Jackson John vs Republic (Criminal Appeal No. 640 of 2021) [2024] TZCA 1265 (12 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORUM: KEREFU. 3.A., MWAMPASHI, J.A. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 640 of 2021 JACKSON JO H N ................................................................................ APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Ismail. J.) dated the 28th day of June, 2021 in Criminal Appeal No. 30 of 2021 JUDGMENT OF THE COURT 2 d & 12™ December, 2024 FELESHI, J.A.: This appeal is against the decision of the High Court of Tanzania at Mwanza, which, being the first appellate court, had on 28/6/2021, after expunging three counts of rape, upheld the conviction passed against the appellant by the Sengerema District Court (the trial court) on three counts of incest by males. The offence was committed to AB, CD, and XY (pseudonyms), the appellant's biological daughters, aged 15 years (for AB and CD who are twins) and 12 years old (for XY) respectively. The synopsis of the prosecution case as per the record of appeal provides that: the appellant lived with his three daughters AB, CD and i

XY in a two-room house at Ngweli Village within Sengerema District. That, the house had a sitting and a bedroom. In the single bedroom there was a double decker bed. While the daughters were sleeping in an upper double-decker, the appellant was sleeping in a lower double- decker. The tribulations started on 5th January, 2019 at 22:00 hours when the appellant awakened AB (PW1) and forcefully sexually lavished her. The appellant then turned on to CD and XY's allegedly on 21st September 2019 and 9th May, 2020, respectively, with repetitions of that evil to these young victims for countless times. The appellant's alleged misconduct was reported to the police, leading to his arrest on 23r d October, 2020. He was arraigned to the trial court on 2n d November, 2020 where he was charged with six counts: three of incest by males and three of rape, under sections 158 (1) (a) (2) and 130 (1) (2) (e) of the Penal Code, Chapter 16 respectively. He pleaded not guilty. During the trial, the prosecution called five witnesses, namely, AB (PW1), CD (PW2), XY (PW3), Hamisa John, the appellant's, namely sister (PW4) and Dr. Mary Joseph(PW5) Medical Doctor and it tendered six exhibits to wit, three PF3, and three clinic cards. On the defence side, the appellant was a sole witness (DW1) and no exhibit was tendered. At the end of the trial, the appellant was found guilty as charged and sentenced to a concurrent sentence of 30 years 2

imprisonment for the first four counts and 20 years imprisonment for the last two counts. Dissatisfied with the trial court's decision, the appellant firstly appealed to the High Court where the appeal was dismissed. Notably, the first appellate court as per page 62 of the record of appeal, expunged the counts of rape upon satisfaction that they were improperly charged and it thus dealt with the remaining counts of incest only. Then, as exposed at pages 70 to 71 of the record of appeal, having expunged the rape charges and satisfied itself that the appellant was rightly convicted on all incest counts, it rectified the sentence in respect of the 5th count by enhancing it to 30 years imprisonment from 20 years. As aforesaid, still disgruntled, the appellant appealed to this Court. He presented his memorandum of appeal comprised of six grounds on 11/10/2021 and supplemented it with his written submission he presented on 1/11/2021. The six grounds of appeal were reduced into three grounds as follows: one, that, the appellant's conviction was based on the weakness of his defence and not on the strength of the prosecution evidence; two, that, the two lower courts erred in law and fact in finding that, the evidence of PW1 and PW2 was credible; and three, that, the appellant was convicted and sentenced based on a 3

judgment that was composed contrary to section 312 (1) of the Criminal Procedure Act, Chapter 20 (the CPA). During the hearing of the appeal, the appellant appeared in person, unrepresented, while on the other side, Ms. Naila Chamba, learned State Attorney, represented the respondent, Republic. When he was invited to say if he had oral account on his grounds of appeal and its attendant submission, he adopted his grounds of appeal together with his written submission and prayed for the learned State Attorney to start while reserving his right to rejoin. Guided by principles of fair hearing, we find it apposite to recap the appellant's submission before delving into the respondent's reply. On the first ground of appeal, the appellant contended that his conviction was based on the weakness of his defence rather than the strength of the prosecution evidence. He said, that is clearly noted from the trial court's judgment where it is stated that, his defence evidence was found not admissible as it was too shallow, weak and insufficient. The appellant contended that, the way the evaluation of defence evidence by the trial court was done, it prejudiced him. To support his argument, he cited several decisions including Leonard Mwanashoka v. Republic (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 (24 4

