CRIMINAL APPEAL NO 142 OF 2021 CHARLES ANDONDILE MWAM

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: SEHEL, J.A.. KITUSI, J.A. And ISMAIL, J.A.^ CRIMINAL APPEAL NO. 142 OF 2021 CHARLES ANDONDILE MWAMSIKU.............. ................................ APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Judgment of the Court of Resident Magistrate of Mbeya at Mbeya) (Mwakatobe, Ext. Jur.) dated 19th day of February, 2021 in Criminal Appeal No. 11 of 2020 JUDGMENT OF THE COURT 8th & 16th July, 2024 ISMAIL, J.A.; The appellant is a father of six children, one of whom is the victim (PW1), his accuser, in a trial, the conclusion of which found him guilty and ordered to spend the rest of his life in prison. At trial, the appellant was accused of incest by males, contrary to the provisions of section 158 (1) (a) of the Penal Code. The allegation is that the offence was alleged to have been committed between the year 2015 and December, 2017 at Ndembela village within Rungwe District in Mbeya Region. The sex indulgence was against the appellant's own daughter who, at the time of testifying in court, was 14 years of age. The District Court of Rungwe at Tukuyu in which the appellant was arraigned and tried convicted and sentenced him to life imprisonment. His attempt to reverse the decision fell through when the Court of Resident Magistrate with Extended Jurisdiction dismissed his appeal. The instant appeal is yet another effort to protest his innocence. Brief facts of the case are gathered from the record of appeal which informs that, between 2015 and 2018, the victim was living with the appellant as was one of her siblings. Sometime in 2018, PW1 shifted to Mbeya City, courtesy of her aunt, who decided to stay with her after she realized that the victim was not getting the best attention at her family home. While in Mbeya, PW1 was enrolled at Ikulu Primary School where she also joined a club known as TUSEME, a forum constituted by African Women Educationists whose goal is to empower girls with a view to enabling them to speak out and learn to understand and overcome problems that stifle their social development, including academic achievement. At school level, PW4, Amina Issa, was the forum's supervisor. In one of the sessions, PW1 is alleged to have broken silence, when she chose to narrate her ordeal to PW4. It is then, that she informed PW4 that the appellant had molested her. PW1 alleged that the appellant would sneak into PWl's shared room, pick her up to his bedroom or, in some cases, to the kitchen, where he would take down his clothes, undress PW1 and have carnal knowledge of her. This persisted for about three years. At some point in the difficult spell, PW1 shared her tribulations with her sister, ABC, the latter of whom said that she was also a victim of appellant's animalistic behaviour. PW1 said that she carried this pain for all the years, not to divulge to anyone else for fear of reprisal, alleging that the appellant was a cruel person who was capable of anything. PWl's revelation triggered action as PW4 escalated it to the social welfare office. The latter brought it to the attention of DCpl. Geoffrey, PW2, an investigator of the matter whose findings were conveyed to Tukuyu Police Station. Completion of police investigation culminated in the institution of the case that saw the appellant plead not guilty to the charge. Seven witnesses testified during trial, four for the prosecution and three for the 3 defence. Besides the victim herself and the police investigator, there was also a testimony of PW3, Walter Sylvester, a clinical officer from Luanda Health Centre who examined PW1. His observation was that the victim's genitalia lost its virginity while her anus had loose sphincter muscles, an indication that she had had both vaginal and anal sex. This was included in the PF 3 which was expunged on appeal for failure to conform to the requirements of the law. The appellant's defence was essentially a denial of any involvement in the alleged wrong doing. His defence, though, counted for nothing as the trial magistrate found that it was of a measle effect to the prosecution's case. In the end, the learned trial magistrate found that the prosecution had done enough to hold the appellant to a culpable account. He was convicted and sentenced to life imprisonment. On first appeal, the Principal Resident Magistrate (with extended jurisdiction) did not find anything blemished in the trial court's findings. The appellant's nine-point petition of appeal did nothing to convince her that the trial court's reasoning was erroneous. In the end, the appeal was dismissed in its entirety. The appellant did not relent, he instituted an appeal which is a subject of our determination in this judgment. The memorandum of appeal filed on 25th June, 2021, contained 14 grounds of appeal. Six more grounds of appeal were introduced by the appellant just before the hearing kicked off. For reasons that will be clear in the course of this judgment, we shall not reproduce the grounds of appeal. Hearing of the appeal pitted the appellant, who fended for himself, unrepresented, against Ms. Hannarose Kasambala, learned Senior State Attorney who was assisted by Mr. Davis Msanga, learned State Attorney. When invited to address the Court on the appeal, the appellant implored the Court to let the respondent's counsel fire the first shot while reserving his right to rejoin if the need for so doing would arise. Ms. Kasambala began with what has become the familiar preambular statement among the state counsel to the effect that she did not support the appeal. She, instead, informed the Court that she supported the concurrent findings of the lower courts that held the appellant liable for the offence he was charged with. Midway through her submission, and after probing by the Court, she made a dramatic change of stance. She supported the appeal and did do by punching a few holes in the concurrent findings of the lower courts. Ms. Kasambala premised her new position on what she considered to be credibility issues that marred the prosecution's case. She argued that, the case for the prosecution was built on the testimony of PW1, the prosecutrix, and corroborated by the testimony of PW3, the clinical officer who examined her, and PW4, the person PW1 shared