CRIMINAL APPEAL NO 130 OF 2022

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LILA, 3.A., KIHWELO. 3.A., And ISSA. 3.A/1 CRIMINAL APPEAL NO. 130 OF 2022 MAIGE ISSAKA @ MAGEMBE ............................................... APPELLANT VERSUS THE REPUBLIC................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Itemba, J/) dated the 28th day of March, 2022 in Criminal Appeal No. 161 of 2021 JUDGMENT OF THE COURT 11th & 21st February, 2025 LILA, J.A.: The propriety of the conviction of the appellant, Maige Isaka @ Magembe, of the offence of rape contrary to sections 130(l)(2)(e) and a sentence to serve thirty years imprisonment meted by the District Court of Bukombe sitting at Bukombe (the trial court) and later an order to pay compensation of TZS 1,000,000.00 added by the High Court of Tanzania, Mwanza Registry, on first appeal, are still being challenged before this Court. The conviction and sentence were on account of the appellant being found guilty of the offence of rape by the trial court where the appellant was arraigned to answer the accusation that, on 29/2/2020 at about 01:00 hrs had carnal knowledge, without consent, of a certain woman herein to be referred to as the victim or PW1 to disguise her identity, at Silamila Village within Bukombe District in Geita Region. Trial ensued following the appellant's denial of the charge whereby four (4) witnesses featured for the prosecution to prove the charge namely; the victim (PW1), Mariam Shang'we (PW2), Dr. Range Nyamuhanga (PW3) and Pili Lutandula (PW4). On the other side, the appellant and his wife one Mariam Ngeme (PW2) were the only defence witnesses. The charge is silent on the age of the victim but when she testified on 18/6/2020, in her preliminary information, she said she was fourteen (14) years old. She did not tell as to when she was born when she was examined in-chief as well as during cross-examination or re-examination. Such was also the position when she was recalled on 20/7/2020 for tendering "chupi" (her under pant exhibit PE-1) allegedly torn by the appellant in the due process of raping her. It was her mother, Pili Lutandula (PW4) who was forthcoming of the victim's age stating that the victim is her third born having been born on 28/11/2005. Meanwhile, we stop here and we shall revert to the relevance of this fact at an appropriate stage of this judgment. The brief background facts of the case which necessitated institution of this appeal run thus; According to PW1, on the fateful date (29/2/2020), she was at Silamila area where she had gone to cultivate their farm and was with her young siblings namely; Mariam Maige (PW2), Esther Maige and Baraka Maige. At 01:00 am she was on bed which she shared with PW2 in a bedroom the door of which was not closed. It was PWl's testimony that the door was pushed open and a person she saw and identified using a solar light to be the appellant, entered and switched off the solar light. Describing that person, she said he had put on a black trouser and Masai bedsheet round his body. She said that person beat her and PW2 with the side of a machete and then gripped her, tore her under pant and then removed the Masai cloth and inserted his manhood into her vagina in and out causing her to experience pains. When this was happening, PW2 was under the bed she had hidden herself. On her part, save as to how the person gained entrance which she said that the door was broken, PW2 gave a similar story on other facts adding that she saw and identified the appellant using a solar light bulb before being switched off by the intruder and upon noting that PW1 was being beaten and later being raped, she hid herself under the bed. Both PW1 and PW2 said that they screamed for help but no one turned up to help them. That, after the appellant had left, they went to their neighbour one Mama Samwel where they spent the night before they reported the matter to the village leaders the next morning who, later on, reported to the police leading to the appellant's arrest. PW1 was subjected to medical examination and it was PW3 who examined her and noted that the torn under pant had remains of sperms and PWl's vagina walls had bruises which indicated that she was forcefully penetrated which findings he indorsed in the PF3 (exhibit PE-2). In essence, the defence by the appellant (DW1) mostly constituted of a defence of alibi and hatred between one Lutandula and his family. He claimed that prior to the incident date, he went to Silamila to take care of the heads of cattle and on 29/2/2020, he went to cultivate the shamba using the cattle. On his return, he was told by his father that they were troubled by certain people at night who were then called and arrested him and took him to the police station on accusation of raping PW1. DW2's evidence simply sought to support the appellant's defence of alibi by establishing that on the fateful night (29/2/2020) the appellant slept with her in their home and was arrested the next day after returning with oxen in connection with the offence of rape. At the conclusion of the trial, the trial court found the charge to have been proved and the appellant was convicted as charged. He was sentenced to serve thirty (30) years imprisonment. Displeased with the decision, the appellant unsuccessfully appealed to the High Court. The learned Judge realized that an order of compensation to the victim which is mandatory under section 131(1) of the Penal Code was forgotten hence imposed it in addition to the thirty years custodial sentence. Still discontented by the High Court decision, the appellant has advanced fourteen (14) grievances touching on the following ten (10) areas seeking to challenge both conviction and sentence that: - 1. The appellate court erred in upholding the conviction without properly re-evaluating the prosecution's evidence which was weak and unreliable. 