Robert Kivuma v. Republic, Cr app no 48 of 2007 (rape)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:  MROSO, J.A., KIMARO, J.A. And  LUANDA, J.A.)

CRIMINAL APPEAL NO.  48  OF 2007

ROBERT KIVUMA ……………………………………………………. APPELLANT

Versus

THE REPUBLIC ……………………………………………………… RESPONDENT

(Appeal from the Decision of the High Court of Tanzania at Tanga)

(Shangali, J.)

Dated  15^th day of May, 2006

In

Criminal Appeal   No. 82 of 2003

JUDGMENT OF THE COURT

19^th June & 12^th  September, 2008

LUANDA, J.A.

The above named appellant was charged in the District Court of Handeni with rape contrary to sections 130 (2) (e) and 131 (1) of the Penal Code, Cap. 16.  He was convicted as charged and sentenced to 30 years imprisonment.  He was also ordered to pay Tsh. 100,000/=  as compensation to the victim of rape

        Dissatisfied with the finding of the trial Court, he unsuccessfully appealed to the High Court.  Still aggrieved, he has come to this Court.

        In his memorandum of appeal, the appellant has raised four grounds.  Basically, he is challenging the concurrent finding of facts of both lower Courts in three areas.  One, the evidence of the victim of rape was not credible.   Two, it is not proper to ground a conviction basing on the version of a single witness without being corroborated.  Lastly, the appellant claimed that he was not identified at the scene of crime.

        The appellant appeared in person in this appeal, whereas Mr.  Vincent Tangoh learned State Attorney represented the Respondent, the Republic.

        The Court then asked the appellant if he wished to argue his grounds of appeal and further whether he had any additional grounds to make.  The appellant had none and he did not wish to argue his grounds of appeal.  But he said the following words, we quote:-

“ I did not admit to have love affair with the girl”

Then Mr. Vincent Tangoh took the floor.  At first he informed the Court that he did not support the conviction but then he changed position; he supported the conviction.

        Before we go into the details of the appeal,  we think it is useful to give a brief account of the case.  Briefly, the prosecution case from a total of five witnesses was to the following effect:-

All the five prosecution witnesses including the complainant, are related to the appellant.  

        Monica John (PW4), aged 14 years, was staying and sleeping in the same room with her aunt Happyness Paulo (PW1) at Kwedibangala village, Handeni District.  The house they were staying in was not far from those of the appellant and Monica’s parents namely, Debora John (PW2) and John Paulo (PW3)

        On the day of the incident, that is, 7.1. 2003 around 8.30 pm, Happiness Paulo (PW1) went to the house of Monica’s parents.  Around 9.00 pm she returned home but she did not find Monica John (PW4).  She looked for her; she was nowhere to be seen.  She kept a round – the clock vigil at her residence.  As luck would have it, she saw Monica (PW4) emerging from the house of the appellant.  She querried her as to where she was coming from.  Monica (PW4) told her where she came from and pleaded to her not to disclose to any one. PW4 told PW1 that she had sexual intercourse with the appellant, her uncle.  But PW1 right away informed her mother Debora John (PW2).  Monica (PW4) disappeared from the village on the same night.  Later, it was found out that she was taken by the appellant and sent to Chanika village.

        On the following day, a meeting of relatives was convened to discuss the matter whereby the appellant was querried about the whereabouts of Monica (PW4); he told them he did not know.  But five days later Monica (PW4) was seen at Chanika market by Happy (PW1).  She told PW1 that it was the appellant who took her there.

        It is also the evidence of the prosecution that the following morning after the disappearance of Monica (PW4), Mary Yusufu (PW5) who was the sister-in-law to the appellant, met him while she was on her way to Chanika Clinic.  The appellant then asked her  whether there were any words being spoken against him.  PW5 told him there were none. 

        In his defence, the appellant denied to have committed the offence.  However, he told the trial Court how he was arrested.

        Before we discuss the grounds of appeal raised by the appellant we wish first to comment on one aspect which appears to have influenced the High Court (Shangali, J) in upholding the finding of the trial Court.  The High Court stated, interalia, thus, we quote:-

“ One important aspect in this appeal is the fact that the appellant doesnot deny to have committed sexual act with PW4; although during the trial he was reluctant to admit it forthwith.”

The above statement taxed our minds a great deal.  We were wondering whether in law the High Court at the appellate stage could take that statement as an admission to the offence.  Indeed, we solicited views from Mr. Vincent Tangoh and we also invited the views of Mr. Sangawe, learned advocate, as an amicus curiae.  The two gave their views.  But on close scrutiny, we are of the settled view that before we deal with the question of propriety of the High Court action, it is logical we deal first with the question whether what the appellant had said amounted to an admission.  The High Court, no doubt was referring to the statement given by the appellant when he was addressing that court.  The appellant is recorded to have stated the following, we quote;

“ Appellant.