her story with. Whereas PW3 testified that her medical examination revealed that PW1 was also carnally known against the order of nature, PW1, the victim herself, was inclined to secrecy or reticent about a more gruesome of the sexual abuses i.e. sodomy. The learned Senior State Attorney submitted that, given the variance in the testimony between PW1 and PW3, and on the strength of the defence testimony, the credibility of the testimony of PW1, on which the appellant's guilt was predicated, was suspect and that the benefit of the highlighted doubts must be accorded to the appellant. The other loose link in PWl's factual account that drew Ms. Kasambala's criticism was the contention by PW1 that the appellant used to take her from the bedroom that she shared with her siblings without their knowledge, and that during the sexual act, there was a torch that lit the room and enabled her to identify the appellant. Ms. Kasambala's submission 6 is that there was no clarity on where the sexual act happened and who held the torch that illuminated the room. On why it took so long to report the incident, Ms. Kasambala conceded that, apart from PWl's bare assertion that she was scared of the appellant, there was no indication in the testimony that the appellant issued any threats that would justify the victim's buttoned-up style which she maintained for three years. There was also, in the learned counsel's contention, a cloud of uncertainty on the reason for PWl's relocation to Mbeya and the timing of such relocation. She, in consequence, contended that the prosecution's case was laden with irreconcilable shortfalls that justify allowing the appeal. From the parties' unanimous representations, the singular question we are called upon to address is whether guilt of the appellant was proved. As submitted by Ms. Kasambala, the case for the prosecution was, by and large, built on what the two lower courts considered to be a credible account of the testimony of PW1, the alleged victim of the appellant's atrocious acts. This is the testimony that swayed the concurrent findings of guilt made by the two lower courts. Ostensibly, this testimony proved all the ingredients of the offence as provided for under section 158 (1) (a) of the Penal Code, as PW1 proved that she was a daughter of the appellant, that she was carnally known by the appellant and that, with respect to the sentence, she was of the age below 18 years. We need to state, at the outset, that we are aware of the settled position of the law, a household principle in our view, that, the testimony of a victim of the sexual acts may be relied upon to ground a conviction without any need for corroboration, provided that the credibility of such evidence has been assessed and found to be foolproof. This is the import of section 127 (6) of the Evidence Act. We are not abstracted, either, that matters relating to demeanor of the witness are the preserve of the trial court. This is because such court is privileged to assess and observe the witness as he testifies. The second appellate court, that this Court is, can move in and re­ evaluate the credibility of the witness and make its own conclusion. This is done in the course of examining the findings of the appellate court - see; Shaban Daud v. Republic, Criminal Appeal No. 28 of 2000 (unreported). The postulation in the just cited decision was underscored in our subsequent decision in Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported) in which we guided as follows: "... on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that, at its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance o f probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case. " [Emphasis is supplied] As we consider the matter at hand, the question that begs an answer is whether PWl's testimony carries with it the level of credibility and weight stated in the just cited decisions. Ms. Kasambala is not convinced that it does. We are not convinced either. We are aware that, both learned magistrates premised their findings on the reasonings in the famous Selemani Makumba v. Republic [2006] T.L.R. 379, and Goodluck Kyando v. Republic [2006] T.L.R. 367. While we cherish the principles accentuated in the cited decisions, we take a 9 serious exception to what we consider to be an abhorrent obsession by some practitioners, of blindly applying the said principles without having regard to conditions precedent attached to such legal postulations. For instance, the question of credence of a witness, as propounded in Goodluck Kyando (supra), is often and erroneously confined to the prosecution witnesses, forgetting that the appellant and the rest of what constitutes the defence witnesses are witnesses who must also be entitled to credence, and that they too are entitled to belief. In the case of Seiemani Makumba (supra), our firm view is that, successful invocation of the principle is dependent on the victim's factual account and his credibility being nothing short of impeccable - see: Mohamed Said v. Republic, Criminal Appeal No. 145 of 2017 [2019] TZCA 252 (23 August 2019, TANZLII). In our case, assessment of the right invocation of the said case, as done by the lower courts, is bred out of the question as to whether PWl's testimony was credible. Ms. Kasambala has answered this question in the negative and we fully subscribe to her contention. The following instances will serve to cement our view. One, levelling allegations that she was raped while omitting that a graver abuse of being carnally known against the order of nature, the fact which was testified on by PW3. Two, a disproportionately large time lapse in having the matter reported to law enforcement agencies or to any person who would help in bringing the appellant to account. As Ms. Kasambala argued, the victim's lethargic conduct was not caused by any threats of reprisal as the appellant issued none to her. This conduct is not without adverse consequence as the settled position is that such delay has a bearing on the credibility of the prosecution's case. In Oscar Christopher & 4 Others v. Republic, Criminal Appeal No. 172 of 2022 [2023] TZCA 17336 (13 June 2023, TANZLII), we referred to our previous reasoning in Jaribu Abdallah v. Republic, Criminal Appeal No. 220 of 1994 and Marwa Wangiti & Another