CRIMINAL APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 18583 OF 2024 (Originating from the decision of the District Court of Masasi at Masasiin Criminal Case No. 99 of2023) NESTORY GEORGE MICHAEL....... ....................... APPELLANT VERSUS THE REPUBLIC............................................. RESPONDENT JUDGMENT 11th September and 29* October2024. DING'OHI, J, The primary school teacher, Nestory George Michael, the appellant herein, was charged in the District Court of Masasi district at Masasi with the offense of Rape contrary to sections 130 (1), (2) (e), and 131 (1) of the Penal Code Cap 16 R.E. 2022. It was alleged that, on the 15th day of September 2023, at Mkalapa village within Masasi District in Mtwara Region, the appellant had carnal knowledge of a thirteen-year-old girl. To conceal her identity, the girl shall be referred to as the victim or simpiy, PW1. Page 1 of 24 The appellant pleaded not guilty to the charge. In a thirst to prove the charge, the prosecution side at the trial flaunted seven witnesses. They also tendered two exhibits to wit; the victim's birth certificate (Exhibit Pl) and PF3 (Exhibit P2). The appellant was the lone witness for the defence side. After a full trial, he was convicted as charged and sentenced to serve 30 years' imprisonment. Unhappy with the conviction and sentence of the trial court, here is the present appeal by the appellant before this court. Before embarking on the merits or otherwise of this appeal, I deem it appropriate to give, albeit a brief background of the case that led to the appellant’s conviction. It started like that; on 14th September 2023 was the day for the Graduation ceremony in which among other pupils, the victim was celebrating her successful completion of the standard seven education at Mkalapa primary school. In celebration, the appellant was invited by Rose Shaibu Maokora (PW2) to attend the ceremony. The record shows that he attended. At the end of the ceremony, PW2 who is the victim's aunt, and who organized the party, gave the appellant TZS. 30000/- in gratitude for Page 2 of 24 giving education to his daughter until she reached the stage of completing standard seven. On the day of 15th September 2023 around 2:00 hrs the victim was called by the appellant to go to his house to take her plastic tin because during the exams the students were fetching water and the victim stored her tin at the appellant's house. After arriving, the appellant held the victim's hand and brought her to his room. In the room, the appellant pushed the victim onto the bed, took off all her clothes, and inserted his penis into the victim's vagina. The victim felt pain for the act. She cried but the appellant managed to cover her mouth by using his hand as a means to block the sound of cries. By then the victim's aunt (PW2) was at home waiting for her to come back. Instantly, the PW2 got a call from the victim's father who asked her to go to school immediately because his daughter was in the teacher's room. PW2 proceeded to the place through his sister's house who lived near the school so that they could go together. At the same time the victim's father through the phone called Faraji Jafari (PW3) who is a 'bodaboda' driver and asked him to come with Sostenes Emmanuel Namkoko (PW4) who is 'mgambo'sa that they could help in the arrest of the appellant. Page 3 of 24 When they arrived, they found a boy who told them that the appellant was not at home. They were confused. That is because PW2 had knocked on the door and heard the victim's voice. The decision followed that the door of the appellant's room had to be broken. It was so done. The PW4 broke the door, and after getting in, they found the victim on the bed of the appellant while naked. The appellant was not seen. The search was conducted in the room which resulted in fishing the appellant from under the bed where he had hidden himself. The appellant was then arrested and taken to the police station where the PF3 was issued to the victim. The appellant was examined at Ndanda Hospital by the PW7 Dr. Goodluck Mmali who reported the examination results in the PF3 (Exhibit P2). In the examination, the PW7 found dirtiness in the victim's vagina with blood and bruises. That is alleged to have been caused by a blunt object being entered in the victim's vagina. The PW6 NO.E.8206 D/Sgt Sangwa investigated the case. After he was satisfied with the evidence he sent the police case file to the DPO for directives. The appellant was then taken to the trial court and charged as he stood. Page 4 of24 In his defense, the appellant denied every detail given by the prosecution witnesses at the trial court. He recounted that on 15th September 2023 at 2:25 he was at his house waiting for his student (Athumani Bertram Karo) to bring the potatoes that he sent him to buy. Unexpectedly, he heard the knockings accompanied by the sound of one of them, "hodi hodi". He assigned Karo who was not among the witnesses in the trial court, to go outside and see who was knocking. The appellant heard Karo exchanging words with the person who was knocking on the door though he did not capture well what they were talking about. According to the appellant, one of the people who entered his house was PW4 Sostenes Emmanuel Namkoko who told him that 'siku zako zimeisha'. The PW4 started beating the appellant. As a means of reducing the effects of being beaten up, the appellant ran into the house and went to lock himself in one of the rooms while pleading for assistance. While in the hiding room, the appellant heard from outside that he 'slept with the victim of this case. The appellant was then arrested from inside his house and taken to the police station and then to the trial court. After considering the evidence by both sides the trial court was satisfied that the prosecution evidence against the appellant proved the Pages of24 charge against the appellant. It believed the evidence that the victim was found in the appellant’s room naked while the appellant hid himself under the bed after he found that people entered the house in search of the victim. In other words, the trial court found the prosecution witnesses credible on their respective evidence against the appellant. The appellant is dissatisfied with both the conviction and sentence imposed by the trial court against him. In his petition of appeal, the appellant fronted three grounds as follows; 1. That, the trial court erred in law and fact by convicting and sentencing the appellant while the prosecution failed to prove the case beyond reasonable doubts. 2. That, the trial court erred in law and facts by convicting and sentencing the appellant by relying on the testimony ofPW1 that was illegally obtained. 3. That, the trial court erred in lawand facts by convicting and sentencing the appellant without considering his defense. At the hearing, the appellant was represented by Mr Ahyadu Nnanyuhe, the learned advocate whereas Mr. Edson Laurence Mwapili, the learned State Attorney appeared for the respondent Republic. Page 6 of 24 Upon taking the floor Mr Nannyohe opted to consolidate the first and second grounds of appeal and requested that it be read that the trial court erred in law and facts by convicting and sentencing the appellant while the prosecution side has failed to prove the case beyond reasonable doubt. Mr Nannyohe submitted that for the criminal charge to be proved to the required standard the prosecution side must ensure that all doubts have been cleared and resolved. He argued that the prosecution did not prove the charge before the trial court to the required standard because, in the first place, the victim's evidence was taken illegally. In elaboration, the learned advocate referred to page 3 of the trial court's typed proceedings where, he submitted, that at the time the victim testified before the trial court she was 13 years old. According to section 127 (4) of TEA, the witness ought to have testified in compliance with section 127 (2) of TEA and not section 198 (1) of CPA. The learned advocate referred the court to the cases of Hamad Salum Hassan @Chinga vs Republic (Criminal Appeal No. 386 of 2021) [2023] TZCA 44 and Asha Xsmail Chanchoni vs The Republic (Criminal Appeal No. 1086 of 2024) [2024] TZHC 6753. According to the learned advocate, if the evidence is taken in Page 7 of 24 contravention of section 127 (2) of TEA, should be disregarded and expunged from the court records. According to Mr. Nnanyohe, another area that shows that the prosecution side failed to prove the charge beyond a reasonable doubt is that which touches the issue of the credibility of the prosecution witnesses. He argued that when PW1 testified as shown on page 4 of the trial courts typed proceedings, it seemed there were only two in the house. He says that evidence contradicts the testimony of PW2 as shown on page 8 of the proceedings, who told the trial court that in the house there were more than two persons. The learned advocate was of the view that if the evidence of witnesses contradicts each other, such evidence should not be taken as it is. He bolsters his stance with the position stipulated in the case of Pascal Sele vs Republic (Criminal Appeal No. 23 of 2018) [2019] TZCA 18. On the second ground of appeal, the learned advocate contends that in its judgment the trial Magistrate did not consider the defence evidence. Also, he committed the improper evaluation of the defence evidence. Mr. Nannyohe reminded this court of the guided positions regarding