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IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA DC CRIMINAL APPEAL No 3853 OF 2023 (Arising from Criminal Case No 35 of2023 before the District Court ofSingida) EX 3105: SGT DAVID OTIGA SANGANA.................. APPELLANT VERSUS REPUBLIC........................................................... RESPONDENT JUDGMENT Date of last Order: 16/05/2024 Date of the Judgment: 05/06/2024 LONGOPA, J.: The appellant one, Ex 3105 SGT DAVID OTIGA SANGANA, convicted and sentenced to life imprisonment for unnatural offence contrary to section 154(1) and (2) of the Penal Code, Cap 16 R.E. 2022 committed against a boy aged 9 years old. It was alleged that between October 2021 to 18th March 2023 at Utemini Police Line area, Ipende Ward, Mungumaji Division within the District and Region of Singida, the appellant did have carnal knowledge of the boy against the order of nature. 1 I Page The prosecution rallied a total of eight (8) witnesses and two (2) exhibits while the appellant had called a single witness, the appellant personally. Upon finalization of the hearing of the case, the trial court convicted the accused person and sentenced him to life imprisonment. It is this decision of the District Court of Singida that made appellant aggrieved of the whole judgment, both conviction, and sentence on the following grounds: 7. That, the trial court erred in law and fact by convict the appellant while the respondent herein failed to prove the case beyond reasonable doubt. 2. That the appellant was convicted and sentenced basing on defective charge. 3. That, the trial court erred in law and fact to convict and sentence the appellant by basing on the weakest and contradictory evidence adduced by the respondent's witnesses. 4. That, the trial court erred in law and fact by failing to critically evaluate and analyse evidence adduced by the respondent's witnesses thus convicted and sentenced the appellant. 5. That, the trial court erred in law for failure to comply with section 210(l)(a) of the Criminal Procedure Act, Cap 20R.E. 2022. 2 | Page 6. That, the conviction and sentence the appellant was founded on proceedings tainted with irregularities. 7. That, the trial court erred in law and in fact by failure to analyse the evidence of the appellant. The appeal came for oral submission on 16/09/2024, the appellant enjoyed legal services of Mr. Isaya Nchimbi, advocate and Ms. Sarah Makonda, advocate while the respondent was represented by Mr. Yusuph Mapesa, learned State Attorney. Having heard the parties, I have dispassionately thoroughly reviewed the records available considering the grounds of appeal. These grounds of appeal are addressed jointly where they are closely related. The first and third grounds of appeal have basis on contradiction of evidence and failure to prove the case on the required standard. Pertinent issues on these grounds are: First, that material witnesses were not called to testify before the trial court especially victim's mother and sibling. Second, the PW1 testimony was received without oath or affirmation while the trial court had so determined. On whether a spouse is compellable witness in a case involving the spouse has been subject of analysis by the superior court of the land. In the case of Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 3| Page of 2020) [2024] TZCA 95 (23 February 2024) (TANZLII), at pages 15-16, the court noted that: To the best of our understanding, the section is as dear as possibie that does not require an expert legai interpretation to grasp its meaning. Generally, the section provides that a spouse is a competent but not compellable witness to give evidence on behalf of the prosecution against his or her spouse. Moreover, in terms of subsection 3 above, the evidence of such spouse would be inadmissible if it is received by the trial court without the spouse having been made aware of the provision of subsection (1) for him or her to decide to testify against his or her spouse. Such choice must be recorded in the proceedings prior to the testimony. Simply, the spouse seems to be not compellable witness in cases that the other spouse is the accused person. Given the evidence on record, PW 5 stated that the victim's mother was not willing to proceed with the case against the appellant as she did not want the appellant to be terminated from his employment. This was also the testimony of PW 3 that victim's mother did not want to pursue the criminal case against her husband. Evidence of PW 1 was to the same effect that victim's mother prevented him from telling the truth that he was sexually molested against the order of nature by the appellant. PW 1 reiterated that it is his mother who 4 | Pa ge couched the