February 2015) and Hussein Iddi and Another v. Republic [1986] TLR 166. As to the second ground that, the two lower courts erred in law and fact to find that, the evidence of PW1 and PW2 was credible, he contended that, the two witnesses contradicted to each other. He said, while PW1 said, that, PW2 was sexually abused in the sitting room, PW2 on her part, said, the evil was performed in the lower decker. His question then was, how could that same evil be performed by the same person to same victim in different places at one and the same time. To him, PW1 and PW2 contradicting testimonies created a serious doubt on the prosecutions' case, which ought to have been resolved in his favour as per the decision in the case of Azizi Abdalah v. Republic [1991] TLR 71 (CA). Submitting on the third ground, he argued that, the trial court's sailed into an error when it proceeded to compose its judgment which did not analyse how the appellant's guilty was established per each count as required by the cited provision of the CPA. In the end, he urged this Court to allow his appeal and order for his release from the prison. In her reply, Ms. Chamba forthwith intimated her opposition to the appellant's appeal. Then, she preferred to argue the appellant's ground 5

together but, focusing on issues raised in the appellant's memorandum of appeal and his submission above. Regarding the complaints that the appellant's conviction based on the weakness of his defence and not on the strength of the prosecution's case, and that, the two lower courts erred to find evidence of PW1 and PW2 credible, Ms. Chamba vigorously contended that, the complaints are baseless. She expounded that, the charge with which the appellant's conviction was upheld required the prosecution to prove four ingredients: one, that the appellant and the victims were biologically related; two, that, the victims were sexually penetrated; three, that, the victims were sexually penetrated by the appellant; and four, that, the victims were below eighteen years of age. According to Ms. Chamba, while the biological relationship between the victims and the appellant was coherently established by PW1, PW2, PW4 and DW1 himself in his defence, the evidence that AB, CD, and XY were sexually penetrated, and by the appellant, on the other hand, was adduced by PW1 and PW2. Besides, the doctor (PW5) corroborated the evidence of PW1 and PW2 on the aspect of penetration. To Ms. Chamba as the best evidence in sexual offences comes from the victim of rape, then, the evidence adduced by PW1 and PW2 was sufficient to base the appellant's conviction per this Court's 6

decision in the case of Selemani Makumba v. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006) and Godi Kasenegala v. The Republic, (Criminal Appeal 10 of 2008) [2010] TZCA 5 (2 September 2010). Regarding the victims' age, Ms. Chamba further submitted that, PW1 and PW2 who are twins, proved that they were born on 5/4/2005. That, their evidence was corroborated by PW4, their aunt. However, as the clinic cards for AB, BC and XY were admitted in evidence as exhibits P4, P6, and P5 respectively, were not read out after being admitted, she implored this Court to expunge them from the record. In her view, that bears no affect her oral account per the decision in Athanas Ngomai v. Republic (Criminal Appeal 57 of 2018) [2020] TZCA 260 (29 April 2020). So, it was the contention of the learned State Attorney that, the prosecution managed to prove the age of AB, CD, and XY through PW1, PW2, PW4, PW5 and DW1 in defence. She cited the case of Issaya Renatus vs Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016). Based on the foregoing submission in unison, Ms Chamba refuted the allegation by appellant that his conviction was based on the weakness of his defence, and that, his evidence in defence was not considered. She expounded that, the alleged contradictions in the 7

evidence of PW1 and PW2 did not go to the root of the matter. To her, the central aspect was whether the deeds of prohibited sexual intercourses were performed to PW1 and PW2 by the appellant, the aspect which, was well-considered by both courts below which found both PW1 and PW2 were credible and reliable witnesses. With the case analysis made by the court as shown at pages 62 to 69 of the record of appeal, Ms. Chamba argued that the complaint by the appellant in the 3rd ground that, the court failed to analyse the evidence, hence contravening section 312 (1) of the CPA, is both unfounded and unmaintainable. She expounded that, it was thorough analysis of evidence that culminated to the conclusion that, the prosecution's evidence was concrete and credible. In view of her foregoing submission in reply, Ms. Chamba urged the Court to dismiss the appeal for lack of merits. In rejoinder, the appellant prayed for his grounds of appeal to be considered then, the appeal be allowed, and he be set free. We have considered the grounds of appeal, the appellant's written submissions, and oral submission by the learned State Attorney. The issue we find meriting our determination is whether the appeal is meritorious. 8

At the outset, we wish to associate ourselves to a long-time legal principle that, where there are concurrent findings of facts by two courts, the Court of Appeal, as a wise rule of practice, should not disturb them unless it is clearly shown that there has been a misapprehension of evidence, a miscarriage of justice or violation of some principle of law or procedure. See DPP v. Jaffar Mfaume Kawawa [1981] T.L.R. 149, Alphonce Bisege Mwasandube vs Republic (Criminal Appeal No. 630 of 2020) [2024] TZCA 28 (12 February 2024), Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores v. A.H Jariwalla t/a Zanzibar Hotel [1980] T.L.R 31. As we turn to the appellant's ground of appeal and his submission, we find, the appellant has presented a case that, for him, the prosecution's case was not proved beyond reasonable doubt because: one, PW1 and PW2 who were found credible and reliable witness had adduced contradicting evidence hence rendering them incredible and unreliable; two, the trial court did not evaluate the evidence amassed at the trial hence convicting him basing on the weakness of his defence evidence; and three, that, his defence was not considered. As we shall revert to the first aspect at the end, we find it appropriate to first conjointly address the second and third appellant's 9

