Criminal Appeal No 683 of 2021Godfrey Andalile Mwakitalima v Republic

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: KEREFU, J.A., KIHWELO, 3.A, And MDEMU, J.A.^l CRIMINAL APPEAL NO. 683 OF 2021 GODFREY ANDILILE MWAKITALIMA ........................................APPELLANT VERSUS THE REPUBLIC ....................................... .............. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga} (Nkwabi, 3.1 dated the 31st day of August, 2021 in DC Criminal Appeal No. 18 of 2021 JUDGMENT OF THE COURT 1st &. 7th November, 2024 KIHWELO, 3.A.: According to the charge laid at the appellant's door and evidence led by the prosecution, the appellant, Godfrey Andilile Mwakitalima, a former Lecturer or tutor at Paradise Business College, was charged before the. District Court of Sumbawanga with the offence of sexual favour contrary to section 25 of the Prevention and Combating of Corruption Act, No. 11 of 2007 (the Act) read together with Paragraph 21 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap. 200 as amended by Act No. 3 of 2016 (the EOCCA) The particulars of the charge were as follows: "Godfrey AndHHe Mwakitaiim a on 2 J d Ju ly 2018 a t Hembula Guest House, Chanji area within Sumbawanga D istrict in Rukwa Region, being in the position o f authority as a Lecturer o f Paradise Business College situated a t Isesa in Sumbawanga M unicipal, in the exercise o f his authority as a Lecturer, did demand sexual favour from h is student one Beatrice Pantaieo Katona as a condition for giving her pass m arks as privilege in the exam ination o f Entrepreneurship S k ills," The appellant gallantry denied the charge and a full trial ensued. At the height of the trial the appellant was convicted and sentenced to imprisonment for a term of twenty (20) years. His appeal to the High Court was dismissed in its entirety (Nkwabi, J.), hence this second appeal. At the outset, in order to set matters into their right perspective, it is imperative to give the context in which this appeal arose as can be ascertained from the record. At the opening of the trial, Daud Francis (PWt), an investigation officer from the Prevention and Combating of Corruption Bureau (PCCB), Rukwa Region, informed the trial court that, on 23rd July, 2018, he received a complaint from Beatrice Pantaieo Katona (PW4), a student who at that time, was pursuing Diploma in Social Development at Paradise Business College and, was in National Technical Awards Level Five (NTA-5). According to PW1, the basis of PW4's complaint was that, she had sat for examination in Entrepreneurship Skills subject, whose tutor was the appellant, and on that day, he sent her a text message through short message service (sms) informing her that, the results for Entrepreneurship Skills subject were out, but her scores were below the pass mark, It was PW l's further telling that, PW4 informed him that the appellant demanded sexual favour in order to change marks in her favour. Later on, PW1 reported that complaint to the Regional Commander for PCCB who ordered PW1 to lay a trap in order to catch the appellant. It occurred that, PW4 relayed information to PW1, that the appellant requested her to meet at Ilembula Guest House for that favour. Later that evening, around 15:00 hours, PW1 and his team instructed PW4, to accept the appellant's demands. They further instructed her that, upon the appellant being ready for sexual intercourse, she should alert them through a special mobile number they provided her. At that particular time, PW1 and his team were also around Ilembula Guest House and ready for the trap. At about 17:00 hours, PW4 sent an alert to PW1 and his team through the special mobile number she was given, and immediately, PW1 and the other PCCB officials entered at Ilembula Guest House and met the guest house attendant one Fatuma Ben Kakoa (PW3), and since PW4 had already informed them that the appellant hooked into room number 8, they told PW3 to take them to room number 8 which she dutifully did. On arrival at room number 8, they knocked the door which was opened by PW4. They stormed into the room and found PW4 half-naked as she had taken off her top and remained with a bra, while the appellant was lying on bed naked merely covered with a bedsheet. Then, the appellant and PW4 were both arrested in the presence of PW3. The appellant was ordered to put on his clothes and the duo were taken to PCCB offices for further interrogation. PW1 interviewed the appellant and recorded his statement. In further investigation, PW1 was able to secure the. Attendance List of Students in Entrepreneurship Skills Semester Examination which was admitted in evidence as exhibit PI, Semester Examination Paper for Entrepreneurship Skills which was admitted in evidence as exhibit P2 and the marked answer sheet of PW4, for Entrepreneurship Skills Semester Examination which was admitted in evidence as exhibit P3. He also took the appellant's and PW4's mobile phones Make Bontel and Tecno which were admitted in evidence as exhibits