victim/PW 1 to name one Hillary Shaban as the assailant. In the circumstances, the prosecution's decision not to call victim's mother as a witness cannot be challenged to be failure to bring material witness as the law does not compel the spouse to testify against her/his spouse and that victim's mother has demonstrated vividly lack of interest to testify against her husband. Furthermore, the victim's sibling was neither an eyewitness nor mentioned anywhere to have seen any of the incidents. It is incorrect for the appellant to characterise her as material witness. Evidence of PW 1 is challenged on the fact that it was made without oath or affirmation. It is argued that the court determined that the witness could make rational answers thus should testify on oath. However, the record does not indicate that PW 1 testified on oath or affirmation. It is settled law that a child of tender age may testify without oath or affirmation and that evidence shall be valid if prior to adducing such evidence the witness promised to tell the truth and not to tell lies. In the case of Emmanuel Paulo @ Amasi vs Republic (Criminal Appeal No. 262 of 2020) [2023] TZCA 17657 (26 September 2023) (TANZLII), at pages 13-14, the Court of Appeal stated that: /Is we said above, the requirement is said to have been observed, if the witness is caused to teii the truth and the 5 | P a ge promise recorded. In Atty Ngozi v. R., Criminal Appeal No. 216 of 2018 (unreported), where just as in this case, a child of tender age gave testimony on affirmation without the trial court satisfying itself on her competence. The Court, while acknowledging that the conditions for such a child to testify on affirmation was not met, it treated the undertaking to tell the truth which is ordinarily an element of an oath or affirmation as promise to tell the truth under section 127(2) and held as follows: 'Tn this regard, in terms of section 198(1) of the CPA, section 6 of the Oaths and Statutory Declaration Act and Oaths and Affirmation Rules GNs 127 and 132 of1967, wherever a child offender age is examined upon oath or affirmation, that witness undertakes to speak nothing but the truth which amount to a promise to speak the truth and not to tell lies as envisaged under section 127(2) of the Evidence Act. Thus, in the case at hand, since the victim, a child offender age of 13 years was examined on affirmation, she promised to speak the truth and not to tell Ues and her account has evidential value." Guided by the above authority, therefore, we have no hesitation to hold, as we hereby do that, since PW5 undertook, as she was being examined under the purported affirmation that, she would tell the truth and 6 | Page nothing but the truth, that by itself amounted to a promise to tell the truth and not lies within the meaning of section 127 of the Evidence Act. The instant appeal falls squarely within the ambits of this principle enumerated in the above cited case. PW 1 was a child of 10 years at the time of testifying before the court of law. PW 1 promised to tell the truth only before adducing the evidence in Court. The evidence of PW 1 was unsworn/ unaffirmed but there was a lucid promise to that effect. In Sixmund Angelus Masoud vs Republic (Criminal Appeal No. 85 of 2021) [2023] TZCA 17601 (5 September 2023) (TANZLII), at pages 7-8, the Court of Appeal reiterated that: We are alive to the restated position from our decisions in the cases of Godfrey Wilson (supra) and John Mkorongo Janies (supra) that, to reach the point of a child witness promising to tell the truth and not to tell Ues requires a prior process of putting simple questions to the child witness depending on the circumstances of each case. Not without derogating from the same, we are, however of the firm view that the process is not for every case where evidence is not given on oath having regard to our recent decision in Mathayo Laurence William 7 | Page Mollel v. Republic, Criminal Appeal No. 53 of 2020 (unreported}. The Court held that: "We respectfully think that if a child of tender age is not to testify on oath or affirmation, a preliminary test on whether he knew and understands the meaning of oath may be dispensed with... We understand the legislature used the words "promise to tell the truth to the court and not to tell lies." We think tautology is evident in the phrase, for, in our view, "to tell the truth"simply means "not to tell lies."So, a person who promises to tell the truth is in effect promising not to tell lies. The tautology in the subsection is, in our opinion, a drafting inadvertency [Emphasis added]. On contradiction, the question is whether the discrepancy is minor or goes to the root of the case. The contradictions are couched as follows: First, whether the