IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
( CORAM: MKUYE. 3.A.. KITUSI. 3.A.. And ISSA. J.A.^
CRIMINAL APPEAL NO. 275 OF 2021
MATHIAS JOSEPH................................................................. APPELLANT
VERSUS
REPUBLIC....................................................................... RESPONDENT
(Appeal from the decision of the High Court of Tanzania
at Mwanza)
(Mashauri, J.1
dated the 18thday of February 2021
in
Criminal Appeal No. 147 of 2020
JUD GM EN T OF THE COURT
l 5ih & 21st August, 2024
KITUSI. J.A.!
The appellant was tried before Chato District Court for two related
offences. The first was rape contrary to section 130 (1) (2) (e) and 131
(1) of the Penal Code. The second was impregnating a Primary School Girl
contrary to section 60A (3) of the Education Act Cap 353, as amended by
section 22 of the Written Laws Miscellaneous (Amendments) Act No. 2 of
2016.
It was alleged in relation to the first count that on 18th April, 2019
at Mtundu village in Chato District, the appellant had carnal knowledge of
i
a girl who was aged 14 years, an offence under the cited provisions of the
Penal Code. In relation to the second count, it was alleged that on the
same date and at the same place and time, the appellant impregnated
the alleged victim of the first count who was a scholar at Mtundu Primary
School.
The District Court convicted the appellant with both counts and
imposed custodial sentence of 30 years for each, to run concurrently. The
appellant unsuccessfully appealed to the High Court, it taking the view
that the true evidence of rape comes from the victim and that: "it is a
cardinalprinciple o flaw that a man who had sexual relation with a woman
and whom she names is responsible for her pregnancy even If the woman
had more than one lover [See Didas Paulo v. Christina Leiya (1968)
HCD 488]". It dismissed the appeal.
This is a second appeal. It raises 10 grounds in the substantive
memorandum of appeal and 6 grounds in the supplementary
memorandum. However, we took special interest in ground 2 of the
substantive memorandum of appeal, which raises the following complaint:
"2. That the 1st appellate court's judgment does
not meet the mandatory statutory requirement
enlisted under section 312 (1) o f the Criminal
Procedure Act Cap. 20 (R.E. 2019) as it omits to
analyse and determine each ground o f appeal
presented to it by the appellant."
We invited Mr. Castuce Ciemence Ndamugoba, learned Principal
State Attorney representing the respondent/ Republic to address us on
this point first. We did so, painfully aware that if this ground carries the
day, it may render the other grounds of appeal premature. Incidentally,
the appellant had earlier presented all grounds of appeal for our
consideration, praying for an order allowing the appeal and setting him
free.
Mr. Ndamugoba briefly submitted that it is true that the High Court's
pronouncement generalized the appeal leaving out two grounds
undetermined. One ground was in relation to the absence of evidence of
DNA and the other was on the credibility of PW3, the alleged victim of the
offence. Conceding, Mr. Ndamugoba submitted that the irregularity
amounted to denying the appellant the right to be heard. He cautioned
against this Court stepping into the shoes of the High Court, in that by
doing so, it shall have exceeded its mandate and that the appellant will
be denied his right of a second appeal should he feel aggrieved.
3
As a way forward, Mr. Ndamugoba prayed that we should invoke
our revisional powers under section 4(2) of the Appellate Jurisdiction Act
(AJA), nullify the proceedings before the High Court and order a rehearing
of the appeal. We agree with the learned Principal State Attorney but we
shall briefly skip determination of this point to later. At the moment, in
keeping with our duty to ensure proper and correct application of laws,
we have to iron out a small wrinkle. We have done so previously such as
in Evarist Arobogast v. Republic, Criminal Appeal No. 60 of 2021,
[2024] TZCA 348 (10 May 2024).
It is in relation to the learned judge's reference to the case Didas
Paulo (supra) and the principle that whoever is named by a woman as
being responsible for her pregnancy, must be the father of the child even
if the woman was seeing other men. When we drew Mr. Ndamugoba's
attention to this statement he submitted that it is incorrect and irrelevant
to the case at hand because it applies to issues of fatherhood.
We agree that the case cited by the learned judge and its principle
is, with respect, not relevant to the facts of this criminal case. The issue
before the court in this case was the alleged criminality of impregnating a
girl who happens to be a school girl thereby causing her not to attend
school. It was no an issue of paternity as in Didas Paulo (supra), which
would be under a totally different regime of law.
Back to Mr. Ndamugoba's submissions with which we earlier said
we agree. The petition of appeal at pages 28 - 29 of the record raises at
least two key issues which were not determined by the High Court. Since
the learned judge's determination of the charge of rape was based on the
principle that true evidence of rape comes from the victim, it was
incumbent upon the High Court to make a finding on the 6th ground of
the petition which we reproduce as it is, as follows:
"6. That, the only afterthought and utterances o f
PW3 can hardly be relied on since the Court admits
to have convinced PW3 to testify against the
appellant and nowhere said to have tested the
credibility of the victim (PW3)"
In our view, credibility of the victim was of the essence in this case,
in line with section 127 (6) of the Evidence Act otherwise there would be
no basis for the court stating that true evidence of rape comes from the
victim. Thus, we agree with the submissions and prayer made by Mr.
Ndamugoba that the proceedings before the High Court be nullified and
we order so under section 4 (2) of AJA because the appellant was denied
a fair and adequate hearing.
As this ground is sufficient to dispose of the appeal, we shall not
address the rest of the grounds of appeal. Consequently, we quash the
judgment of the High Court and order a fresh hearing of the first appeal
according to law. Meanwhile the appellant to remain in custody to wait
for the re-hearing of the first appeal, which should be as soon as possible.
DATED at MWANZA this 20th day of August, 2024.
R. K. MKUYE
JUSTICE OF APPEAL
The Judgment delivered this 21st day of August, 2024 in the
presence of Appellant in person and Mr. Deogratius R. Rumanyika, learned
State Attorney for the Respondent/Republic, is hereby certified as a true
copy of the original.
'Mm-
A. :hw
S. CHWGULU
DEPUTY REC
REGISTRAR
COURT OF APPEAL
