Godfrey Antony Ngonyani vs Republic (Criminal Appeal No. 302 of 2023) [2025] TZCA 1115 (15 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA f CO RAM: MKUYE. J.A., MASOUD, 3.A. And ISMAIL J.A.^ CRIMINAL APPEAL NO. 302 OF 2023 GODFREY ANTONY NGONYANI ................................................... APPELLANT VERSUS THE REPUBLIC........................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Songea) (Madeha, J.l dated 20th day of April, 2023 in Criminal Appeal No. 1 of 2023 JUDGMENT OF THE COURT 1st & 15th October, 2025 ISMAIL J.A.: Godfrey Antony Ngonyani, the appellant, is serving a life imprisonment, following his conviction of the offence of having carnal knowledge of a five- year-old girl, against the order of nature. The charge instituted in the District Court of Songea at Songea, informs that the offence allegedly occurred on 1s t April, 2022, at Ruhuwiko area within the municipality of Songea. The case for the prosecution revealed that, at around 11:00 hours of the fateful day, Suzan Thomas (PW1) who is also the victim's grandmother was preparing breakfast. Suddenly, she saw Grant Amandus (PW3), her other grandchild, coming from school. Unusually, PW3 was alone without the victim (PW2) and this raised PWl's eyebrows. On enquiry about PW2's whereabouts, i

PW3 replied in Swahili that 'bibi, dada ameibwa na Babu Ngonyani ' literally translating to: " Grandmother, my sister has been grabbed by Babu Ngonyani" As she said these words, PW3 showed PW1 the point from which PW2 was allegedly grabbed. Babu Ngonyani in this case referred to the appellant by the name that he is popularly known, and one with which PW3 was familiar. Midway through the point at which the incident allegedly occurred, they met PW2 crying. Her clothes had thorns stuck on. She narrated her ordeal with the appellant, stating that, having grabbed and dragged her to a bush, the appellant forcibly removed the victim's underpants and inserted his manhood into her anus. PW1, along with PW2, rushed to a police station where she reported the incident. A Police Form No. 3 (PF3) was issued and referred the victim to Mji Mwema hospital where D r. Matilda Kaulemi (PW4), a medical doctor, examined the victim. Her observation was that, the victim had bruises and wounds in the anus, from which blood oozed. She also noted that sphincter muscles had loosened. The appellant was put under police restraint and subjected to an interrogation. A cautioned statement recorded by WP 3767 D/Sgt Mwanaisha (PW5) was admitted as exhibit P3. The substance of the statement was a confession by the appellant of how he grabbed the victim, dragged her to the field and sodomized her.

In his defence testimony, the appellant raised the defence of alibi, contending that, on the material day, he was out of town, tending to his farm. He returned home in the evening. At about 02.00 hours police officers raided his house, arrested and beat him up in a bid to extract a confession to the alleged offence. The trial court was convinced that, the testimony adduced by five prosecution witnesses did enough to establish the appellant's guilt. It convicted him of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16. In view of the fact that the victim's age was below 18 years of age, the trial court sentenced the appellant to imprisonment for life. The conviction and sentence have attracted a serious resentment from the appellant. He filed his appeal to the High Court but the said appeal fell through. Undaunted, he is before us in yet another attempt. His appeal, preferred to this Court has five grounds of appeal which are paraphrased as follows:

1. The first appellate court erred in not considering that PW2 and PW3 did not identify the appellant.

2. The first appellate court erred in considering the evidence of PW2 to convict the appellant while her evidence was lacking in credibility.

3. The trial court erred in basing on the cautioned statement to convict and sentence the appellant while the recording of it did not conform to the Criminal Procedure Act (CPA).

4. The lower courts erred when they convicted the appellant based on exhibit P2 while the same was likely to be tampered on account of improper chain of documentation.

