APPRAISAL OF COURT OF APPEAL (CAT) CASES CONDUCTED

AT ARUSHA IN THE MONTH OF SEPTEMBER AND OCTOBER 2022.

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Introduction
The Court of Appeal of Tanzania is an apex court of the land and a creature of the
constitution. The Court of Appeal is a union court and the court of records. CAT has
different stations where they sit to hear appeal cases, Arusha being among those
stations within the United Republic of Tanzania. The court conducts its session in
Arusha thrice, or fourth times in a year; the last one completed in Arusha is from
September to October 2022. The session comprised twenty-two (22) cases
which were vigorously fended by the Arusha State Attorneys, and the results
were tremendous, as discussed hereunder. The discussion will pinpoint the
offence, the Attorneys that fended the appeal, the course taken by attorneys in
fending the appeal, principles laid, the outcome of the appeal and lessons
learned, if any, from each case.
.

Analysis of the Cases

1. ISSA MUSTAPHA GORA and ADAM MUSTAPHA HIMAY
Versus REPUBLIC, CRIMINAL APPEAL NO. 330 OF 2019, CAT
Arusha (Unreported) [28th September & 19th October 2022]

Offence: The appellants were jointly charged in the first count of unlawful
possession of a government trophy contrary to section 86(1) and (2) (b) of the
Wildlife Conservation Act No. 5 of 2009 (the WCA) read together with paragraph 14
of the Schedule to, and sections 57(1) and 60(2) of the Economic and Organized
Crimes Control Act, (the EOCA). They were convicted as charged, and each
sentenced to pay TZS 982,800,000.00 as a fine or serve 20 years imprisonment in
default.

State Attorneys who fended the Appeal

i. Ms Janeth Sekule learned Senior State Attorney,
ii. Ms Upendo Shemkole, State Attorney and;
iii. Ms Lilian Kowero, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously
fended with Ms Upendo Shemkole, State Attorney.

Principles laid
i. Status of Valuation Certificate of Trophies. Valuation Certificate of trophies
in law is prima facia proof of its contents as was held by the Court in Emanuel
Lyabonga vs Republic, Criminal Appeal No. 122 of 2020 (unreported).

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ii. Powers of Court of Appeal as a first appellate court. Court of Appeal, the
first appellate court in law, has the power to re-evaluate the evidence on
record and make its own findings. (See Christina d/o Damiano vs Republic,
Criminal Appeal No. 178 of 2012 (unreported).

iii. The doctrine of common intention. The doctrine of common intention, as

distinguished from similar intention, can only be successfully invoked where
two or more persons form a common intention to prosecute an unlawful
purpose and commit an offence. They are eventually jointly charged and tried
together. See section 23 of the Penal Code, Cap 16.

In establishing common intention, it is crucial, therefore, that cogent evidence

must be led to show that there was a meeting of the mind of two or more
persons in pursuing a common plan to commit an offence.

iv. Amendment of Charge. The prosecution is obligated to regularly crosscheck,

ensure that the charge they filed is proper, and amend it if found otherwise.
Section 234 of the CPA imperatively places that duty on them (prosecution),
as was stated in the case of Mohamed Kaningo v R [1980] TLR 279.

HOWEVER, failure to amend the charge does not necessarily render it fatally
defective. As rightly argued by the learned State Attorney (MS Upendo
Shemkole), where the particulars of the offence and evidence presented
inform an accused in sufficient detail of the offence laid against him, the
defect is curable in terms of various decisions, INCLUDING Jamali Ally @
Salum v, Republic, Criminal Appeal No. 52 of 2017 (unreported)

v. Chain of custody in the absence of paper trail. But that, in effect, does not
affect the credence of exhibits seized and tendered in court as an exhibit
where it is established by cogent, consistent and credible evidence that
the seized property was handled correctly such that it eliminated the
possibilities of it being tampered with or implanted.

In such situations and in particular, where the items subject of custody cannot
change hands easily, the need for a paper trail may be relaxed.

In this case, elephant tusks are not items which change hands easily.
Oral evidence was sufficient to show the movement of those elephant tusk in
this case. (see Leonard Manyota vs Republic, Criminal Appeal No. 485 of
2015 (unreported), Kadiria Said Kimaro vs Republic, Criminal Appeal No. 301
of 2017 (unreported))

vi. Who may issue a trophy valuation certificate? Section 86(4) of the Wildlife
Conservation Act, 2009, a person mandated to issue a Trophy Valuation
Report is the Director or a Wildlife Officer from the rank of Wildlife Officer as
was held in Jamali Msombe and Another vs Republic, Criminal Appeal No. 28
of 2020 (unreported)

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vii. Consideration of Mitigating factors where the Judge or Magistrate has
discretion. In Shene Ramadhan @ Idd vs Republic, Criminal Appeal No. 80
of 2020 (unreported), the Court warned of the danger involved in not attaching
a deserving weight to mitigating factors that it may lead to the imposition of
unwarranted harsh or severe sentences. But this is the case where the
learned judge or magistrate is vested with discretion to determine an
appropriate sentence by the law.

viii. Format of a search warrant under section 38 of CPA and 106 of

WCA. Sections 106 of the WCA and 38 of the CPA serve the same purpose
as they provide for the manner of conducting a search. The two provisions do
not provide for a special format of the search warrant and seizure certificate.
Since exhibit PI reflected the necessary information required of a search
warrant and a seizure certificate, we find it not difficult to accept that it
served as both a search warrant and a seizure certificate.

The outcome of the appeal

i. The appeal against the 1st appellant was found lacking merit. It was
dismissed.
ii. The appeal against the 2nd appellant succeeded and was allowed it,
quashed his conviction and set aside the sentence meted on him.

Lessons Learned.
i. In cases involving hiring services such as motorcycles, where the passenger
and rider are charged with possession of contraband, the prosecution must
elicit evidence from its witness to connect both persons with the knowledge of
the contraband found or establish a common intention between the two
persons.
ii. Any law be it the Criminal Procedure Act or Wildlife Conservation Act, does
not provide the format of the search warrant and certificate of seizure;
therefore, how they appear is not a matter of concern. Instead, the particulars
contained in the document are what matters.

2. WILSON ELISA @ KIUNGAI VERSUS THE REPUBLIC,

CRIMINAL APPEAL NO. 449 OF 2018, CAT Arusha
(Unreported), [26h September, & IIP October 2022]

Offence: Appellant was convicted and sentenced the appellant to serve 30 years in
prison for the offence of rape contrary to sections 130(i)(2)(e) and 131 (1) of the
Penal Code.

