CRIMINAL APPEAL NO 640 OF 2022 PEMBE ABDALLAH MKALI VS THE REPUBLC

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM ( CORAM: MKUYE. 3.A.. GALEBA. J.A. And MWAMPASHI, J.A.^ CRIMINAL APPEAL NO. 640 OF 2022 PEMBE ABDALLAH MKALI............................ ................... APPELLANT

VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dares Salaam) (Kakolaki, J.^ dated the 30th day September, 2022 in Criminal Appeal No. 129 of 2021

JUDGMENT OF THE COURT 5th July, a 01st August, 2024 GALEBA, J.A.: Pembe Abdallah Mkali, the appellant in this appeal, was arraigned before the District Court of Kinondoni at Kinondoni (the trial court) in Criminal Case No. 82 of 2020. He was charged for rape of a six-year- old girl, contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code. Consequently, he was convicted and sentenced to imprisonment for life. The appellant's first appeal was dismissed by the High Court at Dar es Salaam, hence this second appeal. i According to the particulars of offence in the charge sheet, on 17th January, 2020, at Kimara Tanesco within Ubungo District in Dar es Salaam Region, the appellant had carnal knowledge of the girl mentioned above. In order to protect and preserve the victim's decency and dignity, we will disguise her true identity, and refer to her, just as the victim or PW2 in this judgment. To prove the case against the appellant, the prosecution called a total of six witnesses including the victim. On his part, the appellant testified on his own without calling any other witnesses. After the full hearing, the trial court was convinced with the prosecution evidence and found the appellant guilty. It convicted him and imposed upon the appellant the sentence referred to above. As indicated, the appellant was dissatisfied hence this appeal. In pursuit of the appeal, the

appellant lodged a memorandum of appeal containing eight grounds, which may be summarized as follows; one, that PW2 being a witness of tender age, recording of her evidence did not comply with the requirements of section 127 (2) of the Evidence Act; two, that the evidence of PW2 was relied upon without assessing her credibility and reliability of such evidence, and; three, that the evidence of Karim Mbwana (PW1), PW2 and Mwangaza Kikingo (PW3) was contradictory hence unreliable. Four, that the person who arrested the appellant was not called as a witness; five, that section 192 (3) of the Criminal Procedure Act (the CPA), was not complied with, and; six, that the appellant's conviction was based on the appellants weakness of the defence, rather than the strength of the prosecution case. Seven, that penetration as a necessary ingredient of rape, was not proved, and; eight that the case was not proved beyond reasonable doubt. At the hearing, the appellant appeared in person, whereas Mses. Violet David Kyendesya and Irene Njovu John, both learned State Attorneys, appeared for the respondent Republic. In supporting his appeal, the appellant adopted his written arguments and implored us to allow his appeal based on two versions of the said arguments. Ms. Kyendesya, started off with the fourth ground of appeal, which was a complaint that the prosecution witness who arrested

the appellant was not called to give evidence. We agree with her that because the ground raises no legal issue, and that no such complaint was raised in any of the fourteen grounds of appeal before the first appellate court, this Court has no jurisdiction to deal with that complaint for the first time. If we would do so, this Court would be entertaining an appeal from the District Court, which we cannot do under the law. See Hassan Bundala @ Swaga v. R, (Criminal Appeal No. 386 of 2015) [2015] TZCA 261 (23rd February, 2015) [TANZLII], and; Nazir Mohamed @ Nidi v. R, (Criminal Appeal No. 312 of 2014) [2015] TZCA 382 (8th December, 2015) [TANZLII]. In the circumstances, we disregard the fourth ground of appeal and proceed to tackle the other grounds raised. The complaint in the first ground of appeal was that PW2 being a witness of tender age, taking of her evidence did not comply with the provisions of section 127 (2) of Evidence Act, because the trial court did not carry out a voire dire examination and the witness did not promise to tell the truth and not lies. We will start with that section which provides as follows: "(2) A child o f tender age may give evidence without taking an oath or making an affirmation but shaft, before giving evidencef promise to teii the truth to the court and not to teii any iies." To judge whether the section was complied with or not, we wish to

quote what PW2 stated, as recorded at page 9 of the record of appeal. She stated: "„/ am Muslim, I used to go to the Mosque on Saturday and Sunday. We are taught Arifu. We are taught to speak the truth. I f I don't speak the truth satan will fire me. I promise to tell you the truth, I am six years." On this ground of appeal, first, an omission to conduct a voire dire test is not failure to comply with the above section, because that section does not make it mandatory for any trial court to conduct the test, and; second, the above quoted process shows clearly that PW2 promised to tell the truth. We are aware that section 127 (2) of the Evidence Act makes it a requirement that a witness of tender age has to promise to tell the truth and not lies, before giving evidence and we are aware that in this case, the witness did not expressly state that she would not tell lies. Nonetheless, in our view, a clear promise to tell the truth, has in it an inbuilt promise not to tell lies, because telling the truth and telling lies, are mutually exclusive. In other words, if a witness of tender age promises to tell the truth even where he or she does not expressly promise not to tell lies, the law is fully complied with. We say so because, even in oaths and affirmations which are significant forms of commitments compared with unsworn promises of persons of tender age, in terms of section 4 (a)

of the Oaths and Statutory Declarations Act, there is no requirement for a witness to commit oneself not to tell lies. In the circumstances, we agree with the learned State Attorney that section 127 (2) of the Evidence Act was fully complied with, in which case we dismiss the first ground of appeal. Next is the fifth ground of appeal, in which the appellant was complaining of failure by the trial court to carry out a proper Preliminary Hearing (the PH), thereby offending the provisions of section 193 (3) of the CPA. In response, Ms. Kyendesya submitted that, it is true that the PH was irregular, but according to her, the irregularity had nothing to do with the competence of the trial. To support her stance, she referred us to the case of Director of Public Prosecutions v. Jaba John (Criminal Appeal No. 206 of 2020) [2022] TZCA 406 (11th July, 2022) [TANZLII]. In this case, we are in agreement with both the appellant and the learned State Attorney that indeed, the alleged PH, was nothing but a sheer confusion. We will demonstrate by referring to the record of appeal at page 5, where it says: "PRELIMINARYHEARING STARTS Memorandum o f Facts: Fact No.

1. Disputed "Siyo Kweii" Fact No.

2. Disputed "Siyo Kweii" Fact No.

3. Disputed "Siyo Kweii" Fact No.

4. Admitted "Kweii" Disputed fads are number one, two, three and four. Accused signature State Attorney signature Memorandum o f admitted facts are fact number five. Accused signature State Attorney signature." [Emphasis added] According to the document containing the facts of the case at page 4 of the record of appeal, there were only four facts. The fourth fact on being arrested was admitted, but the same record shows that the fact was disputed. Further, whereas there was no fact number five in the document containing facts, in the memorandum of admitted facts, the trial court concluded that, the fact which was admitted as true is fact number five. That is why we stated above that, the PH that was conducted in this case was nothing but a session in complete disarray, and thus an illegal proceeding. Thus, we agree with both the appellant and the learned State Attorney that the PH was not properly conducted. However, the effect of an irregular PH vitiates the proceedings of the PH but not those of the trial court, see this Court's decisions in Hassan Said Twalib v. R, (Criminal Appeal No. 92 of 2019) [2020] TZCA 1858 (20th November, 2020) [TANZLII] and; the DPP v. Jaba John (supra). In the circumstances, this ground of appeal is allowed, although that finding has no adverse effect on the proceedings that took place in the trial court. Next for our discussion are grounds two and

three. One cross cutting issue we find significant in those grounds of appeal, is the issue whether PW1, PW2, PW3 and PW4 were credible witnesses, in the context of the consistency of their evidence. According to the appellant, their evidence was too contradictory to be reliable. The preliminary point we wish to make is that, an appellate court may determine credibility of a witness or witnesses by considering the coherence and consistence of the evidence of a given witness, or the same factors between the evidence of two or more witnesses. If the evidence contains contradictions the same must be addressed and a decision made on the magnitude of their effect. If the effect of the contradictions or inconsistencies go to the root of the case, the case is not proved for its credibility and competence are corroded, but if not, the case remains proved and the evidence is deemed valid and the sentence lawful. See this Court's decisions in Dickson Elia Nsamba Shapwata and Another v. R, (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30th May, 2008) [TANZLII]. We will now turn to the evidence challenged as inconsistent and contradictory. 8 The first set of evidence raising questions is the evidence of the victim where she stated that she was raped five times and that each time she was raped, she would tell PW3, her grandmother and the latter would comfort her that she would report the

appellant to the police. However, PW3 would not report the appellant. On that point, unlike the victim, PW3 stated at page 10 of the record of appeal that, the victim never reported anything to her such that the offence subject of the charge which occurred on 17thJanuary, 2020, was her first time to hear from the victim that the appellant ever raped her. In addition, although the victim did not testify that she did not disclose the information to PW3 because of any threats from the appellant, PW3 said that the victim was not telling her of such abuses because of fear of being beaten by the appellant. Ms. Kyendesya's reaction to the contradictions amongst these witnesses, was that the inconsistences were there, but the same were minor and ignorable, for they were not going to the root of the case itself. The learned State Attorney referred us to the case of Abiola Mohamed @ Simba v, R, (Criminal Appeal No. 291 of 2017) [2021] TZCA 632 (2nd November, 2021) [TANZLII]. Although the complaint is that the evidence of these witnesses was inconsistent, however, that is not perse the major point; the issue is mainly the quality and weight of the evidence, given the disparity of the witnesses' versions. The bone of contention is the believability of the witnesses given the inconsistent statements on the same fact. If the victim was raped five times and each time she was reporting to

