CRIMINAL APPEAL NO 644 OF 2022 JOSEPH HAIDAN MOYO VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARI3A, J.A.. FIKIRINI. J.A, And MLACHA. 3.A^ CRIMINAL APPEAL NO. 644 OF 2022 JOSEPH HAIDAN MOYO............................ ..................................APPELLANT VERSUS THE REPUBLIC....................... ................... .............................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam) (Bade, J.) dated 10th day of October, 2022 in Criminal Appeal No. 8 of 2022 JUDGMENT OF THE COURT 2nd & 23rd July, 2024 FIKIRINI. J.A.: Home is said to be safe haven and shelter from all sorts of storms. This saying has however, proved otherwise to PW2 who found herself testifying before the court on despicable encounters in the hands of the appellant, Joseph Haidan Moyo, her step father. It is alleged that on diverse dates between March and 29th July, 2018 at Goba Kibululu area within Kinondoni District in Dar es Salaam Region, the appellant did rape and had carnal knowledge against the order of nature of PW2, the girl of fifteen years, whose name is concealed to protect her dignity. The appellant was charged with rape and unnatural offence contrary to sections 130 (1) (2) (a) and 131 (1) and 154 (1) (a) and (2) of the Penal Code. The appellant refuted the allegation and at the end of the trial he was convicted and sentenced to thirty years imprisonment for each count, the sentences which were to run concurrently. Dissatisfied, he unsuccessfully appealed to the High Court, Besides upholding the trial court's decision, the High Court enhanced the appellant's sentence in the second count from thirty years to life imprisonment, hence the present appeal challenging both convictions and sentences. Before we proceed determining the appeal before the Court, we find a brief account of the evidence adduced before the trial court is important. From the six (6) prosecution witnesses, the tale goes as follows: that the appellant and PW1 who were a husband and wife were blessed with two issues from their union, but also staying with them were two other children from PW2's previous relationship. PW2 a standard six student falls in the second category of children. As alluded earlier on she is a step daughter to the appellant. From PW2's account the appellant had been using her mother's absence (PW1) from home to rape and sodomize her, threatening to kill her had she dared to speak out. This went on until on 29th July, 2018 when PW3, PW2's grandmother caught them. On the fateful day, the appellant declined PWl's invitation that they go to church. She thus proceeded alone. In her absence, the appellant sent the children to go to buy provisions from the shop while others went out to play. Out of his sight, the appellant took advantage by inviting PW2 into their bedroom, raped and sodomized her. While they had locked themselves in the bedroom, PW3 arrived and found children knocking on the door and upon inquiring as to PW2's whereabouts, she was informed that she was in the bedroom with the appellant. A little later the appellant opened the door and came out in his shorts whereas PW2 when called up by the appellant turned up having a skirt and a piece of khanga on. Her inquiry as to what was going on, was met with answers from both the appellant and PW2, that PW2 was helping the appellant to arrange iron sheets. 3 PW3 did not buy the explanation. She, opted to wait for PW1 return and shared the information. Shocked and dismayed, PW1 interviewed PW2 who divulged the information on what had been going on. Later, PW1 took PW2 to Goba dispensary and Palestina hospital, for medical examination. On their way they passed by the Police station where PW2 was issued with PF3. On 2nd August, 2018, PW2 was examined by PW4 who concluded that she was no longer virgin, had genital ulcers and lose annul sphincter. The PF3 was admitted as exhibit PI. Apart from examining PW2, PW4 also ordered medical examination to check if PW2 was infected with sexually transmitted disease. The results were she had been infected with HIV. The appellant was arrested at Goba dispensary by Police as evidenced by PW6. In his defence the appellant who testified as DW1 denied having committed the alleged offences, but insinuated bad blood between him and PW3, his mother in law. In furtherance of his defence he summoned DW2, his sister. DW2's evidence was to the effect that the appellant informed her that he was not in the good standing with PW3, his mother in law and that she promised to set him up. In his appeal before this Court the appellant has listed five grounds of complaint which are as follows: 1. That the first appellate court erred in law and facts to sustain the appellant's conviction basing on invalid evidence o f PW2 which was not properly assessed to fin d whether she was a truthful witness. 2. That, the first appellate court erred in law and facts to sustain the appellant's conviction basing on pieces o f circum stantial evidence which falls short o f the standard required o f corroborative circum stantial evidence. 3. That, the first appellate court erred in law and facts to find that the prosecution case was proved beyond reasonable doubt against the appellant without critically re-evaluated and assessed the evidence o f PW2 and PW4 who claim ed that PW2 was raped and sodom ized by the appellant and infected HIV, while there is no evidence whatsoever on the record to prove and/ or show that the appellant is HIV positive. 