Paul Julius @ Maganga vs Republic (Criminal Appeal No. 379 of 2022) [2024] TZCA 1200 (5 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: NDIKA. J.A.. KITUSL J.A. And MASHAKA. J.A.^ CRIMINAL APPEAL NO. 379 OF 2022 PAUL JULIUS @MAGANGA.................................................................. APPELLANT VERSUS THE REPUBLIC ............................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Arusha) (Robert, dated the 13th day of July, 2022 in Criminal Appeal No. 04 of 2021 JUDGMENT OF THE COURT 26th November & 5th December, 2024 KITUSL J.A.: The appellant was charged with and convicted of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, allegedly for having had carnal knowledge of a boy aged 3 years, against the order of nature. He was sentenced to life imprisonment and his first appeal to the High Court challenging the conviction and sentence was barren. This second appeal raises six grounds in the main memorandum of appeal and three in the supplementary memorandum of appeal. These nine grounds of appeal may, however be paraphrased into seven areas as follows:

One, the victim's evidence was recorded in violation of section 127 (2) of the Evidence Act (EA), two, credibility of PW1 and PW2 was not perfectly assessed, three, defence evidence was not considered, four, the medical doctor's conclusion that there was penetration into the boy's anal end was not based on scientific analysis, five, the prosecution did not call material witnesses, six, violation of section 32 (1) CPA denied the appellant an opportunity to be heard and; seven, the case against the appellant was not proved beyond reasonable doubt. The evidence for the prosecution is mainly that of the victim (PW2), his grandmother Zaina Omary (PW1) and Dr. Debora Kagera (PW4) who examined the alleged victim. The trial court as well as the first appellate court placed significant weight on the testimonies of these witnesses in grounding the conviction and in dismissing the first appeal. The appellant's defence consisted of a denial and an allegation that the case was fabricated by PW1 with whom he had a scuttle before. Although the trial court did not consider the defence case, the High Court considered and rejected it as according to the learned Judge, it did not introduce any reasonable doubt into the prosecution case. PW1 was living with PW2, her grandson. On 16/10/2019 when she returned home, she noticed that PW2's sitting posture was awkward, and she enquired, only to be told by the boy that the appellant had had sex with him.

Put in Swahili though vulgar, the boy told her; " am enitom batom ba" PW2 repeated that statement when PW1 ran a physical examination on him. In a very short account of what transpired PW2 stated that the appellant inserted his penis into his anus, alluring him with a promise to give him sweets. PW1 said she traced the appellant and had a fight with him over the allegations. She said further that the appellant's parents were informed about their son's commission of the sodomy on PW2 and that the father confirmed the allegation when he saw the boy's bruised anus, while on hearing these allegations, the appellant's mother is said to have wept. The matter was reported to the police from where medical examination was ordered. The medical doctor (PW4) observed bruises at the anal verge of PW2 and accordingly recorded those findings on the PF3, (Exhibit PI). As intimated earlier, the appellant's defence which the first appellate court dismissed, was that he did not ravish PW2, but alluded to the fight with PW1 when she accosted him regarding the alleged sexual abuse of her grandson. He stated that he knew that fight to be the only reason he may have been arrested for. The appellant appeared in person at the hearing, armed with written arguments that had been filed ahead of the date of hearing. Ms. Lilian Mmassy, and Ms. Penina Ngotea, both Senior State Attorneys, appeared for

the respondent Republic. It was Ms. Ngotea who addressed us on the appeal, resisting it. We shall begin with the sixth complaint on the alleged noncompliance with section 32 (1) of the CPA. In his written arguments, the appellant has submitted that the law under that provision requires that a suspect be taken to court within 24 hours of his being arrested, but in this case that requirement was not met because he was arraigned in court after eight months. He cited to us the case of Mfaume Daudi Mpoto & 2 Others v. Republic (Criminal Appeal No. 419 of 2020 [2023] TZCA 1756 (31st August, 2023), and further that Article 13 (6) (a) of the Constitution of the United Republic, on the fundamental right to be heard, was also violated. On that basis, the appellant urged us to find the entire proceedings a nullity for that reason. In response to these submissions, and while conceding that there was a delay in prosecuting the appellant, Ms. Ngotea submitted that the appellant was not prejudiced because he was given all the rights to prosecute his defence and that unlike in Mfaume Daudi Mpoto (supra), the record is silent as to whether or not the appellant in this case was in police custody for the entire eight months. The learned Senior State Attorney cited the case of Boay Bura v. Republic, (Criminal Appeal No. 570 of 2021) [2024] TZCA 717 (13th August, 2024), to support her submissions.

We note that in the case of Boay Bura (supra) the decision of the court in Mfaume Daudi Mpoto (supra) was considered just as we are being asked by the appellant to consider it in the instant case. However, upon considering the cases, we have no hesitation in taking the view that was taken by the Court in Boay Bura (supra) because the circumstances in that case are more similar to the present case than to the case of Mfaume Daudi Mpoto (supra). The paragraph below, which we reproduce from Boay Bura (Supra) making a comparison of the two cases, is relevant in resolving the issue at hand: - 'The instant case is incom parable to Mfaume Daudi Mpoto (supra) due to the absence o f evidence regarding the appellant's purported prolonged incarceration. The latter was decided in the context o f the suspect's arraignm ent in court on 2nd November, 2016, follow ing a five - month delay. We are aware that the charge the suspect in that case was facing was the non-bailable offence o f arm ed robbery...so there was no dispute that he was in police custody during that tim e". On the same pattern, we think there is much more to consider in resolving this issue than the mere prolonged delay in charging the appellant in court. The record does not, as argued by Ms. Ngotea, bear witness to the contention that the appellant was in custody throughout. However, we hope that the relevant authority will understand that the provisions of section 32

