Laison Gambi vs Republic (Criminal Appeal No. 599 of 2021) [2024] TZCA 1047 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: KEREFU. 3.A., KIHWELO, 3.A. And MPEMU, J.A.^ CRIMINAL APPEAL NO. 599 OF 2021 LAISON GAMBI.., ....... ........ ............ ..... APPELLANT VERSUS TH E REPUBLIC ..... ......... .... ....... ..... .......... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Sumbawanga) (Ndunauru. 3 * 1 dated the 4th day of October/ 2021 in DC Criminal Appeal No. 32 of 2021 JUDGMENT OF THE COURT 1st & 5th November, 2024 KEREFU, J.A.: LAISON GAMBI, the appellant herein, is currently serving a term of thirty (30) years' imprisonment following his conviction by the District Court of Sumbawanga at Sumbawanga of the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16 (the Penal Code). It was alleged that, on 30th July, 2019 at Bible -Kizwite area within Sumbawanga Municipality and Rukwa Region, the appellant had carnal knowledge of a girl child aged ten (10) years. The appellant denied the charge laid against him and therefore, the case had to proceed to a full trial. The prosecution case was built on

evidence adduced by seven (7) witnesses augmented by two (2) documentary evidence namely, the appellant's cautioned statement (exhibit PI) and the Police Form No. 3 (exhibit P2). On his side, the appellant testified alone, as he did not summon any witness. Briefly, the prosecution case as obtained from the record of appeal indicates that, on 30th July, 2019, in the evening, while the parents of the victim, who testified as PW1 (name withheld) were not at home, PW1 was playing with other children behind their house. A moment later, the appellant, their neighbour, appeared and called PW1 into his house. It was PWl's testimony that, she heeded to the call. Thus, the appellant welcomed her inside his room, which she initially rejected, but the appellant pulled her into his bedroom, lied her on the bed, undressed her underpants and proceeded to insert his male member into her vagina. PW1 stated further that, she felt pain and cried. However, and after the awful incident, the appellant gave her TZS 500.00 and warned her not to reveal the ordeal to anyone. PW1 went home and, in the next morning, she revealed the ordeal to his brother one Gabriel Mpambe (PW2). In his testimony, PW2 supported the narration by PW1 and confirmed that, on 2n d August, 2019 at around 20:00 hours, while at

home, he noted that, her sister, PW1 was sickly looking. He inquired from her what had happened and PW1 told him that, the appellant, their neighbour, raped her. Thereafter, and when his father, Paschal Mpambe (PW3) came back home, PW2 revealed the said information to him. Following that revelation, PW3 reported the matter to Andrea Cheka (PW4), the Street Chairperson and thereafter, to Sumbawanga Police Station, Subsequently, PW1 was taken to Sumbawanga Regional Hospital, after they had obtained a PF3, but she could not be attended, as it was already midnight. In the following day, 3r d August, 2019, PW1 was examined by Dr. Yasinta Sindani (PW6), who found bruises in PWl's vagina an indication that it had been penetrated by a blunt object. PW6 recorded her findings in the PF3 (exhibit P2). In his testimony, PW4 confirmed that, on 2n d August, 2019 at around 23:00 hours, while at home preparing to sleep, six people including, PW1, PW2 and PW3 came to his house and informed him that PW1 was raped by the appellant. PW4 stated that, he referred the said people to police. PW4 added that, upon being released on police bail, the appellant requested him to help him to seek forgiveness from the victim's parents, but PW4 rejected.

It was also the testimony of Elias Sokoni (PW7), the neighbour of the appellant that, sometimes, in August, 2019, the appellant asked for his company to escort him to the victim's father to tender his apology and ask for forgiveness. PW7 escorted the appellant and, while at the victim's father, the appellant asked for an apology. The record indicates what he exactly said in Kiswahili, thus, "Mnisamehe ni shetani amenidanganya." Literary translated in English to mean, "Please forgive me, I was deceived by the devii " It was PW7's testimony that, PW3 declined to accept the appellant's apology, as he claimed that the matter had already been reported to the police. No. H.8070 D/C Masanja (PW5), the investigation officer testified that, he was assigned to interrogate the appellant and recorded his cautioned statement (exhibit PI). PW5 stated further that, during the said interview, the appellant admitted to have committed the alleged offence. In his defence, the appellant, who testified as DW1, dissociated himself from the accusations levelled against him by raising a defence of alibi. He testified that, in May, 2019, he was taking care of his sick wife and later, he sent her to his grandparents at Mbozi, Mbeya for treatment. That, he came back home on 27th May, 2019 and, on 28th July, 2019, he went to Katuka Village to look for maize, as he was

dealing with maize business. That, on 1s t August, 2019, he went back home, but on his way, he slept at Chelenganya Village, and thus, reached home on 2n d August, 2019. While there, he met with the Vice Chairperson of the area who informed him that, he was needed at the office. He went to the said office but the Chairperson was not there. Thus, he went back home. A moment later, PW3 and the Vice Chairperson appeared, arrested him and took him to the police station where he was accused of having raped PW1 and remanded at the police custody. In the next day he was interrogated by PW5 and later on, arraigned before the trial court. In her testimony, Rehema Issa (DW2), recalled that, sometimes, on Friday, in 2019, while at home, Peter Chipemba, one of their area leaders, came and informed her that she was needed at the appellant's home. Upon reaching there, she was informed that the appellant was arrested by PW3 who was in a company of other people. After a full trial, the trial court accepted the version of the prosecution's case and specifically placed much reliance on the direct evidence by PW1, the victim, whose evidence was found to have been corroborated by the appellant's cautioned statement (exhibit PI). Thus, the appellant was found guilty, convicted and sentenced to thirty years imprisonment together with twelve strokes of the cane. In addition, the

appellant was also ordered to pay compensation to the victim at the tune of TZS 500,000.00. Aggrieved, the appellant unsuccessful appealed to the High Court, as the learned High Court Judge dismissed his appeal and upheld the decision of the trial court. Undaunted and still protesting his innocence, the appellant has approached this Court on a second appeal. In the memorandum of appeal, the appellant raised five grounds which can conveniently be paraphrased as follows: One, that the prosecution case was not proved beyond reasonable doubt as required by the law; two, the evidence of PW6 was tainted with contradictions thus, unreliable; three, that, the evidence of PW1 was taken contrary to the mandatory requirements of section 127 (2) of the Evidence Act, Cap. 6 (the Evidence Act); four, the defence evidence was not considered; and finally, failure by the learned High Court Judge to re-evaluate the evidence on record thus, arrived into an erroneous decision. At the hearing of the appeal, the appellant appeared in person whereas the respondent Republic was represented by Mr. John Mwesiga Kabengula, learned Senior State Attorney. When given an opportunity to amplify on his grounds of appeal, the appellant adopted the said grounds and preferred to let the learned Senior State Attorney respond first but, he reserved his right to rejoin, if

the need to do so would arise, We respected his choice and we thus, right away, invited Mr. Kabengula to respond to the grounds of appeal. In response, Mr. Kabengula, from the outset, declared the respondent's stance of opposing the appeal and intimated that he would argue the first and fifth grounds conjointly and the remaining grounds separately. We shall therefore determine the grounds of appeal, in the same manner as indicated by the learned Senior State Attorney. However, before doing so, it is crucial to state that, this being a second appeal, under normal circumstances, we would not interfere with concurrent findings of the lower courts if there were no mis-directions or non-directions on evidence. Where there are mis-directions or non directions on the evidence, the Court is entitled to interfere and look at the evidence with a view of making its own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149, Salum Mhando v. Republic [1993] T.L.R. 170 and Mussa Mwaikunda v. The Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. Starting with the appellant's complaint on the second ground concerning the evidence of PW6 and exhibit P2, although, Mr. Kabengula readily conceded that there are contradictions on when

exactly PWl, was examined by PW6, he contended that, the said contradictions are minor and do not go to the root of the matter. He clarified that, although in exhibit P2 it is indicated that, PWl was examined after eight days, but in her oral testimony, found at page 20 of the record of appeal, PW6 clearly stated that, she examined PWl on 3r d August, 2019 and exhibit P2 was dated and signed on the same date. The learned Senior State Attorney contended further that, the evidence of PW6 complained of, was not relied upon by the lower courts to determine the case against the appellant. The appellant's conviction and sentence were founded on the evidence of PWl together with the appellant's cautioned statement (exhibit PI), which was admitted in evidence without any objection from him. It was the argument of Mr. Kabengula that, in proving the offence of rape, the testimony of the doctor and even the PF3 are not the only evidence to be relied upon, as other evidence on the record can as well prove it. To support his proposition, he cited the case of Mawazo Anyandwife Mwaikwaja v. The Director of Public Prosecutions, Criminal Appeal No. 455 of 2017 [2020] TZCA 268. He then, he urged us to find that the second ground of appeal is without merit. Having considered the contradictions complained of, we do not, with respect, consider them to be material to the extent of affecting the

credibility and reliability of PW6 and exhibit P2. It is on record that, PW1, the best witness in this case, at page 10 of the record of appeal, clearly stated that, she was raped by the appellant on 30th July, 2019, but, she did not reveal the said incident to anyone, as the appellant warned her not to do so. However, PW1 revealed the same to PW2 on 2n d August, 2019 at night. It was the testimony of PW2 that, in the same night, he shared the said information to PW3, who reported the matter to PW4 and to the Police Station and took PW1 to the hospital. That, since it was already midnight, PW1 was attended by PW6 in the next morning, i.e 3r d August, 2019. As correctly argued by Mr. Kabengula, in her testimony found at page 20 of the record of appeal, PW6 stated that she examined PW1 on 3r d August, 2019 and recorded her findings in exhibit P2 on the same date. In the circumstances, we have no hesitation to agree with Mr. Kabengula that, the appellant's complaint on this ground has no merit as the pointed-out contradictions are minor and do not go to the root of the matter. We wish to emphasize that, in sexual offence cases, the testimony of the doctor is not the only evidence to prove the offence, other evidence on the record can as well prove it. This Court, has had occasions, previously, to deliberate on this matter - See for instance,

