Michael Said @ Yohana vs Republic (Criminal Appeal No. 516 of 2015) [2017] TZCA 1015 (7 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MJASIRI, J.A., MMILLA, J.A. And LILA, J.A.) CRIMINAL APPEAL NO. 516 OF 2015 MICHAEL SAID @ YOHANA ••••• ~ ••••••••.••••••••••••••••• ~ •••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••• · •••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Manento, J.) .. 4 th & 10 October, 2017 LILA, J.A.: Dated the 23 rd day of May, 2002 in Criminal Session No. 27 of 2000 JUDGMENT OF THE COURT Michael Said @ Yohana, the appellant, was arraigned before the High Court of Tanzania sitting at Songea of the offence of incest by males contrary to section. 158(1) of the Penal Code, Cap 16 R.E. 2002. It was alleged that he, between December; 1977 and October, 1999 had carnal knowledge of one Grace Michael, his daughter. _ Trial ensued and at the · end he was convicted as charged and was sentenced to a mandatory 1

c;:. minimum sentence of thirty years imprisonment. Aggrieved by the conviction and sentence he has preferred this appeal. The material facts which culminated in the appellant's conviction are simple and straight forward. To start with, from the record, it is undisputed that Mwanahawa Asili (PW1) and the appellant (DW1) were wife and husband whose marriage lasted from 1984 to 1993 when they parted each other. The marriage was blessed with six issues namely Neema, Michael, Grace, Gailes, Cecilia and Ubaya. At that time they were living at Nangaka village. After the birth of Ubaya, the marriage broke down and the appellant shifted to Namiungo village leaving all the six children in the care of PWL There at Namiungo, the appellant married another woman. In 1996 the appellant took his three children to Namiungo from PW1, namely Grace, Neema and Ubaya. In October, 1998 PW1 went to Namiungo to see her aforementioned children. Upon arrival thereat PW1 lamented to the appellant as to why the children were unhealthy and ill-dressed. The two quarreled and PW1 reported the matter to the ten cell leader, one John Benedictor Milanzi (PW3) where she was accommodated on promise that the matter would be sorted out the following day. On the following day, the discussion did not 2

.. ~ bear any fruits and she was allowed to take the three children; she left with them to Nangaka. Apart from the above, PWl also told the trial court that her divorce with the appellant was fueled by the latter's habit of having an affair with her sister's daughter which she thought was not proper and the matter was reported to the church leader, one Songambele who failed to resolve it. The matter was again taken to a Paroko of Nangaka who also failed to reconcile them. Later, in 1993, the Bishop allowed them to divorce. PWl also said when she queried the appellant on the state of affairs she found the children, the latter told her to take her "chicks". She further said on the way to Namakambale while with the three children, she noted that Grace who was then 14 years old and was yet to start menstruation, was heavily bleeding from her private parts and was crying. Upon enquiring from her, Grace said she used to have sex with her father, the appellant, since 1997 whenever the appellant's wife was away and at times when they went to fish in the wilderness. She said Grace told her that she was being promised by the appellant that he would buy her expensive clothes and was warned not to tell anybody otherwise she would be slashed with a bush knife. PWl further said, upon arrival at home, her 3

paramour one Mustafa Rashid took Grace (PW2) to Nakapanya hospital where he was advised to take a document from the court. She said, later, her brother one Ntendeke took PW2 to· Tunduru police station. On being cross-examined by Mr. Mbogoro, learned advocate who represented the appellant at the trial, she said she was angry with the appellant's habit of having affairs with her sister's daughter one Daria hence she went to the church to seek for divorce. She said Grace (PW2) told her that she could not report the appellant's acts to the appellant's second wife or grandfather who were living with the appellant due to fear as she had no any relative at Namiungo. On re-examination, PWl said the bleeding of PW2 started after 3 to 4 hours walk and that black blood was oozing out from her private parts. In her testimony, Grace (PW2), reiterated what PWl had stated regarding how she found herself at Namiungo in 1997 living with her father, the appellant. She further said she used to go with the appellant to the lowlands for rice farming. She also said they used to go fishing at the river and sometimes into the bush to inspect traps whereat the appellant used to order her to undress so that he could carnally know her and was threatened that if she refused she could be slaughtered. That whenever 4

i~ .. she refused the appellant used to force her down and was warned not to tell anybody lest she would be slaughtered. That she used to feel pains both outside and inside her private parts and she bled but could not tell anybody due to fear. That, then, she had not made love with anybody else other than the appellant. She further said that while walking to Nakapanya after they were taken from the appellant, she bled heavily and she told her mother (PW1) that the appellant used to have carnal knowledge of her. That, she was, the following morning, taken to Nakapanya hospital by Mustafa Rashid where she was told that she had contracted venereal disease. Later, her uncle one Ntendele took her to Tunduru Police station where she explained that her father (appellant) used to have carnal knowledge of her. That the police ordered the appellant's arrest. When cross-examined by Mr. Mbogoro, she said the appellant used to threaten her with a panga and an axe he used to take. That, then she was too young to think of there being ten cell leaders or a Ward Executive Officer. John Benedictor Milanzi (PW3), told the court that PW1 went to Namiungo on 14/10/1998 to see her children and complained that her children were in bad condition. That PW1 slept in his residence because 5

PWl told him that there was a misunderstanding between her and the appellant. That the following day it was resolved that PWl should take the children. He further said that he did not know any other allegations against the appellant. The record shows that on 22/5/2002, the PF3 for PWl (exhibit Pl) and that of the appellant (exhibit P2) were tendered as exhibit by the prosecution (Mr. Manyamba, learned State Attorney) under section 291(1) of the Criminal Procedure Act, Cap.20 R.E. 2002 following Dr. Ndazi's inability to attend as a witness during the session. The High Court received the two PF3 reports under section 291( 4) of the CPA and admitted them as exhibits Pl for that of PW2 and P2 for that of the appellant. The appellant, on his part, vehemently denied involvement in the commission of the offence. He stated that he earlier married PWl with whom he was blessed with six children and that they later divorced and he moved to Namiungo where he married another woman leaving behind all the children with PWl. That sometimes later he went to Nangaka and took three children including Grace (PW2). That later in 1998 PWl went to Namiungo and demanded to take the three children after complaining that they were not in good health and poorly dressed. That they exchanged 6

words with PWl who then slept at PW3's residence. That the following day, a meeting was held and it was resolved that PWl should take the children. That he accompanied them on the way to Nakapanya for about 4 kilometers and then returned home, leaving them to cover the remaining 5 miles. That he did not know what happened later on. That he was a farmer and was also fishing and trapping animals like rats but he did so leaving Grace playing with water. That he did not go for animal trapping or fishing with PW2. That PW2 was taught by her mother to implicate him. That he was taken to hospital and his urine medically examined and found not suffering from any disease. That three months passed since PWl and the children left to when he was arrested. When cross-examined, he said the misunderstanding started at Nangaka. That he did not know one Daria. He further said PWl complained to the church for divorce without giving reasons. That he used to carry an axe when he went for trapping animals which he used for cutting trees to make traps. As indicated above, the trial court was satisfied that the charge against the appellant was proved beyond reasonable doubt and it proceeded to convict and sentence the appellant accordingly. 7

In protesting his innocence the appellant has filed a five point memorandum of appeal. Such grounds of complaints can be summarized thus:-

1. The trial Judge failed to consider the misunderstanding that obtained between the appellant which led PWl and PW2 to fabricate the case against the appellant

2. The contents of the PF3 for PW2 (exh Pl} and PF3 for the appellant (exh P2} were not corroborated hence the trial Judge was wrong to rely on them to convict the appellant.

3. The appellant's conviction was based on a weak evidence by PW2 who was illiterate and who could be trained by PWl on what to tell the Court as there existed grudges between the appellant and PWJ.

4. The charge sheet did not specify time when the offence was committed. 8

5. The prosecution failed to prove the charge beyond all reasonable doubts. When the appeal was called on for hearing, the appellant appeared in person and fended for himself while the Republic respondent was represented by Mr. Hamimu Nkoleye assisted by Ms Hellen Chuma, learned State Attorneys. The appellant opted for the learned State Attorney to start arguing the appeal so that he could later on give his response. Arguing the first ground of appeal, Mr. Nkoleye stated that although it was true that there existed grudges between the appellant and PW1 due to the farmer's habit of having affairs with PWl's sister's daughter which culminated in the two divorcing, that does not make the case against the appellant to be a fabricated one. He said there was sufficient evidence adduced by PW1 and PW2 that the appellant had carnal knowledge of PW2, his daughter. He said that evidence is supported by medical findings when the two (the appellants and PW2) were medically examined and found to have had contracted the same venereal decease as revealed by the PF3 (exhibits Pl and P2). He said the exhibits were admitted without 9

objection from the defence under section 291 (4) of the Criminal Procedure Act, Cap 20 R.E.2002 (the CPA) because the Doctor who medically examined PW1 and the appellant could not be procured so as to testify without delay. Regarding ground two of appeal Mr. Nkoleye had it that the contents of the two PF3 (exhibits Pl and P2) were corroborated by the evidence of PW1 and PW2 who testified to the effect that the appellant had carnal knowledge of PW2. He referred to the Court's decision in Seleman Makumba Vs Republic [2006] TLR 379 where the Court stated that the best and true evidence is that of the victim. On the complaint that the charge did not specify the time when the offence was committed, Mr. Nkoleye said, the appellant used to have carnal knowledge of PW1 from 1997 to 1999.That it was a continuous act hence they could not specify the time, he said. For the above reasons, Mr. Nkoleye contended that the appellant was convicted on the strength of the prosecution evidence against him particularly that of PW1 and PW2 supported by exhibits Pl and P2. He concluded that the prosecution proved the charge beyond reasonable 10