the issue of evaluation and considering the defense evidence as insisted in the cases of Kaimu Said vs Republic (Criminal Appeal No. 391 of 2019) [2021] TZCA Page 8 of 24 273, and Rashid Said Masumai vs Republic (Criminal Appeal No. 162 of 2020) [2023] TZCA 17667. Mr. Nannyohe further blamed the trial court magistrate for failing to evaluate the evidence and not considering the defense evidence. Explaining that the learned advocate contended that the trial court's judgment has 9 pages, of which 6 pages summarized the evidence of both sides but only one page carried the analysis of the evidence. It is submitted that in a serious case like this, rape, one cannot expect the court's evaluation of the evidence by one page. In response, Mr Mwapili prefaced by supporting both the conviction and sentence meted out against the appellant. The learned counsel essentially argued in the same way that the appellants learned advocate did. However, he preferred to begin with the last ground of appeal where in his submission he stated that there are words used by the trial magistrate one may think that in the decision the trial magistrate considered the prosecution evidence only without considering the evidence of the other party. According to him, that is not true. Page 9 of 24 Even assuming that the trial court did not consider the defense evidence this first appellate court had powers to step into the shoes of the trial court and do what the trial court ought to have done and arrive at its conclusion. Turning to the first ground which has two limbs, the learned State Attorney contended on the first limb that the evidence of PW1 was legally taken per the requirement of the law. He added that if this court finds that the evidence of PW1 was taken contrary to section 127 (2) of TEA it is curable under the amendment made by The Legal Sector Laws (Miscellaneous Amendments) Act, 2023, Act 11 of 2023. According to him, the evidence of a child of fender age taken contrary to section 127 (2) of the TEA shall not be rendered inadmissible. The judgment of the trial court was delivered on 28th March 2024 when the said amendment made under the Legal Sector Laws had already started its operation. On the second limb of the first ground of appeal, Mr Mwapili maintained his position that they managed to perform their statutory duty per section 3 (2) of TEA. In emphasizing his perspective view, the learned State Attorney argued that considering the offense that the appellant was accused of, they have managed to prove all the essential elements of the offense as instructed in the case of Abel Changwe vs Republic (Criminal Appeal No.546 of Page 10 of 24 2019) [2023] TZCA 17537. According to him, those essential elements are; First, that PW1 (victim) was under the age of 18 years on which they tendered a birth certificate which was admitted as Exhibit Pl; Second, Penetration, and Third, who is the perpetrator of the offense. The learned state attorney did not end there. He submitted that there was corroborative evidence in that the testimony of PW1 was corroborated by that of PW2, PW3, and PW4 who arrived at the scene and saw PW1 naked at the appellant's house while the appellant himself was hiding under the bed. The learned State Attorney continued to argue that not only that but the evidence of PW1 was also corroborated by the evidence of PW7, the doctor, who confirmed that on examination the victim's vagina was found to have been penetrated by a blunt object. According to him, they have managed to prove the charge against the appellant to the required standard. On the alleged contradiction of the prosecution evidence, the learned state attorney dismissed that complaint. He argued that there is no contradiction in prosecution evidence. What is regarded to be a contradiction is a variance of time mentioned by PW1 and PW2. There is a possibility that the witnesses at first saw the appellant as alone but after some time another person was also seen. The fact is that those witnesses did not go by an Page 11 of 24 appellant at the same time, they may have gone there differently. You cannot say therefore that there is a contradiction. In his rejoinder, the learned advocate for the appellant has simply reiterated what he has stated in his submission in chief. After careful consideration of the submissions from either side, grounds of appeal, and the trial court record before me, I find that the outcome of this appeal hinges on three major issues namely; One, whether the trial was flawed with procedural irregularities such as the recording of the victims was done contrary to section 127 (2) of TEA; Two, whether the charge against the appellant was proved beyond a reasonable doubt; and three; Whether the trial court magistrate considered