edward nyegela vs republic 2022 tzca 136 24 march 2022

IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA (CORAM: LILA, J.A.. KITUSI.. J.A. And MWAMPASHI.. J.A.^ CRIMINAL APPEAL NO. 321 OF 2019 EDWARD NYEGELA........................................................................... APPELLANT

VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Kaaanda, J.^ dated the 13th day of July, 2005 in Criminal Appeal No. 32 of 2004

JUDGMENT OF THE COURT 15th & 2 4 h M arch, 2022 KITUSI. J.A.: Originally the appellant appeared before the District Court of Songea on a charge of rape under section 130 (1) (2) (e) and 131 (3) of the Penal Code as amended by sections 5 and 6 of the Sexual Offences Special Provisions Act No. 4/1998. It was alleged that he had carnal knowledge of a girl aged 5 V2 years, to be referred to as PW4. The trial ended with a conviction of the appellant followed by a custodial sentence for life. The appellant's first appeal was dismissed by the High Court, hence this second appeal predicated on four grounds. 1 What brought all this to the appellant is briefly as follows: Doris Mbilinyi (PW2) who was 12 years, lived with the alleged victim (PW4) in the house of Ditric Danda (PW1) the father of PW4. On 6/12/2003 when PW2 and PW4 were taking shower, PW2 noticed a bad smell on PW4 and raised the issue with her. PW4 told PW2 that the appellant who was their neighbour, had raped her. In her testimony, PW4 stated that on the fateful day the appellant called her into the kitchen where he pulled her pants down and had carnal knowledge of her. On hearing PW4's story, PW2 related it to PW1 who, in turn, informed one Protus Lwena (PW3) a Chairman of local security. The two men took the appellant and PW4 to police and they testified that during interrogations he kept on denying involvement in the

commission of the alleged offence. A PF3 was issued for PW4's medical examination which, the prosecution maintained, confirmed that indeed she had been raped. That PF3 was tendered by PW1 and admitted as Exhibit 1. The appellant's defence included an assertion that he was impotent and that he could therefore not rape anyone. He had raised this line of defence very early in the day in the course of cross examining PW1, who agreed with him that an impotent man cannot have sex with a woman. A Dr. Ndiu (DW2) testified in support of the 2 appellant's impotent story. He said he worked with the government Hospital in Songea and recalled to have previously attended the appellant on the problem of impotency. He identified a letter dated 20/10/2003 addressed to "WHO IT MAY CONCERN" revealing the appellant's impotence and stated that he was the author of that letter. However, DW2 did not impress the learned trial magistrate as a truthful witness and we shall have occasion to discuss the conclusion of the two courts below on that. The appellant's other front was that he did not see eye to eye with PW1, the latter accusing him of having illicit sex with his wife by using supernatural means. He said that he reported PW l's allegations of witchcraft but the local leaders would not take any action even when he made follow ups. He also raised an alibi alleging that he had travelled away to

a farm field with colleagues, one of whom testified in support as DW3. All this fell on deaf ears because the District Court found PW4's story impeccable and rejected that of the appellant. Specifically rejecting the testimony of DW2 the learned Resident Magistrate said: "W ith due respect to Dr. Ndiu, I hold and fin d th at he tied to th is Court. Subsequently, I reject 3 h is evidence in total. It is a ll a fabrication. That (sic) m ark the end fo r 2nd issu e." The second issue referred in that excerpt was "w hether accused's defence o f im potence is genuine o r not". The third issue was "whether the accused's defence o f a lib i is genuine o r not". The learned trial Resident Magistrate having answered the second and third issues in the negative and having answered the first issue (whether PW4 was raped) in the affirmative, proceeded to address the fourth issue which was "if the answ er to the first issue is YES, who is responsible". The learned Resident Magistrate's answer to the fourth issue was: "As fo r the la st issue as to w hether accused person is responsible fo r raping PW4, th is is sim ple, taking into account the findings o f the previous issues and circum stances surrounding that e v il act. I hold accused person responsible fo r having carnal knowledge (sic) with PW 4 a g irl o f 5 years. I subsequently convict him as charged." The High Court upheld this

decision, so the appellant was dissatisfied as we have already said earlier. Of the four grounds of appeal raised in the memorandum of appeal, the first ground reads thus: - 4 "1. That the High Court erred in law and fa ct to uphold the decision o f the tria l court w ithout considering that the evidence o f the victim (PW 4) was n ot corroborated by any other prosecution witness". Ms. Hellen Chuma, learned State Attorney who represented the respondent, took the view that the above ground of appeal is sufficient to dispose of the matter. We share her view and we will mainly address arguments in relation to the first ground of appeal. We shall address the second and third grounds of appeal only as corollary to the first ground of appeal. The appellant chose to let Ms. Chuma address us first. Ms. Chuma was in support of the appeal mainly on the ground that reception of PW4's evidence did not comply with the dictates of section 127 (2) of the Evidence Act, Cap 6, 1967 (TEA) as it stood in 2003 when the said witness testified. That section provided: - "127 (2) Where in any crim inal cause o r m atter a ch ild o f tender age called as a w itness does not, in the opinion o f the court\ understand the nature o f an oath, h is evidence m ay be received though not given upon oath o r affirm ation , if in the opinion o f the court\ which opinion sh a ll be 5 recorded in the proceedings,

he is p o sse sse d o f s u ffic ie n t in te llig e n c e to ju s tify th e re c e p tio n o f h is e vid e n ce , a n d u n d e rsta n d s th e d u ty o f sp e a k in g th e tru th ". (Em phasis added). Ms. Chuma's submission on the first ground of appeal was that PW4 being 5 V i years old at the time she entered the witness box, was supposed to be subjected to a voire tf/re examination in terms of section 127 (2) of TEA reproduced above. Referring us to the relevant page in the typed proceedings, she invited us to interrogate whether what transpired justified the learned Resident Magistrate's conclusion that led to the reception of PW4's sworn testimony. The relevant part of the proceedings reads as follows: - "P .W .4 : 5 Z2 years X d by Court - I use to go to school. I study a t Madaba. M y School is Madaba. M y teacher is Taweta. I use to go to church. C o u rt: -W itness is in tellig en t and active. She know s the nature o f an oath. S. and S . " 6 We take "S and S" to stand for "Sworn and States". Ms. Chuma went on to submit that apart from the conclusion that PW4 possessed sufficient intelligence and knew the nature of an oath, which she faulted as wrong because there was no basis for concluding so, it was incumbent upon the learned Resident Magistrate to indicate if he was satisfied that the witness understood the duty of telling the truth. Since according to her,

that finding is not reflected in the proceedings, the learned State Attorney moved us to treat PW4's evidence as that of an unsworn witness, requiring corroboration. She submitted further that PW2 would have corroborated PW4's testimony but her testimony was also fraught with irregularities similar to those of PW4. Nor would the PF3 (Exhibit PI) be of any assistance as it was wrongly tendered by PW1 who was not the author, and it was not read out after admission. On those grounds, she prayed for the appeal to be allowed. The appellant thought he should add a few nails in the coffin of the prosecution's case. He submitted that it is not true that PW4 though a child, could not lie, because, he submitted, often times children lie to their parents that they had been to school while they had not. He also wondered how PW1, not a government official, would have custody of the PF3 and tender it in court. We begin by subjecting to scrutiny, the finding of the learned judge on first appeal. The relevant part of her decision was as follows: - 'The tria l court found the ch ild in tellig en t enough and th at she knew the nature o f an oath.... The m edical report was also in support (sic) to P .W A 's evidence.... I cannot therefore fa u lt the tria l cou rt's decision fo r considering the victim 's evidence and fin d the appellant guilty". At once, we wonder if the learned trial Resident

Magistrate considered the victim's evidence at all. We shall come to that in due course. Presently, we wish to examine Ms. Chuma's argument on how a voire dire examination ought to be conducted as the law stood then. We will demonstrate it by reproducing extensively the Court's illustration made in the case of Mohamed Sainyeye v. Republic, Criminal Appeal No. 57 of 2010 (unreported): - "In a sum m ary form the procedure to ascertain w hether a ch ild o f tender age is com petent to te stify is as follow s:

PROCEDURE TO FIND OUT WHETHER A CHILD

O F TENDER AG E IS COMPETENT TO TESTIFY 8 A . O N O ATH 1. The m agistrate/ Judge questions the ch ild to ascertain. (a) The age o f the child. (b) The religious b e lie f o f the child. (c) W hether the ch ild understands the nature o f oath and its obligations, based upon h is religiou s beliefs.

2. M agistrate m akes a definite finding on these points on the case record, including an indication o f the questions asked and answ ers received.

3. If the court is satisfie d from the investigation that the ch ild understands the nature and obligations o f an oath, the ch ild m ay then be sworn o r affirm ed and allow ed to give evidence on oath.

4. I f the court is not satisfie d that the ch ild o f tender age understands the nature and obligations o f an oath, he w ill n ot allow the ch ild to be sw orn o r affirm ed and w ill note th is on the case record: B . U N SW O R N 9 1. I f the court finds that the ch ild does n ot understand the nature o f an oath, it m ust, before allow ing the ch ild to give evidence, determ ine through questioning the ch ild tw o th in g s: - (a) That the ch ild is possessed o f su fficien t intelligence to ju stify the reception o f the evidence, A N D (b) That the ch ild understands the duty o f speaking the truth. Again, the findings o f each p o in t m ust be recorded on the record. C. IN C A S E TH E C H ILD I S IN C A P A B LE TO M E E T TH E A B O V E TW O P O IN T S (A & B ) Court should indicate on the record and the ch ild should n ot give evidence". In the present case, we do not see how the learned Resident Magistrate got satisfied that PW4 understood the nature of an oath and its obligations, because the fact that the witness said she used to go to church, only tells us of her religious belief, which is direction (b) above. Without compliance with direction (c), the fact that PW4 used to go to church, does not justify the conclusion that she appreciated the nature of an oath. Therefore, the oath was wrongly administered by the learned Resident Magistrate before recording of

PW4's evidence, as correctly submitted by Ms. Chuma. 10 Ms. Chuma invited us to treat PW4's evidence as unsworn. We would have gone along with the learned State Attorney had the proceedings shown that she understood the duty of telling the truth as required by the second part of the illustration, but we are afraid there is no such indication. It is therefore our conclusion that PW4 was an incompetent witness and her evidence had no value; same as it was concluded in the case of Mohamed Sainyeye (supra). It was also submitted by Ms. Chuma that PW4's evidence needed corroboration. With due respect, we do not think that is correct because, having disqualified her as incompetent, no corroboration would resurrect her status. However, we are aware that in some circumstances, rape may be proved without evidence of a victim. See our decisions in Leonard Joseph @ Nyanda v. Republic, Criminal Appeal No. 186 of 2017 cited I another case of Shaban Said Likubu v. Republic, Criminal Appeal No. 288 of 2020 (both unreported). That becomes possible where there is evidence, say medical evidence, from other witnesses. Is there such evidence in this case? There is none, because the medical doctor who attended PW4 was not called to testify. Incidentally, the appellant raised this fact in the second ground of appeal. As for the li PF3, as submitted by Ms. Chuma, it was not read out after

admission. Ms. Chuma invited us to expunge the PF3 and we do. If the medical doctor who prepared the PF3 had come forward to testify on its contents, that evidence would have been considered. See our decision in Chrizant John v. Republic Criminal Appeal No.313 of 2015 (unreported). But as we have said, that is not the case here. We had promised to deliberate on whether indeed the learned Resident Magistrate considered the prosecution evidence. He did not. Although this is no longer decisive now, we feel obliged to point out that the court appears to have convicted the appellant because his alleged impotence was not proved. With respect, it is settled law that an accused cannot be convicted on the weakness of his defence. In Sostenes Myazagiro @ Nyarushashi V. Republic, Criminal Appeal No. 276 of 2014 the Court held: - " I t is the prin ciple o f the law that, the burden o f p ro o f lie s on the prosecution and the accused bears no duty to prove h is innocence". Had the learned Resident Magistrate approached the defence case from the point of view that it only needed to raise a reasonable doubt, the conclusion might have been different. To the contrary, even the framing of issues were designed to require the appellant prove his allegation of impotence and alibi. All said, we find merit in the first, second and third grounds of appeal. Consequently, we allow the appeal, quash the conviction and set aside the sentence. The appellant should be released forthwith unless held for some other lawful cause. DATED at IRINGA this 23rd day of March, 2022. S. A. LILA

JUSTICE OF APPEAL I. P. KITUSI

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2022 in the presence of appellant in person and Ms. Magreth Mahundi, learned State Attorney for the respondent/Republic is hereby certified as a true copy