IN THE COURT OF APPEAL OF TANZANIA

AT KIGOMA

fCORAM: KWARIKO, J.A.. GALEBA. 3.A. And MASOUD, J.A.1

)

CRIMINAL APPEAL NO. 223 OF 2022

ALONDA EKELA....................................................... ........ APPELLANT

VERSUS
THE REPUBLIC.......................................................................RESPONDENT

(Appeal from the decision of the Court of Resident Magistrate

of Kigoma at Kigoma)

(Maautu, SRM - Ext. 3ur.^

dated the 5th day of August, 2016

in
Extended Jurisdiction Criminal Appeal No. 01 of 2014

JUDGMENT OF THE COURT

6th May & 28th June 2024

KWARIKO, J.A.:

Originally, the appellant, Alonda Ekela was charged and convicted

of the offence of rape contrary to section 5 (2) (e) of the Sexual

Offences Special Provisions No. 4 of 1998 (the SOSPA). It was alleged

by the prosecution that on 16th January, 2007 at about 11:00 hours at

Nyarugusu Refugees' Camp within Kasulu District in Kigoma Region, the

appellant had carnal knowledge with a girl of 7 years old who we will be

referring to as 'AB', the victim or PW1. The appellant was consequently

sentenced to life imprisonment. Aggrieved, he filed an appeal at the

High Court High of Tanzania at Tabora. However, by an order under

section 45 (1) (2) of the Magistrates' Courts Act [CAP 11 R.E. 2002; now

R.E. 2019] dated 2nd March, 2016, that court transferred the appeal to

the Court of Resident Magistrate of Kigoma at Kigoma (the first

appellate court) to be heard and determined by Anna Magutu, Senior

Resident Magistrate with Extended Jurisdiction who dismissed the appeal

for lack of merit. Undaunted, the appellant has come before this Court

on a second appeal.

In their quest to prove the charge against the appellant, the

prosecution paraded four witnesses and tendered two documentary

exhibits. The material facts from the prosecution evidence can be

recapitulated as follows: PW1 stayed in the refugees' camp with her

parents and the appellant was their relative and a neighbour. On 16th

January, 2007 PW1 was at home with her elder sister (PW3) (name

withheld) while their parents had gone to a funeral. While there, the

appellant came and asked PW1 to follow him so that she could assist

him to fetch some water as he had done in the past. PW1 heeded to the

call and left PW3 at home. However, when they reached the appellant's

home, the appellant closed the door and took her straight to his room

and put her in bed. He undressed her and had sexual intercourse with
her. In the course, she felt pain and discharged blood from her private

part. She cried and raised an alarm for assistance. Thereafter, the

appellant gave her 50 shillings and asked her not to disclose the incident

to anyone.

Upon getting back home, her sister PW3 noticed the victim's

clothes having blood. Upon interrogation, the victim had nothing other

than to disclose what the appellant did to her following which PW3 went

to the funeral and informed her father 'EN' (PW2) (name withheld)

about the incident. The matter was reported to the local guards where

the appellant was consequently arrested and sent to the police station.

The victim was taken to the hospital where it was confirmed that she

was sexually assaulted and a PF3 was received in evidence as exhibit

PI. At the police station the appellant was interrogated by No. D 5283

Detective Corporal Alusante (PW4) where he was said to have confessed

to the allegations. PW4 prepared a cautioned statement which was

received at the trial as exhibit P2.

The appellant who was the only witness in defence, denied the

charge. He stated that, on the fateful date he was at home until evening

hours. At around 08:00 pm while still at home he was apprehended by

the local guards for the allegations of rape.

 At the close of the case from both sides, the trial court found that

the prosecution had proved its case as required in law. It entered

conviction and sentenced the appellant as stated earlier.

Upon consideration of the appellant's appeal, the first appellate

court found that all documentary exhibits, namely; a PF3 (exhibit PI)

and the appellant's cautioned statement (exhibit P2) were not properly

admitted in evidence as the appellant was not accorded a right to be

heard before the same were admitted. The court thus expunged them

from the evidence. That notwithstanding, the court still found the case

against the appellant sufficiently proved. It therefore dismissed his

appeal.

In his memorandum of appeal in this Court, the appellant raised a

total of six grounds which we have paraphrased as follows: One, that,

the appellant was charged and convicted basing on a non-existent law;

two, that, the appellant was wrongly convicted under section 235 (5) of

the Criminal Procedure Act (the CPA); three, that, the PF3 and the

appellant's cautioned statement was not properly admitted in evidence;

four, that, PW l's evidence was not corroborated by a medical officer;

five, that, there were contradictions between the evidence of PW1 and

PW3; and six, the appellant's appeal was dismissed not on the strength
of the prosecution evidence but on the weakness of the defence

evidence.

