Mawazo Juma vs Republic (Criminal Appeal No. 497 of 2021) [2024] TZCA 1217 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MWANDAMBO, J.A., KAIRO. J.A. And ISSA, J.A.l CRIMINAL APPEAL NO. 497 OF 2021 MAWAZO JUMA..............................................................................APPELLANT VERSUS THE REPUBLIC .......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Mbagwa, J.) dated 23rd day of July, 2021 in Criminal Appeal No. 34 of 2021 JUDGMENT OF THE COURT 4th & 10th December, 2024 MWANDAMBO, J.A.: The District Court of Mbeya convicted and sentenced the appellant Mawazo Juma of the offence of statutory rape involving a 17 years' school girl who we shall be referring to as LF or PW1 in this judgment. His appeal to the High Court sitting at Mbeya was successful to the extent of the sentence which was reduced from life to 30 years' imprisonment after the High Court found the evidence grounding the appellant's conviction proved the case against him on the required standard. He is now appealing before the Court to protest his innocence.

The appellant's arraignment before the trial court was triggered by allegations that that, on 11 April 2020, at a place called Nsalala, Mbalizi area, Mbeya District and Region, the appellant had sexual intercourse with LF who was by that time a form three student at Nazarene Secondary School in Mbeya. The case for the prosecution on which the trial court relied in sustaining the charge resulting into conviction came from five witnesses, most importantly, PW1 who was the victim of the offence. According to PW1, the whole saga started this way. On 17 March 2020, her school was closed due corona virus pandemic at the time. As a result, she was taken by her cousin sister, the appellant's wife to stay with them since her parents were in Dar es Salaam. However, it would appear the appellant started having an eye on her in law, for on several occasions he asked her to have sexual intercourse with her to which PW1 refused. However, that could not deter the appellant from quenching his thirst Luckily, on 11 April 2020, the appellant and his wife (DW2) left for their routine duties at about 12:00 pm. leaving behind PW1 and their son in the house. Apparently, the other tenants in the rented house occupied by the appellant and his family had also left. In the meantime, PW1 washed her clothes and retired to the sitting room 2

where she slept on couch before hearing a knock at the door to which she responded and opened for the appellant, thirty minutes later, at 12.30 pm to be exact. After PW1 had opened the door for him, the appellant closed the exit door before dragging LF into one of the rooms where he overpowered her and forcefully inserted his male sexual organ into her genitalia. The appellant is said to have taken advantage of the absence of his wife and other occupants in the house rendering the victim helpless. After b gratifying his passion, the appellant is said to have left and disappeared until 20 April 2020 when he was arrested by the police with the assistance of Adison Alimon Mwasenga (PW3); a local ten cell leader in that area. Faced with that predicate, the victim had to look for a lady known as Christina Nzunda who she called aunt for her assistance and broke the news of what had befallen of her in the hands of her brother-in-law. Through Christina's mobile phone, PW1 called his father (PW2) from Dar es Salaam informing him about the fateful incident. With the assistance of Christina, PW1 reported the incident to PW3 who subsequently accompanied her to Mbalizi police station. At the police, LF was attended by H668 DC Wenceslaus (PW4) who issued her a PF3 for medical examination. With the PF3 in hand, PW1 was escorted by PW3 to Ifisi 3

Hospital. Dr. Frank Joseph (PW5) who examined the victim at the hospital noted some bruises in PWl's reproductive tract which was indicative of a forced penetration. After the examination, PW5 posted his findings in the PF3 and tendered it in evidence and the trial court admitted it as exhibit P2. In his defence taken on oath the appellant after the trial court's ruling on a case to answer, distanced himself from the accusations supported by his wife; Christina Lusajo Mgala who testified as DW2. That notwithstanding, the trial court found the prosecution case unshaken by the defence resulting into the conviction and sentence as hinted above. The appellant's appeal to the High Court was upon four grounds of appeal which the first appellant court found them raising one main issue; whether the prosecution proved its case beyond reasonable doubt to warrant conviction challenged in the appeal. Guided by the Court's decision in Selemani Makumba v. Republic [2006] T.L.R. 379 and having regard to the nature of the charged offence involving statutory rape, coupled with the victim's evidence which it found credible and corroborated by PW5, the High Court concurred with the trial court on the finding of guilt. It sustained conviction but, as hinted earlier on, and

substituted the life sentence imposed by the trial court with 30 years' imprisonment. Before us, the appellant has sought to assail the decision of the first appellate court on six grounds of appeal. Three out of the grounds are on procedural aspects and the rest on the merit of the impugned decision. The appellant appeared in person fending for himself to prosecute his appeal when it was called on for hearing and had the respondent Republic address the court first before he could do alike in reply. Ms. Naomi Mollel, learned Senior State Attorney who appeared for the respondent Republic resisted the appeal. At the outset, she urged us to refrain from entertaining the 3r d ground on the alleged failure to consider the defence case allegedly a new ground not based on point of law. She thus made no submissions on it Nevertheless, as it shall become apparent later, it turned out that Ms. Mollel misapprehended the point and so we shall consider it in our deliberation. For convenience, we shall deal with the appellants complaints on a claimed procedural infraction starting with the 5th ground.

The complaint in the 5th ground is directed against the alleged failure by the trial court in reminding him of the charge before he entered his defence. In her reply, Ms. Mollel urged that the complaint is untenable in so far as there is no legal requirement to remind an accused person of a charge before entering his defence. She supported her argument with the Court's decision in Umaiya Makilagi @ Musoma & 2 Others v. Republic [2023] TZCA 17654, TANZLII for the proposition that, the trial court has no legal obligation to remind the accused of his charge except where there is amendment, or it is altered by adding or removing an accused from the case etc. The appellant was adamant on this urging us to sustain this ground. With respect, we agree with the learned Senior State Attorney that the complaint is not legally misconceived. As we held in Umaiya Makilagi (supra) reminding the accused of the charge before entering his defence is a commendable practice but that is not the same as saying that failure doing so is fatal to the trial in the absence of any statutory obligation in that regard. It is instructive that, in so far as the appellant was addressed of his right to give evidence on or without oath and call witnesses in his defence in terms of section 231 of the Criminal

Procedure Act (the CPA) that was sufficient for him to enter his defence without the need to be reminded of his defence. At any rate, upon our examination from page 25 of record containing a ruling on a case to answer, it is clear that the trial magistrate explained the nature of the charge and the particulars thereof which could have reminded him the case he was facing. Accordingly, we find no merit in this ground and dismiss it. Next we shall address ground one which faults the trial court for non-compliance with section 210 (3) of the CPA by its failure to inform each witness of his right to have his evidence read over to him. Although Ms. Mollel conceded the non-compliance, she changed her position after being shown the original record of proceedings which indicated compliance. She thus urged us to dismiss the complaint for being misconceived. In response, the appellant was unflinching about the non- compliance urging us to find it fatal. Having examined the record of appeal, we find no merit in this ground. Indeed, it was a surprise to us when Ms. Mollel made the concession considering that, typed record is conspicuous on compliance independent of the original record. In any event, even if there was any

such non-compliance, it could not have been of any consequence to the appellant's conviction consistent with the previous Court's decisions particularly, Jumanne Shabani Mrondo v. Republic, Criminal Appeal No. 282 of 2010 (unreported). We accordingly dismiss this ground for being baseless. The complaint in the 2n d ground is against the alleged reliance on hearsay evidence from PW2, PW3, PW4 and PW5 in grounding conviction. Replying, the learned Senior State Attorney argued that, contrary to the appellant, his conviction was grounded on PWl's evidence corroborated by PW5; a medical doctor who examined PW1 and found that she had been forcefully penetrated in her reproductive tract. We agree with her notwithstanding the appellant's insistence to the contrary in his response. The first appellate court addressed itself on the evidence on which the trial court relied in convicting the appellant and concurred with the trial court guided by the oft quoted decision of the Court in Selemani Makumba; true evidence in sexual offences must come from the victim. Having satisfied itself that PWl's evidence met the threshold corroborated by PW5, it sustained the conviction. The upshot of the foregoing is that the appellant's complaint is misconceived and we dismiss it.

We shall now turn our attention to the 3r d ground on the alleged failure to consider defence evidence. As mentioned above, Ms. Mollel did not address us on this ground having taken the view, mistakenly though, that it was a new ground not based on a point of law. On his part, the appellant was resolute that his conviction was wrongful because his defence was not considered. Undeniably, this ground was not canvassed before the first appellate court and so we have no benefit of its finding had it been brought to its attention. Be it as it may, upon our examination of page 44 and 45 of the record, we have no flicker of doubt that the complaint is baseless. We say so mindful that the defence was, in effect, premised on his absence from his home from 11 April to 20 April 2020 when he was eventually arrested. The trial court had regard to this defence and found it too hollow to shake the prosecution case let alone the fact that, assuming the defence of alibi had anything to go by, it was belatedly raised in defence. Consequently, we find no merit in this ground and dismiss it. Finally on the 4th and 6th grounds raising the issue whether the appellant's case was proved beyond reasonable doubt. The appellant

would have us agree with him that the evidence adduced by the prosecution witnesses was too weak to sustain conviction and thus urges us to interfere with the concurrent finding of fact by the two courts below. It is settled law that the second appellate court's power as it were is, as a general rule, bound by the concurrent findings of fact by the two courts below unless it is shown that such concurrence was a result of misapprehension non-direction of the evidence on record occasioning a failure of justice. See for instance; Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 etaL Responding to the submission by Ms. Mollel who urged us to find that the prosecution proved its case to the required standard, the appellant pointed out several weaknesses in the evidence which, if considered would have tilted the outcome of the case in his favour. The first of such weaknesses relates to the time of the offence as testified by PW1 and PW4 showing that the offence was committed at 12:30 noon according to PW1 but reported at 11:00 according to PW4. The second relates to want of evidence to prove that PW1 was a student whereas the third one was in relation to the difference in the name of the lady to whom PW1 reported the incident whether it was Vestina, Tina or Christina who was not called as a witness. Lastly, the appellant criticized 10

PW1 for referring a wrong name of her father and urged that it was inconsistent with her credibility. For a start, we wish to state that the difference in the name of the lady PW1 contacted immediately after the incident be it Christina or Tina was immaterial to the appellant's conviction. So was the alleged absence of proof that PW1 was a student or the reference to a different name of her father. None had a bearing on the root of the case thereby raising a reasonable doubt which could have benefited the appellant. Regarding the time of the offence, it is common ground that PW4 stated that on 11 April 2020 at 11:00 hours he was at his work station where the victim accompanied by PW3 reported the incident to him. However, PWl's evidence which was not controverted by the appellant in cross examination shows that the offence was committed at 12:30 pm just half an hour after the appellant and his wife had left home leaving behind PW1 and Bright; the appellant's son. On the other hand, according to PW3, upon arrival at his home around 14:00 hours he found his daughter and PW1 who complained to him about the rape and subsequently with the advice from the village chairman, he took PW1 to the police station where they were attended by PW4. In our view, and

in fact common sense which we are entitled to apply, reference to 11:00 hours must have been a typo meaning 17:00 hours considering that, according to PW5, LF and her relatives accompanied by a police officer reported at the hospital at 18:59 hours. Accordingly, unlike the appellant, we are not persuaded that the offence was committed after PW1 had been taken by PW3 to the police station. That means that the alleged doubt was not a doubt at all which could have dented the case for the prosecution. Having disposed of the appellant's complaint, we agree with Ms. Mollel that the case for the prosecution was proved to the required standard. Since the offence involved statutory rape, the prosecution was bound to prove, (1) the victim's age (2) penetration and (3) that it was the appellant who committed the offence. As submitted by Ms. Mollel, on the evidence, the victim's age was sufficiently proved by PW1 and PW2 together with the birth certificate tendered in evidence as exhibit PI. Secondly, as found by the trial court and concurred by the first appellate court, penetration was proved by PW1 whose evidence was corroborated by PW5. Lastly, PW1 proved that it was none other than the appellant; her brother-in-law who committed the offence. Despite the appellant urging us to hold that the prosecutions failure to call 12

Christina dented its case we do not agree that she was a material witness whose absence could have dented the case considering that PWl's evidence alone was sufficient to sustain conviction. We find no merit in the 4th and 6th grounds and dismiss them. As we have dismissed all grounds of appeal, we find no merit in the appeal which is dismissed in its entirety. DATED at MBEYA this 7th day of December, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant who appeared in person and Mr. Augustino John Magessa, learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original.