2. The court relied on the testimonies of PW1, PW2 and PW4 all from the same family without corroboration from independent witnesses. 3. The evidence of PW1 and PW2 was inconsistent and contradictory. 4. The absence of DNA evidence to link the appellant to the offence. 5. The conviction was based on improper visual identification by PW1 and PW2. 6. Failure of the prosecution to call "Mama Samwel" and police officers as material witnesses. 7. The trial court did not adequately consider the appellant's defence of alibi, 8. The trial court judgment was defective for not specifying the sentence in the judgment document. 9. The trial court erred in relying on the testimony of PW1 which was improperly taken. 10. The charge against the appellant was not proved beyond reasonable doubt. In this appeal, the appellant appeared in person without the advantage of being legally represented by an advocate whereas the respondent Republic, was represented by Ms. Verediana Mlenza assisted by Ms. Luciana Shabani, both learned Senior State Attorneys, who resisted the appeal. The appellant after adopting his grounds of appeal, opted to rejoin after the respondent has replied to his complaints. Replying on the grounds of appeal, Ms. Mlenza's arguments were first directed to grounds 1, 2, 3,4, 5, 6, 7 and 8 which she said were new because they were not, first canvassed before the High Court on first appeal hence the Court is precluded from having an eye on them citing the case of Jafari Salum @ Kikoti vs Republic (Criminal Appeal No. 370 of 2017) [2020] TZCA 221 (13 May 2020) to support her contention. She urged the Court to disregard them. Without much ado, we entirely agree with the learned Senior State Attorney. The Court's mandate to entertain appeals is derived from section 4(1) of the Appellate Jurisdiction Act (the ADA) which, in essence, requires a matter appealed against to this Court be first determined by either the High Court or by a subordinate court exercising extended jurisdiction. The present appeal emerged from the High Court's decision which disallowed the appellant's appeal which was based on grounds of appeal found at page 56 of the record of appeal which, compared with the present ones (1, 2, 3, 4, 5, 6, 7 and 8), it apparently appears that the appellant has raised completely new factual complaints. There is, therefore, no decision by the High Court on these complaints justifying being challenged before this Court. Our hands are tied and we are, as was decided in the case of Jafari Salum @ Kikoti vs Republic (supra) and Galus Kitaya vs Republic, Criminal Appeal No. 196 of 2015 (unreported), constrained to disregard them. The complaint fails and is dismissed. Submitting on ground nine (9) in the substantive memorandum of appeal, now ground 7, of which the complaint is that the appellant's defence was not considered, Ms. Mlenza firmly argued that the record is vivid that the defence evidence by the appellant and his wife (DW2) which constituted a defence of alibi was considered by the trial court in its judgment at page 53 of the record and was disregarded for want of notice hence found an afterthought. We have perused the record and satisfied ourselves that Ms. Mlenza's contention depicts the truth of the matter. Plainly, no notice to rely on such defence was lodged by the appellant at the commencement of the trial nor were the particulars thereof availed to the prosecution and the trial court before closure of the prosecution case. At the end, the trial court exercised its discretion to disregard it. The complaint is therefore without bases and we dismiss it. Ground 10 and 6 in the memorandum of appeal, now ground 6, in principle seek the court to draw an adverse inference on the prosecution for failure to summon Mama Samwel and a police officer to testify. According to Ms. Mlenza, they were not crucial witnesses as they did not witness the rape incident hence their evidence would not add anything into the prosecution case. To recapitulate, Mama Samwel is a woman whom PW1 and PW2 sought accommodation after the rape incident while the woman police officer just took PW1 to the hospital for medical examination. The record is silent whether they were informed of who ravished PW1. The law on adverse inference as propounded by the Court in Azizi Abdallah vs Republic [1991] TLR 71 is to the effect that failure to call a crucial witness, who is within reach without good cause being shown, entitles the court to infer that if such witness would have been called, his evidence would contradict that of other witnesses hence tore the prosecution case. Being not eye-witnesses or possessing any crucial information relating to the commission of the offence, we hold the view, that failure to call them had no any serious