At the hearing of the appeal, the appellant appeared in person,

unrepresented while the respondent Republic had the services of Mr.

Shabani Juma Masanja, learned Senior State Attorney who was assisted

by Mses. Antia Julius Muchunguzi and Naomi Joseph Mollel, learned

State Attorneys.

When invited to argue his appeal, the appellant adopted his

grounds of appeal and preferred for the respondent to reply first to his

appeal reserving his right to make a rejoinder where necessary.

In response, Mr. Masanja opposed the appeal. In respect of the

first ground, he agreed that the provisions of the law upon which the

appellant was charged were truly non-existent in 2007 as they had

already been incorporated in the Penal Code [CAP 16 R.E. 2002] (the

Penal Code]. He however contended that the omission did not prejudice

the appellant since essential particulars of the offence sufficiently

established the ingredients of rape in line with section 132 of the CPA.

He added that, since the appellant understood the charge and

accordingly gave his defence, the omission is curable under section 388

of the CPA.

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 Having considered this complaint, we are in all fours with the

learned Senior State Attorney that section 5 (2) (e) of the SOSPA is now

section 130 (2) (e) and 131 (3) of the Penal Code. Although the charge

cited wrong provision of the law, it did not prejudice the appellant

because all ingredients of rape were provided in the particulars of the

offence. The evidence was also led by the prosecution to prove those

particulars. The appellant having understood the particulars and heard

the evidence, he provided his defence. The omission is thus curable

under section 388 of the CPA. This Court was faced with similar scenario

in the case of Jamali Ally @ Salum v. Republic, Criminal Appeal No.

52 of 2017 (unreported), where the appellant was charged under

sections 130 and 131 (1) (e) of the Penal Code but the appellant

complained that section 131 (1) (e) was non-existent. Having considered

this complaint, the Court held as follows:

"In the instant appeal before us, the particulars

o f the offence were very dear and, in our view,
enabled the appellant to fully understand the
nature and seriousness o f the offence o f rape he
was being tried for. The particulars o f the offence
gave the appellant sufficient notice about the
date when the offence was committed, the
village where the offence was committed, the
 nature o f the offence, the name o f the victim and
her age."

On the strength of this authority, we are in agreement with the

respondent that the omission did not prejudice the appellant and thus

the first ground of appeal has no merit.

In the second ground, we further agree with both parties that at

the conclusion of the evidence from both sides, the trial court wrongly

cited a non-existent section 235 (5) of the CPA in convicting the

appellant. However, the court ought to cite section 235 (1) of the CPA

which provides thus:

"The court, having heard both the complainant

and the accused person and their witnesses and
the evidence, shall convict the accused and pass
sentence upon or make an order against him
according to law or shall acquit him or shall
dismiss the charge under section 38 o f the Penal
Code.,f

It is clear that the provision provides a procedure to be followed by the

trial court at the conclusion of the case from both sides. At that stage,

the trial court stated the following at page 18 of the record of appeal:

I find therefore prosecution side to have

discharged their noble duty proving their case
 against the accused beyond reasonable doubt to
the standard required by taw. I find the accused
guilty as charged and convict him under section
235 (5) o f the CPA 1985. "

It appears that the trial magistrate quoted the law as it was before the

CPA was revised in 2002. However, we find no prejudice to the appellant

since it was stated that the appellant was found guilty as charged. The

charging provisions were stated at the beginning of the judgment. This

complaint is also rejected.

The complaint in the third ground will not detain us. It relates to

the omission by the trial court in respect of the PF3 (exhibit PI) and the

appellant's cautioned statement (exhibit P2) which were admitted in

evidence without affording the appellant his right to be heard. As rightly

submitted by Mr. Masanja, the record of appeal shows that, the first

appellate court dealt with this complaint and expunged the exhibits from

the record. We thus find this ground without merit.

The appellant's complaint in the fourth ground of appeal is that,

the evidence of PW1 lacked corroboration from the medical doctor. It

was Mr. Masanja's submission that the evidence of PW1 was properly

considered by the two courts below even if the medical doctor did not

testify. On our part, we have taken note of the fact that the medical
doctor did not testify for the prosecution side but it is a settled principle

of law that medicai evidence is not the only evidence that can be relied

upon to prove a sexual offence as long as there is some other evidence

to sufficiently establish the offence. See for instance; Mussa Ally

Onyango v. Republic, Criminal Appeal No. 75 of 2016 (unreported). In

the instant appeal, whether or not the prosecution evidence sufficiently

proved the case against the appellant, is the discussion we shall have

later in this judgment. This ground therefore has no substance and we

dismiss it.

