Masanja Hindi @ Kibada vs Republic (Criminal Appeal No. 664 of 2021) [2024] TZCA 1132 (14 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ( CORAM: MWANDAMBO. 3.A. RUMANYIKA. J.A. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 664 OF 2021 MASANJA HINDI @ KIBADA................ ...................................... APPELLANT VERSUS THE REPUBLIC .................. .........................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrates' Court of Shinyanga at Shinyanga) fSwallo. PRM-Ext. Jur.^ dated the 11th day of November, 2021 in Extended Criminal Appeal No. 10 of 2021 JUDGMENT OF THE COURT 29th October & 14th November, 2024 RUMANYIKA. J.A.: Before the District Court of Bariadi (the trial court), the appellant Masanja Hindi @ Kibada was convicted of unnatural offence and sentenced to serve thirty year's imprisonment. Aggrieved, he appealed against the decision before the High Court of Tanzania, Shinyanga where the matter was transferred to the Resident Magistrates' Court of

Shinyanga -Extended Jurisdiction. His first appeal was unsuccessful as the conviction was sustained but the sentence enhanced to life imprisonment. The Republic alleged that on 23 August 2019 at around 2:00 pm, the victim's mother who will be referred to as PW2, was home busy in the kitchen, while the victim (PW1) who is dumb was outside playing with a fellow child, Swahibu Hamis (PW3). It transpired to PW2 that the appellant had left with the victim. She went to the appellant's house and knocked the door where, surprisingly, the appellant went out armed with a machete followed by the victim. The appellant ran away to escape. After a physical examination of the victim, PW2 noticed that she was no longer in her underpants. She also noticed that she was penetrated into her sexual organ and sodomized, as some abnormal fluid oozed from her private parts and anal cavity. Questioned by PW2, the victim named the appellant as the one who had sexually abused her. PW2 informed the victim's father and the incident was reported to the hamlet chairman one Masalu Muislam (PW4) and to the police. The victim was issued with PF3 and sent to Nasa Health Center. Upon clinical examination, Eric Biya Felix (PW6) noticed some bruises in the victim's sexual organ although the hymen was intact. The anus was loose releasing uncontrolled faeces and fluid and the appellant was arrested and

charged accordingly. It is also alleged that on 2 August 2019, police officers led by D/CPL Enock (PW5) searched in the appellant's home and retrieved the victim's pair of sandals and skin tight. Thereafter, the appellant was arraigned in the trial court for the charged offences. Put to defence, the appellant distanced himself from the charged offence. He claimed that he was fixed because of the misunderstandings that he had with his Landlord. Upon trial, he was acquitted of the charge of rape but convicted of unnatural offence and sentenced. Dissatisfied by that decision, the appellant preferred this second appeal on five grounds which are paraphrased as follows: One, failure by the courts below to consider his defence, two, improper admission of PF3 (exhibit P3), three, improper admission of the victim's evidence, four, the victim's evidence was incredible, unreliable and untruthful, and five, proceedings of the trial court were vitiated by procedural irregularities. At the hearing, the appellant appeared in person, unrepresented, while Ms Ajuaye Bilishanga Zegeli, learned Principal State Attorney, joined forces with Ms. Immaculata Mapunda, learned Senior State Attorney and Mr. Leonard Kiwango, learned State Attorney representing the respondent Republic.

The appellant elected the Republic respond to the grounds of appeal first while reserving the right of rejoinder. While resisting the appeal, Ms. Mapunda chose to respond to the first four grounds of appeal in a reversal order while Ms. Zegeli undertook to argue the fifth ground. On the 4m ground, in which the appellant alleged that the prosecution case was framed up, Ms. Mapunda contended that PW1 was entitled to credence and to be believed. She implored us to discount the appellant's complaint for no reasons were given to put the PWl's credibility into questions as the two courts below believed her to be truthful. In relation to ground three, Ms. Mapunda challenged it for being misconceived. She contended that the complaint is inconsistent with the record as she referred us to page 9 of the record of appeal where the victim is recorded to have promised to tell the truth and her evidence admitted. To support her argument, she cited our decision in George Jonas Lesilwa V. R (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024; TanzLII) where, as it is in the present case, the Court held that the victim's evidence was legally admitted as the proceedings bore no defects.

Regarding ground two which relates to the alleged improper admission of the PF3 (exhibit P3), Ms. Mapunda asserted that, the complaint is not supported by the record and it has to be dismissed. She added that, by its finding at pages 69 and 70 of the record of appeal, the first appellate court found the exhibit to be inconsequential to the appellant's conviction on the first count. On the first ground of appeal that the appellant's defence was not considered, Ms. Mapunda readily agreed with him. To substantiate her concession, she referred us to page 52 of the record of appeal which showed that, the court merely narrated the appellant's defence evidence without analysing it in the context of the case. However, she urged us as a second appellate court to step into the shoes of the first appellate court and evaluate the evidence and see whether that defence could have affected the conviction. To bolster her position, she cited the Court's decision in Edgar Kayumba V. R (Criminal Appeal 498 of 2017) [2020] TZCA 156 (2 April 2020; TanzLII). Further, it was Ms. Mapunda's assertion that, when he was put to defence, the appellant dwelt on extraneous and irrelevant issues instead of going to the substance of the case against him.

