Ramadhani Seif Mashoto vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, J.A., KITUSI. J.A. And MASHAKA. J.A.^ CRIMINAL APPEAL NO. 17 OF 2020 RAMADHANI SEIF @ MASHOTO...................... ...............................APPELLANT VERSUS THE REPUBLIC............. ......................... ...................................... RESPONDENT [Appeal from the decision of the Resident Magistrate's Court of Kisutu at Dar es Salaam] (Maruma. SRM - EXT. JUR.l dated the 31st day of December, 2020 in Criminal Appeal No. 200 of 2020 JUDGMENT OF THE COURT 5th July, 2022 & 24th June, 2024 MASHAKA. 3.A.: The appellant, Ramadhani Seif @ Mashoto, was arraigned before the District Court of Kinondoni at Kinondoni and found guilty of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Cap. 16 Revised Edition 2002]. He was convicted and sentenced to thirty years imprisonment. His first appeal to the High Court was unsuccessful, the conviction and sentence of the trial court was sustained. Still undaunted, the appellant is challenging the decision of the first appellate court. The particulars of the offence alleged that between 13th September, 2019 and 26th September, 2019 at Manzese Kilimani area within Ubungo District in the City of Dar es Salaam, the appellant had carnal knowledge of a boy (name withheld) aged twelve years against the order of nature. We will refer to him as the victim who testified as PW1. The prosecution relied on four (4) witnesses and one (1) documentary evidence to prove the charge. The defence case relied on the evidence of the appellant (DW1) and Rashid Ibrahim (DW2). A factual account unveiled by the prosecution during trial alleged that the appellant was a sports coach at Mkombozi Primary School playgrounds, Manzese area where PW1, a pupil at the same school and his friends played and the appellant coached them on how to play football. The appellant was a neighbour of the victim. Between the said dates, the appellant had called PW1 in his room telling him that he had to ensure no one sees him entering his room. After PW1 entering his room, the appellant had carnal knowledge of him against the order of nature and gave him TZS. 1,000.00. Specifically, on 29th September, 2019 around 16:00hrs, PW1 entered into the appellant's room. Around 18:00hrs, Sophia Yustis Sehazi (PW2), mother of PW1 went, searching for 2 his son and found him outside the appellant's room. PW2 took a stick and started beating him. PW1 told PW2 that the appellant had sodomized him three times and gave him money. PW2 took the appellant to the police post, reported the incident and a PF3 was issued to the victim for medical examination. Dr. Rebecca Marko Noah (PW3), a medical doctor at Tandale Hospital examined PW1 and found his anus sphincter muscles were loose, faeces coming out easily and in severe pain. WP 3837 D/C Suzanne (PW4), a police officer stationed at Urafiki Police station, conducted the investigation. She recorded the statements of PW1, PW2, PW3 and the appellant's cautioned statement. She also visited the crime scene. The defence case relied on two witnesses; the evidence of the appellant (DW1) and (DW2). DW1 distanced himself from the accusations levelled against him by the prosecution. He claimed that PW2 had grudges against him for the reason that he had refused to engage in a love affair with her, thus the fabricated allegations that he had carnally known PW1 against the order of nature. DW2 testified that the appellant was his tenant and on the fateful day he was watching football on video 3 show at his business place together with PW1. PW2 left with PW1 to return home together with the appellant. The trial court was impressed with the evidence of the prosecution witnesses rejecting the defence of the appellant that it failed to cast any doubt on the prosecution evidence. The conviction of the appellant was grounded on the evidence of PW1, PW2, PW3 and PW4. As alluded to earlier, the trial court convicted and sentenced the appellant as charged. His first appeal was unsuccessful, as the first appellate court upheld the conviction and sentence. Still undaunted, this is his final appeal. The appellant has raised nine grounds of appeal contained in the memorandum of appeal dated 19/01/2022 that: 1. Both low er courts erred in law and fact by convicting the appellant basing on the evidence o f PW1 (victim ) which was incredible and unreliable as his evidence was in contradiction when he was cross-exam ined by the accused and re-exam ination by the state attorney on whether or not he fe lt pain. 2. The low er courts erred in both law and fact by failing to make a critical scrutiny and assessm ent on P W l's testim ony the om ission which m isiead the two iow er courts by failing to observe and hold that P W l's evidence was improbable, im plausible and a sheer fabrication against the appellant when PW1 testified th a t"when he did it for the first time, I fe lt good." 3. Both low er courts erred in law and fact by convicting the appellant when the evidence adduced by the prosecution did not establish the guilty o f the appellant beyond reasonable doubt as there was nothing to prove that PW1 used to enter the appellant's room at any time. 4. That both low er courts erred in law and fact by failing to observe and consider that the appellant's conduct after the said incident was contrary to the wrong doer considering that the appellant surrendered him self to the police station instead o f fleeing or escaping. 