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R v Kumbukeni (Criminal Appeal No. 147 of 2002) [2006] TZCA 45 (31 March 2006)
.RTF of original document
IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(CORAM:
RAMADHANI, J.A., LUBUVA, J.A., And MROSO, J.A.)
CRIMINAL APPEAL NO. 147 OF 2002
ISSA SAIDI KUMBUKENI cccccccccccccc.. APPELLANT
VERSUS
THE REPUBLIC cccccccccccccccccc..
RESPONDENT
(Appeal from the decision of the High Court of
Tanzania at Dar es Salaam)
(Ihema, J.)
dated the 16th day of April, 1999
in
HC. Criminal Appeal No. 24 of 1999
Date hearing of the matter was concluded: 14th February, 2006
Date Judgment was delivered: 31st March, 2006
-----------
J U D G M E N T
MROSO, J.A.:
The appellant was convicted of rape contrary to section 130 of the Penal Code by the District Court of Kisarawe in February, 1999.
He was sentenced to a term of 20 years imprisonment. His appeal to the High Court, Ihema, J., was summarily dismissed. He finally
appealed to this Court.
The memorandum of the appeal to this Court was obviously drafted by a lay person,
containing what appear to be arguments and
puts it on the verge of contravening rule 65 (2) of the Court Rules, 1979 which forbids inclusion of arguments or narrative in a memorandum
of appeal. We have, however, taken a lenient view of that apparent transgression.
There are four grounds of appeal and at the hearing the appellant said he had additional
grounds which, with leave of the Court, he gave from the dock. Those so called additional grounds of appeal were in reality a mere
elaboration of the written grounds.
In the grounds of appeal the appellant criticized the first appellate court for rejecting
his appeal summarily. It is elaborated that it was incumbent on that court to discuss, for example, whether it was proper for the
trial court to admit into evidence a PF3 without the doctor who completed it being required to appear at the hearing to be cross-examined.
Furthermore, that the trial court did not inform the appellant of his right under the law to require the presence of the doctor at
the trial. In the second ground of appeal it is complained that the contents of the PF3 were not read over to the appellant. The
criticism against the trial court and the first appellate court in the third ground of appeal is that there was no sufficient reason
why the alleged rape was reported to the police five days after the event. It is also alleged in the fourth ground of appeal that
there was contradiction between the evidence of PW2 and that of PW3. He asked the Court to allow his appeal.
The evidence on which the trial court convicted the appellant was given by three
witnesses, that is to say, the complainant ? PW1 MJ who was of the age of 12 years when she gave evidence; PW2 ? Mwamvita Salum ?
who was the mother of the complainant and PW3 ? Detective Corporal Halifa.
M ? PW1 ? gave unsworn evidence because she did not know the meaning of an oath.
She told the trial court that the appellant who was her cousin forcibly took her to a bush and had sexual intercourse with her. He
promised to give her shillings 200 but also gagged her to stop her from shouting for help. When she returned home she told her mother
what had transpired and she experienced pain when urinating.
PW2, Mwamvita, told the trial court that M had gone out to play with her friends
and relatives. She returned home at six ofclock but at 8 p.m. she noticed that her daughter was unwell and was sitting down
with difficulty. She also cried out when she went to urinate. On enquiring from her daughter what was wrong with her, she was told
that the appellant had sexual intercourse with her. On examining her she found gshe had a breakage her vaginah (sic).
It is not exactly clear what that means but presumably there was penetration into the vagina. The husband was away and she merely
cleaned the daughter for four days until the husband returned home on the fifth day. When the husband was informed of the rape he
reported both to the ward executive officer and to the police.
PW3 ? D/Cpl. Halifa issued a PF3 to PW1 who was taken to hospital for examination.
The PF3 was tendered in court as an exhibit.
The appellant gave affirmed evidence denying to have raped PW1. He however admitted
that PW1 was his relative, a sister (cousin). He said under cross-examination that there had been a land dispute between himself
and PW1fs relatives.
The trial magistrate was satisfied that the appellant was well known to PW1 as a
relative. He considered that the evidence of PW2 as well as the PF3 had corroborated the evidence of PW1. The gmedical evidenceh
from the PF3 suggested that the appellant was guilty, according to the trial magistrate who proceeded to convict him as charged.
When the appellant appealed to the High Court complaining that the evidence of PW1 had been improperly received and that the trial
magistrate had not properly evaluated the evidence and had misdirected himself on the law in relying on the evidence of PW1, PW2,
PW3 and the PF3, the learned High Court Judge simply minuted to the District Registrar thus ?
The appeal is without substance and is accordingly summarily rejected.
The learned State Attorney, Ms Maganga, for the respondent Republic, supported the
conviction. She argued that the evidence of PW1, a child of tender years, had been properly received and that she was a reliable
witness. The incident had occurred during day light and there could not have been mistaken identity. Although under section 240 (3)
of the Criminal Procedure Act, 1985 the appellant was entitled to be informed of his right to require the doctor who completed the
PF3 to be summoned for cross-examination, the omission by the trial court to do so would have been prejudicial if there was a dispute
that rape had been committed. The failure by PW2 to report the rape promptly to the police had a plausible explanation. She conceded,
however, that it was inappropriate for the first appellate court to reject the appellantfs appeal summarily.
In discussing the appeal we will begin with the ground of appeal that the first appellate
court erred in rejecting the appeal summarily.
The appeal to the High Court was against conviction and sentence, so, although the
learned High Court judge did not say so, he appears to have acted under section 364 (1) (c) of the Criminal Procedure Act, 1985 when
he ordered that the appeal be rejected summarily for want of substance. That provision reads as under:-
364 (1) On receiving the petition and copy required by section 362, the High Court shall peruse the same and ?
a)
(not relevant)
b)
(not relevant)
c)
If the appeal is against conviction and the sentence and the court considers that the evidence before the lower court leaves no reasonable
doubt as to the accusedfs guilt and that the appeal is frivolous or is without substance and that there is no material in the
judgment for which the sentence ought to be reduced, the court may forthwith summarily reject the appeal by an order certifying that
upon perusing the record, the court is satisfied that the appeal has been lodged without any sufficient ground of complaint.
The order of summary rejection which was given by the learned High Court judge does
not give assurance that he read the evidence which was given at the trial and consciously considered that such evidence left no reasonable
doubt as to the appellantfs guilt and hence lacked substance or that there was no material in the trial court judgment that
would justify reduction of the sentence which was imposed on the appellant. Furthermore, there was no certification by the learned
judge that he was satisfied the appeal had been lodged without any sufficient ground of complaint. We are saying, in other words,
that it is quite possible the judge made the order of summary rejection of the appeal casually without giving the grounds of appeal
or even the trial court record any serious consideration. We are saying so because, with respect, the memorandum of appeal to the
High Court in fact raised points which needed consideration. For example, there was the question whether the necessary procedure
for taking the evidence of a child of tender years was fully followed. Section 127 (2) of the Law of Evidence Act, 1967 reads:-
127.
(2) Where in any criminal cause or matter a child of tender age 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, which
opinion shall 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.
Under the same section 127 the expression gchild of tender ageh is defined
in subsection (5) as ga child whose apparent age is not more than fourteen yearsh.
The memorandum of the appeal to the High Court also raised the question of the failure
by the trial magistrate to inform the appellant of his right to require the medical officer who completed the PF3 to be summoned
for cross examination. What was the effect of that failure in law on the facts of that case?
Finally, the trial magistrate found corroboration of the evidence of the complainant
? PW1 ? in the evidence of PW2 and the PF3. Was that finding correct in law?
With the above questions which were raised either directly or impliedly in the memorandum
of the appeal to the High Court, could it properly be said that the appeal was lodged without any sufficient ground of complaint?
With respect, we think the learned judge of the first appellate court erred in rejecting
the appeal summarily. As it is we do not know what views the judge would have had he considered the points which were raised or were
apparent from the appellantfs memorandum of appeal to the High Court. The position in which this Court is now placed is to
have to place itself in the position of the High Court and act as a court of first appeal from the decision of the District Court.
But we are not in uncharted waters. We can gain inspiration from previous decisions of this Court and from persuasive decisions of
other courts out of our jurisdiction.