the defense evidence in arriving at its decision. To begin with, I feel safe to start with the complaint on the procedural irregularities in recording the victim's evidence contrary to section 127 (2) of TEA. Since the application of the provisions of section 127 (2) of TEA is being complained of, I find it apt to quote herein down, for ease of reference, it provides that: 727 (2) A child oftender age may give evidence without taking an oath or making an affirmation but shall, before Page 12 of 24 giving evidence, promise to teii the truth to the court and not to teii any ties.' Subsection 4 of section 127 of the aforementioned Act defines who is a child of tender age. It reads that; fl} For the purposes of subsections (2) and (3), the expression "child of tender age"means a child whose apparent age is not more than fourteen years.' From the above provisions, it is clear that a child under the age of 14, like PW1, is capable of giving evidence without taking an oath, but before giving such evidence, he must promise before the court to tell the truth. In light of the arguments of both parties, I had ample time to revisit what transpired in the trial court proceedings regarding the recording of the PWl's testimony. It is glaring on page 3 of the trial court typed proceedings as follows; 'PW1:13yrs, Mwera, student, Mkalapa, Christian. I witness take oath before Court andstate as follows. Victim: I know the truth, and I know the meaning of oath, that a person must speak the truth, and I myself in this case I speak the truth and not vice versa. I magistrate, worn myself overtaking evidence of the victim.' Page 13 of 24 From the above extract, PW1 started taking oath before she even promised to tell the truth which is against section 127 (2) of TEA. However, as rightly argued by Mr Mwapili, according to the current amendment made under the Legal Sector Laws (Miscellaneous Amendments) Act, 2023, Act 11 of 2023 the PWl's evidence cannot be invalidated merely because prior, the said PW1 started taking the oath before she made a promise that she would tell the truth. However, I am aware that this case's incident happened before the amendment made under the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 which is dated 1/12/2023. The incident of the case subject to this appeal occurred on 15/09/2023. However, various decisions of the Court of Appeal insist the court be bound by the provisions of the new law even by events that happened before the amendment because all procedural laws have retrospective effect unless otherwise provided in the new amendment law. In the case of Lala Wino vs Karatu District Council (Civil Application No. 132 of 2018) [2019] TZCA 46, the Court of Appeal of Tanzania quoted With approval the decision in the case of Director of Public Prosecutions v. Jackson Sifael Mtares & Three Others, Page 14 of 24 Criminal Application No. 2 of 2018 where the Court cemented the position by excerpting from a book of the learned author -A.B, Kafaltiya titled '’Interpretation of statutes'; 2008 Edition, Universal Law Publishing Co., New Delhi - India, at page 237 in the following passage: 'No person has a vested right in any course of procedure, but only the right ofprosecution or defence in the manner prescribed for the time being, by or for the court in which he sues. When the legislature alters the existing mode ofprocedure, the litigant can only proceed according to the altered mode. It is well settled principle that ’alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.' The rule that 'retrospective effect is not to be given to laws' does not apply to statutes which only alter the form of procedure or the admissibility of evidence. Thus amendments in the civil or criminal trial procedures, law of evidence and limitation etc; where they are merely the matters of procedure, will apply Page 15 of 24 even to pending cases. Procedural amendments to a law, in the absence of anything contrary, are retrospective in the sense that they apply to all actions after the date they come into force even though the action may have begun earlier or the claim on which action may be based accrued on an anterior date. Where a procedural statute is passed for the purpose of supplying an omission in a former statute or for explaining a former statute, the subsequent statute relates back to the time when the prior statute was passed. AH procedural laws are retrospective, unless the legislature expressly says they are not.' Also, the Court of Appeal of Tanzania in the case of Damian Manyika ©Babu Tanga vs Republic (Criminal Appeal No. 306 of 2022) [2024] TZCA 451 observed inter alia XJxaXr, 'In light of this provision, we agree with the appellant that the way the said promise was recorded was irregular, In John