CRIMINAL APPEAL NO 493 OF 2022 JOHN LUOGA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA ( CORAM: MWARI3A, 3.A.. KEREFU. 3.A., And MAKUNGU. 3.A.Y CRIMINAL APPEAL NO. 493 OF 2022 JOHN LUOGA ................................... ................... ......... ............ APPELLANT VERSUS THE REPUBLIC ......................................... .............. ...... ........ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Songea) ( Mlvambina, 3.) dated the 5thday of October, 2022 in DC Criminal Appeal No. 20 of 2022 JUDGMENT OF THE COURT 14" & 19" August, 2024 KEREFU, 3.A.: This is a second appeal by John Luoga, the appellant, who was before the District Court of Songea at Songea, charged with and convicted of rape contrary to sections 130 (1), (2) (e) and 131 (3) of the Penal Code, Cap, 16 (the Penal Code). He was then sentenced to life imprisonment. It was alleged that, on 18ffi March, 2021 at Liweta Village within Songea District in Ruvuma Region, the appellant, unlawfully, had carnal knowledge of a girl child aged six (6) years. The appellant denied the charge laid against him and therefore, the case had to proceed to a full trial. The prosecution case was built on the evidence adduced by five witnesses augmented by one documentary exhibit namely, the Poiice Form No. 3 (exhibit PI). On his side, the appellant testified alone, as he did not summon any witness. The prosecution case, as obtained from the record of appeal, can be briefly stated as follows: The victim, who testified as PW1 (name withheld) stated that, she was living at Liweta Masha mbani with her parents, Theresia Logatus Mgawila (PW2) and Yasin Juma Nchimbi (PW3) together with her young brother. That, on 12tf1 March, 2021, while at home sleeping, someone knocked on the door of their house. PW3, her father, opened the door and found that it was the appellant, his friend, who used to come to their house, regularly, to have dinner and exchange views. PW1 stated that, the appellant told PW3 that, he came to warm himself at the fireplace as he was feeling cold. PW3 welcomed the appellant and joined him at the fireplace. Meanwhile, PW1 seized that opportunity to attend to a short call. So, she went out and saw the appellant together with her father. After releasing herself, PW1 went back to sleep. A moment later, PW1 heard her father also going inside to his bedroom to sleep while leaving the appellant alone at the fireplace outside the house. Suddenly, the appellant entered into the PWl's bedroom, forcefully undressed her and then, raped her. It was PWl's testimony that she felt pain but could not scream as her mouth was covered by the appellant. However, PW3 heard PWl's noise and went to her bedroom, where he found the appellant, his friend, flagrante delicto raping PW1 and he arrested him. In their testimonies, PW2 and PW3 supported the narration by PW1 and confirmed that, the appellant was their neighbour, who used to visit them regularly, eat food together and exchange views. Specifically, PW3 added that, on the fateful date, having heard PW1 screaming, he rushed to her bedroom where he found the appellant raping her and he arrested him. PW2 stated that, upon seeing what had happened, she reported the matter to Shaban Mbaraka (PW4), the Ten Cell Leader who came to the scene of crime and reported the matter to police. Subsequently, PW1 was taken to the hospital for medical examination after being issued with exhibit PI. In his testimony, PW4 confirmed that he was informed about the incident by PW2 and went to the scene of crime where he found the appellant arrested by PW3, while his trouser was half-dressed. That, the appellant apologized but he decided to take him to his office and later to police. 3 At the hospital, PW1 was examined by Dr. Kassiana Peter Magingo (PW5), who found that she had bruises in the labium minora'parts of her vagina and the hymen was not intact, an indication that PWl's vagina had been penetrated by a blunt object. PW5 recorded his findings in the PF3 (exhibit Pi). In his defence, apart from admitting that he knew PW2's family, the appellant (DW1) denied to have committed the offence. He specifically challenged the evidence of PW4 by contending that he never apologized to the victim's family. He also challenged the evidence of PW5 for failure to produce the instrument he used to conduct medical examination on PW1. After a full trial, the trial court was convinced that the prosecution had proved the case against the appellant to the required standard. Specifically, the trial court placed much reliance on the direct evidence of PW1, the victim and best witness in this case, whose evidence was found to have been corroborated by the evidence of PW3 who stated that he found the appellant flagrante delicto committing the offence. It was the further finding of the trial court that, the evidence of PW1 and PW3 was supported by the evidence of PW2 and PW5, Thus, the