CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: MWARIJA. J.A.. MASHAKA. J.A. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 528 OF 2022 JOSEPH PAUL @ SIMON............................................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) (NkwabLJ.) dated the 29th day of August, 2022 in RM. Criminal Appeal No. 04 of 2022 JUDGMENT OF THE COURT 25th March, & 3rd April, 2025 MASHAKA. J.A.: The appellant, Joseph Paul @ Simon was charged before the Court of Resident Magistrate of Katavi at Mpanda, with the offence of rape contrary to sections 130 (1), (2) (e) and 131 (3) of the Penal Code [Chapter 16 Revised Laws of 2019]. The particulars of offence alleged that, on 14th day of May 2021 at Kaseganyama Village within Tanganyika District in Katavi Region, the appellant had sexual intercourse with a girl (name withheld) aged 5 years. She will hereafter be referred to as the victim or PW1, to protect her modesty. After a full trial, he was convicted and sentenced to life imprisonment. Aggrieved by the conviction and sentence, he preferred an appeal to the High Court of Tanzania at Sumbawanga. The High Court dismissed the appeal, hence this second appeal. The facts upon which the conviction of the appellant wasgrounded can be briefly stated as follows: On the fateful date around 20:00hrs, Juma Kulwa (PW3) working as a barber at a salon, heard unusual noise originating from the back of the salon. He quickly went there and with the aid of the solar lights he found a man lying on the ground, when he drew closer, he saw the man was raping a young girl. He apprehended him and called for help. Several people responded to the alarm and among them were Lucas Daniel Ulaya, father of the victim (PW2), Emmanuel Daniel, a militia man (PW4) and Janeth Daniel Ulaya, the victim's aunt (PW5). PW4 came to the rescue of the attacker who was being assaulted by the crowd of people and took him to the office of the hamlet Chairman. PW5 went to witness the scuffle and found the attacker had been arrested by PW4 and realized that the victim was the daughter of her brother, PW2. PW4 was requested to inspect the victim's female organ and noticed sperms and blood oozing. The matter was reported to the hamlet leader and later to Kasekese police station, where a PF3 was issued to the victim who was taken for medical examination. On 15/5/2021, the victim was examined by Kinara Mtatiro Samweli (PW6), a Clinical Officer at Kasekese Dispensary who filled her PF3, which was admitted in evidence as exhibit P2. He observed that the size of her vagina walls had widened compared to her age and her hymen was perforated, suggesting that a blunt object had forcefully penetrated her vagina. In his defence, the appellant vindicated himself from the charge, relied on his sworn testimony only, and called no witness to beef up his defence. He narrated on how he was arrested while returning from farm work. The trial court was satisfied that the prosecution had proved the charge to the hilt based on the evidence of PW3, the eye witness who found the appellant in flagrante delicto raping the victim, which was corroborated by the evidence of PW5 who saw sperms and blood oozing from the victim's vagina and PW6 who examined the victim. It therefore convicted the appellant and sentenced him to life imprisonment. Aggrieved, the appellant preferred his first appeal to the High Court based on two complaints: one, that the trial court erred in law and fact by 3 convicting the appellant on the case which was not proved beyond reasonable doubt and; two, that the trial court erred in law and fact by not considering that the evidence of PW6 found no sperms in the victim's vagina. The first appellate court dismissed the appeal on the ground, that to prove the offence of rape does not require the presence of sperms and, that the charge was proved as the appellant was caught at the crime scene by PW3 who found him raping the victim. Still undaunted, the appellant is before this Court fortified with seven (7) grounds of complaint rephrased: 1. That the Honorable Judge o f the High Court erred in law and fact by dismissing appellant's appeal without taking into consideration that the prosecution side failed completely to prove the charge against the appellant beyond reasonable doubt as required by law standard. 2. That, the Hon Judge o f the High Court erred in law and fact to uphold the judgment o f the trial court without taking into consideration that the child (victim o f tender age) was not asked (voire dire examination) the question that one can conclude that the child was intelligent enough to tell the truth and effect o f lying which contravened section 127 (2) o f the Evidence Act Cap 16 R.E2022. 