doubt, hence grounds 3, 4 and 5 are baseless. He urged the Court to uphold the appellant's conviction and sentence. On his part, the appellant, a layman and unrepresented, had nothing material to tell the Court. He insisted that the case was a fabricated one due to the grudges that obtained at that time between him and PW1 and all that PW2 told the trial court was a result of the training done by PWl. He, otherwise, left for the Court to determine the appeal basing on the grounds of appeal and the evidence on record. We have given a deserving consideration to the arguments by both sides. We have also thoroughly perused the record. The appellant was charged with incest by males contrary to section 158 (1) of the Penal Code. That section states: "158 (1) Any male person who has prohibited sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence of incest, and is liable on conviction:- 11

(a) If the female is of the age of less than eighteen years, to imprisonment for a term of not less than thirty years, (b) If the female is of the age of eighteen years or more, to imprisonment for a term of not less than twenty years. (2) It is immaterial that the sexual intercourse was had with the consent of the woman." Given the above position of the law it is clear that all that the prosecution is obliged to prove in cases of this nature is that the accused had carnal knowledge of a female person and at the time of doing so he had knowledge that that female person is his granddaughter, daughter, sister or mother. That provision categorically states that consent is irrelevant. In the present appeal, as indicated above, it is not in dispute that Grace Michael (the victim) is the daughter of the appellant. The evidence by PW1 and PW2 is to that effect. Even the appellant conceded to this fact. So the appellant's knowledge that PW1 was his daughter is beyond question. 12

The next issue to be determined is whether PW1 was carnally known. There has been no dispute all along during the trial and even before this Court that PW1 was raped. The medical report (exhibit Pl) and the evidence of PW1 and PW2 proved that PW2 was carnally known. PW2 told the trial court that while on the way back home, she saw PW2 walking with difficulty and in examining her she found her heavily bleeding from her private parts. PW2 was also clear that she used to be carnally known and felt pains whenever that was done which signified that there was penetration of the penis into her vagina. The medical evidence (exhibit Pl) showed that upon being examined PW2 was found to have had contracted sexually transmitted deceases. It also remarked that no hymen was found. The totality of this evidence is that PW2 was carnally known. See Simon Erro v Republic, Criminal Appeal No. 85 of 2012 CA (unreported). The crucial issue to be determined here is who carnally knew PW2? PW2, when inquired by PW1 why she was disorderly walking and heavily bleeding from her private parts, she straight away mentioned the appellant as the one who used to have carnal knowledge of her. Even in her testimony in court PW2 maintained that she was being carnally known by the appellant. The story from the appellant was different. He distanced 13

himself from that allegation. All the same, the trial court was satisfied that the appellant committed the offence and proceeded, as indicated above, to convict and sentence him accordingly. In the first ground of appeal the appellant is complaining that this was a case fabricated against him by PWl and PW2 because of the grudges that existed between them. Our careful examination of the record have revealed that the appellant's conviction was mainly based on the testimony of PWl, PW2 and the medical evidence (exhibits Pl and P2). We have taken pain to summarize the testimonies by PWl and PW2 above. PWl's evidence is to the effect that PW2 told her that the appellant used to have carnal knowledge of her when they went to fish and trap animals and that she was always warned not to disclose the matter to anyone otherwise she would be slashed with a bush knife. On her part, PW2 consistently and persistently maintained that the appellant used to have carnal knowledge of her whenever her step mother was away, and at time when they went to fish and trap animals. She maintained that as she was then 14 years old she was frightened hence did not report the matter to anyone. 14

We have carefully examined the evidence by PWl and PW2 and particularly that of PW2, the victim. At the time the offence was being committed against her she was only 14 years. And at the time of testifying in court she was 18 years old. At the age of 14 years, no doubt PW2, could know and recollect incidences done against her. This explains her ability to narrate in detail and consistently what had befallen on her both to her mother (PWl) and in Court. Though the trial Court did not categorically comment that PWl and PW2 were credible witnesses, but it all the same did not doubt them. We are alive to a cardinal principle that the credibility of a witness in any judicial proceedings be it criminal or civil is the exclusive domain of the trial court. That is where the witnesses are heard and seen when testifying hence easy to assess their demeanour. (See Siza Patrice V. R, Criminal Appeal no. 19 of 2010 and Shabani Daudi V. R, Criminal Appeal No. 28 of 2001( both unreported). The above notwithstanding, the credibility of a witness can be determined in two other ways as was stated in the case of Shabani Daudi V. R (Supra) that; "The credibility of a witness can also be determined in two other ways: One, when assessing the coherence of the testimony of that witness. Two, 15