consequences on the prosecution case. Otherwise their being summoned would have simply added the number of witnesses which is immaterial in establishing a fact relating to the offence charged in terms of section 143 of the Evidence Act, Cap 6 of our laws. This grievance, too, fails. Grounds 11 and 12 of the memorandum of appeal now condensed in ground 8, fault the courts below for convicting the appellant on a defective judgment for want of indicating the sentence to be imposed hence not complying with the requirements of section 312 of the Criminal Procedure Act, Cap 20 of the Laws (the CPA). Ms. Mlenza could not agree with the appellant. It was her submission that the judgment summed up the evidence by both sides, raised issues and discussed them before arriving at the conclusion as the law requires. As for not indicating the sentence, she said the provisions under which the appellant was convicted were indicated hence the complaint missed legs to stand on. On our part, we have examined the trial court's judgment and we are satisfied that it is not faulty. As rightly argued by Ms. Mlenza, the judgment bears all the ingredients of a proper judgment. A judgment simply refers to the provisions the appellant is charged with not the sentence to be imposed as such is shown after the conviction. Again, this complaint is baseless. It is dismissed. We now turn to consider grounds 5, 9 and ultimately ground 10 herein which, respectively, fault the courts below for relying on insufficient identification, improperly taken evidence by PW1 and the prosecution's evidence failure to prove the charge. Beginning with ground 9, Ms. Mlenza firmly argued that PW1 was, at the time of commission of the offence below fourteen (14) years old hence, in terms of sections 127(4) and 127(2) of the Evidence Act, was, respectively, a child of tender age when she testified whose evidence could be validly taken upon her promising to tell the truth and not lies. Even upon the Court referring her to PW4's evidence who, at page 44 said PW1 was sixteen (16) years, she maintained that a simple calculation basing on the date of birth as told by PW4, who is PWl's mother, that PW1 she was born on 28/11/2005, it would still show that she was yet to attain fourteen years. Trite law is that a mother is among persons whose explanation of the age of her children should be taken as true (See Issaya Renatus vs Republic, Criminal appeal No. 542 of 2015 (unreported). Going by the evidence on record, there is no controversy that the offence was committed on 29/2/2020 but she testified in court on 18/6/2020. From 28/11/2005 when she was born to 18/6/2020 when she testified, it is plainly clear that PW1 attained the age of fourteen (14) On 28/11/2019. So, when she testified on 18/6/2020, she was around fourteen years and seven months. A child of tender age, in terms of section 127(4) of the Evidence Act, is the one who is fourteen years and below. In the circumstances, PW1 was required to testify under oath and ought to have been sworn in or affirmed in terms of section 198(1) of the CPA which provides that: - "Every witness in a criminal cause or matter shah\ subject to the provisions o f any other law to the contrary, be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declarations Act." By promising to tell the truth instead of being sworn in or affirmed before her evidence was taken, PWl's evidence was taken in contravention of section 198(1) of the CPA hence it is of no evidential value and we expunge it from the record of appeal. Upon expungement of PWl's evidence, the issue which immediately begs for an answer, is whether there is another evidence that would prove the appellant to be the ravisher. The evidence by PW3 and PW4 would simply establish PW1 being raped. But, the issue is who did so. Here, we are remained with the testimony of PW2 alone who claimed to have had seen and identified the person who entered into their room and ravished PW1 to be the appellant. Her evidence on how she was able to see and identify the appellant, as recorded at page 10 of the record of appeal, is this: - 7 remember on 29/02/2020 about 1:00 hrs I was sleeping with my sister called Esther Paul. We were only two o f us. Then we heard the front door broken, there was a solar bulb light on and the accused came in with a panga and beat Esther Paul, my sister Esther started crying and said "we Maige nimekujua" Then the accused switched o ff the light and got hold o f Esther. I saw the accused as he had a black trouser and has a "mtandio wa kimasai" round him. There was light. When he was raping Esther I was under the bed "niliingia uvunguni" Esther was crying like someone seized or choked on her throat. Then after sometimes (sic) the accused left. Then we ran to our neighbour... "(Emphasis added) At least, these facts are clear from PWl's evidence. One; the offence was committed at night time which conditions are generally considered to be unfavourable for a proper and unmistaken identification. Two; the kind of light depended on is solar bulb light which was on. Three; the person stormed into the room after breaking the door. Four; the person who entered carried with him a machete with which he beat Esther (PW1) and five; that after gaining entrance, solar bulb was put off and six, that; PW2, at such time