Daudi Samwel vs Republic (Criminal Appeal No. 209 of 2009) [2013] TZCA 2235 (31 December 2013)

I IN THE COURT OF APPEAL OF TANZANIA - - - - I ATARUSHA (CORAM:KIMARO, l_,A,, LUANDA, J.A., And MMILLA, J.A~) I CRIMINAL APPEAL NO. 209 OF 2009 DAUDI SAMWEL ........................................... ~ .. APPELLLANT VERSUS THE REPUBLIC ............................................. . RESPONDENT (Appeal from the judgment of the High Co\lrt of Tanzania at Arusha) · (Sambo, J.) 1 I dated the 21 st day of May, 209 in I Criminal Appeal No.189of 2007. I ■■ 11i ■ ••······ JUDGMENT 19 th November, 2013 & 31 st January, 2014 LUANDA, J.A.: I I have had the advantage of reading the Judgment of my sister I Kimaro, J.A. I agree that the appeal should be allowd but on different 1 reason. I will attempt to explain. i The appellant was charged, convicted and sent¢nced to 30 years imprisonment of unnatural offence by the District Curt of Monduli at I . Monduli. His appeal to the High Court was turned ~ down, hence this second appeal. 1 I.

The victim of the offence is a boy of 10 years of: age.By virtue of section 127(2) and (5) of the Evidence Act, Cap 6 RE. 2002 (the Act) the I I evidence of that boy ought to have not been taken uhless and until a I voire dire examination has been conducted. The rec°/rd clearly shows that no voire dire examination was conducted. The trial District Court received that evidence and acted upon it to convict. In the High Court, the appellant raised that failur~ to conduct it as one of the grounds of his appeal. The High Court in the first place was i satisfied that the trial District Court did not conduct a voire dire I examination. However, relying on one of the holding of this Court in Herman Henjewele VR, Criminal Appeal No.f 164 of 2005 I (unreported), the High Court treated that evidence as unsworn which ' need corroboration. The High Court found corroboratiln in the evidence of Shabani Hamisi (PW4). Before us the appellant still challenges the ev:idence of PW2 to have not been properly taken. And so the lower Courts should have not acted upon to ground conviction, inter alia. As regards this ground, my Sister stated as follows:- . I 2 I, I

"We do not fault the learned Judge's holding thJt the I evidence of PW2 had to be treated as unsworn I. evidence. That was the decision of the Court in the case of Henjewele relied upon by the learned ;udge. I I I The issue here is whether the evidence o( PW4 corroborated the evidence of PW2. " My sister travelled through the record, she was unable to find I corroboration in the evidence of PW4 to support the evidence of PW2. I I I She allowed the appeal. Otherwise she would have upho,ld the conviction if the same was corroborated. My concern is whether in law the evidence of PW2 was properly I I taken and acted upon as per the dictates of section 1,,27(2) of the Act. The section reads: 127(2) Where in any Criminal cause or matter a child ! of tender age called as a witness does nqt, in the I opinion of the Court, understand the nature of an I oath, his evidence may be received though not given I upon oath or affirmation, if in the opinion of the Court, I which opinion shall be recorded in the pr0ceedings, 3

.. I he is possessed of sufficient intelligence to Justify the I I reception of his evidence, and understands the dμty of speaking truth." I This section has been interpreted to this effect that before a child of i I tender age tender his evidence whether on oath/affirmation or unsworn . I ! the Court must conduct a voire dire examination to as~ertain whether the said child is a competent witness. Failure to do so will normally result ! the quashing of the conviction in case where there is nq other evidence to sustain the conviction. I The need to conduct a vo,re dire examination as a proper I procedure of taking the evidence of a child of tender age can be traced ! i way back in 1958 in East Africa in Nyasani s/o Bicha11a VR. [1958] EA (CA) 190. In that case which originates from Kenya, the appellant was I convicted of attempting to have carnal knowledge of a 1 girl under sixteen I years of age. The evidence of the complainant, who I was six years of I age, was not given upon oath. The learned trial judge merely recorded I thus: I "PWJ - Nyaboke s/o Mose (aged about 1 6 years promises to tell the truth)" 4