4. That, the first appellate court erred in law to disregard the appellants defence evidence on the ground that his defence was an afterthought as he never cross-exam ined PW1, PW2 and PW3 on the allegation o f grudges between them. 5. That, the first appellate court erred in iaw and facts to sustain the appellant's conviction and enhanced his sentence in a 5 prosecution case which was not proved beyond reasonable doubt During the hearing of the appeal the appellant appeared in person unrepresented and therefore fended for himself. Ms. Joyce Andrew Nyumayo and Ms. Agatha Lumato both learned State Attorneys appeared for the respondent Republic. Invited to address the Court the appellant had nothing much to say besides praying for his grounds of appeal be considered hand in hand with his written submissions he had previously filed. On her part, Ms. Nyumayo the learned State Attorney outright opposed the appeal, supported the conviction and sentence, and prayed that they be upheld. Her reasons for opposing the appeal were prefaced with a prayer that the third ground of appeal should not be entertained as it was new ground, hence no decision has been made by the High Court warranting, this Court interference. Ms. Nyumayo relied on the Courts decision in the case of William Ntumbi v. Director of Public Prosecution, (Criminal Appeal No. 320 of 2019) [2022] TZCA 72 (25th February, 2022; TANZLII), in which the Court underscored that matter not raised or decided by the High Court cannot be dealt with by this Court, unless it is legal matter. The decision in the above cited case echoes what the Court stressed in Nyerere Nyague v. R, (Criminal Appeal Case No. 67 of 2010) [2012] TZCA 103 (21st May, 2012; TANZLII), faced with the scenario we clarified thus: "Again, as a m atter o f general principle, an appellate court cannot allow m atters not taken or pleaded and decided in the court (s) befow to be raised on appeal." See also: Kennedy Owino Onyango & Others v. R, (Criminal Appeal No. 48 of 2006) [2009] TZCA 48 (22nd December, 2009; TANZLII). This ground shall thus not be dealt with. Similarly, the Court would not determine the ground of appeal raised in the written submission instead of following the procedure as enumerated under rule 81 (1) of the Tanzania Court of Appeal Rules, 2009. Apart from the third ground the remaining grounds were illustrated as follows, starting with the fourth ground on the complaint that the defence case was considered as an afterthought after the appellant has failed to cross-examine PW1, PW2 and PW3 on the alleged existed bad blood between them. The learned State Attorney dismissed the ground as postscript referring to testimonies of PW1 found on pages 11 - 12; PW2 found on pages 22 -25 and PW3 on pages 28 -30 of the record of appeal, arguing that the appellant never cross-examined the witnesses on the alleged bad blood between them. Failure to cross-examine on the vital issue is an admission of the stated fact, argued the learned State Attorney. She referred the Court to the case of George Seif Amiri v. R, (Criminal Appeal No. 38 of 2022) [2024] TZCA 442 (11th June, 2024; TANZLII). She thus urged the Court to dismiss this ground. In his filed written submissions, the appellant, did not specifically address this ground. Our perusal of the record of appeal revealed that the appellant never cross-examined PW1, PW2 and PW3 on the existence of the alleged grudges between them. The Court therefore could not find merit on the complaint. As stated in the Nyerere Nyague case (supra), a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter 8 and will be estopped from asking the trial court to disbelieve what the witness said. See also: Cyprian A. Kibogoyo v. R, (Criminal Appeal No. 88 of 1992, and Paul Yusuf Nchia v. National Executive Secretary, Chama cha Mapinduzi & Another, (Civil Appeal No. 85 of 2005 (both Unreported). This ground lacks merit and is thus dismissed. On the second ground that the pieces of circumstantial evidence fell short of the corroborative circumstantial evidence, the [earned State Attorney admitted that, PW1, PW3 and PW4's evidence was circumstantial but was irrefutable. She went on contending that even assuming there was short fall, the fact she denied, PW2's direct evidence carried more weight, considering that the best evidence in sexual offences comes from the victim. The appellant in his written submission had nothing much to say about PW1 and PW3's account, their evidence being circumstantial but challenged reliance on PW2's evidence on the following fronts: one, that she gave contradictory account, sighting the following examples: (i), when PW2 was asked by PW3 as to what she was doing with the appellant, PW2 answered that she was helping him to arrange and place iron sheets, instead of divulging the truth, (ii), PW2 never reported the incident to anyone, (iii), that if the incident occurred on 29th July, 2018, why would PW2 record her statement on 1st August, 2018 and go for medical examination on 2nd August, 2018 and (iv), why were the other children not summoned when the alleged rape and sodomy was alleged to have taken place, they were within the vicinity. It was the appellant's contentions that PW2 was not a credible witness and had the trial court properly evaluated the evidence before it, it would have find her not credible. To support his proposition he referred the Court to the cases of Lucas Kapinga & Two Others v. R [2006] T.L.R. 92 and Michael Haishi v. R [1992] T.L.R. that the witness who changes story on important aspects of the case is not credible and truthful witness. We are at one with the learned State Attorney that circumstantial evidence was firm. Our reasons being that PW1 and PW3 each stated