight Court of Tanzania at Moshi against the decision of the trial court, hence, the present second appeal. The brief background of this case is that, Grasiana Valentine (PWI), mother of the victim married the appellant in 2006 and were blessed to have the victim (PW2) as their first issue. According to PWi, on 2/3/2020 while at home, she was told by PW2 that she was needed at her school and she complied. Upon arriving to the teachers' office, she found PW2 standing in front of the teachers. PWi was asked by those teachers if there was any problem at home and whether PW2 was having problems. Her answers were in the negative, that there were no problems. Following her response, she was requested to take PW2 to the store to inspect her private parts. She inspected and discovered that PW2's vagina was very large (abnormal), a fact which suggested that she was raped more than once. PW2 told her that Valentine (her father) was responsible. PWI reported the incident to Mashati Police Station and later, sent the victim to Huruma Hospital in company of a female police officer. The doctor examined her and found that PW2 was no longer virgin. PWI testified further that, she had no grudges with the appellant but she felt bad when she realized that her husband raped their daughter. Explaining about what had befallen her, PW2 testified to the effect that, on 29/2/2020 she was playing with Samwel and Bry. In the course of playing, her father (the appellant) called her back home and she obeyed. While at home, the appellant asked her to undress and lie down. Having done so, the appellant laid on top of her and inserted his penis in her vagina, she felt so bad, cried but there was no one to help her. The appellant asked her to stop crying and continued to rape her for a long time. He warned her not to tell anyone about what happened. As a resuit, PW2 did not tell her mother about the incident. However, her teacher called Msuya noticed that she was not walking properly and decided to call her mother. Upon being asked why was she not walking properly, PW2 told her teachers and mother that the appellant had raped her. She insisted that nobody else raped her except her father though she, as well, had no grudges with him. Subsequently, PW2 was sent to Huruma Hospital for medical examination where she was attended by Doctor Wilbrod Kyejo (PW4). In his examination, PW4 found that PW2's vagina was very large compared to her age suggesting that, she was engaged in sexual activities. After the examination, PW4 filled the PF3 which subsequently was admitted at the trial as exhibit PI. Another prosecution witness was G4410 DC Olias (PW3), an investigator. He went to the scene of crime and found the victim and her mother who told him that the appellant raped the victim. PW4 testified further that, he also went to PW2's school to interview her teachers because she was told that they were the ones who discovered that PW2 was not normal. She came with a different version of the story stating that, PW2's teachers told him that, they discovered that PW2 was not normal because she was wetting herself. Upon being asked what was the problem, PW2 told them that her father raped her. PW4 interviewed the appellant, but he denied to have committed that offence. In his defence, the appellant (DW1) stated about where he was on 22nd and 23rd December without mentioning the year. The said dates were different from the date in the charge sheet, that is 29th February, 2020. When cross examined as to where he was on the material date and time, his response was that, he was at work at Musekeni and denied to have raped his daughter. He confirmed that he had no grudges with his daughter (PW2). Having heard both parties, the trial Magistrate was satisfied that the prosecution proved their case against the appellant to the required standard. Consequently, he convicted and sentenced the appellant to thirty (30) years imprisonment. His first attempt to challenge that decision before the High Court was unsuccessful, hence the present appeal. The appellant lodged in Court a memorandum of appeal comprising six (6) grounds of grievances, which we shall not reproduce due to reasons to come into light shortly. At the hearing of the appeal, the appellant was represented by Messrs Charles Mwanganyi and Philemon Shio, both learned advocates, whereas the respondent Republic had the services of Ms. Agatha Pima, learned Senior State Attorney assisted by Ms. Bora Mfinanga, learned State Attorney. Before hearing of the appeal could take place in earnest, Mr. Mwanganyi sought and we granted leave for him to address the Court on the impropriety of the proceedings of the courts below. It was his submission that, in the course of preparation for hearing of this appeal, he discovered an irregularity committed by the trial court in recording the evidence of almost all the witnesses, except that of PW2 (the victim). He referred us to pages 9, 15, 17 and 21 of the record of appeal where the evidence of PW1, PW3, PW4 and DW1, respectively was recorded not 5 upon oath or affirmation, in contravention of section 198 (1) of the Criminal Procedure Act, Cap 20 (the CPA) and section 4 of the Oaths and Statutory Declarations Act, Cap 34 (the OSDA). According to Mr. Mwanganyi, failure to swear in or affirm witnesses was a fatal procedural irregularity with an effect of vitiating the whole proceedings. For that reason, he prayed for the Court to order for a retrial under Rule 117 (4) of the Tanzania Court of Appeal Rules, 2009 and section 4 (2) of the Appellate Jurisdiction Act, Cap 141 (the AJA). In reply, Ms. Pima conceded to the submission by the counsel for the appellant that, indeed, the witnesses' evidence was recorded without taking oath or affirmation. She argued that, since the trial Magistrate asked the witnesses about their religions, it is a clear indication that he intended to record their evidence upon oath or affirmation. However, she said, since the record of appeal bears no indication that oath was taken, then it is impossible to gauge credibility of the witnesses. Nonetheless, she said, the omission does not benefit the appellant. Finally, she urged us to nullify the proceedings of the lower courts and order a retrial. We have carefully perused the record of appeal and we agree with the counsel for the parties that, the evidence of the witnesses mentioned above was recorded without oath or affirmation. It is a requirement of the 6 law under section 198 (1) the CPA that every witness shall be examined upon oath or affirmation. It reads: "198.- (1) Every witness in a crim inal cause o r m atter shall, subject to the provisions o f any other written law to the contrary, be examined upon oath o r affirm ation in accordance with the provisions o f the Oaths and Statutory Declarations A c t " It is as well provided under section 4 of the OS DA, as follows: "4. Subject to any provision to the contrary contained in any written law, an oath shall be made by - (a) any person who may law fully be examined upon oath or give or be required to give evidence upon oath by o r before a court; (b) any person acting as interpreter o f questions put by or giving evidence before a court: Provided that, where any person who is required to make an oath professes any faith other than the Christian faith or objects to being sworn, stating, as the ground o f such objection, either that he has no religious b elief or that the making o f an oath is contrary to his religious belief, such person shall be perm itted to make his solemn affirm ation instead o f making an oath and such affirm ation sh all be o f the same effect as if he had made an oath." For appreciation of what transpi red during trial, we wish to reproduce the relevant parts of the record hereunder: "PW 1 -G RASIAN A VALENTINE, 35yrs Christian, Katangara. XD BY PROS PW 3 — G 4410 D C O LIASf 33yrs, Christian; Mkuu- Rombo XD By Pros PW 4 - D r. W iib ro d K yejo , 60 yrs, Christian, Mkuu- Rombo XD By Pros D EFEN CE CASE O PEN S DW 1“ V alen tin e C h ristia n M assaw e, 48yrsf Christian, Katangara Village. Xd By Accused // As intimated earlier, since PW2 was a child, she was examined upon promise to tell the truth in terms of section 127 (2) of the Evidence Act, Cap 6, which is an exception to the general rule under section 198 (1) of the CPA. The effect of noncompliance with section 198 (1) of the CPA is that, the evidence must be discarded from the record as stated in various decisions of the Court, including: Marko Patrick Nzumila and Another v. Republic, Criminal Appeal No. 141 of 2010 [2010] TZCA 134 (8th July 8 2011, TANZLII) and Jafari Ramadhani v. Republic, Criminal Appeal No. 311 of 2017 [2019] TZCA 388 (8th November 2019, TANZLII). Being guided by the position stated above, since the evidence of PW1, PW3, PW4 and DW1 was given without oath or affirmation, in violation of section 198 (1) of the CPA, it cannot be treated as evidence in law and we cannot consider it to determine this appeal. Accordingly, we discard the purported evidence of PW1, PW3, PW4 and DW1 from the record. We now revert to the extended invitation by the counsel for the parties for us to order a retrial, as a way forward. The issue calling for our determination is whether we should order for a retrial under the circumstances of the present case. In answering this issue, we shall be guided by the principle set in the famous case of Fataheli Manji v. Republic (1966) E. A. 314; stating that: "In genera! a re tria l w ill be ordered only when the original tria l was illeg al or defective; it w ill not be ordered where the conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps in its evidence a t the first trial; even where a conviction is vitiated by a m istake o f the tria l court fo r which the prosecution is not to blame, each case m ust depend on its own facts and 9 circumstances and an order fo r retrial should only be made where the interests o fjustice require/ ' In the present case, noncompliance with section 198 (1) of the CPA did not only affect the prosecution case, but also the defence case. This means that, having discarded the evidence of those witnesses, the remaining evidence is that of PW2 claiming that she was raped by the appellant It follows, therefore, that the appellant wiil remain condemned unheard which again is contrary to the principles of natural justice. We had an opportunity of examining the entire record of appeal and found that among the appellant's complaints is that, the prosecution case was not proved beyond reasonable doubt. He highlighted some evidential gaps, which we have given thought and satisfied that they are material. Therefore, it is our settled view that if we order a retrial, though the prosecution is not to blame for the violation of the law discussed above, it will be like enabling the prosecution to fill up gaps in its evidence and stitch its case at the first trial, and at the appellant's expense, thereby defeating the whole intention of making such an order. For the interest of justice of the case, we decline making an order for retrial as persuaded by the counsel for the parties. As a result, in exercise of our revisional power under section 4 (2) of the AJA, we nullify 10 all the proceedings in the trial and first appellate courts. We proceed to quash conviction and set aside the appellant's thirty (30) years imprisonment sentence. We order immediate release of the appellant from prison unless otherwise, lawfully held. DATED at MOSHI this 19th day of August, 2024. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 20th day of August, 2024 in the presence of Mr. Philemon Shio, learned Counsel for the Appellant and Mr. Innocent E. Ng'assi, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. D. R7LYIMO DEPUTY REGISTRAR COURT OF APPEAL li