Rajabu Ponda v. Republic, Criminal Appeal No. 342 of 2017 [2019] TZCA 255, Edward Nzabuga v. Republic, Criminal Appeal No. 136 of 2008 (unreported). Specifically, in Edward Nzabuga (supra), the Court, having considered as to whether the expert's opinion or production of medical report (PF3) overrides oral evidence by witnesses who witnessed the incident, it stated that, the sexual offence can be proved orally without an expert opinion or oral evidence by experts i.e without a doctor who examined the victim testifying in court and/or tendering a PF3. Therefore, in the instant appeal, since, in convicting the appellant, the lower courts relied heavily on the evidence of PW1, and the appellant's cautioned statement, we find the second ground to have no merit. Responding to the third ground of appeal, Mr. Kabengula challenged the appellant's complaint regarding the evidence of PW1 by referring us to page 10 of the record of appeal where PW1 testified and argued that, PWl's evidence was properly recorded, as the trial court had complied with the provisions of section 127 (2) of the Evidence Act. That, the learned trial Magistrate, before recording and receiving the said evidence, he clearly indicated that PW1 promised to tell the truth to the court. He insisted that, the said provision does not require a voire dire test to be conducted to a child of tender age who is giving unsworn

evidence. He thus invited us to find the appellant's complaint unfounded. Having perused the record of appeal and considered the parties' submissions, we agree with the submission of Mr. Kabengula that, the appellant's complaint on this aspect is baseless and it is not supported by the record, it is undisputable fact that, at the time of giving his evidence, PW1 was a child aged ten (10) years and thus, a child of tender age in terms of section 127 (4) of the Evidence Act. It is also undisputable fact, and as correctly argued by Mr. Kabengula that, at page 10 of the record of appeal, PW1, before giving her evidence she promised to tell the truth to the court. As such, we find the appellant's complaint under the third ground unfounded. The appellant's complaint on the fourth ground hinges on the failure by the lower courts to consider his defence evidence. Responding to this ground, Mr. Kabengula was very brief and to the point that both lower courts considered the appellant's defence and rejected it on account of failure by the appellant to give prior notice of his defence. To clarify his argument, he referred us to pages 35, 36 and 68 of the record of appeal and urged us to dismiss the fourth ground for lack of merit

It is on record that, before the trial court, the appellant relied on the defence of alibi. It is, we think, important to note that matters of defence of alibi are regulated by section 194 (4), (5) and (6) of the CPA. The said provisions provide that: "194 (4) Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution notice o f his intention to rely on such defence before the hearing o f the case; (5) Where an accused person does not give notice o f his intention to rely on the defence o f alibi before the hearing o f the case, he shall furnish the prosecution with the particulars o f the alibi at any time before the case for the prosecution is dosed; and (6) I f the accused raises a defence of alibi without having first furnished the prosecution pursuant to this section, the court may in its discretionf accord no weight of any kind to the defence, "[Emphasis added]. This Court, in several occasions, has pronounced itself on the applicability of the above provisions. In the case of Charles Nanati v. Republic, Criminal Appeal No, 286 of 2017 [2020] TZCA 45, the Court, while relying on the case of Hamisi Bakari Labani v. Republic, Criminal Appeal No. 108 of 2012 (both unreported) it clearly summarized the scenarios to be taken into account by a person who wishes to rely on the defence of alibi, that:

"The law requires a person who intends to rely on the defence of alibi to give notice of that intention before the hearing o f the case (section 194 (4) o f the Criminal Procedure Act, Cap 20). If the said notice cannot be given at that early stage, the said person is under obligation , then , to furnish the prosecution with the particulars o f the alibi at any time before the prosecution doses its case, short of that the court may on its own discretion accord no weight to that defence. " [Emphasis added]. It is on record that, the appellant in the present case, opted to pursue the last scenario indicated under section 194 (6) of the GPA as he did not give notice on his defence of alibi neither before the hearing of the case nor before closure of the prosecution case. In the circumstances, we agree with Mr. Kabengula, that the trial court and the first appellate court properly exercised their discretion under section 194 (6) of the CPA. We have however given due consideration to the appellant's defence of alibi against the oral account by PW1 who testified that the appellant raped her on 30th July, 2019. We see no plausible reason as why the appellant, who was present before the trial court, did not raise his defence at the very outset before the hearing of the case. Neither do

