Isaya Mtewele vs Republic (Criminal Appeal No. 513 of 2021) [2024] TZCA 1232 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA f CORAM: MKUYE, 3.A.. MGEYEKWA. J. A. And NGWEMBE. J.A/> CRIMINAL APPEAL NO. 513 OF 2021 ISAYA M TEW ELE ...... . ...................... ............................ . ................APPELLANT VERSUS THE REPUBLIC ..... . ..... . .......... . ..................... . ...... . ............... . RESPONDENT [Appeal from the decision of the High Court of Tanzania at Iringa] (Kente. 3 .) dated 11th day of November, 2019 in Criminal Appeal No. 67 of 2018 JUDGMENT OF THE COURT 6th and 10th December, 2024 NGWEMBE. JA.: This is an appeal brought by Isaya Mtewele (the appellant) after failure to turn down his conviction and sentence passed by the Resident Magistrate Court of Njombe at Njombe in the charge of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E 2002 (now R.E.2022). The particulars of the charge preferred against the appellant discloses that on 7th January, 2018 at Mjimwema street within Makambako township within the District and Njombe Region, the

appellant unlawfully had carnal knowledge of a girl of six (6) years old. Since the complainant's age is below the age of majority of 18 years, she will be referred to as the 'victim' or vPW.l' in order to conceal her true identity. When the charge was read over and explained to the appellant, he denied, consequently, the prosecution marshalled six witnesses and four exhibits to establish and prove the offence of rape against the appellant. At the end of trial, the trial court found a prim a facie case was made against the appellant. In turn the appellant defended himself without an assistance from another defence witness nor exhibit was produced. At the end of trial, the appellant was found guilty and punished to statutory sentence of life imprisonment. Being aggrieved with the conviction and sentence/ he appealed to the High Court armed with eight (8) grounds related to: improper identification of the appellant; improper reliance to the evidence of a child of tender age; failure to call material witness including Zawadi Mgumba; improper recording of cautioned and extra judicial statements which were recorded under duress; contradictions of the prosecution evidence; failure to prove blood stain found on the appellant; failure to consider defence case; and failure to involve the local leaders in arresting the appellant.

Despite his grounds of appeal, yet his appeal was dismissed and the trial court's verdict was upheld. .Still undaunted, the appellant has preferred this second appeal against the concurrent findings of the courts below and therefore lodged five grounds of appeal which out of five, three grounds are replica to the grounds lodged at the High Court as will be discussed in due course. The evidence adduced by the prosecution at the trial, disclosed that on the material date the victim (PW1) was playing with her fellow children, the appellant called the victim and left with her to a nearby unfinished building where he resided. Having the victim in that house, he locked the door, undressed the victim and had carnal knowledge of her. Upon completion of the offence, he fell asleep. Thus, the victim managed to walk out of the crime scene and raised an alarm for help. A woman passerby heard the alarm of the victim in an unfinished building, she went to rescue her and took her outside of that building. The information was relayed to the victim's father (PW2) and nearby residents convened at the appellants place, surrounded the house and called police who instantly responded and arrived at the scene (PW3). They took control of the convened people who were threatening to attack the appellant. Having managed to disperse those angry people, 3

the police entered into the room of the appellant and found him still sleeping, thus, they arrested him. In the process, the Village Executive Officer (VEO) of Mlando street within Makambako township (PW4) on 18th January, 2018 recorded the extra judicial statement of the appellant, who admitted to have committed the offence of rape. At the same time, H. 834 DC Charles (PW5) recorded the cautioned statement of the appellant, both statements were admitted during trial. The last prosecution witness was the medical doctor Issa Salum Suleman (PW6) who attended the victim and found bruises and blood in her vagina. The victim's hymen was perforated and she had pain. As we have alluded to above, the appellant was convicted and sentenced to life imprisonment. At the hearing of this appeal, the appellant appeared in person unrepresented, while the respondent Republic was represented by Mr. Tito Ambangile Mwakalinga, learned Senior State Attorney. When the appellant was invited to elaborate his grounds of appeal, he preferred to rejoin after the response from the respondent to his grounds of appeal. To begin with, Mr. Mwakalinga, expressed his support to the appeal and addressed the Court on propriety of the appeal itself without arguing on the grounds of appeal as were raised by the appellant. He

stressed that the appellant is in this Court with five grounds of appeal which are similar to those grounds laid before the High Court. He reinforced his argument by referring the Court to page 99 of the record of appeal. In the contrary, and as appears in page 119 of the record of appeal, the 1st appellate court, dealt with only the first ground related to proper identification of the appellant. He stressed that failure of the 1st appellate court to consider all grounds of appeal as required by law, ended the appellant to lodge the same undetermined grounds of appeal to the Court. He justified by pointing out that the 1st ground in the instant appeal was the 3rd ground at the High Court, while 2n d ground in the instant appeal was the 4tf1 ground at the High Court and ground the 3rd ground herein was the 5th ground at the first appeal. All those grounds were raised and argued by both parties, but were not considered by the High Court in its judgment. Thus, the 1st appellate court failed to perform its duty. Reinforced his submission by referring to the case of Firmon Mlowe v. Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694 (9 November 2022), where similar situation occurred and we ruled that, failure of the first appellate court to determine grounds of appeal was fatal. We quashed the High Court's proceedings

and set aside the judgment. Mr. Mwakalinga implored the Court to apply the same remedy in respect of this appeal. When the appellant was invited to rejoin, he had nothing relevant to tell the Court rather he relied solely on his grounds of appeal and urged the Court to allow his appeal. Upon critical review of the record of appeal, it is evident that the first appellate court after reevaluation of the evidence of both parties and review of the parties7argument as appears in page 119, had this to say: 7 am satisfied on the evidence adduced, and I so find that PW1 a young g irl six years at tim e m aterial to the charged offence was indeed raped. Therefore, the only issue that assum es significance and is sufficient to dispose o f this appeal as it was before the tria l court, is on the identity o f the c u lp rit" The learned Judge, having so said as above, proceeded to determine the issue of identification, at the end he concluded that the appellant was properly identified. Moreover, the learned Judge considered the confession of the appellant made before PW3 and PW5 as independent persons, that he confessed to have committed the offence of rape. In regard to the appellant's defence, the learned Judge briefly considered it

in page 121 and concluded that the defence case did not shake the prosecution case. Unfortunate, he did not consider all grounds of appeal as were raised and argued by both parties. Noteworthy, we are alive to the settled law that the Court's jurisdiction to hear and determine matters are limited only to the extent of cases which were heard and conclusively determined by the High Court or subordinate courts exercising extended jurisdiction. This is what section 4 (1) of the Appellate Jurisdiction Act Cap 141 R.E. 2022 provide as we quote hereunder: "The Court o f Appeal sh all have jurisdiction to hear and determ ine appeals from the High Court and from subordinate courts with extended ju risd ictio n ." Accordingly, an attempt to determine an appeal whose grounds of appeal before the High Court were raised but were not considered, is tantamount to the Court sitting as a first appellate court on a matter arising from a subordinate court other than the High Court. This position was propounded by the Court in the case of Firmon MJowe v. Republic (supra), where the Court held that: " Nonetheless ■ the tria l court has the duty and is bound to resolve the com plaints contained in the

raised grounds o f appeal... We m ust however em phasize that, even where the first appellate court decides to address the grounds separately or generally or the decisive one only, it m ust specifically indicate so in the judgm ent " See also, Malmo Montage Konsuit AB Tanzania Branch v. Magreth Gama, Civil Appeal No. 86 of 2001 (unreported) and Nyakwama Ondare @ Ok ware v. Republic, (Criminal Appeal No, 507 of 2019) [2021] TZCA 592 (21 October 2021). In this regard, we wish to emphasize that, though it is not the duty of the first appellate court to resolve the issues as framed by the triai court, yet it is expected and bound to address and resoive the complaints of the appellant in the grounds of appeal either seriatim or jointly depending on the circumstances of each appeal. To this end, we reiterate to what the Court stated in Malmo Montage Konsuit AB Tanzania v. Margaret Gama (supra) that: "In the first place, an appellate court is not expected to answer the issues as fram ed a t the tria l. That is the role o f the tria l court. It is; however, expected to address the grounds o f appeal before it even then, it does not have to deal seriatim with the grounds o f appeal as listed in the memorandum o f appeal . It 8

may, if convenient) address the grounds generally or address the decisive grounds o f appeal only o r discuss each ground separa tely." It is well established principle o f law that complaints refated to findings of facts by the trial court are supposed to be appraised and resolved by the first appellate court, which has a legal duty to appraise and cautiously reevaluate the evidence adduced during trial and decide on the grounds of appeal by the appellant. See: Watt v. Thomas (1947) 1 All ER 582; Mbogo and Another v. Shah (1968) E.A 93; Republic v. Makuzi Zaidi and Another [1969] H.C.D 249; Hassan Mzee Mfaume v. Republic, [1981] T.L.R. 167; and Attorney General & 3 Others v. Nobert Yamsebo [2013] T.L.R. 501. In essence, the issues related to facts and evidence ends to the first appellate court, the second appellate court like in the instant appeal, the Court is mandated to determine only questions of law. The Court can rarely intervene to resolve the complaints on the concurrent findings of facts by the two courts below where there is misapprehension of the substance, nature and quality of the evidence resulting in an unjust trial and when the interest of justice so demand. See: Michael Elias v. Republic, Criminal Appeal No. 243 of 2009 (unreported).

It is apparent in the record of appeal and as partly quoted above, the first appellate court failed to consider adequately all grounds raised by the appellant and properly submitted by both parties before it for determination. Since the first appellate court allowed parties to submit on all eight grounds of appeal, it was duty bound to consider and determine them as required by law. As we have alluded to above, there is no indication that the first appellate court combined all grounds into one ground rather it is crystal clear that the learned Judge considered only the first ground which was raised that: "the tria l m agistrate erred both in points o f law and facts by convicting the appellant basing on evidence o f poor identification. "The rest of the grounds of appeal were, at all, not considered and conclusively determined as required by law. In the circumstances, this Court in the case of Firmon Mlowe v. Republic (supra) observed that: "A party pursuing an appeal before it is entitled to a full, fa ir and independent consideration o f the evidence a t the appellate stage against the findings o f the tria l court." We have carefully perused the contents of the impugned judgment in relation to the eight grounds raised by the appellant before the first

appellate court, it is evident the learned Judge left the substantial part of the complaint undetermined. As such the appellant has preferred similar grounds which were raised before the first appellate court but not determined. We therefore, agree with the learned Senior State Attorney that, failure to consider the appellant's grounds of appeal was a fatal irregularity and with respect, rendered the first appellate court's judgment a nullity. In the circumstances, we are of the settled view that the failure by the first appellate court to determine conclusively all grounds of appeal is fatal and cannot confer jurisdiction of this Court to step into the shoes of the first appellate court to determine the instant appeal. As it is, the Court does not have jurisdiction to determine matters which were not conclusively considered by the first appellate court. On the way forward, this Court was encountered by similar scenario in a good number of cases including the cases of Simon Edson @ Makundi v. Republic, Criminal Appeal No. 5 of 2017 [2020] TZCA 1730 (18 August 2020); Sal urn Njwete @ Scorpion v. Republic, Criminal Appeal No. 182 of 2019 [2022] TZCA 650 (24 October 2022);

and Elly Msalilwa v. Republic, Criminal Appeal No, 265 of 2021 [2023] TZCA 17991 (14 December 2022), where the Court paved way forward that the impugned judgment is liable to nullification. See also the case of Revocatus Mugisha v. Republic, Criminal Appeal No. No. 200 of 2020 [200] TZCA 1753 (28 August 2020). In the event and for the reasons so provided, we agree with the learned Senior State Attorney that, the appeal before us is premature and the Court lacks jurisdiction for the reasons that the first appellate court did not determine conclusively the grounds raised before it. The next question to be answered by us is what should be the way forward. We have anxiously considered the circumstances of the appeal before us and In the interest of justice we are inclined to the invitation by the learned Senior State Attorney to nullify the whole proceedings and judgment of the first appellate court and remit the record of appeal to the High Court for redetermination of the appellant's grounds of appeal. We therefore, invoke section 4 (2) of AJA, and proceed to nullify the proceedings and judgment in Criminal Appeal No. 67 of 2018 and remit the case file to the High Court for rehearing of the appeal in accordance

with the law. We are aware that the sitting Judge is now in the Court of Appeal, therefore, the appeal before the High Court shall be heard and determined by a different judge. For the interest of justice, the learned Judge of the High Court shall rehear the appeal expeditiously and the appellant shall remain in custody to the end of his appeal. It is so ordered. DATED at IRINGA this 9th day of December, 2024. The Judgment delivered this 10th day of December, 2024 in presence of the Appellant in person and Mr. Sauli Makori, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL