CRIMINAL APPEAL NO 133 OF 2022

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LILA. J.A.. KIHWELO. J.A. And ISSA. J J U CRIMINAL APPEAL NO. 133 OF 2022 MICHAEL BONIPHAS.................................................................... APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mnvukwa, J.) dated the 17th day of August, 2021 in Criminal Appeal No. 91 of 2021 JUDGMENT OF THE COURT 14th & 21st February, 2025 ISSA, J.A.: The appellant, Michael Boniphasappeared beforethe District Court of Kwimba at Ngudu (the trial court)in Criminal Case No. 05 of 2021 facing the charge of rape contrary to sections 130 (2) (e) and 131 of the Penal Code, Cap. 16. It was alleged that on 21st January, 2021 at about 5.00 hours at Shigumulo Village within Kwimba District in Mwanza Region, the appellant had carnal knowledge of a nine years old girl who testified as PW1. In a nutshell, PW1 or the victim is the step daughter of the appellant. On the early hours of 21stJanuary, 2021 the appellant was alone in the house with PW1 and her three younger siblings. Agnes Nestory (PW2), the mother of PW1 was in hospital attending one of PWl's siblings who was hospitalized at Nyamilama hospital. The appellant took that opportunity to satisfy his evil desire. He approached PW1 who was asleep, undressed her and had sexual intercourse with her. He then told her not to cry or tell anyone. When PW2 was discharged from hospital where she stayed for four days, she returned home and found PW1 not in normal condition. When she enquired, PW1 narrated the ordeal she went through in the hands of the appellant. PW2 reported the incident to the village leader and the legal processes were set in motion. On 23rd January, 2021 Simon Kamuje (PW3), a militia man got the information of the incident from PW2. He arrested the appellant who was at his shop and handed him over to the police from Ngudu Police Station. Steven Galali (PW4), a clinical officer at Nyamilama Health Centre was the last witness for the prosecution. He testified that he examined PW1 and filled a PF3 which was admitted as exhibit P2. PW4 confirmed that PW1 was carnally known. The appellant, in his defence, distanced himself from the accusation. He testified that the case against him was fabricated by his wife because of the dispute they had. The trial court made a finding that, PW1 was 9 years and that the appellant had carnal knowledge of her. On the strength of the evidence of PW1, the trial court was satisfied that the prosecution proved its case beyond reasonable doubt. It convicted the appellant and sentenced him to imprisonment for a term of 30 years. Aggrieved with that decision, the appellant instituted Criminal Appeal No. 91 of 2021 at the High Court of Tanzania at Mwanza (the first appellate court) which confirmed the findings of the trial court, but as the victim was below 10 years, the sentence imposed to the appellant was enhanced to that of life imprisonment. Undaunted, the appellant instituted this second appeal. Initially, he lodged a memorandum of appeal containing five grounds which go thus: 1. That, Preliminary hearing was not conducted properly hence was c/s 192 o f CPA (Cap. 20, R.E. 2019). 2. That, the voire dire was not conducted as was prescribed by S. 127(2) o f TEA (Cap. 6 R.E. 2019). 3. That, PW2 was not warned or addressed as per section 130 o f TEA (Cap. 6 R.E. 2019). 4. That, the lower court dismissed my appeal by acting upon discrepancy, contradictive and uncorroborated evidence. The birth certificate bears the name ODETHA DAUD EMMANUEL,, PF3 - ODETA DAUDI and charge sheet ODETA DAUD. 5. That, I can't go without saying that the prosecution side failed to prove the offence beyond reasonable doubt On 29th November, 2024, he lodged a supplementary memorandum in addition to the memorandum of appeal lodged earlier on. The supplementary memorandum contained three grounds which go thus: 1. That PW1 (page 7) and the evidence o f PW2 (page 12) and the charge in total told the court that the victim was 9 years old which contradicted the birth certificate which states that ODETHA DAUDI EMMANUEL was born on 4h day o f December, 2014 (page 30). 2. That the subordinate courts relied and acted upon PF3 tendered by Steven Galali (page 21 o f the proceedings), but PF3 shows it has been filled by Dr. Stephen S. Galali (page 32). Therefore, the Dr. who filled PF3 did not appear and testify in court. 3. That, Dr. testified that he had 12 years'experience (page 21), but the magistrate o f the subordinate court said he has 20 years' experience. When the appeal was called on for hearing, the appellant appeared in person and had very little to say in support of those grounds, other than asking for our consideration of those grounds and allowing the appeal. The respondent Republic had the services of Ms. Dorcas Akyoo, learned Principal State Attorney assisted by Mr. Deogratius Rumanyika, learned State Attorney. Ms. Akyoo addressed the Court on behalf of the respondent Republic. She started her submission by apprising the Court that, the 4th ground in the memorandum of appeal and 2nd and 3rd grounds in the supplementary memorandum of appeal are new grounds which were not raised at the 1st appellate court and they are not on points of law. Hence, the appellant cannot raise them at this Court. She urged us not to consider them. She bolstered her argument by the Court's decision in Godfrey Wilson v. The Republic [2019] TZCA 109, TANZLII. Upon our perusal of the record of appeal, it is clear that the appellant preferred three grounds of appeal before the 1st appellate court, but before this Court he raised five grounds in the memorandum of appeal and three grounds in the supplementary memorandum of appeal, out of which three are new as argued by Ms. Akyoo and they have not been raised at the 1st appellate court. This Court, in Idrisa Omary v. The Republic, [2021] TZCA 448, TANZLII made the position of law very clear on raising new grounds of appeal at the second appeal. It stated: "Section 4(1) o f the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 (AJA) reading together with Rule 72(2) o f the Tanzania Court o f Appeal Rules, 2009 (the Rules), the Court has no power to deal with grounds which were not raised before the first appellate Court unless they involve points o f law." Further, in the Court's earlier decision in Galus Kitaya v. The Republic, [2016] TZCA 301, TANZLII the Court made a similar observation as follows: "...usually the Court will look into matters which came up in the lower courts and were decided. It will not look into matters which were neither raised nor decided either by the trial court or the High Court on appeal." Therefore, based on this principle, we decline to discuss the 4thground in the memorandum of appeal and 2nd, and 3rdgrounds in the supplementary memorandum of appeal as they are new and on factual issues. Ms. Akyoo proceeded to argue the grounds in the memorandum of appeal. On the 1st ground, she admitted that preliminary hearing was not conducted properly in accordance with section 192 of the Criminal Procedure Act, Cap. 20 (the CPA) as the facts agreed were not recorded, but she submitted that this did not prejudice the appellant. Further, she submitted that according to law it is not fatal even when the preliminary hearing is not conducted. To support her argument, she cited the Court's decision in Daktari Jumanne v. The Republic, [2023] TZCA 18020, TANZLII. This issue need not detain us, the record is very clear that the preliminary hearing was conducted and a statement of facts is found on page 2 of the record. Further, the statement was read to the appellant and he denied all of the five facts as seen on page 6 of the record. Therefore, there was no agreed facts to be recorded. The fact that the trial court did not record this finding did not prejudice the appellant, hence this ground is dismissed for being meritless. On the 2nd ground of appeal, Ms. Akyoo admitted that voire-dire test was not conducted to the PW1 before she testified. She argued that, this was due to the amendment of section 127 of the Evidence Act, Cap. 6 (the TEA) which directs that a child below 14 years can testify upon promising to tell the truth. In the instant case, she said, PW1 was 9 years and she promised to tell the truth, hence, conducting voire-dire was not necessary. To buttress the point, she cited the Court's decision in George Jonas Lisilwa v. The Republic [2024] TZCA 269, TANZLII. We agree with the learned Principal State Attorney that, after the amendment made on the Evidence Act by Act No. 4 of 2016 voire-dire test was no longer an essential requirement before recording the evidence of a child of tender years. Section 127(2) of the Evidence Act reads: "127(2) A child o f tender age may give evidence without taking an oath or making an affirmation but shall\ before giving evidence, promise to tell the truth to the Court and not to tell any lies." This provision was couched on a permissive term. It allows a child of tender age to take an oath or make an affirmation when he understands the nature of oath and if he does not he may give evidence upon promising to tell the truth and not to tell lies. In the instant case, the victim is a girl of tender age and is, therefore, exempted by section 127(2) of the Evidence Act from taking oath. In Issa Salum Nambaluka v. The Republic, [2020] TZCA 10, TANZLII the Court stated: "From the plain meaning o f the provisions o f subsection (2) o f s. 127 o f the Evidence Act... a child o f tender age may give evidence after taking oath or making affirmation or without oath or affirmation. This is because the section is couched in permissive terms as regards the manner in which a child witness may give evidence." Therefore, this ground of appeal is found meritless and we dismiss it. In the 3rdground of appeal, the appellant was complaining that section 130 of the TEA was not complied with by the trial court. PW2 was the wife of the appellant, hence the trial court ought to have informed her that she was not compelled to testify against her husband, but it did not discharge its duty. Ms. Akyoo admitted that PW2 was not informed about that aspect. The reason for that omission is that, the circumstances of the instant case fell under the exception in section 130(2)(a) where it is not necessary to inform the witness when the offence charged is one against morality. She prayed for the dismissal of this ground for lack of merit. The starting point in the determination of this ground of appeal is section 130 of the TEA which provides: "130(1) Where a person charged with an offence is the husband or the wife o f anotherperson that other person shall be a competent but not a compellable witness on behalfo f the prosecution, subject to the following provisions o f this section. (2) Any wife or husband, whether or not o f a monogamous marriage, shall be a competent and compellable witness for the prosecution: (a) in any case where the person charged is charged with an offence under Chapter XV o f the Penal Code or under the Law o f Marriage Act. (b) N/A (3) Where a person whom the court has reason to believe is the husband or wifer in a polygamous marriage, one o f the wives o fa person charged with an offence is called as a witness