we see any plausible reason why he did not raise the said defence at the hearing before the closure of prosecution case. Furthermore, it is on record that, in his defence, the appellant did not call any person(s) he alleged to have been with at the material time, i.e from 27th July,2019 to 2n d August, 2019 prior to his arrest. Worse still, DW2, who testified for the appellant, apart from stating that sometimes on, Friday, 2019, when she visited the appellant's home, she was informed that the appellant was arrested by PW3 and other people, she was completely silent on the appellant's defence of alibi. With respect, we find the appellant's complaint on this aspect to have no justification. In the case of Kubezya John v. Republic, Criminal Appeal No. 488 of 2015 [2019] TZCA 472, when we considered the same scenario, we associated ourselves with the decision of the Supreme Court of Uganda in Kibale v. Uganda [1999] 1 EA 148 where it was held: "A genuine alibi is, of course, expected to be revealed to the police investigating the case or to the prosecution before trial. Only when it is so done can the police or the prosecution have the opportunity to verify the alibi. An alibi set up for the first time at the trial o f the accused is more likely to be an afterthought than genuine one ."

It is therefore our considered view that, even in this appeal, the appellant's defence of alibi that just surfaced in his defence is, nothing but, an afterthought and, in our considered view, it was rightly rejected by the lower courts, On this basis, we equally find the appellant's complaint under the fourth ground with no merit. Responding to the first and fifth grounds, on the appellant's complaint that the prosecution case was not proved to the required standard, Mr. Kabengula contended that, the prosecution case was proved beyond reasonable doubt through the evidence of PW1, the best witness in this case, who clearly testified on how she was raped by the appellant. He stated further that, the evidence of PW1 was well corroborated by the evidence of PW2, PW3, PW4, PW5, PW6, PW7 together with the appellant's cautioned statement. Relying on the principle which is applicable in proving sexual offences, he argued that the evidence of PW1 was the best evidence which could have been relied upon by the trial court to mount the appellant's conviction even without any corroboration, as long as the court was satisfied that the witness was telling the truth. In that regard, and based on his submission, he insisted that the prosecution case was proved beyond reasonable doubt and urged us to dismiss the appeal in its entirety.

In his brief rejoinder, the appellant did not have much to say, other than reiterating the issues he raised in his grounds of appeal and urged us to allow the appeal and set him at liberty. Having carefully considered the submissions made by the parties and scanned the entire record of appeal, we agree with Mr. Kabengula that both courts below properly evaluated the evidence on record and were satisfied that the case against the appellant was proved beyond reasonable doubts. We have specifically revisited the testimonies of PW1 who clearly explained on how the incident occurred. PW1, in particular, at page 10 of the record of appeal, narrated on how the appellant pulled her into his bedroom and lied her on the bed. She also clearly demonstrated on how the appellant, undressed her and inserted his penis into her vagina and on how she felt pains and cried. As rightly submitted by Mr. Kabengula, in cases involving sexual offences the best evidence is that of the victim. The sole evidence of the victim can be safely relied upon by the court to sustain a conviction. See for instance the cases of Selemani Makumba v. Republic [2006] T.LR. 379 and Rashidi Abdallah Mtungwa v. Republic, Criminal Appeal No. 91 of 2011 (unreported), among others.

As intimated above, the testimony of PWl, the best evidence in this case, was ably corroborated by the testimonies of PW2, PW3, PW4, PW6 and PW7. Specifically, PW4 and PW7 testified on how the appellant sought their support to enable him to ask forgiveness to PW3 in relation to this offence. The evidence of PWl was also well corroborated by PW6 who medically examined her private parts and found bruises in her vagina. In addition, PW5 testified on how he managed to record the appellant's cautioned statement where he admitted to have committed the offence. In the said statement, the appellant clearly explained in detail on how he called PWl to his bed room, undressed her and inserted his penis into her vagina. As stated above, during the trial, the appellant did not challenge the admissibility of the said statement into evidence. In the event, we agree with the submission of Mr. Kabengula that, all these witnesses together with the appellant's statement, proved the prosecution case to the required standard. As such, we are satisfied that both lower courts adequately evaluated the evidence on record and arrived at a fair conclusion, In the circumstances, we also find the first and fifth grounds devoid of merit. In conclusion, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied that the

evidence taken as a whole established that the prosecution's case against the appellant was proved beyond reasonable doubt. Consequently, we find the appeal devoid of merit and hereby dismissed it in its entirety. DATED at SUMBAWANGA this 5th day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Republic/respondent; is hereby certified as a true copy of the original.