victim's mother travelled to Mbeya or Songea as per evidence of PW 1 and PW 2. Second, whether PW 1 was molested by the appellant, Hillary Shaban, or the other fellow child. Third, whether the victim was molested once as per testimony of PW 2 or thrice as per PW 1's testimony. The record is emphatically clear that the aspect of whether victim's mother travelled to Mbeya or Songea does not hold any contradiction. The evidence is simply to the effect that victim's mother was not at home when 8 | Page the appellant committed the unnatural offence against the victim. That is what evidence of PW 1 and PW 2 indicate. It would have been material if the person who travelled was the appellant as that would categorically mean that defence of alibi was being fronted. But that is not the case as the counsel for appellant wished the court to believe that it was material contradiction. Regarding the issue as to who was the assailant, there is no contradiction as well. PW 1 in examination in chief and cross examination consistently stated that it is the appellant who is his biological father who had known him carnally against the order of nature. It was PW Ts testimony that the victim's mother tried to coach the victim to lie that assailant was one Hillary Shaban. That is what PW 1 stated during the cross examination having re-affirmed that it is the appellant who molested the victim three time from 2021 to March 2023. In the case of Priva Constantine Shirima vs Republic (Criminal Appeal No. 437 of 2020) [2024] TZCA 237 (22 March 2024) (TANZLII), at page 12, the Court of Appeal stated that: The law on this point is clear that the court will only take into consideration contradiction which are not minor which do not go to the root of the matter. The Court has said so in various cases, amongst others, Mohamed Said Matuia 9 | Page k Republic [1995] TLR 3, Issa Hassan v. Republic, Criminal Appeal No. 129 of 2017 [unreported] and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of2007[2003] TZCA 17 (30 May, 2008) TanzLII. In the latter case, the Court state that: "In evaluating discrepancies, contradictions, and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter." It is settled view of this court that record indicates that there was no contradiction that would have gone to the root of the case. The evidence on record reveals a consistent story on what befell the victim. In the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 (21 February 2024) (TANZLII), at pages 29-30, the Court of Appeal reiterated that: It is trite law that, it is only contradictions or inconsistencies which affect the central story which are to be considered to be material and adverse to the party in whose favour the evidence is given. Such contradictions or inconsistencies should not be those that are of an 10 | P a g e insignificant nature. See- Mukami w/o Wankyo v. Republic [1990] T.L.R. 46, Shamari Athuman @ Mwanja & Another v. Republic, Criminal Appeal No. 650 of 2021 and Dickson Elia Nsamba Shapwata & Another k. Republic, Criminal Appeal No. 92 of 2007 (both unreported). As I have demonstrated in foregoing analysis there was nothing to be categorized as material discrepancy to warrant any consideration that the evidence of prosecution was materially contradictory. I am of the view that the prosecution's evidence is consistent and sufficient to tell a story of the incidents regarding the crime committed. Proof of the case to the required standard is another ground preferred by the appellant in this case. It was submitted that because of existing contradictions persisted in the evidence there was no proof of the case to the required standard. The evidence on record reveals that the victim child was penetrated on his anus. It is also on evidence that it is the appellant who sexually molested the victim against the order of nature. I am aware that the burden of proof on criminal cases lies with the prosecution and the standard of proof applicable is that of proof beyond reasonable doubts. In Matibya N g'habi vs Republic (Criminal Appeal 11 I Page No. 651 of 2021) [2024] TZCA 34 (14 February 2024) (TANZLII), at pages 8-9, the Court stated that: At the outset, it is instructive to state that, this being a criminai case, the burden iies on the prosecution to establish the guilt of appellant beyond reasonable doubt. In Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. For instance, in the case of Magendo Pau! & Another k Republic [1993] T.L.R. 219 the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. "It is noteworthy that, the duty and standard of the prosecution to prove the case beyond reasonable doubt is universal in all criminal trials and the duty never shifts to the accused. The available evidence on record is sufficient