5. That both low er courts erred in both law and fact by failing to evaluate, weigh, analyze and consider properly the affirm ed defense evidence which raised a reasonable doubt on the prosecution case the omission 5 which resulted to a serious error amounting to m iscarriage o f justice and constituted a m istrial. 6. That the appellate court erred in both law and fact by upholding the appellant's conviction based on unborn evidence i.e. i) It was the first appellate judge own perception that the appellant infected the victim with H.I. V 7. That the two low er courts erred in both law and fact by basing the appellant's conviction on credible, tenuous, contradictory and uncorroborated evidence of prosecution witnesses. 8. That the two low er courts erred in both law and fact by convicting the appellant with a case that was not proved to the hilt. 9. That both low er courts erred in law and fact by failing to note that if at a ll sodomy event occurred, why the appellant spent many days fifty-five (55 days) under police custody the fact this case is fabricated. On 12/05/2022, the appellant lodged a supplementary memorandum of appeal comprised of three grounds: 1. That, learned tria l Esq. PRM with Ext. Jurisdiction erred in law and fact by upholding the conviction against the appellant did not subject the evidence to any objective analysis as he was duty bound to do, the appeal before him being a first appeal and hence it was by way o f rehearing instead, he sum m arily dism issed the appeal contrary to the procedure o f law. 2. That, the learned tria l Esq. PRM with Ext. Jurisdiction erred in law and fact by upholding the conviction against the appellant while failing to determ ine that, the tria l court erred in law by convicting the appellant relied on unprocedural testim ony o f PW1 Rajabu Zahoro (the victim), the m odality used was in conform ity with the requirem ent under the provision o f section 127 (2) o f the Evidence A ct as amended by A ct No. 4 o f 2016 the m odality used by the trial court cannot in anyway be construed as meeting the legal requirem ent o f recording the evidence o f the child o f tender age contrary to the procedure o f law. 3. That, the learned tria l Esq. PRM with Ext. Jurisdiction erred in law and fact by upholding the conviction against the appellant while failing to determ ine that, the tria l court erred in law by convicting the appellant while the questions asked by the tria l m agistrate were not for clarification instead were to examine the witnesses in chief which was wrong proceduraily, since DW2 was called by the appellant, then, he was the one supposed to examine him in chief and not the court as it happened contrary to the procedure o f law. The appellant appeared in person and unrepresented during hearing of the appeal, whereas the respondent Republic enjoyed the services of Ms. Brenda Nicky and Ms. Caroline Matemu, both learned State Attorneys. When the appellant was called on to amplify on his grounds of appeal, he prayed to adopt the twelve grounds of appeal in the substantive and supplementary memoranda of appeal and his written submissions in support of the appeal. He implored the Court to allow the learned State Attorney to respond reserving his right to re-join, if need arises. We invited the appellant to submit on an issue we had raised, whether the sentence meted out by the trial court was proper and he responded that if his appeal fails, the law ought to take its course. 8 Ms. Matemu was in support of both conviction and sentence. She argued grounds one and two of the substantive memorandum of appeal jointly, grounds four, five of the substantive and ground one of the supplementary memoranda of appeal conjointly, grounds three, six, seven and eight of the substantive memoranda of appeal together, grounds nine of the substantive and grounds two and three of the supplementary memoranda of appeal separately. When cross examined on whether the evidence of PW1 (victim) was incredible, unreliable and contradictory in view of his contention that he felt no pain, Ms. Matemu argued that the evidence of PW1 was not in contradiction when he testified on how he felt after the appellant had carnal knowledge of him against the order of nature. Further on the failure by the lower courts to make