Julius Ndeka vs Republic (Criminal Appeal No. 661 of 2021) [2024] TZCA 1033 (4 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: MWANDAMBO, J.A, RUMANYIKA, J.A. And KHAMIS. J.A.l CRIMINAL APPEAL NO. 661 OF 2021 JULIUS N D EKA ............................................................................... APPELLANT VERSUS THE REPUBLIC .......................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrates' Court of Shinyanga at Shinyanga) (Swallo, PRM. Ext. Jur.^ dated the 29th day of October, 2021 in Criminal Appeal No. 5 of 2021 JUDGMENT OF THE COURT 29th October &4th November 2024 MWANDAMBO, J.A.: The appellant Julius Ndeka was convicted and sentenced by the District Court of Maswa of the offence of rape. The prosecution alleged that, on 28 March 2020, at 22:00 hours, at Ndilizu street, Maswa Township within Maswa District, the appellant had carnal knowledge of a girl of 17 years whom we shall be referring to as MD or PW1 to hide her true identity to which he pleaded not guilty. His appeal before the High Court at Shinyanga transferred to and heard by the Resident Magistrate's Court (U. Swallo, PRM) exercising its appellate extended Jurisdiction vide Criminal Appeal No. 5 of 2021 was not successful. It was dismissed upon

the court concurring with the trial court in its finding of guilt that the charge of rape had been proved beyond reasonable doubt. The appellant is now before the Court on a second and final appeal challenging the concurrent findings of fact by both the trial and first appellate court as erroneous hence, wrongfully convicted and sentenced. The facts upon which the appellant was arraigned and ultimately convicted and sentenced are fairly simple. The appellant and the victim of the offence (PW1) happened to be living in a neighbourhood at a place called Mwafuguji village in Meatu District. On 28 March 2020, the appellant conveyed the victim and her sick father (PW2) on a motorcycle to Maswa Hospital for medical treatment. That motorcycle had been entrusted to the appellant at PW2's request by Bartazar Ngoko (PW4); the owner. At the hospital, PW2 was admitted but it became practically difficult for PW1 to stay on and take care of her sick father for the night. She had to leave and look for accommodation elsewhere. As any good Samaritan would do, the appellant rose up to the occasion to assist the young girl who was new to Maswa town. Afterwards, the appellant found a room at Ndege Guest house and left PW1 there along with the motorcycle. Moments later, at 22.00 hours, the appellant is said to have resurfaced asking PW1 to open the door so he could take the motorcycle

he had left in the room before going to the patient. Apparently, PW1 had already taken off her dress and slept remaining with her underpants. After PW1 had opened the door, the appellant is said to have asked for the victim to sleep with him to which she refused. However, PW1 could not persist longer, for the appellant managed to undress her undergarments and had sexual intercourse with her. According to PW1, that was the first time she had sex and so felt a lot of pains as the appellant inserted his manhood into her vagina before someone who happened to be G. 8479 DC. James (PW3) knocked at the door and rescued her. PW3 took some photographs and seized the motorcycle which was later on taken to a Police station. The appellant took to his heels. The following day, PW1 underwent a medical examination at Maswa District Hospital by Dr. Adorat Renatus Mpolo (PW6) who, among other things, observed a perforated hymen and some whitish fluid in her internal genitalia but could not conclude that she was raped. At the end of the prosecution case involving six witnesses, the trial court found the appellant with a case to answer before entering his defence which was largely a denial distancing himself from the accusations against him. Nevertheless, the trial court was satisfied that, the evidence by the prosecution proved the case against the appellant on

the required standard guided by the Court's decision in Selemani Makumba v. Republic [2006] T.L.R. 379 for the preposition that true evidence in sexual offences must come from the victim of the offence. The trial court found that PW l's evidence had sufficiently proved penetration which was an essential ingredient in the charged offence considering that the victim was below the age of 18 years in which consent was not required. It too satisfied itself that the culprit was no other than the appellant. The first appellate court concurred with the trial court on the findings of fact and dismissed the appeal predicated on nine grounds of appeal which raised a myriad of grievances. It is significant that all of the grievances boiled down to faulting the first appellate court for sustaining the conviction on weak evidence which did not prove the charge beyond reasonable doubt. The appellant preferred five grounds in his initial memorandum of appeal followed by two grounds in the supplementary memorandum lodged a few days before the date of hearing. Before us at the hearing of the appeal, the appellant appeared in person, unrepresented and opted to let the respondent Republic respond to his grounds before he could address us thereon. Mr. Anesius Kainunura, learned Senior State Attorney,