State Attorneys who fended the Appeal

i. Ms Lilian Aloyce Mmassy, Senior State Attorney,
ii. Ms Grace Michael Madikenya, State Attorney and
iii. Ms Penina Joachim Ngotea, State Attorney

The course taken in fending the appeal.

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At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Grace Madikenya, State Attorney.

Principles laid
i. Proof of Age in Sexual Offences. The victim may give evidence as to
proof of age, relative, parent, medical practitioner or, where available, by
the production of a birth certificate. age may be deduced from other
evidence and circumstances availed to the court, which is permissive
under section 122 of the Evidence Act. [see Issaya Renatus vs Republic,
Criminal Appeal No. 542 of 2015 (unreported)].

ii. Failure to cross-examine crucial facts. Besides, these crucial facts were
not challenged by the appellant by way of cross-examination or during
defence which signified acceptance of being true pertaining to the age of
the victim.

iii. Failure to read the exhibit after admission. in the authority of Robinson
Mwanjisi and Others vs Republic [2003] TLR 218 it will be expunged from
the record as presumed that the accused was not made aware of the
contents of the exhibit.

iv. The number of witnesses to testify. It is not in terms of section 143 of

the Evidence Act, the number of witnesses that matters in proving a fact
but credence of their testimony.

v. Contradiction on the time the offence was committed. Section 234 (3)
of the CPA is very clear on this. It provides that variance between the
charge and the evidence adduced in support of it with respect to the time
at which the alleged offence was committed is not material, and the charge
need not be amended for such variance if it is proved that the proceedings
were commenced within time if there is any time limit set for an institution
of such proceedings.

 It is logical that witnesses are not expected to draw their attention to

the time of a particular happening; instead, they draw their attention
to the occurrence itself.
 It is no wonder that witnesses of the same incident may not be
exact and are prone to telling different times of the incident.
 However, what is important is that the difference should be
reasonable.
 Expressions of time that it was morning, afternoon, evening or night
time or even periods of time would suffice.

vi. Visual Identification of the accused at the scene of the crime.

Generally,
 Evidence of visual identification is of the weakest kind, and before
basing conviction on such evidence, the court must be absolutely
sure that it is watertight.

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 It is elementary that in a criminal case, whose determination
depends essentially on the identification evidence on conditions
favouring a correct identification is of the utmost importance
 In matters of identification, it is not enough merely to look at factors
favouring accurate identification. Equally important is the credibility
of witnesses.

In this case, Much as it can be said that the conditions were not very favourable
for proper and unmistaken identification, the time the victim had the appellant in
observation in such proximity during the rape incident and being familiar with the
appellant, we are convinced that she was able to see and identify the appellant. As
an assurance of her credibility, she named the appellant to PW2 and PW3 at the
earliest opportunity.

The outcome of the appeal

The appeal against the appellant lacks merit and dismissed

Lessons Learned.
i. Visual identification during the night does not always mean there must be
light. Other circumstances, such as proximity, the familiarity of the accused
and victim before incidence day, and the naming of the suspect at the
earliest stage, may prove visual identification in the absence of light.

ii. Proof of age in sexual offences as much as its crucial, but it is not a fast
and hard rule. The circumstance of the case and how the victim gave
his/her testimony will be determinant.

3. JOSHUA JOSEPH @ PAULO VERSUS THE REPUBLIC,

CRIMINAL APPEAL NO. 307 OF 2018, CAT Arusha
(unreported) [23rd September & 6th October 2022]

Offence: The appellant Joshua Joseph @ Paulo was charged with and convicted of
the offence of armed robbery and sentenced to thirty years imprisonment.

State Attorneys who fended the Appeal

i. Ms Akisa Mhando, Senior State Attorney
ii. Ms Eunice Makala, State Attorney
iii. Mr Tonny Kilomo, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Akisa Mhando, Senior State Attorney.

Principles Laid
i. Particulars of the charge of armed robbery. the failure to mention a
wallet in the charge sheet did not have any effect on the offence of
armed robbery the appellant stood charged with and convicted as long

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as the key ingredients of the offence under section 287A of the Penal
Code were disclosed and evidence led to prove them as it were.
ii. The doctrine of the actual offender. This means every person who
actually does the act or makes the omission which constitutes the
offence as per the ambits of section 22 of the Penal Code, Cap 16

iii. Power of the Court of Appeal to step into the shoes of Trial Courts
to evaluate evidence. Court of Appeal did examine the appellant's
defence alleging that his arrest at the scene of the crime was in
connection with a fracas between PW1 and him over a girlfriend; we
have come to the firm view that that defence was too remote to arise
any doubt in the overwhelming prosecution evidence.

iv. New grounds on the point of law. The court entertains the new
grounds of appeal on the point of law.

The outcome of the appeal

The appeal was found to be destitute of merit, and it was dismissed in its entirety.

Lessons learned
i. In charges of armed robbery where the victim failed to give evidence of the
property stolen does not amount to contradiction.
ii. Failure to mention all items stolen in the armed robbery charge does not
render the charge defective.

4. LUCAS S/O BURA @ AMNAAY Versus THE REPUBLIC,

CRIMINAL APPEAL NO. 456 OF 2018, CAT Arusha
(unreported) [30th September & 6th October 2022]

Offence: Appellant Lucas s/o Bura @ Amnaay of two counts of criminal trespass
and contempt of court order, both under the relevant provisions of the Penal Code.

State Attorneys who fended the Appeal

i. Ms Agnes Hyera, Senior State Attorney
ii. Ms Adelaide Kasala, Senior State Attorney and
iii. Ms Naomi Mollel, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Agnes Hyera, Senior State Attorney.

Principles Laid
i. Court visit to locus in quo. The court cannot visit the locus in quo where
there was no dispute on the location of the land, which could have afforded
the opportunity to see objects and places referred to in evidence physically
and clear doubts arising from conflicting evidence.

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ii. Execution of decree in criminal trespass. We have asked ourselves
whether there was any decree to be executed by the complainant in the first
place. We respectfully hold the view that there was no decree capable of
being executed at the instance of the complainant. This is so because the
Primary Court dismissed the appellant's claim for recovery of the disputed
land with the net effect that the complainant's title to it was thereby confirmed.

The outcome of the case

The appeal was found to be destitute of merit, and it was dismissed in its entirety.

Lessons learned
No one could trespass on his own land.

5. YUSTUS AIDAN VERSUS THE REPUBLIC, CRIMINAL APPEAL

NO. 454 OF 2019, CAT Arusha (unreported) [28th September &
6th October 2022]

Offence: The appellant was convicted for the offence of rape of a 12 years girl
predicated upon section 130 (1) (2) (e) and 131 (1) of the Penal Code, earning him a
sentence of 30 years imprisonment.

State Attorneys who fended the Appeal

i. Ms. Janeth Sekule, l Senior State Attorney
ii. Ms.Lilian Kowero, State Attorney
iii. Ms Upendo Shemkole, State Attorney,

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Janeth Sekule, Senior State Attorney.

Principles Laid
i. The best evidence in a sexual offence. the best evidence in sexual offences
must come from the victim. See, for instance: Selemani Makumba v. Republic
[2006] T.L.R 379 reinforcing the spirit under section 127 (6) of the Evidence
Act.

ii. Importance of trial court to note demeanour. It will be recalled that, in its
judgment, the trial court remarked on the appellant's demeanour, pointing to
his guilt as he could not look at PW1 when she was testifying.

iii. Circumstances that may lead to interfering with concurrent evidence of

trial courts. Only if such concurrent findings of fact resulted from
misapprehension or non-direction of the evidence on record, causing injustice.

iv. Indication of time in a charge. showing time in the charge sheet is not a
legal requirement, but in terms of section 234 (3) of the CPA and as we said
in John Stephano & Others v. Republic, Criminal Appeal No. 257 of 2021

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(unreported), specifying time in a charge can only be necessary where time is
of the essence in proving the offence.

v. The variance of charge and evidence in relation to time. If there is any

variance between the charge and evidence in relation to the time on which the
offence was committed, such variance would be immaterial, and the charge
need not be amended.

The outcome of the appeal

The appeal was found to be destitute of merit, and it was dismissed in its entirety.

Lessons learned
Leading witness to discount events of the case in a nitty gritty is a ticket to a
successful appeal. In this case, PW1 was able to recount all the events that
happened to her, including the ability to identify the appellant as the person who
ravished her was found to be credible.

6. FATUMA SAID MAHANYU Versus THE REPUBLIC, CRIMINAL

APPEAL NO. 323 OF 2019, CAT Arusha (unreported) [30h
September, & 12th October 2022]

Offence: Appellant was convicted of obtaining money by false pretences contrary to

section 302 of the Penal Code. She was sentenced to serve twelve months
imprisonment. It also ordered her to compensate the complainant TZS
14,000,000.00 and also pay TZS 500,000.00 being compensation for the loss and
disturbance caused (general damages).

State Attorneys who fended the Appeal

i. Ms Agnes Hyera, Senior State Attorney
ii. Ms. Adelaide Kassala, Senior State Attorney
iii. Ms. Naomi Mollel, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Adelaide Kassala, Senior State Attorney.

Principles Laid
i. Evidence of close relatives. no law prohibits relatives from testifying against
or in favour of a person who is their relative. the evidence of related witnesses
is credible, and there is no rule of practice or law which requires the evidence
of relatives to be discredited unless there is ground for doing so.

ii. Elements of the offence of Obtaining Money by False pretence.

 false pretence
 obtained money
 with the intention to defraud produced in court.

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iii. Bindingness nature of credibility of witnesses on Appeal Court. A trial
court's finding as to the credibility of witnesses is usually binding on an
appellate court unless there are circumstances on the record which call for a
reassessment of their credibility.

iv. Who may tender exhibit? The settled law is to the effect that an exhibit may
be tendered by any person who had, at any time, dealt with it. The object of
the rule is to ascertain the identity of the said exhibit as the very one which it
is claimed to connect the accused with the offence charged.

v. Mitigation in obtaining money by false pretence cases and the like.

mitigation factors would only serve the purpose of determining an appropriate
custodial sentence or fine payable and not the amount of money to be
refunded which the appellant obtained by false pretences.

The outcome of the appeal

The appeal was found to be destitute of merit, and it was dismissed in its entirety.

Lessons learned
Incriminating evidence during a defence case is self-defeating evidence which, by
any stretch of the imagination, cannot raise doubt but advance the prosecution case.

7. FAUSTINE YUSUPH VERSUS THE REPUBLIC, CRIMINAL

APPEAL NO. 455 OF 2018, CAT Arusha (unreported) [28 th
September & 13th October 2022.]

Offence: the appellant was charged and convicted with the offence of rape contrary
to sections 130 (1) (2) (e) and 131 (1) of the Penal Code and sentenced to life
imprisonment.

State Attorneys who fended the Appeal

i. Ms. Janeth Sekule, l Senior State Attorney
ii. Ms.Lilian Kowero, State Attorney
iii. Ms Upendo Shemkole, State Attorney,

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Janeth Sekule, Senior State Attorney.

Principles Laid
i. Whether citing the sentencing section in a charge is Mandatory. the
position we endorse is that the charge sheet is not defective by not citing a
sentencing provision. This is because pursuant to section 132, citing the
sentencing provision is not a legal requirement. Similarly, under section 135 of
the CPA, it is not a prerequisite on the charge sheet format to spell out the
sentence. This requirement has, in essence, been established from
practice.

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POINT TO NOTE:
In this case, the Court of Appeal acknowledged that while taking note of the
position of the cases of Simba Nyangura v. R, Criminal Appeal No. 144 of 2008,
cited in the case of Marekano Ramadhani v. R, Criminal Appeal No. 202 of 2013
(both unreported), they admit that the same was arrived at without fully
examining the significance of sections 132 and 135 of the CPA, which do not
expressly require the citation of penalty provision. Somehow, they departed from
their previous decisions that;
“…once charged with the offence of rape, the appellant must
specifically know under which subsection of section 130 (2) of the
offence of rape he would be sentenced, and that description was
considered applicable to offences under section 131 of the Penal
Code, too.”

At any rate, omission to cite sentencing, the provision would not render the charge
sheet defective. Such defect is curable under section 388 of the CPA.

The outcome of the appeal

The appeal was found to be destitute of merit, and it was dismissed in its entirety.

8. PASKALI KAMARA VERSUS THE REPUBLIC, CRIMINAL

APPEAL NO. 457 OF 2018, CAT Arusha (unreported) [ 20h
September & 13th October 2022.]

