Yotham Yona vs Republic (Criminal Appeal No. 13 of 2021) [2023] TZCA 17693 (3 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWARIJA. J.A.. KEREFU, J.A.. And MDEMU,J.A,^ CRIMINAL APPEAL NO. 13 OF 2021 YOTHAM YONA APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Robert,!.) dated the 23*^ day of October, 2020 in Criminal Sessions Case No. 79 of 2017 JUDGMENT OF THE COURT 25'" September & 3^ October, 2023 KEREFU,3,A.: The appellant, YOTHAM YONA was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code, Cap. 16 (the Penal Code) in Criminal Sessions Case No. 79 of 2020 before the High Court of Tanzania sitting at Arusha (the trial court). It was alleged that, on 26^^ July, 2016 at Qedang'onyi - Katesh, within Hanang' District in Manyara Region, the appellant murdered one Elia Amii (the deceased).

The appellant denied the charge levelled against him and therefore, the case had to proceed to a full trial. The prosecution case was built on evidence adduced by six witnesses augmented by two documentary exhibits, namely, the sketch map of the scene of the crime (exhibit PI) and the Postmortem Examination Report (exhibit P2). On his side, the appellant testified alone, as he did not summon any witness. In essence, the substance of the prosecution case, as obtained from the record of appeal indicates that; the appellant was a peasant and a hamlet chairperson of Qedang'onyi area in Katesh township within the District of Hanang while the deceased was a resident of Kitwai Madunga, Babati District in Manyara Region. On 26^ July, 2016 around 18:00 hours at a football field commonly known as "uwanja wa poUsV located by the roadside at Qedang'onyi area, the appellant was seen by Ellas Gilgis (PWl) and Rahel Emmanuel (PW2), in a group of people surrounding a man, who was suspected to have stolen a mobile phone. It was the testimony of PWl that, the appellant was asking the said man to tell them where he kept the phone. The said man pleaded to them to allow him to explain what had happened but, the appellant did not want any explanation. At that time, the said man was in possession of a package of a red folded sheet traditionally known as ^Mgolold. The

appellant instructed the man to unfold the ^Mgolole'Xo find out if the said phone was hidden In it, he complied, but the said phone was not found. The appellant continued to insist that he should tell them where he kept the phone and started to punch him with his fists. The said man fell down and the appellant kicked him with his legs on his head. Among the persons who gathered to witness the incident was one woman who was identified as the wife of Gwaruda. The said woman asked the appellant to stop kicking the man on his head as he might kill him, but the appellant simply responded that,''dawa ya wezi ni kuwaua au kuwachoma moto" literally meaning that, ""the solution for thieves Is to km them and/or set them on the fire" PWl stated further that, a moment later, the appellant was joined by one Lulia Ingii, a militiaman to beat the said man, while the rest of the people stood by the side watching them. Eventually, the appellant asked the people who gathered to disperse. In her testimony, PW2 supported the narration by PWl and added that the appellant was beating the said man by using a bicycle rubber which was folded twice and the said man was spitting a lot of blood. Later, on the same day, at about 22.00 hours, Hamis Bakari (PW3) saw an unconscious man lying by the roadside next to the football field.

He reported the incident at the Katesh Police Station. Ass. Insp, Modestus NgonyanI (PW4) went to the scene and took the unconscious man to Tumaini Hospital where he died on 27^^ July, 2016. An autopsy on the deceased's body was conducted by Dr. Charokiwa Rajabu Msangi (PW5), who concluded that the death of the deceased was caused by severe bleeding due to head injury. A postmortem report to that effect was admitted in evidence as exhibit P2. The Incident was investigated by D.2324 D/SGT Hassan (PW6), who testified that, on 27^ July, 2016 he received a phone call from PW5 informing him on the death of the deceased. In the process of tracing the deceased's relatives, PW6 discovered that the deceased was living in the family of one Joachim Gwaruda. Thus, on 29^^ July, 2016, PW4, PW6, Mr. Gwaruda and other deceased's relatives went to the mortuary to identify the deceased's body. As such, the said body was handed over to the said relatives for burial arrangements. Subsequently, the appellant was arrested and charged as indicated above. In his defence, the appellant, apart from admitting that he was a hamlet Chairperson of Qedang'onyi, he dissociated himself from the accusations levelled against him. He stated that, on 26^ July, 2016 at 18.00 hours, he was at Autrigar Hotel where he went for recreation.

