mohamed rafik ramzan vs smz 1986 tzca 36 5 december 1986

IN THE COURT OF APPEAL TANZANIA AT ZA NZI BAR CORAM: NYALALI, C.J. ; MUSTAFA, J . A - ; M A K A K E . J.A. ; KISANGA, J. A. .AND OMAR, J » A « CRIMINAL APPEAL NO. 81 OF 1986 MOHAMED RAFIK R A M Z A N .....APPELLANT And s .m .z . ............................. respondent (Appeal from the Conviction of the High Court of Zanzibar at Zanzibar) (A. Ramadhan, C.J.) dated 5ti\ September, 1983 in Criminal Session,; Case No. 4 of 1983 JUDGE m e :-. -F_ T!J .ISANGA, J . A « This 'appeal arises from the decision :•?: fch^ High Court for Zanzibar (Ramadhoni, C.J.) sitting at Zanz: b;,r in v the appellant Mohamed Rafik Ramjan was convicted of th<= r v rder o-■ v-lf-? and was sentenced to death. The bjrief facts of the ccse were as follows?-- The appellant and the deceased had been married for quite soma time during which they brought #oyth five children. The'.r carrier life, however, was not a very happy One; it involved q u a r r ’is, ' b e t i m e s between the spouses themselves and sometimes between the appellant or the deceased on the one hand and ^V^bers of the deceased's family on the other.:, It would seem also that .A the appellant was a man of straw, and the deceased carried Qn patty businef$ea from which she secured an income with which to sustain the family, The case for the prosecution was that on the material day, the deceased had sent the appellant tc ;..u/ con-.• , but that the appellant brought less rice than he was givm. oncy £.r This led to a quarrel resulting in the appellant pouring kerosene on the deceased and setting her on fire. The deceased suffered severe burns all Over her body., She died njne days later as a result of shock ard consequer.cial effacts of such severe burns. Th~ appellant' - defence .--s that the burning of the deceased was accidental. It happened when the deceased was in the kitchen cooking while he was in his room sleeping. He w=*.s awakened by the noisos being made by the deceased and when he went to the kitchen and saw her .....n - 3 - The learned Chief Justice then went on to consider the avidsncc of children. In connection with the dying declaration, he properly directed himself that the evidence of children could not corroborate tha dying d e claration because that evio i-' self required corroboration, citing the case Of S°lu wa Tatu v. R. (1934) E.A.C.A. 183. However he went further and said that despite the rule that evidence which requires corrobo r a t i o n cannot itself corroborate, he found that the evidence of Sa id*<P.Wf *2 ), one of the children in this case, was consonant or in agreement with the version of the dying declaration which he chose to accept. We are not at all sure what the learned Chief Justice meant by this. We cannot quite reconcile that observation- wi%h the rule in SQlu Tatu* s case which he cites. However, for our part since we have come to the conclusion that the said dying declaration was of no probative value, it follows that the question of its corroboration no longer arises md we shall only proceed to consider the c h i l d r e n ’s evidence, independently of the declaration, with a view to seeing whether that evidence by itself or together with some other credible evidence could support tha charge. Counsel for the appellant raised two main criticisms in connection with the children's evidence, namely, that no voire dire examination was conducted fcefOre receiving that evidence, and that there was no other evidence %o corroborate it. Three children gave evidence in this ease as P.W.10 (Ramzan), P.W.ll ularzia) and P.W.12 (Saida), all being the children of the appellant and the deceased. The learned Chief Justice found that at the time of giving evidence P.W.10 and P.W.ll were under 12 years of age while P.W.12 was about 12% years old. He pg^nittad P.W.10 P .W.ll to give evidence without affirmation but recorded P.J.12's evidence after affirming her. In the course of his judgement he stated that in SO doing he had acted under the provisions of section 118 of the Evidence Decree (Cap.5) and section 145 of the Criminal Procedure Decree (c ap«14), The relevant part of what he said reads as follows:- 'NilipOridhika chini ya k ifu’~c i 118 c a Evidence Decree (Cap.5) l^uwa (watoto) wote watatu w ; -o ufan-.mu na akili za kutosha kuelewa maswala na kutoa m;i ;. u. yake niliwakubali kutoa ushahidi. Ramzan na Marzia .ikuwalisha kiapo. Kifungu cha ^4§ Cha.Criminal Procedure Decree (Cap.14) kinahitaji Ushahidi wote katika kesi za j inai uwe kwa kiapo iia Mahkama inaweza kuchukua bila kiap° ishahidi wa mtoto mdoga,'* A free translation of this r- ads:- - 4 - "UpOn being satisfied under section 118 of the Evidence Decree (Cop,5) that all the three (children) are possessed of suff­ icient knowledge and intelligence to understand questions and to give answers thereto, I