I That recording does not indicate there was a compliance with section 19 I I of the Oaths and Statutory Declaration Ordinance (Cap. 1 ' 20) which we i shall see in this judgment is essentially pari materia wi,th Section 152 of our the then Criminal Procedure Code and which basi;cally is what is our section 127 (2) of the Act, save the proviso. The Section reads: I I I 19(1) Where, in any proceedings before any Court or I person having or person having by law or con$ent of I parties authority to receive evidence, any ahild of i tender years called as a witness does not, 1 in the

• I ' I opinion of the Court, or such person as aforesaid, I understand the nature of an oath, his evidence, though not given on oath, if in the opinion of the court I or such person as aforesaid, he is possJssed of I I sufficient intelligence to Justify the receptioto of the I evidence, and· understands the duty of speaking the I truth; and his evidence in any proceedings ag~inst any ! I person for any offence, though not given on path, but otherwise taken and reduced into writing in I accordance with the provisions of s.229 of thb Criminal , I 5

Procedure Code, shall be deemed to be a depqsition within the meaning of that section. 11 I Provided that where evidence admitted by vittue of i this section is given on behalf of the prosecu~ion in I I any proceedings against any person for any affence the accused shall not be liable to be convicted of the I offence unless that evidence is corroborated by some I other material evidence in support thereofimplicating i him.

• I The then Court of Appeal for Eastern Africa in Nyasani Case said: I '1t is clearly the duty of the Court under that: section to ascertain, first, whether a child tendered as a ! witness understands the nature of an oath, arid, if the I finding on this questions is in the negative, to satisfy I itself that the child is possessed of sufficient I I intelligence to justify the reception of the 1evidence I and understands the duty of speaking the truth. " ! The Court went on and said: 6

I I 'iThis is a condition precedent to the pJ:oper I reception of unsworn evidence from a chi/¢ and it should appear upon the face of the record that there has been a due compliance with the se'ction. 11 [Emphasis supplied]. The Court, however, did not quash the conviction because there was I ! ample evidence apart from that given by the complainant. The Court ' emphasized the need to strictly comply with that provision. It said: i "We do however, emphasize the necessity fdr strict compliance with the provisions of the section. Non~ I I compliance might well result the quashing i of the conviction in a case where the other evidence before the Court was insufficient in itself to sustain the I conviction. rr I In another case from Kenya Kibangeny Arap Kolil, VR. [1959] EA 92(CA) the Court of Appeal for Eastern African emphasized the need to comply with s. 19 of the Oaths and Statutory Declaration Ordinance i reproduced supra. 7

In that case the appellant was charged of murder. Evidence of killing was given by two children who were of tender age. The learned trial judge did not conduct a voire dire examination but the children gave i their evidence on affirmation and the same was not cprroborated. The Court said:- ''Section 19(1) provides as we have seen, that where such a child does not in the opinion of the Court understand the nature of oath his evidence may be received unsworn, if the Court is satisfied of his intelligence and that he understands the duty of speaking the truth. This necessarily implies that before the child can be allowed to give evidence upon oath (affirmation) the Court must satisfy itself that:he does I understand the nature of an oath. Such las the interpretation placed on the passage by this !court in ! the recent case of Nyasani s/o Bichana VR [1958] EA 190(CA) where after reciting the section we held:- It is clearly ... etc. " 8

In Fransisco Matovu V R [1961] EA 260(CA) a case originating ' - from Uganda, again the Court of Appeal for Eastern Africa emphasized I the need on the part of the tria'I Court to conduct a voire dire I examination before taking evidence of a child of tender age as provided I under s. 149(3) of the Criminal Procedure Code, 1959j which basically is pari materia with s. 19(1) of Kenyan Oaths and Statutory Declaration I Ordinance (Cap.20). I I S. 149(3) of the then Ugandan Criminal Procedure Code, 1959 I reads:- 149 (1) N/A (2) N/A (3) Where, in any proceedings any chi/a( of tender years I called as a witness does not, in the opihion of the Court, I i understand the nature of an oath, his f vidence may be receive~ though not given on oath, if, 1 in the opinion of . I I the Court, he is possessed of sufficieht intelligence to justify the reception of the evidence, land understands the duty of speaking the truth:- 9

' I Provided that where evidence admittec:I by virtue of /: I this sub"section is giv1n on behalf of je prosecution the accused shall not be liable to be convicted unless ,\ I such evidence is corrporated by some other material " I evidence in support thf reof. !1 1, I In that case the appellant was Fonvicted by the High Court of Uganda of murdering his wife. The apJellant did not dey that he killed his wife but put a defence of provoca~}on and drunkenn 1 1 ess which were 11 !I I rejected by the Court of Appeal. The \appeal was dism 1 issed. However, !I I the Court of Appeal made two observations, one being that the evidence 1' I ·1 of a boy of 8 years of age which was rnsworn was takn contrary to s. 149(3) of the Criminal Procedure Cod .1959. Again the! Court of Appeal made the following remarks:- •~ judge, when confronted ith a child of tend/ 1 er years i! called to give · evidence, sh&uld himself ques,tion the 11 child to ascertain whether h or she understqnds the I I nature of an oath, and, if thJ judge does not allow the ,: I i. I child to be sworn he shou~p record, whethe[r, in the 11 :1 oninion of the Court, th& child is possessed of f/ , :1 I ,, I 'I 10

I', 'i I sufficient intelligence to justrr the reception of the evidence and understand the tluty of tel/Ing the truth. 11 The Court then said:- . 1 ",t-. · • t f. t · rt 1 · 1-t-. 1 t 11,IS IS no O grea 'Im~ ,nee I~ u,e peser CaS, the assault on Nampmdt {wiff /Jemg ae'milted( butm · another case failure to observe the prov..isioj' s of s. I 149 and record compliance fth them might result in the conviction being unsustaihable. 11 I' In Tanzania Mainland before tlie Evidence Act, 1967 came into :I , I I force on 1 st July, 1967 vide GN 225 4f 1967 the positidm was similar to that prevailing in Kenya and Uganda.· I In Sakila VR. [1967] EA 403(Hq the appellant Ls charged and convicted by the District Court of uJerewe of defiling a girl under the 11 : It l age of twelve. The evidence relied up~n to ground contiction was of the 11 . I three girls who were of tender age. Qn appeal it was found out that the ·,. I 11, evidence on record did not support tlie charge. The appeal was allowed. B t th H . h C rt . . . !I d ·t d' t' f It. ~ ·1 u e 19 ou , in passing expresse I s 1ssa 1s ao 10n on 1a1 ure on II ~i the part of the trial District Court to 9etermine the age of those girls and I 11'

if they were of tender years the Court should have to comply with s.152 (3) of the Criminal Procedure Code, which is pari materia with Kenya and Uganda legislations as to how evidence of a child of tender age should be taken. Section 152 (3) of the then Criminal1 Procedure Code reads:- 152 (1) N/A (2) N/A I (3) Where in any criminal cause or matter any child of tender years called as a witness does not, in the opinion of the Court, understand the nature of an oath, his evidence may be received, though not given upon oath or affirmation, if, in the opinion of the Court, to be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth. Provided that where evidence rec¢ived by virtue of this subsection is given on behalf of the prosecution, the accused shall not be liable to be convicted unless such evidence is corroborated by some other material evidence in support thereof. 12

After reciting that section, the High Court said:M 1 I "It is well established that before the evidence of a I person of tender years is admitted, a voite dire I I examination should be carried out in order that the , I court may satisfy itself that the witness is possessed of I sufficient intelligence and that he understads the duty of speaking the truth · in order to Jusify the i reception of his evidence. And further that where it is I clear that he understands the nature of the oath; his I evidence may then be received on oath or affimation. I Where this procedure is not carried out a,nd the evidence of a person of tender years is of vital1 nature, I it may be that the omission may occasion a ' i miscarriage of Justice (See Kibangeny's case I [1959}EA p.95; Nyasani s/o Bichana VR.1(2) and i I Fransisco Matovu VR. (3 ). These authorities I show that where there is no other eidence other that of the child of tender years Jvho has i not been properly examined the co1;1viction I cannot be sustained. "[Emphasis mine] 13

I In Dhahiri Ally v. Republic [1989] TLR 27 the appellant was charged I I and convicted by the District Court of defilement of a gir~ under fourteen years. He was sentenced to 13 years imprisonment. 1 1 Aggrieved, he • . . I appealed to the High Court against both conviction and s 1 entence. I It was contended by the advocate for the appellant that the I ' evidence of the complainant, a girl of 11 years, was not properly taken I as per the dictates of s. 127(2) of the ;Act. The trial District Court made a finding that the complainant did not .understand the nature of an oath. I She gave unsworn evidence without she was first exam\ned whether she I is possessed of sufficient intelligence and understands the duty of speaking the truth. The High Court said:- I i "The provision is clear that if the child of tenc(er years i does not understand the nature of an oath, her ' ' evidence may nevertheless be received without oath i or affirmation if two conditions are satisfied These I conditions are that: - 14

She is possessed of sufficient intelligence and she understands the duty of speaking the truth. 11 The High Court went on, I quote: - "The trial magistrate must record in the proceedings that such investigation has been made to establish whether the two conditions exist and must make a specific finding of these facts. " To back up that proposition, the High Court made reference to Kibangeny and Nyasani cases cited supra. The appeal was allowed on that ground and the District Court was ordered to commence afresh trial. In Joseph v R (1971) HCD no. 58 the appellant was convicted by the District Court of causing grievous harm to his son who was 9 years of age. But the evidence of that boy was taken without following the procedure laid down under S.127 (2) of the Act. On appeal, the learned High Court Judge said: - 15

''It is a condition of the reception for such ev/dence that the trial magistrate must not be satisfied that the child understands the duty of speaking the truth but I i that he must manifestly appear to be so satisfied because Section 127(2) requires him to record such I fact in the proceedings. The position in this ca'se was I retrieved by the learned magistrate's recordfng the facts in his Judgment that ''on being examined by the Court the child proved not to understand the meaning I of oath but he understand the duty to speak the I truth'~ It is my view that such examination and record I I of the Court's satisfaction of the child's unders/anding of the duty to speak the truth should precede the reception of his evidence and should appear as part of I I the proceedings relating to the child's evide/ilce~ In I this case Petro Flor/an must be regarded as a child of I tender years and his evidence being unsworn or I affirmed requires corroboration as a matter of law." [Emphasis supplied] 16

It is clear from the above passage that no inquiry to ascertain whether I

• • I the child was competent to testify was conducted. The trial magistrate made "a finding" when writing judgment! In terms of S 1 • 127(2) of the Act, that was not proper. Even if I go by the finding of the learned High Court judge that the evidence of Petro was properly tak~ 1 n, the law does not impose a condition precedent that such evidence must be I i corroborated. With the coming into force of the Am: in 1967, the evidence of a child of tender age properly taken as pe~ the dictates of I sub section 2 read together with sub section 3 of section 127 and I whether sworn or unsworn need not be corroborated ~s it used to be under section 152(3) of the then Criminal Procedure ode, reproduced above. It seems to me that Parliament in its wisdom believes tat the testimony I of a child of tender age may be just as reliable as ithat of an adult I
• I provided that before the Court acts on such evidence it must warn itself I the danger of doing so and must also satisfy itself that the said child is I speaking nothing but the truth.(See Shozi Andrew v., Republic [1987] TLR 68). 17

I I I I I, Apart from Joseph case which is, misconstrued s.: 127(2) of the 11 I Act, it is the case of Kisiri Mwita s/o'. Kisiri v. Repu4lic [1981] TLR I, I 218 where the High Court came out/ 1 with an erroneus proposition I i I believing the same as the correct positidn of the law as construed by the ! . i then Court of Appeal for Eastern Afdta and the High, 1 Court that an I I omission to conduct a voire dire before swearing in a i child· of tender !' I years has the effect of bringing that vidence to the itvel of unsworn evidence. The High Court said: - Ji / ! I I , 'The effect of omitting a voire dire before swearing in [ I a child of tender years is quite drastic accoding to I I well settled authorities. In the cases of Kibanneny 1: I :, I , ArapKolil v. Republic [1959] EA 92: Fr4nsisco Matovu v. Republic [1961}/'260; Saki/av. Ripublic , I I :' - I [1967] EA 403 and Joseph iv. Republic [19{1} HCD , I no. 58 both the defunct Eat African Court of Appeal I: I and the Tanzania High cqurt have held f hat the I I omission to conduct a voire 1 :dire before swearing in a : I child of tender years has the effect of bringing that 11 I evidence to the level of unsworn evidence qf a child ,, i and therefore a conviction cannot be sustained bl/ 'I I ~ 18.