5. The lower courts erred in grounding a conviction while the prosecution failed to prove the case beyond reasonable doubt. At the hearing of the appeal, the appellant was present in person and fended for himself, whilst the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney, along with Ms. Generosa Montano and M r. Frank Chonja, both learned State Attorneys. When invited to address us, the appellant urged us to let the respondent's counsel address us first. He reserved the right to rejoin, should the need for doing so arise. Ms. Tengeneza who addressed us, argued following the sequence in which the grounds of appeal were preferred. Our determination of the grounds of appeal will follow the same sequence. As we are set out to proceed with the determination of this matter, we need to recapitulate and are mindful of what is now the settled principle. It is to the effect that, when this Court sits to determine an appeal on second appeal that emanates from concurrent findings by the two lower courts, its

interference with such findings will only be merited if the lower courts' decisions are preserve, demonstrably wrong, clearly unreasonable or are bred out of complete misapprehension of the substance, nature or non-direction on the evidence or where courts blatantly violated a principle of law or procedure, thereby occasioning a miscarriage of justice - see: Emmanuel Samson v. The Director of Public Prosecutions [2021] TZCA 507; Wankuru Mwita v. Republic [2011] TZCA 483; and Omary Lugiko v. Republic [2018 TZCA 666. The clear understanding of this position will help us know the confines of our intervention in this matter. Ground one of the appeal raises an all-important aspect of identification. The appellant has punched holes in the concurrent decisions of the lower courts which relied on the testimony of PW2 and PW3 without there being an identification parade. The appellant added that in Songea, the name Ngonyani is popular and that, there are many people who are his namesakes. He contended that Babu Ngonyani which was used by PW2 would never refer to him as that was not his name. He argued that, the possibility of mistaken identity could not be ruled out. Ms. Tengeneza was not convinced that, an identification was necessary. The incident occurred during the day and that the appellant was arrested in the wee hours of following day. He was a known person who required no more identification.

As a general rule, conducting of an identification parade is not a mandatory requirement. By and large, this constitutes a crucial part of criminal investigation. Its importance comes where the witness does not know the accused and their identity is uncertain. Where identification is a key issue and it requires a parade in order to identify an accused who is unfamiliar with the witness, then failure to conduct it has the effect of weakening the prosecution's case. This position was fortified in Zilam Hamisi v. Republic [2024] TZCA 402 in which it was emphasized that an identification parade is intended to test a witness's visual identification of a suspect during the commission of the crime. It is not, in any case, intended that its testimony should constitute substantive evidence by the prosecution. The record clearly shows that, the incident occurred during the day when the victim and PW3 were heading home from school. The perpetrator was identified and described as their neighbour who they knew thoroughly well, and it is why he was immediately named by both of them when they conveyed the news to PW1. They did that using the name that the appellant is popularly known by. At page 13 of the record of appeal, PW1 quoted PW2 saying "babu mwenyewe yule", literally meaning "there is the grandfather I told you about". PW2 said this while pointing at the appellant when they met him at Magodown area. PW3 was equally unmistaken in her account when she responded to PWl's query on where PW2 was. We venture to think that, for all intents and purposes, the testimony of PW2 and PW3 was that of recognition 6

and the settled position is that such evidence is more assuring and reliable than that of identification of a stranger. See: Athumani Hamisi @ Athumani v. Republic [2012] TZCA 303; and Thobias Bandi v. Republic [2024] TZCA 1168. We are convinced that, circumstances of this case required no need of carrying out any form of identification, be it through a parade or anything else. It was a clear case of having the suspected culprit recognized and PW1, PW2 and PW3 did exactly that. We dismiss this ground of appeal. The appellant's disquiet in ground two resides in the decision by the lower courts to convict the appellant based on the evidence of PW2. In his contention, this testimony was not credible and not worth of belief. On the language used, that is, "AHmtoa mdudu wake akaingiza kwa nyuma kwenye mabodi" the appellant was of the view that it did not convey the message that would be construed to mean that the appellant sodomized the appellant. He was adamant that the nature of the act would not allow PW2 to know exactly the blunt object that penetrated her. Ms. Tengeneza was firmly of the contention that PW2 was a credible witness whose testimony was positive. Moreover, she argued, PW2 identified the appellant by name when she named him to PW1. Dispelling the possibility of mistaken identity, the learned counsel argued that, PW3, who was the first to break the news named the appellant as Babu Ngonyani and she identified

him as well. She argued that, since the incident occurred in broad daylight, the possibility of mistaken identity did not exist as the appellant was a person known to PW3 and PW2, the victim. We preface our analysis of the parties' contending submissions by stating, in this case, that, despite being the victim of the incident, PW2 was also an eye witness. In law, an eye witness is a crucial witness whose testimony is weighed highly compared to other pieces of testimony. This was underscored in the case of Abas Kondo Gede v. Republic [2020] TZCA 391 wherein it was guided as follows: "As we all know an eye witness is a crucial witness whose evidence being oral is direct as provided under section 62 (1) (a) o f the Evidence Act, Cap. 6 R.E. 2019. Thus, "an eye witness is a person who has seen something happen and gives first hand description of it." It follows that, barring anything that touches on his or her credibility, the testimony that he or she adduces must be viewed with less or no circumspection. It must be considered to be the most accurate account of what is alleged to have occurred. Reverting to the matter at hand, it is settled law that, for a conviction to be properly grounded, the evidence on which the conviction is premised must be credible, coherent and sufficient. See: Mohamed Said v. Republic [2019]

TZCA 252; and Shabani Daudi v. Republic [2004] TZCA 84. It is generally accepted that credibility of a witness is not pegged on any scientific formula. It is a matter that is assessed by the trial court, and the basic consideration for its assessment is as was laid down in Shabani Daudi v. Republic (supra) in which this Court held as follows: "Credibility o f a witness is the monopoly o f the trial court but only in so far as demeanor is concerned. The credibility o f the witness can also be determined in two other ways. One, when assessing the coherence o f the testimony o f that witness and two, when the testimony o f that witness is considered in relation to the evidence o f the other witnesses including that o f the accused person. In those two occasions, the credibility o f a witness can be determined even by a second appellate court examining the findings o f the 1st appellate court." In the instant case, the lower courts were of the unanimous view that PW2 was a credible witness, and we fully subscribe to that solid reasoning. Our review of the record gives as a glowing impression about the testimony of PW2. She was coherent in her account, from the time she was grabbed and dragged by the appellant to a nearby bush where he allegedly had carnal knowledge of her against the order of the nature. The record further reveals that, immediately after the act, PW2 reported the incident and named the appellant to PW1, who un-hesitantly, took steps which included reporting the matter to a police station. Her testimony further informs that PW2 was able to identify 9

the appellant when she met him subsequent to the alleged incident. This testimony was amply corroborated by PW3 who also named the appellant immediately after she witnessed the appellant grabbing PW2. She came to identify him later, in the presence of PW1. The settled principle is that, ability to name the appellant at the earliest opportunity is an all-important assurance of reliability, and it adds credence to the testimony of the witness - see: Mwara Mwita Wangiti & Another v. Republic [2002] T.L.R. 39. What we gather is that, her testimony touched about the agony and the pains that she carried in her anus, a fact which was corroborated by PW4 and exhibit P2. The consistency, coherence and attention to detail with which PW2's testimony was characterized was nothing short of meticulous. As stated earlier on, the appellant has taken a serious exception to the use of the words: "AHmtoa mdudu wake akaingiza kwa nyuma kwenye mabodi" contending that such words lack clarity which would justify the conclusion that such words were intended to mean that PW2 was carnally known by the appellant. We find this argument fallacious as the law is now firmly settled, to the effect that, unlike in the past where victims, especially child victims were considered not to have done enough to prove existence of sexual acts when they used allegorical phrases or words, such words and phrases are now accepted as leaving no doubt that the victim of sexual

harassment was penetrated by the accused's male organ. We accentuated this position in Hassan Kamunyu v. Republic [2018] TZCA 259, as follows: "Thus words like "[he] removed my underwear and started intercoursing me" in Matendele Nchanga @ Awilo (supra), "sexual intercourse" or "have sex" in Hassan Bakari @ Mamajicho (supra), "[he] undressed me and started to have sex with me" in Nkanga Daudi Nkanga (supra), "kanifanyia tabia mbaya" in Athumani Hassan (supra), "aiinifanya matusi"in Jumanne Shabani Mrondo (supra) or "he put his dudu in my vagina"in Simon Erro (supra) or "did sex me by force" "this accused raped me without my consent" whiie the accused was sexing me" in Baha Dagari (supra) were, though not explicitly described, taken by the court to make reference to penetration o f the penis o f the accused person into the vagina o f the victim" We entertain no doubt, therefore, that, the words that the appellant is jittery about and urges us to accord no meaning were just another veiled way of describing how the appellant penetrated her. We, in consequence find this contention hollow and we reject it out of hand. We hold that this ground of appeal is unmerited and we dismiss it. Ground three has decried the manner in which the appellant's cautioned statement, exhibit P3 was recorded. The contention by the appellant is that the same did not conform to the requirements of the provisions of the CPA, as it

was recorded more than four hours from the time he was put under restraint. Ms. Tengeneza has conceded that, counting time from the time of his arrest to the time indicated that his statement was recorded, a period of five and a half hours had elapsed. This, she argued, contravened the provisions of section 51 of the CPA which sets four hours as the timeframe for recording statements. We have taken time to review the record of appeal. Exhibit P3 which is under the cosh is found at page 84 of the record of appeal and it tells the entire story which is to the effect that, the statement was recorded on 2n d April, 2022 at 07:30 hours. What is not clear is the time at which he was arrested. At page 29 of the record of appeal, the appellant testified that he was arrested at 02:00 hours in the dawn of 2n d April, 2022. If this is to be taken as the correct timing of his arrest, then the contention that exhibit P3 was belatedly recorded makes sense, and the concession by Ms. Tengeneza was nothing short of a plausible course of action. It is consistent with the settled position which is to the effect that statements recorded in contravention of section 51 (1) (a) of the CPA is inadmissible -see: Mbuzi Lushona @ Mwangaika & 2 Others v. Republic [2024] TZCA 964; and Ester Lyimo v. Republic [2022] TZCA 197. It follows that, the fate that exhibit P3 should suffer is to have it expunged as we hereby do. Consequently, this ground succeeds. The gravamen of the appellant's complaint in ground four is that, the chain of custody of exhibit P2 was broken. His argument is that, PF3 is a

government document whose handling must be carefully managed. He decried the handing of the said exhibit to PW1 and that, in so doing, its chain of custody was broken, rendering it unworthy of supporting the case for the prosecution. This contention has been rebuffed by Ms. Tengeneza who was of the view that, there was nothing untoward in the handling of exhibit P2. Moreover, she contended, PW4 explained at pages 19 to 21 of the record of appeal how she attended PW2. The learned counsel was of the contention that, the fact that the record is silent on who PW4 handed exhibit P2 to is irrelevant and cannot serve as the basis of contending that the chain of custody of the said exhibit was broken. It is true that, the record is silent on what PW1 did with exhibit P2 after it had been filled by PW4 and handed back to her. What is clear, however, is that such document was filled out and handed to PW1 and that the latter returned to police station where she was also called upon to identify the appellant. The probable assumption is that, when PW1 returned to the police station, she reported the findings and handed over whatever that was given to her by PW4. This is supported by her testimony found at page 14 of the record of appeal. We are also of the considered view that, the fact that PW1 failed to explain the person to whom he handed exhibit P2 cannot be interpreted to mean its contents were tampered with. The testimony of PW4 is clear that the

contents of exhibit P4 represented what she filled when she examined PW1. It is also worth of note that, exhibit P2 was admitted as part of the prosecution evidence without any objection from the appellant. Subsequent to his admission and during cross-examination, nothing was raised to impeach its veracity. This means that the appellant had no qualms about the manner in which the said exhibit was prepared, the many hands through which it passed, or the way it found its way to the court record. But even if we assume that the contention by the appellant has any semblance of plausibility and convince us that the chain of custody was tampered with, the expungement of the said exhibit would have zero impact on the prosecution case as the testimony of PW4 would ably fill in the gap and steady the case for the prosecution. In the end, we find nothing meritorious in this ground and we dismiss it. The appellant's consternation in ground five is that, when everything is put into consideration, the case for the prosecution was not proved beyond reasonable doubt. Ms. Tengeneza was of the contention that the prosecution did whatever that was required of him to establish the appellant's guilt. She relied on the reasoning in the case of Thobias Bandi v. Republic (supra) in which ingredients of the offences like this were propounded, and they included the victim's age, penetration, and that, the person involved is the appellant. She argued that, in the instant matter, PW2's testimony proved that she was 14