Offence: Paskali Kamara was arraigned before the District Court of Longido at
Longido for the offence of rape contrary to sections 130 (1) (2) (e) and 131 (3) of the
Penal Code and convicted on his own plea of guilty.

State Attorneys who fended the Appeal

i. Ms Agnes Hyera, Senior State Attorney
ii. Ms Adelaide Kasala, Senior State Attorney and
iii. Ms Naomi Mollel, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Naomi Mollel , State Attorney.

Principles laid
1. Failure to read exhibits after a plea of guilty. Failure to read an exhibit in
court after a guilty plea does not vitiate the plea entered since that was not a
legal requirement.

2. Circumstances to challenge the plea of guilty. "An accused person who

has been convicted by any court of an offence on his own plea of guilty, may
appeal against the conviction to a higher court on any of the following
grounds:

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a. That, even taking into consideration the admitted facts, his plea was
imperfect, ambiguous or unfinished and for that reason, the lower court
erred in law in treating it as a plea of guilty;
b. That he pleaded guilty as a result of a mistake or misapprehension;
c. That the charge laid at his door disclosed no offence known to law;
and
d. That upon the admitted facts, he could not in law have been convicted
of the offence charged.

3. Tendering of exhibits during plea guilty. once it is shown on the record

that the accused person on his own free will, pleaded guilty to the offence
unequivocally, then that is enough to support the charge with which the
accused is charged. Tendering of the exhibit, be it an object or document, is
not a legal requirement, though is desirable to do so to ground a conviction.

The outcome of the appeal

The appeal is devoid of merit, and it is dismissed entirely.

Lessons learned
The principles laid on Robinson Mwanjis on the admissibility of exhibits to be cleared
before admission and read after admission are not applicable in a guilty plea
because the person who tenders exhibits during the plea of guilty is a prosecutor and
not a witness.

9. MATATA NASSORO & ROBERT THOMAS @ HORONDI

VERSUS THE REPUBLIC, CRIMINAL APPEAL NO. 329 OF
2019, CAT Arusha (Unreported) [26th September & 2nd
November 2022]

Offence: Matata Nassoro and Robert Thomas @ Horondi, were jointly charged
before the District Court of Babati at Babati for unlawful possession of Government
Trophies contrary to Paragraph 14 of the 1st Schedule to and sections 57 (1) and 60
(2) of the Economic and Organized Crimes Control Act, Cap. 200 R, E. 2019 as
amended by sections 15 (a) and 13 (b) of the Written Laws (Miscellaneous
Amendment) Act, No. 3 of 2016 read together with section 86 (1) (2) (b) of the
Wildlife Conservation Act, No. 5 of 2009. They pleaded not guilty.

However, after a full trial, they were convicted and sentenced to a fine of Tzs.
172,500,000/= each or in default, to serve twenty (20) years imprisonment. They
failed to pay the fine; hence each is now serving twenty (20) years of imprisonment.

State Attorneys who fended the Appeal

i. Ms Lilian Aloyce Mmassy, Senior State Attorney
ii. Ms. Grace Michael Madikenya, State Attorney
iii. Ms. Penina Joachim Ngotea,State Attorney

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The course taken in fending the appeal.
At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Penina Ngotea, State Attorney.

Principles laid
1. The variance of charge and evidence. The court can only rely on the
variance of evidence and charge when variation is conspicuous. In this case
What appears to be a variance could have been caused by the way people
pronounced the names making it look like two places far apart. Moreover,
there is overwhelming evidence that the appellants were caught read-handed,
searched and found in possession of two elephant tusks. A certificate of
seizure was prepared, followed by counter-signing by the appellants, PW1,
PW4 and PW5.

2. Inquiry during admission of exhibits such as certificate of seizure. The

trial magistrate not conducting an inquiry after overruling the appellants'
objection; there was no need to conduct an inquiry. This is because an inquiry
could only be conducted where there is an objection to the tendering and
admission of a cautioned statement.

3. Non-compliance with section 38 (3) of the CPA for failure to issue a

receipt after search and seizure. There is no dispute that PW1 did not issue
a receipt following a seizure, but in view of the fact that the appellants
counter-signed a certificate of seizure containing a list of items seized
from them, such certificate was sufficient under the circumstances
considering that there was also oral evidence from the arresting
witnesses and the independent witness. In any case, as we held in
Nyerere Nyague v. R, Criminal Appeal No. 67 of 2010 (unreported), not every
apparent contravention of the CPA would result in the automatic exclusion of
the evidence in question.

4. Status of oral evidence after expunging of documents. Oral evidence

could still suffice to prove the case in the absence of documentary evidence
and sustain a conviction.

5. Failure to read loud exhibits in court after admission. Exhibits get to be

expunged from the record.

6. Treatment of Discrepancies and inconsistencies in the case. not every

discrepant or inconsistency in witness evidence is fatal to the case. Minor
discrepancies in details or due lapses of memory on account of passages of
time should always be disregarded. It is only fundamental discrepancies going
to discredit the witness which count.

7. The credibility of witness treatment. Every witness is entitled to credence,

and his evidence is believed unless there are reasons to do otherwise.

The outcome of the appeal

The appeal was found to be devoid of merit, and it is dismissed entirely.

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Lessons learned/Issues that are still in suspence
1. The procedure for the inquiry is on the confession statements only, that is
cautioned statements and extra-judicial statements.
2. This case still maintains the position in Andrea on receipt and seizure,
although in this case, the court did not equate the two but only saying even
without a receipt, signing on the certificate of seizure was enough.

10. JOSEPH KANANKIRA VERSUS THE REPUBLIC,

CRIMINAL APPEAL NO. 240 OF 2019, CAT ARUSHA
(UNREPORTED) [21st September & 27th October 2022]

Offence: Joseph Kanankira, was charged and convicted of rape contrary to sections
130 (1) (2) (e) and 131 of the Penal Code, before the District Court of
Arusha/Arumeru District at Arusha and sentenced to thirty (30) years imprisonment.

State Attorneys who fended the Appeal

i. Ms. Akisa Mhando, Senior State Attorney
ii. Ms. Eunice Makala, State Attorney
iii. Mr. Tonny Kilomo, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Akisa Mhando, Senior State Attorney.