to establish the guilty of the appellant. The evidence of PW 1 is to the effect that appellant is the one who sexually molested the victim against the order of nature. He testified the ordeal how the appellant inserted his penis in the victim's 12 | P a g e anus. This evidence is corroborated by evidence of PW 3 and PW 4 who stated to have seen the victim's clothes being dirty because he could not control feaces because of being sexually abused against the order of nature. PW 5 medical doctor who examined the victim testified that he found the victim's anus penetrated. According to PW 5 and Exhibit PE 1, the penetration was from big blunt object thus it was not possible that the victim was penetrated by a fellow child. The trial court had no reasons at all to disbelieve the testimony of PW 5 which corroborated sufficiently the evidence of PW 1 who stated that his anus was penetrated by the appellant. The evidence of the prosecution establishes all important ingredients of the offence. The ingredients of the unnatural offence were reiterated in the case of Sospeter John vs Republic (Criminal Appeal 237 of 2020) [2021] TZCA 329 (28 July 2021) (TANZLII), pp.17 -18, the Court of Appeal stated that: (4te wish to start with unnatural offence, the appellant was charged with two counts of unnatural offence contrary to section 154 (1) (a) of the Penal Code. For such an offence to stand, there ought to be proof of penetration, however slight into the anus, with or without consent (see the case of Joels/o Ngai/o v, The Republic, Criminal Appeal No. 344 of 2017 (unreported)). PW6 corroborated that 13 | P a g e evidence because after he had examined the girls1 anuses, he found bruises and blood. He thus concluded that there was forceful penetration by sharp or blunt object in the girls' anuses. There is also on record the evidence of PW7 who established the girls' age to be below 10 years. In totality, we are satisfied that the evidence brought before the trial court was enough to prove the essential ingredients of unnatural offence contrary to section 154 (1) (a) of the Penal Code. At this juncture, it can be concluded that the 1st and 3rd grounds of appeal are devoid of merits. I shall proceed to dismiss both of them for being unmerited. The second set of grounds relating to failure to analyse the evidence of the appellant and that of defence. It was submitted by the appellant that evidence was not properly analysed. As such evidence of the defence was not accommodated. I have perused the evidence on record and the judgment contain analysis of the evidence of both the prosecution and defence. In fact, the defence evidence did not manage to create reasonable doubts on the prosecution's testimonies. 14 | P a g e The evidence of the prosecution especially of PW 1 and PW 5 established important ingredients of the offence. In the case of Mohamed Kharibu vs Republic (Criminal Appeal No. 178 of 2022) [2024] TZCA 319 (7 May 2024) (TANZLII), at pages 10-11, the Court of Appeal reiterated the importance of the evidence of the victim in establishing sexual offences. It emphasized on the best evidence in sexual related cases to be that of the victim. The evidence of PW 1 was categorically clear on two aspects: first, the victim was penetrated by penis against the order of nature three times. Second, the person responsible for sexually molesting the appellant against the order of nature is the appellant who is a biological father of the victim. Indeed, this evidence was corroborated by PW 5 medical doctor who examined the victim and filled in PF 3 that was tendered, admitted, and marked as Exhibit PE 1. The evidence of PW 1 and PW 5 taken together with that of PW 2, PW 3, PW 6, PW 7 and PW 8 was so watertight to warrant conviction and sentence thereto. The defence evidence did not manage to impair this consistent, and uncontroverted. PW 1 being a victim revealed the manner in which he experienced the ordeal of being sexually molested against the order of nature. The most painstaking aspect is that the victim consistently and coherently named the appellant as the assailant. 