20180629 TZHC Mwanza

I . ,J IN THE HIGH COURT.OF TANZANIA (DISTR·ICT REGISTRY)

AT MWANZA HC.CRIMINAL APPEAL N.389 OF 2017 JUMA S/0 MASANJA -·--- In the District Court of Bukombe at Ushirombo, Juma Masanja, the appellant was charged with the offence of rape contrary to . . section 130 ·( 1), 2 (a) and 1-31 ( l) of the Penal Code Cap.16 [R.E.· 2002] and was convicted on statutory sentenced of thirty years term 1 '1 ( of imprisonment. The· appellants are still dissatisfied, hence this appeal. The facts of the case~ in so far as -they are. relevant to this appeal, may briefly be stated. On 13th day of November 2014, at about 16:00 hrs at Kabuhima Village, Bukombe District within Geita Region the appellant was brought to the police station by some . . villages accusing him for raping a· girl aged 5 years old. The police officer issued a PF3 to the victim's parents. The police officer interrogated the accused and wrote the cautioned statement of the accused who told the police officer that Salome is his neighbour, they live at the same area. The accused said on the material day - the girl entered into his room and he raped her. Aggrieved by the conviction and sentence, he has lodged this appeal. Before this Court the appellant filed 4 grounds of Appeal which can be crystallized as follows:- 1. That the_ trial Resi9ent Magistrate erred in law when failed to_ -summons the victim to be testified.

2. That section 34B {2} of the Tanzania Evidence Act, 1967 was improperly used. 2 . .

3. That the trial Resident magistrate· erred in law by omitting to apply t-he provisions of law compelling ·the · attendance of witness. ·· 4. That the. non-appearance of victim and the reason given was unreasonable.

5. WHEREFOR I pray upon your Lordship that (i) My appeal to be allowed (ii) My appeal to be heard on my presence At the hearing of this app.e'QI tli·~'Gpp~lio~0ppeared \.) " ' ---.......,, in person ~'-... '· ~--.. - and defended himself w?t~-Mr."'f"48(11ti;-,f.b\.. learned State Att<:xney J . /1 ', ~ ·'-J represented the respond~nt. C✓.::~-~ ~~ _ · ~ i 1~ The appellant li~~ h~(!lu<fr.l to say, he said he appealed £ ~ , , ~./" - - ---Mi, '~') against the lower'oourt decision because it was not 1·ust. • ,~,-· . c~ { ~\'-0 the ·_appella=~fttias filed four grounds of appeal . against the convic~-2.!J..J;,-Jentence. Mr. MOmti vehemently argued that the sentence wnich was issued by the lower court was not proper since the victim was five years old therefore the appellant was required to be sentenced for life imprisonment. 3 .. ( . · Mr. Mamti argued that in the present case the victim ·was a srnall child therefore it was right- for her not to have been bro"ught before the court to testify. He said the testimonies of PW 1 and_ other witnesses were enough to convict the appellant. The learned State Attorney referred the court to page 6 and 7 of the court proceeding where the appellant did_ not object the caution s(<?t~ment and. PF3 '-.:" which were tendered before the court. \~>--~ 1 ·,-~'-, /'°) \'--..... ·.:<•.' . ·, },._,/ / , \ ,.....,., '"-.._ '< ··; ' \ ' ):' ~ .. r'-. ~