Principles laid
1. Failure to cite punishment section. Inserting a punishment section in a
charge sheet is not a legal requirement, and thus its omission does not render
the charge defective, more so when the particulars are clear enough to inform
him of the nature of the offence.

2. Contradictions and inconsistencies in the prosecution case. The Court

underscored the importance of evaluating contradictions and discrepancies
and deciding whether they are minor or material, going to the very root of the
case. In this case, the court found inconsistencies about time; the evidence
adduced during cross-examination and examination in chief, date of
commission of the offence to be minor.

3. Amendment of Charge.
 Ordinarily, under section 234 (1) of the CPA, the trial court is
empowered to make an order to alter the charge at any trial stage
once. It appears that the charge is defective, either in substance or in
form.
 However, under section 234 (2) of the CPA, the amendment is not a
must if the variance between the charge and the evidence is in respect
of the time when the offence was committed.
 Variance on the time caused by witnesses other than the victim is
immaterial to the prosecution case.

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4. Duty of defence counsel in cases. It is the obligation of the defence
counsel, both in duty to his client and as an officer of the court, to indicate in
cross-examination the theme of his client’s defence so as to give the
prosecution an opportunity to deal with that theme.

5. Re-evaluating the whole evidence by the court of appeal. If the first

appellate court has abdicated its duty of re-evaluating evidence, this Court
can step into the shoes and do so. The court critically re-evaluated and
analyzed the appellant's defence at the trial but found it too weak to raise any
reasonable doubt to warrant interfering with the trial court’s findings on the
appellant's guilt.

6. Failure to cross-examine. Failure to cross-examine them on material

aspects amounted to accepting the facts testified on, connoting that the
appellant admitted what was said by the prosecution witnesses.

7. Ingredients of the offence of rape. The prosecution is required to prove

three (3) things: (i) penetration (ii) age of the victim and (iii) that it is the
appellant who committed the offence.

The outcome of the appeal

The appeal was found to be devoid of merit, and it is dismissed entirely.

11. MT, 59505 SGT. AZIZ ATHUMAN YUSUF, THE

REPUBLIC, CRIMINAL APPEAL NO. 324 OF 2019, CAT
ARUSHA (Unreported) [28th September & 14th November 2022]

Offence: The District Court of Karatu tried and convicted MT. 59505. Sgt Aziz
Athumani Yusuph of unlawful possession of government trophy an offence. which is
contrary to sections 85 (1) and 86 (2) (b) of the Wildlife Conservation Act read
together with paragraph 14 of the schedule to, and sections 57 (1) and 60 (2) of the
Economic and Organized Crime Control Act (the EOCCA). Upon such conviction, the
trial court imposed a punishment of payment of a fine of TZS 220,451,000.00 and in
default, served a term of 20 years imprisonment.

State Attorneys who fended the Appeal

i. Ms Lilian Aloyce Mmassy, Senior State Attorney
ii. Ms. Grace Michael Madikenya, State Attorney
iii. Ms. Penina Joachim Ngotea,State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Lilian Mmassy, Senior State Attorney.

Principles laid

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1. New grounds of appeal pertaining to law. New issues of law are
justiciable before the Court in terms of section 6 (7) (a) of the Appellate
Jurisdiction Act (the AJA)
2. Non-clear indication in the court records on the filing of consent and
certificate to confer jurisdiction. Although there is no clear indication of the
two documents being filed, on 02/07/2015, the prosecutor prayed to file a
consent upon completion of the investigation, and the matter was scheduled
for a preliminary hearing on 16/07/2015. In view of the certificate conferring
jurisdiction for the subordinate to try an economic offence, eventually, the trial
took off.

3. Defective charge on the variance of dates in charge and evidence

adduced by one witness. The fact that PW3 stated that it was 21/01/2013
instead of 20/01/2013 did not dent the prosecution case. If anything, that was
a minor contradiction resulting from frailty and toss of memory considering the
time lapse between the date of the incident and the date on which PW3
testified.

4. Right to be heard and exercise it. Drawing an adverse inference when

the accused chose to be silent during the defence. it is one thing to be
afforded a right to be heard, and a different thing to the party concerned to
exercise it. That means a party who squanders that right cannot be heard to
complain as the appellant does. The record shows plainly that after the ruling
on a case to answer, the trial court addressed the appellant his right to
present his case and call witnesses as required by section 231 (1) of the CPA.

The appellant elected to remain silent and, the parliament in its wisdom
anticipated that eventuality by enacting section 231 (3) of the CPA; allowing
the continuation of the case regardless of the accused person's silence at the
risk of the trial court drawing an adverse inference. This is what the trial
magistrate did following the appellant's election to mute. As the appellant was
afforded an opportunity to present his case and failed to exercise it at his own
election, his complaint in ground one is misplaced.

5. Sufficiency of charge. a charge is sufficient if it describes any place, time or

thing which is necessary to refer therein in such manner as to indicate with
reasonable clarity the place, time or thing. See section 135(f) of CPA.

But the court went further to rule that much as no evidence was led to explain
away the nexus between the two names of the scene of the crime, we are
satisfied from the examination of the evidence that Kilimamoja Village
appearing in the charge sheet within Karatu District, Arusha Region, refers to
the same place.

In any case, the appellant had an opportunity to cross-examine the

prosecution witnesses as they testified if he was minded to do so but did
not find it necessary.

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6. Who may issue and sign a certificate of the value of trophies? We are
alive to the dictates of sections 86 (4) and 114 (3) of the WCA on the
certification of trophies by the Director of Wildlife or any wildlife officer defined
under section 3 of the WCA. PW4 was a conservator who does not feature
in the definition of a Wildlife Officer and, as conceded by Ms Mmassy, he
was not competent to do the valuation of the trophies and issue a
certificate as he did. Consequently, we cannot resist the invitation to
expunge exhibit P5 from the record as we hereby do.

7. The legendary principle on Chain of custody. The duty cast on the

prosecution to account for the seizure, movement and storage of exhibits from
an accused person at all stages up to the time they are tendered in evidence.

8. Liberal Approach on Chain of Custody. Lately, the Court has taken a

liberal approach to the treatment of chain of custody where the exhibits
involved are not capable of changing hands easily, in which case, the strict
adherence to a paper trail is relaxed, permitting oral evidence to account for
the chain of custody. Items such as trophies and narcotic drugs have been
held to fall under this category.

9. When to conduct an Inquiry/Trial within a Trial. Whenever there is an

objection against the admission of cautioned statement based on
voluntariness.