when the testimony of that witness is considered in relation with the evidence of the other witnesses/ including/ the accused person. In these two other occasions the credibility of a witness can be determined even by a second appellate court when examining the findings of the first appellate court. '' Given that the evidence by PWl and PW2 was consistent and not contradictory and their credibility was not doubted by the trial court which had the opportunity to see them testifying, we also have no reason to doubt that the two witnesses were credible. Having satisfied ourselves that PW2 was a credible witness, her evidence on what befell her has to be given a deserving consideration that she was a witness of truth. The Court in the case of Selemani Makumba v Republic (supra) rightly cited by Mr. Nkoleye stated that the best witness to the offence of rape is the victim. (see also Alfeo Valentino Vs Republic, Criminal Appeal No.92 of 2006 CAT and Godi Kasenegala Vs Republic Criminal Appeal No.10 of 2008 CAT(both unreported).That principle, in our view, rightly apply in this case. For this reason, we agree with the learned State Attorney that the appellant was 16

c9nvicted on the basis of the evidence against him and the case was not a fabricated one. The first ground of appeal therefore fails and is dismissed. Ground two of appeal is in respect of the medical evidence ( exh Pl and P2) and the complaint is that they were not corroborated. As demonstrated above the medical documents (exhibits Pl and P2) were properly tendered and admitted as exhibits under section 291 (4) of the Criminal Procedure Act, Cap 20 R.E. 2002 because the doctor who examined PW2 and the appellant could not be availed to testify without undue delay and the appellant and his advocate having been given sufficient notice of intention to do so. The two documents were received without any objection from the appellant's advocate. They are to the effect that PWl and the appellant had contracted the same decease. As rightly argued by Mr. Nkoleye, the appellant's conviction was not solely based on exhibits Pl and P2. Instead, the appellant's conviction was also based on the oral testimonies of PWl and PW2. PWl told the trial court that he saw PW2 heavily bleeding from her private parts and on enquiring what had befallen on her PWl said she was being carnally known by the appellant. That apart, PW2 hammered the last nail as she categorically stated that the appellant used to have carnal knowledge of her. In effect, therefore, 17

... the oral testimony of PW1 and PW2 and the medical evidence complimented each other. The appellant's complaint is therefore baseless. In respect of ground three of appeal, as rightly argued by Mr. Nkoleye, it is a repetition of ground one of appeal. We have held that the appellant's guilt was founded on a strong and credible oral evidence by PW1 and PW2 accompanied with the medical evidence ( exhibits Pl and P2). Consequently, the issue of PW1 coaching PW2 on what to tell the court has no place. This ground of appeal fails too. The appellant also, in ground four of appeal, complains that the charge sheet did not specify the time the offence was committed. We have examined the charge sheet under attack and we have realized that it clearly shows that the offence was committed for the period between December, 1997 and October, 1998. PW1, in her testimony, is very clear that the appellant had carnal knowledge of her right from 1977 after the appellant had taken her from PW1 to 1998 when PW1 took her back. PW1 is also clear that the appellant took PW2 from her in 1996. We, therefore, agree with Mr. Nkoleye that as the offence was being committed continuously between December, 1997 and October, 1998 they could not specify the time the offence was being committed. 18

w • In the circumstances we are satisfied that there was overwhelming prosecution evidence which required the appellant's explanation to rebut it. His defence, closely examined, amounted to a general denial. He has all along maintained that the case is a framed one due to the quarrel that obtained between him and PWl. We have, above, ruled out that contention for the reason that the offence of incest was committed and the prosecution evidence established that the appellant is the perpetrator. The appellant's general denial could not therefore shake the overwhelming prosecution evidence. In all, we are satisfied that the evidence by PW1 and PW2 coupled with medical evidence (exhibits Pl and P2) established the appellant's guilt beyond a speck of doubts. The appellant was, therefore, properly convicted. Ground five of appeal has no merit. The appellant had also appealed against sentence. The provisions of section 158(1) (a) of the Penal code, above quoted, in no uncertain terms spell out that where the victim of the offence of incest is a female of the age less than eighteen years, a person convicted of that offence is liable to imprisonment for a term of not less than thirty years. At the time the offence was committed, PW2 was only 14 years old hence below eighteen 19

years. The appellant was, for this reason, properly sentenced to a jail term of thirty years. In the light of the above, we have no ground for interfering with the decision of the learned Judge. We accordingly dismiss the appeal. DATED at IRINGA this ih day of October, 2017. S. MJASIRI JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL I certify that this is a true cop of the original. E.F. DEPUTY R TRAR COURTO PEAL 20