what they had experienced linking together the evidence of rape and sodomy facing the appellant. Starting with PW3, her account as reflected on pages 28 of the record of appeal, was that on the fateful day she went to the house only to find other children 10 outside and PW2 was nowhere to be seen. Upon inquiry on PW2's whereabouts, she was told that she was inside with the appellant and that they were told to go out to play. A while later the appellant opened the door appearing in shorts. PW2 also came out in skirt and khanga, after being called out by the appellant. When PW2 was asked she stated to have been helping the appellant. We do not think that PW2 was not truthful by merely not telling out what the appellant was doing to her, but the circumstances might have not been conducive for her to state her case. Moreover, even though, PW2 did not spill out the beans there and then, but upon being asked by PW1 after PW3 had relayed the information, PW2 admitted that the appellant raped and sodomized her. This evidence was never challenged, but even if challenged still there is direct evidence from PW2, the victim. In the case of Selemani Makumba v. R [2006] T.L.R. 379, the Court held that the best evidence in sexual offences cases comes from the victim. PW2's evidence could on its own suffice to prove the charges levelled against the appellant even without calling other witnesses, such as the children who were asked to go and play. Additionally, there was 11 evidence of PW4's supporting PW2 account, that she was raped and sodomized. Considering that, PW2 gave evidence under oath in her testimony clearly demonstrating what happened, the number of times the encounter took place and the threats put to her as reflected on page 22 of the record of appeal, we find her truthful witness. Besides, the trial court on pages 65-66 discussed PW2's evidence and find that there was no reason of disbelieving her, citing the case of Aloyce Maridadi v. R, (Criminal Appeal No. 208 of 2016) [2017] TZCA 244 (6thJuly, 2017; TANZLII), concluding that PW2 was telling nothing but the truth by being able to explain exactly what the appellant did, that he inserted his male organ into her female organ in the front and at the back, the evidence supported by that of PW4. We have no reason to differ with the trial court findings on the credibility of PW2. What is more, the appellant never cross-examined PW2 on the allegation or threats claimed, instead he asked her on what she told PW3 when she was asked, the answer which did not contradict the claim of molestation levelled against the appellant, since that was not the first time he did that to PW2, but only that it was perhaps not 12 convenient time for her to speak out the appellant's shameful actions. Besides, for the appellant to expect PW2 to state contrary to what he had already said was next to impossible, apart from threats that she wiil be killed but the fact that the appellant was her step father could have hindered her freedom to speak. She was essentially in a vulnerable position therefore hard for her to be forthcoming. This ground lacks merit and is dismissed. The first and fifth grounds on the proof of the case beyond reasonable doubt, let us start with the credibility of PW2. As a witness PW2's credibility and reliability can be determined by assessing the coherence of her testimony and in relation to that of other witnesses including the appellant. See: Shaban Daudi v. Republic Criminal Appeal No. 28 of 2000 (unreported). In the appeal before the Court, the appellant proved that there was penetration on her frontal genital and back. This evidence was supported by PW4's oral account after the exhibit PI (PF3) was expunged by the High Court. PW2 unambiguously named none other than the appellant as the one who committed the offence. 13 The third ingredient which is the age of PW2 was challenged by the appellant in his written submission that there was no documentary evidence tendered to prove the victim's age. While the charge reflected she was fifteen years old when the incident occurred between March and 29th July, 2018, during trial PW1 who testified on 19th February, 2019 and PW2 on 14th January, 2020 in both instances they depicted that PW2 was fifteen years making it difficult to know her exact age. We agree there was omission as PW2 could not be fifteen years old from 2018 up to 2020. However, it is an undisputed fact that PW2 was below eighteen years when the rape and sodomy was committed as per PW1, her mother and PW2's evidence which was never refuted, making the charges of statutory rape preferred against the appellant proved beyond reasonable doubt. In addition, the manner the victim's age could be proved was illustrated in the Court's previous decision in Isaya Renatus v. R, Criminal Appeal No. 54 of 2015 (unreported). In that decision the Court pointed out that age of the victim in rape cases can be proved by either parent, relative, medical practitioner or a birth certificate, if 14 available. In the present appeal PW1, PW2's mother was able to prove her daughter's age. From the above discussion we are content that the prosecution side proved its case beyond reasonable doubt. The appellant's appeal is lacking in merit and is dismissed in its entirety. DATED at DAR ES SALAAM on this day 22nd of July, 2024. A. G. MWARD A JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 23rd day of July, 2024 in the presence of the appellant via Video Conference linked from Ukonga Central Prison and Mr. Ramadhani Kahuga, learned Senior State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. 15