appellant was found guilty, convicted and sentenced as indicated above. The appellant's first appeal was unsuccessful, as the learned High Court Judge dismissed it and upheld the decision of the trial court. Undaunted, the appellant preferred this second appeal. In the memorandum of appeal lodged on 15th May, 2023, the appellant raised five (5) grounds. In addition, on 14th August, 2024, the appellant lodged a supplementary memorandum of appeal comprised of two (2) grounds, making a total of seven (7) grounds of appeal which can be conveniently paraphrased as follows; first, that the evidence of PW1 was recorded contrary to the mandatory provisions of section 127 (2) of the Evidence Act; second, that the chain of custody of PF3 (exhibit PI) was not established and while going to the hospital, PW1 was not escorted by a police officer; third, the evidence of prosecution witnesses is tainted with contradiction bn when and how PW1 arrived at the police station and at the hospital; fourth, PF3 (exhibit PI) was not signed by the police officer- fifth, that, the DNA test was not conducted to prove that it was the appellant who raped PW1; sixth, failure by the prosecution to summon material witnesses; and seventh, that, the case was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person. On the other side, the respondent Republic was represented by Ms. Tulibake Juntwa, learned Senior State Attorney. When given the opportunity to amplify on his grounds of appeal, the appellant adopted the same and preferred to let the learned Senior State Attorney respond first but he reserved his right to rejoin, if the need to do so would arise, At the outset, Ms. Juntwa declared the respondent's stance of opposing the appeal and intimated that she will start to argue the second, third, fourth and fifth grounds, then conclude with the remaining grounds. We shall therefore determine the grounds of appeal, in the same manner as indicated by the learned Senior State Attorney. However, before doing so, it is crucial to state that, this being a second appeal, under normal circumstances, we would not interfere with concurrent findings of the lower courts if there were no mis-directions or non-directions on evidence. Where there are mis-directions or non­ directions on the evidence, the Court is entitled to interfere and look at the evidence with a view of making its own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149, Salum Mhando v. Republic [1993] T.L.R. 170 and Mussa Mwaikunda v. The Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. 6 Starting with the second, third, fourth and fifth grounds of appeal, Ms. Juntwa contended that the said grounds are new as they were not part of the grounds canvassed and determined by the first appellate court. It was her argument that, since the said grounds were not deliberated and decided upon by the first appellate court, they were improperly before the Court. On that basis, she implored us not to entertain them,, unless they involve points of law. Having examined the said grounds in respect of the appellant's petition of appeal to the first appellate court found at page 52 Of the record of appeal, we agree with Ms. Juntwa that the said grounds are new and should not have been raised at this stage, as this Court is precluded from entertaining purely factual matters that were not raised or determined by the High Court sitting on appeal. The said position has been restated in a number of decisions of the Court - see for instance the cases of Abdul Athuman v. Republic [2004] TLR 15 and Sadick Marwa Kisase v. Republic, Criminal Appeal No. 83 of 2012 [2013] TZCA 389. As such, we will not entertain the second, third, fourth and fifth grounds of appeal because they raise new issues of facts which were not canvassed and decided upon by the first appellate court. Responding to the first ground of appeal, Ms. Juntwa challenged the appellant's complaint regarding the evidence of PW1 by referring us to page 14 of the record of appeal where PW1 testified and argued that, PWl's evidence was properly recorded as the trial court had complied with the mandatory provisions of section 127 (2) of the Evidence Act. That, before recording and receiving the said evidence, the learned trial Magistrate, clearly indicated that PW1 promised to tell the truth to the court. She insisted that, the said provision does not require a voire dire test to be conducted to a child of tender age who is giving unsworn evidence. To buttress her proposition, she cited the case of Raphael Ideje @ Mwanahapa v. The Director of Public Prosecutions, Criminal Appeal No. 230 of 2019 [2022] TZCA 71 and invited us to find the appellant's complaint unfounded. Having perused the record of appeal and considered the parties' submissions, we agree with the learned Senior State Attorney that, the appellant's complaint on this aspect is baseless and it is not supported by the