Hossen Sudy v

IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY

AT IJC MOROGORO CRIMINAL APPEAL NO.37098 OF 2023 (Arising out of Criminal Case No. 158/2022 in the District Court of Morogoro) HOSSEN SUDY…………………...………….……. APPELLANT

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

JUDGEMENT 17th April,2024. MANSOOR, J. The appellant, Hossen Sudy was arraigned before the District Court of Morogoro herein referred as "the trial court", for the offence of unnatural offence, contrary to section 154(1)(a) of Penal Code, Cap 16, R.E.

2019. It was alleged by the prosecution that the appellant had canal knowledge of AB (whose identity is withheld) an eleven years’ old boy against the order of nature. Page 1 of 13 At the culmination of the full trial, the appellant was found guilty and convicted on the offence charged and he was sentenced to serve a term of thirty (30) years imprisonment. Discontented by the decision of the trial Court, the Appellant appealed to this Court contesting both conviction and sentence. In a bid to pursue for his rights, the Appellant filed a petition of appeal comprising of five (05) grounds of appeal as reproduced hereunder; 1. That, the learned trial principle Resident Magistrate grossly erred in law for sentencing the accused person to a term of 30 years’ imprisonment without first entering a conviction as per mandatory requirement of the law.

2. That, the learned trial principle Resident Magistrate erred in law for sentencing the accused person to serve term of 30 years in without a valid and legal judgement per the mandatory requirement of section 132 (1) and (2) of the Criminal Procedure Act, (Cap 20 R.E 2022).

3. That, the learned trial principle Resident Magistrate erred in law for sentencing the accused person to serve term of 30 years in without properly evaluating the evidence on the record of both sides. Page 2 of 13 4. That, the learned trial principle Resident Magistrate erred in law for sentencing the accused person to serve term of 30 years while the prosecution evidence did not prove the case against the appellant beyond reasonable doubt.

5. That, the proceedings of the trial court are tainted with procedural irregularities which renders the whole judgement an invalid and nullity in the eyes of law. During the hearing, the appellant appeared personally and unrepresented fending for himself while Josbert Kitale, the learned State Attorney entered appearance for the respondent. By consensus, parties agreed to dispose of the appeal by way of oral submissions. On his part, the appellant, being a layman, had no useful inputs to argue in support of the appeal. However, he prayed for the court to consider his grounds of appeal and set him free from prison custody. Mr. Kitale the learned State Attorney, took the floor to support the appeal basing on the fifth ground of appeal reasoning that the trial court contravened the provision of section 127 of the Evidence Act on taking the evidence of the victim, the child of tender age. Bolstering his reasoning, the learned State Attorney referred this court to Page 3 of 13 page 8 of the proceedings where the evidence of the victim was recorded. Demonstrating what transpired in the trial court before the evidence of the victim were recorded he submitted that AB a 11 years old child was asked questions by court and it was recorded that, “A child seem to know the oath and promises the truth and promise to tell the truth.” He maintained that the records suggest that the child

victim understood the meaning of oath and he cited the provision of section 198 of CPA which directs every witness to be examined upon oath or affirmation. He contended that the same spirit is reiterated in section 127(1) of Tanzania Evidence Act and section 127(2) which state that, witness who is a child can take oath or affirmation or promise to tell the truth. He contended further that there is lacuna in the above provision reasoning that they do not explain the procedure of taking oath or promises, however he was of the view that the lacuna was cured by the case of Godfrey Wilson vs Republic, Criminal Appeal No.168/2018 at page 13 (reported at TANZLII). The learned state attorney therefore opined that there were no findings made by the court to show how the trial Magistrate reached into conclusion that the child witness had to give the promise. He insisted further that the promise itself is written wrongly as the promise was given by the Magistrate but not child. To add weight on his contention he referred this court to page 8 of the case of Hamisi Issa vs Republic, Page 4 of 13 Criminal Appeal No.274/2015 at TANZLII where the case of Yusuph Molo vs Republic, Cr. Appeal No.343/2017, CA which categorically directs the process to be recorded in the exact word of the child and to also for the same to be reflected in the court records. Expounding the consequence on

contravention of the provision of section 127(2) of TEA he contended that the irregularity makes the evidence of the child meaningless and as of no any probative value. To strengthen his contention, he put reliance on the case of Hamisi Issa (supra) page 8. At the end he prayed the court to expunge the evidence of PW3 the victim from records. Suggesting the way forward after expunging the evidence of the child victim from records the learned state attorney was of the view that the remained evidences are of corroborative value which cannot stand alone and thus he prayed this court to issue the order of re-trial reasoning that the evidence available incriminates the accused. I have considered and examined both the learned state attorney's submissions on support to the appeal and the trial court proceedings. At this stage the only issues which require my deliberation is whether the Page 5 of 13 trial court contravened section 127 of TEA, and whether in the circumstance, an order for retrial is appropriate. For easy determination of the first issue I will start by reproducing the provision of section 127(2) of the TEA. The law provides that: "(2) A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies." Emphasis added. Amplifying the above section, It

was the deliberation of the Court of Appeal in the case of John Mkorongo James vs Republic, Criminal Appeal No. 498 of 2020 that, the provision requires a process, albeit a simple one before it is concluded that the evidence of the witness of a tender age can be taken on the promise to the court tell the truth and not to tell lies. The Court had this to say: "... The import of section 127 (2) of the Evidence Act requires a process, albeit a simple one, to test the competence of a child witness of tender age and know whether he/she understands the meaning and nature of an oath, to be conducted first, before it is concluded that his/her evidence can be taken on the promise to the court to tell the truth and Page 6 of 13 not to tell lies. It is so because it cannot be taken for granted that every child of tender age who comes before the court as a witness is competent to testify, or that he/she does not understand the meaning and nature of an oath and therefore that he should testify on the promise to the court to tell the truth and not tell lies. It is common ground that there are children of tender age who very well understand the meaning and nature of an oath thus require to be sworn and not just promise to the court tell the truth and not tell lies before they testify. This is the reason why any child of tender age who is brought before the court as a witness is required to

be examined first, albeit in brief, to know whether he/she understands the meaning and nature of an oath before it is concluded that he/she can give his/her evidence on the promise to the court the truth and not tell lies as per section 127 (2) of the Evidence Act." I find it paramount for the sake of appreciating what transpired when PW3's (the victim) unsworn evidence was recorded, to reproduce the relevant trial court's proceedings as shown at page 08 of the trial court proceeding: “PW3, AB,11 years, Moslem. Court: Victim is seems to know the oath and he offer to speak the truth and promise to tell the truth. Section 127 of TEA c/w Then the witness proceeded to testify as follows: Page 7 of 13 XXD by SA: That is my name………” Looking at the reproduced trial court proceedings the trial magistrate concluded on both that the child witness understands the nature of oath and similarly that the victim promised to tell the truth. I have observed further that the evidence of the child witness was recorded as unsworn evidence as he was not affirmed before his evidence was recorded. The records suggest that the trial court opted to take the evidence of the child witness on the promise to tell the truth and not to tell lies. However, the conclusion by the trial court on receiving the evidence of the child witness on the promise to tell the truth and not lies was not justified since the

records are silent on how the trial court examined the child witness to test his competence before jumping to the conclusion that the child witness would give unsworn evidence on the promise to the court to tell the truth. (See the case of Godfrey Wilson vs Republic(supra) Besides the pointed out irregularity even the PW2's promise was incomplete and indirect. It was incomplete because while section 127 (2) of the Evidence Act require that the promise should be telling the truth and not telling any lies, what PW3 is said to have promised is only to tell Page 8 of 13 the truth. He did not promise not to tell any lies. The promise is also indirect because as was stated in the case of John Mkorongo James v. Republic, Criminal Appeal No. 498 of 2020 (unreported), the promise to the court in terms of section 127 (2) of the Evidence Act should be in direct speech which is to be reflected in the record. Thus, according to what transpired in this matter, it cannot be said that PW3 promised to tell the truth as was envisaged by section 127(2) of the Evidence Act with the effect that even the evidence would lack evidential value. Basing on the observed anomalies there is no gainsaying that the required procedure was not complied with by the trial court proceedings before taking the evidence of the child witness and thus I am satisfied that his evidence was not properly admitted in terms