10. Adherence to questions and answers in a cautioned statement. We will

say that section 57 of the Act was not meticulously followed. For example, the
question-and-answer format was not adopted. Instead, the narrative style was
adopted. But it is not mandatory for the question-and-answer style to be used.
Section 57 (2) (a) of the Act speaks of "so far as it is practicable to do so",
suggesting that where it is impracticable, one may dispense with that style.

11. Failure to give reasons for rejecting the objection. we agree that the trial
court strayed into an error in doing so. However, we are satisfied that the
failure to give reasons did not prejudice the appellant, who had ample
opportunity to cross-examine PW2 after the admission of exhibit P4, let alone
the fact that it was not denied that the appellant made the statement at all.

12. Re-evaluation of evidence. It is trite that the first appellate court has the
power to re-evaluate the evidence afresh and come to its own findings of fact,
it being the law that a first appeal is in the form of a rehearing.

13. The best evidence in criminal cases. it is trite law that the best evidence in
criminal cases is the accused's confession to a charged offence.

14. Drawing adverse inference when accused elect to mute during defence.
The court will invoke section 231 (3) of the CPA drawing an adverse inference
of the accused guilt.

In terms of section 3 (1) of the Evidence, Act confession may be by words,

conduct or both.

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 The appellant admitted during his arrest that he was the driver of the
motor vehicle from which PW1 and PW3 retrieved the items listed in
exhibit PI which included the two elephant tusks, subject of the charge.
 The appellant admitted too that he had no permit from the Director of
Wildlife to possess government trophies.
 Indeed, he signed the certificate of seizure acknowledging possession
of the items retrieved from the motor vehicle he drove that material
date.
 Furthermore, he opted to mute when it was his turn to present his case
in defence, and the two courts below rightly drew an adverse inference
against him.

15. Status of Valuation certificates of the trophy in court. Firstly, the trial
court is not bound by the certificate of value. Secondly, the absence of any
such certificate does not absolve a trial court from assessing the value of the
trophy where there is other evidence in that regard.

16. Absence of valuation certificate of the trophy in sentencing…the issues

in relation to a sentence in absence of the Trophy Valuation Certificate
prepared under section 86(4) and 114(3) of the WCA…Fortunately, we are
not traversing unchartered territory. In Emmanuel Lyabonga we faced more
or less similar situation in which a Trophy Valuation Certificate had been held
to be wanting having been prepared and signed by an unqualified person
contrary to section 86 (4) and 114 (3) of the WCA.

The Court held that, firstly, the trial court is not bound by the certificate of
value and secondly, the absence of any such certificate does not absolve a
trial court from assessing the value of the trophy where there is other
evidence in that regard.

17. No punishment without law or Imposition of a sentence to a convict of

an offence greater than that prescribed at the time of the commission of
the offence, is prohibited. the superior courts have the additional duty of
ensuring that the laws are properly applied by the courts below, including
substituting improper sentences with the correct ones in the circumstances
since the trial court imposed a fine which was not sanctioned by section 60 (2)
of EOCCA. The requirement to impose a fine was introduced by Act No.3 of
2016, which amended section 60 (2) of the EOCCA.

There is a clear prohibition under Article 13 (6) (c) of the Constitution

against the imposition of a sentence to a convict of an offence greater
than that prescribed at the time of the commission of the offence.

18. Sentencing principles in wildlife offences are scheduled as economic.

Section 86 (2) (b) of WCA prescribing a monetary penalty to a convict of a
person found in unlawful possession of a government trophy could not be
resorted to in addition to the sentence prescribed under section 60 (2) of
EOCCA.

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In the absence of any express provision to the contrary, the amendment to
section 60 (2) of the EOCCA could not have been applied retrospectively to
the appellant who committed the offence before the amendment.

The outcome of the Appeal

The Appeal was found to be devoid of merit and dismissed it except for the variation
of the sentence.

Lessons learned.
1. In this case, on who has the power to issue and sign a valuation
certificate, the court of appeal reiterated its previous decision before Jamal
Msombe, which still creates uncertainty on issues of who may issue and
sign a certificate of valuation of trophies according to cases.

2. The absence of a certificate of the value of trophies does not absolve the
trial.

3. When the accused elected to stand mute during his case, he did so to his
own detriment.

4. Accused claims of no confidence in a magistrate should be with cogent

reasons; otherwise, the case will not be put on halt just because of the
accused assertations of not believing in the Magistrate.

12. RAMADHAN IDD MCHAFU Versus THE REPUBLIC,

CRIMINAL APPEAL NO. 328 OF 2019, CAT Arusha (Unreported)
[7th September & 11th November 2022]

Offence: The appellant was charged with unlawful possession of a government

trophy contrary to sections 86(1) and (2) (b) of the Wildlife Conservation Act No. 5 of
2009 (the WCA) read together with sections 57(1), 60(2) and paragraph 14(d) of the
First Schedule to the Economic and Organized Crimes Control Act, (the EOCCA).

State Attorneys who fended the Appeal

i. Ms. Janeth Sekule, Senior State Attorney,
ii. Ms. Upendo Shemkole, State Attorney
iii. Ms. Lilian Kowero, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Lilian Kowero, State Attorney.

Principles laid
1. The duty of the trial court is to ascertain certificates and consent before
admitting. The need for a trial court must ensure that where there is consent
and a certificate conferring jurisdiction before embarking on the trial of an

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economic case because they are the ones which confer or cloth a court with a
mandate to try such cases, without which proceedings are rendered a nullity.

2. Whether it is charging wildlife offences, the words “unlawful

possession” or “without permit” should feature in the charge. According
to section 86-(l), subject to the provisions of this act, a person shall not be in
possession of, or buy, sell or otherwise deal in any government trophies" It is
plain, therefore, that it is against the law and therefore unlawful to do any of
the above-specified acts, i.e. “unlawful possession” or “without permit”.

3. Interpretation section 29(1) of the Economic and Organised Crimes

Control Act, Cap 200. From its wording, the section puts it as a legal
requirement in very clear and imperative terms that an accused person must
be produced in court within forty- eight hours of either his arrest or upon
completion of the investigation. Forty-eight hours are therefore gauged from
the beginning of either of those occurrences. It is, therefore, a matter to be
determined based on the evidence available to the court as to the time when
the arrest was effected or when the investigation was completed.