For the 5th ground of appeal, concerning the alleged procedural irregularities resulting to unfair trial, Ms. Zegeli contended that, this complaint was too ambiguous to understand it. Guessing, she argued, the appellant might have meant to faulting the proceedings on the succession of the case between two trial resident magistrates; how the case changed the hands and the record did not show whether or not the appellant liked the trial to start all over again after the successor magistrate took over. Nevertheless, to show that all was in order, Ms. Zegeli referred us to page 19 of the record of appeal where it reads: "... The accused person [has] been inform ed [o f] the reasons fo r the transfer as p er section 214 (1) o f the CPA 20 R .E 2002..." Further, Ms. Zegeli contended that although the case succession seemed to have contravened section 214(1) of the Criminal Procedure Act (the CPA) the appellant did not raise the issue before nor was he prejudiced. Therefore, Ms. Mapunda urged the Court to hold that the case was properly transferred hence a proper succession of the trial in the circumstances of the case. In rejoinder, the appellant had nothing useful. He urged the Court to allow his appeal and set him free.

On our part, we shall discuss the grounds of appeal sequentially in ascending order as opposed to the order adopted by the learned counsel for the respondent Republic. Regarding ground one on the alleged non-consideration of the appellant's defence evidence, pon examining the record we agree with him that what appeared at pages 69-70 of the record is more of a narration of his evidence than its evaluation. In the circumstances, as a second appellate court, we find the omission curable as it did not occasion injustice. Moreover, the appellant's evidence appearing at pages 40-42 of the record that he was fixed due to misunderstandings between him and the landlord at the crime scene did not shake the prosecution case. We are holding so being guided by our decision in Edgar Kayumba (supra). On the second ground which concerns the validity of exhibit P3 (PF3) in the case, we are of the view that this point need not detain us because it is clear at page 33 of the record of appeal that exhibit P3 was properly admitted but did not form the basis of the impugned decision. Therefore, the complaint is inconsistent with the record. As such, it is also dismissed. As regards the third ground on the alleged illegality raising from improper admission of the victim's evidence, we find merit in this

complaint but that is not fatal. It only renders it to be unsworn evidence see- Charles Yona v. R (Criminal Appeal No. 79 of 2019 [2021] TZCA 339 (2 August 2021; TANZLII). Being unsworn evidence, it required corroboration in order to found a conviction. It is not disputed that at the date of the alleged incident and her testimony in 2019, the victim was still a child of tender age. Therefore, in terms of section 127 (2) of the Evidence Act, she ought to have testified under oath or promised to tell the truth, as the case may be. However, there is no indication on record to show that the mandatory requirement was met. If anything, we note at page 9 of the record of appeal that the victim's promise was only recorded out of the blue which is inconsequential. It reads: "s. 127(2) o f CPA c/w the w itness prom ised to fteff] nothing the [truth]". Confronted with a similar situation in Makenji Kamura v. R (Criminal Appeal 30 of 2018) [2021] TZCA 724 (3 December 2021; TanzLII), the Court held that, a mere remark by the trial magistrate that the child promised to tell the truth, is not by itself proof of the compliance with the said precondition. Therefore, the purported promise of the victim was irregular. However, there was the following corroborating evidence; one, by PW2, PW6 and in exhibit P3; two, by PW2 that she found the appellant and the victim together in the appellant's room while the victim was no longer in her underpants; three, on the instant physical examination by the medical 8

doctor the victim's private parts bore some abnormal fluids and the appellant fled suspiciously; and four, by PW2 and PW3 that the appellant was the last person to be seen with the victim before she was found to have been sexually abused. Therefore, the appellants defence that he was fixed did not cast any reasonable doubt on the prosecution's case in the circumstances of the case. There was strong evidence to found conviction as the charge was proved beyond reasonable that the victim was sodomized by the appellant. Therefore, ground three is dismissed. In view of our discussion in ground three of appeal, we find no merit in ground four and dismiss it. Last for our consideration is the fifth point of grievance, that there were procedural irregularities resulting to unfair trial hence vitiated proceedings, with respect to the case succession, as thought by Ms. Zegeli to be the appellant's intention. Our reading of page 19 of the record of appeal presupposed two situations; one, that the case was re-assigned to Nyangusu, RM following the transfer of Kamuntu, RM who presided it over before and two, since then, the appellant became aware of the case transfer and the reason thereof therefore and was not prejudiced by the said re-assignment of the case. As such, this complaint is an afterthought and thus dismissed.

In conclusion, we agree with the respondent Republic that the guilt of the appellant was proved beyond reasonable doubt. Accordingly, this appeal lacks merit. It is dismissed in its entirety. DATED at DAR ES SALAAM this 12th day of November, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 14th day of November, 2024 in the presence of Appellant in person- unrepresented and Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, via video link from High Court of Tanzania at Shinyanga, is hereby certified as a true copy of the original.