a critical scrutiny and assessment on the evidence of PW1 which was improbable, implausible and a sheer fabrication against the appellant because his testimony that "when he did it for the first time, he felt good", she strongly resisted that the alleged contradiction did not go to the root of the offence and neither was it a basis for conviction. She further argued that the conviction of the appellant was grounded on the evidence of penetration of the victim against the order of nature by the appellant. It was her contention that the evidence adduced by the 9 prosecution proved the commission of the offence and that during cross examination, PW1 testified that the appellant gave him TZS. 1000/= after penetrating him. The evidence of penetration was corroborated by PW3 revealing the condition of PW1 in exhibit PI. Ms. Matemu concluded that whether the victim felt pain or good does not prove penetration. Hence, she prayed to the Court to find the complaint under grounds one and two baseless and should be dismissed. Arguing grounds four, five and one jointly, Ms. Matemu commenced to submit on ground four concerning the appellant's complaint that he was not a wrong doer considering that he surrendered to the police instead of escaping, she argued that it was baseless because the evidence of PW2 disclosed that the appellant was arrested and taken to the police station on the same date. Even so, it was her contention that the appellant had failed to cross examine PW2 on this matter and raising it now is, but an afterthought. She implored us to dismiss ground four. Arguing together grounds five and one on the failure by both lower courts to properly consider and evaluate the defence evidence which raised reasonable doubt amounting to miscarriage of justice, Ms. Matemu submitted that at page 44 of the record the trial court duly considered 10 and analysed the defence case finding that it failed to shake the prosecution case. However, before the first appellate court, Ms. Matemu conceded that the defence evidence was not evaluated. She beseeched the Court to step in the shoes of the first appellate court because it did not evaluate the said evidence, adding that there was no objective evaluation hence the anomaly can be considered as aforesaid. She supported grounds five and ten of appeal. On grounds three, six, seven and eight of appeal, it is the appellant's complaint that the first appellate court erred to uphold the appellant's conviction based on extraneous matters that he infected the victim with HIV. Ms. Matemu conceded that the first appellate court imported extraneous matters that the victim was infected with HIV while PW3 found him HIV negative. She argued that though it was not proper but it was not fatal. After all she submitted, this was not the basis of conviction. Ms. Matemu argued ground nine that the failure of the first appellate court to note that the appellant spent 55 days under police custody before arraignment was for the intention to fabricate evidence was baseless. She admitted that the appellant was arrested on 11 26/09/2019 and arraigned on 15/11/2019 but was quick to emphasize that it was not fatal and did not prejudice the appellant. On ground two, the appellant had complained that the first appellate court had failed to determine that the trial court relied on the evidence of PW1, a child of tender age, which was not received in compliance to s. 127 (2) of the Evidence Act, [CAP. 6 R.E. 2019] (the Evidence Act). Ms. Matemu argued that the trial court had stated in its conclusion that an inquiry was conducted though the record is silent on it being conducted. She was of the view that after the amendment of s. 127 (2), a child could testify without taking an oath or affirmation but was required to promise to speak the truth after understanding the duty to speak the truth and not lies. However, she submitted that the provision is silent on how to conduct an inquiry. It was her contention that in the case of Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018 (unreported) the Court provided the modality on how to ask the child witness preliminary questions and the answers should be recorded. She referred to page 9 of record of the record that PW1 promised to speak the truth after the trial court had complied with s. 127 (2) and it concluded that he is competent to testify without administering oath. She 12 further argued that under s. 127 (6) of the Evidence Act, provides that if satisfied the court may receive and consider the evidence of a victim, just as long as the victim promises to state the truth and such evidence can be used to convict. Her conclusion was that this ground is baseless. On ground three, the complaint was that the trial court led the examination in chief of DW2 instead of the appellant. Ms. Matemu submitted that it was baseless and referred the Court to pages 30 to 32 of the