William Chacha Makena Vs

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: JUMA, C.J.. LEVIRA. J.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 112 OF 2022 WILLIAM CHACHA @ MAKENA...................................... APPELLANT VERSUS THE REPUBLIC......................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali. 3.^ dated the 1st day of November, 2021 in Criminal Appeal No. 64 of 2021 JUDGEMENT OF THE COURT 11th8114th March, 2025 NANGELA. J,A:. The appellant, WILLIAM CHACHA @ MAKENA, was arraigned and convicted by the District Court of Serengeti, for the offence of rape contrary to sections 130 (1) (2) (e) and 131 (3) of the Penal Code, Cap. 16, R.E. 2019. The particulars of his charge were that, on the 3rd day of June, 2020 at Sedeco Street Mugumu Township within Serengeti District, in Mara Region, he had carnal knowledge of a girl aged 4 years. A brief account of the facts will paint a better picture. On the 3rd day of June, 2021, Veronica d/o Marwa (PW1), was out for her daily chores. Upon returning home at around 19:00 hrs, she called for her daughter aged 4 years (PW2) but could not find her in the house. She searched for her whereabouts only to find the appellant read-handed raping her four-year-old daughter in a nearby unfinished house. She raised an alarm and the appellant ran away. However, an arrest was later effected, and the appellant was brought before the District Court of Serengeti, where he faced a charge of rape. He denied the charge. During trial, the prosecution side summoned five witnesses. These were Veronica d/o Marwa (PW1), the victim (PW2), Anna w/o Marwa (PW3), John s/o Mororo (PW4) and E-75 D/SGT Titus (PW5). In her testimony, PW1 narrated that she found the appellant raping (the victim). Her evidence was corroborated by PW3 who also examined the victim after being informed that she was raped. She reported the incident to the Police and was issued with a PF3 and took the victim to hospital for medical examination. At the hospital the victim was examined by PW4 who proved penetration, thereby concluding that she was raped. The appellant was arrested, brought to the court and a charge of rape was preferred against him. In his defence, the appellant testified as DW-1. He denied the charge, stating that he was only arrested by Police officers on the night of the 3rd day of June 2020, taken to police, interrogated on the next day and brought to court where he was accused of raping the victim. At the end of the day, the trial court was convinced that the prosecution case had been proved beyond reasonable doubt. It found the appellant guilty of rape, convicted and sentenced him to life imprisonment. Besides, he was ordered to pay TZS 200,000 as compensation to the victim. Aggrieved by the trial courts judgment and sentence, the appellant appealed to the High Court of Tanzania at Musoma, raising six grounds of appeal. In essence such grounds may be clustered in two. The first group (comprised of grounds 1,4, 5, and 6) is concerned with reliability of the testimonies of the key prosecution witnesses (PW1, PW2, PW3 and PW4). The second cluster (comprised of grounds 2 and 3 of his first appeal), were about his assertions that he was convicted unheard, without being afforded the right to call a witness or have his evidence considered by the trial court. Having heard his first appeal, the High Court dismissed * it on the 1st day of November 2021, prompting him to file this second appeal. In his memorandum of appeal to this Court, filed on the 6th day of May 2022, the appellant raised five grounds of appeal. Essentially, these are a reiteration of the same grounds he earlier raised before the first appellate court, except for the sixth ground which he left out. During hearing before us, the appellant appeared in person and unrepresented. The respondent Republic had the services of Ms. Wampumbulya, Shani and Ms. Grace Michael, both learned Senior State Attorneys. At the commencement of the hearing, the appellant preferred that the State Attorney should address the Court first and allow him to submit after hearing what the respondent Republic had to say on his grounds of appeal. In her submission, Ms. Shani, opposed the appeal. She grouped the appellant's grounds of appeal in two clusters, the first of which was comprised of grounds 1,4, and 5 regarding whether the prosecution case was proved beyond reasonable doubt and the second, comprised of grounds 2 and 3 about the appellant's denial of right to be heard. As regards the first cluster, Ms. Shani submitted that since the victim of the alleged rape was a child of tender age, the alleged offence was statutory