EMMANUEL THOMAS SALONGA

E HIGH COURT of THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY)

AT ARUSHA CRIMINAL APPEAL NO. 5622 OF 2024 (C/F Arusha District Court, Criminal Case No. 38 of 2023)

BETWEEN EMMANUEL THOMAS SALONGA.................................................APPELLANT

VERSUS THE REPUBLIC............................................................................. RESPONDENT

JUDGMENT 4/09/2024 & 20/09/2024 MWENDA, J.: The Appellant herein (Emmanuel Thomas Salonga), is challenging the conviction and sentence of life imprisonment imposed by the District Court of Arusha at Arusha (the trial court) for the offence of unnatural offence C/S 154 (1) (a) and (2) of the Penal Code, [Cap 16 R.E 2022], The brief factual background to the matter is that before the trial court, the prosecution alleged that on the fateful date, PW1 (Swalehe Nurudin Rajabu), a child of 14 years old went to appellant's house with the appellant's son one Samson. When they reached thereat, the appellant sent his son (Samson) to the shop. Being left behind, the appellant took the victim inside the house where he stripped him naked, applied jelly on 11 p hlS anus and inserted his mate organ. After finishing he warned the victim not to tell anyone or else he would be punished. According to the prosecution, the said act was repeated on 19th January 2023 after the appellant had again, sent his son to the shop. On 25/1/23 the victim decided to reveal the secret to his father. This followed the discovery of the victim's irregular school attendance after his father's had inquired on the victim's academic progress. That incident was then reported at the police station where the PF3 was issued. The victim was conveyed to the Hospital for examination. Afterwards, the appellant was arrested and

arraigned before the court. In fending his case, the appellant raised the defence of alibi. In that defence he alleged that from 11/1/2023 up to 25/01/2023 he was in Karatu painting a house at Rhotia area. On top of that he also tendered bus tickets dated/issued on 11/01/2023 and 25/01/2023. The same were admitted and marked exhibit DI collectively. Based on the evidence presented form both sides, the trial court accorded weight to the prosecution's evidence hence it proceeded to convict the appellant and sentenced him accordingly. 2 | P a g e ggneved by the trial court's findings, the appellant preferred a five (5) grounds petition of appeal as follows:- 1- That the Trial Court erred both in law and in fact by convicting the Appellant while he successfully raised the defence of alibi which was well supported by the prosecution side.

2. That the trial court erred both in law and in fact by convicting the appellant while he was not properly identified as the person who did commit the said offence.

3. That, the trial Court erred both in law and fact by convicting the appellant based on the highly contradictory evidence by the prosecution side during trial.

4. That, the trial court erred both in law and fact by convicting the appellant basing on the sole testimony of the victim which was not corroborated.

5. That, the Trial Court erred both in law and fact by convicting the appellant while the prosecution side failed to prove its case beyond reasonable doubt. When the matter was called on for hearing, the Appellant was ably represented by Mr. Fortunatus Muhalila and George Mrosso, learned counsels, whilst Ms Eunice Makala, learned State Attorney appeared for 3 | the Republic. ThP h hearing of »-k sired tho e Appeal proceeded orally and both sides er submissions. Th e same shall be considered by the court in the aUSe of d«ermining the fat. , Iate of this appeal. Again, in determining the fate of this appeal th ' ne court is going to delve in the 1st ground of appeal which if found merits d, can dispose this appeal. 9 ound of appeal, the appellant complained that the trial court 0 consider the defence of alibi, which was raised successful without jection. Submitting in that regard, Mr. Muhahila had it that in his defence the appellant alleged that on the alleged date of the incident he was not in Arusha City as he was in Karatu from 11/1/2023 to 25/1/2023. According to him, his notice of alibi, which was accompanied with the bus tickets from Arusha to Karatu and back to Arusha was issued in alignment to the provisions of Section 194(4) of the Criminal Procedure Act, [Cap 20 R.E 2022].The learned counsel submitted that the appellant's evidence was corroborated with that of DW2 and

DW3 who testified that on from 11 to 25 January, 2023 the appellant was not in Arusha. He was of the view that such evidence was further supported by prosecution witness particularly (PW3). The learned counsel went on to submit that the Hon. Trial Magistrate erred to enter the shoes of prosecution by faulting the tendered bus tickets. He believed that was a wrong approach as the said 4 | dout* ought to be Workg. 'J* KCQ URar k stance the lea °V prosecutior1, In support of th'S niDCf_ nsel Clte(1 the case of MAUL1D ABDALLAH JUMA V. DIRECTOR OF PUBLIC dd WSECUTION, Criminal Appeal no. 28 of 2017. (HC. Zanzibar) unreported. se Ms. Makala stated that the evidence of alibi was h and/but the court believed that the same was weaker than the P ecutions evidence. Further to that, she believed that even the evidence of DW3 was weaker as the trial magistrate thought it was the landlord who was supposed to be called and testify to that effect and not a ten-cell leader. It was her further belief that DW3 did not support the defence of alibi. That marks the end of the submissions from both sides regarding the defence of alibi as appearing in the 1st ground of appeal. From the record, I have revisited the proceeding of the trial court and noted that on 4/4/2023 the appellant filed the notice of his intention to rely on the defence of alibi. The same was raised as per Section 194(4) of the

CPA. For ease of reference, I found it apposite to reproduce the said section which provides that: "Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution notice 5|P of h's intention to Such defence before the hearing of the case." m essence the above legal reQ • MUirement was meant to serve two purposes. One is to ensure the Principle of fair trial by not taking the prosecution V urprise while relying on the same are observed. In the case of JOHN MADATA v . republic, Criminal Appeal No. 453 of 20i7 eported) for example, this Court observed as follows, that: It is common knowledge that although the accused has no duty to prove his innocence, he is expected to make the theme of his defence known so as to make the trial fair even to the prosecution, and we think this theme may be deduced from the fine of cross examinations or notices such as when the said accused intends to raise a defence of alibi." See also the case of MOHAMED KATINDI V. REPUBLIC [1986] T.L.R. 134 and HATIBU GHANDHI AND 8 OTHERS V. REPUBLIC [1996] T.L.R.

12. Samson vs. Republic [1990] T.L.R. 39 Two, the notice and particulars of alibi are also meant to assist the prosecution to investigate them and come up with its findings in contrary, if any. 6|P In this rnQtter t-u er'the appellant havin ought to have ensured the sa the prosecution the appellants bus ti 'nVeStlgated'Further to that, after ucKets were t h names, datpc af • ere^’ which bear his es of ,ssue and the ( teen any doubt the r 6° tranSPOrt “mpany'had , U^'on °^9ht to have prayed for adjournment to enable them mn investigation. The above were not done or raised which led to thP an™-. ■ Ission toe said tickets as exhibits DI Collectively, med counsel for the appellant put it, without objection. In nal jurisprudence, the burden of proof lies on the prosecution and its standard is beyond reasonable doubt. Further to that the principle also has it that accused need not to prove his or her innocence rather to raise some reasonable doubt. See the case of JOSEPH JOHN MAKUNE VS REPUBLIC [1986] TLR 44. In this matter, since the appellant raised the defence of alibi by filing the notice in accordance with the law and later, tendered his bus tickets which were admitted as exhibits DI Collectively without any objection, that by itself entails the prosecution believed on such defence as being true, thus it was wrong for the trial court to cast doubt on it by sitting on the

chair hPcause before doing as such, the prosecution ought to have tendered strong evidence to contrary- As it was submitted herein above, the 7 | Page 3PPetawason|yreq.redto *• that the appe|lant ma ““ ‘ °° ** naged to raise reasonable doubt which in Before I pen down, I 3m aware that in sexual offences, the best evidence C0TOS fTOm the vMm; however, before concluding as such, the court must also consider other pieces of evidence particularly including the from accused persons. In this case, as pointed above, the ppellant defence of alibi was raised and pleaded successful, thus, this court finds merit on the 1st ground of appeal. As the 1st ground of appeal managed to dispose this appeal, I found no need to determine the remaining grounds. This Appeal has merit, and it is hereby allowed in its entirety. Therefore, the conviction entered against the Appellant is hereby quashed and the sentence set aside. It is also ordered that the Appellant be set at liberty unless he is to be detained for some other lawful cause. It is so ordered. DATED at DELIVERED at Arusha this 20th day of September, 2024.