Prosper Massawe vs Republic (Criminal Appeal No. 385 of 2022) [2024] TZCA 1165 (25 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA. J.A.. KITU SI. J.A. And MASHAKA. J.A/1 CRIMINAL APPEAL NO. 385 OF 2022 PROSPER MASSAWE................................................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Arusha, at Arusha) (Massam, SRM, Extended Jurisdiction^ dated the 16th day of August, 2022 in Extended Jurisdiction in Criminal Appeal No. 99 of 2021 JUDGMENT OF THE COURT 25th November & 2n d December, 2024 KITUSL J.A.: The appellant Prosper Massawe stood before the Resident Magistrate's Court of Arusha to answer a charge of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, allegedly for having had carnal knowledge of a girl aged seven (7) years, sometimes in July, 2020. Despite the appellant's defence that the allegations were mere wicked scheme by the victim's aunt to punish him for intending to marry a woman other than the said aunt's relative, he was convicted on the strength of the evidence led by the prosecution and sentenced to 30 years imprisonment. He unsuccessfully appealed to the High Court, the two courts below taking l

the view that the evidence of the victim was properly received and that she was also credible. He has preferred this second appeal which proceeded on mainly two grounds, to wit; that the trial and first appellate court erred in relying on the evidence of a witness of tender age which was recorded contrary to the law and; that the two courts below erred in convicting him and upholding that conviction on appeal while the prosecution did not prove the case beyond reasonable doubt. Mr. Sylvester Kahunduka, learned advocate, argued the appeal on behalf of the appellant, his main line being noncompliance with section 127(2) of the Evidence Act, (EA). It is, of course common ground, that a witness of below the age of 14 years may testify on oath or affirmation or without such oath or affirmation but must promise to tell the truth and not lies. Mr. Kahunduka's argument in relation to this point is that the proceedings are silent as to the basis of the trial court's finding whether the victim understood the meaning of oath or not before she was made to promise to tell the truth. The learned counsel relied on our decision in John Mkorongo James v. Republic, Criminal Appeal No. 498 of 2020 [2022] TZCA 111 (11th March, 2022; TanzLII) and maintained that the provisions of section 127 (2) of TEA were violated, rendering the evidence of the victim to have been improperly recorded.

The learned counsel argued in the alternative to the first ground of appeal, that even if it is assumed that the evidence was properly recorded, it would not found a conviction, citing three instances to support this argument. The first is PW3's inability to state how she managed to identify the appellant in the course of him ravishing her in unfavourable circumstances at night. The second instance is the variance in the evidence and charge regarding where the alleged rape was committed. Was it at Engosheratoni area as cited in the charge sheet or at Uswahilini area as testified to by PW2, the victim's aunt? The third is that the defence case was not considered. Ms. Lilian Mmassi, learned Senior State Attorney who teamed up with Ms. Penina Ngotea, also learned Senior State Attorney submitted in opposition to the arguments raised by Mr. Kahunduka. She submitted that section 127 (2) of TEA was complied with because not only PW3 promised to tell the truth during direct examination but she firmed up her promise when cross examined by the appellant. The learned Senior State Attorney brought to our attention the decision of this Court in Abdul Akwilini Mramba & Another v. Republic (Criminal Appeal No. 342 of 2021) [2024] TZCA 704 (9th August, 2024, TANZLII), which is in support of her argument on compliance with section 127 (2) of TEA.

The first ground of appeal represents the appellant's trump card, in our view, and we must deal with it instantly. Tricky as it is, assessment of a child's competence to testify is not cast on stone but depends on the circumstances of each case. Here we wish to re-articulate what we stated in George Jonas Lesilwa v. Republic, (Criminal Appeal No. 374 of 2020) [2024] TZCA 269(16th April, 2024 Tanzlii):- "...it must be dear that\ the evidence of a child o f tender age should not be discarded on flimsy reasons without proof on a balance of probabilities that there was something lacking that really affected the quality and credibility o f such evidence. In other words, an appellate court should look at the substance o f the complaint raised by the appellant and see whether the alleged non- compliance with section 127 (2) of the Evidence Act was o f such a nature as to be said\ in rational terms, to have produced a substantial defect upon such evidence". The case of Abdul Akwilini Mramba (supra) cited to us by the learned Senior State Attorney offers another guidance on the matter. In the instant case, we agree with Ms. Mmassi that the victim promised to tell the truth, and in our view, the argument that that promise was not preceded by an interview, is an unnecessary splitting of hairs or flimsy reasoning as stated in the above case. At page 13 of the record, before the victim PW3 gave evidence, this is what transpired: -