rape and only two ingredients needed to be proved, i.e., (i) that there was penetration of a male genital organ into a female genital organ and (ii) the age of the victim. As regards proof of the first ingredient, Ms. Shani implored us to make a finding that there was sufficient proof to that effect. She referred this Court to the testimonies of PW1, PW3, and PW4. She contended that all these examined the victim and observed that she had been raped. To bolster her submission, she relied on the case Simon Emmanuel vs. Republic, 2017 [TZCA] 531 (25 August 2021), TANZLII. During her submission, however, she urged this Court to expunge exhibit PEI, (the PF-3 purported to be the medical observation made by PW4) from the record of this appeal on the ground that, after it was admitted and endorsed by the trial court, it was not read over as required by the law. However, she submitted that, such removal of the exhibit PE- 1 from the record, does not affect the testimony of PW4. She relied on the decision of this Court in the case of Wambura Kiginga vs. Republic, 2018 [TZCA] 301 (13 May 2022) TANZLII. As regards the age factor, Ms. Shani was confident that the same was sufficiently proved. She urged this Court to consider the testimonies of PW1, the mother of the victim and PW4, the medical officer who examined the victim, to support a view that the two were better placed to testify as to the age of the victim. To buttress her submission reliance was placed on the case of Makende Simon vs. Republic, 2017 [TZCA] 412 (3 May 2021) TANZLII. Finally, she maintained that all essential ingredients of the offence which the appellant faced before the trial court were proved beyond reasonable doubt. Relying on the case Nyerere Nyague vs. Republic, 5 2010 [TZCA] 67 (21 May 2012) TANZLII, she contended that the appellant's failure to cross-examine the witnesses on vital point regarding the commission of the offence, meant that he admitted the correctness of what the witnesses stated. She consequently urged this Court to dismiss grounds 1,4, and 5 of the appeal for lacking in merit. Concerning the second cluster comprising of grounds 2 and 3 of the appeal, Ms. Shani submitted that, contrary to what the appellant alleges in this appeal, the appellant was fully afforded his rights to be heard from the start of the appellant's trial before the trial court to its conclusion. She invited this Court to examine the record of appeal (pages 30 and 34) noting that the appellant was given opportunity to call witness and himself testified as DW1, but at the end, he prayed to close the defence case as he had no other witness to call. She concluded her submission by imploring this Court to dismiss those two grounds and the entire appeal, thereby upholding the conviction and sentence imposed by the triai court. On his turn to address the Court, the appellant did not have much in substance to say other than questioning why, if true, nobody came to PWl's aid when she raised an alarm after finding her daughter being raped. He also raised concerns about PW-4 arguing that perhaps he was the one who injured the victim when he was examining her. Finally, he implored this Court to consider his grounds of appeal appearing in the memorandum of appeal. After reviewing the record of this appeal and considering the arguments presented by both parties, the sole issue for determination is whether the appeal before us has merit. This being a second appeal, we are mindful that, unless it is shown that the lower courts misapprehended the evidence or there is a misdirection or non-direction on the essential principle of law, the powers of this Court to interfere with the concurrent findings of the lower courts on matters of fact, are constrained. (See Director of Public Prosecution vs. Jaffari Mfaume Kawawa [1981] TLR 149). Having said so, we shall start by examining the appellant's grounds two and three of the appeal together. In those grounds the appellant asserts that he was convicted and sentenced without being afforded the right to call a witness, the right to have his evidence considered by the trial court (see ground two) and without being afforded the right to be heard (see ground number 3). Essentially, an accused person's right to be heard during his trial is a fundamental right. In the case of Mbeya-Rukwa Auto Parts & Transport Limited vs Jestina Mwakyoma [2003] T.L.R 251, it was firmly observed that, by virtue of Article 13 (6) (a) of our Constitution, such right is not just a common law but a fundamental constitutional right, and one of the attributes of equality before the law. Any violation thereof, including violation of the