In a relatively recent decision of this Court (dated 24th November, 2003) ? Idd Kondo v. The Republic, Criminal Appeal No. 46 of 1998 (unreported), the High Court had summarily dismissed an appeal to it from a decision of the District
Court of Ilala. The appellant further appealed to this Court. The Court, like now, found that the High Court should not have dismissed
the appeal summarily. So, this Court was faced with a similar question as is now before us. What should it now do?
The Court in the Idd Kondo case reviewed various decisions of the East African Court of Appeal and a case from India. It deduced from the decisions that it
was a general rule to send the appeal back to the High Court to be admitted to hearing if this Court was satisfied that the power
of summary dismissal was improperly used. But that was not the only option. In some deserving cases the Court could step into the
shoes of the High Court and determine the appeal conclusively. An example of a deserving case was given as where there was a glaring
irregularity or a miscarriage of justice and that the appellant clearly ought to have been discharged. This Court would resort to
stepping into the shoes of the High Court by invoking its revisional powers under section 4 (2) of the Appellate Jurisdiction Act,
1979 (as amended by Act No. 17 of 1993) which reads ?
(2) for all purposes of and incidental to the hearing and determination of any appeal in the exercise of the jurisdiction conferred
upon it by this Act, the Court of Appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act,
have the power of revision and the power, authority and jurisdiction vested in the Court from which the appeal is brought.
The Court in Idd Kondo considered the grounds of appeal in the memorandum of appeal and said the High Court should not have dismissed the appeal summarily
and proceeded to say:-
We are of the decided opinion that had the learned judge on the first appeal properly exercised her mind on the lines we have prescribed
above, she would have discharged the appellant ---. So, we allow the appeal.
In that appeal the State Attorney who appeared for the respondent Republic had declined
to support the conviction.
In the case now before us the Republic supported the conviction although it conceded
that the High Court should not have rejected the appeal to it summarily. This is not therefore a case of a glaring irregularity or
miscarriage of justice and in which the High Court obviously ought to have allowed the appeal to it and discharge the appellant.
We think, therefore, that this is a fit case for remitting to the High Court for
the appeal to it to be admitted to hearing. Consequently, we quash and set aside the order of summary rejection and order that the
appeal should be heard on merits by another judge of the High Court. Considering that the case is already nine years in the courts,
the appeal should be given priority.
DATED at DAR ES SALAAM this 27th day of March, 2006.
A.S.L. RAMADHANI
JUSTICE OF APPEAL
D.Z. LUBUVA
JUSTICE OF APPEAL
J.A. MROSO
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
( S.M. RUMANYIKA )
DEPUTY REGISTRAR
IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CRIMINAL APPEAL NO. 147 OF 2002
ISSA SAIDI KUMBUKENI ……………………………………..
APPELLANT
VERSUS
THE REPUBLIC ………………………………………………..
RESPONDENT
(Appeal from the decision of the High Court of
Tanzania at Dar es Salaam)
(Ihema, J.)
dated the 16th day of April, 1999
in
HC. Criminal Appeal No. 24 of 1999
Between
The Republic ……………………………………………………….
Prosecutor
Versus
Issa Saidi Kumbukeni ……………………………………………….
Accused
-----------
In Court this 27th day of March, 2006
Before: The Honourable Mr. Justice A.S.L. Ramadhani, Justice of Appeal
The Honourable Mr. Justice D.Z. Lubuva, Justice of Appeal
And The Honourable Mr. Justice J.A. Mroso, Justice of Appeal
------
THIS APPEAL coming for hearing on the 14th day of February, 2006 in the presence of the Appellant AND UPON HEARING the Appellant and Ms. Maganga, State Attorney for the Respondent/Republic
when the appeal was stood over for judgment and this appeal coming for judgment this day:-
IT IS ORDERED that, the order of summary rejection is quashed and set aside. IT IS
FURTHER ORDERED that, the appeal should be heard on merits by another judge of the High Court.
Dated this 27th day of March, 2006.
Extracted on 27th day of March, 2006.
( S.M. RUMANYIKA )
DEPUTY REGISTRAR
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