3. That the evidence o f PW6 the clinical officer was improperly received and wrongly acted upon in convicting the appellant as he was unqualified examiner which vitiated the whole process to be nullity. 4. That, the Hon. Judge o f the High Court erred in law and fact to dismiss the appellant's appeal relying on the hearsay evidence adduced by PW2 and PW4. 5. (a) That the trial Judge o f the High Court misdirected himself by dismissing the appellant's appeal while mis observed that the evidence rendered by PW5 did not pinpoint the appellant in the said offence because he was not examined in order to authenticate if that sperms were belong to the appellant or otherwise, (b) My lord judge it is trite law that the prosecution side have a duty bound to prove all ingredients o f the offence that is to say to prove the charge against the appellant (accused) beyond reasonable doubt. Please refer the case o f Okech Okale and Another vs. Republic (1965) E.A 555 6. That the learned Judge erred in law and fact to dismiss the appellant's appeal basing on the prosecution evidence which discounted the appellant's testimony rendering the purported judgment and imposed sentence to be nullity. 7. That the Hon. Judge o f the High Court erred in law and fact to uphold the judgment o f the trial court without taking into consideration that the evidence o f the prosecution side was lacking proper material support whereas no cautioned statement o f the appellant was tendered before the court to prove the same. At the hearing of the appeal, the appellant was present, unrepresented, whereas Ms. Flavia Shiyo, learned Senior State Attorney assisted by Mr. Joseph Mwakasege, learned State Attorney represented the respondent, Republic. The appellant prayed to adopt the seven grounds of appeal and let the Republic, respond first but, reserved his right to rejoin, if need to do so would arise. We called upon Mr. Mwakasege who addressed us. At the outset, he resisted the appeal and strongly supported the finding of the two lower courts that properly convicted and sentenced the appellant. The learned State Attorney implored us to disregard grounds 3, 7, and 5 (a) as they are new grounds which did not feature in the appeal before the first appellate court. He grouped ground 5 into (a) and (b) to enable the Court to appreciate and determine those which it has jurisdiction. That being the case, he argued that the grounds stated above were not determined by the first appellate court, which renders this Court, to lack jurisdiction to deal with them. He fortified his argument with the case of Felick Kilipasi v. Republic (Criminal Appeal No. 260 of 2021) [2023] TZCA 17941 (13 December 2023) and urged us to disregard grounds 3, 5 partly and 7 of appeal. Regarding ground 2, the learned State Attorney contended that voire dire is a former requirement which has been improved after the amendment of section 127 (2) of the Evidence Act by the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 (Act No. 4 of 2016) (Evidence Act). Thus, he argued that a child of tender age may testify without taking oath, but the child has to make a promise to speak the truth and not tell lies. He further stated that in this case, the evidence of the victim aged 5 years was not received because the trial court disqualified the witness. The trial court further stated the reason that she was not competent to testify under section 127(1) of the Evidence Act and bolstered his argument with the case of Felick Kilipasi v. Republic {supra). He prayed this ground to be dismissed. Moving to ground 6, Mr. Mwakasege argued that it was baseless because it is the duty of the appellate court to consider the appellant's appeal founded on the two grounds of appeal raised in the petition of appeal as garnered at pages 71 to 72 of the record of appeal. It was his contention that the first appellate court properly determined the said grounds. Mr. Mwakasege argued the complaint in grounds 1, 4 and partly 5 (b) jointly as to whether the charge was proved to the hilt. He submitted that the evidence of PW2 and PW4 was not hearsay as the witnesses testified on what they had seen at the crime scene on 14/5/2021. He stated that PW3 was the eye witness who saw the appellant lying on top of the victim and called for assistance to apprehend the appellant who was raping the victim. PW2 and PW4 came to the said scene and saw the appellant who had been apprehended by PW3 and due to the scuffle as there were many people, PW4 rescued the appellant from mob justice while PW5 inspected