admitted them to give evidence, R amzan and Marzia I did not affirm them. Section 145 of the Qriminal Procedure Decree (Cap.14) requires all the evidence in criminal cases to be upon affirmation, provided the Court may take Without affirmation the evidence of a small child." Mr. Lalcha bitterly complained that the reception of that evidence was not preceded by any or sufficient investigation by the Court with a view to assef#ing the children's level of intelligence and ability to under­ stand questions put to them and the answers to those question^. In the c i r cumstances Mr. Lakha submitted that the evidence so recorded was eit h e r inadmissible or should be accorded no weight at all. In support of that view he cite-d the case of Kibanqeny arap K Q l l l v. R. (1959) E. A. 9*# Xt pertinent first of all to set out the provisions of section 118 of ^he Evidence Decree (Cap.5) of Zanzibar which the learned Chief Justice relied upon to receive the evidence of the three children generally. 'Riot section says:- (1) All persons shall be competent to testify unless the eoujrt considers that they are prevented from understand­ ing the questions put to them, or from giving rational answers to those questions, by tender years, extreme old ege, disease, whether of body or mind or any other causa Of the same kind." The rest Of the section is no); r e l c nt to the issue at hand. In the co ntext Of the present case the sub-section is saying in effect that although every person is prima facie competent to gfve evidence, a child o.jOuld mot be admitted to give evidence if the court is satisfied that by reason of its tender age the child does not understand the questions pu t to i% or cannot give rational answers to those questions. This means that there must be some material by way of a preliminary examination of the child on which the court is to base its opinion or is to be satisfied that the child is or is not prevented from understanding the quastions pu t to i^ oy f r o m giving, rational answers to those questions. Indeed it would seem that the learned Chief Justice was aware of the need under this section for him to be so satisfied, and that is why he made the endorsement, as quoted above, citing the r e l e v a n t law. m 5 9 But he made that endorsement -only in the «ou*s^ of the judgement,, This is where he went wrong; he ought to have made it earlier. To b-1 exact, the endorsement which is to follow upon a preliminary ^xaminrjfcioj} should p^e^ede the actual recording of the witness's evidence so thit in the eyenti %h£ ■GSUUCt. GOn*i.&avSr -Or is *»tis-£i»d that '%he c h i l d i^r qpmpecen| testify at all then it should proceed to a*«lude' tha -ehild from- giving eifidsn*©. Section 145 of the Criminal Procedure Decree (C»p.l4) which the learned f h i e f Justice railed upon to receive the evidence <3f J M i . it -upoj* a.£firrasticn and ijhat °f P»W.10 and P.W.ll without ■af€i«ft«±iow jpsads*-- •'145. Ey-ery Witness in any criminal cause or matter shall be examined upQn oath or affirmation, and the court which any witne*s fhall »P4*ear shall have full p©v*er -and authority administer the usual -Oath oc a##iirm^tion: Provided that the court may at any time, if it things it just and expedient, -(for -r«asorxs to be recorded in the proceed­ ings), take without oath the evidence of any p^jr«on daciaring that the %$king of any oath whatever is according to his reli-giCKi* belief unlawful, or who by reason of immatuj*<2 age Q# want 9# feligiOus belief cvughfc not, in the opinion of tha fOurt, t<5 be admitted to give evidence on oath; the fact of %he evidence liavijr? T>aen. -s© taken 5>©ing also rocojrd»d in tha p^roceediaf^** Once again tha «o*iext of this case the provision means that although the euidei^e of witn<3»ses in criminal cases is receiveable upon affirma­ tion, ^he 4|Ouj^% may admit a child to give evidence without affirmation if, for Reasons to be re«©j*ded, the court is satisfied that by raason of i£s imrtatujre age the ehild ought not be admitted to give its avidence upon a#fiafn^ti0 n » As under the provisions of section 118 of tha Evidence >ee discussed earlier, this necessarily means that there must ba a preliminary examinati°n the child on which the Court shall basa its opinio* whaj^ejp Or not the child should be affirmed. If, on ths information before it and #QJf reasons to be recorded, the Court is satisfied that by reason of i*s immature age the child ought not to be affirmed, th";:i ihv; cOul?t should proceed to receive the evidence of such child without affirm­ ation. I#, on tht- Other hand, the court is satisfied that tha child, despite its immature o q e , should ^ive evidence upon affirmation tlv--n it should accordingly proceed to admit such child to give its e^id^nca upon affi^mationj giving xveusons, fox d$ing so. As intimated earlier, the learned Chief Ju.itxce attempted to give his reasons for allowing P.WolO ar— P.U.ll to give evidence not upon affirmation but, again as pointed Ju4- before. th:.s .'as doni only in the course of the judgement and it was not preceded by any preliminary examination of the children- What 1j more, the leerned Chief Justice gave no reason whatsoever why he d-~: ;.ded to receive upon affirmation the evidence of P.W.12 who, being of the apparent age cf only 12% years, w a s clearly a child of tender years- While it is apparent that the provisxw,.