procedural rules that safeguard such a right, is fatal to the entire proceedings of whatever nature. See the case of Director of Public Prosecutions vs. Sabinis Inyasi Tesha and Another [1993] T.L.R 237. See also the case of James @ Shadrack Mkungilwa & Another vs. Republic, Criminal Appeal No. 214 of 2010 [2012] TZCA 187 (26 March 2012). Based on the above observations, it is trite, therefore, that each party in proceedings of whatever nature must be afforded a fair opportunity to be heard. In the present appeal before us, the appellant has raised some concerns, firstly, that he was denied his rights to be heard. We have asked ourselves what, how, and at what point in time during his trial may an accused be said to have been denied such a right and whether the appellant herein was, indeed, denied his right. To respond to such concerns, we are reminded of the English case of Kanda vs. Government of Malaya [1962J2 WLR 1153 where the Court stated that, to be anything, an accused's right to be heard: "must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them. "(Emphasis added). Flowing from the above premise and in the context of this appeal, can it be really said that the appellant was not accorded such rights? In our careful review of the record of appeal before us, we do not think that any of such rights, as pointed out in the above cited case of Kanda (supra), were violated. Perhaps the only instance where we think that there was a procedural misstep was regarding his right to know the contents exhibit PE-1. In her submission before this Court, however, Ms. Shani, the learned Senior State Attorney, was quick to point out that irregularity and prayed that we expunge exhibit PEI from the record of appeal. We are satisfied, indeed, that, exhibit PEI having been tendered and marked by the trial court, the record of appeal does not show whether the learned trial magistrate caused its contents to be read over and explained to the appellant (then accused). As rightly prayed by Ms. Shani, the failure constituted an irregularity, and the appropriate remedy is to have the exhibit PE-1 expunged from the record, and we hereby expunge it from the record. Other than that anomaly, which we have pointed out and dealt with accordingly, nowhere else do we find that the appellant was denied his right to know or be heard was curtailed or infringed. We are also mindful that, in his grounds 2 and 3 of the memorandum of appeal, the appellant was concerned that his right to call for witnesses of his choice as well as the right to have his defence considered by the trial court were violated. Two questions need to be responded to in that regard. These are: (1) whether the appellant was denied such a right to call witnesses of his own choice and (2) whether the trial court failed to consider his defence hence denying him the right to have his evidence considered by the court. We shall examine the first issue regarding the right to call witnesses of one's own choice. Essentially, the right to call witnesses is part and parcel of the right to be heard and, hence, a right to a fair hearing. Article 12 (6) (a) of the Constitution of the United Republic of Tanzania 1977 (as amended) firmly guarantees that right. We agree and, indeed, confirm what the High Court of Tanzania (Kisanya, J.;) held in the case of Joseph Mataro @ Kibure and Others vs. Republic, 2020 [TZHC] 139 (3 June 2021) TANZLII, that, any decision made on the proceedings in which the right to call a witness was denied or curtailed will be rendered nullity. But having said that, was the appellant denied such a right? Basically, an accused person's right to call witness during trial before a subordinate court is founded on section 231 (1) of the Criminal Procedure Act, Cap.20 R.E, 2022, (CPA) at the closure of the prosecution case and before the accused is called upon to testify. Under that provision, the trial court is bound to not only inform the accused about his right to give evidence on his own behalf, but also, his right to call witnesses of his own choice in his defence. In the case of Cleopa Mchiwa Sospeter vs. Republic, 2019 [TZCA] 51 (11 June 2020) TANZLII, this Court made it clear that failure to abide by that provision will vitiate the entire proceedings. However, looking at the record of appeal placed before us, was there such a violation as the appellant would want us to find? In her submission, Ms. Shani, denied existence of any such violation. We do agree with what she submitted. Reading from pages 30 and 31 of the record of appeal, the trial court complied with section 231 of the CPA. At page 30 and 33 of the record of appeal, it is also indicated that the appellant was to call one Bhoke d/o Chacha @Makena and, that, during the hearing of his defence case, he even prayed, and his prayer was granted to allow him to call that witness. On that account, the trial court adjourned his defence case till the 17th day of December 2020. 