15 | P a g e I am of the settled view that the fourth and seventh grounds of appeal lack merits. These two grounds are hereby dismissed for being destitute of merits. The next ground relates to the proceedings of this case being termed as marred with irregularities. This is the sixth ground of appeal. There are only two aspects necessary on this ground. First, that amendment of charge was improper for there was a first order of amendment which was not complied with. The Court ordered another amendment which the appellant complain to have caused irregularities and impaired the rights of the appellant. Second is the reliance and acceptance of evidence of PW 1 as the same was without oath. In the instant case there was change/amendment of charge within the requirements of section 234 of the Criminal Procedure Act, Cap 20 R.E. 2019. This was through the prayer to amend the charge and order of the court that permitted amended charge to be substituted, read over, and explained to the accused person. This was in line with the provisions of section 234 of the Criminal Procedure Act, Cap 20 R.E. 2019. It is the duty of the prosecution to amend charge at any stage has been elucidated in the following words of the Court of Appeal in Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) (TANZLII), at pages 4-5, the Court noted that: Moreover, it is a duty of the prosecution to produce aii necessary evidence to every allegation made therein. In the case of Abdel Maslkltl vs. Republic, Criminal Appeal No. 24 of 2015 (unreported) at page 8 thereof, this Court insisted that, it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates or month, then the charge must be amended in terms of section 234 of the CPA. If this is not done as in this appeal, the preferred charge will remain unproved, and the accused shall be entitled to an acquittal. Short of that a failure ofjustice will occur. It should not be overemphasized that the prosecution being the initiators of the charge have been empowered by the law to amend the charge at any stage of the trial to address the anomaly on variance between charge and evidence under section 234 of the Criminal Procedure Act, Cap 20 R.E. 2019. Failure to seize such opportunity to amend the charge before the conclusion of the case has only a single effect of failure to prove the charge thus the accused is entitled to acquittal. The substituted charge was correct and within the bounds of law the appellant was afforded all opportunity to understand the contents of the 17 | P a g e charge and availed opportunity to respond thereto. First, the substituted charge was read over and explained to the appellant. Second, the appellant was called upon to enter plea thereto. Third, the appellant denied charge thus a plea of not guilty to was entered. In the circumstances of the case, there was no prejudice whatsoever on part of the appellant. The appellant was afforded all rights as per the requirements of the Criminal Procedure Act, Cap 20 R.E. 2022. This limb therefore is unwarranted, and it deserves dismissal. Regarding reliance on the testimony of the PW 1 is the second limb of the alleged irregularities. The testimony of PW 1 revealed that: First, the victim was penetrated in his anus three times. Second, it is the appellant who is a biological father of the victim and thus well known to the victim. Third, on the first incident date the victim raised alarm but was silenced through threats from the appellant to be killed by gun. Fourth, despite victim's mother to lure PW 1 not to mention the appellant, PW 1 consistently named the appellant as the assailant no others. In Anthony Tito vs Republic (Criminal Appeal No. 605 of 2021) [2024] TZCA 45 (16 February 2024) (TANZLII), the Court of Appeal reiterated that: Indeed, as observed by the two courts below, the best evidence In sexual offences Is that of the victim. Such 18 | P a g e evidence of the victim aione may be acted upon without corroboration once the court is satisfied that the same is credible. This is in terms of s. 127(6) of the Evidence Act, Chapter 6 of the Revised Laws. It is lucid that irregularities under the two heads above is merely an afterthought that is not supported by any cogent evidence on record. It is my finding that the 6th ground of appeal lacks tangible merits. It deserves to be dismissed for lack of merits and I hereby overrule that ground. It stands dismissed. In all the above analysed ground it is findings of this Court that there was sufficient evidence on record to establish that appellant committed an offence of unnatural offence contrary to section 154(1) and (2) of the Penal Code, Cap 16 R.E. 2022 as charged. The conviction and sentence on basis of available evidence was correct and supported. The prosecution essentially managed in the circumstances to prove to the required standard that the victim's anus was penetrated, and it was the appellant who penetrated the victim against the order of nature. The last aspect for consideration is failure to comply with the requirements of section 210(1) (a) of the Criminal Procedure Act, Cap 20 R.E. 2022. Essentially, the provision of the law relates to the recording of testimonies of witnesses before the Court of law. It states that: 19 | P a g e 21O.