I I such evidence unless it is corroborated by : some other independent evidence. 11 . I In that case the appellant and another person were; arraigned and I convicted of cattle theft. The trial District Court convictd the appellant i on the evidence of 13 years old child who gave evidence bn oath without I I first conducting a voire dire examination. 1 I The holding of this case has to large extent influenced 1 the decision of this Court in Deemay Daati & Two Others v. Repulic [2005] TLR I 132 and later Herman Henjewele v. Republic cited aove. I In Deemay case the appellants were acquitted by the trial District I I Court of cattle theft. On appeal to the High Court QY the D.P.P the i learned Judge reversed the decision' of the trial Ditrict Court. She I convicted the appellants and each was sentenced to 5 years I imprisonment. I The appellants were aggrieved. They came to th;is Court. One of I the grounds raised was that no voire dire examination was conducted in I I respect of the evidence of a ten years old boy which is in breach of S. 127(2) of the Act. The Court said:- 19

I "... we agree with Mr. Chad ha that the provisions of ! I section 127 (2) of the Evidence Act, 196~ was I breached. With respect, this aspect was ndt also I addressed by the learned judge. The effect bf the I omission is the issue for consideration in this appeal. ! It is settled law that the 'omission to cdnduct i voire dire examination of a child of tende~ years brings such evidence to the level of unsworn evidence of a child which requires ! corroboration. Decided cases on this are nutt,erous. I See for instance Kibangeny Arap Ko/ii v. Rej,ublic; I Kisiri Mwita sf o Kisiri v. Republic and Dhahiri I Ally v. Republic. "(Emphasis supplied) In Henjewele case the Court said: I ''In a relatively recent decision of this Court f)eemay I I Daati v. Republic Criminal Appeal No. 80 of 1994 I which was given on gh October 2004 we said 1that the I evidence of a child of tender age which is tiven on oath but without conducting voire dire exa~ination 20

under s. 127(2) of the law of evidence Act;' 1967 I should be treated as unsworn evidence which requires corroboration. The court in the case referred to various previously decided cases on unsworn evidence. Such decision were Kibangeny Arap Kofi/ v. Republic [1959] E.A. 92 Kisiri Mwita s/o Kisiri v. Republic [1981] TLR 218 Dhahiri Ally v. Republic [1989} TLR 27." I have deliberately reproduced the above cases supra in extenso to I show that the proposition put across in Kisiri case tha~ an omission to conduct a voire dire test before swearing a child of tender years to have effect of bringing that evidence to a level of unswotn evidence and therefore a conviction cannot be sustained by such evidence unless it is ' corroborated by some other independent evidence find no support in those cases. In actual fact Kisiri case has formulated a novel proposition I which is neither supported by cases nor backed up qy the law. The I position has always being a voire dire examination ml;Jst be conducted before the evidence of a child of tender age is given whether on oath/affirmation or unsworn. This position has been: reiterated in the 21

case of Mohamed Sainyeye v. Republic Criminal Appeal No. 57 of 2010 (Unreported). The Court said. •~o before the evidence of a child of tender ,age is I taken the procedure laid down under s. 127(2), of the Evidence Act must be followed to a ascertain hether such witness is competent to testify on O{Jth or affirmation or not on oath or affirmation. 1 (See, Hassan Hatibu V.R. 1 Criminal Appeal No. 71 0f 2002 (Unreported). " And further that no corroboration is required as a condition precedent to ground conviction on evidence of a child of tender age a it used to be in the past. In view of the above it is clear therefore that the evidence of PW2 was not taken as per the dictates of S. 127(2) of the Act. The evidence of PW2 should not have been received and acted upon. So, the question i of corroboration does not arise and in any case in law his evidence does I not require corroboration, if properly taken. I would therefore allow the ! appeal. 22

.. Since the proceedings were defective, normally the ,'case would be I ordered to start afresh. It should be ordered so. (See F,atehali Manji V.R. (1966) E.A. 341) ,, Ordered accordingly. DATED at DAR ES SALAAM this 31 st day of December, 2013. B.M. LUANDA JUSTICE OF APPEAL I certify that this is a true COP'i of the original. u REGISTRAR COURT OF APPEAL 23