IN
THE COURT OF APPEAL OF TANZANIA
(CORAM: MROSO, J.A., KAJI, J.A. And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL NO. 218 OF 2007
ASAEL
MWANGA………………………….……………….APPELLANT
(Appeal
from the Decision of the High Court of Tanzania
(Munuo,
J.)
dated
the 17th day of September, 1997
MROSO, J.A.:
The appellant was charged with the
offence of defilement of a child of 4½ years, contrary to section 136 (1) of
the Penal Code, Cap. 16 of the laws.
That was in 1996 before the enactment of the Sexual Offences Special
Provisions Act, No. 4 of 1998. The
District Court of Hai at Hai convicted him of attempted defilement contrary to
section 136 (2) of the Penal Code because there was no proof of penetration and
sentenced him to pay a fine of shillings 20,000/=. The Director of Public Prosecutions was
dissatisfied with the sentence which he considered overlenient and appealed to
the High Court. The High Court, Munuo,
J., as she then was, agreed that the sentence of a fine of Shs. 20,000/= was
“manifestly lenient”, she quashed it and set it aside. She imposed a sentence of 20 years
imprisonment. Although the appellant did
not appeal to the High Court against conviction, this time he decided to appeal
to this Court, filing six grounds of appeal.
In all the six grounds of appeal nowhere
does the appellant complain about the sentence as given by the High Court. Instead, he complains against the
conviction. In the first ground of
appeal he alleges that the High Court convicted (sic) him on the basis of
“suspicious evidence”. In the second
ground of appeal he points out that Section 192 (2) of the Criminal Procedure
Act, 1985 was not complied with because he was never called upon to “Sign the
preliminary hearing”, probably meaning that he was not required by the trial
Court to sign a memorandum of undisputed facts as required by Section 192 (3)
of the Criminal Procedure Act, 1985. He
criticizes both the High Court and the District Court for disregarding Section
186 (3) of the same Criminal Procedure Act, 1985. That is a provision which requires the Court
to hear a case in camera under the Sexual Offences Special Provisions Act,
1998.
The appellant also complained in ground
four in his memorandum of appeal that both courts below erred by “considering
circumstantial and hearsay evidence”, and in ground five that a voire dire test was not conducted when
the infant, 4½ year old girl (PW2), gave evidence. In ground six he criticized the two courts
below for not considering section 289 of the Criminal Procedure Act, 1985. That is a provision regarding trials by the
High Court; that the High Court should not take the evidence of a prosecution
witness whose statement was not read out during the committal proceedings
unless there was prior reasonable notice to the accused or to his advocate.
Now, all those grounds, whatever may be
their merits, should have been argued in the High Court had the appellant
lodged an appeal to that Court. In the
event the High Court failed to discuss and decide them satisfactorily, the
appellant could resort to this Court.
What the appellant is now trying to do is to turn this Court to the
first appellate court after the judgment of the District Court.
The appellant seems to have raised some
of these complaints in the High Court when the appeal by the Director of Public
Prosecutions was being heard. He even
reiterated a defence of an alibi
which he had raised during the trial.
The High Court was unable to consider those complaints because there was
no cross appeal by the appellant. He
explained then that he had failed to lodge an appeal in the High Court because
he had fallen ill and eventually found himself time barred to appeal to the
High Court. But he could have applied to
the High Court for leave to cross-appeal out of time. Either out of ignorance or for some other
undisclosed reasons the appellant did not utilise such procedure.
Mr. Henry Kitambwa, learned State
Attorney who represented the respondent Republic, said that if this Court
entertained the grounds of appeal which the appellant filed in this Court, it
would create an unusual precedent whereby parties to a case in the District
Court would sidestep the High Court and appeal directly to the Court of Appeal
against the decision of the District Court, if it found such procedure
convenient.
We agree entirely with the learned State
Attorney. We must, therefore, decline to
turn this Court into a first appellate court from decisions of the District
Court. In the result, we express no
opinion on the grounds of appeal which the appellant brought to this Court.
Although there was no ground of appeal
against the sentence which was pronounced by the High Court, the appellant said
that the sentence for attempted defilement was 14 years imprisonment and that
if this Court reduced the twenty years imprisonment sentence to fourteen years
he would accept it.
It is true that prior to 1992 the
sentence for attempted defilement was 14 years imprisonment. However, the law was amended in that year, by
Act No. 19 of 1992 which introduced a sub-section (4) to section 136 of the
Penal Code, which provided that the sentence for an offence under section 136,
which included attempted defilement, was 20 years imprisonment. That was the law in 1996 when the appellant
committed the offence. Of course, the
offence of defilement was abolished by the Sexual offences Special Provisions
Act, 1998. The High Court judge was
correct, therefore, to impose the 20 years imprisonment, which was the minimum
under the law then.
We dismiss the appeal in its entirety.
DATED at ARUSHA this 23rd day
of October, 2007.
S. N. KAJI
E.M.K. RUTAKANGWA
I certify that this is a true copy of
the original.
(I. P. Kitusi)
IN THE COURT OF APPEAL OF
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