CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM: LILA, J.A.. FIKIRINI. J.A., And RENTE, 3.A.) CRIMINAL APPEAL NO. 158 OF 2022 MANGALU MADUHU ............................................................. . APPELLANT VERSUS THE REPUBLIC.......... ................. ..................... . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) f Bahati, -J.l Dated the 18th day of March, 2022 in Criminal Appeal No. 47 of 2021 JUDGMENT OF THE COURT 6th & 21st August 2024 KENTE. J.A.: This is a second appeal. The District Court of Nzega, convicted the appellant Mangalu Maduhu of the offence of rape, contrary to section 130 (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Revised Laws. He was subsequently sentenced to a mandatory sentence of thirty years' imprisonment. The High Court of Tanzania, sitting at Tabora, dismissed the appellant's appeal jn Criminal Appeal No. 47 of 2021, the decision by which he was aggrieved, hence the present appeal. The facts giving rise to this case are well captured in the judgment of the High Court. In a nutshell they are that, on 12th and 13th January, 2021 at Nyasa area within the township and District of Nzega in Tabora Region, the appellant is alleged to have had carnal knowledge of a girl who was sixteen years old at the time. We shall hereinafter refer to the said girl as the victim or PW2. According to the victim who was the sole eyewitness of the alleged rape, at the time of the incident, she was living with her grandmother and her aunt one Winifrida Adelard (PW4) at Kitongo - Maendeleo area within Nzega township. Her father (PW1) and step-mother were living at Ushirika area within the same township. As the schools were about to reopen, on 12thJanuary, 2021 PW2 who was then a form three student at Nzega Secondary School went to her parents at Ushirika area to ask her father to buy her school shoes. Unfortunately however, she did not find him and therefore she had to go back home. On the way at the old Nzega Bus Stand, she met the appellant whom she knew very well as according to her, they had been in regular communication for the last three months. PW2 recounted that, the appellant then told her that he wanted to talk to her and that, in a bid to have the conversation held in privacy, the appellant hired a taxi tricycle commonly known as "bajaj" which took them to Nyasa area where, as it turned out, the intended conversation gradually metamorphosed into having sexual intercourse for two consecutive days. Another prosecution witness is (PW4), the victim's aunt. She recounted that, on 12th January, 2021 when she returned home from her neighbour's home where she had gone to attend funeral, she did not find the victim at home. That, when she asked her mother about the victim's whereabouts, her mother told her that the victim had gone to her parents at Ushirika to ask for school shoes. PW4 further recounted that, at about 5.30 pm, she left for town and that, on the way at the Full Pentecoste Church of Tanzania, she met PW2 who was then returning home. PW4 told the trial court that, startlingly however, at about 7.00 pm, she received a phone call from PW2 who was however using a different phone number informing her that she would come home a bit late. In reply, PW4 who, for obvious reasons had already been annoyed by PW2's unflattering behaviour, ordered her to quickly go back home but all in vain. PW4 is on record as having told the trial court that, even after scanning around the victim's friends and neighbours including asking if she had gone back to her father's residence at Ushirika to collect the school shoes, she was neither traceable nor reachable by phone. According to PW4, it was until two days later that the victim re-emerged unexpectedly, looking tired and haggard. After the victim's re-emergence, her embittered father (PW1) put the screws on her until she told him where she had been for the last two days and with whom she was. She said, without mincing words that, all along she was with the appellant with whom she was making love. After preliminary investigations which were not without difficulties, the appellant who was mentioned by the victim, was tracked down and arrested. As stated earlier, he was subsequently charged with rape the charges which he denied in no ambiguous terms. However, upon full trial, he was found guilty and subsequently convicted. His appeal to the High Court was in vain, hence the present appeal which contains four grounds of complaint. The first ground of appeal complains generally that, the learned Judge of the first appellate court erred both in law and in fact in upholding the conviction and sentence imposed by the trial court not-withstanding the fact that the case against him was not proved to the required standard. Obviously, we understood this ground to be a general criticism of the evaluation by the first appellate Judge of all the evidence in this case. In the second ground which is substantial, the appellant complains that, because of improper evaluation of evidence, the identity of the culprit was not established. Another criticism which is key, appears in the third ground of appeal wherein the appellant is complaining that the age of the victim was not established. Finally, in the fourth ground of appeal, the appellant is complaining that all in all, he was condemned unheard. During the hearing of the appeal, the appellant appeared in person without legal representation while Ms. Upendo Malulu learned Senior State Attorney appeared along with and Mr. Nurdin Mmari learned State Attorney to represent the respondent/Republic. For the reasons that will soon become apparent, we will not belabour the grounds of appeal preferred by the appellant. For we think, what we shall hereinafter discuss is sufficient enough to dispose of this matter albeit, not on merit. After hearing Mr. Mmari's indepth submissions in opposition of the appeal, we drew his attention to the trial magistrate's unconventional mode of recording evidence during cross examination. Having gone through the record of appeal, the learned State Attorney appreciated our concern and he accordingly submitted that, the recording by the trial magistrate of the 5 evidence during cross-examination fell short of what is required. Without elaborating, Mr. Mmari submitted in a nutshell that, what the trial magistrate did was violative of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977 which provides for, among other rights, the right to a fair hearing during the determination of the rights and duties of any person by a court of law. In the circumstances, the. learned State Attorney implored us to allow the appeal but for a different ground, nullify the proceedings in the lower court, quash the appellants' conviction and set aside the custodial sentence meted out on him. As regards the way forward, Mr. Mmari urged us to order for a retrial of the appellant before another magistrate of competent jurisdiction. For his part, being lay man and unrepresented as he was, the appellant had nothing substantial to say regarding the position taken by the learned State Attorney. He only protested his innocence complaining that, it was one Peter and not himself who was named by the victim as her molester. He thus urged us to allow the appeal and subsequently set him free. There is no gainsaying that the specific statutory provision in our laws which prescribe and regulates the mode of recording evidence in any criminal trial before the subordinate courts, is section 210 (1) of the Criminal Procedure Act, Chapter 20 of the Revised Laws which provides that: "In trials other than retrials under section 123 by or before a magistrate, the evidence o f the witnesses sh a ll be recorded in the follow ing manner (a) N.A (b) The evidence sh a ll not ordinarily be taken down in the form o f questions and answers but subject to subsection (2) in the form o f a narrative," Indeed, it is a rule of practice which is generally recognized and hallowed by lawyers in many common law jurisdictions that, evidence need not be taken in the form of questions and answers but in the form of a narrative. That is essentially the observation which we made in the case of Mabula Damalu and Another v. Republic, Criminal Appeal No. 160 of 2015 (unreported). However, the magistrate or judge may, in his discretion, wish to take down or cause to be taken down any particular question and answer. But what appears to be a good rule of thumb is that, whenever a witness is examined at any stage of the proceedings, every answer he or she gives must be recorded in the form of narration in the language of the court which, in this case, was English. It follows therefore that, a proper recording of evidence at any stage of the proceedings where the questions asked by the examining party are not taken down, should mandatory be in the narrative form showing a full statement of the answer given by the witness in response to the question posed by the asking party, counsel or even the court. This will enable the appellate court upon appeal, to identify the soul of the questions put to the witness. In this connection, it is worthwhile to note that, the above requirement of the law is mandatory irrespective of whether or not the asking person is using leading questions. While we cannot ignore the fact that judicial officers differ in the syntax and diction they employ to conduct judicial proceedings, we must underscore the point that, in this jurisdiction, the law does not give a free hand to magistrates and judges to choose their mode and style of recording evidence as there is always a gold standard of how evidence is taken down as we have set it out hereinabove. Coming to the instant case, we entirely agree with Mr. Mmari that indeed, the recording of the evidence by the trial magistrate during cross examination in this case, leaves a great deal to be desired. For instance, the following is an excerpt of how the trial magistrate took down some of the victim's answers to the appellant's questions during cross - examination as it runs from page 15 through to page 17 of the record of appeal: "PWXXP - Yes, - No, it is 12/1/2021 - Yes - Phone - Yes, you called me when I was passing. - A fter you gave me your number on 22/11/2021 we were communicating - I dicfn t see, I didn t see you - Tenant house - Four room s - Nobody knew me b u t they saw the. - 1 didn 't cram it w eii but it ends with 37. - 1 recorded it on the paper -3 7 9 - I don't know - It was n o t yet - It is the name you gave me. - M y father - It was 18 hours - I said a t his brother's home - It was the m orning o f 14/1/2021 - Yes - 1 can recognize anybody - It is a long tim e now - 1 don t know if you told him - You are the one who told me so - 1 remember - Kachoma area - By fa ce/shape - 1 don't know, Long know installing m usic in the com pact D isc (CD) - Yes - He wasju s t asking questions 10 - 1 fe lt pains because I was beaten so much a t home - 1 don't know - Because I was not straightening my statem ent - Inside m y fam ily - It belonged to m y grandm other - Two phones, a sm all one which is itel, and a big black - They w aited me to be dear I toid you - 1 only remember the words you told me when you told me - You told me that you are going to Tabora - You told me you are going to Tabora to follow some luggage. - You are the one who told me so - 1 am the one who told m y father where you had gone. - 1 don't know - You told me that it is your brother's room, - Kachoma near Nyasa - 1 didn't see it because I was inside the Bajaj - That's a ll." It should be obvious that, with this kind of recording evidence which was far from satisfactory, we are unable to infer from the victim's answers which exactly were the questions that were put to her by the appellant during cross - examination. In other words, we are far from sure that for instance, some of the questions put by the appellant to the victim during cross - examination to which her answers were "yes" were not very fundamental and determinant questions whose answers would have probably shaken the prosecution case to its very foundation. As a vivid example, we have in mind the class of questions such as: " Would I be correct to say that you wrongly and m istakenly pointed an accusing finger a t me ju st to save yourselffrom severe beating by your father who had gone sour and bitter because o f your unexplained tw o days'disappearance from hom el" It should be needless to say that, an affirmative and short answer to the above posed question such as "yes", would have grave repercussions on the prosecution case as the victim would be admitting to having mistaken the appellant for someone else as to justify the appellant's defence version that he was a victim of a frame up and mistaken identity. This would imply 12 that the danger of false implication had not been eliminated in the prosecution evidence. For our part, we do not know why the learned trial magistrate acted in such an unorthodox method as he did, but we would like to charitably assume that perhaps, he had not found his feet on the Bench. But be that as it may, we feel this was a classic case of how not to take down the evidence given during the critical stage of cross examination. We are satisfied as correctly argued by Mr. Mmari and we accordingly hold without hesitation that, indeed the case ended in a mistrial sending everyone to square one. We say so because we cannot overemphasize the importance of cross - examination which, if we can borrow the words of the great American lawyer and schooler of the late 19th and early 20th century John Henry Wig mo re, who said that, cross-examination is "the greatest legal engine ever invented for the discovery of truth" Since we are not sure that if the trial had been conventionally conducted, there could not have been evidence which supported a conviction, it is our view and we accordingly order that there should be a retrial in this case which must be expedited. In the ultimate event therefore, pursuant to section 4 (2) of the Appellate Jurisdiction, Act Chapter 141 of 13 the Revised Laws, we allow the appeal, nullify the proceedings of the lower courts, quash the appellant's conviction and set aside the custodial sentence imposed on him. As stated above, there should be a retrial, if that is possible. Meanwhile, the appellant shall remain under remand custody awaiting retrial. DATED at TABORA this 20th day of August, 2024 S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 21st day of August, 2024 in presence of appellant in person and Mr. Steven Mnzava, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. ( DEPUTY REGISTRAR COURT OF APPEAL 14