Wistod Obeid vs Republic (Criminal Appeal No. 23 of 2016) [2017] TZCA 997 (1 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUSSA, J.A., LILA, J.A. And MWAMBEGELE) CRIMINAL APPEAL NO. 23 OF 2016 WISTOD OBEID .................•.....•..•...•.............•.....••.•.....•••...•..•....... APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••.••.•••••••.•••••••••••••••••••••••••••••••• RESPONDENT {Appeal from the conviction and Judgment of the High Court of Tanzania at Bukoba) 29 th & ..... November, 2017 LILA, J.A. {Khaday, J.) dated the 23 rd day of December, 2015 in Criminal Appeal No. 28 of 2015 JUDGMENT OF THE COURT This is a second appeal. The appellant is still protesting his innocence following his being charged and convicted of the offence of rape contrary to section 130 91), (2) (e) and 131(1) of the Penal Code Cap 16 R.E. 2002 (the Penal Code). The district court of Karagwe at Kayanga sentenced the appellant to a statutory minimum sentence of thirty years imprisonment after being satisfied that the appellant rape Alinda Kanyambo (PWl), a standard 1

VI girl Ngara Primary School aged 14 years old. His first appeal to the High Court (Khaday, J.) was unsuccessful, hence the present appeal. The trial court record show that on 22/6/2014 at 07:00 p.m. Alinda Kanyambo (PWl), while in the company of another girl named Kibanga went to buy kerosene and while in the way back, she met the applicant who was with other boys. The appellant unpressure other and puller her into his sleeping room wherein hey let her down by force, undressed his fingers into her vagina before he later inserted his pens. The following day the appellant was arrested while with PWl, at his house by Jackson Mbusi, a kitongoji chairman of Igombe who acted on information's he received from Clemence Francis (PW2), PWl's nephew. PWl was taken to hospital where she was stated and a PF3 filled which was tendered as exhibit P2 by herself during trial. She also tendered the torn and blood strained skirt, as exhibit Pl. The appellants cautioned statement was recorded by F 3035 D/Cpl Kangela and later sent to Nicholaus Emmanuel Rubambula (PWS), a the Ward Executive Officer and a justice of peace where the appellant's statement ( exh. P3) was taken in which he admitted coming the offence. During trial, on 4/9/2014 a voire dire examination was conducted by the trial magistrate (M. Paul, RM) before PWl gave her testimony after the 2

public prosecutor had informed the trial magistrate that she was 14 years old. In his defence, the appellant admitted being arrested at his home while with PW1 with who he stayed for two days. He said, PW1 was his girl friend and they had agreed to marry each other. The trial court was satisfied that the charge was proved against the appellant and proceeded to convict and sentence the appellant to serve a thirty years ........ term. The first appellant court sustained both conviction and sentence meted by the trial court. It however, expunged from the record Exh. P2 on the ground that it was admitted in contravention of section 240 (3) of the Criminal Procedure Act, Cap 20 R.E. 2002 (the CPA) and each P3 for having been recorder outside four ( 4) hours as prescribed under section 50 of the CPA. On the issue of PW1 age, the first appellate court was of the view that the charge sheet as well PW1 testimony indicated that PW1 was aged 14 and that the appellant did not challenge that when he cross-examined her. 3

The presiding judge was firm that such issue which was raised at the appellate stage was an afterthought. The appellant has raised four grounds of appeal in his memorandum of appeal. These are:-

1. .. . 2 ... . 3 ... . 4 ... . At the hearing of the appea.I, the appellant appeared in person while Mr. Nestory Paschal Nchiman, learned State Attorney represented the respondent Republic. The appellant elected the learned State Attorney supported the appellant's appeal on a sole ground that the age of the victim of rape was not established by the prosecution during the trial. He stated that as the appellant was charged with Rape Contrary to Section 130(2) (e) of the Penal Code which is sometimes termed as statutory rape where consent is irrelevant, the age of the victim ought to have had been sufficiently established by evidence. He pointed out that neither Pwl herself nor PW2 4

who lived with PWl gave evidence establishing PWl's age. He was quick to state that PWl's age indicated in the charge or that given in the particulars before PWl gave evidence formed part of the evidence. He went further for state that even the age stated by the public prosecutor before voire dire examination was conducted did not form part of the evidence. To bolster his argument he referred us to the Court's decision in Andrea Francis Vs The Republic, Criminal Appeal No. 173 of 2014. In respect of the PF3 (exh Pl) and cautioned statement, the learned State Attorney submitted that they were property expunged from the record.· . because they were improperly admitted on account of been improperly tendered and taken respectively. For these reasons he was ready the appeal be allowed. The appellant had nothing in reply. He agreed with the learned State Attorney and left the matter for the Court to decide. After our full examination of the record, we are in all fours with the learned State Attorney. 5

As demonstrated above, the appellant was charged with the offence of rape contrary to section 130 (2) (e) of the Penal Code. That section provides:- (2) A male person comunits the offence of rape if he has sexual inter course with a girl or a woman under circumstances falling under any of the following descriptions (a)........... (not relevant) (b). .......... ( not relevant) (c). ........... (not relevant) ( d)........... ( not relevant) ( e) with or without her consent when she is under eighteen years of age/ unless the woman is his wife who is fifteen or more years of and is not separated from the man. (Emphasis added) Given the fact that in a criminal trial a charge sheet is the foundation of any prosecution against an accused person, it is apparent that in the instant appeal the appellant was charged with a distinct type of the offence of rape. The accusation was that he raped a girl of under the age of eighteen years in which consent of the girl is immaterial. 6

Explaining on the essence of the provisions of section 130 (2) ( e) of the Penal Code, the Court, in the case of Solomon Mazola Vs The Republic, Criminal Appeal No. 136 of 2012, CA- Dodoma (unreported). 11 The cited provision of the law makes it mandatory that before a conviction is grounded in terms of section 130 (2) (e) ✓ above there must be tangible proof that the age of the victim was under eighteen years at the time of commission of the alleged offence. Once the age of the victim is established to be below 18 years, it negates consent of the victim, if any." In the above decision the court cited the decision of the court in Andrea Francis V. The Republic, (supra) cited to us by the learned State Attorney. · In that case the court stated that:- 11 From the above provision it is discerned that for a male person to be convicted of the above offence which is sometimes referred to as ''statutory" rape, it must be established, first and foremost, that the victim was under eighteen years of age. Once that 7

,., is established consent would be immaterial for purpose of the provisions. " Given the above position of the law, in the present case, it was important that the age of the victim (PWl) must have been established by evidence to be under the age of eighteen years to justify the appellant's conviction. Our careful examination of the record have resulted in noting that the age of Pwl or indicated in the particulars of the offence in the charge sheet at the time when the trial court conducted voire dire examination before PWl gave her testimony and at the time PWl gave her particular before she way examined in chief by the public prosecutor. The issue to bed considered and determine is whether indication of PWl's age in those instances was sufficient to establish her age. The learned State Attorney was of the view that it was not sufficient. We full agree with him in that. We are fortified in that position by the courts' holding in the case of Andrea Francis v. The Republic, (supra) where the court categorically stated that: "With respect, it is trite law that the citation in a charge sheet relating to the age of an accused person is not evidence. Likewise, the citation by a 8 .......

" magistrate regarding the age of a witness before giving evidence is not evidence of that persons' age. It follows that the evidence in a trial must disclose the persons age, as it were. In other words, in a case such as this one where the victims age is the determining factor in establishing the offence evidence must be positively laid out to disclose the age of the victim. " Regarding indication of the victims age when voire dire examination is conducted, the court, in the case of Solomom Mazola v. The Republic, (supra) stated that:- '1£ven it we go further and take the liberty to assume that the fact that the trial court conducted a voire dire examination, after being satisfied that PW1 was under eighteen years of age, that assumption, in our vie~ would be contrary to the dictates of the law. " Given the above position of the and the similar facts obtaining in the present appeal, we are in agreement with the learned State Attorney that 9

evidence proving age of the victim is lacking. In the absence of such evidence, the appellant's conviction could not stand. For the foregoing reasons, we hereby allow the appeal, quash the ' appellant's conviction and set aside the sentence. Unless lawfully held for any other offence, we order his immediate release from prison. DATED at BUKOBA this day of December, 2017 K.M. MUSSA JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL 10