the victim and found sperms and blood oozing from her vagina and PW6 examined the victim's vagina and found the vagina walls had enlarged compared to her age and the hymen was perforated. He referred us to the case of Felix Majunga v. Republic (Criminal Appeal No. 509 of 2020) [2021] TZCA 695 (9 November 2022) and argued that even though the victim did not testify, the evidence of PW3 is sufficient as he caught the appellant in action raping the victim. Therefore, he concluded that all the prosecution witnesses were credible and reliable and prayed to the Court to dismiss the appeal. In rejoinder, the appellant implored us to consider the grounds of appeal, allow the appeal and set him free. We have gathered from the Memorandum of Appeal that, basically the appellant's complaint hinges on two fronts namely; one, the trial was flawed with procedural irregularity for non-compliance with 127 (2) of the Evidence Act which is the gist of ground 2 of appeal; and two, that the charge was not proved beyond reasonable doubt because the conviction wrongly relied on hearsay evidence of PW2 and PW4, and the failure of the trial court to consider the appellant's defence evidence, which is the gist of grounds 1, 4, 5 (b) and 6 of appeal. In the determination of this appeal, we intend to address the grounds of appeal in the sequence as jointly argued by the learned State Attorney. We shall dispose of this appeal beginning with grounds 2 and jointly grounds 1, 4, 5 partly and 6. We are in agreement with Mr. Mwakasege that a matter not determined by the first appellate court cannot qualify for consideration by this Court. Since the first appellate court did not make a finding on it, this Court lacks the requisite jurisdiction to entertain it and therefore, it has to be disregarded. There are a number of decisions to that effect for instance, Mohamed Said v. Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019), Nyakuboga Boniface v. Republic (Criminal Appeal No. 434 of 2016) [2019] TZCA 461 (29 November 2019) and Jafari Mohamed v. Republic (Criminal Appeal No. 112 of 2006) [2013] TZCA 344 (15 March 2013). In the case of Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) [2019] TZCA 109 (6 May 2019), we were confronted with an akin situation and we said: "... we think that those grounds being new grounds for having not been raised and decided by the first 10 appellate court, we cannot look at them. In other words, we find ourselves to have no jurisdiction to entertain them as they are matters o f facts and at any rate, we cannot be in a position to see where the first appellate court went wrong or right Hence, we refrain ourselves from considering them." Even in this case, guided by the excerpt above, grounds 3, 5 partly and 7 being new, we find that we are not in a position to entertain them for lack of jurisdiction. With an exception of part of ground 5 of appeal which raises a point of law, that the prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt, the other grounds are new, hence, we are constrained to refrain from determining them. On ground 2 that the evidence of the victim (PW1) was in contravention of section 127 (2) of the Evidence Act, that the trial court did not conduct the voire dire examination, we subscribe to the submissions by Mr. Mwakasege that the requirement of conducting voire dire was improved through the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 (Act No. 4 of 2016) and the victim of tender age is only required to make a promise to tell the truth and not lies. The case referred to by the learned State Attorney of Felick Kilipasi {supra) in which a similar li complaint was raised that the trial court failed to conduct the voire dire examination, the Court had this to say: - "... we wish to declare at the outset that voire dire is no longer a requirement o f the law through the amendment o f section 127 (2) o f the Evidence Act vide Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 (Act No. 4 o f 2016). In terms o f section 127 (2) as amended, the witness o f tender age is only required before giving evidence to promise to tell the truth to the court and not lies." In the light of the above excerpt, the requirement of conducting voire dire has been improved to require the child of tender age to make a promise to tell the truth and not lies before the reception of her/his evidence. Notwithstanding, in this appeal, the trial court disqualified the victim for the reason that after seeing the appellant she started to cry. Thus, her evidence was never adduced by the prosecution before the trial court. This ground 2 is therefore, baseless and dismissed. Next is the complaint in grounds 1, 4, 5 (b) and 6 of appeal, on whether the charge of rape was proved beyond reasonable doubt. It is a trite principle that in rape cases the best evidence is from the victim (See, Seleman Makumba v. Republic [2006] T.L.R 379; Galus Kitaya v. Republic (Criminal Appeal No. 196 of 2015) [2016] TZCA 301 (15 April 2016). In the present appeal, the victim of the offence was disqualified by the trial court and therefore the conviction relied on the evidence of PW3, an eye witness who found the appellant at the crime scene on top of the victim raping her. The evidence was corroborated by the testimony of PW5 and PW6 who examined her and found that there was penetration by a blunt object as her vagina walls had enlarged and her hymen perforated. We agree with Mr. Mwakasege that there are circumstances in which the conviction of an accused person in sexual offences may not be founded on the evidence of the victim. This position has been reiterated in a number of cases, for instance, Khamis Samwel v. Republic (Criminal Appeal 320 of 2010) [2011] TZCA 70(28 November 2011) and Felix Majuga v. Republic (supra). We are fortified by our position inKhamis Samwel v. Republic (supra), where we held: - "So, as is always the casein cases o f improper admission o f evidence, the question in the present case is, whether, after, expunging the evidence o f 13 PW3 and the High Court on first appeal having also expunged Exh. PI (the PF3) there is any other evidence to support the conviction o f the appellant? We think there is. PW1 came to the scene when the appellant was in the thick o f the act, and was still lying on top o f the victim. This is what in SALU SOSOMA's case (supra) we found was as in flagrante delicto action (caught in the action). PW1 then examined the victim's private parts and found blood; and the child was crying in pain. The appellant was found naked, and was found dressing by PW2 which further corroborates PW1 's story. The lower courts found both PW1 and PW2 as credible, and we are unable to fault those findings because they properly evaluated the evidence and we are satisfied that the appellant's defence and his attempts to discredit those witnesses did not introduce any reasonable doubts in the prosecution case." In this appeal, PW3 stated that he heard unusual voices at the back of his salon, he decided to go and see what was happening there. He found the appellant half naked, his trouser on his knees and was on top of the victim raping her. PW3 called for help and PW2, PW4, PW5 and other people responded. PW4 apprehended the appellant and PW5 inspected the victim and found sperms and blood oozing from her vagina. Thus, the appellant was caught in the commission of the awful act in flagrante delicto raping the victim. Further the evidence of PW3 was corroborated by PW5 and PW6 after examining the victim. PW6's findings in exhibit P2 revealed that her hymen was perforated and her vaginal walls had widened in size which was not normal in respect of her age. More so, the evidence of PW2 and PW4 cannot be regarded as hearsay evidence. We, say so, and agree with Mr. Mwakasege that the said witnesses testified before the trial court of the roles they engaged in after they arrived at the scene of crime/ PW2 as a responsible father upon being told about what had happened to her daughter, the victim, he rushed to the scene of crime together with PW4, the militiaman who rescued the appellant from being attacked by the crowd of people. PW2 also testified that he took the victim to the police station and a PF3 was issued to take the victim to the hospital for the examination which was conducted by PW6. Further, he stated that the victim was born on 1/1/2016 and tendered in evidence exhibit PI. Besides, the prosecution account was not shaken by the defence evidence which did not cast any doubt thereto. In the 15 circumstances, the charge of rape was proved against the appellant to the hilt. Thus, grounds 1, 4, 5 (b) and 6 of appeal are dismissed. In view of our findings on the argued grounds of appeal, we find no cogent reasons to disturb the concurrent findings of the two lower courts, as we are satisfied that the conviction of the appellant is justified. We, thus dismiss the appeal in its entirety. DATED at SUMBAWANGA this 28th day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 3rd day of April, 2025 in presence of appellant in person - unrepresented and Mr. Gerinus Mzanila, learned State Attorney for the Respondent/Republic both parties linked via video facilities from High Court Sumbawanga, is hereby certified as a true copy of the original.