record, it is undisputable fact that at the time of giving her evidence, PW1 was a child aged eight (8) years and thus a child of tender age in terms of section 127 (4) of the Evidence Act It is also undisputable fact, and as correctly argued by Ms. Juntwa that, at page 14 of the record of appeal PWl, before giving her evidence she promised to tell the truth to the court. Section 127 (2) of the Evidence Act provides that: 8 "A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to teli the truth to the court and not to tell any lies." [Emphasis added]. The above provision has been consistently construed by the Court to mean that, giving a promise to tell the truth and not lies is a condition precedent for the admissibility of the evidence of a child of tender age (not more than fourteen years) which is given without oath or affirmation. For instance, in the case of Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018 [2019] TZCA 109, while considered the import of the above section, the Court stated that: "To our understanding, the ...provision as amended provides for two conditions. One, it allows the child o f tender age to give evidence without oath or affirmation. Two, before giving evidence, such child is mandatoriiy required to promise to tei! the truth to the court and not to tell lies." In addition, in Issa Salum Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 [2020] TZCA 10, the Court emphasized that: "In the situation where a child witness is to give evidence without oath or affirmation, he or she 9 must make a promise to tell the truth and undertake not to tell lies." Furthermore, in John Ngonda v. Republic, Criminal Appeal No. 45 of 2020 [2023] T7CA 13, when the Court was considering the evidence of a child of a tender age given under the promise, stated that: "...Although it is shown at page 8 o f the record o f appeal that the trial Magistrate did not ask any preliminary questions to determine if the witness understood the nature o f oath for her to qualify to give evidence on oath; it is evident that he recorded her to have said "I promise that I will speak the truth" before he allowed her to testify. Certainly, the trial court could not let her testify on oath since it had not established whether she understood what an oath entailed. Nonetheless, so Jong as the trial Magistrate extracted the child witness^ promise to speak the truth in compliance with the law, he rightly allowed her to give evidence on the strength o f such promise. The appellant's twofold complaint on this aspect is plainly unfounded. We dismiss i t " [Emphasis added]. Likewise, in the instant appeal, since from the record it is clear that, PW1, before giving her evidence, promised to tell the truth to the court, the fact that the trial court did not ask preliminary questions to determine the manner in which she would give evidence does not have any effect as regards the validity of her evidence. As such, we find the appellant's complaints to have no legal basis. We thus dismiss the first ground for lack of merit. On the sixth ground, in which the appellant stated in general terms that the prosecution failed to summon material witnesses to testify during the trial, Ms. Juntwa contended that the prosecution summoned all key witnesses including PWl who was the best witness to prove the offence the appellant was charged with. She however, cited section 143 of the Evidence Act and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. She thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt by the evidence of PW l who clearly narrated what transpired at the scene of crime and her evidence was ably corroborated by the evidence of PW2, PW3 PW4 and PW5. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. She thus urged us to find that the sixth ground is devoid of merit. Having revisited the evidence on record and taking into account the principle established by this Court in proving sexual offences, we agree 11 with the submission made by Ms. Juntwa on this aspect. We however, wish to emphasize that, pursuant to section 143 of the Evidence Act, cited to us by Ms. Juntwa, there is no particular number of witnesses which is required in proving a certain fact, what matters is the weight of evidence and credibility of a witness. Besides, it is the prosecution that has the duty to prove its case and the right to choose which witnesses to call so as to give evidence in support of the charge. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Abdaflah Kondo v. Republic, Criminal Appeal No. 322 of 2015 [2016] TZCA 836. That said, we equally dismiss the sixth ground of appeal for lack of merit. On the last ground, the appellant faulted the learned High Court Judge for failure to observe that the prosecution case was not proved to the required standard. He contended that the evidence adduced by the prosecution witnesses was uncorroborated and tainted with contradictions thus, incapable to mount his conviction. According to him, the said contradictions have raised doubts in the prosecution case which should have been resolved in his favour. In response, Ms. Juntwa challenged the appellant's complaint which, she said, was stated in general terms without pointing-out the nature of contradictions complained of. She however, argued that all prosecution witnesses were credible and reliable. In the alternative, the learned Senior 12 State Attorney argued that, if the Gourt will find that the said contradictions do exist, then, the same are minor defect which do not go to the root of the matter and dispute the fact that the appellant was arrested at the scene of crime while committing the offence. She emphasized that, in convicting the appellant, the trial court relied on the testimony of PW1, the victim who clearly testified on how she was raped by the appellant and rescued by PW3. That, the testimony of PW1 was corroborated by PW3 who narrated on how he caught the appellant fragrante delicto committing the offence. Relying on the principle which is applicable in proving sexual offences the learned Senior State Attorney, argued that, the evidence of PW1 was the best evidence which could have been relied upon by the trial court to mount the appellant's conviction even without any corroboration, as: long as the court was satisfied that the witness was telling the truth. In that regard, the learned Senior State Attorney insisted that the prosecution case was proved beyond reasonable doubt and urged us to dismiss the appeal in its entirety. In his brief rejoinder, the appellant did not have much to say other than reiterating the issues he raised in his grounds of appeal and urged us to allow the appeal and set him free. Having revisited the evidence on record, we agree with the submission made by Ms. Juntwa that there are no material contradictions to the extent of affecting the credibility of PW1, PW2, PW3, PW4 and PW5. It has been the position of this Court that contradictions by a witness or between witnesses is something which cannot be avoided in any particular case. See for instance the cases of Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 and Marmo Slaa @ Hofu & 3 Others v. Republic, Criminal Appeal No. 246 of 2011 (unreported). The same position was also Stated in the case of Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 [2018] TZCA 361, while citing with approval the High Court's decision in Evarist Kachembeho and Others v. Republic [1978] L.R.T 70 where it was observed, rightly so, that: "Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story." As such, we are settled that the appellant's complaint on that aspect is plainly baseless. It is on record that PW1, the key witness in this case, at pages 14 to 15 of the record of appeal clearly explained the incident on how she was raped by the appellant and rescued by PW3. PWl's testimony was corroborated by the evidence of PW3, who at pages 20 to 21 of the same record of appeal, testified on how he heard PW1 screaming, went to her 14 bedroom and found the appellant fragrante delicto raping PWl. The Court has always considered the evidence of finding somebody red handed committing an offence to be conclusive. For instance, in Abdallah Ramadhani v. Republic, Criminal Appeal No. 141 of 2013 [2013] TZCA 501, when faced with an akin situation, the Court observed that: "When he responded to the caff and went to the scene o f crime, he found the appellant in ’fiagrante delicto' raping the complainant The evidence to prove the offence o f rape was therefore more than sufficient." Similarly^ in the instant appeal, it is our settled view that, the evidence of PW l and PW3 sufficiently proved the offence the appellant was charged with. See for instance the case of Selemani Makumba v. Republic [2006] T.L.R 379, In addition, the evidence of PWl was also corroborated by the evidence of PW2, PW4 and PW5. It is also on record that, in convicting the appellant, the trial court relied mostly on the evidence of PWl which was corroborated by PW2, PW3, PW4 and PW5. As such, we are satisfied that both lower courts adequately evaluated the evidence on record and arrived at a fair decision. In the circumstances, we also find the seventh ground of appeal unmerited. 15 In conclusion, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied that the evidence taken as a whole established that the prosecution's case against the appellant was proved beyond reasonable doubt. Consequently, we find no merit in the appeal and we hereby dismiss it in its entirety. DATED at SONGEA this 17th day of August, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 19th day of August, 2024 in the presence of the appellant in person and Mr. James Rhobi, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the origin^ r . ^ , SqI ]?! E. G. MRANGU Vvk SENIOR DEPUTY REGISTRAR ^ COURT OF APPEAL 16