20100819 TZCA Arusha

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IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA (CORAM.• MSOFFE, J.A., KILEO, J.A.I And ORIYO, J.A.) CRIMINAL APPEAL NO. 304 OF 2007 I FADHILI RAMADHANI @ TEMBO ...................................................APPELLANT

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VERSUS THE REPUBLIC ...... ■■■ ••••••••••• ■■■■■ •••••• ■ •••• J■• ■ ■ ■ ••••• ■ •••••••• ■■ •• ■ ••• I ■• RES PON DENT I •• I ••• I (Appeal from the decision of the High Court of Tanzania at Arusha) (Bwana, J.) I th dated the 9 d"y of June, 2007 •I m HC Criminal Appeal No. 132 of 2006

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JUDGMENT OF THE COURT 18 & 20 August, 2010 KILEO, J.A.: I I This second appeal emanates from the decision of the District Court of Arusha in Criminal Case No. 324 hf 2005 in which the appellant Fadhili Ramadhani @ Tembo was convicted Ion two counts. On the first count he was charged with and convicted of ~ape contrary to sections 130 and 131 I of the Penal Code. He was sentdnced ' to 30 years imprisonment. . In addition it was ordered that he suffer (9) strokes of the cane. On the ! second count he was charged with and convicted of assault causing actual I bodily harm. His conviction on this count earned him a term of five years . 1 1 j imprisonment. He appealed to the High Court but he was unsuccessful, hence this second appeal. I At the hearing of the appeal the /,appellant appeared and argued his I ! appeal in person. The Respondent Republic was represented by Mr. Juma I I Ramadhani, learned Senior State Attordey. I I The facts upon which the appenant was convicted show that while i I the victim of the offence (PW3, Jackl1ine d/o Peter) was returning home I I from a saloon at around 19.30 hrs orlI 19/3/2005 she was waylaid by the I appellant who not only raped her bu~ stabbed her with a knife as well. I I Just after the appellant had finished raeing the girl her father and her uncle I (PW1 and PW2 respectively) who act~d in response to her cries arrived at I the scene. PW1 witnessed the appejlant strangling PW3. The appellant I I ran away upon the arrival of PW1 an~ PW2. The matter was reported to I the Police and the victim was taken to) hospital.

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I I I The appellant's memorandum of appeal contains six grounds. In his I 1 submission before us he did not me ntion ground no. three therefore we I 2 take it as abandoned. The gist of comp(aint in the remaining grounds can be summarized as follows: - (1) That both High Court add the trial court erred in i failing to appreciate the faft that the case against him was framed. (2) That the High Court and tl(ial court erred in arriving at ; a conviction in the abse~ce of the evidence of the police investigating officer; and other vital witnesses. ' (3) That the PFJ of the victim, was wrongly acted upon as the appellant was not informed of his right to have the doctor who examined the victim to be summoned for cross-examination. ( 4) That the High Court arc/ the trial court erred in relying on contradictory ~vidence. ' Addressing us, the appellant urged us to find that the case against him was framed up. Referring us to )the PF3 tendered in court as Exhibit Pl he wondered how the victim cou'I~ have stayed for three days without going to hospital. Apparently, the/ PF3 was issued by the Police on ' 20/3/2005 but the examining medi~al officer recorded his findings on r I 22/3/2005. The appellant also insisted that reliance by the lower courts on I 3 I I i the PF3 was not proper as he was not informed of his right to have the I I I doctor who examined the victim appear in1 court for cross-examination. I I I Mr. Juma Ramadhani supported :' both conviction and sentences imposed. !

I I I Regarding the appellant's complaint that both the High Court and the

I I I trial court erred to have arrived at a :conviction in the absence of the

I I I testimony of the investigating officer an~ other vital witnesses, the learned I I Senior State Attorney argued that in terms of section 143 of the Evidence Act, the law places no requirement for any particular number of witnesses I in the proof of a certain fact. The said section stipulates: - 143. Subject to the provisions of any other written I' I law, no particular nuJnber of witnesses shall I I in any case be requi~ed for the proof of any ! fact.

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I I I The learned Senior State Attor~ey referred us to Shehe Hamza v

I I I Republic Criminal Appeal No. 114 of/2004 (unreported). In that case this I 4 Court in the discussion of the above provision made reference to Yohanis Msigwa v Republic, (1990) TLR 148 which stated: "(i) As provided under section 143 of the Evidence Act 1967, no particular number of witnesses is required for the proof of any fact. What is important is the witness's opportunity to see what he/she claimed to have seen, and his/her credibility'~ We need not linger on this point. The decision of a trial court or a first appellate court cannot be faulted merely because some witnesses were left out. What is important as stated in the Yohanis Msigwa case supra, is the witness's opportunity to see what she/he claimed to have seen and his/her credibility. In his address before us the appellant made reference to the entry on the PF3 by the doctor which was dated 22/3/2005. He wondered how PW3 could have stayed for 3 days without being taken to hospital. The learned Senior State Attorney explained however, that the PF3 was dated 20/3/2005 by the Police which was the next day after the incident which occurred on the evening of 19/3/2005. He explained further that the 5 I doctor made his entries after completion of investigation, thus 22/3/2205. I

I I I We agree with the learned Senior State Attorney's response. The date ' I I· written on the PF3 by the police shows tha:t the victim was sent to hospital ' on 20/3/2005. The mere fact that the doctor recorded his findings on I i I, I 22/3/2005 does not mean that the victim ~ent to hospital on this day. It is I not uncommon for medical investigations /lo take a day or more. A doctor ' I would not be expected to return to the ~olice an incomplete report. The i I appellant's complaint on this aspect therefore lacks merit. I ' I I In ground two of his memorandum of appeal the appellant faults the I I· I I: decision of the lower courts for non-com,'pliance with section 240 (3) of the I I I' Criminal Procedure Act. This provision irequires a trial court to inform an I! I I accused of his right to require the atten~ance, for cross-examination of the i I 1, person who made the report received in,! evidence. Section 240 provides: 1

I I I 240. (1) In any trial befo re a subordinate court, 1 II 11 any document purporting to be a report I' 11 signed by a me,~ical witness upon any I I purely medical br surgical matter shall I! I I be receivable in,l:evidence. 6 (2) The court may p~esume that the signature to any such document is ' genuine and that the,i person signing the same held the office or had the qualifications which he possessed to hold or to have when he signed it. (3) When a report refer1ted to in this section is received in evide:nce the court may if i it thinks fit, and shall, if so requested by J the accused or his advocate, summon and examine or · make available for cross-examination· the person who • made the report; and the court shall inform the accused of his right to ' require the persor who made the report ' to be summoned /in accordance with the provisions of this subsection. ' Subsection (3) is couched in mandatory terms. Even though the appellant did not object to the produq:ion of the PF3 the trial court was nevertheless obliged to inform the accused of his right to require the attendance of the maker of the PF3 f9r cross-examination if he so wished. 7 The question that follows is, would the case for the prosecution crumble if the PF3 was expunged from the record? Mr. Ramadhani submitted that there was ample evidence apart from the PF3 which linked the appellant to the crime. We agree

with him. In the first place there is the evidence of the victim which the trial magistrate found to be credible. This is a second appeal. We can only interfere with the findings of fact if we are to find that both courts below completely misapprehended the substance, nature and quality of the evidence resulting in an unfair conviction - See Salum Mhando v Republic [1993] TLR 170. In this case we see no justification for interfering with the findings of fact by the lower courts. Further still, in terms of section 127 (7) of the Evidence Act, a trial court can convict on the evidence of a single witness who is the victim of a sexual offence if the court is satisfied that the victim is telling nothing but the truth. In the present case, the trial magistrate was satisfied with the credibility of PW3. But that was not all. There was the evidence of PW1 and PW2, who though did not catch the appellant inflagrante delicto they however found him in quite compromising circumstances. PW1 saw the appellant strangling the victim. 8 I I . Another complaint raised by the appJllant was the failure by the I ,," I lower courts to take into account contradic~ions in the testimonies of the I I I prosecution witnesses. Mr. Ramadhani in fresponse submitted that there I I were no contradictions. He argued fu~her that even if there were I contradictions they were so minor and coul~ not affect the outcome of the I I I Ii ' case. In elaboration of this point he referr~cl to Shihobe Seni v Republic I, II: I (1992) TLR 330. In this case the Court ~hich was dealing with illiterate I:

I I I witnesses who had contradicted themselve,s on estimates of time held: I I 1'' (iv) in case of illiterate witneises, it is not fair or I I' desirable to tie them down too closely to estimates i of time. On a careful revi~w of the whole of the evidence the discrepanci~s relied upon by the I· I /! defence were apparent rat~er that real.

I I I , I The High Court judge did not find,/ any material contradictions in the I i1, ,, I testimonies of the prosecution witnesse~. In his written submission to the I I' I High Court the appellant claimed that /there were contradictions between I ' I I the testimonies of PW2 and PW3. H~ stated that whereas PW2 claimed J, I /. i' that they succeeded to arrest the appellant on the way from the Police ,, I 9 I : ' I' post, PW3 stated that the appellant threatened to stab her father. She also said that his friends came and they let him go. PW2 is also on record as having stated that the appellant "fight" (sic) when they were trying to arrest him. We have carefully considered the totality of the evidence adduced and we have reached the same conclusion that the High Court reached with regard to inconsistencies in the testimonies of the prosecution witnesses. We find no material contradictions that can affect the findings of the courts below. The appellant also challenged the courts below for their failure to consider his defence. He argued that they should have found that the case against him was a frame up. In his defence at the trial court the appellant claimed that PW1 who was formerly his employer framed him up in order to silence him from claiming for. his unpaid salary. The trial magistrate considered his defence to be an afterthought. The High Court judge affirmed the

finding of the trial court on this aspect. We see no reason to interfere with the findings of the lower courts. We note that the issue of frame up' because of demand for unpaid salary came up for the first time 10 I . i- ! when the appellant was giving his defence./ He did not raise it during I ! I cross-examination of the prosecution witnesses. The trial magistrate I i correctly found that line of defence to have been an afterthought. ' I !I I, In the end result, we find the appeal QY Fadhili Ramadhani @ Tembo i against both conviction and sentence t~ be lacking in merit. We i I accordingly dismiss it. It is accordingly ord~red. i i i DATED at ARUSHA this 19th day of August, 2010. : I '' J. H. MSOFFE

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JUSTICE OF APPEAL i ' E. A. KILBO JUSTICE OF ~PPEAL K. K. ORIYO JUSTICE OF APPEAL ,, ' I certify that this is a true copy of the original. ! I' I I ~ &sJh~ 1, (E. Y. MKWIZU)

DEPUTY REGISTRAR COURT OF; APPEAL 11 i ,j