Dickson Hatibu Milonge vs Republic (Criminal Appeal 400 of 2019) [2022] TZCA 482 (28 July 2022)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA. J.A.. KITU SI. J.A.. And MASHAKA. J.A.l CRIMINAL APPEAL NO. 400 OF 2019 DICKSON HATIBU MILONGE...................................................APPELLANT VERSUS THE REPUBLIC...................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Morogoro at Morogoro) (Tiqanga, PRM) dated the 30th day of August, 2019 in Extended Jurisdiction Criminal Appeal No. 8 of 2019 HC. Criminal Appeal No. 86 of 2019 JUDGMENT OF THE COURT 19n & 28t hJuly, 2022 LILA, JA: The conviction and the thirty (30) years imprisonment sentence meted out by the District Court of Morogoro on the appellant for committing the offence of statutory rape contrary to sections 130(l)(2)(e) and 131(1) of the Penal Code, Cap. 16 R. E. 2002 (now R. E. 2019) formed the gist of the appellant's first appeal to the High Court of Tanzania (Dar es Salaam Registry) where it was transferred to the Resident Magistrate with extended jurisdiction. A knock to the Court's door was precipitated by the appellant's first appeal being turned down by the Principal Resident Magistrate with Extended Jurisdiction (the PRM-EJ).

The charge alleged that the incident occurred on 11/1/2016. Five witnesses testified for the prosecution and the substance of their evidence was simple and straight forward. The victim (PW2), the name of whom is withheld to avoid any further stigmatisation, together with her young brother one Hagai (PW3) were sent by their father one Alphonce M. Kimweri (PW1) to buy "mboga" (some vegetables taken with main food) from a butchery presumably meat, located near a local brew club. Thereat, they met the appellant who, according to the victim, PW3 and PW5 who were near the club, approached PW2 and kept touching her shoulders and waist and then left with her to a place he said he would buy her potatoes. On noting that, PW3 went back home and reported the matter to PW1. While in the company of one Mkude, PW1 together with PW3 went back to the club looking for PW2 whereat PW5 told them that he had seen her leaving with one Fado. Not sooner, the victim surfaced from a narrow passage crying and claiming that "amenivunja mguu" (he has broken my leg) by a certain man she named to be Dikifado and she led them to an unfinished house in which she claimed the incident took place. Upon checking the victim's private parts, PW1 noted "sperms" around her thighs. He reported the matter to the police station and was issued with a PF3 (exhibit PEI). 2

The story by the victim goes like this. She was sent to buy "mboga" by her father (PW1) and she together with PW3 went to a butchery near a local brew club whereat while waiting for it, the appellant appeared and kept touching her shoulders and waist. Then he held her hand and told her "twende nikakununulie viazi kumbe akanipeleka Boma kwa Mshunga" (let us go I will buy you potatoes instead he took me to an unfinished house belonging to Mshunga). Thereat she was told by the appellant to lie on the floor and then undress her underpants. As to what happened thereafter, she said "Akaniingiza mdudu wake kwenye uchi" (he inserted his thing in the private part) while she was crying. After the said ordeal, the appellant left and she also left. But on the way she met PW1 who asked her why she was crying and she told him that Dikifado had broken her leg. In his affirmed defence evidence, the appellant distanced himself from the accusation and meeting PW1 and PW5 on the material date. He attributed the charge with the quarrel he allegedly had with PW1 who happened to be his best friend only to part ways for failure to fit in the business they jointly conducted. The allegation, he further told the court, was followed with a fight between them which ended with PW1 promising that something will happen. 3

The appellant's defence fell onto deaf ears of the trial magistrate who, convinced with the prosecution evidence that it proved the charge beyond doubt, proceeded to convict and sentence him in the manner stated above. The appellant's appeal, as veiled above, landed into the realm of a Principal Resident Magistrate with Extended Jurisdiction (Tiganga, PRM as he then was) following a transfer of the appeal to be heard by such magistrate under section 256A(1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 (now R. E. 2019) (the CPA). Seven grounds of complaint were placed before the learned Principal Resident Magistrate for consideration. These are, the victim's age was not proved, voire dire test was not properly conducted before PW2 and PW3 testified, penetration was not proved, there were contradictions in the testimonies of PW1, PW2 and PW3 , section 240(3) of the CPA was not complied with, section 210(3) of the CPA was not complied with and that the charge was not proved. All the complaints were found without merit save for the fifth ground which succeeded and exhibit PI was accordingly expunged. All the same, expungement of exhibit PI was ineffectual and could not displace the finding of guilty by the trial court. His conviction and sentence were thereby sustained.

The PRM-EJ's decision aggrieved the appellant, who is now seeking to impugn the said decision through two sets of memoranda of appeal. The substantive memorandum of appeal contains 5 grounds and the supplementary memorandum contains two grounds making a total of seven grounds. However, upon our deliberation, we are convinced that the appeal turns out and is wholly disposable under the first ground of appeal in the supplementary memorandum of appeal making it wholly unnecessary to recite other grounds of appeal. That ground runs thus: "1. That the learned trial magistrate grossly erred in law by failure to append her signature on the evidence o f PW2, PW3, PW4 PW5 and DW2. This omission contravened the mandatory requirements o f section 210(l)(a) o f the Criminal Procedure Act Cap. 20 R. £ 2002 (now R. £ 2019) hence rendering the trial court proceedings and the 1st appellate court proceedings (Ext. Jurisd) a nullity." For the hearing of the appeal before us were the appellant, who appeared in person and unrepresented and Ms. Hilda Kato and Ms. Anna Chimpaye, both learned Senior State Attorneys, who represented the respondent Republic. The appellant had, together with his grounds of appeal, lodged written arguments in support of his grounds of appeal which he adopted

as part of his submission and had nothing to add. On the point under consideration, the appellant had not submitted anything as it seems the written arguments were intended to amplify the grounds of appeal contained in the substantive memorandum of appeal only. Ms. Kato did not quite resist existence of the anomaly. She readily conceded that the record of appeal is patently clear that the trial magistrate did not append his signature after recording each of the witnesses' testimony and her reference was to PW2 at page 20, PW3 at page 24, PW4 at page 28, PW5 at page 30 and DW2 at page 43. Much as she appreciated that such omission was a contravention of section 210(l)(a) of the CPA, she was adamant that it did not prejudice the appellant hence the trial magistrate was right to act on such evidence in convicting the appellant. In the alternative, Ms. Kato submitted, the Court should order a re-trial in the event it is found the omission is fatal as the evidence by PW2 and as corroborated by other witness, made the prosecution case solid. To appreciate the import of the provisions of section 210(l)(a) of the CPA, we hereunder quote it thus: "210(1)- In trials, other than under section 213, by or before a magistrate , the evidence o f the witness shall be recorded in the following manner: 6

(a) The evidence of each witness shall be taken down in writing in the language o f the court by the magistrate or in his presence and hearing and under his personal direction and superintendence and shall be signed by him and shall form part of the record, "(Emphasis added) It is, we think, apparent that it is a mandatory requirement that a trial magistrate has to append his signature after recording evidence of each witness. It is not surprising therefore that Ms. Kato conceded to the infraction. We accordingly agree with the proposition by both the appellant and Ms. Kato that failure by the trial magistrate to endorse the evidence of each witness is a procedural infraction. But, Ms. Kato had a different view on the obtaining consequences although she could not cite any law or produce any authority to back up her position. We need not travel an extra mile to look for an obvious answer that the omission constitutes a mistrial which renders the whole proceedings a nullity. This Court upon numerous recent decisions inclusive; Amir Rashid vs Republic, Criminal Appeal No. 187 of 2018, Yohana Mussa Makubi vs Republic, Criminal Appeal No. 556 of 2015, Sabasaba Enos @ Joseph vs Republic, Criminal Appeal No. 411 of 2017 and Chacha Magige vs Republic, Criminal Appeal No. 406 of 2017 (all unreported), had occasions to consider the rationale for the trial magistrate appending

a signature after every witness' evidence and the consequences of its omission by the trial judge in which section 210(l)(a) of the CPA was referred to since there is no similar provision in trials before the High Court. In all those decisions, the Court has consistently and insistently taken the view that appending signature guarantees the authenticity of the recorded evidence and the omission was held to be fatal which vitiated the entire proceedings. Said it in other words, it is intended to ensure veracity of the evidence. Besides, the import of section 210(l)(a) of the CPA was discussed by the Court in the case of Amir Rashid v. Republic, Criminal Appeal No. 187 of 2018 (unreported) and the Court stated as follows: "The quoted provision [section 210 (1) (a)] is coached in mandatory terms implying that it is imperative that a presiding magistrate has to ensure that he appends his signature after the end o f each witness' testimony. The rationale is not hard to find. It lends assurance that such evidence was recorded by an authorised person." Aware of the above and the Court's stance in Yohana Mussa Makubi vs Republic, Sabasaba Enos @ Joseph vs Republic, and Chacha Magige vs Republic (supra), a similar stance was taken by the Court in the case of Robert Majengo vs Republic, Criminal Appeal No. 428 of 2017 (unreported) and the Court restated that:- 8

"The record o f appeal is loud and dear that the trial magistrate did not sign after recording each witness's evidence hence violating the above provisions o f the law which lays down the procedure to be followed in recording evidence of witnesses. By virtual o f the law, any omission to append a signature has far reaching consequences that the authenticity of the proceedings is rendered questionable. It creates an uncertainty as to who recorded the evidence such that it cannot be taken to be part o f the record o f trail [See Yohana Mussa Makubi and Another vs Republic, Criminal Appeal No. 556 o f 2015 cited in Chacha Ghati @ Magige vs Republic, Criminal Appeal No. 406 o f 2017 (both unreported)]. That said, in the instant case, there was no evidence on which the appellant's conviction could be grounded." Going by the settled law, the evidence by PW2, PW3, PW4, PW5 and DW2 deserved no consideration in the determination of the appellant's guilt. We think that was an oversight on the part of the first appellate court. We, accordingly nullify the entire evidence by PW2, PW3, PW4, and PW5 and DW2. Having done the above, we are remained with the testimony by PW1. Taken alone, such evidence would not be able to establish not only 9

penetration but also who the ravisher was. The prosecution case obviously collapses. If not the oversight, we do not think that the first appellate court could have sustained the appellant's conviction. We cannot therefore let the findings of guilty by both courts below to stand. The question whether we should order a re-trial is last to be considered. The appellant and the learned Senior State Attorney had divergent views. We have given deep thought to the matter and evidence on record while mindful of the spirit embraced in the case of Fatehali Manji vs Republic, [1966] EA 341 that the interest of justice should prevail over other considerations in that such an order should balance the interests of both sides and should not let the side with a weak case reinforce it by filling up the gaps in the former trial, particularly the prosecution case. Besides the above, the testimony of PW2 suffers another serious deficiency making it highly improbable and unreliable. It seems clear to us that she is not reliable. She gave two different accounts of what had befallen her at different times. Ordinarily one would have expected her to have told or explained exactly the ordeal she had faced but she said her leg was broken by the appellant when she first met her father (PW1) after the alleged incident. We are left with doubts as to how a child of her age could withhold such vital information. It should be recalled that it is trite 10

law that the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability and, in the same way, unexplained delay or complete failure to do so should put a prudent court to inquiry. (See Marwa Wangiti Mwita and Another vs R [2002] TLR 39). To be worth it, naming a suspect should go along with a true and detailed account of the offence committed. Both should be done at the same time. That was not the case herein. Much as PW2 named the appellant but that could not help as the accusation she raised was her leg being broken which is too remote to being raped. That conduct renders her evidence doubtful hence unreliable. Unfortunately that weakness was not put before the appellate court for consideration. We are convinced that had it been done so it could not have upheld the findings of the lower courts. The more so, PW1 said he saw sperms in the victim's private parts and thighs but failed to tell how he could do so and the doctor who examined the victim was not called by the prosecution to testify on his finding as revealed in exhibit PEI. Worse still, exhibit PEI was not read out after admission rendering it liable to be expunged. These are but crucial weaknesses in the prosecution case which if re-trial is ordered there stand chances to be filled to the appellant's prejudice. Accordingly, this case does not befit an order for re-trial being made. 11

For the foregoing reasons, we allow the appeal, quash the conviction and set aside the sentence. We order the appellant be released from prison forthwith if not held for another lawful cause. DATED at DAR ES SALAAM this 27th day of July, 2022. S. A. LILA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL The Judgment delivered this 28th day of July, 2022 in the presence of appellant in person and Mr. Nasoro Katuga, learned Senior State Attorney for the Respondent is hereby certified as a true copy of the original. 12