Mkorongo James (supra) the Court stated that, the promise to the court under section 127 Page 16 of 24 (2) of the Evidence Actshould be in direct speech and complete. Therefore, the promise given by the victim was in contravention of section 127. It is to be noted, however, that Section 127 was amended in 2023 by Act No. 11 of 2023 and a new subsection (7) was added which provides: 'Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence ofsuch child inadmissible11. Therefore, this new subsection (7) has cured the said anomaly raised by the appellant. The testimony of the victim is, therefore, admissible and the ground ofappeal lacks merit and we dismiss it.' See also other recent decisions in Abdul Akwilina Mramba &. Others vs Republic (Criminal Appeal No. 342 of 2021) [2024] TZCA 704, and George Jonas Lesilwa vs Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269. Being guided by the above authorities I think what should be considered under the circumstances of this case first is the issue of the credibility of PW1 when she testified before the trial court. In her evidence, PW1 testified before the trial court that during the standard four examinations, they fetched water and preserved it for use in Page 17 of 24 the house of the appellant, the teacher. She left the water container (tin) at the appellant's house after the appellant advised her to come there later to collect the container used to take water to the appellant. When the victim went there as advised, she found the appellant at his house when alone. The appellant held the PW1 and pulled her to the bed of his room where he undressed her clothes (underpants, gauni, and tight). He then proceeded to penetrate his penis into the PWl's vagina. At that time the appellant covered the PWl's mouth with his hands as a means to disallow any sound from the cry. The PW1 felt pain. After a full examination of the testimony of PW1, as shown on page 4 of the trial court proceedings, I have found that she was coherent enough and worthy of belief. She mentioned the appellant and elaborated in detail how the appellant raped her. I have dutifully considered her evidence along with the evidence by other witnesses available in the trial court records. I am satisfied that the evidence by PW1 is nothing but all she testified against the appellant is truth and needs no reassessment. The first limb of the first ground of appeal is therefore dismissed. Under the second limb of the first ground of appeal, the complaint by the appellant is that the prosecution party at the trial court failed to prove Page 18 of 24 the charge against the appellant beyond reasonable doubt. The learned advocate for the appellant has submitted that PW1 and PW2 were not credible witnesses because their testimonies are contradicted to the extent that according to what PW1 testified, it seems there were only two people in the house, while PW2 purified that when they arrived, they found another person, a boy, who told them that the appellant was not there. I have respectively considered that. As to how to test the issue of the credibility of witnesses there are several case laws by this court and the Court of Appeal which have made it clear. However, the general rule remains that a witness is entitled to his credence and deserves to be believed. See; Boay s/o Bura vs Republic (Criminal Appeal No. 570 of 2021) [2024] TZCA 717. Upon scanning the appeal records, I find no point of contradictions in the evidence by the PW1 and PW2 which one may rule that the witnesses were not credible. The appellant's defense that he did not commit the offense was clouded by the heavy evidence from the prosecution side. The evidence is to the effect that the victim was seen by the PW2 and PW4 naked on the bed of the appellant The appellant did not strongly dispute that fact There is no explanation for why the victim was found in that situation on the Page 19 of 24 said bed from the owner of the bed. I am aware that the appellant stated that on the fateful day, he was with a boy in his house. Unfortunately, that boy was not called as a witness to support the evidence by the appellant. By so saying, it does not mean that the burden of proof is shifted to the appellant. Only the appellant failed to call the material witness who would assist him to support his explanations. In the case of Gasirali Caps Apogo vs The Republic (DC Criminal Appeal No. 1025 of 2024) [2024] TZHC 7080, the Court of Appeal approved the decision in the case of Paschal s/o John Munisi vs Republic (Criminal Appeal No. 155 "A" of 2021) [2024] TZCA 71 (20 February 2024) (TANZLII), on pages 21-22, where it was stated that; 'The law is settled regarding the affect of not calling a material witness that the courtis entitled to draw an adverse inference. In Boniface Kundakira Tarimo v. Republic, Criminal Appeal No. 350 of 2008 (unreported) the Court said: "It is thus settled that, where a witness who is in a better position to explain some missing links in the party's case, is not called without any sufficient reason being shown by the party, an adverse inference may be drawn against that party, even ifsuch inference is only a permissible one.