Therefore, the position is that in every situation, it is important that an accused

person be charged within a reasonable time. In the present case, the delay
was of only around eight to nine days which period we consider not to be long
to cast doubt on the prosecution case.

4. Qualifications of a person to prepare a trophy valuation certificate. Park

Ranger is a wildlife officer with a mandate to do a valuation of a wild animal
and prepare and tender a certificate under section 86(4) of the WCA. Besides,
in Jamali Msombe vs Republic, the Court, after critical analysis and
consideration of the meaning of a game ranger, concluded that a "wildlife
officer", "wildlife ranger", a "game ranger' or a "wild ranger" mean one and the
same person. There is no striking difference between them.

5. Effect of using outdated forms or law. Using a form referring to an outdated

Government Notice occasioned no injustice to the appellant, for what was
important was the value of the trophy, as there was a backup detailed account
by PW3 of the value of the trophy. Therefore, the anomaly is curable under
section 388 of the CPA.

6. Tendering exhibits by the prosecutor vs inviting the court to receive the

exhibits. During their respective testimonies, the witnesses intimated their
intention to tender such exhibits, and the prosecutor simply invited the trial
court to receive and admit them as exhibits. In this case, the court held that
the prosecutor simply invited the court to receive the exhibits after the
witnesses had cleared them for admission. The Court treated the infraction as
not fatal and not prejudicial to the appellant.

7. Issuance of receipts as stipulated in sections 38(3) of CPA and section

22(3) of EOCCA. Sections 38(3) of the CPA and 22(3) of the EOCCA provide
a mandatory requirement for a police officer conducting the search to issue a
receipt evidencing a property seizure following a search.

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In the present case, the appellant signed the seizure certificate and did not
disown his signature during his defence. That by itself amounted to a
confession that he was found in possession of the government trophy. The
absence of the official receipt is inconsequential in establishing that the
appellant was found in possession of the Government trophy. The
omission of issuing a receipt was not, therefore, fatal.

8. Reliance on oral testimony. It is a hackneyed stance of the Court that even

in the absence of documentary evidence, a court may act on the oral
evidence of witnesses relayed in court if it reveals sufficient details of the
information contained in a document and ground a conviction notwithstanding
the relevant document being expunged from the record.

9. Invocation of section 169(1) of CPA in absence of a search warrant. It is

true that the arresting team had no search warrant. But that does not dispel
the fact that the bag the appellant had in possession was searched and an
elephant tusk seized therefrom. The oral evidence of PW1 and PW2 is clear
on that. Given the seriousness of the offence, this is a fit case where section
169(1)(2) of the CPA rightly applies with the effect that the absence of a
search warrant at the time search was conducted and a government trophy
being seized was inconsequential. We, therefore, hold that the contravention
was not fatal. Exhibit PE3 was, therefore, properly seized, admitted as an
exhibit and acted on to convict the appellant.

10. Chain of custody. In cases relating to items which cannot change hands
easily and, therefore, not easy to temper with, the principle laid down in the
above case can be relaxed.

The outcome of the Appeal

The appeal was found with no merit and dismissed.

Lessons Learned/take away.

The court of appeals, although ruled out in this case that non-issuance of receipt was
not fatal, still retained the receipt and certificate of seizure are two different
documents which are still the challenge in prosecution.

13. SAMSON KEJO VERSUS THE REPUBLIC, CRIMINAL

APPEAL NO. 302 OF 2018, CAT Arusha (Unreported) [23rd
September, & I4th November 2022]

Offence: appellant was charged with an unnatural offence contrary to section 154
(l)(a) and (2) of the Penal Code before the Resident Magistrates' Court of Arusha at
Arusha (the trial court) in Criminal Case No. 23 of 2016. The trial court convicted and
sentenced him to life imprisonment.

State Attorneys who fended the Appeal

i. Ms. Akisa Mhando, Senior State Attorney

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ii. Ms. Eunice Makala, State Attorney
iii. Mr. Tonny Kilomo, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Akisa Mhando, Senior State Attorney.

Principles laid
1. Ability to name the suspect at the earliest time possible. that the ability of
a witness to name a suspect at the earliest opportunity is an important
assurance of his reliability, in the same way as unexplained delay or complete
failure to do so should put a prudent Court to inquiry. However, the
circumstances, in this case, were different. We are of the decided view that
the arguments by the learned the delay was due to the age of the victim and
the technic used by the appellant by asking him to keep it a secret between
them and also luring him with the promise of giving him money.

2. Failure to cross-examine. It is a trite principle of law that a party who fails to

cross-examine a witness on a certain fact is deemed to have accepted that
fact and will be estopped from asking the trial court to disbelieve what the
witness said.

3. Contradictions in the prosecution case. It is a matter of principle that only

material contradictions and inconsistencies crumble the prosecution, while
minor ones are normal.

The outcome of the Appeal

The appeal was found with no merit and dismissed, and a life sentence was
upheld.

Lessons Learned/take away.

1. When the offence is committed in several areas and the charge feature
only one place, and there is enough evidence to prove the connection in
that place, one cannot be heard saying there is variance between the
charge and evidence or inconsistencies of the evidence.

2. Social media is a tool for the commission of crimes. The facts, in this
case, present an example of the manner social media may be so
damaging. The familiarity between the victim and the appellant arose out of
chatting on Facebook, which started in January 2016 that led to the appellant
sodomising the victim.

14. BASILID JOHN M LAY Versus REPUBLIC, CRIMINAL

APPEAL NO. 306 OF 2018, CAT Arusha (unreported) [28 th
September & 21st October 2022]

Offence: Basilid John Mlay, the appellant herein, was charged with six counts of
corruption transactions contrary to sections 15(1) (a) and 15 (1) (b) of the Prevention

21
and Combating of Corruption Act (the PCCA). He was found guilty in counts number
1, 3 and 4, which were, respectively, soliciting payment of TZS 9 Million from one
Joseph Matiko Fredrick working with Jemason Investment Company Ltd (henceforth
Jemason) as inducement for him to prepare and sign a Certificate of completion No.
2 so as to enable payment of TZs 160,650,000.00 and receiving TZS 4 million and
TZS 3 Million from Martin and Joseph Matiko Fredrick, respectively, both working
with Jemason as inducement for him to prepare and sign a Certificate of completion
No. 2.

He was sentenced to pay a fine of TZS 500,000.00 on each count, failing which to
serve two years imprisonment on each count, which sentences were ordered to run
concurrently.

