OMARY GODSOM MNZAVA

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWANPAMBO. J.A.. KIHWELO. J.A. And MGEYEKWA. 3.A/1 CRIMINAL APPEAL NO. 176 OF 2022 OMARY GODSON MNZAVA............................................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mwenempazi. 3.) dated the 17th day of December, 2021 in Criminal Appeal No. 32 of 2021 JUDGMENT OF THE COURT 11th & 18th March, 2025 MGEYEKWA, J.A:. This is a second appeal by Omary Godson Mnzava, the appellant, who was before the District Court of Same at Same, charged with unnatural offence contrary to section 154 (1) (a) of the Penal Code Cap. 16 (the Penal Code). It was alleged in the particulars of the charge that on 12th October, 2019 at Sterling area within the District of Same in Kilimanjaro Region, the appellant did have carnal knowledge of a girl against the order of nature. For the purpose of protecting her identity, in this judgment, we will refer the girl as the "complainant" or "PW1". The appellant denied the charge laid against him and as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of three witnesses and one documentary evidence, to wit, the PF3 (exhibit PI). The appellant relied on his own evidence as he did not call any witness. A brief account of the evidence that led to the conviction of the appellant is briefly as follows: PW1 was employed as a housemaid by one Theodora Alyoce Mwacha (PW3), assisting with household chores and babysitting her children, Monica and Gracious. On the fateful date, she was outside washing clothes when she unexpectedly saw the appellant carrying Gracious into the kitchen. Since it was not the appellant's usual practice to carry a child, PW l's curiosity was aroused, prompting her to follow them. Suddenly, the appellant set the child down, and the situation escalated, the appellant abruptly restrained PW1. That was not all. She recalled that, despite her resistance, the appellant grabbed her neck, undressed her pants, and inserted his manhood into her anus. PW1 stated that shortly after, Monica Geoffrey (PW2) arrived at the scene and witnessed the appellant having carnal knowledge of her, prompting him to stop the disgraceful act. Subsequently, the complainant informed PW3 what had befallen her. PW2 supported the evidence of PW1, stating that she was residing at Sterling area with PW3 her aunt, Gracious, her young sister along with PW1. On the material date, PW2 heard a scream emanating from the direction of the kitchen. She proceeded to the kitchen and observed the appellant having carnal knowledge of PW1. There was further prosecution evidence from PW3, a nurse by profession. She was residing at Sterling area with her daughter Gracious, her niece Monica, and PW1, who served as her housemaid. PW3 testified that on the material day, she engaged the appellant to construct a well at her residence. While at her workplace around 6 PM, she received a call from PW1. When she returned the call, PW1 conveyed the shocking news that the appellant had carnal knowledge of her. Thereafter, the matter was reported to the police station, they arrested the appellant. Subsequently, PW1 was taken to Same Government Hospital, after they had obtained a PF3, where she was examined by Dr. Sara Sixbert Mahali (PW4). It was the testimony of PW4 that having examined PW1 she observed that there were signs of bruises in the complainant's anus. She could not see any seminal fluid due to the fact that the complainant took a bath before she went to the hospital. PW4 documented his findings in her medical report - PF3 and the same was tendered in evidence as exhibit PI. The defence by the appellant was a total denial, refuting all the allegations levelled against him. He contended that the prosecution case against him was a framed-up, stemming from a misunderstanding between him and PW3 concerning an outstanding debt. He asserted that PW3 had contracted him to produce 10,000,000 bricks and had provided an initial payment; however, she was unwilling to settle the remaining balance of TZS 700,000/=. The appellant recalled an incident at PW3's residence, where the complainant threatened him that she would do bad things to him. On the whole of the evidence, the trial court's findings were to the effect that the prosecution witnesses presented a credible tale on what transpired at PW3's house. The trial court thus, established that the appellant ravished the complainant. Against this backdrop, the trial court convicted and sentenced the appellant to thirty years imprisonment. The appellant's appeal before the High Court hit a snag, as the first appellate court dismissed it and upheld the trial court's conviction and sentence. Still undaunted, the appellant has preferred the current appeal. He filed a memorandum of appeal containing seven grounds, and in the supplementary memorandum of appeal, he raised four additional grounds. These grounds of appeal can be conveniently reduced to nine grounds of appeal and paraphrased as follows; one, that, the trial court failed to provide the appellant with a complete set of court records, thereby depriving him of the opportunity to adequately defend his appeal, two, that, the first appellate court failed to evaluate the entire evidence on record, three, that, the first appellate court upheld the conviction against him based on PW l's testimony without providing reasons to confirm that PW1 was truthful, four, that the evidence of PW1 was taken in contravention of section 127 (6) of the Evidence Act (the TEA), five, that the testimonies of prosecution witnesses were contradictory and inconsistent, six, that, the first appellate court failed to consider the defence case, seven, that, the trial court erred to believe that the case was proved beyond reasonable doubt, despite failure by the prosecution to call material witnesses, eight, that, the evidence of PW2 was taken in contravention of section 127 (2) of the TEA, and nine, that, the age of the complainant was not proved. At the hearing of the appeal, the respondent was represented by four learned counsel, Messrs. Isack Mangunu, Peter Utafu, Kambarage Samson and Ms. Edith Msenga, all learned State Attorneys. The appellant appeared in person and urged us to consider his grounds of appeal contained in the memorandum of appeal and supplementary memorandum of appeal together with his written arguments. We have dispassionately considered the rival arguments of the parties to this appeal in the light of the record of appeal, the grounds of appeal, and the substance of the written and oral submissions in the hearing of the appeal. We should now be in a position to confront the grounds for determination and revert to the details of the parties' arguments in the course of determining the issues involved. On the first ground of appeal, the appellant contended that the trial court failed to provide the appellant with a complete set of court records thereby depriving him of the opportunity to adequately defend his appeal. In response, Mr. Utafu contended that, this ground of appeal is a new ground that was neither raised nor addressed in the first appeal at the High Court. The learned State Attorney reiterated the established principle that a second appellate court should not entertain matters that were not raised before the first appellate court unless the same raises a point of law worthy of consideration. To support this proposition, he cited Rule 72 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), emphasizing that the grounds of appeal from the first appeal must be those claimed to have been incorrectly determined by the first appellate court, or otherwise, must be grounded on points of law. Consequently, he urged the Court to disregard this ground as it lacks legal merit. The Court has consistently ruled in numerous decisions that it will not consider or address grounds of appeal that were not raised in the first appellate court. In Sadick Marwa Kisase v. Republic, [2013] T.L.R. 475, the Court held: 'The Court has repeatedly held that m atters not raised in the firs t appellate court cannot be raised in the second appellate court." The position was reiterated in Emmanuel Josephat v. Republic, Criminal Appeal No. 323 of 2016 (unreported), where the Court held that it will not entertain grounds of appeal raised for the first time on appeal, due to lack of jurisdiction. This position is grounded on the provisions of section 6 (1) of the Appellate Jurisdiction Act, Cap. 141 (the AJA), where this Court derives the mandate to address appeals from the High Court or a subordinate court exercising extended powers. Mr. Utafu beseeched us to disregard the first ground of appeal, as we hereby do since the said ground is new which was not raised and determined by the first appellate court, and are not on point of law. As such, we dismiss the first ground of appeal for lack of substance. On the eighth ground, the appellant in his written submission contended that PW2 evidence was taken in contravention of section 127 (2) of the TEA. He asserted that the trial court did not determine PW2's competence, if she understood the meaning of telling the truth. Without elaborating, he referred us to the cases of Rashid Said Masumai v. Republic, Criminal Appeal No. 162 of 2020 [2023] TZCA 17667 (27 September 2023) TanzLII, John Mkorongo James v. Republic, Criminal Appeal No. 498 of 2020 (unreported), and Hosea Geofrey Mkamba v. Republic, Criminal Appeal No. 37 of 2020 [2023] TZCA 17588 (1 September 2023) TanzLII. Therefore, he invited us to discard the testimony of PW2 and find that her evidence could not support his conviction since it was recorded in contravention of section 127 (2) of the TEA. In response, Ms. Msenga submitted that the trial court complied with the requirements of section 127 (2) of the TEA. She referred the Court to page 11 of the record of appeal where PW2 stated that she would speak the truth, thereby demonstrating that she understood the meaning of telling the truth and not lies. To reinforce her proposition, she cited the case of Raphael Ideje Mwanahapa v. Director of Public Prosecution, Criminal Appeal No. 230 of 2019 [2022] TZCA 71 (25 February, 2022) TanzLII. She thus, implored the Court to find that this ground lacks merit and dismiss it. Our starting point is section 127 (2) of the TEA which provides as follows: "127 (2) A child o f tender age may give evidence w ithout taking an oath or making an affirm ation but shall, before giving evidence, prom ise to te ll the truth to the court and not to te ll lie s." A glance at page 11 of the record of appeal, this is what transpired when the trial court conducted the proceedings in camera: "PW1: MG, I ' am seven years old, a standard II student a t Kisim a Prim ary School, I am a Christian I know a good child is the one who speaks the truth and I w ill speak the truth. Court: A child knows the nature o f speaking the tru th ." SgdJ. J. Kam aia -RM1 28/1/2020 The appellant's contention is that the trial court failed to question PW2 and assess her understanding of whether she could promise to tell the truth. While we acknowledge this concern, upon reviewing the law, it is clear that a child of tender age must first promise to tell the truth, and not lies, before their testimony can be recorded. This matter is not novel. Confronted with an akin situation in the case of Raphael Ideje Mwanahapa (supra) referred to us by Ms. Msenga, the Court had the occasion of interpreting the relevant provisions: It stated that: "We understand the concern o f the appellant, but what we have found in the law is that the ch ild o f tender age m ust prom ise to te ll the truth and not lie s before h is evidence can be recorded. This has been the position o f this Court in m any cases including M siba Leonard M chere Kumwaga v. R, Crim inal Appeal No. 550 o f 2015 (unreported) where th is Court observed: " Before dealing with the m atter before us, we have deem ed it crucial to point out that section 127 (2) was amended vide W ritten Laws M iscellaneous Am endm ent A ct No. 4 o f 2016 (Am endm ent Act). Currently, a ch ild o f tender age m ay give evidence w ithout taking oath o r m aking affirm ation provided he/she prom ises to te ll the truth and not to te ll lie s . " Similarly, in the case of Yusuph Molo v. Republic, Criminal Appeal No. 343 of 2017 (unreported) the Court held that: "W hat is param ount in the new am endm ent is fo r the ch ild before giving evidence to prom ise to te ll the truth to the court and not to te ll lies. That is a ll that is required. I t is m andatory that such a prom ise m ust be reflected in the record o f the tria l court. I f such a prom ise is not reflected in the record, then it is a big blow in the prosecution case." In the decisions cited above, the Court emphasized that, before a child gives evidence, the primary requirement is for the child witness to make a promise to tell the truth and not to tell lies. The aforementioned provision does not impose an obligation on the trial court to record the questions posed to the child before the promise to tell the truth is made. Therefore, we agree with Ms. Msenga that the trial magistrate complied with section 127 (2) of the TEA in receiving the evidence of the child of tender age. We, therefore, find no merit in the appellant's assertion that the court was required to record the questions posed to the child. As such, we dismiss the second ground of appeal for lack of merit. On the third and fourth grounds of appeal which were argued jointly, it was the appellant's contention that, the first appellate court upheld the conviction against him based on PW l's testimony, without providing reasons to confirm that PW1 was truthful, and that the provisions of section 127 (6) of the TEA were flouted. In response, Mr. Utafu argued that the trial court's conviction of the appellant was based on the evidence provided by PW1, PW2, and PW4. In support of his argument, he referred us to pages 16 and 19 of the record of appeal, where PW2 testified to having