Mwita Nyamhanga Mangure vs Republic (Criminal Appeal No. 130 of 2015) [2017] TZCA 942 (8 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LUANDA. J. A.. MMILLA. 3. A.. And MKUYE. 3. A.^ CRIMINAL APPEAL NO. 130 OF 2015 MWITA NYAMHANGA MANGURE.................................APPLLICANT VERSUS THE REPUBLIC........................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Gwae. 3.1 dated the 20th day of February, 2015 In Criminal Appeal No. 129 of 2014 3UDGMENT OF THE COURT 30th November & 8th December, 2017. MKUYE. J.A.: The appellant, MWITA NYAMHANGA MANGURE, was charged with the offence of rape contrary to section 130(1) and (2) (e) read together with i f section 131(3) of the Penal Code, Cap. 16, R.E. 2002. The facts on which the appellant was convicted and sentenced by the District Court of Tarime in Criminal Case No. 336 of 2013 are that, the complainant Neema John Marwa (PW1) who was by then aged 10 years old had, on 21/6/2013 at about 15:00 hrs, gone to Murwambe Centre at Kewanja Village in order to collect her clothes from a tailor, one, Mama Happy and to purchase some items which her mother (PW2) sent to. Upon meeting Mama Happy she

proceeded to purchase those items and on her way she came by a man (appellant) who without her consent held her hand and pulled her into a semi-finished house. Meanwhile, some people who saw the saga; and in an attempt to rescue her told the appellant "Mwita Manoti mwachie mtoto wa watd'. Plainly translated "Mwita Manoti let the child fred '. However, the appellant replied to them that the child (PW1) was his daughter who had been lost for a long time. PW1 was pulled with the assistance of another person into a room and then that other person locked the door from outside. Inside the room, the appellant threatened to sturb the victim by a knife if she resisted to undress. She (PW1) succumbed and undressed her underpants. The appellant ordered her to lie on the mattress then he inserted his penis into PWl's vargina. Thereafter, the appellant compelled the victim to take bath and apply petroleum jelly on her body. Then, the appellant knocked the door from inside and that other person opened the door from outside then the appellant pushed the victim outside. PW1 informed Mama Happy of what she encountered and she explained the ordeal and described the ravisher who came to be Mwita Manoti, the appellant. Mama Happy asked PW1 to show her the place where she was raped and as they were on the way to that place, they met

the appellant and his colleague. As Mama Happy asked them as to why he i i raped PW1 the two threatened them with a matchete. Mama Happy asked for assistance from the people's militia man one, Gabriel Nyankomo, (PW3) to whom PW1 also identified the appellant and his colleague but they ran away before PW3 could arrest them. The victim went home. Her mother (PW2) who came from fetching water found her sleeping while crying. On being asked why, she narrated the incident to her mother. She examined her daughter and found her private parts torn and bleeding. She took PWl and reported at Nyamongo police station where she was issued with the RB and PF3. At the hospital, PWl was examined by Assistant Medical Officer (PW4) Kagumirwa Kaijage Methodius who revealed that PWl had sustained tears l i and bruises into her private parts (vargina) and was bleeding suggesting there was penetration into her vargina. Following the trial, the appellant was found guilty of the offence and was sentenced to serve life imprisonment. _ j Aggrieved by his conviction and sentence meted against him by the trial court, he preferred an appeal before the High Court while fronting five

grounds of appeal. Upon re-evaluating the evidence of PW1, PW2, PW3 and PW4 and Exh. PI the High Court was satisfied that the trial court was justified to hold that the prosecution's case was proved beyond reasonable doubt and dismissed the appeal against conviction. The High Court, however, allowed the appeal against sentence and reduced it from life imprisonment to thirty years imprisonment since at the time when the offence was committed, PW1 was not under the age of 10 years. The appellant, still protesting for his innocence has lodged this second appeal containing four grounds of appeal as follows: - i t (1) That, the preliminary hearing (PH) was neither signed by the prosecution nor the accused/appellant in (sic) thus violated the CPA, Cap. 20 R.E. 2002. (2) That, the prosecutrix failed to describe the assailant in (sic) thus the trial and first appellate court relied on dock identification. (3) That, the case was poorly investigated as the Republic failed to summon the investigator as a witness. (4) That, the prosecution's evidence was not well analysed by both below courts, as PW1 (victim) version contrasted with other witnesses.

During the hearing of the appeal the appellant fended himself as he was unrepresented whereas the respondent Republic enjoyed the services of Mr. Mamti Sehewa who was assisted by Ms. Sophia Mgasa, the learned Senior State Attorney and State Attorney respectively. Understandably, the appellant being a lay person preferred to hear the respondent's address on the appeal first and reserved his right to respond later if need arises. On his part, Mr. Sehewa prefaced his submission by supporting the findings of both courts below. In response to the appellant's grounds of appeal he, in the first place, conceded to the first ground of appeal that the preliminary hearing (PH) was neither signed by the prosecution nor by the i ‘ appellant as required by section 192(3) of the Criminal Procedure Act, Cap. 20 R.E. 2002. While relying on the case of Efrahim Lutambi Vs. Republic TLR (2000) 265, he was quick to argue that, though the same was not signed, it did not prejudice the appellant since the prosecution called witnesses to prove the case. Mr. Sehewa went on to submit with regard to the 2n d ground of appeal relating to lack o f^ description of the appellant that, though PW1 did not describe the appellant she properly identified the appellant straight away as she ably explained the sequence of events and how she came to know the

appellant's name of Mwita Manoti through people who mentioned him while urging him to leave PW1. Apart from that, the learned state attorney contended further that PW1 identified the appellant to Mama Happy and i i later to Gabriel Nyankomo (PW3) whose assistance was sought to arrest him and eventually arrested him on the following day. Mr. Sehewa added that in fact the appellant himself admitted during cross-examination that "Mwita Manoti"\N3S his name. As regards to the 3r d ground that the investigator was not called to testify in court, Mr. Sehewa submitted that section 143 of the Evidence Act, I / Cap. 6 R.E. 2002 does not require a particular number of witnesses to prove a certain fact or that the investigator should testify. In relation to the 4th ground that the entire evidence was not analysed, Mr. Sehewa rebutted the claims to be unfounded. He contended that, the evidence of PW1 which was straight forward was supported by the evidence of PW3 who saw PW1 bleeding on her private parts and PW4 who I r also her saw private parts torn and bleeding respectively. For that matter he concluded that the appellant was properly convicted and sentenced and urged the Court to dismiss the entire appeal. In reply, the appellant submitted that failure to sign the memorandum of undisputed facts by prosecution and the appellant

prejudiced him; lack of description of the appellant made the courts below to rely on his identification at the dock; and that there was no sufficient analysis of evidence of PW1 and PW3 as to who informed PW3 about the incident. For those reasons, he prayed to the Court to consider his grounds of appeal and allow the appeal. It is not insignificant to mention at this juncture that it is now settled that the Court is required to look on matters which came up at the lower Courts and decided, and not on matters not raised in either the trial court or the first appellate court. We are, however, aware that matters of law can be raised at any stage of the proceedings. This was held in the case of Meshack Mdugo Vs. Republic, Criminal Appeal No. 147 of 2010 where the Court stated: - I i 'We note that the first appellate court did not address itself to this issue. This could be partly because the appellant did not raise it as a ground o f appeal before the court. He is raising it for the first time before this Court. In normal circumstances we could not consider it at this stage. However, since it is an important point of law and in .... I t we would in the interest o fjustice, consider it" 7

With regard to the issue that the memorandum of undisputed facts was not signed by the prosecution and the appellant as per section 192(3) of the CPA, we in the first place agree with the learned State Attorney that it was neither raised nor decided by the courts below. However, as already hinted, it being a matter of law, it can be raised at any stage of the proceedings. After having scrutinised the Court record we agree that, indeed, the memorandum of undisputed facts was not signed. It is worthwhile to note also that there was no memorandum of agreed facts prepared since the appellant denied all the facts. This is a requirement under subsection (3) of section 192 of the CPA which states: - "At the conclusion o f a preliminary hearing held under this section , the court shall prepare a memorandum o f the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate (if any) and by the i i public prosecutor, then filed" That notwithstanding, we think, the absence of the memorandum of agreed facts did not waive the requirement for the parties to sign it. At this juncture, we feel obliged to recapitulate the intention of enacting section 192 of the CPA. It was intended to accelerate trials and minimize cosp of calling witnesses. This was clearly stated in the case of

Joseph Munene & Another Vs. Republic Criminal Appeal No. 109 of 2002. Also in the case of Efrahim Lutambi {supra) this Court held that: - "The provisions o f s. 192 o f the Act are very useful in the administration o f criminal justice. They were intended by the f i legislature not only to reduce the costs o f criminal trials in the country, but also to ensure that those trials are, without prejudice to the parties conducted expeditiously" In this case, as shown at page 3 of the Record, after the appellant denied each fact during preliminary hearing, the prosecutor informed the trial Court that they would call four witnesses and tender a PF 3 of Neema f i John Marwa. Indeed, the prosecution discharged its duty of proving the case. As shown at pages 4 - 10 of the Record, four witnesses testified for the prosecution and the PF3 was tendered in Court. Since the witnesses testified and the appellant was given an opportunity to cross examine them, we do not see anything suggesting that he was prejudiced due to failure to sign the memorandum of undisputed facts. Unfortunately, even the appellant himself did not substantiate on how it prejudiced him. With regard to the 2n d ground that failure by the prosecutrix to give description of the appellant led to the courts below to rely on the dock identification, we are of the view that, the courts below did not rely on the 9 I I

dock identification. As was rightly argued by Mr. Sehewa, the witnesses who testified on identification were found to be reliable and credible. We agree with the learned Senior State Attorney that the evidence of PW1 was credible as she straight away narrated the sequence of events and how she identified the appellant. She told the trial Court that while on her way from mama Happy to purchase some items she met the appellant who without her consent held her hand and pulled her, with the assistance of another person, to a semi-finished house. She explained how she identified the appellant through -some people who exclaimed to him to leave her alone "Mwita Manoti mwachie mtoto wa watW but he refused in the pretext that she was her daughter who had been lost for some time; how he opened the doors of the house and a room and forced her to undress and lie on a mattress whereupon he inserted his male organ on her vargina; and how he compelled her to take bath and apply petroleum jelly on her body. Apart from that, PW1 also narrated the story to Mama Happy and identified the i i appellant to her after she had required her to take her to the place; and she identified the appellant to PW3 who was called for an assistance to arrest him. Considering the fact that the incident took place at about 15.00 hrs which was during the day; the proximity between appellant and PW1; coupled with the' sequence of events under which the offence was 10

committed and the time taken, we are settled in our mind that all these factors provided a conducive environment for unmistaken identification. Moreover, the evidence of PW1 was corroborated by PW3 to whom the appellant was identified by PW1 and the appellant's admission of his name. We are therefore, satisfied that since the identification evidence was I f watertight, lack of description of the appellant did not vitiate it. And the claim that the appellant was identified on the dock is not supported by any evidence. As regards the complaint that the investigator was not called to testify, we think it cannot detain us much. We agree with Mr. Sehewa that under section 143 of the Evidence Act, Cap. 6 R.E 2002 no particular number of witnesses is required to prove an act or fact in issue. Neither does the law make it necessary for the investigator to testify in any case he may have investigated. For easy of reference we quote the said provision as hereunder: - "143 Subject to the provisions o f any other written law, no particular number o f witnesses shall in any case be required for the proof o f any fa ct" Be it as it may, it is our considered view that failure by the investigator to testify in court did not affect the entire evidence in view of the credible i i

evidence by PWl who saw the whole incident; PW2 and PW4 who on examination found PWl's private parts torn and bleeding; and PW3's evidence who saw PWl bleeding and was shown by PWl the appellant and his colleague who ran away to escape arrest. In ground No. 4 the appellant complained that the prosecution evidence was not properly analysed. He gave an example that PWl's evidence contradicted with that of PW3 as regards to who informed PW3 i i about the incident. According to PWl, PW3 was informed by Mama Happy who sought his (PW3) assistance to arrest the appellant after he threatened them with a matchete. PW3 said he was informed by certain lady who came with a child who was said to have been raped and bleeding. He testified that PWl showed to him the place of incidence and the appellant but he ran away before the arrest. We, however, do not see any contradiction here. Although Marina Happy was not called to testify, it is clear to us that the lady referred to by PW3 as being the one who informed him about the incident of rape is Mama Happy who had gone to seek assistance to him after the appellant had threatened them when she (Mama Happy) asked him as to why he raped PWl. However, even where we were to say it was a contradiction, our view would be it was minor and that it did not go to the root of the matter., We say so because apart from PWl's evidence which we find to be credible, there was corroborating evidence from PW2, PW3 and 12

PW4 who saw PW1 bleeding on her private parts and that her private parts were torn as per PW4's evidence. As to the sentence which was reduced from life imprisonment to 30 years imprisonment, we entirely agree that the first appellate judge i i correctly interpreted section 131(3) of the Penal Code simply because PW1 was not below the age of ten years when the offence was committed. In consequence, we are settled in our mind that the circumstances of the appeal do not at all call for intervention or to be faulted. We, therefore, dismiss the appeal against conviction and sentence in its entirety. DATED at MWANZA this 8th day of December, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of/the original. R ^ ISTRA R COURT OF APPEAL 13