Mashaka Japhet Haonga vs Republic (Criminal Appeal No. 521 of 2021) [2024] TZCA 1178 (3 December 2024)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MWANPAMBO. J.A.. KAIRO, 3.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 521 OF 2021 MASHAKAJAPHET HAONGA ........................................................... APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Levira, J.^ dated the 28th day of August, 2018 in Criminal Appeal No. 117 of 2017 JUDGMENT OF THE COURT 26th November & 3rd December, 2024 ISSA, J.A,: The appellant, Mashaka Jafet Haonga appeared before the Resident Magistrate Court of Mbeya at Mbeya (the trial court) in Criminal Case No. 114 of 2015 facing two counts; rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code, Cap. 16 and abduction contrary to section 133 of the Penal Code. It was alleged that on 12th September, 2015 the appellant abducted a girl aged 16 years and on diverse dates of September, 2015 to November, 2015 he had sexual intercourse with that girl who testified as PW1.
In a nutshell, PW1 or the victim alluded to a brief courtship with the appellant who is their neighbour at Ikumbi village in Songwe District and she got hooked with him in June, 2015. On 12th September, 2015 the appellant invited PW1 to his house and the duo started sexual relationship. Next day, the duo eloped and started a tour of several places in the region. They visited Mbalizi, Mbozi and Chunya where they enjoyed their intimate relationship. They were finally arrested on 18th November, 2015 at Mbozi and taken to Songwe Police Station. Willy Mlenjela Mwajila (PW2), the father of PW1 was frustrated with what happened to his daughter, hence, he reported her disappearance at Songwe Police Station. Despite reporting the incident, he proceeded with his own search and he traced PW1 at Msanyila village in Igambe ward in Mbozi District. With the assistance of Baraka Said Mkindi (PW3) of Songwe police the duo were arrested and the legal processes were set in motion. The last witness to testify was E 6578 D/Cpl. Rashid of Songwe police who investigated the case. The appellant in his defence denied the charge, but admitted that he was planning to marry PW1, hence, they were together for the whole period of three months and they were having sexual intercourse once a day.
The trial court made a finding that, PW1 was 16 years when she was abducted from her parents and that the appellant had carnal knowledge of her. On the strength of the evidence of PW1, the trial court was satisfied that the prosecution proved its case beyond reasonable doubt. It convicted the appellant on both counts and sentenced him to imprisonment for a term of 30 years for the first count and 5 years for the second count. The sentences were ordered to run concurrently. The appellant was further ordered to compensate the victim at the tune of TZS. 500,000.00. Aggrieved with that decision, the appellant instituted Criminal Appeal No. 117 of 2017 at the High Court of Tanzania at Mbeya (the first appellate court) which confirmed the findings of the trial court on the first count, but acquitted the appellant on the second count. This is the second appeal predicated on the following three grounds of appeal:
- That the first appellate court erred in law when dismissed the appellants appeal without evaluating petition o f appeal filed by the appellant.
- That the first appellate court erred in point o f law when dismissed the appellant's appeal without taking into consideration section 134 o f the Penal Code, Cap. 16 RE2002 Now RE 2022 as follows:
a) In her testimony PW1 never told the appellant if she is schooling. b) No evidence from school tendered to prove she is schooling. c) In her testimony PW1 consented herself to be married by the appellant as she is above fifteen (15) years as per section 130(2) o f the Penal Code. d) Not revealed to the appellant that he is sued because PW1 was a school girl. e) Section 133 o f the Pena! Code is a wrong provision in charging the appellant since the section applies only if the woman or girl is detained against her will, but PW1 was willing to live with the appellant as his wife. 3. That the first appellate court erred in law when dismissed the appellant's appeal without regarding the defence of the appellant since no male person asks a matured women for a certificate o f birth in order to marry her. When the appeal was called on for hearing, the appellant appeared in person and had very little to say in support of those grounds, other than asking for our consideration of those grounds and allowing the appeal. The respondent Republic had the services of Ms. Naomi Mollel; learned Senior State Attorney. Ms. Mollel submitted with respect to the first ground of appeal that, the appellant lodged before the first appellate court a memorandum of
appeal containing nine grounds which were all discussed from page 49 to 53 of the record of appeal. The first appellate court made a finding that there was no evidence to support the charge of abduction, but the charge of rape was proved to the hilt. She added that, the ingredients of the charge of rape in section 130 are two: proof of age and penetration which were all proved. She buttressed the point by citing the Court's decision in Nimo Samu v. The DPP [2021] TZCA 674, TANZLII). Regarding the age of PW1, she submitted that it was proved by PW1 herself and confirmed by PW2. She insisted that they were the right persons to prove the age of the victim. In addition, she submitted that the appellant corroborated what was said by PW1 on page 18 of the record of appeal. She concluded that good evidence is that of a suspect who admitted committing the offence. Next, Ms. Mollel submitted that under section 130 of the Penal Code, consent of the victim is not a requirement, but in case it is proved that the girl who is above 15 years but below 18 years was married to the accused the offence would not be rape. In the case at hand, she submitted, the appellant was not married to PW1. PW2 confirmed on page 9 of the record that no dowry was paid for PW1 and no consent to marriage was given by
PW2. She concluded that the appellant misdirected himself as all the grounds of appeal were discussed by the first appellate court. Glancing at the petition of appeal appearing at page 33 of the record, the appellant had advanced nine grounds of appeal to challenge the decision of the trial court. These grounds were divided into two areas: first, there are those alleging that the case was not proved beyond reasonable doubt as PW1, PW3 and PW4's evidence was not corroborated, the birth certificate was not tendered in evidence to prove the age of PW1 and the head master of the school was not summoned to testify that PW1 was a student. Second, the appellant was faulting the trial court for not indicating the sentence in the judgment, not mentioning section 235 (1) of Criminal Procedure Act, Cap. 20 (the CPA) when convicting the appellant and relying on the weakness of the defence in convicting the appellant. Perusing the judgment of the first appellate court, it is clear that the learned judge discussed all grounds of appeal. We will demonstrate: one, on the issue of corroboration of PWl's testimony the first appellate court made a finding that, in sexual offences there is no requirement for corroboration. On our part, we still hold that the true evidence of rape should come from the victim as laid down in Selemani Makumba v. The Republic [2006] T.L.R. 379 and Godi Kasenegali v. The Republic,
[2010] T7CA 5, TANZLII. However, the conviction should be preceded by assessment of the evidence to determine the credibility of the victim's evidence when compared to the evidence of other witnesses including the appellant and other circumstances of the case. In the instant appeal, PW1 was found to be a credible witness by the two lower courts and the appellant admitted to have committed the offence. Therefore, we have no reason to fault their findings. Two, the issue of age was discussed by the first appellate court and was right to make a finding that the age of PW1 was established by PW1 herself as well as her father (PW2). Further, these facts were not challenged in cross-examination or in evidence by the defence. The law is settled on how to prove the age of the victim as the parent, guardian, doctor or victim can testify on the age of the victim. See - Issaya Renatus v. The Republic [2016] TZCA 218, TANZLII and Rutoyo Richard v. The Republic [2020] TZCA 296, TANZLII. We are, therefore, satisfied that her age was sufficiently established by PW1 and PW2. Three, with respect to the testimony of PW3, the arresting officer and PW4, the investigator who recorded the cautioned statement, the appellant was lamenting that their testimonies were not corroborated. Fortunately, the first appellate court addressed this issue. The fact that the appellant was
arrested by PW3 was corroborated by PW2 who was present during arrest. On the issue of the cautioned statement being not corroborated, the first appellate court addressed it and was of the view that, since the appellant did not object to its admission, there was no compelling reason for the trial court to look for corroboration. It termed the complaint an afterthought. We agree with the first appellate court that, the complaint was an afterthought as the appellant did not raise any objection with respect to the caution statement. In fact, he admitted having carnal knowledge of PW1. Now, he cannot come forward and demand corroboration. Four, the issue of calling a headmaster to prove that PW1 was a student is a misconception as it was not relevant to the charge. The appellant was charged for rape and abduction and the issue whether PW1 was a student or not was immaterial and it would have been frivolous to call the headmaster. Fifth, the appellant argued that the case for the prosecution was not proved beyond reasonable doubt. The first appellate court addressed this argument and found it to be true with respect to the charge of abduction in which the appellant was acquitted. With respect to the charge of rape the first appellate court observed: "Lastly, the appellant faulted the decision o f the trial court in the pretext that the charges were not
proved to the required standard. Following the circumstances underlying the case under discussion I am o f the considered opinion that the charge o f rape was proved within the parameters set by the law. I intend to hold so because apart from the evidence o f the victim herself, the appellant on the other hand admitted to the same extent that he had sexual affairs with her. I also believe that the evidence o f the victim (PW1) and PW2 sufficiently established that the victim was o f sixteen years o f age and thus the appellant committed a statutory rape." We agree with the first appellate court that, the appellant was charged under Section 130 (1) (2) (e) of the Penal Code which creates an offence of statutory rape. What is required to be proved are two facts: One, that the accused had sexual intercourse with a girl, with or without her consent. Two, that the girl is under 18 years of age and that, if she is 15 or more years of age, it must be shown that she is not his wife. In this appeal, the victim herself and the victim's father, PW2 testified on the victim's age which was 16 years and that her date of birth was 13th April, 1999. These facts were not challenged in cross-examination or in
evidence by the defence. We are, therefore, satisfied that her age was sufficiently established. With respect to the second ingredient which is penetration, the victim narrated how she was carnally known by the appellant in all places they visited from September, 2017 to November, 2017. Therefore, gauging from the evidence of PW1 and PW2, together with the cautioned statement, exhibit PI there is no doubt that the offence of rape was committed against the victim as the elements of age and penetration were proved. On the issue of PW1 being above 15 and that the appellant planned to marry her, this does not absolve his liability despite the good intention. It was proved that PW1 was not his wife when he had carnal knowledge of her, hence his intention to marry her is immaterial in convicting him for rape. Lastly, the appellant faulted the trial magistrate for not indicating the sentence in the judgment, by not mentioning section 235 (1) of the CPA when convicting the appellant and relying on the weakness of the defence in convicting the appellant. All these issues were addressed by the first appellate court. The first issue was misconceived as the judgment of the trial court contained sentences for both counts. With respect to section 235 (1) of the CPA, we agree with the first appellate court that the provision has no legal implication and therefore incapable of vitiating the conviction. 10
Lastly, on the issue of reliance of defence case in convicting the appellant, it was obvious that the appellant admitted that he had sexual intercourse with PW1 several times and in a way he has advanced the prosecution case. In David Gamata and Another v. The Republic, [2015] 77CA 362, TANZLII the Court stated: "We take it to be one o f the settled principles o f law that if an accused person in the course o f his defence gives evidence which carries the prosecution case further, the court will be entitled to take account such evidence o f the accused in deciding on the question o f his guilty . " Therefore, the first appellate court correctly applied the law and discussed all grounds of appeal raised by the appellant. We find this ground of appeal meritless and we dismiss it. In the second ground of appeal, the appellant raised several issues which Ms. Mollel argued that they were misconceived. She submitted that the issues whether PW1 was a student or not or whether she was attending school or not were irrelevant to the charge of rape in which the appellant was convicted and sentenced. On the charge of abduction, she admitted that the charge was not proved and hence, the first appellate court was right in
acquitting the appellant. We agree with Ms. Mollel that, the second ground was misconceived and hence irrelevant to the charge of rape. We dismiss it. On the third ground of appeal, Ms. Mollel argued that it was a new ground and we should not consider it as it was not brought before the first appellate court. Finally, she prayed for the appeal to be dismissed. In a brief rejoinder, the appellant submitted that the victim was a matured woman who willingly went to his house and after making love she never complained. He implored the Court to set him free. Upon our perusal of the memorandum of appeal, we are satisfied that this ground is new and was 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 such ground 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. In the latter case, the Court stated: "... those three grounds are new. As often stated, where such is the case, unless the new ground is based on a point o f iaw, the Court will not determine such grounds for lack o fjurisdiction."
In the instant appeal, the point raised is one of fact and not of law, hence we would have refrained from entertaining that ground as the second appellate court rarely interfere with the concurrent finding of facts by the trial and the first appellate court. In those rare occasions where the second appellate court, may interfere, it must be shown that there has been a misapprehension of the evidence occassioning a miscarriage of justice or violation of some principles of law or procedures by the courts below. See - Edwin Isdori v. SMZ [2004] T. L. R. 297, Mussa Mwaikunda v. The Republic [2006] T. L. R. 387 and Joseph Safari Massay v. The Republic [2013] TZCA 326, TANZLII. The issue of non-consideration of the defence case is in our view a misapprehension of evidence and entitles the Court to intervene to put matters in their proper perspective (see - Julius Josephat (supra)). In that endeavour, we have looked at the judgment of the trial court and the first appellate court featuring on page 26 and 43 of the record of appeal and our finding is that the trial court considered the defence case on page 29 and 30 of the record. Although the issue was not raised as a ground of appeal before the first appellate court, yet the court considered it on page 51 of the record of appeal. Therefore, this ground lacks merit, leave alone the fact that it was not raised before the first appellate court. It is accordingly dismissed.
In our conclusion, 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. DATED at MBEYA this 3rd 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 3rd day of December, 2024 in the presence of the Appellant in person and Ms. Atuganile Job Kaponda, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. D. RT LYIMO DEPUTY REGISTRAR COURT OF APPEAL