>. of section 118 of the Evidence Decree (Cap.5) and the Cr .:\,i:>3 l Pro-”ed<_,-~ Decree (Cap. 14) of Zanzibar are complimentary, it see.v.s desirable here to summariza briefly on the combined operation of the twe provisions, respecting t h ? evidence of children of tender y e a r s , as fol’ o A-s:- -hen a child of tender years is presented before the cou: c: as a p-”' spec ' wit:.ess in a criminal case, „he court is to conduct a prelitnir^.rv ,?xam'.u.;. - f i r r t , with a view to being satisfied whether in the 1:. t of ts v^nder age the child is rendered incompetent to testify, th?* is, wh '-'.her the child is prevented from understanding the questions nut ro it cr from giving rational answers to those questions. If the court in so satisfied, then it should proceed to exclude the child from giving evidence at all and that would ba the end of the matter. If, however, rh« ^ourt is .vJ. sfied that th-s child is competent to testify then it shoj'd go f .rther in its preliminary ex amination with a view to being :: .•„isfied r\u. -•he whether or not the child, by-'reason Of'.its tsnd;^ 7. , , t not-ro be sworn or affirmed before it gives the evidence. If tne cour^ is satisfied in favour of an oath Or affirmation then it should ^ r r o r d i n t ■V proceed to receive that ^kldence upon Oath or affirn..;■,j.-r: ; it is .-o ,d a ed otherwise then it should accordingly proceed to adm: t the chi e f: evidence without oath or affirmation, in either case givino •*. 'sons adopting the particular course. At first Mr. Lakha took the --lew that since the procedure as o u t ­ lined above was by and large not complied with whon recording the evidence of the three children, then ;_he e>-; :c: rf the said children was rendered inadmissible and should be ignored a.i a result. However, on second thoughts he rightly conceded that such error did not render that evidence inadmissible but only affected the reliability of, or the weight to be attached to, such evidence. The matter took a more interesting turn when Mr. Hamidi Mahamud, learned State Attorney appearing for the State, submitted that in any event the trial judge was not bound by the rule requiring -corroboration of children's evidence. In support of this view he cited the provisions of section 9 of Presidential Decree No. 11 of 1969 which reads:- "9. The Court shall formulate its own proc-edure and rules of evidence and shall not be bo-und by rules of procedure or evidence contained in any existing laws,'* He strenously contended that it was open to the learned Chief Justicc, acting on that provision, to- depart from. the rule requiring corroboration of children's evidence. This matter was dealt with at length in Criminal Appeal No. 80 of 1986 which we heard during this same Sassions of the Cou r t and in which substantially the same point was caisad. I t is not intended to recapitulate here what we said in that case, Sufficc it *o say that in this case the learned Chief Justice made it very claar that he was acting under the provision^ Qf tlvs Evide«c-e (Cap.5), the Criminal Proce-dure J>e«r-&» (Cap. 14) and the Oaths Decree (Cap.7) of the Laws of Zanzibar and the case law pertaining the r e t o » so that the question of his having acted under some other set of rul-2 s does not really arise. Apart from the dying declaration of the deceased and thi 'evidence of children, there was no other evidence tending to implicate tha appellant with the offence charged. But as stated earlier, no weight at all could attached to the dying declaration and, as tha learned C h ief Justice properly directed hirnse^,;, the evidence of the children can n o t be acted upon in the absence of corroboration. Thus we ars satisfied that the evidence so far adduced did cast some suspicion on the appellant as the culprit, but that it fell far short of the standard of proof required in a criminal case. In the event we allow tha appeal, quash the conviction and set aside the sentence. It is further ordered that the appellant be s©t free forthwith unl-e-ss ba is otherwise lawfully held in custody. DATED at ZANZIBAR this day of 1987. - 9 - F„ NYALALI CHIEF JUSTICE Ao MUSTrtF A JUSTICE OF APPEAL L.M. M a KAME JUSTICE OF APPEAL R.H. KISANGA JUSTICE OF APPEAL A.M. A. OMAR JUSTICE OF APPEAL I certify that this is a true copy of the Original, O REGISTRAR