witnessed the appellant engaging in inappropriate behaviour with the complainant. He further contended that PW4, who examined the complainant and prepared the PF3, adduced evidence confirming that PW1 had been sodomized. To support his proposition, he cited the case of John Luoga v. Republic, Criminal Appeal No. 493 of 2022 [2024] TZCA 762 (19 August 2024) TanzLII. He urged us to dismiss these grounds of appeal. In considering this ground of appeal, we begin by referring to section 127 (6) of the TEA which stipulates that: "127 (6) Notw ithstanding the preceding provisions o f th is section , where in crim inal proceedings involving sexual offence the only independent evidence is that o f a ch ild o f tender age or o f a victim o f the sexual offence, the court sh all receive the evidence, and may, after assessing the credibility o f the evidence o f the ch ild o f tender years o f as the case m ay be the victim o f sexual offence on its own m erits, notw ithstanding that such evidence is not corroborated, proceed to convict, if, fo r reasons to be recorded in the proceedings, the court is satisfied that the child o f tender years or the victim o f the sexual offence is telling nothing but the truth." In the case at hand, the trial court, apart from considering the evidence of PW1 and PW4, it assessed whether PW2 understood the meaning of telling the truth. After being satisfied with her understanding, the court found that PW2's testimony corroborated that of PW1, and believed that PW2, a child of tender age, was truthful. Moreover, the lower courts analyzed the evidence of both the complainant and PW2 who witnessed the incident and were satisfied that it was the appellant who ravished PW1 against the order of nature. Besides, as rightly argued by the learned State Attorney, the appellant's conviction was properly founded on the evidence presented by PW1, PW2, and PW4. We, therefore, reject the appellant's arguments on this ground. On the fifth ground of appeal, the appellant raised concerns about inconsistencies in the prosecution's witnesses' testimonies. He contended that, PW4's assertion of finding no sperm due to the complainant bathing before visiting the hospital was contradicted by both, PW1 and PW3, who did not provide this detail. He also highlighted contradictions between PW1 and PW3, noting that, while PW1 stated she texted PW3 but PW3 testified that, she received a call from PW1. Pointing further contradictions and inconsistences in the prosecution evidence, the appellant argued that, PW1 claimed that PW3 entered the house with police officers, while PW3 stated she called PW1 first, and the police officers enter afterward. The appellant contended that the discrepancies cast doubt on the reliability of the prosecution evidence. In response, Mr. Utafu acknowledged the existence of minor contradictions in the testimonies of the prosecution witnesses but emphasized that such contradictions did not go to the root of the case. He further submitted that, contradictions alone cannot form a valid ground for overturning a conviction unless they are material to the central issue at hand. In support of this argument, he cited the case of Ibrahim Abubakar & Anotherv. Republic, Criminal Appeal No. 147 of 2022 [2024] TZCA 752 (16August 2024) TanzLII. The learned State Attorney stressed that, despite the minor inconsistencies, the fact that it was the appellant who ravished PW1 against the order of nature remained uncontested and was corroborated by other prosecution evidence, including the testimonies of PW2 and PW4 who supported the account of the complainant. He thus urged us to dismiss this ground of appeal. The law on this point is clear that the court will only take into consideration contradictions that are not minor. The Court has said so in various cases, amongst others, Mohamed Said Matula v Republic [1995] T.L.R 3, Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 [2028] TZCA 361 (10 May 2018) TanzLII, and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] 7ZCA 17 (30 May, 2008) TanzLII. In the latter case, the Court stated that: "In evaluating discrepancies, contradictions, and om issions, it is undesirable fo r a court to p ick out sentences and consider them in isolation from the rest o f the statem ents. The court has to decide whether the inconsistencies and contradictions are only m inor or whether they go to the root o f the m atter." Applying the above principle, we agree with Mr. Utafu that the trial court properly considered the evidence in its entirety and concluded that the appellant's actions were sufficiently proven, notwithstanding the alleged minor discrepancies. We, therefore, find that these inconsistencies in the prosecution's evidence did not diminish the credibility of PW1 regarding the appellant's involvement. As such, we find no merit in the appellant's complaint and hereby dismiss it. On the complaint that the first appellate court failed to consider the defence evidence, we do not agree with him. As rightly submitted by Mr. Utafu, this ground was raised before the first appellate court and in its judgment, the High Court Judge analysed the defence case. We take the liberty to quote part of what the High Court said at page 61 of the record of appeal: "The m agistrate found that the evidence could not shake the prosecution's case... s inee this is the firs t appellate court; the court m ay re-evaluate the evidence by defence and surely it w ill fin d that the evidence does not raise any doubt. Even the appellant agrees that there was no issue between him self and PW1 and PW2. But they had an issue with PW 3 who is not related to the event. The respondent has the opinion that the defence was weak com pared to the prosecution case. He therefore prayed that the 5th ground o f appeal be dism issed and uphold the judgm ent and sentence by the tria l court." It is plain from the tenor of the first appellate court judgment that in arriving at its conclusion, the Judge considered the appellant's defence but rejected it in view of the strong prosecution case based on the truthful evidence of the complainant. The fact that the appellant's evidence was rejected does not mean that it was not considered. See for instance Jafari Mohamed v. Republic, Criminal Appeal No. 112 of 2006 [2013] TZCA 344 (15 March 2013) TanzLII. Therefore, this ground fails. On the nineth ground, the appellant argued that the complainant's age was not proved. He contended that in cases of sexual offences, the complainant's age is a crucial element that must be established. The appellant asserted that during the trial, PW1 did not explicitly state her age and PW4 did not provide any information regarding the complainant's age. The appellant further argued that the age mentioned in the PF3 was not sufficient proof of the complainant's age. Consequently, he urged the Court to find that, the charge against him was not proved beyond reasonable doubt. In support of his argument, the appellant cited the case of Genes Arisen Tarimo @ Kaputi v. Republic, Criminal Appeal No.337 of 2019 [2023] TZCA 17423 (18 July 2023) TanzLII. We have no hesitation in holding that this ground of appeal is misconceived. In the present case, the complainant was nineteen years old at the material time. As correctly submitted by Mr. Utafu, section 154 (1) (a) of the Penal Code mandates proof of age only in cases involving unnatural offences where the complainant is under eighteen years. Hence, age is not a relevant factor when the complainant is over eighteen years. Given that the complainant was above the age of eighteen, the trial court had no obligation to address the issue of age, as it was not a material element of the offence in the circumstances. We therefore find this ground without merit and dismiss it. Grounds two and eight are interrelated. Ground two concerns the evaluation of the prosecution's evidence, while ground eight faults the trial court for concluding that the prosecution's case was proven beyond a reasonable doubt, despite the failure to call material witnesses. Both grounds seek to establish that the case was not proved beyond reasonable doubt. They will therefore be determined together. Turning first to the issue of evaluation of prosecution evidence, the appellant in his written submissions contended that the first appellate court upheld his conviction without adequately assessing the evidence on record. The appellant questioned the credibility of PW1, pointing to her failure to shed tears during the telephonic conversation with PW3. He continued to argue that, PW1 testified that the appellant had carnal knowledge of her against the order of nature while she was standing, yet PW2 did not confirm whether they were caught in the act in that position. It was his argument that it was implausible for PW1 to have been assaulted while standing. Mr. Utafu robustly defended the first appellate court's decision as reasoned. He referred us to pages 61 and 62 of the record of appeal, where the first appellate court thoroughly evaluated and analysed both the prosecution and defense cases, concluding that the evidence from the prosecution witnesses was credible. In response to the appellant's contentions, the learned State Attorney submitted that these points lacked merit. He emphasized that the crux of the matter was that the incident had