record which showed that there was examination in chief of DW2 conducted by DW1 and cross examination was done by the learned State Attorney. On the issue of sentence, Ms. Matemu was of the view that if the appeal fails and the Court steps into the shoes of the first appellate court, it should be corrected so as to comply with the law. She implored the Court to enhance the sentence to life imprisonment. When the appellant was called on to rejoin, he had nothing much to add and reiterated his earlier prayer that the Court has to consider his grounds of appeal and set him free. Basically, from what is gathered in the record of appeal and the submissions by parties, the complaints are grounded on four issues; one, 13 whether the procedural irregularities and the extraneous issues vitiated the trial and if the appellant was prejudiced; two, the credibility or otherwise of PW1 the victim; and three, whether the prosecution case was proved to the hilt. This being a second appeal, the Court is vested with jurisdiction in respect of new matters which involve point of law, pursuant to section 6(7) of the Appellate jurisdiction Act, [Cap 141 R.E 2019]. See: Idrisa Omary v. Republic, Criminal Appeal No. 554 of 2020 (unreported). In that aspect, grounds four and nine involve matter of facts on failure to consider the appellant's conduct who surrendered to the police and spending 55 days in police custody before arraignment are new grounds which this Court lacks jurisdiction to determine. The new grounds were not raised, argued and determined by the first appellate court. The Court was confronted with a similar situation on whether it can decide on a matter not raised and decided by the first appellate court in Galus Kitaya v. Republic (Criminal Appeal 196 of 2015) [2016] TZCA 301 (15 April 2016) TanzLII, and Nurdin Musa Wailu v. Republic, Criminal Appeal No. 164 of 2004 (unreported) and it said: 14 "It is now settled that as a m atter of general principle this Court w ill only look into m atters which came up in the low er court and were decided, not on m atters which were not raised nor decided by neither the tria l court nor the High Court on appeal." In terms of section 4(1) of the Appellate Jurisdiction Act [Cap 141 R.E 2019] the Court lacks jurisdiction to determine such grounds. See: Hassan Bundala @ Swaga v. The Republic (Criminal Appeal No. 386 of 2015) [2015] TZCA 261 (23 February 2015) TanzLII, Jafari Mohamed v. Republic (Criminal Appeal No. 112 of 2006) [2013] TZCA 344 (15 March 2013) TanzLII, and Hussein Ramadhani v. Republic (CriminalAppeal No. 195 of 2015) [2016] TZCA 2074 (22 April2016) TanzLII, to mention a few. The stance of the Court is not to consider new grounds raised in a second appeal. We, therefore decline to determine grounds four and nine which were not raised and canvassed before the first appellate court, for lack of jurisdiction. This however, does not mean that the Court will not satisfy itself on the fairness of the appellant's trial and his conviction. We would like to determine the procedural irregularities at the foremost. We shall dispose grounds one, two and eleven of appeal jointly 15 as they have a bearing on each other. The first issue is to determine the competence of PW1, whether he was incredible, unreliable and contradictory in responding to cross examination by the accused whether he felt pain or pleasure. Section 127(2) of the Evidence Act reads: "A child o f tender age may give evidence without 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 ties. " In terms of the above stated provision, a trial magistrate may receive unsworn evidence of a child if satisfied that the child is possessed of sufficient intelligence to justify reception of his/her evidence and he/she has to understand the duty to promise to speak the truth before giving evidence. See: Hamisi Issa v. Republic, Criminal Appeal No. 274 of 2018 and Twalaha Ally Hassan v. Republic, Criminal Appeal No. 127 of 2019 (both unreported). The two conditions must be cumulatively satisfied. In Mussa AM Ramadhan v. Director Public Prosecutions, Criminal Appeal No. 426 of 2021 (unreported), the Court laid emphasis that the requisite qualification of a child witness to not testify under oath is, that he/she must understand the duty of telling the truth and give a promise to tell the truth. For the sake of appreciating what transpired on 28/11/2019 before PWl's unsworn evidence was received by the trial magistrate, we reproduce the relevant trial court's proceedings as shown at page 9 of the record of appeal: "PRO SECUTIO N CA SE O PEN S C ou rt: Inquiry o f competence o f the witness, he is com petent and understand the duty o f speaking the truth and not lies and state: PW 1: R A JA B U ZAHORO, 12 ye a rs o ld , re sid e n t of M anzese, S tu d e n t STD V, p ro m ise d to sp e a k th e tru th . " The law as it stands from 8th July, 2016 covers the instant appeal and provides that witnesses of tender age to mean of not more than fourteen (14) years as provided under section 127 (4) of the Evidence Act may give evidence without oath or affirmation provided they promise to the trial court to tell the truth and not to tell lies in the course of giving evidence. 17 PW1 was a child of tender age and his evidence was to be taken in compliance with section 127 (2) of the Evidence Act, which allows a child of or below the age of fourteen to give evidence without taking an oath or affirmation if the court is satisfied that the witness does not understand the nature of an oath and shall ensure that the child promises to tell the truth to the court and not to tell lies. At page 9 of the record of appeal, it did not reveal if there were any questions posed by the trial magistrate to assess the intelligence or sufficient knowledge of PW1 to understand the duty of telling the truth and not tell lies. Additionally, it does not show that a promise or commitment was made by PW1 to tell the truth. The inference we draw is that there was no such undertaking made by PW1. If there was no such undertaking, obviously the provisions of section 127 (2) of the Evidence Act were not complied with. In emphasizing this position, the Court in Msiba Leonard Mchere Kumwaga v. Republic, Criminal Appeal No. 550 of 2015 (unreported) observed that: "...Before dealing with the m atter before us, we have deemed it crucial to point out that in 2016 section 127 (2) was amended vide Written Laws M iscellaneous Amendment A ct No. 4 o f 2016 18 (Amendment Act). Currently, a child o f tender age may give evidence without taking oath or making affirm ation provided he/she prom ises to te ll the truth and not to te ll lie s." The Court further clarified the requirements of section 127 (2) of the Evidence Act in Godfrey Wilson v. Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 (6 May 2019), TanzLII, where it held, among other things, that: "The tria l m agistrate ought to have required PW1 to prom ise whether or not she would te ll the truth and not lies. We, say so because; section 127 (2) as amended im peratively require a child o f a tender age to give a prom ise o f telling the truth and not telling lies before he/she testifies in court. This is a condition precedent before reception o f the evidence o f a child o f a tender age. The question, however, would be on how to reach at that stage. We think, the tria l m agistrate or judge can ask the witness o f a tender age such sim plified questions, which may not be exhaustive depending on the circum stances o f the case, as follow s: 1. The age o f the child. 2. The religion which the child professes and whether he/she understands the nature o f oath. 3. Whether or not the child prom ises to te ll the truth and not to te ll lies. Thereafterupon making the prom ise, such prom ise m ust be recorded before the evidence is taken." In this case, PW1 gave his evidence without making a promise of teliing the truth and not lies and there is no gainsaying that the required procedure was not complied with before taking his evidence as demonstrated at page 9 of the record of appeal showing there was no clear declaration by PW1 to tell the truth and not lies. In the absence of promise by PW1, we think that his unsworn evidence was not properly admitted in compliance with section 127 (2) of the Evidence Act. In Yusuph s/o Molo v. Republic (Criminal Appeal 343 of 2017) [2019] TZCA 344 (30 September 2019) TanzLII, we emphasized: "It 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's case... if there was no such undertaking, obviously the provisions o f section 127 (2) o f the Evidence A ct (as amended) were flouted. This procedural irregularity in our view, occasioned a m iscarriage o f justice. It was a fatal and incurable irregularity. The effect is to render the evidence o fP W l with no evidentiary value." This procedural irregularity, in our view, occasioned a miscarriage of justice which is a fatal and incurable irregularity and its effect renders the evidence of PW1 with no evidential value. It is as if he never testified to the unnatural offence allegations against the appellant. It was wrong for the evidence of PW1 to form the basis of conviction as stated in the second ground of appeal. Consequently, the second issue concerning the credibility of PW1 whether it was contradictory or not is inconsequential. Moving to ground five, the issue is whether the defence case was considered. This complaint was raised before the first appellate court and it failed to determine the same. As gathered at pages 44 and 45 of the record of appeal, the defence evidence was considered. It is a well- established principle that considering defence evidence and disregarding it after a proper scrutiny or evaluation is one thing and failure to consider the evidence at all in the evaluation or analysis is another. The appellant cannot register a complaint that his defence was not considered simply because the decision was made against him. There must be evidence that the defence evidence was not considered at all by the trial court, which was not the case in this appeal. See: Leonard Mwanashoka v. 21 Republic, Criminal Appeal No. 226 of 2014 (unreported). In that regard, we find ground five is baseless and dismissed. On the appellant's complaint in ground six of appeal that the first appellate court introduced in evidence extraneous facts which were not part of the record during trial; in Okethi Okale and Others v. Republic [1965] 1 EA 555, the erstwhile Court of Appeal for East Africa, underscored the importance of not importing extraneous matters into evidence insisting that in any criminal trial a conviction must be based on the weight of evidence adduced. The Court went further stressing that it is dangerous and inadvisable for a trial judge to put forward a theory not canvassed in evidence or in counsel's submissions. In addition to that, any findings on extraneous facts which were not part of the proceedings and testimony of the prosecution witnesses vitiates proceedings and consequently the judgment of the trial court. See: Shija Sosoma v. DPP, Criminal Appeal No. 327 of 2017; and Athanas Julius v. The Republic, Criminal Appeal No. 489 of 2015 (both unreported). In the instant appeal, we find the first appellate court imported extraneous matter as gleaned at page 55 of the record of appeal that reads, "... doctor who exam ined PW1 and found him with infection in his anus and HIV positive" an unfounded fact not in the evidence of PW3. However, we are of the finding that such extraneous fact could not vitiate the proceedings and judgment as such fact did not form the basis of the findings of the first appellate court. Hence, we dismiss ground six. Concluding, we move to grounds three and eight of appeal raising the issue whether the charge against the appellant was proved to the hilt. The appellant was charged with unnatural offence under section 154(1) (a) and (2) of the Penal Code which states: "1) Any person who - a) has carnai knowledge o f any person against the order o f nature; or commits an offence, and is iiabie to im prisonm ent for life and in any case to im prisonm ent for a term o f not less than thirty years. 1) Where the offence under subsection (1) o f this section is comm itted to a child under the age o f ten years the offender shall be sentenced to life im prisonm ent" From the above excerpt, the important ingredient to be proved by the prosecution is carnal knowledge against the order of nature. It is a 23 well-established principle that the best evidence comes from the victim as we have held in a number of cases. See: Selemani Makumba v. The Republic, [2006] TLR 379; Mohamed Haji Ali v. The Director of Public Prosecution, Criminal Appeal No. 255 of 2018; George Mwanyingili v. The Republic, Criminal Appeal No. 335 of 2016 (both unreported). We are live to this settled position that the best evidence is that of a victim, however in this appeal, we are of the considered view as earlier indicated that PWl's account lacks evidential value. The prosecution evidence lacks the crucial evidence of the victim to establish the charge that it is indeed that the appellant who had carnal knowledge of him against the order of nature. Though the prosecution evidence of PW3, the medical doctor who examined PW1 and found his anus sphincter muscles were loose, faeces was coming out easily and he was in severe pain, amounts to proof of penetration, however, it does not reveal who was the perpetrator of these shameful acts. The remaining evidence, cannot be held with any degree of certitude as it is hearsay and could not therefore prove the charge against the appellant to the hilt. None of the remaining witnesses witnessed the occurrence of the incident. In the absence of the evidence 24 by PW1, the prosecution case is seriously weakened. We have, accordingly, found it difficult to believe that it is the appellant who indecently assaulted the victim. Had the first appellate court carried out a judicial evaluation of the evidence in the manner we have done it could have not failed to detect the outlined infractions. Accordingly, we allow the appeal, quash the judgment of both lower courts and set aside the sentence imposed on the appellant. We order the appellant's immediate release if he is not being held in custody for some other lawful cause. DATED at DAR ES SALAAM this 20th day of June, 2024. S. A. LILA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL Judgment delivered this 24th day of June, 2024 in the presence of the Appellant in person through Video Conference at Ukonga Prison and Ms. Edith Mauya, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.