,.. .,..,. . . ·, \ \ ·• . , ,".S\. "-~ \ \ . / . ,;;) . With regard to the second ground bf"qppeal,/Mr. Mamti stated . _,-.._ ,, ', \ \ that section 348{2) of the Law of Evicsler5~e,...0o\.pr'q~erly applied. He . . ' '\ ~ . . . "--?~ ·'·\ said this section stipulate ho£.>to rec0rd frre~ ,statement in cases -- ·-·-- . /~ "\''-, where the witnesses who/?0ve recorded tr.1.g. statement are nowhere ~~\. . to be found then the cott ce,/'Q,r-9~~ to apply the said section, He said therefore trlli'gro\r}d of thJcibpeal is demerit. ,-~-/ ~~ ~ · «-)L . ~ . On the fburtti.,,gropr:id of the appeal, Mr. Mamti contended that non- ~~q~~f F(fJfJt: '\ "'-i>~ess . and the reasons which was given by . . courl~as unreGJ!pnable. H_e said that the reasons giv~n by the lower court ~re. cor)ebt since the child was a minor and could not testi·fy -~ _.... _,;,-11. ;._--' <Jr!". • . .........~_.__./ in court. He requested the court to dismiss the appeal and sentence the · appellant to life imprisonment instead of thirty years imprisonment. 4 The petition of appeal before this· court, lists four grounds of comp~aint_ against the District Court .judgment .. Having closely _examined the.m,_ I am of settled mind that these can be ~onveniently reduced to two substantive grounds of appeal. These are~ One, the trial Magistrate erred in law for failing to summon the victim to testify. Two, that section 34B (2)

of the Tanzania Law of Evidence was improperly used . . \Nith regard to the first ground of the appeal, the lavv is very clear when it comes to receive evidence from a child of tender age. Since :th~ victim was below the age of fourteen ( 14) years, in accordance to section 127 (5) of the Evidence Act, Cap.6 then the trial court was under obligation to conduct a voire dire, complying with ·section 127(2) of the Evidence Act to attain the objects of conducting a voire dire namely: /···- .. .. ·. . /:' ca To estabUsh y,ihether th~ child possess sufficient intelligence to t~s-:tify~--.,}he:,t·rjaf coi)rt has to assess that and enter a finding on / .· ·. ·· ··· .... .. /record ofcJhe,r:::>roceedi ngs .. \' <:; '• ·, \, • \ 1. \· "· 1. ' • • TQ ~stablis_h 'whether the child understands the duty to tell the truth, .,. · • To establish whether the child knows the meaning of oath or affirmation. The absence of the aforementioned vitiates the proceedings. 5 • It is a settled general principle of law that all witnesses in a crim(nal case are competent to testify unless the trial court considers· _·otherwise {section l 27 ( l) TEA).· There are exceptions to that general principle including in.capacities resuHing (as in the instant case) from tender age. In Nyasani Bichana versus Republic ( 1958) EA 90 the then Eastern Africa Court of Appeal held inter alia<thLis:- . - - -. r, '

<"",,\..'~, ~ " .. .It 1s clearly the duty of the cezurt,...under,.~th0. t \,. \ ,,~--~'- '~ section to ascertain, first,,,..__ whetb~r /th~-...._c:fiild . -~. \~ ~ ( - tendered as a witness understan'as the\nature of the .,,.---.._ oath, and, if. the finding,bn:Jr.,is~~'uesti~n 1s 1n the '·~ ' . .\ \ \ . <~ '_:-- -<-:.i:) . "' negative, to satisfy itseJf,fhdtJh_e chilo is possessed /' "-"' --- ·• of sufficient in-te/JiQence 'to)justif~) the reception of the evidence~nd fd..f{~\~the duty of speaking th_ e truth~fhi~~is.~a_ _., -- , ~ition pre_ cedent and c_Jn_-_- "., ""-"' . , ,, . shobfci::a,p, pear,upofl'.,-,h~ face of the record that if_ (< )}- ~- . . ther:e-,_,has~een) a due compliance with the . ~ ~",<:~; r~fion.'\;~~hasis provided). . . \ ~·~ . . (~e..., also:)l'!assan Hatibu v. R. Criminal Appeal No .. 71 of 2002; . ~__./:;/. . ·Mohamaed:-Sdinyeye v. Republic, Criminal Appeal No. 57 of 2010; Hamis Angola v. · Republic; Criminal Appeal No. 422 of 2007; all unreported). The record shows tho~ the trial Magistrate did not comply with the provisions of section 127 ( l) of the Evidence Act, Cap.6. 6 Section 127 ( l} defines wh·o can testify by stating inter-alia: 127 ( l) Every person shalt be .competent to testify unless the· court considers that he is incapable of understanding the questions put to hirn or giving rational answers to those question of the court,

understand those questions by reason of tender age, extreme old age, .Jiisease (whether ,>,,, . . . of body or mind) or any other simitae,,~a.use.·,,. . \ >'- "'· ...... " . ' •. \ ' . . '-,._ '-. '... .r ,i \ ' · ...: .... .... ,~ In the present case, the victirn of rQ'p~ . age so she would only have qualified. . . to"'tesJify\if\ the learned trial ,,v1~s.a \~ srGa{i . . ~irl ~f tender ~ \ ) \. --,_ ""',. (2} and (3) of the Law of Eyid~nc'e.)\ct, 1'~67 which state: ""' ' ' Resident Magistrate had comRlied withthe;pr6visic5ns of Section 127 . '· ,.· l27 (2) Where il'bny orim~~. .r~c~LJ-;e or matter a child ·of ~\ t end er age .,GoII eu-os /'>~t:\_ a-w, oes no t , .1n th e opinion ness d·-~.> . . o f th · e cou rt , un d ers on d\t~'~ ")t"',,_· '"-. ---~ +LI o.f an oa th , ·h.1s ev1.d ence may 1-1e"'-AGhLffe /·- :---.. be r~~~~)~m)g~ot given upon _oath or affirmation, if in the op1n10n-of~.the,-,court, which opinion shall be recorded m /_ >-.. . . .. -~ j /.,/.fhePr~c~~?s, he_ is possessed of sufficient intelligence to ~ ' \justify th'e\eception of his evidence, and understand the duty· \ot_SP?_al<Jrig the truth. ...... - #s •• / ) ; . . . · {3) Notwithstanding any rule of law or practice to the contrary, but subject to the. provisions of subsection {7}, where evidence received by virtue of subsection (2) is given on behalf of the prosecution and is not corroborated by

any 7 t other· material evidence In support of it implicating the accused the court may, after warning· itself oft-he danger of doing so, act on th.a't evidence to convict the accused if it. is fully satisfied that the child is telling the truth. The trial Magistrate failed to make a finding--,on whether the child k~ew the meaning o'f an oath, and, or tb.e du0:~b,Jell the truth and furthermore, whether the said child wa~\~sse·cf'~f'sG;t~ient intelligence to justify the reception of h~r,evi~~ri!,~~h~~ regard the trial magistrate failed to comp~y·witQ tfll•ma~datory provisions of . . Section 127 (2) of the Ev1denc.e-.Ach. 1-967.:.Ir,s,-my '., '"':·-: .. -~~~'S, \) considered view, . . ~ .......: '-........ - }'' ,.... ' :) \.... this was a fundamental irre§uldrity,, which .. occasioned a failure of l" /-· '-. ',, "·, ......, ·. I ". " --._:, justice. ( { /..'°', "'-~. ':--,, . \ (,;.-"-'\..,.""- '\.j In reIa t.,o_ n t o<~t·h~, ~(\, d. ..,,.groun e,se'cson ) j d o f appea I, th e appeII an t k_>- '\., "' '- __.. - supm itted t@~t'set:tipn 34~"-(2) of the Tanzania Evidence Act, 1967 . '\_~ j~-~ was ImRr.Qr2er t:r~eet---~'> v ~~~.·· . · . . ~--;'. issue f~} determination in .this appeal is whether there was suff1c1en~.::99~ce to ground the conv1ct1on of.the appellant. The written statements of the three witnesses were admitted by the trial Magistrate. The written statements of

the witnesses were basically the evidence _upon which the conviction of the appellant was founded. But were the statements tenable in evidence? 8 . ( As per section 34B (2) of the Law of Evidence Act, 1967 under which the statement of the complainant was admitted reads as follows: " A written statement may only be admissible under the section - (a) Where it maker is not called as a witness, if he is dead or unfit by reason of bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to coll him as a witness,• or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not 7dentifiable or by operation of any law he cannot attend." After perusal on the court pro~eedings I have found that on 10th April 2015 the case was adjourned and the prosecution case stated that they do not have witnesses. On 24 th day of April, 2015, the prosecution side. requested the trial magistrate to use· the evidence of Margret Raphael, Fatma Jumatatu and Benjamin Juma under section 34B (2) (a} of the Evidence Act, Cap.6 [R.E 2002) and the prosecution side requested to attach summons of witnesses as evidence. The request of the p'.osecution was granted, the trial court admitted the evidence under that particular circumstance and the 9 trial magistrate stated that if there is no

objection from the accused person. · The accus·ed was served with a copy of witnesses' statements and on 13 th day of May 2015 the accused person objected its production -and he stated that he was not sure if· it was written by witnesses. But the trial magistrate overruled the statement of the accused and proceeded to admit the written statement of the witnesses since they WE?re made before the police officers and the same were marked as exhibit R4, RS and R6. · The mandatory requirement of section 34B (2) (a), (b), (c}, (d),(e} and {f} are dearly elaborated. Subsection (e) requires the written evidence to not being objected by any party within l O days. In this case at hand the appellant objected the written evidence a day after he_ was required to fi.le his objection and his statement was recorded. Even the trial Magistrate himself as shown at page 8 of the court proceeding stated that " ... the court may admit the · evidence under such circumstance if there is no objection from the accused person. The Court of Appeal in the case of Twaha s/o Ally and 5 others v the Republic Criminal Appeal No. of 1998 stated that: "... it is a common knowledge that all the conditions stipulated under this sub-section are cumulative and must be 10 · satisfied by.the prosecution before the statement is· admitted in evidence.". · The_ same was sta"ted 1n the cas.e of Ham1si Mhina

Criminal· Appeal No. 83 of 2005 (unreported} the Court held that " For a statement . to be admitted in court in lieu of. oral dir~ct evidence, under section 34B ( 1} (qf ~e conditions stipulated in sub-sectton (2) (a) to/ (Q mus't~o~c?mplied with." \·,\·-~ ~.,, .,. ...... ~ \/j1/ ... . c~ \ .\ ;;/-~~ . I have carefully gone through if aritJ~krot-~¢(the tri~l court did . . ,,-·· . ··, \ \ . ,,_ " . not comply wit~ ~II the con~~tion.~.;..~i\~~~-..1~:~~c1ion 3_4B_ (2} and \"\ ..... , ...__ -therefore the written evidence 'of {he ·thr~e witnesses were improper ✓•·, '--,. ·, '-._, ' , admitted in evidence and ought to-be dise::ount. . !_, . -~ '· '-. - I -{ ,,,.-,.~-.. . , . ·,. . '> \ \ / r' '-. \., 'v /', \ ~ v ..., .·, With these sho1-tiblls l'am satisfi~d that the exhibits R4, RS and R6 I ~ ·tt~"- were wrongv(a~~, ·eu~r.i~~d.: .../ ev1 ence. It .is ac_cor d.1ng Iy expung~ d from th_e reg0f<Sl,)-iJvi0,g ~;punged exhibits R4, RS and -R6 from the con,·1ct1on. , . "· ~" recora:--:fM'e~e~~~hJch remains is not sufficient to sustain the . //. . . of\the OQpellant as the witnesses were _not present to . testit}~~ th➔}ritten evidence which was used to convid the appellant..~~expunged and even the ·v1ct1m did not testify the commission of the offence. For the said reasons, I allow the appeal, quash the conviction and set aside the sentence. The appellant has to be released from 11 ... . pnson forthwith, unless he is withheld for other lawful cause. It is accordingly ordered. lt •is so ordered. 12