her grandmother, and the latter replying that she would report to the police, it cannot be true at the same time for the same grandmother to say that the victim told her only once, because for other days she was fearful of being beaten by the appellant. The stories of these witnesses on the same point were inconsistent and completely irreconcilable. It is impossible for both of these witnesses to be truthful on the number of times of the rape and the issue of reporting to the police. One of them must be a liar and it is not possible for the court to single out which one of them and disregard her evidence and retain the other's. The outstanding position forming the bedrock of this decision is that, a witness who tells clear lies, as opposed to minor acceptable inconsistencies because of lapse of time or human nature of being prone to error, is not a credible witness and no court should believe anything that the witness states in his evidence. The above findings defeat the general principle as per the case of Good luck Kyando v. R, (2006) T.L.R. 363 that, every witness is entitled to credence and belief unless there are good and cogent reasons to disbelieve him. In this case, good and cogent reasons is the big mismatch between the evidence of the victim and that of PW3 in the above scenario. The other principle which we think is not applicable in this case, is that the best evidence in sexual abuse cases is that of the victim as per the case of Selemani Makumba v. R, [2006] T.L.R.

379. The evidence of the victim is only the best, if the credibility of that victim is not questionable. Thus, no credibility, no best evidence. In the circumstances of this case, the victim's credibility is highly questionable because of the irreconcilability of her evidence with that of PW3. The second piece of evidence posing for scrutiny in respect of which the issue of credibility is clear, is the evidence of PW1 and Dr. Stephen Gervas (PW4) at Sinza Palestina Hospital. PW1 during cross examination at page 9 of the record of appeal, stated: "...the sperms were examined and the resuits revealed that they belonged to Pembe [the appellant]. The examination was at Sinza Hospital. Bedsheets were also having sperms." Although that was the testimony of PWI, the evidence of PW4, who was the medical doctor at Sinza Palestina Hospital and who examined the victim, was that he did not see any sperms, leave alone ii testing the sample to discover the identity of the male from whom they were emitted. In that respect, PW4 stated as follows at page 17 of the record of appeal: "Laboratory tests revealed that [the victim] had no sperms, but [her sexual] habit was fora long time...I didn't know who committed the offence." The fact that PW4 does not state that he examined any specimen of sperms, shows that PW1 is a liar by stating that PW4 examined the sperms and confirmed them to have been

from the appellant, If a person clearly lies on one aspect, no court has ability to guarantee reliability of any other part of such witness's evidence. That is on the part of PW1, the other is PW4's. If we assume that PW1 told the truth that PW4 also examined the sperms, but stated that he did not see any sperms, the liar would be the medical doctor. The dilemma facing the court in such circumstances, is always how to sort out which of the two witnesses is not telling the truth, so that his or her evidence can be excluded or disregarded. Because that complication cannot humanely be sorted out with certainty by the trial court, justice demands that the benefit brought about by such inconclusiveness, goes to the appellant because relying on such evidence to convict a suspect is a risk no court is advised to assume. In our judgment the above inconsistence in the evidence of PW1 and PW4, badly undermined the reliability on both of PW1 and PW4's testimonies. The conviction in this case was mainly based on the evidence of PW1, PW2, PW3 and PW4 but as the credibility of ail these witnesses has been found to have had been corroded with lies, it was unsafe to convict the appellant based on such evidence and punish him with life imprisonment. In this case, contra 17 to what we stated in Dickson Elia Nsamba Shapwata (supra), neither the trial court, nor the first appellate court addressed

any of the above contradictions and made a decision on them, which was erroneous. Had the courts beiow done so, certainly, they would not have come up with an outcome leading to any valid conviction. Thus, based on the above discussion, grounds two and three are found to be meritorious, and we allow them. Consequent to this finding, the eighth ground of appeal is answered in the affirmative, namely that the case was not proved beyond reasonable doubt against the appellant. In view of that conclusion in respect of ground eight, we find no justifiable reasons to engage into a discussion seeking to resolve the complaints in grounds six and seven, for doing so would be a duty in vain, Finally, we reverse the decision of the High Court by quashing the appellant's conviction and by setting aside his sentence of life imprisonment. We further direct that the appellant be released from prison and be set to liberty, unless he continues to be held in custody for another lawful cause. DATED at DAR ES SALAAM this 31st day of July, 2024. R. K. MKUYE

JUSTICE OF APPEAL Z. N. GALEBA

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL Judgment delivered this 01st day of August, 2024 in the presence of the Appellant in person and Mr. Nasoro Katuga, learned State Attorney for the Respondent, both via video link from Ukonga Prison and National proseci' ~ the original.