P4 and P5 respectively. Furthermore, he collected Extraction Report of mobile phones forensic images of the appellant and PW4 and took the two mobile phones to the Forensic Bureau for further investigation. Mr, Anthony Gustapha Komba (PW2), a tutor at Paradise Business College, and who at the time of the incident was the Principal of that college, testified that, the appellant at the time of the incident was teaching Communication Skills, Entrepreneurship Skills as well as Civic Education and he was the one responsible in setting and marking examinations scripts for Entrepreneurship Skills. It was his further testimony that, a student who fails an examination for the first time, has to seat for supplementary examinations and not otherwise and that, tutors are not allowed to reveal examination results directly to students before they are formally released. He confirmed that, PW4 was among their registered students at the time of the incident. On her part, PW3 recounted the story of what happened on the fateful day. She told the trial court how the appellant went to Ilembula Guest House where she was working as the Guest Attendant, and requested a room for mere short time which upon paying TZS. 8,000.00, he was assigned room number 8. In her further testimony, the appellant left message to her that his girlfriend will be joining him shortly. However, it took quite a while, until when the said girlfriend, who is PW4 appeared and requested to be directed to room number 8 where her host was waiting. PW3 led PW4 to room number 8 and returned back to her office. According to her, shortly thereafter, five people appeared and requested for rooms, and upon PW3 Inviting them at the office, they introduced themselves as PCCB officials who came to apprehend the appellant who requested for sexual favour from his student. They then ordered PW3 to lead them to room number 8 which she obediently did. On arrival at room number 8, they knocked the door and when the door was opened, PW3 was asked to enter inside as well along with PCCB officials. PW3 described the scene when they entered inside the room in which they found the appellant naked but only covered in bed sheet while PW4 was in bra and trouser only, as she had taken off her top, There was some further prosecution evidence from PW4, who explained that she was a student at Paradise Business College and the appellant was her tutor on Entrepreneurship Skills. She recounted how she sat for examination of that particular subject on 11th July, 2018 and how the appellant sent her text message through her mobile phone notifying her that she had failed her examination. However, upon inquiry with the Principal she was informed that examination results were yet to be released because subject tutors were still marking. She then, notified the Principal that the appellant was demanding sex in return for doing her favour in academic performance (kujiongeza). ■ PW4, testified further that, she reported the matter to the PCCB which blew the ease wide open. As the appellant kept sending text messages demanding sex in exchange for marks, the PCCB officials were able to set a trap for him and he had walked straight into it She recounted in minute details how she went to Ilembula Guest House room number 8 and the discussion she had with the appellant who demanded sex in exchange for passing her examinations. Speaking of what transpired in room number 8 at Ilembula Guest House, PW4 at page 27 of the record of appeal, told the trial court thus: "My teacher wanted to have sex with me and I asked him that I m ust prepare him fo r sexual intercourse, I took o ff his sh irt and trouser and began m assaging him. A t the same time, I was com m unicating with PCCB O fficers who were outside the guesthouse. I also took o ffm y biause (sic) and rem ained w ith a biazier (sic) and trouser. A s I beeped (sic) the PCCB officers they responded im m ediately when they knocked a t the door o f the room No. 8. I cheated Godfrey that I had asked the guest attendant to buy a voucher fo r me. I thus opened the door and PCCB officers got in and p u t us under arrest. A s m y teacher was naked he was allow ed to p u t on h is clothes in the presence o f the guest attendant." PW4, further testified how they were taken to PGCB offices for further interrogation and how her mobile phone Tecno WX3 exhibit P5 containing a Vodacom mobile chip No. 0746 053041 which she used to communicate with the appellant was seized by PGGB officials. Mpoki Timoth Sonelo (PW5), an investigation officer from the Forensic Laboratory at PCGB Headquarters, recounted how on 26th September, 2018 he received mobile phone Tecno WX3 (exhibit P5) from one Daud Francis stationed at PGCB Rukwa and that the mobile phone was accompanied with a Chain of Custody Form No. 28 which was admitted in evidence as exhibit P6. PW5 conducted a forensic analysis of the communication between the mobile phone of the appellant and that of PW4. Then after, he printed the: report, prepared the certification