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IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM; NSEKELA. J.A.. LUANDA. J.A., And MASSATI. J J U

CRIMINAL APPEAL NO. 67 OF 2010

NYERERE NYAGUE......... ........ ........................................... APPELLANT

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

(Appeal from the judgment of the High Court

of Tanzania at Arusha)

fSambo. J.’l

dated the 17th day of January, 2010

in
Criminal Appeal No. 66 of 2007

JUDGMENT OF THE COURT

11 & 21 May 2012

MASSATI. J.A.:

The appellant was charged with and convicted of raping a 70

year old woman, called PAULINA d/o TAGASINI contrary to sections

130 and 131 of the Penal Code (Cap. 16 - RE 2002) as amended.

The District Court of Babati which tried him, convicted him as

charged and sentenced him to 30 years imprisonment and 12 strokes

of the cane. He unsuccessfully appealed to the High Court, hence

the present appeal.

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It was alleged that on the 12th day of January, 2006 at about

2.00 hrs at Duru village, Babati District in Manyara Region, the

appellant had unlawful carnal knowledge of PAULINA TAGASINI

without her consent. PAULINA TAGASINI (PW1) informed the trial

court that on that night she was asleep in her house. The appellant

sneaked in. She raised an alarm but the appellant covered her

mouth to stiffie any sound. She identified the appellant by use of a

lamp light. He was her neighbour in the village. The appellant then

forcefully undressed her and had sexual intercourse with her, without

her consent. He went on to sleep there till the next morning when

PW1 informed her children. The appellant was arrested. PW1 was

given a PF3 which was later tendered in evidence. In his defence,

the appellant denied to have committed the offence but admitted

that he made a statement and had no objection to its admission in

evidence and the same was admitted as Exh P2. In cross

examination by the prosecution, the appellant is recorded to have

said:

"I know the victim. I had carnal knowledge

with her once. I seduced her only once and
I raped her once."
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The two courts below found that the prosecution case was

proved beyond reasonable doubt, hence the conviction.

In this Court, the appellant appeared in person and presented

three grounds of appeal. The first was that the trial court wrongly

acted on the cautioned statement which was illegally obtained.

Secondly the two courts below did not properly evaluate the

evidence of PW1, and thus arrived at the wrong conclusions.

Thirdly the lower courts failed to consider the effect of the 2 days'

delay in reporting the rape, on the credibility of PW1.

In his elaboration of the grounds, the appellant attacked the

credibility of PW1, his identification, and the admissibility of the

cautioned statement because it was not listed among the prosecution

exhibits during the preliminary hearing. He therefore prayed that the

appeal be allowed.

Mr. Massy Bondo, learned State Attorney appeared for the

respondent/Republic. At first, he took the view that there was

substance in the appellant's complaint about the admissibility of Exh

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P2, his cautioned statement. He sought to base his opinion on the

provisions of sections 50, 51, and 169 of the Criminal Procedure Act

Cap 20 RE 2002) (the CPA). However, on reflection, he abandoned

that track, and fully supported the conviction and sentence. He

based his new stance on the fact that apart from Exh P2, it was also

on record that the appellant confessed to have committed the

offence with which he was charged. He thus asked us to dismiss the

appeal.

The conviction of the appellant was based on two pieces of

evidence. First, the direct evidence of PW1, and secondly, the

appellant's own confession both in his own sworn evidence in court,

and the cautioned statement (Exh P2).

PW1 testified to the effect that the appellant went to her

house, opened and entered her house in the dead of the night. She

tried to raise an alarm but the appellant covered her mouth by using

her bed sheet. The appellant then:

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"Undressed me and raped me." The

accused stayed in the house tiii early in
morning, when he left. The accused was
taken to the police on 15/2/2006."

Curiously, the appellant did not cross examine this witness.

That the matter was reported to the police on 15/2/2006 is

confirmed by PW3, WP 4423 D.C. SOPHIA.

The appellant has now taken exception to this testimony and

put PWl's credibility in the limelight. In our view, if this was the only

piece of evidence, and but for other reasons below, the appellant

would have been entitled to the benefit of doubt; not only from the

strange behavior of PW1 allowing her assailant to share her bed and

sheet until the next morning; but also, by delaying to report to the

police for two days for no apparent reason. Unfortunately, the

appellantdid not cross examine PW1 on this to shake hercredibility.

As a matter of principle, a party who fails to cross examine a witness

on a certain matter is deemed to have accepted that matter and will

be estopped from asking the trial court to disbelieve what the witness
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said. (See CYPRIAN A. KIBOGOYO v R Criminal Appeal No. 88 of

1992, PAUL YUSUF NCHIA v NATIONAL EXECUTIVE

SECRETARY, CHAMA CHA MAPINDUZI AND ANOTHER Civil

Appeal No. 85 of 2005 (both Unreported)

But what is more, during his defence, the appellant himself

introduced that he gave a cautioned statement to the police. When

the prosecutor sought to produce it, the appellant did not object to

its production; and so it was admitted as Exhibit P2. He is now

seeking to challenge its admissibility in this Court. It was never

raised with the first appellate court. Again, as a matter of general

principle, an appellate court cannot allow matters not taken or

pleaded and decided in the court (s) below to be raised on appeal

(See KENNEDY OWINO ONYANGO AND OTHERS v R Criminal

Appeal No. 48 of 2006 (unreported) But due to the significance of

this point we will try to revisit the basic legal principles on the

subject.

Objections to the admissibility of confessional statements may

be taken on two grounds. First, under S. 27 of the Evidence Act that,

that it was not made voluntarily or not made at all. Second, under

section 169 of the Criminal Procedure Act: that it was taken in

violation of the provisions of the CPA, such as sections 50, 51 etc.

Where objection is taken under the Evidence Act, the trial court, has

to conduct a trial within trial (in a trial with assessors) or an inquiry

(in a subordinate court) to determine its admissibility. There the trial

court only determines whether the accused made the statement at

all, or whether he made it voluntarily.

As we understand it, the relevant law regarding admission of

accused's confession under this head is this: First, a confession or

statement will be presumed to have been voluntarily made until

objection to it is made by the defence on the ground, either that it

was not voluntarily made or not made at all (See SELEMANI

HASSANI v R Criminal Appeal No. 364 of 2008 (unreported)

Secondly, if an accused intends to object to the admissibility of a

statement/confession, he must do so before it is admitted, and not

during cross examination or during defence (See SHIHOZE SENI

AND ANOTHER v R (1992) TLR. 330, JUMA KAULULE v R

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Criminal Appeal No. 281 of 2006 (unreported) Thirdly, in the

absence of any objection to the admission of the statement when the

prosecution sought to have it admitted, the trial court cannot hold a

trial within trial or inquiry suo motu, to test its voluntariness. (See

STEPHEN JASON AND ANOTHER v R Criminal Appeal No. 79 of

1999 (unreported) Fourthly, if objection is made at the right time,

the trial court must stop everything and proceed to conduct a trial

within trial (in a trial with assessors) or an inquiry, into the

voluntariness or otherwise of the alleged confession before the

confession is admitted in evidence (See TWAHA ALLY AND 5

OTHERS v R Criminal Appeal No. 78 of 2004 (unreported) Fifthly,

even if a confession is found to be voluntary and admitted, the trial

court is still saddled with the duty of evaluating the weight to be

attached to such evidence given the circumstances of each case (See

TUWAMOI v UGANDA (1967) E.A 91 STEPHEN JASON &

OTHERS v R (supra). And lastly, everything being equal the best

evidence in a criminal trial is a voluntary confession from the accused

himself (See PAULO MADUKA AND 4 OTHERS v R Criminal Appeal

No. 110 of 2007 (unreported)

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But where objection is taken under section 169 of the Criminal

Procedure Act, the trial court has absolute discretion not to admit

such evidence having regard to the considerations shown under

section 169(2). For the sake of completeness, the whole of section

169 is reproduced below:

169 (1) Where, in any proceedings in a

court in respect o f an offence,
objection is taken to the admission
o f evidence on the ground that the
evidence was obtained in
contravention of, or in
consequence o f a contravention of,
or o f a failure to comply with a
provision o f this Act or any other
law, in relation to a person, the
court shall, in its absolute
discretion, not admit the evidence
unless it is, on the balance o f
probabilities, satisfied that the
admission o f the evidence would
specifically and substantially
benefit the public interest
without unduly prejudicing
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the rights and freedom o f any

person, (emphasis supplied)

(2) The matters that a court may have

regard to in deciding whether, in
proceedings in respect o f any offence,
it is satisfied as required by
subsection (1) include:

(a) the seriousness of the

offence in the course o f
the investigation o f which
the provision was
contravened, or was not
complied with, the
urgency and difficulty
o f detecting the offender
and the urgency or the
need to preserve evidence
o f the fact;

(b) the nature and seriousness

o f the contra vention
or failure; and

(c) the extent to which the

evidence that was
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obtained in contravention
o f in consequence o f the
contravention o f or in
consequence o f the failure
to comply with the
provision of any law,
might have been lawfully
obtained.

(3) The burden o f satisfying the court that

evidence obtained in contravention
of, in consequence of the
contravention of, or in consequence o f
the failure to comply with a provision
o f this Act should be admitted in
proceedings lies on the party who
seeks to have the evidence admitted.

(4) This section is in addition to, and not in

derogation of, any other law or
rule under which a court may refuse to
admit evidence in proceedings

It follows in our view therefore that the admission of evidence

obtained in the alleged contravention of the CPA is in the absolute

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discretion of the trial court and that before admitting or rejecting

such evidence, the parties must contest it, and the trial court must

show that it took into account all the necessary matters into

consideration and is satisfied that, if it admits it, it would be for the

benefit of public interest and the accused's rights and freedom are

not unduly prejudiced. In other words there must be a delicate

balancing of the interests of the public and those of the accused. It

is not therefore correct to take that every apparent contravention of

the provisions of the CPA automatically leads to the exclusion of the

evidence in question. The decision of the trial court on such matters

can only be faulted if it can be shown, that the admission or rejection

of such evidence was objected to and that it did not properly exercise

its judicial discretion, or at all, in rejecting or admitting it.

As shown above, at first, Mr. Bondo had sought to support the

appellant's first ground of appeal, on the fact that on the face of it,

the cautioned statement (Exh P2) seemed to have been taken more

than four hours after the arrest of the appellant which was contrary

to sections 50 and 51 of the Criminal Procedure Act. But the

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appellant did not object to its admissibility when it was about to be

tendered. So, the trial court and the prosecution were deprived of

the opportunity to consider whatever objection the appellant may

have had, in terms of section 169(2) of the CPA. This deprives him

of the right to complain about its admissibility at this stage.

In that statement the appellant said:

...... Tarehe 12.2.2006, 00.00 hrs

nilikuwa natoka shambani nikapita hapo
nyumbani kwa Paulina Tagasini. Nikakuta
amelala nilibisha hodi na kwa sababu
ananifahamu alifungua mlango nikaingia
ndani kwake, nikakuta amevua gauni Ha
chupi atikuwa amevaa, ni/imuomba tufanye
mapenzi akakubaii nilipotaka avue chupi
alikataa, nilipombembeleza sana alikataa
ndipo niHmkamata kwa nguvu
nikamwangusha kitandani kwake nikafanya
naye mapenzi kwa nguvu na niiiweza
kumkojotea mpigo mmoja hakupiga
ke/e/e.... "
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But, of course, admissibility is one thing. That is the domain of

the trial court. The weight to be attached to an admitted exhibit is

another. When it comes to evaluating the weight of any evidence

properly on record; an appellate court is in just as good a position as

the trial court.

In the present case, even if one wanted to doubt PWl's

credibility, and believed that she consented, the appellant's own

confession shows that she withdrew that consent, and so, in law, any

sexual intercourse after this, was rape, even if she did not shout. But

what is worse, in his sworn evidence, the appellant confessed that

much also in cross examination. So if the cautioned statement

needed any corroboration, the appellant's own confession in court

provided one. And as the maxim goes: "a confession made in court

is o f greater effect than any other proof" (BLACK'S LAW

DICTIONARY. 8th ed. LEGAL MAXIMS p. 1709.

In the event, we think that the offence of rape was proved

beyond any reasonable doubt. The conviction of the appellant

^-uiiiiul uc aooancu. nit; benitiiiLti is tne statutory minimum. Ihe

appeal is therefore dismissed in its entirety.

DATED at ARUSHA this 19th day of May, 2012

H. R. NSEKELA
JUSTICE OF APPEAL

B. M. LUANDA
JUSTICE OF APPEAL

S. A. MASSATI
JUSTICE OF APPEAL

rtify that this is a true copy of the original.