penetrated and that, this testimony was corroborated by that of PW4. Regarding the age of the victim, Ms. Tengeneza argued that PW1 proved that, at the time of occurrence of the incident, the victim was 5 years of age. She also implored us to hold that PW2 and PW3 identified and named the appellant at the earliest opportunity. The learned counsel discounted the defence of alibi raised by the appellant, describing at as weak because PW1, PW2 and PW3 all proved that the appellant was around and committed the offence. She leapt to the trial magistrate's defence when he found no merit in the defence. She urged us to see that the case against the appellant was proved to hilt and that the conviction was properly grounded and dismiss the appeal. We must state that, criminal jurisprudence is firmly settled in this country and even beyond. It is to the effect that, conviction of the accused person must only be grounded if the case for the prosecution is sufficiently proved, and that the testimony that links the accused with the wrong doing leaves no reasonable doubts. This household position has been restated time and again by this Court. Thus, in Samson Matiga v. Republic, Criminal Appeal No. 205 of 2007 (unreported) the Court held as hereunder: "A prosecution case, as the iaw provides, must be proved beyond reasonable doubt What this means, to put it simply, is that the prosecution evidence must be so strong as to leave no doubt to the criminal liability

o f an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence (see Yusufu Abdallah Ally Vs Republic, Criminal Appeal No. 300 o f2009, unreported). The said proof does not depend on the number o f witnesses but rather, to their credibility..." From this, there arises a key question. Was the case for the prosecution proved beyond reasonable doubt? The appellant is adamant that the testimony adduced did not discharge the prosecution's burden of proof. Ms. Tengeneza is avidly of the contention that the evidence overwhelmingly pointed to the accused as the one who committed the offence. As the facts reveal, the appellant was charged of unnatural offence, contrary to section 154 (1) (a) (2) of the Penal Code. This provision stipulates as hereunder: "154.-(1)A person who- (a) has carnal knowledge o f any person against the order o f nature; (b) N/A. (c) N/A. (2) Where the offence under subsection (1) is committed to a child under the age o f eighteen years the offender shall be sentenced to life imprisonment."

As is the case with rape cases, in unnatural offence, the key ingredient of this offence is the act of having carnal knowledge of a person against the order of nature. Sub-section (2) establishes yet another ingredient, which is age of the victim. The latter is essential in determining the sentence to be imposed on the accused. This means that, the duty of the prosecution was to prove, one, that the appellant had carnal knowledge of PW2 against the order of nature and; two, that the victim was of the age below 18 years. Through PW2, the prosecution proved that she was carnally known against the order of nature and that the perpetrator was none than the appellant. The testimony of PW1, PW3 and PW4, as well as exhibit P2 played a corroborative role which left no doubt that the incident occurred. The testimony of PW2 which, as we held hereinabove, passed the test of credible and coherent testimony justified the lower courts' concurrent findings of guilty as they considered the testimony to justify the application of the principle enunciated in Selemani Makumba v. Republic [2006] T.L.R. 379. It contained the truth worth to be relied upon. Regarding age of the accused, we are also in agreement with Ms. Tengeneza that the evidence adduced by PW1 that PW2 who was born on 18th December, 2016, was five years of age when the incident occurred. The combination of all this, leads us to conclude that the prosecution evidence was strong enough and left no doubt as to the appellant's criminal liability.

In the upshot, we find this appeal barren of fruits and, accordingly, we dismiss it. DATED at SONGEA this 14th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 15th day of September, 2025 in the presence of the Appellant in person, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby certified as a true copy of the original.