of section 127(2) of the Evidence Act as amended by Act No. 4 of 2016. Regarding the consequences of the contravention of the above section, I am fully aware with the Court of Appeal decision in the case of Wambura Kiginga v. Republic Criminal Appeal No. 301 of 2018 which explained on the enactment of section 127(6) of the Evidence Act. The court categorically stated as follow; “Based on that understanding, we were satisfied that, it is not impossible to convict a culprit of a sexual offence, where Page 9 of 13 section 127 (2) of the Evidence Act is not complied with, provided that some conditions must be observed to the letter. The conditions are; first, that there must be clear assessment of the victim's credibility on record and; second, the court must record reasons that notwithstanding non-compliance with section 127(2), a person of tender age still told the truth.” In this case although the trial court did not follow rules of evidence or procedure it is doubtfully if what was narrated by the victim was original, true and authentic. In view thereof, I will now proceed to summarize the evidence particularly of the victim, PW3 (victim grandmother) and that of the PW4 as adduced at the trial court. Testifying as PW3, the victim stated to have been carnal knowledge by the appellant against the order of nature for three times from 08/08/2021 up to 09/08/2021 until 10/08/2021

when he disclosed the ordeal to his sister who later informed his grandmother and the matter was reported to the police.PW4 the medical doctor testified to have examined PW3 on 11/08/2021 and stated to have found the victim’s anus enlarged and that the victim had no pain since the days had passed. PW1 the victim’s grandmother testified to have been informed on the ordeal on 11/08/2021. Page 10 of 13 I see doubts on the truthfulness of the victim evidence due to the reason there is contradiction on his assertion and the evidence of the doctor. What the doctor testified completely distort the reality on the victim’s evidence. While the victim testified to be sodomized for three times in two days consecutively that is from 08/08/2021 to 09/08/2021 and after one day that is on 11/08/2021 PW4 testified to have received him on the hospital for examination where she found the victim to have been sodomised however she said the victim was pain-free adducing the reason that the long time was passed since the act was committed. I find it difficult to understand that this child endured this new act in his body and got used on it to the extent of not feeling any pain on lapse of just one day considering his age, and that he was sodomised by an adult three times. That being said and done I am not convinced there was any truth on the victim’s evidence and thus I find it unreliable not worthy

for the shield provided under section 127(6) of TEA and consequently I hereby expunge it. (See the cases of Godfrey Wilson v. R, Criminal Appeal No. 168 of 2018, Hamisi Issa v. R, Criminal Appeal No. 274 of 2018, Seleman Moses Sotel @ White v. R, Criminal Appeal No, 385 of 2018 and Mwalim Jumanne v. R, Criminal Appeal No. 18 of 2019 (all unreported). Page 11 of 13 Finally, I have to determine whether or not I should order a retrial. It is now settled that as a matter of general principle a retrial will not be ordered where the prosecution evidence is patently weak and by ordering a retrial, the prosecution will seize that opportunity to fill up the gaps at the prejudice of the appellant. That was the stance taken by the defunct East African Court of Appeal in the case of Fatehali Manji vs Republic [1966] E. A. 341). In that case it was stated that: - "In general a retrial will be ordered only when the original trial was illegal or defective. It will not be ordered where conviction is set aside because of insufficiency or for purposes of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where the conviction is vitiated by mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that; a retrial shall be ordered; each case must depend on its own facts and circumstances and an order of retrial should only

be made when the interest of justice require." The observation of the above decision was followed by the Court of Appeal in the case of Selina Yambi and Others vs Republic, Criminal Appeal No. 94 of 2013 in which the Court, in almost similar tone, stated that: - "We are alive to the principle governing retrials. Generally, a retrial will be ordered if the original trial is illegal or defective. Page 12 of 13 It will not be ordered because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps. The bottom line is that an order should only be made where the interest of justice require." In the matter at hand for the interest of justice retrial cannot be an option owing to reason that the remaining evidence needs collaboration as they cannot stand to prove conviction on absence of the evidence of the victim any attempt to order retrial will enable the prosecution to fill up gaps on the evidence as revealed above. From the foregoing, I allow this appeal in its entirety, the conviction and sentence passed by the trial court is quashed and set aside. The appellant is to be released from prison forthwith unless he is otherwise lawfully held. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 17TH DAY OF APRIL 2024. L. MANSOOR

JUDGE 17/04/2024 Page 13 of 13