Augustine Projestus vs Republic (Criminal Appeal No. 332 of 2021) [2024] TZCA 1220 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA rCO RAM: MUGASHA. J.A.. KHAMIS. J.A. And ISMAIL. J.A.1 CRIMINAL APPEAL NO. 332 OF 2021 AUGUSTINE PROJESTUS............................................................. APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the judgment of the Resident Magistrate's Court of Bukoba at Bukoba) fLuambano. SRM. Ext. Jurist dated the 23r d day of March, 2021 in Criminal Appeal No. 3 of 2021 RULING OF THE COURT 2n d & 10th December, 2024 ISMAIL, 3.A.: The appellant is seeing out his what was initially a 30-year custodial term, imposed on him by the District Court of Muleba on his conviction of rape of a nine-year old girl. His appeal to the 1s t appellate court heaped more misery on him as the Resident Magistrate's Court (Extended Jurisdiction) enhanced the sentence to life imprisonment. He did not shirk, he is before us now, protesting his innocence. 1

From the record of appeal we gather that, on 14th May, 2019, the victim or PW2 was left alone in the house located at Kashenshero Rubya village in Muleba District, Kagera Region. Her father, PW1, was said to have gone to the church. It allegedly transpired that during PWl's absence, the appellant stormed into the house and found the victim. She grabbed her, took off her clothes and laid her down. He then stripped himself naked and entered his manhood into the victim's genitalia. Midway through the process, PW1, who was alarmed by the victim's screaming appeared. Sensing danger, the appellant attempted to run with the victim's pant in his hands, but his attempt was nothing more than a road to nowhere. He was put under restraint and conveyed to Kashasha Police Station for questioning. Meanwhile, a PF3 was issued to the victim to facilitate her medical treatment. Report of the medical doctor, PW3, revealed that the victim had lost her virginity as she had been penetrated by a blunt object. It also transpired that the victim had been carnally known on several occasions before the fateful day. A blemished finger was pointed at the appellant who was arraigned in court, facing a charge of rape contrary to sections 130 (1) (2) and 131 (1) of the Penal Code, Cap. 16 R.E. 2002. In his defence, the appellant valiantly

denied involvement. He contended that the charges were trumped up. The trial court found the prosecution's side of the story credible and so did the 1s t appellate court. They were both convinced that a case had been made out against the appellant, hence the conviction and sentence that the appellant is challenging through the instant appeal. Hearing of the appeal pitted the appellant, who did not enjoy a legal representation, against a battery of legal practitioners who appeared for the respondent Republic. These were: Ms. Wampumbulya Shani and Ms. Immaculate Mapunda, learned Senior State Attorneys, assisted by Mses. Evaresta Kimaro and Matilda Assey, learned State Attorneys. Ms. Mapunda who addressed us began by raising a procedural issue that related to transfer of the appeal to the Senior Resident Magistrate with extended jurisdiction. She argued that, whilst this was an appeal whose transfer is catered for by section 45 (2) of the Magistrates' Court's Act (MCA), the Judge in charge invoked the provisions of section 256A (1) of the Criminal Procedure Act (CPA) which is reserved for original criminal trials before the High Court. Noting that the infraction affects the court's jurisdiction, Ms. Mapunda took the view that the appeal proceedings were a nullity, deserving 3

to be nullified and have the appeal heard afresh after the rectification of the anomaly. When probed on whether fresh hearing would not fill in gaps in the prosecution case, Ms. Mapunda discounted any such fears, contending that the case against the appellant was watertight and that there were no fault lines to be filled. On whether there were no contradictions in the testimony adduced by the prosecution, the learned senior State Attorney conceded that part of the testimony was disharmonious with itself, but she quickly dismissed the disharmony as inconsequential. The appellant was a man of few words. He only implored us to accept his grounds of appeal, allow the appeal and set him free. As stated earlier on, this matter came to the High Court as an appeal against the decision of the District Court at which the trial proceedings were carried out and concluded, culminating in the decision that called for the High Court's attention as the first appellate court. Thus, when the court chose to delegate its power to the Resident Magistrate with extended jurisdiction, it ought to have delegated its appellate powers and not powers to try criminal matters in its original jurisdiction. These powers are, as Ms. 4

Mapunda rightly submitted, transferable under the provisions of section 45 (2) of the MCA whose substance stipulates as hereunder: "The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extended jurisdiction has been conferred by section 45(1)." Inexplicably, however, the learned Judge in-charge exercised powers conferred on her under section 256A (1) of the CPA which, as was alluded to by Ms. Mapunda, takes care of transfers for cases set for trial. What we gather from the record is that the learned Judge in-charge failed to draw a distinct between the powers on trial and those that the court exercises on appeal. As a result, she misapplied the law. So repetitive is the mix up that this Court has often times weaved into the conversation and issued guidance on the proper application of the law. We emphasized this point in our recent decision in Johanes Sililo @ Kamihanda & 4 Others v. Republic, Criminal Case No. 325 of 2022 [2024] TZCA1170 (2 December 2024, TANZLII) in which we quoted the reasoning in Abdallah Ramadhani @ Sindano v. Republic, Criminal Appeal No. 184 of 2022 [2024] TZCA 816 5