was under the bed hiding herself. Most significantly, it appears a person going by the name Maige was familiar to both PW1 and PW2 hence this was a case of visual identification by recognition. The law on visual identification is well settled that it is of the weakest kind and can only be relied on only where all the factors which may affect a proper and unmistaken identification are eliminated. Cognizant of that, the Court, in the celebrated case of Waziri Amani vs R, [1990] TLR 250, outlined some thresholds to guarantee or for assuring unmistaken identification does not occur which, although not exhaustive, are proximity to the person being identified, source and intensity of light, the length of time the identifying person had the culprit in observation and familiarity with the person being identified. It therefore needs not be overemphasized that the evidence of the identifying witness must seriously be scrutinized by the court so as to satisfy itself that the conditions are favourable for a proper identification. Such conditions are intended to eliminate all possibilities of error in the identification process (See Phillip Rukandiza @ Kichwechembogo vs Republic, Criminal Appeal No. 215 of 1994 (unreported). In line with this position the Court, in Issa Mgara @ Shuka vs Republic, Criminal Appeal No. 37 of 2005 (unreported) was not ready to accept as sufficient mere assertions by witnesses that there was light without telling the source and its intensity as well as giving the description of the person said to be identified [See Muhidini Mohamed Lila and Three Others vs Republic, Criminal Appeal No 443 of 2015 (unreported)]. Much as it is acceptable that recognition is more satisfactory, more assuring and more reliable than identification of a stranger, the Court, in Maselo Mwita @ Maseke and Another vs Republic, Criminal Appeal No. 63 of 2005 (unreported), categorically held that the guiding principles as stated in Waziri Amani's case (supra) apply even to cases of recognition evidence because even recognizing witnesses often make mistakes or deliberately lie. In our instant appeal, the question to ask ourselves is whether the evidence by PW2, properly gauged against the above guidelines, met the requirements of a proper and unmistaken identification hence was water tight. In this case, the alleged offence was committed at 01:00 hrs. it was night time and PW2 is completely silent on how long she had the person who stormed into the room under her observation. Besides, even assuming that the said solar bulb light sufficiently illuminated the room which is however doubtful for want of explanation of its intensity and the time it took before being switched off, yet, as storming into the room was preceded by the door being broken and the person who entered the room held a machete which he used to attack both PW1 and PW2, obviously creating a state of shock, panic and horror, it needed sufficient time to calm down and concentrate on the said person which time, it appears, PW2 had not because she said she, upon gaining entrance that person attacked PW2 causing her to hide herself under the bed. Similarly, the distance at which PW2 saw the person and his description was not told. It is on record that she saw that man who wore a black trouser and covered his body with a Masai cloth, but no evidence was led to establish that such attire was peculiar to the appellant and no other person in the village would have them and wore such cloth but the appellant. Otherwise, what we note is that PW2 assumed that such person was the appellant, a person she knew. That is not acceptable (see Mwita Maselo @ Kaseke and Another vs Republic (supra). Worse still, Mama Samwel, in whose house PW1 and PW2 ran and spent the night, was not called as a witness who would, to add credence to PW2's evidence, tell the trial court if PW1 and PW2 named the appellant as the person who had ravished PW1. The more so, even though the record shows that the appellant was arrested on the same day by village leaders, there is no indication that such arrest was a result of PW1 and PW2 naming him as the ravisher. Since those necessary details were lacking, we are constrained to give the benefit of doubt to the appellant and hold that PW2's claim that she saw and identified the appellant is doubtful and unreliable. Therefore, the evidence available do not place the appellant at the crime scene. Although the appellant's defence of alibi was properly discounted as being an afterthought for want of prior notice to rely on it, it cannot be the basis of his conviction because he had no other defence which remained. The onus of proving the charge rests on the prosecution and an accused person cannot be convicted due to the weakness of his defence or absence of defence as in this case. In fine, we allow the appeal, quash the appellant's conviction and set aside the custodial sentence and an order for payment of compensation. We accordingly order his immediate release from prison if not held for another justifiable cause. DATED at MWANZA this 20th day of February, 2025. S. A. LILA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 21st day of February, 2025 in the presence of the Appellant in person and Mr. Mahembega Elias Mtiro, learned State Attorney for the respondent/Republic is here by certified as