on authenticity of electronic records print out which was admitted in evidence as exhibit P7 and finally, he prepared the report of the electronic analysis which was admitted in evidence as exhibit P8. In his further testimony, according to the report the first, text message from the appellant to PW4 was on 23rd July, 2018 at 09:43 hours and the last text message was sent at 16:55 hours on the same day. In his further testimony, in the extraction report the name of the appellant served by PW4 in respect of mobile phone No. 0767 897401 is "Mpenda Shule" Hubert Edwin Mmanga (PW6), was the last prosecution witness to testify. In his evidence, he told the trial court that, in 2018 he was in Sumbawanga as Vodacom Regional Manager for Rukwa. He recalled that on 23rd November, 2018, he was required to identify the registered owners of Vodacom lines number 0746 053041 and 0767 897401 and it turned out that, the print out for registration No. 0767 897401 is owned by the appellant and the print out for registration No. 0746 053041 is owned by PW4. PW6 produced the certification on authenticity of electronic records print out which was received in court and admitted in evidence as exhibit P9. The appellant's arrest sent shockwave, and he was formally arraigned in court on 22nd June, 2020. That concludes the prosecution version which was unfolded during the trial. In his sworn evidence, the appellant who testified as DW l, did not refute the allegations that, on 23rd July, 2018 he was caught at Ilembula Guest House with PW4 in the course of preparing to have intercourse with her. However, he maintained that, PW4 was her lover for quite sometimes ever since PW4 was a student at St. Aggrey College and that their love blossomed when PW4 joined Paradise Business College where the appellant was a tutor. His further account was that, PW4 did not concentrate on academic affairs but rather her attention focused more on luxurious affairs no wonder her results in continuing assessments were poor and sat for final examinations with poor coursework and that is why she failed four subjects apart from Entrepreneurship Skills and lost qualifications even to seat for supplementary. DW1, further testified that, in order to save her fate, PW4 unsuccessfully, approached various tutors including the appellant seeking to be rescued. According to him, at some point, PW4 approached the Principal complaining that, DW1 was too rigid, but DW1 stuck to his guns and that is the reason why PW4 fabricated the case against him. He insisted that, the trap was set by PW4 who had grudges with him for his failure to heed to her demands to rescue her in examinations. He further testified that, it was not their first time to go to Ilembula Guest House for sexual intercourse with PW4. He completely refuted having committed the offence in question. Apart from DW1, the appellant brought another witness, Reford Paulo Sanga (DW2) who testified that, in 2017 he was tutor at Paradise Business College and an academic officer. In his account the appellant was teaching Entrepreneurship Skills and during the second semester he marked and returned ail the scrips in which three students failed including PW4 who scored 18 out of 40 marks. In his further testimony when the results were released and posted in the noticeboard indicating that PW4 had four supplementary examinations, it was around the same time he 10 came to know that the appellant was arrested in connection with demanding sexual favour from PW4. DW2 testified that, PW4 did not appeal for unfair making nor did she report the incident of demanding sexual favour to the college leadership. He also testified to have known that, DW1 and PW4 were lovers ever since PW4 was at Saint Aggrey College and their love affairs went ahead until when the appellant was apprehended for the case he is still facing. On the whole of the evidence, the two courts below were concurrent in the finding that PW4 told a credible tale as to what transpired and particularly bearing in mind the available text messages on record, exhibit P8. The two courts, thus, found as an established fact that the appellant committed the offence of sexual favour. Against this backdrop, the trial court and the first appellate court, respectively, convicted and upheld the conviction of the appellant to the extent as already indicated. As hinted before, the appellant is aggrieved by both conviction and sentence upon six grounds of grievance which may conveniently be crystalized as follows; One, the High Court erred to uphold the conviction and sentence while the prosecution did not prove the' case to the standard required. Two, the High Court erred in law in failure to find that the sentence imposed was not legal. Three, the High Court erred to uphold the conviction and sentence while the chain of custody of the electronic evidence and its veracity was questionable. Four, the High Court erred to uphold the conviction and sentence while the defence case was not considered. Five, the High Court erred to