stand points against the impugned first appellate court's decision which squarely fall under his first and third grounds of appeal above. In his submission, in essence, the appellant is faulting the trial court for shifting the burden of proof from the prosecution to the defence side which made it to compose a judgment that considered his defence evidence as being too shallow, weak and insufficient. We have scanned through his written submission. What we found at pages 2 and 3 of his submission is substantially what is found at page 43 of the record of appeal, which is part of the page in the trial court's judgment. It is the appellant's take that, the insufficient analysis of evidence by the trial court rendered his defence evidence worthless, hence his conviction, something which could not have happened had the trial court conformed to the requirements of section 312 of the CPA. As alluded to above, Ms. Chamba vigorously opposed the appellant's contention and argued that, the prosecution's case was proved to the hilt by credible and reliable witnesses who adduced cogent evidence. She referred us to pages 62 to 69 of the record of appeal where she said it is clearly shown how the court analysed the evidence. On our part, we find that, it is true that the trial court at page 43 of the record of appeal made a brief analysis and summation on the 10

defence evidence referred to by the appellant. It is also obvious to us that, it is that conclusion and summation which characterized his defence evidence as too shallow, weak and insufficient which agitated him. With all due respect to the appellant, we do not think that such conclusion was a misplaced, or that, it was a proof that, the trial court did not analyse the amassed evidence before composing its judgment. It cannot either be taken to have had shifted the burden of proof of the charged offences from the prosecution to the defence side. Our glance to the record of appeal clearly shows that, before arriving at the complained of conclusion, the trial court from page 35 to 41 had summarized all evidence adduced before it by PW1 to PW5 for the prosecution and DW1 for the defence. For that matter, the appellant's defence evidence is at page 41 of the record of appeal, and it reads: "In defence, DW1-JAKSON S/O JOHN (45) testified inter alia that, he knows PW1, PW2 and PW3 because they are his daughters and that, on material dates and times, he was at home with his family, but he did not have carnal knowledge with PW1, PW2 and PW3 therefore these allegations are untrue". ii

We have found that, it was that same DWl's evidence in defence which, was reproduced at page 43 of the record of appeal and upon its analysis the trial court rejected it whilst holding that: "Therefore, this defence evidence is not admissible as it is too shallow, weak and insufficient to base a decision". For the sake offair and appropriate analysis of the appellant's evidence in defence, which was too brief, we find it apposite to reproduce it as is found at pages 21 and 22 of the appeal record, thus: ” Xd ...I know AB, CD, and XY On 05/01/2019 around 22.00 hrs I was at my home with my family I did not have carnal knowledge with my daughter AB. This is not true allegation. On 21.09.2019 around 22.00 hrs I was at my home. I did not have carnal knowledge with CD. This is not true allegation. On 09/05/2020 hrs I was at my home. I did not have carnal knowledge with XY. This is not true allegation. I did not suffer syphilis decease. I wonder how these daughters suffered syphilis all together. Maybe it is just decease. I don't know where it came from. THAT'S ALL... XXL1 .. The daughters are my borns (sic). Guardian is a person who just take care o f the child. CD and XY came from their aunt on the year 2019. It 12

was on September, 2019. On 5/01/2019 around 22.00 hrs. I was with my daughter AB. we were only two. I have one bed and two mattresses. The house have (sic) one bedroom and one sitting room. THAT'S ALL...RE-XD..NM" So, in view of the above exposition of what transpired before the trial court, in as far as the taking and analysis of the appellant's defence evidence is concerned, we are unable to find what else was left out by the learned trial Magistrate. We have satisfied ourselves that, after summarizing the entire evidence and evaluating it, the trial court was entitled and obliged, as a matter of law, to came up with its own findings. The three immediate findings the trial court arrived at shown at page 43 of the record of appeal were: one, that PW3 was not penetrated but was infected with Syphilis, so, it dropped the offence of rape and substituted it with attempted rape; two, the defence evidence was found insufficient to rely upon to discredit the prosecution case; and three, it convicted and sentenced the appellant with the charged offences. As to what transpired before the first appellate court, which we find is what Ms. Chamba referred to, is well covered from pages 60 to 70 of the record of appeal. Importantly to be quickly noted is the fact that, the first appellate court at page 62 of the record of appeal, upon 13