In the fifth ground, the appellant's complaint is that there were

contradictions between PW1 and PW3. Responding, Mr. Masanja agreed

that there are such contradictions in two aspects: First, that, while PW1

said that the appellant took her from home in the presence of her sister

(PW3), on her part PW3 did not say she saw the appellant take PW1

away. Second, while PW1 said that she found PW3 at home when she

came back from the appellant's home, PW3 said she had gone to the

funeral when PW1 returned home. It was the learned counsel's

contention that the contradiction is not material so long as the incident

of rape occurred.
 We have gone through the record of appeal and find it apposite to

reproduce necessary and contested parts of the evidence of PW1 and

PW3. At page 4, PW1 said thus:

"I remember that on the l& hJanuary 20071 was

at home. I was in the company o f my elder sister
one 'NE'. Our parents had attended a funeral at
DW3 village within Refugees Camp. While there
at home; accused person appeared at our home.
He found me in the company o f my elder sister.
Accused asked me to follow him to his home and
to assist him to fetch some water. As the
accused is related to us; I agreed to accompany
the accused to his home. I left my sister behind
at our home."

PW1 further said that, after the alleged incident of rape, she returned

home. This is what she said:

"/ proceeded back home where I found my elder

sister 'NE' at home. I did not disclose to her the
matter...."

While at page 5 PW3 stated thus:

"On l@h January 2007 at around 11 am I was at

our home in the company o f PW1 'AB' my
parents had attended a funeral. While there I
discovered that PW1. AB' was missing at our
home. I started to trace [her]. Young children

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 who were playing outside our home told me that
they saw the accused in the company o f PW1
AB' and that they were proceeding to accused
person's home. I followed PW1 AB' at the
accused person's home and found the accused to
have locked the door. I knocked the door but he
never opened the door. I decided to return back
home and proceeded to the funeral. I returned
back home at around 8 pm where I found PW1
AB' to have already returned back..."

This evidence shows a completely different account of events between

PW1 and PW3. While PW1 said the appellant took her in the presence

and full view of PW3, it is different with PW3 who did not say she saw

the appellant at their home that day. Further, PW1 said when the

appellant was raping her, she cried and raised an alarm for assistance,

but she did not say that she heard someone knocking at the appellant's

home for the duration she was there as her sister said she went to the

appellant's home and knocked the door without response. And while

PW1 said when she returned home after the incident, she found PW3 at

home, PW3 said she had gone to the funeral and upon coming back that

is when she found PW1 at home.

It is a salutary principle of law that where there are contradictions

in the evidence from the prosecution, the court is enjoined to address

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them to find out whether they are minor or not. See Mohamed Said

Matula v. Republic [1995] T.L.R. 3. It is our considered view that

these contradictions from the key witnesses are not minor. The

contradictions affect the credibility of these two witnesses as to whether

the appellant took the victim from her home and raped her. The

contradictions render the prosecution case doubtful. It is again a settled

principle of law that in criminal trials it is the duty of the prosecution to

prove their case beyond reasonable doubt. See for example the Court's

decision in Issa Mwanjiku @ White v. Republic, Criminal Appeal No.

175 of 2018 (unreported). From this analysis, we find the fifth ground

meritorious.

In the sixth ground we agree with the appellant that the accused

can only be convicted on the strength of the prosecution case and not

on the basis of the weakness of his defence. However, the first appellate

court did not hold that it dismissed the appeal on the basis of the

weakness of the appellant's defence but it did so on the strength of the

prosecution case.

Eventually, we have found that the prosecution case was not

proved beyond reasonable doubt, we thus allow the appeal, quash the

conviction and set aside the sentence of life imprisonment imposed on

the appellant. We finally order the appellant's release from prison unless

his continued incarceration is related to other lawful cause.

DATED at DAR ES SALAAM this 26th day of June, 2024.

M. A. KWARIKO
JUSTICE OF APPEAL

Z. N. GALEBA
JUSTICE OF APPEAL

B. S. MASOUD
JUSTICE OF APPEAL

The Judgment delivered this 28th day of June, 2024 in the presence of

the Appellant who appeared in person and Ms. Edna Makala, learned State

Attorney for the Respondent/Republic, is hereby certified as a true copy of the

original.

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