''.. Std II student at Meru Primary school... Who knows the meaning o f telling the truth is promising to tell the truth and tells the court that:..." We agree with Ms. Mmassi again that PW3's fear of God and resolve not to lie was repeated by her at page 14 of the record upon the appellant himself putting to her a question that suggested she might not be truthful. She said the following in response: 7 love God. I am telling the truth" We consider that statement to be a very candid promise to tell the truth and it would be impractical to expect that the trial magistrates in this jurisdiction would adopt an identical way of recording these preliminaries that are conducted before taking down the evidence of child witnesses standing before them. This is just about what we stated in the case of Elia Richard Shoo v. Republic (Criminal Appeal No. 196 of 2021) [2024] T7CA 422 (10th June, 2024 Tanzlii):- "On the same parity of reasoning ; the appellant's contention that PW l's promise was recorded in a reported speech is of no moment We should, in addition, state that we are cognizant that, as a matter of practice, trial courts invariably follow the same pattern before allowing witnesses to testify on oath or affirmation". (Emphasis ours). We think we have sufficiently demonstrated that the evidence of PW3 was recorded in compliance with section 127 (2) of TEA which makes the

first ground of appeal devoid of merit. It is our duty to add that this apparent confusion is now water under the bridge after the Legal Sector Laws (Miscellaneous Amendment) Act No 11 of 2023 amended the Evidence Act by introducing section 127 (7) which provides:- ''’ Notwithstanding any other law to the contrary, failure by the child o f tender age to meet the provisions of subsection (2) shall not render the evidence o f such child inadmissible" The first ground of appeal is dismissed for the reasons earlier discussed. As earlier intimated, Mr. Kahunduka had another arrow to his bow which he argued in the alternative to the first ground of appeal. This relates to the sufficiency of evidence alleging that the case was not proved against the appellant beyond reasonable doubt. The evidence constituting the prosecution case came from the victim (PW3), her aunt PW2 and Dr. Felix Mtei (PW4) who conducted the victim's medical examination. It is common ground that the appellant was an invitee in the house where PW2 and her husband lived with PW3 and their boy, younger than PW3. They had a modest place of dwelling with only one bedroom which was being used by PW2 and her husband, while the appellant sort of shared with PW3 and the younger boy, another room which was a makeshift bedroom and sitting room. The appellant was using

a sofa as a bed while the two children slept on a bed, separated only by a piece of cloth, improvised as a curtain. According to PW3, at night, the appellant used to tiptoe to where PW3 and the smaller boy were sleeping and have sex with her while the smaller boy was sound asleep. He allegedly did so twice before the transgression came to be known. PW2 testified on how the abuse came to be revealed to her by a neighbour who met PW3 in the streets crying and refusing to go home. When the woman and other people prevailed on her she opened up and told them of the invitee back home who was abusing her, a fact that was communicated to PW2. The matter was eventually reported to the police where a PF3 was issued and subsequently PW4 examined the girl's private parts. The medical doctor detected that the girl's hymen had been perforated which, coupled with a reddish vaginal wall which she observed during the examination, made her conclude that there had been penetration into that girl's vagina. That formed the background to the appellant's arrest and subsequent arraignment. Before us, not disputing the fact that PW3 had, in fact, been raped, Mr. Kahunduka raised issue with the visual identification of the perpetrator, at some point insinuating that some other man may have sneaked into that bedroom to ravish the girl. The second point attacking the evidence for the prosecution was that the trial court wrongly convicted the appellant in

oblivion of the variance between the charge which stated that the alleged rape took place at Engosheratoni area in Arusha, and the evidence which showed that PW2 and PW3 were living at Uswahilini street within Arusha. The last point was that the trial court did not consider the defence case. We shall begin with the issue of alleged failure to consider the defence. Ms. Mmassi submitted that, in considering the defence case, the two courts below were not quite meticulous about it, and we are inclined to agree with the learned Senior State Attorney. However, she invited us to proceed to evaluate the defence case, which invitation we accept because that has hitherto been the settled position where, as in this case, the findings of facts by the two courts below justify interference by this Court. See the case of Joseph Leonard Manyota v. Republic (Criminal Appeal No. 485 of 2017)[2017] TZCA 261(11™ August 2017 Tanzlii). What was there in the appellant's defence, anyway? He came up with a novel suggestion that he was a victim of a fabricated case, the reason being that he had proved adamant in marrying a woman other than the one proposed by PW2. This line of defence came as an afterthought which we must dismiss because the appellant never before suggested this fact to PW2 when she was in the witness box. If the appellant's defence was true, and we hold it was not, the appellant who is on record as having raised quite a few questions aimed at impeaching PW3, would not be tongue-tied

when it came to suggesting that PW2 had an illegitimate motive in prosecuting him. Fair hearing includes, in our view, one side making some indication of what the other side should expect from them. For those reasons, we agree that that the defence case was not considered, but on our consideration, it was not one that raised any reasonable doubt. As regards the alleged variance between the charge and evidence, Ms. Mmassi submitted that there was none. She pointed out that when the offence was allegedly committed, PW2 and her family were staying at Engosheratoni area, but at the time of testifying in court, PW2 and PW3 had moved to Uswahilini area. We agree with Ms. Mmassi that the perceived variance is not there, leave alone the fact that, that the appellant, who was living with PW2 and PW3 as an invitee, knows better, than make this allegation. Lastly, we shall consider the issue of visual identification of the man who, it is alleged, may have raped PW3 at night in the same bedroom where the appellant was also sleeping. Ms. Mmassi submitted that the appellant was a person well known to PW3 such that there was no possibility of a mistaken identity, and we agree with her because this fact is not being challenged. Moreover, and with respect, we consider the suggestion being made by Mr. Kahunduka that a man other than the appellant may have raped PW3, to be as improbable as it is fanciful. We

find no need to repeat the celebrated principle that if such fanciful possibilities were given room, they would thwart the criminal justice's noble intention of protecting the society. See Miller v. Minister of Pensions [1947]2 All ER 372, cited in Magendo Paul & Another v. Republic [1993] T.L.R 220. In the end and for the reasons discussed, we dismiss the appeal against the conviction. We now turn to consider the sentence. The appellant was sentenced to 30 years imprisonment. Wondering whether that was the appropriate sentence under the circumstances, we called upon both Ms. Mmassi and Mr. Kahunduka to address us on that aspect. They were unanimous that the sentence of 30 years was illegal as the appropriate sentence would be life imprisonment because the victim was under the age of 10 years. We agree with the learned defence and state counsel that the law provides a stiffer sentence to a person found guilty of committing rape against a victim whose age is below 10 years. It enacts as follows under section 131 (3) of the Penal Code: - "Subject to the provisions of subsection (2), a person who commits an offence of rape of a girl under the age o f ten years shall on conviction be sentenced to life imprisonment"

We note that the respondent Republic did not appeal against the illegal sentence of 30 years imposed by the trial court and upheld by the first appellate court, but as it is our duty to ensure that the laws are correctly administered, we have taken up the issue. Accordingly, under our revisional powers bestowed under section 4 (2) of the Appellate Jurisdiction Act, Cap 141, we step in, revise the sentence by quashing that of 30 years and substituting for it the sentence of life imprisonment. Save for the enhanced sentence, this appeal is dismissed in its entirety. DATED at ARUSHA this 29th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL The Judgment delivered this 2n d day of December 2024 in the presence of the Appellant in person represented by Mr. Sylivester Kahunduka, learned advocate and Mr. Donald Mahona, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.