been properly reported to PW3 and that the complainant had indeed been sodomized regardless of the manner in which the assault occurred. Consequently, he argued that such minor discrepancies did not detract the substance of the case. This ground was without merit, he argued. We are aware that, this being a second appeal, the Court should rarely disturb concurrent findings of facts by the lower courts. However, there is an exception to the rule as articulated in Michael Elias v. Republic, Criminal Appeal No.243 of 2007 (unreported), in which the Court emphasized that: "... th is approach rests on the prem ise that the findings o f facts are based on a correct appreciation of the evidence. If both courts com pletely m isapprehended the substance, nature, and quality o f evidence resulting in an unfair conviction ; this Court m ust, in the interest o f ju stice, in terfere." Applying the established legal principles to the case at hand, we have carefully reviewed the evidence to determine the credibility of the prosecution witnesses concerning the unnatural offence. The trial court thoroughly analysed the testimony of the prosecution witnesses as shown on pages 14, 15, 16, and 20 of the record of appeal and found PW1 credible. Her testimony was corroborated by PW2 who witnessed the appellant's misconduct and PW4 who examined PW1 on 12th 19 October, 2019 and found bruises on her anus. Moreover, on pages 59, 61, and 62 of the record of appeal, it is evident that the first appellate court had no doubt about the complainant's testimony hence upheld the trial court's findings and the appellant's conviction. Therefore, it is our view that the lower courts made a thorough assessment of the credibility of the witnesses and rightly concurred on their findings of fact which the Court cannot disturb. Next for our consideration is the issue of whether or not the prosecution case was proved beyond reasonable doubt, despite the prosecution's failure to call material witnesses. The appellant submitted that it is settled that the evidence of the complainant is the best evidence, however, in the case at hand, it was unclear if the appellant inserted his manhood into PW l's anus. He reiterated his earlier submission that since PW1 stated that they were standing, she did not say that the appellant laid her down. He stressed that in the absence of such clarification, it created doubt on how he was able to insert his penis in her anus and the doubt be resolved in his favour. The appellant further asserted that the prosecution failed to call material witnesses such as the investigator of the case and welding technician who were in a better position to clarify the missing links in the prosecution's case. He urged the Court to draw adverse inference against the prosecution. To reinforce his proposition, he cited the case of Yohana Chibwingu v. Republic, Criminal Appeal No. 117 of 2015 [2015] TZCA 447 (5 June 2015) TanzLII. In response, Mr. Mangunu conceded that the investigator and the welding technician were not called to testify in court. Nevertheless, he contended that their testimonies were not material as PW1 had adequately established all the necessary elements of the charge of unnatural offence under section 154 (1) (a) of the Penal Code. The learned State Attorney further emphasized that, PW1 provided a detailed account on how the appellant sodomized her. He further argued that, PW1 identified the appellant as the perpetrator, and her testimony was corroborated by PW4 who examined the complainant and found bruises on her anus. This ground was also without merit, he argued. We are mindful that, the law under section 143 of the TEA does not specify any number of witnesses required to prove a fact. In the present case, we are inclined to agree with the learned State Attorney's submission that it was not important to call the investigator of the case and welding technician to testify in court, as there was no missing link in the prosecution's case that required clarification. As earlier noted, PW1 and PW4 provided credible evidence of penetration, with PW1 specifically naming the appellant as the perpetrator. We are, therefore, satisfied that under the circumstances, the prosecution proved the case against the appellant to the hilt. The second and eighth grounds are bound to fail and we dismiss them accordingly. In the end, we find the appeal devoid of merit and hereby dismiss it in its entirety. DATED at MOSHI this 17th March, 2025. L. 3. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 18th day of March, 2025 in the presence of the Appellant in person and Ms. Bertina Tarimo, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.