Emmanuel Wilson vs Republic (Criminal Appeal No. 531 of 2021) [2024] TZCA 1228 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MWANDAMBO, J.A.. KAIRO, J.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 531 OF 2021 EMMANUEL WILSON ................................................................. APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Nqunvale, J.) dated the 15th day of October, 2021 in Criminal Appeal No. 12 of 2021 JUDGMENT OF THE COURT 3rd & 10th December, 2024 ISSA, J.A.: The appellant, Emmanuel Wilson was arraigned before the District Court of Chunya at Chunya (the trial court) in Criminal Case No. 69 of 2018 for the offence of rape contrary to sections 130 (1) (2) (a) and 131 of the Penal Code, Cap. 16. After a full trial, he was convicted and sentenced to imprisonment for a term of 30 years. The appellant's arraignment before the trial court was a result of an accusation that, on 31s t March, 2018 at Shoga Village within Chunya District in Mbeya Region he had carnal knowledge of Mwajuma Mwati (PW1), a

woman aged 20 without her consent. The appellant pleaded not guilty to the charge. The prosecution fielded five witnesses to prove the charge, and after a full trial he was convicted as charged and sentenced to 30 years imprisonment, as stated earlier. The facts of the case are that, on the fateful night of 31s t March, 2018 PW1, a third wife of Nade Hero (PW2) who had two young children and a third in the womb was asleep with her young children in her house. On that day, her husband slept in Christina Yuda's house (PW3) who is his first wife. At midnight, the appellant trespassed in PWl's house by pushing the door which was kept shut by a stone behind it. Upon entering the house with a torch in his hand illuminating, he closed the door behind him. PW1 found herself in a catch-22 situation as the appellant asked her to choose either to be killed or submit herself to him. PW1 tried to defend herself using a stick, but it was in vain. She was overpowered by the appellant who beat her, undressed her and after undressing himself he forced himself into her. After satisfying his lust he dressed up and left the house, but he threatened to beat her if she screamed. PW1, fortunately was able to recognize her assailant by using the light from the torch of the appellant and also by his voice. The appellant was a frequent visitor in that household. He was employed by PW2 to work in the

maize farm in two consecutive years before the fateful incident. PW1 used to cook for him and sometimes sent meal to him at the farm. This illustrates their familiarity. In the morning, PW1 reported the incident as well as her assailant to PW3 who in turn informed PW2. PW1 and PW2 conveyed the information of what happened to the village leader who gave them a letter to go to the police station. At the police station, PW1 was given a PF3 (exhibit PI) to go to the hospital for medical examination. Matokeo Daud (PW4), a clinical officer examined her and confirmed that she was carnally known. The doctor found bruises and spermatozoa in PWl's genitalia. The last witness was G 7757 DC Daniel (PW5) who investigated the case. The appellant, in his defence, distanced himself from the accusation. He admitted knowing PW1 and her household. He also admitted that he was employed by PW3 to work on her farm, but he denied being present at PWl's house on that fateful night. He contended that he slept at the house of his relative called Alphonce Mwavipa. The trial court found that the prosecution evidence was sufficient to sustain the charge of rape. Its findings were based on the evidence of PW1 which was corroborated by the evidence of her husband (PW2), a co-wife

(PW3) and the clinical officer (PW4). On that strength, it convicted the appellant. Aggrieved with that decision, the appellant instituted Criminal Appeal No. 12 of 2021 at the High Court of Tanzania at Mbeya (the first appellate court) which confirmed the findings of the trial court and dismissed the appeal. Undaunted, the appellant has instituted the instant appeal. He lodged a memorandum of appeal containing ten grounds which go thus:

1. That the appellate court erred in law and fact by acting upon the weak visual identification o f PW1 (victim).

2. That the appellate court failed to notice that the incident o f rape occurred in unfavourable condition (at midnight at around 00.00 hrs) the source o f light was unreliable for a mistakenly identification ; also PW1 did not give description o f the appellant when she reported the incident.

3. That the issue o f PW1 being familiar with the appellant do not have room as the conditions for identifying in unfavourable condition were not met as required by law.

4. That the appellate court erred in law and fact by upholding the conviction o f the appellant by acting upon the hearsay evidence o f PW2, PW3, PW4 and PW5.

5. That in the absence o f written confessional statement o f the appellant which was tendered in evidence it was wrong in law to hold that the appellant admitted before PW5 to commit the offence.

6. That it was wrong in law for the investigating officer to charge, write the statements o f witnesses and also record the statement o f suspect as is the case in this case.

7. That the defence evidence was not properly considered and evaluated.

8. That the case against the appellant was not proved beyond reasonable doubt

9. That the two courts below abdicated their duty o f subjecting the entire evidence to an objective scrutiny and as a result they ended up not noticing the evidence o f PW1, PW2PW3, and PW4 were not acceptable as such account do not go to the extent o f establishing the appellant burgled the door and entered to have sexual intercourse with PW1. It was a coincidence there were no corroborative evidence on their record to support that finding of fact. There were also no essential ingredients to prove which person committed the offence between PW2 and the appellant or someone else.