for the prosecution the court shall, except in the cases specified in subsection (2), ensure that, that person is made aware, before giving evidence, of the provisions of subsection (1) and the evidence of that person shaii not be admissible unless the court has recorded in the proceedings that this subsection has been complied with. (4) N/A (5) N/A "(Emphasis supplied). This provision laid down a general rule that a spouse cannot be compelled to testify against another spouse unless he or she is willing to testify after being informed that he or she cannot be compelled to testify. Further, the magistrate or judge is required to record in the proceedings that the requirement has been complied. (See - Matei Joseph v. The Republic [1993] T.L.R. 152 and Zamiru Rahimu v. The Republic [2021] TZCA 102, TANZLII). The above rule has an exception and one of them is when the spouse is charged with an offence under Chapter XV of the Penal Code or under the Law of Marriage Act. Chapter XV of the Penal Code talks about offences against morality and they include rape, abduction, sexual assault, defilement, incest, sexual abuse and the like. In the instant case, the appellant was charged with rape which falls under the exception to the general rule, hence, the requirement to inform the spouse that she is competent but not compellable witness and to record in the proceedings was unnecessary. Therefore, this ground of appeal lacks merit and is dismissed. Ms. Akyoo proceeded to the 1st ground in the supplementary memorandum in which the appellant is complaining that the testimonies of PW1 and PW2 with regard to the age of PW1 are contradicting the birth certificate (exhibit PI). PW1 and PW2 testified that the victim was 9 years old, but the birth certificate shows that she was born on 4th December, 2014 which made her 6 years old when they testified on 4th and 18th February, 2021. Ms. Akyoo, on her part, admitted the contradiction, but she argued that the contradiction was trivial and did not go to the root of the matter. The birth certificate reveals the true age of the victim and that she was under 10 years of age. She prayed for the dismissal of this ground of appeal. The law is settled on how to prove the age of the victim (see - Issaya Renatus v. The Republic [2016] TZCA 218, TANZLII and Rutoyo Richard v. The Republic [2020] TZCA 296, TANZLII). In Issaya Renatus the Court stated/ "... it is most desirable that the evidence as to proof o f age be given by the victim, relative, parent, medical practitioner or, where available, by the production o f a birth certificate..." In the Instant case, a birth certificate was tendered and admitted in the trial court as exhibit PI. The exhibit PI proved that the victim was 6 years old. PW1 and her mother (PW2), on the other hand, testified that she was 9 years old. We are of the view that, it is a contradiction which is minor and does not cause the prosecution case to flop. The ingredients of the offence of statutory rape are that there must be penetration and the victim must be below 18 years. In this case, both ingredients were proved. To this end we find this ground of appeal devoid of merit and we dismiss it. The last ground of appeal is the 5th ground in the memorandum of appeal in which the appellant argued that the prosecution case was not proved beyond reasonable doubt. Conversely, Ms. Akyoo was firm that the prosecution proved the case to the hilt. She submitted that, the ingredients of the charge of rape in section 130 are two: proof of age and penetration which were all proved. Regarding the age of PW1, she submitted that it was proved by PW1 herself and PW2 that she was below 10 years and the exhibit PI also confirmed that she was 6 years old. On the issue of penetration, she submitted that PW1 at page 8 of the record explained that she was raped by her step-father and narrated how the incident took place. PW2 testified that she found bruises on her genitalia and PW4 confirmed that the victim was carnally known. He found bruises at the vaginal orifice and there was also bleeding, an indicator of forced penetration of hard or erectile object. She prayed for the Court to uphold the findings of the two lower courts. On our part, we agree with the two lower courts that, the appellant was charged under Section 130(2) (e) of the Penal Code which creates an offence of statutory rape. What is required to be proved are two facts: One, that the accused had sexual intercourse with a girl, with or without her consent. Two, that the girl is under 18 years of age and that, if she is 15 or more years of age, it must be shown that she is not his wife. In this appeal, the victim herself and the victim's mother testified on the victim's age and it was confirmed by the birth certificate that she was 6 years. These facts were not challenged in cross-examination or in evidence by the defence. We are, therefore, satisfied that her age was sufficiently established. With respect to the second ingredient which is penetration, the victim narrated how she was carnally known by the appellant on that early morning of 21st January, 2021. Therefore, gauging from the evidence of PW1 and PW2, together with the exhibit P2 there is no doubt that the offence of rape was committed against the victim as the elements of age and penetration were proved. In our conclusion, we agree with the concurrent findings of the two courts below that PW1 was raped and it was the appellant who raped her. The conviction and sentence are therefore upheld and this appeal is dismissed in its entirety. It is so ordered. 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 a true copy