Mathias Mtavangu vs Republic (Criminal Appeal No. 452 of 2021) [2024] TZCA 1231 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA CRIMINAL APPEAL NO. 452 OF 2021 (CORAM; MKUYE. J.A., MGEYEKWA. J.A., And NGWEMBE. 3.A./1 MATHIAS MTAVANGU .............. ............... .............. . ........ . ..... APPELLANT VERSUS THE REPUBLIC . ........ . .............. . ............... . ...... . ..... . ............. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Mlvambina. 3. dated the 25th day of August, 2021 in Criminal Appeal No. 56 of 2019 JUDGMENT OF THE COURT 4th & 10th December, 2024 MKUYE, JA: The appellant was charged and convicted by the District Court for Mufindi District at Mafinga 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). Upon conviction, he was sentenced to life imprisonment. Being aggrieved, he unsuccessfully appealed to the High Court, as his appeal stood

dismissed. Still aggrieved, he has preferred the present appeal to this Court. Briefly, it was the prosecution case that on 5/11/2017, the appellant while at Udumuke Village within Mufindi District and the Region of Iringa, had carnal knowledge of A d/o N (who in order to protect her dignity shall be referred to as "the victim" or "PWl") a girl aged seven years. It was alleged that on the material date, the victim was playing with her fellow kids at their home. As they were playing, the appellant came and lured her to his house on a pretext that he was going to give her money to buy a pencil. Unknown to the victim, she obliged, and on arrival at the appellant's house, the appellant had carnal knowledge of her. As narrated by PWl, upon completion of his lust, he threatened her that he will kill her if she ever told anyone. PWl left while crying and on arrival home, she informed her sister (PW2) of what had transpired. The incident was later narrated to the victim's mother (PW3). The appellant was then arrested leading to his conviction and sentencing as alluded to earlier on. Aggrieved by the decision of the High Court, the appellant lodged both a substantive and supplementary memorandum of appeal consisting of a total of ten grounds of appeal, as follows:

1. That the first appellate court erred in holding that the contradictory and hearsay evidence o f PW2, PW3 and PW4 corroborated that ofPW l.

2. That the first appellate court failed to consider that lack o f hymen is not proof o f penetration.

3. That the contents o f the PF. 3 (Exhibit P .l) were not read out

4. That the charge was not read out and reminded to the appellant during hearing,

5. That some material witnesses for the prosecution (Mariam Mdeka, Jack Amos, Patrick Mdeka, and Bina Kaiambo) were not called to testify.

6. That the first appellate court erred in dismissing the appeal without considering that the memorandum o f undisputed facts was not read out neither was it signed by the appellant, Magistrate and Public Prosecutor in terms o f section 192 (3) o f the CPA.

7. That the first appellate court erred in dismissing the appeal without considering that the trial court conducted VOIRE DIRE TEST which is no longer a requirement and that the promise to tell the truth by the victim was incomplete.

8. That the first appellate court erred in dismissing the appeal without considering that there was material variance between the oral evidence o f PW5 (the doctor) and the PF.3 (P.l) pertaining to the date o f examination of the victim.

9. That the first appellate court erred in dismissing the appeal without considering that the trial magistrate did not append his signature at the end o f witnesses' testimony in terms o f section 210 (1), (a) of the CPA.

10. That the case was not proved beyond reasonable doubt At the hearing of the appeal, the appellant appeared in person without any legal representation, whereas the respondent Republic was represented by Mr. Yahaya Misango, learned Senior State Attorney. At the outset, the appellant informed the Court that he preferred the learned Senior State Attorney to commence and he would rejoin later, if the need arose. Commencing with the complaint pertaining to failure by the prosecution to prove the case beyond reasonable doubt. Mr Misango observed that the appellant was charged with the offence of rape falling under section 130 (1) and (2) (e) of the Penal Code. And that, in proving such offence, three elements have to be certain. One, whether there was penetration. Two, proof of age of the victim. Three, whether the appellant raped the victim. Mr. Misango submitted that in the present case, the victim who testified as PWt, gave evidence in clear terms that the appellant inserted his male organ into her vagina. According to Mr. Misango, that narration was not cross examined by the appellant, hence, failure to do so, indicated that he agreed with the victim's testimony. To support his position, Mr. Misango referred to our decision in the case of Kanaku Kideri v. Republic, Criminal Appeal No. 326 of 2021 [2023] TZCA 223 (4 May 2023). Pertaining to the proof of age of the victim, the

learned Senior State Attorney pointed out that the age of the victim was proved by the victim's mother (PW3) who stated that the victim was eight years old. And that such age can be proved by a parent, victim or guardian, hence, PW3 was a competent witness for that purpose. On whether the appellant raped the victim, it was submitted that the victim named the appellant as the person who ravished her which was corroborated by PW5 who stated that upon medically examining the victim he observed bruises, lack of hymen and presence of sperms in her vagina. Mr. Misango was convinced that the evidence of PWl, PW3 and PW5 was sufficient to prove the offence. Regarding the complaint that the magistrate failed to sign at the end of witnesses' testimonies in contravention of section 210 (1) (a) of the CPA, Mr. Misango was in agreement that, indeed, the trial magistrate did not sign at the end the evidence of both PW2 and PW5. However, he was quick to point out that, the omission was not a serious irregurality such as to vitiate the evidence of the respective witnesses. Rather, it is curable under section 388 of the CPA. Concerning the complaint that the PF3 (Exh. PI) was not read out in court after its admission and the variance on the date when examination of the victim was conducted and when that Exhibit was

filled out, it was Mr. Misango's submission that, the record bears that the exhibit was read out, hence, the complaint was misplaced. With regard to the variance, the learned Senior State Attorney elaborated that, since the victim was taken to the hospital on 5/11/2017 and was admitted for three days as narrated by PW3, it was understandable for the PF.3 to have been filled on 8/11/2017 which was the date of her discharge. He argued that, the fact that the PF.3 was filled out on 8/11/2017, it did not remove the truth as observed by PW3 that the victim was raped. As regards the complaint on the conduct of voire dire test which was no longer a requirement and the victim's promise to tell the truth being incomplete, Mr. Misango argued that, although voire dire test was conducted, the victim had in the present case promised to testify only the truth. According to Mr. Misango, much as, there was a promise to speak the truth the conduct of voire dire was inconsequential. He further observed that, the fact that the victim promised to testify 'only' the truth was an indication that she was not on a mission to tell lies. Hence, the provision of section 127 (2) of TEA was complied with. Submitting on the complaint that the memorandum of facts not in dispute was not read over or signed by the appellant, prosecutor or

magistrate in violation to section 192 (3) of the CPA, the learned Senior State Attorney readily conceded that, indeed, the agreed facts were not read over and signed by the parties in compliance with the dictates of the law. However, he pointed out that, in any case, failure to conduct a preliminary hearing within the dictates of section 192 (3) of the CPA does not vitiate the trial proceedings. In relation to the complaint that the evidence of PW1 was corroborated by contradictory evidence of PW2, PW3 and PW4 the learned Senior State Attorney contended that the testimonies amounted to direct evidence in terms of section 62 (1), (b) of the Evidence Act. He maintained that their evidence was not contradictory as suggested by the appellant. With regard to the complaint on the failure to read over and remind the charge to the appellant, Mr. Misango was of the stance, that the charge was read over and that it is not the procedure to always remind an accused of the charge whenever the case comes up for hearing. Lastly, in his submissions regarding the complaint on the failure to call material witnesses, the learned Senior State Attorney elaborated that the prosecution is at liberty to select the witnesses it wishes to present

to prove its case. He further maintained that in the present ease, the witnesses who were presented were capable of proving the offence and, in any case, the appellant was not prevented from calling the said material witnesses in his defence. Mr. Misango wound up by remarking that the appeal was unmerited and called for its dismissal. The appellant, in rejoinder, apart from beseeching the Court to aptly consider his grounds of appeal, he had nothing useful to progress. Having heard the submissions from both parties, we, now find it the opportune occasion to make our determination on the matter. In doing so, we propose not to adopt the sequence taken by Mr. Misango, rather, we find it apt to commencing by addressing the various procedural mishaps as raised by the appellant. We commence by addressing the effect of the failure by the magistrate to append his signature at the end of witness testimony. As rightly conceded by Mr. Misango, the record of appeal at page 19 and 29 bears that the trial magistrate did not append his signature at the end of the testimony of PW2 and PW5. We take note that Mr. Misango has maintained that the omission does not vitiate the evidence of the respective witness. We are alive that section 210 (1) (a) of the CPA imposes an obligation upon the presiding magistrate having taken down evidence, to append his signature thereto. It provides thus:

"(1) In trials, other than trials under section 213, by or before a magistrate, the evidence o f the witnesses shall be recorded in the following manner-- (a) the evidence o f each witness shall be taken down in writing in the language of the court by the magistrate or in his presence and hearing and under his personal direction and superintendence and shall be signed by him and shall form part o f the record/ ' [Emphasis added] It is clear that in terms of the above provision, it is a requirement that the evidence of a witness be signed by the presiding Magistrate/Judge, as the case may be, in order to vouch for the authenticity of the testimonies. Otherwise, any such omission is an incurable irregularity vitiating the proceedings incapable of been spared by section 388 of the CPA. We have taken such stance to becorrect position of the law in a number of our decisions. See: Yotham Yonav. Republic, Criminal Appeal No. 13 of 2021 (2023) TZCA 17693 (3 October 2023); Masao Jumanne v. Republic, Criminal Appeal No. 268 of 2021 (2024) TZCA 1 (2 January 2024) and Sijaona Mkwenji @ Frank v. Republic, Criminal Appeal No. 692 of 2020 (2022) TZCA 795 (7 December 2022). However, as we give the matter further

consideration, we are inclined to ask ourselves whether the appellant was prejudiced by the omission such as to occasion a miscarriage of justice. We also take liberty to consider that with the inception of the principle of overriding objective into the Appellate Jurisdiction Act, Cap 141 R.E, 2022 (the AJA), this Court is now obliged to take into account the overriding objective principles before hastening to strike out matters on procedural grounds. We observe that, in the present matter, the appellant has not alluded to the testimony of the respective witnesses as being different from what they actually testified in court. In the circumstances of this matter, in the absence of such suggestion, we are inclined to hold the view that the appellant cannot be prejudiced with the omission by the magistrate of appending his signature at the end of evidence of PW2 and PW5. In our view, the position we took in the case of Security Group (T) Limited v. Steven Gerson Kizinga (as an administrator of the estate of the late Mashaka A. Setebe), Consolidated Civil Appeal No. 386 of 2020 & 50 of 2021 [2024] T7CA 107 (23 February 2024), where we grappled with a similar matter meets the better ends of justice. Consequently, we find this ground to lack merit. We move to the complaint that the charge was not read out neither reminded to the appellant during trial. Mr. Misango in his 10

submissions refutes the appellant's claim that the charge was not read out to him maintaining further that there is no requirement of reading over the charge to an accused whenever trial resumes. Admittedly, we have revisited the record of appeal and could not come up with anything near to what the appellant is suggesting that the charge was not read out to him. The record does bear out at page 3 that the charge was read out to the appellant which he pleaded not guilty. Regarding the appellant's concern of not been reminded of the charge, we are in agreement with Mr. Misango that there is no such legal requirement that whenever the tria! resumes upon an adjournment, the charge be reminded over to the accused. In the case of Umaiya Makilagi @ Musoma and 2 Others v. Republic, Criminal Appeal No. 371 of 2020 [2023] TZCA 17654 (26 September 2023), we took that stance by stating as follows: "(a) Legally speaking , the duty to read or remind the charge to the accused arises when a fresh charge is lodged in court in terms o f section 228 o f the CPA or when a charge is amended or altered by adding or removing an accused from the charge , a count in the charge sheet is withdrawn or when there is variance between the charge and evidence (see section 234 of the CPA) or when a trial court complies with an order o f retrial made by a superior court and the case is

scheduled to recommence the triaf. Otherwise, and with respect to the learned first appellate judge, it is not a legal requirement that a trial magistrate has to read again or remind the accused the charge when the case commences hearing even if time had lapsed from when the accused persons were first arraigned and their respective pleas recorded../' See a/so: Thabit Dotto v. The Republic, Criminal Appeal No. 327 o f 2017. " [Emphasis added] Hence, this ground lacks merit and we dismiss it We now turn to the complaint that the memorandum of undisputed facts was not read over or signed by the appellant, prosecutor or magistrate. The appellant contends that the omission violates section 192 (3) of the CRA. Basically, the provision under scrutiny provides for the manner of conducting a preliminary hearing. It provides thus: "At the conclusion o f a preliminary hearing held under this section, the court shall prepare a memorandum o f the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate (if any) and by the public prosecutor and then filed." [Emphasis added]

In the present matter, as rightly conceded by Mr. Misango, the record bears that the memorandum of undisputed facts was not read over to the appellant neither signed by him or the magistrate or the prosecutor. Perhaps, we need to refresh ourselves with regard to the purpose of conducting preliminary hearing. Preliminary hearing is conducted under section 192 of the CPA, The main purpose of such proceedings is to promote expeditious and cost-effective disposal of criminal cases. See: Jackson Daudi v. Republic, Criminal Appeal No. 11 of 2002 and Kalisti Clemence @ Kanyaga v. Republic, Criminal Appeal No. 1 of 2000. It is also a settled position as expounded by caselaw in our jurisdiction that where the conduct of preliminary hearing is faulty, such irregularity does not vitiate the trial proceedings. See: Director of Public Prosecutions v. Jaba John, Criminal Appeal No. 206 of 2020 [2022] TZCA 406 (11 July 2022), and Kalisti Clemence @Kanyaga (supra). Reverting to the present matter, failure to have the memorandum of facts read over to the appellant and signed by him or the magistrate or prosecutor did not occasion any injustice. In the case of Hassan Said Twalib v. Republic, Criminal Appeal No. 95 of 2019 [2020] TZCA 1858 (20 November 2020), the trial court had not read the memorandum of undisputed facts neither were they signed by the accused, therein. The 13

Court, in finding that the infraction did not prejudice the appellant, stated as hereunder: "This was contrary to section 192 (3) o f the Criminal Procedure Act [CAP 20 R.E 2002]. However, the infraction did not vitiate the proceedings considering that, the triai was fully conducted as the prosecution paraded witnesses who testified at the triai and the appellant had the opportunity to give his defence to counter the prosecution case. Thus ; the infraction did not prejudice the appellant in any manner and no injustice was occasioned." Further, in the case of The Director of Public Prosecutions v. Lengai Ole Sabaya and 2 Others, Criminal Appeal No. 231 of 2022 (2023) TZCA 17853 (17 November 2023), the Court stated that: "It is one thing to say proceedings o f a preliminary hearing are a nullity and it is quite another to say the trial thereof was a nullity. From settled case law in this jurisdiction, a trial o f a case will not ipso facto be vitiated for failure to conduct a preliminary hearing or for conducting it improperly. In the case at hand, it is abundantly dear that the trial court did not show clearly that it complied with the letter o f section 192 (3) of the CPA in that the memorandum o f agreed facts was not shown to have been read to the parties. That was an irregularity but for our part, we think,

the same was curable in terms o f section 388 o f the CPA, the more so the trial court recorded that "section 192 o f the CPA [has been] complied with." In the circumstances, we are inclined to find that the omission is curable under section 388 of the CPA. Therefore, this complaint lacks merit. Next is the appellant's two-pronged complaint that, one, the voire dire test was conducted yet, it is no longer the requirement of the law anymore. Two, that the victim's promise to speak the truth was incomplete for lacking the statement that she would not speak lies. Mr. Misango's response was at one with the appellant, in that, the conduct of voire dire test was no longer applicable under section 127(2) of the Evidence Act, Cap 6 R.E. 2022 (Evidence Act) following its amendment by the Written Laws Miscellaneous Amendment Act, Act No. 4 of 2016. We are of the firm view that, where a child of tender age promises to tell the truth the issue of conducting voire dire does not arise. In our view, the conduct of voire dire , as it happened in this case was a mere superfluous affair. See: Charles Melkiory Msele v. Republic, Criminal Appeal No. 17 of 2021 [2023] TZCA 18011 (19 December 2023) and George Jonas Lesilwa v. Republic, Criminal Appeal No. 374 of 2020 [2024] TZCA 269 (16 April 2024).

As to the second limb of the complaint, it is instructive to state the relevant law in this area being section 127 (2) of the Evidence Act, which explicitly provides that: "A child of tender age may give evidence without taking oath or making an affirmation but shall before giving evidence promise to tell the truth to the court and not to tell any lies ." [Emphasis added}. Page 16 of the record of appeal indicates that the victim, a child of tender age made promise by stating, 7 am promising to tell only the truth". That being the case/ we entirely agree with the observations of Mr. Misango that the witness having stated that she promised to testify "only" the truth, that equally amounted to promising not to tell lies. This Court grappled with a similar grievance in the case of Mathayo Laurence William Mollel v. Republic, Criminal Appeal No. 53 of 2020 [2023] TZCA 52 (20 February 2023), where it was stated: "We understand the legislature used the words "promise to teii the truth to the court and not to tell lies”. M / e think tautology is evident in the phrase, for, in our view, "to tell the truth" simply means "not to tell lie s S o , a person who promises to teii the truth is in effect promising not to teii lies. The tautology in the subsection is, in our opinion, a drafting inadvertency ."

In the circumstances, we find both limbs of complaint to lack merit. As regards the complaint on the failure to read out Exhibit P.l (PF.3), we wish to point out without hesitation that the record does not support the appellant's assertion. As rightly argued by Mr. Misango, the record of appeal at page 29 indicates the PF.3 upon its admission, was read out. Therefore, this complaint lacks merit. Having resolved the procedural issues in the manner we have done, it is now, the opportune moment to address the complaint pertaining to failure by the prosecution to prove the case beyond reasonable doubt. In his submissions, Mr. Misango contended that in proving the offence of rape, three essential ingredients were necessary. According to him penetration, age of the Victim and whether the appellant raped the victim ought to be proved and he was adamant that in the present case all these elements were sufficiently proved. In relation to the age of the victim, there is evidence emanating from PW1 (victim) and PW3 (victim's mother) that the victim was aged 8 years old. Concerning penetration, the law is settled that rape occurs when a male organ is inserted into a female organ, however slight. See: Nyeka Kou v. Republic, Criminal Appeal No. 103 of 2006 [2007] TZCA 4 (30 October 2007). In the case at hand, PW1 was elaborative of the manner in which the appellant lured her into his home and had carnal 17

knowledge of her. While appreciating that given the tender age of the victim, she need not graphically narrate how the male organ was inserted in her private parts (penetration). We subscribe to our observations in Hassan Kamunyu v. Republic, Criminal Appeal No. 277 of 2016 [2018] TZCA 259 (21 August 2018). See also: Nkanga Daudi Nkanga v. Republic, Criminal Appeal No. 316 of 2013 [2014] TZCA 213 (21 October 2014). On whether the appellant raped the victim, PW1 in her evidence stated that she knew the appellant and on the material day he lured her to go and take money for buying a pencil. Further, according to PW1, on arrival at the appellant's house he raped her. We wish to observe that according to the evidence of PW1, when the two met and left together their contact did not break up until they entered the appellant's house. In the circumstances, we are convinced that the appellant raped the victim. The appellant has argued that there was failure to call some material witnesses, being the kids who were playing with the victim and the first person to whom she narrated the incident (Bina Kalambo). In order for a witness to be considered a material witness for the prosecution, it must be shown that there is/was no other witness who testified what that intended witness ought to have testified, See: Bashiri John v. Republic, Criminal Appeal No. 486 of 2016 [2019] TZCA 89 (16 18

May 2019). In the case at hand, PW3 to whom the victim narrated the incident came to testify in court. Therefore, the need to have Bina Kalambo as a witness could not arise. As such, this ground is rejected. In the event, we find the appeal without merit and we hereby dismiss it in its entirety. DATED at IRINGA this 9th day of December, 2024. Judgment delivered this 10th day of December, 2024 in the 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