Sungura Athuman vs Republic (Criminal Appeal No. 291 of 2016) [2018] TZCA 343 (19 September 2018)

IN THE COURT OF APPEAL OF TANZANIA . t " . ATTABORA '~ ',I '" . (CORAM: MUSSA, J.A., LILA, l.A., AND MWAMBEGELE 1 J.A.) ,.:-- .:~ CRIMINAL APPEAL NO. 291 OF 2016 SUNGU,RA ATHUMAN-.*,.: ••• .:._•.• :;:'.:'~~.; •..•... ::" .•.. ~ •••.. ;•..•.......•.•••.•.•... : t"APP'EtLANT" ."'' ., .. Y, VERSUS THE REPUBLIC ••••••• a •••••••••••••••••••••••••••••••••••••••••••• , •••••••••••• ~ .••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Makani, J.) Dated the 6 th day of May, 2016 in DC. Criminal Appeal No. 21 of 2016 ................. JUDGMENT OF THE COURT ' 31 st August & ig th November, 2018 MUSSA,l.A.: . In the District Court of Shinyanga the appellant was arraigned for rape, contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, r ~;" 1, f' .+; ~ particulars of the char-g€'Sheet alleged that on a divers day in f'v'jarch 2015, . '" at Upongoji area, witnlnthe Municipality of Shinyanga, the appellant had sexual, intercourse with .a certain "MJ." {PW1J who then was {en "years 'Of age. 1

The appellant denied the charge following which" the prosecution , " featured five witllesses and one documentary exhibit tPl) comprised of a ~ . ''". 7, .Police r=-or;a;l:Nd. 3. In reply, the appellant had himself as a sole witness, and, as it: were, he completely, dlsassodated himself from the prosecunon , .__ ,'- ••• _ _ _ , '. " "..... ." :. ;I,,, • ., _ •.... .' _ _..,', accusation. At the height of .the trial proceedings, the trial Magistrate was impressed by the ·v€rsion ,told by the prosecution witnesses and, accordingly, found the prosecution case to have been established to the hilt. In the result, the appellant was convicted but, in the course of 50 convicting! the learned trial Magistrate said thus:- .312 (1) .ot CPA (Cap. 20, R.E 2002) (sic) after observation of the whole evidence done by this Court." Upon conviction, the appellant was sentenced to a term of thirty • ",.,,:, •.•••.•. , ,::: ~ •.;" •• ,·I<;p.O&:_4tl'.••... .I11 ..••• ',_r . .f+.',;ul. -t- .' -.1 •• 'i- 'V .•• ~ :'v.I~~k'.J.f .• ,..:P..,~ "I. years imprisonment: -H1s~!1rst appeal to the High Court was dismissed in its, ;'f" entirety (Makani, J.), hence ,tnis second appeal which is upon ,",;3 " memorandum of appeal with a supplementary memorandum attached to it. _, .li; . .1.:' U I. . 2

The two memoranda may conveniently be crystalized and paraphrased as follows:- it:ladequ~~~Iy' conducted; . 2. That there was no proof of age of the alleged victim; . 3. That the case for the prosecution was undermined by contradictory evidence from its witnesses; 4. That the trial Magistrate erred in predicating the conviction under section 32 (1) of the CA; . 5. That the PF. 3 was improperly adduced into evidence; and 6. That the trial Magistrate did not consider : ~ -!,- 't , the appellant's d.fn£§,!'"",_",*, . . .•.::.eI"' ,:;rl(ll_"'';''''"-,•••., . -~ 1l" oU.-..;-,,,.;·•• ....A..-•• '-Io.4'''::JOo.;(f;. • .,.·t.tir-:.'' .,; '""-..... ,. r , .'., At the hearing. before us, the apUa,nt- .W?S fending for himself, " unrepresented, whereas the respondent Republic had the services of Ms. _'T~.tJ"~ 'I~,., ·IJ"t)••.. ft ;~,. , Margareth Ndaweka, learned Senior State Attorney, who was being 3

=: assisted by Mr. Shaban Massanja, learned State Attorney. As it turned out • !,th' appellant fully adopted his two memoranda of appeal-but deferred their' .; elaboration to' 8', later $tage,,: jf oeed be, after the submi_ssions~,oL~'the"".",.;:,: 'respondent. For her part, ' Ms. Ndaka. commenced her address by, fully" supporting the conviction as well as the sentence meted out against the , appellant. Nonetheless, ahead of our consideration and determination of " .the points of contention, ·we think it is pertinent to outline, albeit briefly, the factual background giving rise to the apprehension, arraignment and the eventual conviction of the appellant. Our starting point is the evidence of the alleged victim (PW1). The , witness introduced herseltas a ten years old and, thus, the Court had to conduct a yoke dire test 'ahead of €verything. During the exercise, the court .put to her several questions before making a finding to the effect that .she understood the nature of an oath and PWl was, accordingly, sworn . • ' ..•• 1 •• ;.0" .• 1'--'.:"" -". -i' .•••~ ~'" """'.:0',<;"'''' ~"'.·"1..1 ~,.,..,. ... - .,". .; " In her sworn testimony, PWl told the trial court that she was a standard -IV, pupil: at Kambarage Primary School and; that' she knew the appellant as a resident of Upongoji area within Shinyanga Municipality. Her ,;'(. ,,)'. , evidence was to the effect that someday in March 2015 she was' walking 4