-(l) In trials, other than trials under section 213, by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner- (a) the evidence of each witness shaii be taken down in writing in the language of the court by the magistrate or in his presence and hearing and under his personal direction and superintendence and shaii be signed by him and shall form part of the record. The law provides for mandatory requirement for the trial magistrate to sign the recorded evidence of each witness. The use of phrase "shall be signed by him" signifies a mandatory requirement for the appending signature on testimonies of the witnesses. In the case of Patrick William Magubo vs Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 (18 July 2022) (TANZLII), at page 12, the Court of Appeal stated that: By the use of the word 'shall, the above provision implies that, compliance with section 101 above is mandatory except where there is evidence of existence of extraordinary circumstances making it impracticable for the parties to refer their dispute to the Board. 20 | P a g e It is on record that the criminal case against the appellant was heard by two trial magistrates. The first trial magistrate U.S. Swallo, Principal Resident Magistrate (PRM) recorded the evidence of PW 1 to PW 4. On the other hand, second trial Magistrate F.E. Luvinga, Senior Resident Magistrate recorded the evidence of PW 5, PW 6, PW 8, and DW 1. On perusal of the record, it is noted that the cross examination and re-examination of PW 1, PW 2, PW 3, and PW 4 was recorded without appending a signature of the trial magistrate. I am aware that not all errors to the proceedings vitiates the proceedings except where such errors or mistake has occasioned miscarriage of justice in light of the provision of section 388 of the Criminal Procedure Act, Cap 20 R.E. 2022. The law provides as follows: 388. Subject to the provisions of section 387, no finding sentence or order made or passed by a court of competent jurisdiction shaii be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any inquiry or other proceedings under this Act; save that where on appeal or revision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure ofjustice, the court may 21 | P a g e order a retrial or make such other order as it may consider just and equitable. According to the provision of section 388 of the Criminal Procedure Act, it is only the failure that goes to the root of the case which should result into reversal of the decision in appeal or revision. Failure to append signature on evidence of each witness is considered as one of the errors that goes to the root of case. In the case of Yotham Yona vs Republic (Criminal Appeal No. 13 of 2021) [2023] TZCA 17693 (3 October 2023) (TANZLII)/ at page 16, the Court of Appeal stated that: It is therefore obvious that, the said omission amounted to an incurable irregularity which cannot be cured by section 388 of the CPA as suggested by the learned Principal State Attorney In the result, we find that the said omission had vitiated the entire trial court's proceedings and thus, they are a nullity. Consequently, we nullify the trial court's proceedings, quash the judgment and conviction and set aside the sentence meted out against the appellant. What should be the fate of the appeal before this Court in the circumstances of the matter. lam certain that retrial of the case appears to be a more plausible action. The reasons are that the prosecution had 22 I P a g e established their case to the required standard save that technical errors occasioned by the trial magistrate not to append his signature to the proceedings. In the case of Yotham Yona vs Republic (supra), the Court of Appeal reiterated as follows: The guiding principie in answering that issue is stated in the case of Fa tehali Manji v. Republic [1966] EA 343 in which the erstwhile East African Court of Appeal observed at page 344, that: "...In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction Is vitiated by a mistake of the trial court for which the prosecution is not to blame. It does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person, "(emphasis added). 23 | P a g e Having observed that it was omission of the trial court for failure to append a signature by the trial magistrate thus the same has not been occasioned by failure of the prosecution to establish the case, I am prepared to rule that the only appropriate remedy shall be to order retrial. It is the settled opinion of this Court that the errors not being attributed to the prosecution, it is in the interest of justice for the matter to be heard afresh before the District Court. I hereby quash the proceedings of the District Court and set aside both conviction and sentence against the appellant. The case is remitted to the District Court of Singida for retrial. It is so ordered. DATED at DODOMA this 5th day of June 2024. E.E. LONGOPA JUDGE 05/06/2024 24 | P a g e