10. That the appellate court erred in law and fact by persistently upholding the conviction o f the appellant based on the evidence not found at all on the record. Therefore, the appellate court failed drastically to comply with the idea o fjustice and impartial application o f recognized legal principles o f full and fair hearing.

When the appeal was called on for hearing, the appellant was present in person fending for himself. Upon enquiry, he adopted his grounds of appeal and opted for the respondent Republic to submit first and to rejoin later if need arises. The respondent Republic, on the other hand, had the services of Ms. Naomi Mollel, learned Senior State Attorney. Ms. Mollel, outrightly expressed the respondent's stance to oppose the appeal. She added that the appeal is predicated on 10 grounds, but the 5th and 6th grounds were new and were not raised before the first appellate court. She implored the Court not to consider them for lack of jurisdiction. Upon our perusal of the memorandum of appeal appearing on page 29 of the record, we are satisfied that these grounds are new and were not determined by the first appellate court. The law is settled that, unless the new ground is based on a point of law, the Court will not determine it for lack of jurisdiction. See - Abdul Athuman v. The Republic [2004] T.L.R. 151, Godfrey Wilson v. The Republic [2019] TZCA 109, TANZLII and Julius Josephat v. The Republic [2020] TZCA 1729, TANZLII. Therefore, we agree with Ms. Mollel and we shall refrain from considering them in the determination of this appeal. With respect to the remaining grounds of appeal, Ms. Mollel submitted that those grounds mainly addressed three issues: one, the 1st, 2n d , and 3r d

grounds are focused on the issue of visual identification. Two, in the 4th ground the appellant was lamenting that he was convicted based on hearsay evidence of PW2, PW3 and PW4. Three, the 7th , 8th , 9th and 10th grounds are focused on whether the prosecution was able to prove its case beyond reasonable doubt. She concluded that she will present the case for Republic in that order. Arguing the 1st, 2n d , and 3rd grounds of appeal on the wanting evidence of identification, Ms. submitted that the two courts below were satisfied that the appellant was properly identified. She took us to page 67 of the record where the appellate court expressed its satisfaction on the identification of the appellant. It stated: "The records per testimony o f PW1 speaks that one, there was enough light illuminating from the torch o f the appellant\ two the victim is known very well before the event to the victim o f the offence, three, they remained together for sometimes during initial commands and threats from the appellant till the interaction o f rape. The court is satisfied that the appellant was correctly identified by the victim . " Further, she submitted that, PW1 reported the incident to PW3 immediately the next day morning which shows her credibility. In addition,

the appellant did not cross-examine PW1 on the issue of identification as there was no problem on that aspect. She cited the case of Wilson Elisa @ Kiungai v. The Republic [2022] TZCA 629, TANZLII to support her proposition. She prayed for the dismissal of these grounds of appeal as they lacked merit. On our part, we will start our quest on the law governing issues of identification. In Rashid Ally v. The Republic [1987] T.L.R. 97 the Court stated that, in order to justify a conviction solely on evidence of identification such evidence must be water tight, the description and the terms of that descriptions on identification of the accused are matters of the highest importance of which evidence always ought to be given. Further, in Shiku Salehe v. The Republic [1987] T.L.R. 193 the Court stated that before basing a conviction solely on evidence of visual identification, such evidence must remove all possibilities of mistaken identity and the Court must be satisfied that the conviction is water tight. In this case the Court cited the case of Waziri Amani v. The Republic [1980] T.L.R. 250 where it stated: "Although no hard and fast rules can be laid down as to the manner a trial judge should determine question o f identity, it seems dear to us that he

could not be said to have property resolved the issue unless there is shown on the record a careful and considered analysis o f all surrounding circumstances o f the crime being tried. We would for example, expect to find in the record questions such as the following posed and resolved by him: the time the witness had the accused under observation, the distance at which he observed him, the conditions in which such observation occurred for instance, whether it was day or night ; whether there was good or poor light at the scene, and further whether the witness know or had seen the accused before or n o t x / Equally important, the Court in Jaribu Abdalla v. The Republic [2003] T.L.R. 271 warned against untruthful witnesses when acting on evidence of identification that it should not be taken wholesale. It stated: "... in matters o f identification, it is not enough merely to look at factors favouring accurate identification. Equally important is the credibility o f witnesses. The conditions o f identification might appear ideal but that is no guarantee against untruthful evidence." In the instant appeal, the conditions for identification can be deduced from the testimony of PW1. The appellant was not a stranger to PW1 as he

worked in the farm of PWl's husband for two consecutive years before the incident. PW1 was the one who was providing meal to him. There were occasions when she took food to the farm and there were those days when PW1 used to come to PWl's house to get food. Therefore, when she saw him on that fateful night she recognized him using the torch light. PW1 also testified that she recognised the voice of the appellant. It is trite that voice identification is one of the weakest forms of identification and must be approached with caution (see: Stuart Erasto Yakobo v. The Republic, Criminal Appeal No. 202 of 2004 (unreported). In the instant case, PW1 spent some time with the appellant at a close proximity while the appellant was voicing out his demands and finally when the appellant was raping her. The offence of rape is committed mostly when people are facing each other. Therefore, taking all these factors together we have no doubt in our mind that PW1 was able to identify the appellant. On the issue of credibility of PW1, the two lower courts were satisfied that she was a credible witness. She narrated all that happened to her on that fateful night and she named the appellant to PW2 and PW3 at the earliest opportunity (See- Fred Mathias Marwa v. The Republic [2022] TZCA 317, TANZLII. In the case at hand, the earliest opportunity came in the morning as PW1 was pregnant and was sleeping alone with her two

young children whom she could not leave them alone. Therefore, we are satisfied that the appellant was properly identified by PW1 who was a credible witness. These grounds, therefore, are meritless and are dismissed. In the 4th ground of appeal, the appellant faulted the first appellate court for upholding the conviction of the appellant which was based on hearsay of the PW2, PW3, PW4 and PW5. Ms. Mollel was adamant that, the evidence which was used to convict the appellant was that of PW1 and was corroborated by other prosecution witnesses. We agree with her that the conviction of the appellant was based on the evidence deduced from PW1. The other witnesses corroborated her evidence by expressing their respective roles in connection with the incident. PW2 and PW3 were the first individuals informed by PW1 and reported the matter to the authorities. PW2 also accompanied PW1 to the hospital. PW4, the clinical officer confirmed one of the ingredients of rape, which is penetration while PW5, the investigating officer gathered and presented the details of the case. We find this ground of appeal meritless and we dismiss it. We turn to the complaint in 7th , 8th , 9th and 10th grounds of appeal where the appellant contended that there was improper valuation of the evidence and that the charge was not proved beyond reasonable doubt. Ms. Mollel, on the other hand, submitted that the appellant was charged with

the offence of rape under section 130(l)(2)(a) of the Penal Code where the ingredients are two: a proof of penetration and that there was no consent. In the instant case, both penetration and lack of consent were proved. Further, it was proved that it was the appellant who committed that offence. PW1 in her testimony proved that she was raped by the appellant and PW4 confirmed that she was raped. In addition, she said PW1 proved that the appellant used force, thus lack of consent. This was also confirmed by PW4 who found bruises on PWl's genitalia. The epitome of these four grounds of appeal centred on the issue of whether the prosecution was able to prove its case beyond reasonable doubt. The appellant was charged under Section 130(1) (2)(a) of the Penal Code which creates the offence of rape. What is required to be proved are two ingredients: One, that the accused had sexual intercourse with a woman who is not his wife. Two, that there was no consent. In this appeal, PW1 presented herself at the trial as a 20 years old woman who was married to Nade Hero (PW2). This fact was confirmed by PW2, PW3 and the appellant. On the issue of consent, PW1 testified that the appellant forced his entry into his house and forced her to have sexual intercourse. She sustained bruises on her genitalia in the process. This was

confirmed by PW4. Therefore, we are satisfied that it was not a consensual sexual intercourse. With respect to the second ingredient which is penetration, the victim narrated how she was carnally known by the appellant when he forced entry into her house on 31st March, 2018. PW4, the clinical officer examined her and found that she was carnally known and had bruises in her genitalia. Therefore, gauging from the evidence of PW1 and PW4, together with exhibit P2 there is no doubt that the offence of rape was committed against PW1 as the elements of lack of consent and penetration were proved. However, the crucial issue is: who was responsible for the offence of rape? The issue need not detain us, it is our finding in 1st, 2n d , and 3rd grounds of appeal that the appellant was properly identified, hence, responsible for the rape. Next, the appellant contended that his defence was not considered by the lower courts. Responding, Ms. Mollel submitted that the trial court considered the appellant's defence at page 35 and 37 of the record and the first appellate court did alike at page 68 of the record. Having perused the record, we agree with Ms. Mollel that the defence of the appellant was considered by the two courts below, but did not raise any doubt to dent the

prosecution case. Hence, it was given no weight. We entertain similar view and we dismiss this ground of appeal as well. Having dismissed all grounds of appeal, we agree with the concurrent findings of the two courts below that PW1 was raped and it was the appellant who raped her. The conviction and sentence are therefore upheld and this appeal is dismissed in its entirety. It is so ordered. DATED at MBEYA this 10th day of December, 2024. The Judgment delivered this 10th day of December, 2024 in the presence of the Appellant in person and Mr. Augustino John Magessa, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of original. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL