France Michael Nyoni vs Republic (Criminal Appeal 505 of 2020) [2022] TZCA 679 (7 November 2022)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: WAMBALI. J.A.. LEVIRA, J.A. And MAIGE. J.A.1 CRIMINAL APPEAL NO. 505 OF 2020 FRANCE MICHAEL NYONI ........................................................... APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT [Appeal from the Decision of the High Court of Tanzania at Iringa] fKente. dated the 1st day of July, 2020 in Criminal Appeal No. 1 of 2019 JUDGMENT OF THE COURT 2nd& 7* November, 2022 LEVIRA, J.A.: The High Court of Tanzania Iringa District Registry (the High Court) dismissed the appellant's appeal against the respondent in which he was challenging the decision of the Court of Resident Magistrate of Njombe (the trial court) in Criminal Case No. 15 of 2018. Before the trial court, the appellant was arraigned facing a rape charge contrary to sections 130 (1), |2 (b) and 131 (1) of the Penal Code [Cap 16 R.E. 2002 now R.E. 2022]. Vhe particulars of offence as per the charge sheet indicated that the Appellant, on 31st December, 2017 at Kitisi - Makambako within the District and Region of Njombe unlawfully had a canal knowledge of EK (the victim

or PW1), the name withheld to protect her identity, without her consent. Upon a full trial which involved four prosecution witnesses and one defence witness, the trial court was satisfied that the prosecution proved its case against the appellant to the required standard and thus convicted him accordingly. He was aggrieved by the decision of the trial court and thus appealed to the High Court but his appeal was not successful as intimated above, hence this second appeal. At the trial, PW1 testified that on 31st December, 2017 (the material day) she slept in a room rented by Adela Kafuka who was her friend. While sleeping at around 04:00 am, the door to that room was forcefully knocked. Upon inquiry as to who was nocking, the appellant who introduced himself as France Nyoni, pushed the door, entered the room and ordered PW1 to undress her clothes. He insisted that PW1 should undress and therefore |she undressed her clothes and the appellant also took off his; then they ’slept over a bed and the appellant penetrated his penis into PWl's vagina. iThey had two rounds of sexual intercourse and they slept until 07:00 am When they woke up and PW1 asked someone to open the door because it ^vas locked from outside. When the door was opened, PW1 reported to Benadetha Mpiluka (PW2) who was the landlady what had befallen her. 2

Then PW2 asked the appellant whether that room was his, he replied, it was not and requested to settle the matter but unsuccessfully. The incident was reported to the ten-cell leader and later to the police station where PW1 was issued with a PF3 and went to the hospital for examination and was attended by Omary Jeilan Mgambo (PW4), Clinical Officer from Makambako Hospital who also filled a PF3 which was admitted as exhibit Kl. According to PW1, she did not know the appellant before the incident. PW2 testified that both the appellant and PW l were her tenants and the incident was reported to her and she, as well, reported to the ten cell leader of Kitisi Street, one Gerold Benjamini Ndondole (PW3) who went to the scene of crime together with his fellow leader and they found both the appellant and PWl. The appellant admitted to them to have committed the alleged offence and asked for forgiveness. PW3 called the police officers who also arrived at the scene of crime. In his defence, the appellant challenged the evidence of PWl Iparta'cularly regarding the date of the incident and the alleged closed door [without expressly stating whether or not he committed the alleged offence, he has presented seven (7) grounds of appeal before us which we shall reproduce at a later stage in the cause of determining this appeal. 3

At the hearing of the appeal, the appellant appeared in person unrepresented, whereas, the respondent Republic had the services of Mr. Tito Ambangile Mwakalinga, learned State Attorney. The appellant adopted his grounds of appeal as part of his submission and prayed to be set free. On his part, Mr. Mwakalinga sought and was granted leave of the Court to argue a legal point out of the grounds of appeal presented by the appellant. He submitted that the appellant had presented thirteen grounds of appeal before the High Court among them are the current grounds of appeal. However, he said, the High Court did not determine all the grounds instead it delt with a sole issue, whether PW1 was raped at all. Having resolved that issue in affirmative, it convicted the appellant and sentenced him accordingly. Failure by the High Court judge to determine all the thirteen grounds presented by the appellant, he argued, denies the Court an opportunity to deal with the grounds of appeal presented before the Court at this stage. As such, he said, the Court has no jurisdiction to determine the grounds presented in this appeal because according to the law, the Court is designated to deal with appeals from decisions of the Hing Court. Therefore, he prayed for the Court to nullify the proceedings and judgment of the High Court and order the appeal to be heard by another judge under section 4 (2) of the Appellate Jurisdiction Act [Cap 141 R.E. 4

2019] (the ADA). In rejoinder, the appellant concurred with Mr. Mwakalinga with no more. Having heard the parties, the issue for our determination is whether the Court can determine the grounds of appeal which were raised but not determined by the High Court in the first appeal. For ease of reference, the grounds of appeal before us are paraphrased as hereunder:

1. That the High Court erred to uphold the appellant's conviction based on incredible PW1 's evidence .

2. That the evidence o f PW2 and PW4 together with exhibit K1 could not be relied upon to corroborate P W l's evidence because it was ambiguous:

3. That the evidence ofPW 2, PW 3andPW 4 was hearsay evidence, thus could not be relied upon by the High Court to dism iss the appellant's appeal.

4. The High Court erred to dism iss the appellant's appeal basing on the evidence o f PW2, the landlady who failed to ca ll other witness or police to see the appellant while in a room which was not his.

5. The High Court m isdirected itse lf to dism iss the appellant's appeal while there was a possibility either that PW1 consented sex or planted the case against the appellant as she failed to raise alarm a t the time the alleged offence was being committed.

6. That the case against the appellant was planted by PW1, PW2 and PW3 following their discussion prior the incident

7. That the case against the appellant was not proved beyond reasonable doubt First and foremost, we wish to restate a settled position of the law that, the appellate court is bound to consider the grounds of appeal presented before it, address and resolve the complaints of the appellant either separately or jointly depending on the circumstances of each case. The appellate court needs not discuss all the grounds presented before it where only few will be sufficient to dispose of the appeal. In other words, it is not all about a number of grounds of appeal that matters but the complaints advanced by the appellant in an appeal. In Nyakwama Ondare @ Okware v. The Republic, Criminal Appeal No. 507 of 2019, the Court held as follows: "... that failure to consider appellant's grounds o f appeal was a fatal irregularity rendering the first appellate court's judgm ent a nullity. In this regard, we wish to emphasize that though it is not the duty o f the first appellate court to resolve the issues as fram ed by the tria l court, yet it is expected and bound to address and resolve the com plaints o f the appellant in the grounds o f appeal either separately or jo in tly depending on the circumstances o f each appeal

In the current appeal, we observe from the record of appeal that the appellant had presented thirteen grounds of appeal before the High Court some of which are also reflected in the grounds of appeal before us. To be precise, the first ground in the current appeal was also raised in the first, second, fifth and seventh grounds in the petition of appeal before the High Court; the second ground in the sixth, second and fourth grounds; the third ground in the second, third and fourth grounds; the fourth ground in the second ground; the fifth ground in the first, seventh, ninth and tenth grounds; the sixth ground in the first, seventh, nineth and tenth grounds; and the seventh ground in the eleventh and twelfth grounds of appeal, respectively. We further observe that, the first appellate court determined the appellant's appeal basing on a sole issue, whether PW1 was raped a t all, suggesting that he was determining the twelfth ground of appeal only. In determining this issue, the learned judge relied on the evidence of PW1 putting reliance on the principle that the best evidence in sexual offences comes from the victim as decided in Selemani Makumba v. Republic [2006] T. R. L 379; as well as the evidence of PW4, which he said, corroborated PWl's evidence. In arriving at that conclusion, he was

satisfied that there was no mistaken identity of the appellant and the appellant did not raise any meaningful defence. It is noteworthy that the petition of appeal presented before the High Court raised a number of factual and evidential issues which were not resolved by the High Court; including for instance, the issue of credibility of PWl's evidence. The appellant's complaint in respect of the doubt on the credibility of PWl in relation to other evidence of prosecution witnesses, including PW2 was not resolved. We are therefore satisfied that according to the record of appeal some of the complaints in the appellant's grounds of appeal had to be determined independently instead of lumping them together. We also note that the appellant's complaint on non-summoning of the material witness whose room was allegedly used for the commission of the offence was not resolved as required. The said complaints were raised in the second, nineth and tenth grounds of appeal before the High Court and in the instant appeal as the fifth and sixth grounds of appeal. In terms of section 4 (1) of the AJA, the Court hears appeals from the High Court and from subordinate courts with extended jurisdiction. Unlike the Court on second appeal which deals with points of law, the High Court when sitting on first appeal, has the power of rehearing and reevaluating evidence - see: Hassan Mzee Mfaume [1981] T.L.R. 167. 8

Therefore, when dealing with appeals from subordinate courts, the High Court is privileged with the opportunity to scrutinize the entire proceedings and come up with either a concurrent or its own finding depending on the circumstances of each case. This entails that it has a duty to determine the grounds of appeal and all issues or complaints raised in accordance with the law, which is why appeals to the Court must first undergo that process before the High Court. In other words, an issue or a complaint cannot be raised directly from an ordinary subordinate court to the Court, as in the case at hand, where as we have demonstrated, the grounds of appeal and issues or complaints which were raised before the High Court and being left unattended cannot fall under the domain of the Court. In the circumstances, we agree with Mr. Mwakalinga that since the grounds of appeal presented before us were placed before the High Court but not dealt with in accordance with the law, the same cannot be entertained in this appeal. We are aware of the fact that, in special circumstances, issues or complaints requiring re-evaluation of evidence can be entertained by the Court to avoid delays - see: Hassan Mzee Mfaume (supra), but we are not compelled to do so under the prevailing circumstances of the current appeal. With profound respect, we find no justification for failure by the learned first appellate judge to determine all 9

the complaints in the grounds of appeal presented before him by the appellant. For the interest of justice, the viable option available is for us to remit the case back to the first appellate court to comply with the requirements of the law as discussed above. Consequently, we nullify the High Court proceedings and quash the judgment in Criminal Appeal No. 1 of 2019. We remit the case file to the High Court for rehearing of the appeal in accordance with the law before a different judge. The appellant shall remain in custody. DATED at IRINGA this 5th day of November, 2022. F. L. K. WAMBALI JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL This Judgment delivered this 7th day of November, 2022 in the presence of the Appellant in person and Ms. Veneranda Masai, State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.