entered appearance accompanied by Ms. Caroline Mushi, learned Senior State Attorney and Mr. Goodluck Saguga, learned State Attorney representing the respondent Republic. It was Ms. Mushi who addressed the Court on behalf of the respondent's team resisting the appeal. We have found it convenient to begin with the 5th ground raising the complaint that the appellant's conviction was grounded on fabricated evidence. Ms. Mushi urged us to decline considering this ground because it never featured before the first appellate court and decided as such. Apparently, the appellant had nothing in response. All in all, we agree with Ms. Mushi mindful of the dictates of section 4 (1) of the Appellate Jurisdiction Act (the AJA) discussed in numerous decisions of the Court's decisions including; Matata Wekwe v. Republic [2018] TZCA 260 TANZLII that, unless it is based on a point of law, the Court has no jurisdiction to entertain a new ground not raised before the first appellate court and determined as such. We thus decline to entertain the 5th ground as urged by Ms. Mushi. Next for our consideration is the 1st ground in the supplementary memorandum of appeal. The complaint in this ground is against addition of a witness (PW6) who was not listed during the preliminary hearing and without prior leave of the court. Ms. Mushi invited the Court to dismiss it

for being misconceived. She anchored her submission on section 192 of the Criminal Procedure Act (the CPA) arguing that it does not prohibit the prosecution from adding witnesses to the list of witnesses already in court whenever it deems necessary. She reinforced her submission with the Court's decision in Leonard Joseph® Nyanda v Republic [2020] TZCA 51 TANZLII for the proposition that, the prosecution has no obligation to list witnesses during the preliminary hearing. In this case, she argued, PW6 was a medic who examined and posted his findings in a PF 3 and thus a material witness and readily appeared for cross- examination by the appellant in terms of section 240 (3) of the CPA. The appellant was adamant that PW6 was added without the court's leave and so his evidence was irregularly relied upon. Upon our examination of section 192 of the CPA and having regard to our decision in Leonard Joseph (supra), we do not find any merit in this ground. In the absence of any stipulation in the CPA on the requirement to list witnesses at the preliminary hearing before the subordinate courts. As we said in Leonard Joseph, that is only a practice for the better management of trials before the subordinate courts, and so, the appellant's complaint is totally misconceived. At any rate, we are surprised by the appellant's stance considering the provisions of section

240 (3) of the CPA on the requirement of a medical practitioner to appear for cross examination in respect of any medical report prepared and tendered in evidence in respect of any witness in a case. There is no dispute that PW1 was examined by PW6 and posted his findings in a PF3 tendered in evidence as exhibit PI. Admittedly, that document could have been tendered by any witness but the maker would have been required for cross- examination unless the appellant dispensed with his right to do so him. We see no basis in the complaint in this case in so far as it was the maker himself who tendered the document and subjected himself to cross - examination; a right fully exercised by the appellant. All said, we dismiss this ground for being misconceived. We shall now turn our attention to the 1st, 2n d and 3rd grounds which, in their totality fault the first appellate court for concurring with the trial court in its finding of guilt and the ultimate conviction and sentence on weak evidence which fell short of proving the case against him beyond reasonable doubt. The learned Senior State Attorney invited us to dismiss these three grounds for being baseless. Ms. Mushi drew our attention to the ingredients necessary to constitute the offence of statutory rape and argued that each of the ingredients was proved by the prosecution to the standard required in criminal cases. It was her submission that, in order

to sustain the charge of statutory rape, the prosecution was bound to prove; first, penetration of a male sexual organ into the victim's internal genitalia; second, age of the victim and, third; the perpetrator. Regarding penetration, the learned State Attorney argued that the first appellate court was satisfied as the trial court did that it was proved by PW1 who was the right person to prove it on the authority of the Court's decision in Selemani Makumba v. Republic (supra). It was her further submission that, PW1 was not controverted in cross - examination with the effect that, her evidence was but true citing the Court's decision in Juma Kasema @ Nhumbu v. Republic [2020] TZCA 200, TANZLII on the effect of failure to cross examine a witness on a material incriminating evidence. Besides, Ms. Mushi urged that, P W l's evidence was corroborated by PW6 who, upon examination, found her hymen perforated which suggested penetration. As to the victim's age, Ms. Mushi argued that, the courts below concurred that the victim was 17 years based on P W l's own evidence corroborated by her father (PW2). Lastly, on whether it was the appellant who committed the offence, the leaned Senior State Attorney urged us to hold that it was indeed him based on the victim's evidence corroborated by PW2 which both courts below found to be truthful. On the overall, Ms. Mushi invited the Court to

sustain the concurrent findings of fact by the two courts below supported by evidence on the guilt of the appellant on the charged offence. In doing so, counsel discounted the appellant's complaints specifically on the absence of sperms in P W l's vagina suggesting absence of penetration. It was argued in this regard that, absence of sperms was irrelevant in proving penetration and urged us to dismiss the three grounds for being baseless. Addressing the Court, the appellant was forceful that, in the first place, there were more than one versions of evidence regarding PW l's age that is; 17 years according to her evidence and 16 years according to what she told PW6. He was adamant that, in the absence of a birth certificate tendered in evidence, P W l's age was not proved. Apparently, the appellant did not suggest that PW1 was above 18 years. Neither did he suggest that the sexual inter-course with PW1 was consensual. Unrelenting, the appellant challenged the prosecution case on the scene of crime which, according to him was at variance with the place indicated in the charge. Similarly, the appellant attacked the prosecution evidence for being contradictory in relation to the time of the alleged offence which suggested that the charge was not proved as required.

We have considered the submissions for and against the three grounds rolled into one main issue we framed earlier on. Before determining the issue, we wish to point out that as this is a second appeal in which, our jurisdiction is limited to matters of law only as mandated by section 6(7) (a) of the AJA. That means, unlike the first appellate Court which is empowered to re-evaluate evidence of the trial court and arrive at its own findings of fact, the second appellate court has limited power to interfere with the concurrent findings of fact by the trial and first appellate court. The second appellate court's power as it were, is limited to ascertaining whether the concurrent findings of fact by the two courts below are legally sound. It can only interfere with such findings if it is satisfied that such findings were a result of misdirection or non-direction, or misapprehension of the evidence occasioning a miscarriage of justice. The Court's decisions in Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149, Joseph Leonard Manyota v. Republic [2017] TZCA 260, TANZLII are illustrative in this regard. Guided by the above decisions, we shall only disturb the concurrent findings of the two courts below only and only if there is justification for doing so. We have been invited by Ms. Mushi to dismiss the three grounds because the appellant has not satisfied the Court that his conviction was

against the weight of evidence admitted by the trial court and concurred by the first appellate court. It is trite that since the appellant was charged with statutory rape under section 130 (1) (2) (e) of the Penal Code, it was incumbent upon the prosecution to prove, penetration, age of the victim and the perpetrator. The learned Senior State Attorney invited us to hold that all ingredients of the offence were proved as rightly found by the trial court and concurred by the first appellate court. It is striking that the first appellate court was mindful in its decision as the trial court did of the principle that, true evidence in sexual offences must come from the victim consistent with the Court's holding in Selemani Makumba. We heard appellant distancing himself from the scene of crime contending that Ndege Guest House from where the offence was allegedly committed is not registered as such and that it is in a street different from what is reflected in the charge sheet. The burden in the appellant's argument lies in the fact that P W l's evidence on how the appellant took advantage of her situation after being told by the hospital administration to leave PW2 alone in the ward not knowing where to stay on the material night was not controverted at all in cross - examination. The first appellate court re- evaluated the evidence and agreed with the trial court that the appellant who had secured a room at Ndege Guest House

undressed the victim and had sexual intercourse with her. That apart, the first appellate court, like the trial court found P W l's evidence on penetration corroborated by PW6 who examined the victim after 15 hours and found her hymen perforated. Although PW6 was not conclusive on perforation of the hymen as proof of penetration, in our view, PW l's evidence that she had never had sexual intercourse before and felt pains as the perpetrator raped her proves that perforation of the hymen was a result of forceful penetration of a male organ into P W l's genitalia. As to the victim's age, while we agree that PW1 and PW6 had two versions on the age, none of them proved that PW1 was 18 years or above. It will be recalled that, PW1 stated that she was born on 29 December 2003 (page 10 of the record) which means that, on 28 March 2020 she was 16 years, two months, 28 days which appears to be consistent with PW6's version. Needless to say, whether it was 17 or 16 years, PW1 was below 18 years who was legally incapable of consenting to sexual intercourse assuming the appellant made a claim that the sexual intercourse was consensual. Consequently, the appellant's contention against P W l's age is thus baseless and we dismiss it. Lastly is on whether it was the appellant who raped PW1. We need not be detained on this. The appellants' attempt to distance himself from

the scene of crime notwithstanding, the evidence against him is overwhelming. It begins with conveying PW1 and PW2 to Maswa Hospital, looking for accommodation for PW1 at Ndege Guest House and committing the awful act before PW1 was rescued by PW3. It was equally undisputed that the motorcycle which the appellant used on the material date was entrusted to him by PW4; its owner. In addition, PW5's evidence proved that it was the appellant who secured and paid for a room at Ndege Guest house where the appellant ravished the victim. Again, the fact that the appellant was familiar to PW1 and PW2 was not controverted in cross - examination. In actual fact, the appellant's attempt to distance himself from the scene of crime are, but fanciful arguments the opposite of reasonable doubt in the prosecution case. Consistent with the Court's decision in Magendo Paulo & Another v. Republic [1993] T.L.R. 220, conviction must be based on evidence and when the evidence is strong to convict an accused person, the court must convict him rejecting any fanciful arguments and remote possibilities meant to deflect the course of justice. One of the fanciful arguments is on the absence of sperms in the victim's internal genitalia which is not only an irrelevant factor in proving penetration but also sufficiently explained away by PW1 that the appellant used a condom. The other one relates to

the location of the guest house and the absence of proof of its registration which is totally remote and funny. Indeed, these arguments are, for all intents and purposes, an afterthought as they never featured in cross- examination when PW5 was giving evidence. On the whole, as the appellant has not advanced any argument pointing to existence of misdirection or non-direction or misapprehension of the evidence on the ingredients of the charged offence punching holes in the concurrent findings of facts by the courts below warranting our interference, we find no merit in the 1st,2n d and 3rd grounds of appeal and dismiss them all. This takes us to the 4th ground in the memorandum of appeal. The complaint in this ground is on the failure by the two courts below to consider defence evidence in their decisions. Ms. Mushi conceded as much but urged that, such failure was inconsequential to the conviction to warrant the appellant's acquittal. Instead, placing reliance on section 4 (2) of the AJA, she invited us to step into the shoes of the first appellate court and evaluate the entire evidence as we have done in numerous decisions, amongst others, Shabani Haruna @ Dr. Mwagilo v. Republic [2021] TZCA 708, TANZLII. We respectfully agree with the learned Senior State Attorney on the legal position.

Upon our own evaluation of the prosecution evidence against that of the appellant in defence, we have seen nothing that could have raised doubt in the prosecution evidence. Instead of punching holes in the prosecution case, the appellant concentrated in raising arguments. For instance, he questioned PW2's evidence on being taken to Maswa Hospital while there was an equivalent hospital in Meatu from where he could have received treatment which, according to him raised doubt in his evidence. The other argument relates to the prosecution failure to tender in evidence a condom and bedsheets as exhibits to prove that he raped the victim. None of these and the like raised any doubt in the prosecution case. Accordingly, while we agree with him as a matter of principle, we hold that the appellant's defence raised no doubt in the prosecution case to entitle him to an acquittal. Finally, is on the second ground in the supplementary memorandum of appeal in relation to contradictions in the prosecution evidence. Ms. Mushi invited us to dismiss this ground for being baseless and we agree with her. The appellant's submission before us was, but an attempt to pick instances of contradictions in the victim's age, scene of crime and the time of the commission of the crime. We have already addressed ourselves on these as tantamount to arguments which did not raise any

doubt in the case the prosecution case. We accordingly dismiss this ground as urged by Ms. Mushi. In the event, we find no merit in the appeal and dismiss it in its entirety. DATED at SHINYANGA this 2n dday of November, 2024 The Judgment delivered this 4th day of November, 2024 in the presence of the Appellant in person, unrepresented and Mr. Goodluck Saguya, learned State Attorney for the Respondent Republic is hereby certified as a true copy of the original. L.J. S. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL i Z A. L. KALEGEYA j , JM d e p u ty r e g i s t r a r COURT OF APPEAL