State Attorneys who fended the Appeal

i. Ms. Alice Mtenga, State Attorney
ii. Ms. Neema Mbwana, State Attorney,

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Alice Mtenga, State Attorney.

Principles laid
1. Evidence of a single witness can be acted upon after the court warns
itself. The evidence of a single witness was given weight. It arrived at that
finding after warning itself over the danger of relying on a single witness
(PW3) who said he gave that money to the appellant after the same was sent
to him by PW4. A single witness may prove a fact if the court believes
that the witness is telling nothing but the truth as provided for under
section 143 of the Evidence Act.

2. Missing records of appeal that were received illegally in the trial court.
any document tendered in violation of that settled law stands to be expunged
from the record, the counsel of the parties were agreeable that there was no
good reason that would impede the progress of the case. Accordingly, we
expunged all the documentary exhibits from the record of appeal and
proceeded with the hearing of the appeal.

3. Status of evidence of accomplice witness or witnesses with interest to

serve. there is no rule of law that the evidence of an accomplice requires
corroboration, but rather than contrary as expressly laid down in section 142
of the Evidence Act,...It is, however, a salutary rule of practice to require
corroboration of the evidence of an accomplice. See also section 142 of the
Evidence Act.

What is an accomplice?
 The term accomplice covers participle criminis in respect of the actual
crime charged, whether as principals or as accessories before or after
the fact.

22
 Going by the above definition, for one to be an accomplice, there must
exist in him the mental element in committing or assisting the
commission of the offence.

Concept of a witness with an interest to serve

The concept of a witness with an interest to serve is meant to discredit a
witness by establishing that he told a lie in order to serve his skin...

PW3 and PW4 lacked the requisite mental element of committing or assisting in
corruptly giving money to the appellant; otherwise, they would not have taken steps
to report the matter. They were neither accomplices nor witnesses with an interest to
serve.

The outcome of the Appeal

The appeal was found with no merit and dismissed, serve for the third count, which
was abandoned.

Lessons Learned/questions from this appeal.

1. The court of appeal expunged documents that were not in the records of
appeal. The question will be how the court dealt with documents that were not
before it. What did the rules provide?

15. ALLEN FRANCIS VERSUS THE REPUBLIC, CRIMINAL

APPEAL NO. 327 OF 2019, CAT Arusha (Unreported) [3 rd & 26th
October 2022]

Offence: the appellant, Allen Francis, stood charged with an unnatural offence
involving a boy of tender age contrary to section 154 (1) (b) of the Penal Code,
alleged that on 13/01/2015, at Esso Area within the city and Region of Arusha, the
appellant had carnal knowledge of a nine - year boy old against the order of nature.
He was found guilty, and a sentence of life imprisonment was handed to him.

State Attorneys who fended the Appeal

i. Ms. Agnes Hyera, Senior State Attorney
ii. Ms. Adelaide Kasala, Senior State Attorney,
iii. Ms. Naomi Mollel, State Attorney

The course taken in fending the appeal.

At the outset, the State Attorneys resisted the appeal, and it has vigorously fended
with Ms Agnes Hyera, Senior State Attorney.

Principles laid
1. The requirement to cite punishment section. there is no legal requirement
to insert a punishment section in a charge sheet, neither the insertion of a
wrong section nor the omission to cite the correct one was fatal to the charge
and the trial and it is not one of the statutory requirements under section 132
and 135 of the CPA.

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2. Omission to give particulars of the place where the offence was
committed. the place was conspicuously shown in the charge sheet as Esso
Area, and that was sufficient compliance with section 135 (1) of the CPA. The
different places associated with Esso Area brought about by the appellant in
his submissions are not part of the evidence on record, and neither was there
any legal requirement to do so over and above inserting the place as shown in
the charge.

3. The credibility of witness domain. It is settled law that credibility is the

domain of the trial court as regards demeanour which has the benefit of
seeing the witnesses as they testify, which cannot be interfered with by
appellate courts which examine the evidence through records.

4. Credence of witnesses' evidence. every witness is entitled to credence,

and his evidence is believed unless there are cogent reasons to the contrary.

5. The weight of witnesses' evidence vis-à-vis the number of witnesses. for

the proposition that it is not the number of witnesses a party call which is
relevant but the credibility of the evidence of the witnesses called to testify.

6. Proof of sexual offences. by analogy, a sexual offence need not be proved

by medical evidence.

7. Evidence of relatives. There is no rule which prohibits relatives from

testifying in a case; what matters is their credibility unless it is established that
the relative witnesses hatched up a plan to promote an untruthful story.

8. Duty of the trial court in assessing evidence. it is the duty of the trial court
to subject the entire evidence on record to scrutiny, which entails considering
the defence evidence before making any finding of guilty.

9. Powers of Appellate Courts to re-evaluate the evidence. Where the trial

court fails to do so, the first appellate court is enjoined to do so in its role to re-
evaluate the whole evidence on record with a view to making its own findings
of fact either concurring with the trial court or otherwise where both courts
below fail to do so. The Court ie the Court of Appeal, has the power to step
into the shoes of the first appellate court and do what that court omitted to do.

Be it as it may, upon the court examination of the appellant's defence, they

were not satisfied that either of the defences raised any doubt in the
prosecution case.

10. Proof of offence under section 145(1)(a) of the Penal Code. Proof of the
offence under section 154 (1) (a) of the Penal Code entailed proof of three
ingredients, namely, the penetration, age of the victim and identity of the
culprit.

11. A conviction based on the wrong provision of the law. The insertion of
para (b) in sub-subsection 154 of the Penal Code was wrong because that
paragraph relates to an offence against an animal.

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Apparently, the trial court convicted and sentenced the appellant under
section 154 (1) (a) (b) of the Penal Code, believing, mistakenly though, that
para (b) was a punishment provision instead of sub-section (2) which was the
correct provision prescribing sentence against a person found guilty of an
unnatural offence to a victim under the age of 18 years as it were. Be it as it
may, it was the court's firm view that the insertion of para (b) was
inconsequential to the appellant's conviction and sentence.

The outcome of the Appeal.

The Appeal was found with no merit, and it was dismissed and the life sentence
upheld.

Lesson(s) Learned
Unsworn evidence of a tender age witness may be solely believed by the court when
passing all tests of credibility, authenticity, reliance and free from contradictions.

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