(22 August 2024, TANZLII). In the latter, a clear distinction between the powers conferred by the said provisions was drawn. It was held: "Two main significant provisions relate to transferring the cases triable by the High Court. The provisions are sections 256A (1) o f the CPA and 45 (1) and (2) o f the MCA. Starting with the provision o f section 256 (1) o f the CPA. ... From the wording o f the provision; the transfer envisaged here is that o f cases triable by the High Court, which involves piea taking and trial. One such situation is murder trials, in which the Judge in charge relying on section 256S (1) o f the CPA could transfer the case to the Resident Magistrate with Extended Jurisdiction in RM's court to carry out the assignment Such transfer is appropriate and in line with what has been provided by the provision. ... Another transfer instance is under section 45 (2) o f the CMA. Under the provision , the appeals that the High Court ordinarily hears could transferred to the Resident Magistrate's Court to be attended by a Resident Magistrate with extended Jurisdiction." We consider this irregularity as a wrongful conveyance of jurisdiction and it is incurable. As was held in Gift Sichinga v. Republic, Criminal 6

Appeal No. 147 of 2021 [2024] TZCA 577 (18 July 2024, TANZLII), this is a point of jurisdiction which touches on the authority of courts to adjudicate cases of different nature - see: Nasra Hamisi Hassan v. Republic, Criminal Appeal No. 545 of 2017 [2020] TZCA 1836 (3 November 2020, TANZLII). It is in view of the foregoing, that we hold that, since the transfer to Luambano, SRM (Extended Jurisdiction) was based on an inapplicable provision of the law, the appeal proceedings were conducted by a judicial officer who was not seized of jurisdiction. They are, therefore, a nullity. While, in the normal course of things nullification of the proceedings would consign the matter back to the drawing board by conducting fresh appeal proceedings, as Ms. Mapunda has urged us to do, we have a different idea. We are of the considered view that this is one of the cases which fall in the realm of cases in respect of which a retrial would be unworthy. Circumstances and facts of the case are such that ordering a retrial would amount to a perpetration of injustice - see: Johanes Sililo @ Kamihanda & 4 Others (supra). In our respectful view, the case is laden with evidential gaps which, if given the opportunity for a retrial, the prosecution will seize it and fill those gaps. Here is why. 7

The prosecution case was, by and large, built on the testimony of PW1, the victim's father, PW2, the victim, PW3, the medical practitioner who examined the victim, and PW4, the Village Chairman. This is the testimony on which the concurrent findings of the lower courts were founded. PWl's account is that he heard the victim screaming "unanichania chupi yangu" literally meaning "you are ripping my under pant". He rushed to the house where he met the appellant, put him under restraint and took him to a police station. There is also the testimony of the prosecution's star witness, the prosecutrix herself (p. 10 of the record). Her account of story is that the appellant undressed her and raped her. She testified, as well, that the appellant had sex with her on several other occasions prior to the date of the incident. PW3 who examined her, had a varied version to that of PW1 and PW2. She denied seeing a ripped or torn cloth. She neither found an injury or scratch on the victim's body nor did she see any discharge from the victim's genital organs to suggest that she had just been raped. She observed, however, that PW1 lost her virginity, suggesting that she had been penetrated by a blunt object prior to the incident. PW4, a Village Chairman to whom PW1 reported the incident stated that PW1 informed him that he 8

was from his farm when he found the appellant having sex with the victim in PWl's own bedroom. We have put this testimony to an unfleeting scrutiny. What comes out of it is that its credibility is profoundly suspect. This is in view of serious and irreconcilable contradictions on material aspects of the incident as we shall point out. The first relates to PWl's statement that he came from church when he met the appellant in his house while he informed PW4 that he came from his farm. This puts a dent on the PWl's factual account on this aspect. The second point of departure relates to the state of the victim's under pant that PW1 said he heard the victim complaining that it had been ripped apart by the appellant. The testimony of PW3 gave a different story that negated PWl's contention. Another significant point of divergence related to the rape incident itself. PW2 testified that the appellant raped her on the day, but this fact was not supported by PW3 who did not find anything to suggest that a rape incident occurred on the day. Her view was premised on the fact that, ordinarily, in a non-consensual sex one would likely find bruises in the female organs and that there would also be a discharge, especially if the victim is a child as PW2 was. In as much as she found that the victim had no hymen, she discounted that that was caused by the incident of 14th May, 2019.

We are alive to the fact that contradictions or variances in narrations which involve several people in a case are a common feature. We are also aware that such contradictions bring different outcomes depending on the gravity. The trite law is that, if the contradictions are trifling and inconsequential the same are tolerable, with little or no bearing on the case. It is different if they are of a higher magnitude and affect the central story. In such a case, the variance is considered to be fundamental, material and corrode the central story - see: Luziro s/o Sichone v. Republic, Criminal Appeal No. 231 of 2010 (unreported); and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 (unreported). We think the variances we have pointed out in this case fall in the latter category, and consider them to be irreconcilable differences which cast serious doubts on the credibility of the prosecution's case. We on our part, respectfully, decline to condone them lest we be seen to perpetuate injustice. As we dive deep into the prosecution's testimony, we feel compelled to cast a closer eye at the testimony of PW2, yet again, and make sense of what it offered. We do so not oblivious of the fact that in the concurrent findings of the courts, this testimony played the most decisive role in holding 10

the appellant culpable. In their findings, both courts invoked the cherished principle enunciated in the case of Selemani Makumba v. Republic [2006] T.L.R. 379, in which it was held that true evidence of rape must come from the victim of the incident. As alluded to earlier on, PW2 was recorded as saying that the incident was one out of several others which were committed by the appellant prior thereto but against which she never raised any alarm or share it with anybody. Not even her father she lived with. We must state here and now that, whilst we do not have any qualms about the application of the salutary principle accentuated in Selemani Makumba (supra), it must be emphasized that such principle is properly invoked if the evidence sought to be relied upon is reliable. Assessment of reliability of the evidence is also dependent on the credibility and the weight that it carries. We underscored this position in Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported) in the following words: "... on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that, at its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the li

ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case." [Emphasis supplied] From the excerpt, the question that arises is, was PW2's testimony credible and reliable? In our unflustered view, the answer to this question is in the negative. This answer is justified by, besides other factors, the conduct exhibited by the victim after she had been carnally known prior to the incident in question. She chose to put up with her predicaments, keeping this traumatizing experience 'under her breasts' until the latest incident. The said victim did not testify that she was under any threat of reprisal from the appellant or at all. Her deafening silence or delay in disclosing and naming the appellant is, without any flicker of doubt, a matter that eats into the witness's credibility and that of the prosecution's case. This Court has held this in a number of cases, including, Oscar Christopher & 4 Others v. Republic, Criminal Appeal No. 172 of 2022 [2023] TZCA 17336 (13 June 2023, TANZUI). This case picked the reasoning in Jaribu Abdallah v. 12

Republic, Criminal Appeal No. 220 of 1994; and Marwa Wangiti & Another v. Republic [2002] T.L.R. 39 in which it was emphasized that delay in naming a suspect at the earliest opportunity dents a witness's credibility, especially where identification of the suspect is in issue. Nothing convinces us that PW2's testimony carries reliability and credibility requisite for us to hold on to the collective view expressed by the trial court and the 1s t appellate court that this testimony, alone, had what it takes to constitute the sole basis for conviction. It is why we maintain the position that the Court has held, to the effect that, the principle distilled from Selemani Makumba (supra) should only apply as and when it is absolutely clear that circumstances are right. Circumstances are said to be right where the victim's account is nothing short of impeccable. This is the view we expressed in Gift Sichinga v. Republic (supra) in which, besides restating the condition attached to reliance of the sole evidence of the victim, we threw a caution as follows: "Isn't it also deplorable , we ask, to assume that every alleged victim o f a sexual offence is saintly truthful? It is our duty to be sensitive to the realities o f life that there could be victims o f sexual offences who 13

are not truthful. We think it is not enough that one is cited in the charge as a victim and testifies as one. It is our duty to interrogate one's credibility. Ms. Paul cautioned us not to take PW l's word wholesale. She cited instances that negatively affect the credibility o f that witness, such as the omission to tender the phone with which she allegedly communicated with the appellant, making the first advances to him.... We think, in Selemani Makumba (supra), in saying that the victim's evidence is the most important, the Court had a credible witness in mind. We agree with Ms. Paul that the victim in this case has notpassed the credibility test. We insist that when they testify in court, victims of sexual offences are witnesses subject to assessment and scrutiny just as any other victim of any other offence such as armed robbery. What the contemporaryjurisprudence did away with, is the mandatory requirement of corroboration." [Emphasis added] Since we are settled in our view that the testimony of the victim failed the test of reliability, it was unsafe for the learned trial and appellate Magistrates to rely on it to convict the appellant. 14

We hold that, in the wake of the weaknesses pointed out in the testimony of the prosecution, retrial cannot be a feasible option. In consequence, invoking the Court's revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2022, we nullify the entire proceedings, quash and set aside the conviction and sentence meted to appellant, and order the immediate release of the appellant unless held for other lawful cause. DATED at BUKOBA this 9th day of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant in person unrepresented and Mr. Jamal Issa, learned State Attorney for the Respondent/Republic, is hereby certified as a t r U e ™ r " / « r i n i n a l