satisfying itself with the rule that where offences of rape and incest coexist, the rule is to abandon charges of rape and continue with incest, it immediately expunged all counts of rape of which the appellant was already convicted to. The first appellate court held thus: "...where incest occurs, the allegation o f rape play second fiddle to that o f incest. I subscribe to her reasoning that the rape charges shouldn't have been preferred after the decision had been made, or where it is established that the victim's relationship with the appellant is prohibited. I will, therefore, confine, myself to the incest charges". With the foregoing exposition of what transpired before the two lower courts, with due respect to the appellant, we are of settled mind that the defence evidence was considered along with other evidence, and that, it was given due consideration by both lower courts, some of its orders, as shown above, were issued in his favour. We wish to underscore what this Court has repeatedly held before that, non- acceptance of defence evidence by its rejection by the court does not mean its non-consideration. -See for instance this Court's decision in the case of Hosea Emu Mwangama v. Republic, (Criminal Appeal No. 217 of 2020) [2023] TZCA 10 (13 February 2023) and Godfrey

Mwandemwa v. Republic (Criminal Appeal No. 409 of 2020) [2023] TZCA 41 (22 February 2023). In the former case, we held at page 5 that: "In the fifth ground o f appeal, the two courts below are faulted for not considering the appellant's defence. With much respect, the opposite is true, because the fact that the defence was rejected as a "white He".... does not justify alleging non-consideration. What we see here is the defence being considered, subjecting it to evaluation and finally being rejected as untrue and an afterthought". As we are contented that, the appellant's defence was duly considered and then rejected, and that, a thorough case analysis was made by both courts below, we find the appellant's complaints falling in his first and third grounds of appeal devoid of merit, the same are hereby dismissed. Finally, we have considered the appellant's second ground, which is basically his complaint that, PW1 and PW2 who were found credible and reliable witnesses, had adduced contradicting evidence hence rendering them incredible and unreliable. This ground will not detain us much. It is true that, if the divergent testimonies by PW1 and PW2 as 15

regards to place where exactly the appellant sexually abused PW2 could be considered in isolation of other evidence, that could rightly mount to a serious contradiction. But just as we took liberty to glance on the entire defence evidence above, we are not oblivious to what were the other aspects of the testimonies adduced by PW1 and PW2, on one hand, and that of the appellant, on the other. We have noted that, it is not in dispute that, per the appellant's own evidence in defence quoted above: one, the trio's relationship was that of a father and daughters respectively; two, the house had one bedroom and one sitting room; three, in the house, the appellant had one bed and two mattresses; and four, on 05/01/2019 around 22.00 hrs. while the appellant and PW1 were at home, PW2 and PW3 were at the home of their aunt (PW4). We also gleaned from the evidence of PW1 and PW2 at pages 7 and 9 of the record of appeal that, the appellant used to perpetrate the prohibited sexual intercourse to them for many times, hence the possibility by them to mix up some facts to that effect. In view of the above pieces of evidence, with all due respect to the appellant, we find that, the factual narrations by PW1 and PW2, on the one hand, and, from himself, on the other, are so coherent and merits the ingredients of prohibited sexual intercourse. From the record, all 16

evils were committed within the appellant's homestead, which he endeavored to describe in his evidence in defence. We thus find ourselves inclined to Ms. Chamba's contention that, the alleged inconsistence did not go to the root of the matter and did not dent the evidence of PW1, PW2, PW4 and PW5 who satisfied the ingredients of the charged offences. However, as the victims' clinic cards which were admitted in evidence as exhibits P4, P5 and P6 were not read out after their admission, we accede to the deserving prayer by the learned State Attorney, and the same are hereby expunged from the record per our decisions in the cases in Robinson Mwanjisi and Three Others v. Republic [2003] TLR 218 at page 226 and Misango Shantiel vs Republic (Criminal Appeal 250 of 2007) [2012] TZCA 66 (30 May 2012). That, however, will not affect the oral account put in evidence by PW4 per our decision in Athanas Ngomai (supra) where we held at page 20 that: 'We also subscribe ourselves to that observation and maintain that to be a valid and proper position o f the law. The above observation provides an answer that even though the PF3 is subject to be expunged, as we hereby do, for being wrongly tendered by the public prosecutor 17

who was not a witness, PW5's account o f what she saw when she examined the victim still remain and sufficiently proved that the victim was penetrated". Now that we have agreed that PW1 and PW2 were credible and reliable witnesses per section 127(6) of the Evidence Act and cited decisions above, we find both courts below were justified to act on their testimonies as it was also well corroborated by PW4 and PW5. The second ground is similarly hereby dismissed for want of merits. Therefore, the appellant's appeal is not meritorious, and the same is hereby dismissed in its entirety. DATED at MWANZA this 10th day of December, 2024. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 12th day of December, 2024 in the presence of the Appellant in person, unrepresented and Ms. Martha Mtiti, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the origina].