11 However, upon resumption of the hearing, he chose to close his defence case. He, therefore, cannot claim that he was denied the right to call witnesses of his choice. Concerning whether the trial court failed to consider his defence, while a trial court is duty bound to consider both the prosecution and the defence case before reaching conclusion (see Stephen John Rutakikirwa vs. Republic, 2008 [TZCA] 78 (15 November 2011) TANZLII, we do not agree with the appellant's assertion that the trial court failed to honour that noble duty. Instead, page 45 of the record of appeal indicates a contrary view because, in his analysis of the evidence, the trial court rejected the appellant's defence on the grounds that it did not raise any serious doubt to the prosecution case. To us, that was a sufficient signification that he also considered the appellant's defence. Based on what we have stated herein above, we find that grounds 2 and 3 of the appellants appeal are devoid of merit. We now turn to grounds 1, 4 and 5 of the appellant's appeal which we categorized as duster one. In those grounds the crux of the matter was whether based on the testimonies of PW1, PW2, PW3 and PW4 the prosecution case was provided beyond reasonable doubt. Put differently, the appellant believes that those witnesses were unreliable. First, we wish to reiterate what was stated in the cases of Goodluck Kyando vs. R [2006] T.L.R 363 and in Basilid John Mlay vs. Republic, 2018 [TZCA] 306 (21 October 2022) TANZLII, that generally every witness is entitled to be believed and so were PW1, PW2, PW3 and PW4. Second, it trite that evidentiary reliability being all about trustworthiness, it is, therefore, an issue that depends on many factors, including those which has a lot to do with the accuracy of the witness's testimony in terms of his or her ability to accurately observe, recall and recount events. See East Cost Oil and Fats Ltd vs. Tanzania Bereau of Standards & another, 2017 [TZHCComD] 151 (20 June 2022) TANZLII. In the present appeal, we do not think the testimonies of PW1, PW2, PW3 and PW4 were unreliable. First, PW1 was an eyewitness who found the appellant read-handed with the victim, examined the victim and found her already ravished by the appellant. If it were not her, the accused would have escaped justice. Second, PW2 was the victim herself who in her unsworn evidence, narrated how the appellant penetrated his penis into her vagina and the pain she endured. This Court has held times and again that, the best evidence in any given occurrence of rape is that of the victim (see, for instance, the case of Issaya Renatus vs. 13 Republic, 2015 [TZCA] 542 (29 April 2016) TANZLII). In the present appeal, PW2 was such a crucial witness. Furthermore, both PW1 and PW3 examined PW2 (the victim) and observed that the victim had indeed been raped. As correctly pointed out by the learned Senior State Attorney, PW1 and PW2 were entitled to examine their daughter. See the case of Makende Simon Fanuel (supra). Besides, PW3's testimony corroborated what PW1 told her, and her testimony can in no way be regarded as hearsay. Lastly, PW4, the clinical officer who testified how he examined the victim, PW2 can as well not be ignored or labelled unreliable. Essentially, even if the exhibit PE-1 has been expunged from the record of appeal, as correctly stated, based on what this Court stated in Wambura Kinginga (supra), PW4's oral testimony remains intact because it was based on the factual reality of what he observed when examining the victim. His observation included a raptured hymen and bruises in the victim's vagina. Such external and interior genital injuries made PW4 to conclude that the victim had been raped. As such, his testimony cannot be held unreliable. Based on such considerations, we also find that grounds 1, 4, and 5 of the appellant's appeal lack merit and we dismiss them. For the foregoing reasons, we find this appeal to be devoid of merit. Consequently, we dismiss it in its entirety. Order accordingly. DATED at MUSOMA this 14th day of March, 2025. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 14thday of March, 2025 in the presence of the Appellant in person - linked Via Video Conference from Musoma District Prison and Ms. Beatrice Timothy Mgumba, learned State Attorney for the respondent/Republic; is here by certified as a true copy