v. Republic [2002] T.L.R. 39, and held as follows: "As it is well settled, that delay in naming a suspect at the earliest opportunity dents a witness's credibilityespecially where the identification o f the suspect is in issue." We are afraid, this is what has become of the PWl's testimony. Her deafening silence that has lasted for a whopping three years casts a serious doubt which, as Ms. Kasambala magnanimously conceded, creates a li whirlwind of doubts that we can hardly cast a blind eye on. It takes a toll on PWl's factual account and, by extension, on the prosecution case. A scrupulous review of the evidence of PW1, when compared to that of PW3, brings out what we consider to be irreconcilable differences that cast serious doubts about the credibility of the prosecution's case. This is especially on whether PW1 was raped, sodomized or subjected to both. They are doubts which are heightened by the potency of the defence testimony and Ms. Kasambala has refused to go along with, and we think she is justified in her decision. There is also an issue regarding the prosecution's failure to call the victim's sibling, Ivon, who is also alleged to have suffered the brunt of the appellant's sexual brutality. Not unexpectedly, the prosecution lived up to the familiar script, coined around section 143 of the Evidence Act, that no statutory prescription exists on the number of witnesses who are to be called by a party to the proceedings. Fortunately, this contention was subsequently retracted. While we have no qualms about the statutory prescription that section 143 is, our aspersions are cast on the application of it by the prosecution in the instant case. In our view, it smacks of disingenuity. We 12 take the view that Ivon's day in Court would assist the trial in confirming or dispelling the contention that the appellant was a sex pest who had turned against his own girls. It would also quash the contention by the appellant who stated in his testimony that Ivon, along with other children, denied that they were carnally known by the appellant. We hold that the unexplained failure to call this important witness justified the invocation of an adverse inference against the prosecution's case. We also have a small matter regarding the manner in which the learned Principal Resident Magistrate's (PRM Ext. Juris.) handled the defence testimony. We observe that, whereas the appellant put up a defence which was, in our view, formidable and asked a few questions on the solidity and plausibility of the prosecution's testimony, the learned PRM (Ext. Juris) merely discarded the said defence testimony with a liner of a sweeping statement that the "prosecution's evidence was watertight." There was no attempt to delve into it and make a critical, balanced assessment and scrutiny which would justify her finding. With respect, the fleeting treatment of the defence testimony is, in our considered view, an act of abdication of duties that are bestowed on a court sitting on first appeal. We are constrained to hold that, failure to consider the testimony on family squabbles between the appellant and his in laws the latter of whom were alleged to have accused the appellant of superstitiously killing his wives was a step out of the ordinary and unfortunate. The overlooked testimony was significantly corroborated by the factual account of the appellant's wife (DW2), the hamlet chair (DW3), and the neighbour (DW4). The totality of this testimony is what convinced the trial court and hold that the allegation of molesting the appellant's other children was untrue, hence the decision to re-admit the appellant to bail. We firmly believe that had this defence evidence been considered critically, a conclusion would be made that the same possessed what it takes to raise serious doubts in the prosecution case. As we 'lower down the curtain' of our determination, we are constrained to give a remark on the conduct of the learned trial magistrate. Our disquiet resides in the general attitude exhibited in the course of the trial but, most specifically, subsequent to delivery of the judgment and passage of the sentence. Quite uncharacteristically, the trial magistrate introduced extraneous matters. In so doing, he allowed the facts of the case play second fiddle to the extraneous matters. In what was markedly an act of denial of the appellant's right to be heard, the learned trial magistrate went far overboard and issued unsolicited orders that were so confounding, that even Ms. Kasambala, struggled to gather their justification. He began by cancelling the appellant's bail after hearing the victim's (PW4) evidence, to allow an inquiry into the magnitude or scale of the appellant's illegal indulgence. As if that was not grave enough, after conviction, passage of the sentence and explanation of the parties' right of appeal, the learned trial magistrate issued the following order: "Since the accused is the father o f means and depended by other five children, I order the five children, Ivon Charles aged 15 years, Daudi Charles aged 12 years, Farida Charles aged 11 years, Leah Charles aged 9 years and Jema Charles 3 years be under supervision o f Rungwe social welfare until they attain the age o f majority." Needless to say, this order was uncalled for and we failed to understand in whose interest was this order, or the purpose that it intended to achieve. Astonishingly, this order passed unscathed when the 1st appellate court determined the appeal. While we are not oblivious of the fact that this order dies with the reversal of the impugned decision, we thought we should urge the magistracy to stick to their jurisdictional confines without any expression of own sentiments. In the upshot of all this, we find that the appellant has presented a credible case that supports the appeal and bring merit to it, and we allow it. Consequently, we quash the conviction, set aside the sentence and the subsequent order made thereof. We further make an order that the appellant be immediately set free unless held for some other lawful cause. DATED at MBEYA this 16th day of July, 2024. B. M. A. SEHEL JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 16th day of July, 2024 in the presence of the Appellant in person and Ms. Prosista Paul, Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.