•' For what I have discussed herein above and as rightly argued by the learned State Attorney, the prosecution side had been able to prove the case page 20 of 24 against the appellant beyond a reasonable doubt as required by law. So, this ground also collapses for want of merits. It is hereby refuted. Lastly is the submission by the counsel for the appellant that in its judgment the trial magistrate did not consider the defence evidence. I have considered the submissions by both sides. Upon scrutinizing the trial court judgment, particularly on pages 7 and 8, it may be taken that the trial learned trial magistrate relied solely on the prosecution's evidence without considering the appellant's defense. However, in numerous decisions, it has been emphasized that where the trial court omits to consider the defense evidence the first appellate court is entitled to re-evaluate and re-appraise the evidence available in the record afresh and arrive at its findings concerning this particular issue. See; Registered Trustees of Holy Spirit Sisters Tanzania vs January Kamali Shayo & Others (Civil Appeal No 193 of 2016) [2018] TZCA 498. The Court of Appeal of Tanzania in the case of Paschal s/o John Munisi vs Republic (Criminal Appeal No. 155 "A" of 2021) [2024] TZCA 71 approved the decision in the case of Iddy Salum @Fredy vs Republic (Criminal Appeal 192 of 2018) [2020] TZCA 1853. The Court stated that; Page 21 of 24 'Itis however, settledprinciple that where the courts below have omitted to consider the defence of the appellant, the Court has the power to undertake the duty with a view to deciding whether or not such defence raises any doubt in the prosecution case.' However, in Registered Trustees of Joy in The Harvest vs. Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139, the Court of Appeal of Tanzania quoted with approval the decision in the case of Joseph Ndyamukama vs N.I.C Bank Tanzania Ltd & Others (Civil Appeal 239 of 2017) [2020] TZCA 1889, where the Court, adopting a definition of that term of re-appraising of the evidence from Cambridge Advanced Learners Dictionary held that; 'the act of examining and judging something or someone again, i.e. doing it again or in a different way.' I have had much time to review the evidence by both sides through the proceedings of the trial court. It is an undisputed fact that on the material day and time, the appellant was at his home. The record is more than clear also that when in his house several people including PW2, PW3, and PW4 arrived at that house to respond to the information that the appellant was with the victim (PW1) on sexual acts. They found the house of the appellant Page 22 of 24 locked. They forced the door open and got inside. In the room, the victim was found on the bed of the appellant nacked. By then, it is alleged, that the appellant was found hiding himself under the bed. The appellant disputes the allegation that he raped the victim. However, upon careful visiting and considering the defense as compared with the prosecution evidence, I find that the appellant's defense falls short of explaining how the victim then, who was a good student to the appellant-teacher, would fabricate the available evidence against him. In his evidence, the appellant exposes that on the day of the incident, he was with a young man named Athumani at his house. But as stated somewhere herein above, the said Athumani was not called to support the evidence by the appellant at the trial court. I am very aware, however, that the accused person has no duty to prove his innocence. What he is required is only to raise doubt against the prosecution evidence. After scanning all defense evidence in the trial court records, I found nowhere the evidence by the appellant in defense made to raise any doubt against the prosecution evidence. The evidence was/is so tight and straightforward against him. I am thus satisfied that the appellant deserved conviction as rightly done by the trial court. Page 23 of 24 It is for the above reasons, that I am impelled to find this appeal devoid of merit. It has to be dismissed as I hereby do. DATED at MTWARA this 29th day of October 2024 COURT: The judgment delivered on the 29th day of October 2024 in the presence of Mr Edson Laurance Mwapili, the learned State Attorney and the appellant who appeared in person. Page 24 of 24