(1) of the CPA are not for ornamental purpose, and that in this era such delayed prosecution is distasted both locally and beyond borders. Nevertheless, this ground of appeal is dismissed for the reasons we have endeavoured to show. We turn to the substantive grounds of appeal. Given the nature of the offence, and the settled law that the true evidence of sexual offences comes from the victim, we shall address the first ground of appeal which raises the issue of compliance with section 127 (2) of the Evidence Act in recording the victim's evidence. In the written arguments, the appellant has referred us to the case of John Mkorongo James v. Republic (Criminal Appeal No. 498 of 2020) [2022] TZCA 111 (11th March 2022) and Issa Salum Nambaluka v. Republic (Criminal Appeal No. 272 of 2018) [2020] TZCA 10 (21st February, 2020) in which it is required that before recording evidence of a child of tender age, there be a preliminary inquiry in the course of which it can be assessed if the witness understands the meaning of an oath and the duty to speak the truth. In response to this submission, Ms. Ngotea argued that it is enough under the law if the child witness promises to tell the truth not lies, and cited the case of Abdul Akwilini Mramba & Others v. Republic (Criminal Appeal No. 342 of 2021 [2024] TZCA 704 (9th August, 2024).

In our view, determination of a child's ability to testify is a judicial process that applies reason bearing in mind the guidance in section 127 (2) of the Evidence Act, so it cannot be a universal or one size fits all, process. In the peculiar circumstances of this case, the trial magistrate believed the 3- year-old PW2. It is true as submitted by Ms. Ngotea, that PW2,s fearless use of vulgar words could be strange but it could be a function of the type of community where he was brought up. In this case PW2 promised to tell the truth, and we consider that to have been just enough for the learned trial magistrate to proceed recording his evidence as per section 127 (2) of the Evidence Act. For these reasons, this ground of appeal lacks merit and we dismiss it. The second ground of appeal attacks the two courts below for finding PW1 and PW2 to be credible witnesses. In his written arguments, the appellant correctly took that ground simultaneously with the second ground of appeal in the supplementary grounds of appeal. The appellant's main complaint is that if PW2 immediately informed PW1 about the abuse, it would not have taken PW1 six months and seven days to report the matter to the police. He submitted that PW2 was used to lying that is why PW1 did not take him seriously when he reported to her about the sodomy. He compared the evidence of PW2 on the frequency of the sodomy being once, and that of the medical doctor which suggested that penetration in PW2's anus had occurred more than once, and submitted that all these point to PW2's unreliability.

On this ground of appeal, Ms. Ngotea submitted that PW2 named the appellant, whom he undisputably knew well, immediately. We have already resolved the issue of the delayed prosecution of the appellant, to a great length going with the appellant on the sixth ground of appeal, but we do not agree with him that the victim reported the matter and named the culprit late. Going by the evidence of PW1 she reported her grandson's sodomy immediately and PW4 examined PW2 on 17/10/2019, as exhibited by Exhibit PI. Therefore, all these arguments that try to shoot down PW2's credibility based on an alleged delay in reporting and naming of the appellant crumble and so is the second ground of appeal. We agree with the assessment of the two courts below on the credibility of PW1 and PW2 and dismiss the second ground of appeal. The totality of the third, fourth, fifth and sixth grounds of appeal is to challenge the conclusion that upon consideration and evaluation of the evidence for and against the prosecution, the case against the appellant was proved beyond reasonable doubt. Ms. Ngotea argued these grounds jointly and in our view that approach is correct as it guards against unnecessary repetition, so we shall similarly consider them together. In the written arguments the appellant mainly focused on some trivial discrepancies as to which spot exactly was the alleged sodomy committed, whether he undressed first before undressing the victim and where did PW1 and him fight. He also

challenged the medical evidence for not describing the scientific process that would justify the conclusion that PW2 was sodomised. Ms. Ngotea submitted in reply that penetration was proved and identification of the perpetrator is a non-issue because the appellant did not dispute that the two were acquaintances. The appellant has raised trivialities, in our view. Considering the fact that the appellant has himself alluded to the fight, for instance, it is strange to pick issue of where the fight was done. Also, we consider the unchallenged evidence of PW1 that the appellant's father examined the boy's anus and confirmed that he had been sodomized and that the appellant's mother broke and cried upon getting to know the kind of trouble his son had invited into himself. It does not speak well of the appellant's story that he did not wish to call his parents to contradict PW1 on this, but ironically at the High Court, he blamed the prosecution for not summoning those parents to support their case. He raised this complaint as the sixth ground of appeal. That the defence case was not considered, is an issue that has been raised, in our view, more as a something increasingly becoming a fashion than substantial, because looking at the judgment of the High Court, the learned High Court Judge provided an answer to this complaint. He stated, and we respectfully agree, that

''Having closely exam ined the evidence o f the tria l court particularly the evidence o f DW1 (appellant), this court is satisfied that despite the tria l court's failure to consider the appellant's defence, such defence was sim ply a denial o f him participating in the alleged offence". In our view the charge was sufficiently proved against the appellant beyond reasonable doubt. For those reasons, we dismiss the appeal. DATED at ARUSHA this 5th day of December, 2024. G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL Judgment delivered this 5th day of December 2024 in the presence of the Appellant in person- unrepresented and Ms. Chang'a Thobiesta learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL