Charles Nziva vs Republic (Criminal Appeal No. 12 of 2022) [2024] TZCA 1167 (28 November 2024)

THE COURT OF APPEAL OF TANZANIA AT IRINGA fCORAM; MKUYE, 3.A., MGEYEKWA, 3. A. And NGWEMBE, J.A.^ CRIMINAL APPEAL NO. 12 OF 2022 CHARLES NZIVA ........... ........ ............ ........... ............. APPELLANT VERSUS THE REPUBLIC .... ..... ............. .... ........ RESPONDENT [Appeal from the decision of the High Court of Tanzania at Iringa] (Matogolo, 3.) dated 3rd day of November, 2021 in Criminal Appeal No. 24 of 2021 JUDGMENT OF THE COURT 28th November, & 2n d December, 2024 NGWEMBE, J.A.: The charge of rape contrary to section 130 (1), (2) (e) and 131 (1) of the Penal Code was preferred against the appellant, Charles Nziva. The particulars of the charge indicates that the victim of rape whose name is withheld due to her age of 15 years old, was alleged to have been raped by the appellant on 26th July, 2019 at Ihanga Village within Mufindi District in Iringa Region,

When the appellant was arraigned in court and the charge was read over and explained to him, he pleaded not guilty, hence the prosecution lined up three (3) witnesses who are the victim (PW1), Sarah Msolwa (PW2) and Dr. Emmanuel Faustine (PW3). After being found to have a case to answer, the appellant defended himself. At the end of trial, the appellant was found guilty, convicted and punished to the statutory sentence of thirty (30) years imprisonment. Being dissatisfied with the conviction and sentence, he unsuccessfully appealed to the High Court, which upheld the trial court's verdict. The appellant remained aggrieved, hence this appeal grounded with 5 grievances lodged on 23r d February, 2022 and supplementary memorandum of appeal lodged on the hearing date of 28th November, 2024 comprising 6 grounds, forming an aggregate of 11 grounds of appeal. However, for the reasons to be disclosed later on, ground 5 of the supplementary memorandum of appeal is considered to carry a summary of all grounds of appeal. The ground is related to variances between the charge sheet and the prosecution evidence.

When the appeal was placed before us for hearing, the appellant appeared in person unrepresented and the respondent Republic was represented by Ms. Twide Mangula, learned Senior State Attorney. The Court invited the appellant to elaborate his grounds of appeal, but he did not, Instead, he opted to make a rejoinder after the learned Senior State Attorney had responded to his complaints. At the outset, the learned Senior State Attorney supported the appeal wholly, submitting that there was a fundamental variance between the contents of the charge sheet and the prosecution evidence in respect to the crucial elements of rape. She pointed out that, the statutory rape had certain ingredients which must be established and proved by unshakable evidence. She mentioned those ingredients which are: first, penetration of a male reproductive organ (penis) to the female reproductive organ (vagina), however slight may constitute rape; second, age of the victim; and third, reliability of the evidence against the accused person. Submitting in respect to the instant appeal, she pointed out that, the charge categorically mentioned the age of the victim at the time of the incidence was 15 years old, however, none of the prosecution witness ever testified on the victim's age. Even in her particulars, she alleged to be 14

years old contrary to the age provided for in the charge sheet. Therefore, she submitted that, the age of the victim was not established and proved. As such, the prosecution had a chance, during trial, to amend the charge sheet to reflect the available evidences, but that option was not preferred. For the above reasons, Ms. Mangula, concluded that, since the charge was not proved to the required standard, it followed that the prosecution case was not proved. Hence, she implored the Court to find the appeal merited. Upon being invited to rejoin, the appellant supported the submission by the learned Senior State Attorney and prayed the Court to find him not liable to the offence of rape. Mindful of the fact that the appeal before us is a second appeal, we are cognizant of the settled law guiding the second appeals like this. The rule is that the Court will not interfere with the concurrent findings of facts reached by the lower courts unless the courts below have misapprehended the substance, nature and quality of such evidence or based their findings on a wrong principle. That as the result of such misapprehension or misdirection, the appellant was prejudiced or unfairly convicted. See: Director of Public Prosecutions v. Jaffari Mfaume Kawawa, [1981]

T.L.R 149; Mussa Mwaikunda v. The Republic, [2006] TLR 387. We will be guided by the principle in the course of determining this appeal. After careful consideration of the arguments advanced by the learned Senior State Attorney, and upon thorough review of the proceedings of the trial court and that of the first appellate court, we agree with Ms. Mangula that the age of the victim was not established and proved by evidence. The particulars of the charge sheet indicate that the victim was 15 years old, while in her personal particulars prior to her testimony alleged to be 14 years old, a house girl living at Igowole village. She was employed by Sarah Msolwa @ mama Sarah (PW2). However, neither the victim nor PW2 nor any other prosecution witness testified on the age of the victim. Therefore, it remained that the age of the victim was not disclosed to the trial court. We are alive that the age of the child victim may be established by either one of the two parents, birth certificate, affidavit, medical report, sometimes the court may accept clinic card (if any), even school register book indicating a year of birth of the child victim and any other reliable documentary proof of age of the child victim. The court may even consider the level of education she was attending on the incidence of rape,

specifically if she was in a nursery school or lower primary school like standard one to standard four, may indicatively provide probable age of the victim by inference. In developing the legal requirement of proof of age of the child victim this Court deeply considered in the case of Issaya Renatus v„ Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016). As a general principle, parents who gave birth to the victim may prove when she was born, or close relative of the victim who had knowledge of her age may prove the age of the victim. In the case of Issaya Renatus v. Republic (supra), the Court considered thoroughly on the victim's age who was a standard II pupil and the trial court conducted voire dire as a direct proof that the victim was a child of tender age, which by no means, was below eighteen years. In respect to the instant appeal, the victim was a house girl who had neither documentary evidence nor any concrete date or month or year when she was born. Being employed as a house maid, presumably she was eighteen years or above, otherwise the employement would be contrary to both the Law of the Child and The Employment and Labour Relations Act, which prohibit child labour save for the exceptional circumstances provided therein, which is not the case in this appeal.

It has been repeated by this Court that in statutory rape, age is one of the crucial ingredients to be established and proved. In this appeal the prosecution, did not dare to call material witness on that crucial point of fact. Neither parent nor herself nor anyone else from the prosecution side, established and proved the age of the victim, thus contradicted the mandatory provision of the charging section 130 (2) (e) of the Penal Code Cap 16 R.E. 2022, which creates the offence as quoted hereunder: "A male person commits the offence o f rape if he has sexual intercourse with a girl or a woman under circumstances falling under any o f the following descript/'ons- (e) with or without her consent when she is under eighteen years o f age, unless the woman is his wife who is 15 or more years o f age and is not separate from the man/' The above provision provides mandatory requirement to prove age of the victim. The provision has received thorough consideration of the Court in the cases of Wiston Obeid v. Republic, (Criminal Appeal No 23 of 2016) [2017] TZCA 297 (7 December 2017), and Solomon Mazara v. Republic, Criminal Appeal No. 136 of 2012 (unreported). The Court in the latter case held that:

"The cited provision o f the law makes it mandatory that before a conviction is grounded in terms of section 130 (2) (e), there must be tangible proof that the age o f the victim is under eighteen years at the time o f the commission o f the alleged offence In fact, failure to establish and proof the age of the victim in statutory rape is fatal as we so elaborated in the case of Alex s/o Ndendya v. Republic, (Criminal Appeal No. 340 of 2017) [2020] TZCA 201 (6 May 2020) that: "Age is o f utmost importance and in a situation where the appellant was charged with statutory rape then age o f the victim must specifically be proved before convicting the appellant." Since the prosecution failed to establish all ingredients constituting the offence of rape, like the age of the victim, we accordingly agree with the learned Senior State Attorney that the failure weakened the prosecution case. In view of the aforesaid, we agree with the learned Senior State Attoney that the appeal is merited and we proceed to quash the conviction and set aside the concurrent sentence of the two courts below. As such we

order the appellant be released from custody forthwith unless otherwise lawfully held. DATED at IRINGA this 2n d day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 2n d day of December, 2024 in presence of the Appellant in person and Mr. Herbet Ishengoma, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.