CRIM

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 22015 OF 2024 Case Reference No. 202408052000022015 (Originating from the District Court of Mtwara at Mtwara in Criminal Case No. 37 of 2023) DAN FORD GERVAS JOHN------- ——----------- —— APPELLANT VERSUS THE REPUBLIC - --- -------------------------------------------- RESPONDENT JUDGMENT September & 21st October; 2024 Ebrahim, J.: In the District Court of Mtwara at Mtwara the appellant was charged and convicted for the unnatural offence of a boy child of the age of three .(3.) years whom I shall be referring to as "the victim" to hide his identity. The charge was predicated under section 154 (l)(a) and (2) of the Penal Code [CAP. 16 R.E. 2022]. He was sentenced to life imprisonment. Aggrieved by both the conviction and the sentence, he preferred the instant appeal. Page 1 of 20 The allegation by the prosecution against the appellant as reflected in the particulars of the offence was that; on 29th March 2023 at Shangani West area within the Municipality and Mtwara Region, the appellant had carnal knowledge of the victim, a child aged three years against the order of nature. On their verge to prove the charge against the appellant the prosecution lined up a total of five (5) witnesses and two exhibits (the PF3 and sketch map). The material facts of the case as unveiled in the trial court record may briefly be recapitulated thus: On the material date, the appellant sodomized the victim by inserting his "mdudu" into the victim's anus. When the victim's mother (PW2) came back, the victim went and told her "Mama Dani amenibaka". inspected the victim's anus. She found that the victim had bruises because when she touched his anus, the victim cried from pain. Thereafter, one Mohamed Abdallah called the police to report the incident. The police arrived at the crime scene. One of the police inspected the victim and found that the victim's anus had bruises. They went to arrest the accused person who had locked himself in his room. The victim was thus taken to Ligula Hospital for examination and the result showed bruises on the victim's anus which was caused by force insertion of a blunt object. Page 2 of 20 The appellant denied to have committed the offence before the court. His denial notwithstanding, the trial Magistrate was satisfied that the prosecution had proved the charge against him to the hilt and proceeded to convict and sentence him to life imprisonment. In his petition of appeal, the appellant preferred seven (7) grounds of appeal as follows:- 1. That the trial Magistrate erred In both law and fact by convicting the appellant while the trial court did not comply with the requirement of section 127 (2) of the TEA when PW1 was testifying. 2. That the trial Magistrate erred in both law and fact by convicting the appellant based on the contradictory evidence adduced by PW1. 3. That the trial Magistrate erred in both law and fact by convicting the appellant while the trial was not fair as the appellant was denied the right to be represented by an advocate. 4. That the trial Magistrate erred in both law and fact by convicting the appellant while the prosecution did not prove penetration as the essential ingredient of the offence. Page 3 of 20 5. That the trial Magistrate erred in both law and fact by convicting the appellant while the trial court failed to consider the appellant's defense. 6. That the trial Magistrate erred in both law and fact by convicting the appellant while the trial court was biased and erroneously Influenced by the prosecution side and imported extraneous matters which were not convassed during the trial. 7. That the trial Magistrate erred in both law and fact by convicting the appellant while the prosecution did not prove the offence beyond reasonable doubt. Basing on these grounds of appeal, the appellant prayed for this court to allow the appeal, quash the conviction, set aside the sentence and set him free. During the hearing of the appeal, the appellant appeared in person, unrepresented whilst the respondent/Republic appeared through Mr. Alex Kasela, learned State Attorney. The appellant adopted his grounds of appeal and prayed for the court to consider them. He contended that PW3 did not mention the child whom she said he had canal knowledge with. He challenge Page 4 of 20 on the inconsistency of the age of a child not to be ascertain as to whether he was 3 or 4 years. He thus prayed for the appeal to be allowed. In response, Mr. Kasela objected the appeal. He argued the 1st ground of appeal followed by the 3rd ground of appeal. He also argued the 2nd, 4th* and 7th grounds of appeal together and the same was for the 5th and 6th grounds. Submitting on the 1st ground of appeal, Mr. Kasela contended that section 127 (2) of the Evidence Act [CAP. 6 R.E. 2022] allows the child to adduce evidence without an oath but before giving evidence the child shall promise to tell the truth before the court. He referred at page 16 of the typed proceedings where he said it reflects clearly that PW1 (the victim) promised to tell the truth. Arguing on the 3rd ground of appeal, Mr. Kasela informed the court that the appellant had legal representation as he was initially represented by Advocate Emmanuel Ngongi. He explained that on 14.06.2023 the appellant prayed for an adjournment because his Advocate has had an emergence. On 23.08.2023 he prayed for an adjournment because he wanted to engage another advocate. Mr. Kasela explained further that on 31.08.2023, the Applicant prayed for adjourned for the 3rd time because Mr. Msalenge could not appear before the court. Mr. Kasela continued to explain that the Page 5 of 20 appellant prayed for adjournments three times of which consequently the trial court proceeded with the hearing after he had failed to engage another Advocate. He concluded on the point that the appellant was availed his right to call his advocate but he eventually failed to bring any. Submitting on the 2nd, 4th and 7th grounds of appeal Mr. Kasela argued that prosecution managed to prove the case by calling five witnesses and tendering two exhibits. He argued also that PW1 (the victim) identified the appellant by his name as a person who had carnal knowledge of him. He argued further that the act of the victim of identifying the appellant by name at an early stage ensures the reliability of the victim of recognizing the perpetrator. He referred the court to the case of Francis Paul vs Republic (Criminal Appeal No. 251 of 2017) [2021] TZCA 12 (11th February 2021) where the Court insisted on the ability of a witness to name a suspect's name at the earliest opportunity as an important assurance of his reliability. He contended further that PW1 (the victim) also identified the appellant during the prosecution hearing. Arguing further on the principal relating to proof in sexual offence cases, Mr. Kasela referred to the case of Peter Joseph Kimath vs Republic (Criminal Appeal No. 373 of 2020) [2024] TZCA 214 (21 March 2024), where the Court Page 6 of 20 made an observation that in sexual-related trials, the best evidence comes from the victim. Mr. Kasela said moreover that PW2 the mother of PW1 (the victim), confirmed the age of PW1 to be three (3) years old and that PW1 told her how the incident occurred. Mr. Kasela referred to the testimony of PW3 who tendered exhibit Pl (the PF3) which confirmed that the victim was penetrated by a blunt object. He submitted therefore that PW4 and PW5 explained how the incident occurred and they did not contradict each other. He invited this court to the case of Robert Sanganya vs Republic (Criminal Appeal No. 363 of 2019) [2022] TZCA 18 (10 February 2022) where the Court talked about the credence of a witness unless there are good and cogent reasons for not believing a witness. Submitting on the 5th and 6th grounds of appeal, Mr. Kasela argued that the trial Magistrate analyzed the evidence of the appellant and his two witnesses and arrived at his decision. He finally prayed for the court to dismiss the appeal in its entirety. The appellant had nothing to re-join. Page 7 of 20 Having considered the grounds of appeal, the submissions of the parties, the record and the law; it follows that the issue is as to whether the prosecution proved the case beyond reasonable doubt. I shall begin with the complaint by the appellant on the inconsistency of the child's age as to whether he was 3 or 4 years old. In ascertaining the age of a child, the case law has set a legal principle that a parent is better positioned to know the age of his child. This position has been illustrated in the case of George Maili Kemboge vs Republic (Criminal Appeal No. 327 of 2013) [2014] TZCA 203 (30 October 2014). In the instant case, the victim's mother (PW2) testified that the victim was born on 05-10-2019 making the age of the victim at the occurrence of the incident to be the three (3) years old. The trial court considered the age of the victim as per the testimony by PW2. Thus, there was no inconsistency and this ground of appeal is un-meritorious. Therefore, since PW1 was a three-years-old boy, he was thus a child of tender age in terms of section 127 (4) of the Evidence Act as his apparent age was not greater than fourteen years. In that case and as per the law, his testimony should have been received in accordance with section 127 (2) of the Evidence Act which stipulates the following: Page 8 of 20 "A child of 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." The Court of Appeal had in the case of John Luoga vs Republic (Criminal Appeal No. 493 of 2022) [2024] TZCA 762 (19 August 2024) clearly explained such a requirement where it held thus: "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. * In Issa Salum Nambaluka vs Republic (Criminal Appeal No. 272 of 2018) [2020] TZCA 10 (21 February 2020) the Court of Appeal interpreted the provision of law section 127(2) of the Evidence Act above to the effect that a child of tender age can give evidence on oath or affirmation or testify without oath or affirmation provided that he or she promises to tell the truth and not lies. The learned trial Magistrate quoted PW1 at page 16 of the trial court typed proceedings saying that "I promise this court that I will tell the truth and not tell any lies." The learned trial Magistrate subsequently began Page 9 of 20 receiving PWl's testimony. The approach by the trial Magistrate was consistent with the law. The appellants complaint thus, has no merit. On the complaint that he was denied a right to be represented by an advocate he was denied a fair trial; the issue is whether the right to legal representation was denied to the appellant during the conduct of his trial. Section 310 of the Criminal Procedure Act [CAP. 20 R.E. 2022] which stipulates that: "Any person, accused before any criminal court, other than a primary court, may of right be defended by an advocate ofthe High Court subject to the provisions of any written law relating to the provision ofprofessional services by advocate." Indeed, the right to legal representation which applies to both civil and criminal proceedings is fundamental as repeatedly narrated in various cases of this court and the Apex Court of our country. In the case of Samwel Kitau vs Republic (Criminal Appeal No. 390 of 2015) [2016] TZCA 723 (27 June 2016) the Court observed that: "The right to legal representation is a human rights issue. It is ofprime importance for an accused person to have a fair trial. Access to counsel is therefore very important. ” Page 10 of 20 What can be discerned from the above position is that where an accused person is at liberty to engage an advocate, and if he or she is so inclined, the court is required to allow him to engage one. In so far as the complaint by the appellant is concerned; for ease of reference, I find it pertinent to revisit the record of the trial court. The record is clear that from 16.05.2023 the appellant had legal representation of Advocate Emmanuel Ngongi to 23.08.2023 where Mr. Ngongi withdrew his representation. On the same date, the appellant prayed before the trial court to adjourn the case so that he can engage another advocate. The case was adjourned to 31.08.2023. On 31.08.2023 the appellant informed the trial court that his advocate Mr. Msalenge was busy and he prayed for an adjournment. The trial court granted last adjournment to the appellant until to 05.09.2023. What transpired on the respective date and which has given rise to the applicants complaint is found at pages 14 and 15 of the trial court typed proceedings. "05.09.2023 Coram: Hon. L.M Jahg'andu - SRM Pros: JagadJilaia SA Accd: Present B/C: Zaina SA: This case is coming for hearing. This case is coming for hearing. Page 11 of 20 SGD: L.MJang'andu SRM 05-09-2023 Accused person: Your honour my advocate told me that he as got problem. Another advocate told me that he has no chance today. SGD: LMJang'andu SRM 05-09-2023 COURT: I have given accusedperson chance to engage advocate but until now he done nothing about it Will proceed to hear prosecution side. SGD: L.M Jang'andu SRM 05-09-2023" As records would reveal, the appellant's statement concerning his prayer for another adjournment despite knowing that the court had ordered the adjournment of 31.08.2023 at the last adjournment, was contradictory. He gave two accounts: One his advocates had a problem and another advocate had other engagements. Such scrutiny of the record, it leaves me with no doubt that the appellant was availed opportunities to engage legal representation rather, he was not serious into engaging one and he slumbered to exercise his right. From the foregoing therefore I hasten to conclude that the appellant was not denied a fair trial. Thus, this ground of appeal has no legal basis to stand. Page 12of 20 Regarding the complaint that the trial court imported extraneous matters which were not canvassed during the trial; having scanned through the proceedings and judgment, I hurriedly find that the complaint has no merit. The appellant’s conviction was based on the weight of evidence adduced and canvassed before the trial court as reflected at pages 6 and 7 of the typed judgment. There is nowhere that the trial court imported any extraneous matter and the appellant has not exhibited to the court the purported extraneous matters. The censoring of importing extraneous was stressed in the case of Yustine Robert vs Republic (Criminal Appeal No. 329 of 2017) 17019] TZCA 391 (8 November 2019) cited with approval the case of In Okethi Okale and Others v. Republic [1965] 1 EA 555, the erstwhile Court of Appeal for East Africa in the following terms: "In every criminal trial a conviction can only be based on the weight of the actual evidence adduced and it is dangerous and inadvisable for a trial judge to put forward a theory not canvassed in evidence or in counsel's speeches". The appellant complained also that the evidence of the PW1 was contradictory. His complaint prompted me to revisit the evidence adduced by PW1. In so doing, I noted that when the victim was cross-examined, he told the trial court that when he was sodomized he was with his mother. In Page 13 of 20 re-examination, the victim told the trial court that when his mother returned home, she found that he had been sodomized. As the victim was a three- years-old boy, one could not expect that his wording would be the same at all times. If at all it would seem that he has memorized or he has been couched. It has been the position of the Court of Appeal that contradiction by a witness or between witnesses is something which cannot be avoided in any particular case. This position was stated in the cases of Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008); and Marmo Slaa @ Hofu & 3 Others v. Republic, Criminal Appeal No. 246 of 2011 (unreported). The same position was also repeated in the case of Issa Hassani Uki vs Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018) citing with approval the High Court's decision in Evarist Kachembeho and Others v. Republic [1978] L.R.T 70 where it was observed that: "'Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story." Again, the Court of Appeal further held that: "In the same line of reasoning, we observed in John Giiikoia v. Republic, Criminal Appeal No. 31 of 1999 Page 14 of 20 (unreported) that due to the 18 frailty of human memory and if the discrepancies are on details, the Court may overlook such discrepancies." 1 subscribe to the principle set in all cited cases above. Having dispassionately considered the discrepancies complained of, I do not consider them to be material to the extent of affecting the credibility and reliability of PW1. PW1 is a small child and due to his agez he cannot be expected to remember the exact scenario on how he informed his mother. The most important aspect here is whether he remembers who sodomized him, where and how. PW1 quickly mentioned his attacker and in relation to the evidence by other witnesses, his testimony cannot be affected by minute discrepancies complained of. Thus, the appellants complaint on that aspect is baseless. On the complaint that the offence was not proved beyond reasonable doubt as stated earlier, the appellant was charged and convicted of an unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. The ingredients to prove the commission of the said offence are that the accused must have one; had carnal knowledge of another person against the order of nature - see Amrani Hussein vs Republic (Criminal Appeal 13 of 2019) [2021] TZCA 136 (22 April 2021), two; the offence is committed to a child Page 15 of 20 under the age of eighteen years. It is a cardinal principle of criminal law that the duty of proving a charge against an accused person lies on the prosecution. In the case of John Makolebela Kulwa Makolobela and Eric Juma alias Tanganyika v. Republic [2002] T.L.R. 296 the Court held that: person is not guilty ofa criminal offence because his defence is not believed; rather, a person is foundguilty and convicted of a Criminal offence because of the strength ofthe prosecution evidence against him which establishes his guilt beyond reasonable doubt". The question therefore is whether the prosecution proved beyond reasonable doubt that it is the appellant who committed the charged offence. It is on record that the prosecution side relied on five witnesses and two exhibits to prove that the appellant had carnal knowledge of the victim against the order of nature as alleged. PW1 (the victim) testified before the trial court that the accused person sodomized him by inserting his "mdudu" into his buttocks. On the arrival of his mother (PW2) at home the victim told her" Mama Dani amenibaka". PW2 inspected the victim's anus and discovered that the Victim had bruises on his anus. When the victim was taken to the hospital for examination PW3 who was the doctor examined the victim and tendered PF3 reporting that the Page 16 of 20 victim had bruises and lacerations in his anus due to the insertion of a blunt object. The appellant's defence was a general denial of the incident. When responding to the cross-examined questions the appellant simply told the trial court that on the material date he was alone. Looking at the evidence by prosecution, and in the circumstances of this case, the defence case did not raise any reasonable doubt against the prosecution case. It is settled law that in sexual-related cases, the best evidence is that of the victim. In Robert Sanganya vs Republic (Criminal Appeal No. 363 of 2019) [2022] TZCA 18 (10 February 2022) the Court of Appeal held that: the best evidence in sexual offences is the credible account by the victim who is better placed to explain how she was raped and the person who is responsible, as held in Sefemani Makumba v. Republic (supra). In assessing the credibility of a witness, it is limited to the extent of demeanor and is the monopoly of the trial court." Further, in the case of Peter Joseph Kimath vs Republic (Criminal Appeal No. 373 of 2020) [2024] TZCA 214 (21 March 2024) the Court of Appeal had this to say: Page 17 of 20 "However, for the better ends ofjustice, we wish to add that, for a trial Judge or magistrate to base a conviction on the victim's evidence, the same must be assessed to find whether the evidence is the most credible and no doubts from it That means, the testimony of the victim should not be taken as Biblical versions without considering other important aspects such as the credibility and reliability of the victim's testimony." It is on record that PW1 the key witness in this case at pages 16 to 17 of the trial court proceedings clearly explained the incident on how he was sodomized by the appellant at Gorofani where the appellant stays alone and that they were only two of them. Again, the victim named the appellant at the earliest possible opportunity as being his ravisher. The same stance was taken in Marwa Wanqiti Mwita and Another vs Republic (Criminal Appeal 6 of 1995) [20001 TZCA 23 (12 June 2000) where the Court held that: "The ability of a witness to name a suspect at the earliest opportunity is an all-important assurance ofhis reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry." Further to that PWl's testimony was corroborated by the evidence of PW3, a medical doctor who testified to have examined the victim. She recorded Page 18 of 20 the results of the examination in the PF3 where the victim had bruises and lacerations in his anus caused by the insertion of a blunt object. Nevertheless, the trial court in convicting the appellant dwelt much on the testimony of the victim and PW3 (the doctor) due to the reason that in cases of this nature, the best evidence is that of the victim of the offence. From the above observation therefore, I find that appellant's complaint lacks merit. I thus dismiss it. On the complaint that the trial court discounted the defence evidence, the trial court accordingly evaluated the defence evidence but accorded no weight since it did not raise any reasonable doubt against the strong evidence adduced by the prosecution side. After considering the evidence of the appellant the trial Magistrate stated that the accused person together with his witness testified that the accused did not commit the offence charged. The trial Magistrate explained further the defence by the appellant that he did not open the door as he was sleeping was unfounded. The appellant is guilty because prosecution evidence is tight against him and not because of his weak defence. Page 19 of 20 Deriving from the above, it is my position that the prosecution proved the case beyond reasonable doubt. I, therefore, dismiss the appeal in its entirely for being unmeritorious. Accordingly ordered. Judge 21.10.2024. Page 20 of 20