uphold the conviction and sentence relying on the text messages which did not link the appellant with the offence of demanding sexual favour, and six, the High Court erred to uphold the conviction and sentence while the case against the appellant was fabricated. At the hearing, before us, the appellant was fending for himself, unrepresented, whereas Mses. Safi Kashindi Amani and Irene Godwin Mwabeza, learned Senior State Attorneys, stood for the respondent Republic, The appellant fully adopted the memorandum of appeal and his written submission he earlier on lodged on 7th January, 2022 but deferred its elaboration to a later stage after the submissions of the learned State Attorney. For her part, Ms. Amani opposed the appeal and supported both the conviction and sentence. She prefaced her submission by arguing the second ground of appeal whose main complaint was that, the first appellate court erred to properly evaluate the evidence on record and therefore, imposed an illegal sentence. In response, Ms. Amani hastily submitted that the appellant's complaint in this ground has no merit. Illustrating, she contended that, the charge laid at the appellant's door 12 was predicated on section 25 of the Act read together with Paragraph 21 of the First Schedule to and Sections 57 (1) and 60 (2) of the (the EOCCA) and therefore, the appropriate sentence was in terms of section 60 (2) of the EOCCA and not section 25 of the Act. Ms. Amani took the view, and rightly so in our considered opinion that, according to Paragraph 21 of the First Schedule to the Act, sentence would have been imposed under the Act only and only if, it was predicated on section 15 of the Act. She rounded off by arguing that, the appellant was properly sentenced and therefore, this ground has no merit. We entirely agree with Ms. Amani that the appellant having being charged under section 25 of the Act read together with Paragraph 21 of the First Schedule to and Sections 57 (1) and 60 (2) of the EOCCA it was in order to be sentenced under the EOCCA and not under the Act. Clearly, the penalty for anyone who commits an offence under section 25 of the Act, is fine not exceeding five million shillings or to imprisonment for a term not exceeding three years or to both. However, following the coming into force of the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2016, section 60 (2) of the EOCCA was amended and that amendment reads: y'60-(2) Notwithstanding provision o f a different penalty under any other law and subject to subsection (7), a person convicted o f corruption or econom ic offence sh all be liable to im prisonm ent fo ra term o f not less than tw enty years but not exceeding th irty years, or to both such im prisonm ent and any other penal measure provided fo r under this A c t Provided that, where the law im poses penal m easures greater than those provided by th is Act, the Court sh all im pose such sentence." We also find considerable merit in Ms. Amani's submission that, according to Paragraph 21 of the First Schedule to the EOCCA, only offences under section 15 of the Act, do not amount to economic offences and therefore, section 60 (2) of the EOCCA is not applicable to that section. Otherwise, all other offences under the Act are economic offences. Talking of Paragraph 21 of the First Schedule to the EOCCA, it reads: "A person com m its an offence under this paragraph who com m its a n y o ffe n ce u n d e r th e P re v e n tio n a n d C om bating o f C o rru p tio n A c t o th e r th an an o ffe n ce u n d e r se ctio n 1 5 o f that Act. "[Emphasis supplied] Clearly, the above provision is very categorical that, only offences committed under section 15 of the Act will not be economic offences under the provisions of the EOCCA and therefore, the appropriate 14 sentence for all other offences under the EOCCA will be those imposed under section 60 (2) of that law. Accordingly, we dismiss the second ground. We will next deliberate on the third ground of appeal whose criticism is essentially on the chain of custody of the electronic evidence, exhibit P8 and its credibility and reliability. According to the appellant, the chain of custody was broken from the collection of information, handling and storage of equipment as well as its admissibility in evidence in court. To put forward his proposition, he cited the case of Paulo Maduka & Others v. Republic, Criminal Appeal No. 23 of 2010 (unreported) and the provisions of section 64A of the Evidence Act, Cap. 6 (the Evidence Act) as well as section 18 of the Electronic Transaction Act, Cap. 442, (the ETA). In response, Ms. Amani had an opposing view, she contended that the chain of custody of the electronic evidence was not broken and was credible and reliable as clearly testified by PW5 who received the mobile phone of PW4 exhibit P5 and extracted the messages. In her view, the chain of custody was not broken and the electronic evidence complied with section 18 of the ETA on authenticity, credibility and reliability. is Speaking of section 18 of the ETA, it is, perhaps, pertinent to digress a bit and observe, by way of postscript, that the provision, as it stood then, was made up of subsections (1), (2) (a) (b) (c) and (d), 3 (a) (b) and (c) and (4). More particularly, subsection (1), (2) and (3) provided thus:- "18-(1) In any legal proceedings, nothing in the rules o f evidence sh all apply so as to deny the adm issibility o f data message on ground that it is a data message. (2) In determ ining adm issibility and evidential weight o f a data message, the follow ing sh a ll be consldered- (a) the re lia b ility o f the m anner in which the data message was generated, stored or communicated; (b) the re lia b ility o f the m anner in which the integrity o f the data m essage was m aintained; (c) the m anner in which its originator was identified; and (d) any other factor that m ay be relevant in assessing the weight o f the evidence. The authenticity o f an electronic records system in which an electronic record is recorded o r stored shall, in the absence o f evidence to the contrary, be presum ed where- (a) there is evidence that supports a finding that a t a ll m aterial tim es the com puter system or other sim ilar device was operating properly or, if it was not, the fact o f its not operating properly did not affect the integrity o f an electronic record and there are no other reasonable grounds on which to doubt the authenticity o f the electronic records system ; (b) it is established that the electronic record was recorded o r stored by a p art to the proceedings who is adverse in interest to the p art seeking to introduce it; or (c) It is established that an electronic record was recorded or stored in the usual and ordinary course o f business by a person who is not a p art to the proceedings and who did not record or store it under the control o f the p art seeking to introduce the record." Such was the law as it stood at the time of the trial which gave rise to this appeal, but later, The Legal Sector Laws (Miscellaneous Amendments) Act, No. 11 of 2023 was promulgated and section 30 amended section 18 (2) by deleting merely the words "admissibility and" appearing in the opening phase. Otherwise, the rest of the provisions remains the same, hence the only change is those considerations to be made in subsection (2) of section 18 of ETA, in relation to the determination of evidential weight to be accorded to a data message and not admissibility anymore. Thus, we think that the above provision tells it all, and considering that in terms of section 64A (2) of the Evidence Act, admissibility and weight of electronic evidence is governed by the: provisions of the ETA, it is palpably vivid from the record of appeal that PW1, PW5 and PW6 and exhibits P4, P5, P6, P7, P8 and P9 together ably proved the reliability, integrity and authenticity of the data message or electronic communication. We shall explain. PW1 collected the mobile phones exhibits P4 and P5 of the appellant and the victim respectively, which were used in the communication. PW5 conducted the Forensic Analysis of exhibit P5 which revealed the communication between the appellant and PW4, as clearly seen in the Extraction Report of the Mobile Phones Forensic Images exhibit P8. PW5 18 further, filed the chain of custody form, exhibit P6 and also the Certification on Authenticity of Electronic Records Print Out, exhibit P7 and finally, he prepared the Report Forensic Report of the Investigation, exhibit P8. Furthermore, PW6 from Vodacom in his testimony confirmed that the mobile numbers that were used in the communication between the two were registered in their respective names and in terms of section 19 (a) of the ETA, an electronic communication shall be treated to be from the originator, if it is sent by the originator. Thus, we find that there is ample evidence on record to prove the reliability, integrity and authenticity of the data message or electronic communication between the appellant and PW4. We are quite clear in our mind, even without resort to any stretch of imagination, that, the issue of broken chain of custody does not arise neither here nor there, and the reason is not farfetched. The forensic analysis of exhibit PS, the mobile phone of PW4 was done by PW5 who established the communication between the two as clearly indicated in exhibit P8 and this is consistent with the testimony of PW4. In terms of section 19 (a) of the ETA, the appellant cannot be heard to disassociate himself with the text messages sent from his mobile phone to PW4. In any case the appellant did not object when PW5 testified in court and tendered in evidence exhibits P6, P7 and P8. He did not cross examine either on important matters other than the name of "Mpendashule". Indeed, there is a plethora of authorities to the effect that, a witness who does not cross- examine on an important matter ordinarily implies acceptance of the truth of the witness evidence. See, for instance, Nyerere Nyague v. Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 (21 May 2012; TanzLII). The third ground fails. The complaint in the fourth ground that, the case for the defence was not considered, should not detain us. Ms. Amani was very brief and to the point. She contended that, this complaint has no merit and referred us to pages 56 to 58 of the record of appeal as well as pages 117 to 119 of the same record where the two courts below properly evaluated the defence case and found that it did not shake the prosecution case. We have considered the arguments placed before us and we have closely examined the records of appeal in particular the judgment of the trial court at pages 56 to 58 of the record of appeal as well as the judgment of the first appellate court at pages 117 to 119 of the same record and considered the competing arguments in respect of this complaint. Undoubtedly, this complaint has no merit. The quest by the appellant is no more than an attempt to save his skin. Both courts below adequately considered the defence by the appellant that his conduct was in the course of ordinary love affairs with the victim and came to the conclusions that it was a mere afterthought. Furthermore, the two courts below considered the defence that PW4 did not work hard at the college no wonder she failed and sought refuge to the appellant and came to the conclusions that this defence was a mere afterthought. Our reading and understanding of the record of appeal, quite obviously tells it all that, this complaint to say the least is far-fetched and untenable. If anything, it was a mere rhetoric but not a reality. The appellant was trying to make such an enduring impression in the urge to get off the hook, but all his efforts was merely trying to swim against the tide as the two courts below having considered the defence case, came to the conclusions that it did not shake the prosecution case. We equally find that ground four has no merit. In view of the foregoing discussion, the complaint in ground one, five and six, whose common denominator is the criticism that the prosecution did not prove the case to the hilt, poses no difficult. Ms. Amani submitted that, to prove the offence, the prosecution produced six witnesses. She further argued that, in order to prove the offence the appellant stood charged, the prosecution was duty bound to prove two 21 things. One, that the appellant was in a position of power or authority and; two, the appellant demanded sexual favour. In further arguing, she submitted that, the fact that the appellant was in a position of authority was not disputed from the preliminary hearing stage but also PW2 testified that the appellant was a tutor and this was not challenged by the appellant. Arguing further, Ms, Amani submitted that, PW4 the victim testified v in minute detail how the appellant started demanding sexual favour in order to help her pass examinations. Ms. Amani argued further that, the appellant did not cross examine the victim when she testified which implies an acceptance of the truth of the victim's evidence. Reliance was placed in the case of Gerson Geteni v. Republic, Criminal Appeal No. 73 of 2021 (unreported), to demonstrate her proposition. She took the view that, the trial court believed the testimony of PW4, as coherent and credible and cited the case of Adam Angetile v. Republic (Criminal Appeal No. 402 of 2020) [2023] TZCA 14 (15 February 2023; TanzLII) to fortify her argument. In further arguing the appeal, Ms. Amani submitted that, the evidence of PW4 was corroborated by that of PW3 the guest attendant at page 24 of the record of appeal and the electronic evidence in exhibit P8 at pages 82 to 90 of the same record, read backward, which lend 22 credence. She also referred to the evidence of PW1, who arrested the appellant and seized the two mobile phones of the appellant and PW4. In her view, the appellant demanded sexual favour in order to help the victim pass examination she had already failed. She rounded off by submitting that, the prosecution proved its case to the standard required. In all, she urged us to dismiss the appeal. In rejoinder submission, the appellant spiritedly reiterated the grounds of appeal which were earlier on adopted. Submitting further he challenged the testimony of PW6 from Vodacom, and also faulted PW4 for not following the proper academic channel to challenge her dissatisfaction with her academic performance. For, in his view, the case was fabricated against him because he was strict in awarding marks in examinations. The issue before us is a narrow one and involves little or no controversy that the appellant was a Lecturer/tutor at Paradise Business College where PW4 was a student. He was teaching among other subjects, Entrepreneurship Skills and actually marked that subject which PW4 failed, and shared the results with PW4 before they were even formally released in expectation for sexual favour from PW4. For the better understanding of the provisions of section 25 of the Act, we think it is desirable to reproduce the entire section. It reads: "A ny p e rso n b e in g in a p o sitio n o f p o w e r o r authority^ w ho in th e e x e rcise o f h is a u th o rity , dem ands or im poses se xu a l fa v o u rs o r any other favour on a n y p e rso n a s a co n d itio n fo r g iv in g employment, a prom otionr a right, a p riv ile g e or any preferential treatm ent, com m its an offence and sh all be liable on conviction to a fine not exceeding five m illion sh illin gs or to im prisonm ent fo r a term not exceeding three years or to both." [Emphasis added] In our careful reading and understanding of the above provision of the law, it requires the person to be in a position or authority and in exercising that authority must demand or impose sexual favours or any other favour as a condition for giving employment, a promotion, a right, a privilege, or any preferential treatment. In light of the above position of the law, we think, with respect, that, the appellant's conduct falls within the criteria listed in section 25 of the Act in that he was a Lecturer/ tutor in a position of authority and demanded sexual favour in order to give PW4 privilege of passing examinations she had failed. The term privilege according to Oxford Languages, refers to a special right, advantage, or immunity granted to or available only in a particular person or group. The appellant's conduct is evidently demonstrated by the thread of communication between the appellant and PW4. As regards the communication between the appellant and PW4 in exhibit P8, we wish to let the records of appeal as quoted by the trial court at pages 55 and 56 speak for itself: "Fresh kabisa sasa lengo la kukutafuta n i kwamba m tihani wangu umezingua mwanamke na m atokeo n i kesho kutwa tu hapo b itris so! S iju i unashauri nini? Then, PW4 replied: "Fanya unisaidie" "Unajua n i m aisha" The accused sent this message: "Nahisi msaada wangu kwako umeanzia hapa ndo maana kabia sijakabizi matokea nim eku inform kwa nia njema kabisa natum aini a k iri kumkichwa dogo" The victim on receiving that message, she replied: "N ahitaji msaada wako nam bie mbona kim ya" Then the accused became open and said: "Nakuhitaji wewe m toto m zuri jam ani aah hahahahaha...." The trial court observed, and rightly so in our considered opinion that, the conversation between the tutor and his female student reveals the intention of the tutor to notify the student her results prior to their official release. It indicates that the two were not lovers before but the accused was demanding sexual favour. As if that was not enough the accused sent the following message to the victim: "Pia maswala ya sup yanachanganya mama unaanza kujiandaa kusoma upya pia usijue m waiim u atatoa wapi pia hata ukipata A unawekekwa C kiasi kwamba hata GPA inapunguza kwa hiyo sup n i m iyeyusho." As the trial court rightly observed, this kind of conversation between the tutor and the female student who has failed in her examination which is marked by the said tutor is an indication that considering fiduciary relationship between them, the tutor was demanding nothing but sexual favour as a condition to give the student pass marks as privilege. There is reasonable certitude that the appellant was craving for sexual favour from PW4, and took advantage of PW4's poor academic performance in her examination results, and no wonder the appellant was the one who initiated the- conversations as the text messages in exhibit P8 are evident as indicated in the above excerpt. As if that was not enough the appellant went further to arrange a meeting with PW4 at Ilembula Guest House where he was found about to execute his dark desire, a thirsty for sexual gratification before PW4 was rescued by the PCCB officials. To hold otherwise would lead to undesirable consequences and would be disastrous for the proper administration of criminal justice and that, we think, cannot have been the intention of the Parliament when the provisions of section 25 of the Act was enacted with a view of protecting innocent individuals from those in a position of trust. The spirit behind is twofold. On one hand, is to deter abuse of entrusted authority or position for personal gain using sex as a currency of exchange. On the other hand, is to protect innocent individuals who fall victims of perpetrators. The allegations by the appellant that the victim was a long-time lover and they had lover affairs for quite sometimes is untenable. Looking at the conversations between the two, like the two courts below, we are of the firm view that, there is nothing to suggest that the two were lovers, this argument was truly scraping the barrel. It is a wild and barren theory, without the slightest foundation in the evidence on record as we have explained. Thus, for the foregoing reasons, we find this appeal to be without a semblance of merit and, in the result, we dismiss it in its entirety. DATED at SUMBAWANGA this 7th day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 7th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.