       I pray the Court to consider my grounds of appeal.   The complainant was 20 years old she was my lover.  I never rape her, she consented.   Her parents were annoyed because we were not married.  The Complainant was ……” [Emphasis Supplied]

In this case the appellant was charged with rape C/S 130 (2)(e) of the Penal Code, Cap. 16.

The Section provides:-

130 (2) A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions;

(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 age and is not separated from the man.

In order for an offence of rape under section 130 (2) (e) of the Penal code, Cap. 16 to stick, the following ingredients must be proved by the prosecution, namely:-

                     i.        Sexual intercourse,

                    ii.        With a girl or woman who is under 18 years,

                  iii.        Not the wife of the accused,

                  iv.        It is immaterial whether she consented or otherwise.

It is crystal clear that what the appellant had stated does not encompass all the above mentioned ingredients of the offence of rape as provided under that section.  In actual fact in law what the appellant had stated is not an admission of rape.  Rather, it was a defence.  This is because sexual intercourse with a consenting adult (if in fact PW4 was 20 years old) is not rape.

Since what the appellant had stated did not amount to an admission of rape as provided under the above cited section, the High Court ought not to have taken that statement as an admission.  That was a misdirection. 

Having resolved that point, we now move to consider the grounds of appeal raised by the appellant.  As earlier indicated, the appellant did not argue his grounds of appeal.  In support of the finding of the two lower courts, Mr. Vincent Tangoh submitted to the following effect.  As regards the number of prosecution witnesses to prove a case, the law does not specify any particular number.  The court may convict basing on the evidence of a single witness.  What is important is whether the court believed his version to be nothing but the truth.  He cited Section 143 of the Evidence Act, Cap. 6.  However, he went on to say, this being a sexual offence, the trial court is required by law to address itself on the dangers of relying on that evidence.

In our case, he said the trial court did not warn itself about the dangers of relying on the evidence of PW4.  Though, that was not done, the evidence is strong enough to ground conviction, he submitted.

As regards corroboration, he said the question the appellant asked PW5 as to what they spoke of him corroborated PW4 evidence.  He cited Section 127 of the Evidence Act, Cap. 6.  As to the question of identification at the scene of crime, Mr.  Vincent Tangoh did not discuss it.  Indeed, that was not an issue at all.  We hereby dismiss this ground right away.

We have carefully gone through the proceedings, we are of the settled mind that the appeal is devoid of merits. First, we wish to associate ourselves with Mr. Vincent Tangoh as to the position of law to the number of witnesses to prove a fact that there is no specific number spelt out.   A fact may be proved by a single witness if the trial court believes the witness to be saying nothing but the truth.  This is provided under Section 143 of the Evidence Act, Cap 6.  The section reads:-

146. Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof any fact.

However, in sexual offences the position is more or less the same as above with a slight difference.  Our understanding is that:  Where the victim of such offence is the sole witness, the law provides two alternative schemes namely, the court may convict if it is satisfied that the witness is telling nothing but the truth after it has warned itself about the dangers of doing so and the reasons must be recorded.  In case the trial court does not find it safe to ground a conviction on the evidence of the victim alone, then it should look for corroboration.  This is provided under Section 127 (7) of the Evidence Act, Cap. 6.  The Section reads:-

127 (7) Notwithstanding the preceding provisions of this section, where in a criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the Court shall receive the  evidence, and may, after assessing the credibility of the evidence of the child of tender years of (sic) as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the Court is satisfied that the child of tender years or the victim of the sexual offence is telling nothing but the truth.

On careful reading the proceedings, both courts below based their finding not solely on the evidence of PW4 the victim of rape, but also of other witnesses namely PW1 and PW5, inter alia.  This means the conviction was based on the second alternative limb of the scheme, though they did not state so expressly.  The evidence on record is loud and clear that PW4 evidence was corroborated.  PW4 was seen emerging from the house of the appellant and told PW1 not to disclose that fact to anyone.  Of course, it shows that PW4 consented but since the victim was under 18 years, that is immaterial.  There is also the evidence of PW5 when asked by the appellant as to what people were saying about him.  If he was not involved why did he have to ask such a question? And to crown it all, the appellant and PW4 went together to Chanika village.

In view of the foregoing we are satisfied that the conviction was sound in law.   We agree with Mr.  Vincent Tangoh, the evidence is strong to ground conviction. 

We dismiss the appeal in its entirety.

DATED AT DAR ES SALAAM this 24^th day of July, 2008.

J.A. MROSO

JUSTICE OF APPEAL

N.P.  KIMARO

JUSTICE OF APPEAL

B.M. LUANDA

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

(F.L.K. WAMBALI)

REGISTRAR