towards home after knocking off from school, Midway, she bumped across , afriend-of-hers whom' we shall henceforth refer as '\MT.f{~s it turned out, obliqed. MT then 'led PW1, tothe house of the appellant unto which both entered and found the appellant therein. MT allegedly informed the appellant: "This is the girl, "whereupon the latter welcomed the visitors to ; :his : bedroom. According to PW1, whilst there, to her surprise, MT : .undressed h€r and, soon after, the appellant inserted his manhood into her vagina. PW1iclaimed to have felt untold pain in consequence of which she cried but her wailing was discontinued by the appellant amidst a threat that he .would stab her. At the end of the ungodly act the appellant rewarded PWl with some sweets. Thereafter, PWl returned home but she did not disclose what befell on, her eta her grandmother, henceforth referred to' as (PW2). She, however" tld her that she" was unwell followipg vyhich PW2 took her to i, '"',; ;,./." • ,-, >t;. .' Shinyanqa 'Goverrfmenr Hospital where she was 'aftenaea:;""Accofarhg to ~ . , . . . PW2, that was onthe 2 nd March, 2015. A little later, on the 5 th March, 2015 . - . , .-. \ ~. ~ _J., . .,>1 . . r'" ~.j"...; _''i PW2 took PWl to her school where the head teacher punished her with a cane for -not attending school for five days. It was in the course of the chastisement when PWl revealed her ordealwifh the appellant 5

~ :,.' , :A,fJood deal later, on the 23 rd March, 2015 the despicable episode ''; t. . '\ .. ; - .... . •.. :,' was eventually reported to Shinyanga Police Station before a woman police. i.. ;;'-:, .,..-~~, i':.l ~~> "_ ,:".'''<l, ..>: !l''- :;/ .. ,w.•.•..•. · .":,.- -,-w_ ""1,1 ,_.;,..,,:'.'.'-" :,.;,,:: ..,j Ii,-"' .. ol'·~~ •• - . Constable (PW4)., Soon after, PW1 was presented to a medical officer whom we shall simpl'{ call (PW5) of KarTlbarage health C€ntre, for medical examination. Having examined her, PWS found the genital organs of PWl to be in order without .anv bruises or tears. The little girl was however, without the 'hymen and the medical officer formed the opinion that PW1 had been exposed to sex several times. According to a detective Corporal, simply named as (PW3), the appellant was apprehended ln April 2015 after having bumped across a relative of PW1. With this detail, so much for the version whlch ..was ui)veUedby tL'l€ prosecution wltnesses.dunnq.the tnal. It . is, perhaps-pertlnentto observe that, save for PVv5, the evidence of all the prosecution .witnesses was not, at all, tested by the appellant in cross- examination. .. We have already intimated that the appellant gave 'Sole testimony in , ~ ... ,~ ;, .- •• ~~~ :\0.,••••••.••. "_""';'4','0:, if'.f-t. .-' -lC',. •• , ..• ~~.... .,.. . which he completely disassociated himself from the prosecution ac-cusation. • Ii, iiis account was to the effect that 01'1 the sth·,April, 2015 he was-confronted . by two persons while having lunch with his paternal uncle and family . . _ •. - ,,~•. ,-. ··,;t Those two told him that he was required at Shinyanga PoHce Station. He , 6

heeded to the call and,' upon reaching there, he was, to his surprlse," . implicated by the rape accusattonof which he knew nothing about. That it,4 concluded the.appellant's-vsrslon of the accusation against him. ,;' ..', 'I" '" ,'" • " _,.t .; We have already indicated the extent to which both courts below were impressed by the version as told by the prosecution witnesses. Again/ as we have hinted upon,. Ms. Ndaweka commenced her address by supporting the conviction as 'well as the sentence meted out against the appellant. To begin with/she/nevertheless, conceded that the learned trial Magistrate wrongly predicated the conviction under section 312 (1) of the CPA in lieu of the provision under which he was charged with. The learned occasion any miscarriage of jllstice and was, to that extent/ curable under section 388 (1) of the CPA. As regards the appellant's other potnts of grievance/ Ms. Ndaweka approached them generally and submitted that/ ~' on the whole.sthe evidence was' overwhelmingly against the appellant and '-:Ieft no doubt that he/ indeed/ committed ~j1e' offence charged. • • / __ > • t, " v- . t- .• " '-.'7' , As the learned Senior State Attorney concluded thus, we intervened to enquire from' .her as to whetoer.or not the failure to feature MT during.". w' the.~trial either as -ansabettor or a witness could prornptan adverse 7

I inference being drawn against the prosecution. To this enquiry Ms . ..Ndaweka conceded that an adverse inference may, indeed, be in the offing ;:"" ~ '''.-';[', .land, in fact, our intervention .completelyJderailed the learned. Senior",State ... .; . <jlJ ••. Attorney to the extent of.refurbishlnq ,her earlier stance by not supporting the conviction upon a second thought. Speaking of the rule on adverse Inference, it is not quite the -obilqatlon of the prosecution to call a superfluity of witnesses. On the contrary, the prosecution is expected, as it is, indeed, in the best interests , (of justice, forlt to always be concerned with the shortening of trials. Thus, '<where in. a particular case, an incident is deposed by a large number of <:vv1tnesses, t-he- non.,.fe-at-lJring il1 court of-some of t.•ne wtnesses shGtdd not -: .... .be taken as a cause for disbelieving the prosecution Version. Nonetheless, .the general and well known rule is that the prosecution is under a prima facie duty to call those witnesses who, from their connection with the t j' transaction in' question, are vital and "able to testify to material facts. If '."" ···t-'-··';''··"'.'-<,· ",. -,' "",,;,.' .,.,.."", . .'.,.."",_,."'."!.j.;"';J'"~ .such witnesses are within reach but are not cailed -withO'ut sufficient reason «1 .•• '# being shown, the .court may draw an inference adverse to the prosecution • • " ••. '!. '" ••.• '" l.'" ' .' ., < .•• • , '(I' • .,' _',". I ' . ,- !"-.,. (See - Azizi Abdalah Vs The Republic [1991] TLR 71) . ... -\lX..$..~~, "t:l .. -.. • ~ 1;"" .••"~ ;~'l-.' •.•; qdJ rf .~~" 'v>» .' , 8

In the matter at hand, there was no telling' whatsoever from the prosecutlon.cletralone a sufficient one, as to why it:clid:tnot 'feature the , , .' MT outspokenly featured in the testimony of PW1. If the prosecution was not minded to employ her for use, the proper approach would have been to discard her at the closure of its case and offer her to the defence. As that 'was not done, an adverse inference is, indeed, in the offing and, we are afraid to say, the same throws into doubt the entire account of PW1. As fate would have it/the absence of MT is notthe only disquieting 'aspect of the case giving -rise to this appeal. It is evident from the trial courts jU8gmentthat the learned Senior District Magistrate did not, at all, constder.ethe " defence version ahead of his decision to uphold the .prosecutlon version without more. That was, the judgment which was upheld .by the High Court which fell into the same trap of not considering the appellants defence, As it turns out, in his fourt~ ground of complaint, . the appellant criticizes~:b6tn.<c()lJrts below for turning a bliri~ eye:' t<r hl$, defence. ".' • t-:". It is now settled that failure to consider the defence case is fatal with ·"the effect of'\fitiating a conviction (Se.e;lor instance,,,·ttockhart - Smith ,': v« Republic, [1965],- E.A. 211; Elia Steven Vs Rep~bllc [1982] TLR' 9

, ;" 313; Hussein Iddi ,& Another Vs Republic [1986] TLR 283; : arid the ;'_ :._ 1/,. ,'4 unreported' Criminal App'eal:?-f\Lo. .19 of.2010 -:: Siza Patrice--'(s Rep'ublic:}: ,t •... . " . ~ , r.... .: .) :t' , ;, "":" 'Wih-'n-efur'e:JOl~:i'shortcomings in niintl;--we"a'n;e6h'stc3ind;to'allow , .: ". " -the, appeal: ,and.:~~h0kJ .that: lt is unsafe to, sustain, the conviction"of the, .. ' , ' ' '.,' appellant. The same is; accordingly, quashed just as the resultant sentence , .::' cis set aside. As such an order will suffice to dispose of the appeal, we need .. .' ., '. " : .!>: .', •• : ~ , , ' ''...J, ]i :,: 'i<. -not belabor .on-tneotber 'complaints raised' in the a ppella ntis :+nemoranda. ,;, . , " ':' • ..: t 'In the end result-we order the appellant's immediate release from prison , :: ' custody unless he is otherwise lawfully held. . .' . . , __ , , " : ,": .!. (;iiDATED,;atI)ARESSAlAAMthis20th day ofSeptmber>2018. , ".', ' ',' ',,:. . .': '~ .~ : \ 1 ~ : • '. ::! ,-. .: ~ , ,1 " ' , K. M. -MUSSA ' . JUSTICE OF 'APPEAL '" : .. ' . S. A. LILA JUSTICE OF APPEAL , '. ", ',.., : J. C. M. MWAMBEGELE .) iff , .•• ,. JUSTICE' OF APPEAL "l ~ , t ,;. : . } , fI' ' ".-". _ •.••. ·.cl. ,,"t"":' •. A .",,-:.." .. ",' ~ .•••. ... ':, •••• ,.!, r.· .• ;_ .. " A>-(,"'" ••• '1-1.':'1" ~ , ••••••••.. 'l-. .••• ,~ .. , '.1 •••• "c' ,!.;.: .• ' , I certify that this is a true copy of the· original. " '_, -; . , _ ... ,' . ~. .. ' , ':. H.S. MUSH!' . DEPUTY REGISTRAR +-ceunr Of-APPEAl' , ' """ ~l; ", .: .. ", I, ••.. -." 1:'- 10