While there, he received a phone call from the wife of Gwaruda informing him that they had caught a thief. He hired a motorcycle and headed to the scene of the crime. Having reached there, he saw a group of about five people. He identified them as wife of Gwaruda, Mr. Shuluu and his friend together with another person whom he did not know. Some other people kept on going there including Lulia Ingii, the militiaman together with his sister Kididi. The appellant stated further that, he was informed by the wife of Gwaruda that the man had stolen a phone from one Shuluu. She showed him a package of clothes suspected to contain the stolen phone. Upon being unfolded, they discovered that, it was a "Mgolol^' and there was nothing in it. He stated further that, since more people continued to arrive at the scene, he instructed Lulia Ingii to take the suspected man to the Police Station and asked the other people to disperse. Thereafter, he went back to Autrigar Hotel. At 20:30 hours he went to Katesh Police Station to find out if the militiaman had taken the deceased to the police station. He was later informed that the said man had passed on. Having heard the evidence from both sides, the learned trial Judge was convinced that the prosecution had proved the case against the

appellant to the required standard. Thus, the appellant was convicted and sentenced to the statutory sentence of death by hanging. Aggrieved, the appellant has come to this Court protesting his innocence through two sets of memoranda of appeal. The substantive memorandum of appeal lodged on 8"^ July, 2021 contained five (5) grounds of appeal and the supplementary memorandum of appeal lodged on 19^ September, 2023 contained four (4) grounds making a total of nine (9) grounds of appeal. However, for reasons that will shortly come to light, we need not recite them herein. At the hearing of the appeal before us, the appellant was represented by Mr. Edmund Rweyemamu Ngemela assisted by Mr. Fridolin Dwemelo, both learned counsel whereas the respondent Republic was represented by Ms. Adelaide Kassala, learned Principal State Attorney assisted by Ms. Grace Madekenya and Mr. Charles Kagurwa, both learned State Attorneys. At the outset, Ms. Kassala declared the respondent's stance of supporting the appeal on the second and fourth grounds in the substantive memorandum of appeal and the fourth ground in the supplementary memorandum of appeal which are to the effect that, ^^the prosecution case was notproved to the required standard"

She clarified that, PWl and PW2, the prosecution's eye witnesses at the scene of crime, did not identify the person who was allegedly being beaten by the appellant, to be certain that, it was the same person who was later found by PW3 to be dead. She added that, in its judgment, the learned trial Judge, among other things, relied on the ^Mgolold found with the deceased, while the same was not tendered before the trial court as an exhibit. She thus invited the Court to re- evaiuate the evidence on record, allow the appeal and set the appellant free. At the conclusion of her address to us, we asked her to comment on the second ground in the supplementary memorandum of appeal which is to the effect that: "7776 learned trial Judge erred In law and fact in convicting the appellant based on the evidence of PWl, PW2, PW3, PW4 and PW6 whose testimonies were unprocedurally received by omitting to append his signature at the end of their evidence thus unreliable and a nullity." In her response, although she readily conceded that the learned trial Judge did not append his signature to the evidence of the prosecution witnesses together with that of the defence, she argued that, the said omission was not fatal and it is curable under section 388

of the Criminal Procedure Act, Cap. 20 (the CPA). She added that, the said anomaly did not prejudice the appellant. She thus rested her case by urging us to find that the appellant's appeal is merited and allow it. The concession, to the second ground of appeal in the supplementary memorandum of appeal, by Ms. Kassala was welcomed by Mr. Ngemela. He however intimated that, he had consolidated the nine grounds of appeal into two grounds, namely; one, procedural irregularity; and two, that, the prosecution case was not proved to the required standard. Starting with the procedural irregularity, Mr. Ngemela outrightly argued that, the omission by the learned trial Judge to append his signature after taking down the evidence of every witness is an incurable irregularity which had vitiated the entire trial court's proceedings. To support his proposition, he cited the case of Dickson Hatibu Milonge v. Republic, Criminal Appeal No. 400 of 2019 [2022] T7CA 482: [28 July 2022: TANZLII] and urged us to nullify the trial court's proceedings, quash the judgment and conviction and set aside the sentence imposed on the appellant. On the way forward, Mr. Ngemela was hesitant to press for an order for retrial on account of procedural irregularities apparent on the 8

Il,l- 1 1 p face of the record and the weakness of the prosecution case. The learned counsel pointed out three other irregularities committed during the trial. First, that, there were substantial discrepancies between the charge and the evidence on record on the date when the offence was committed. That, while the particulars of the offence indicated that the deceased was murdered on 26^^ July, 2016, PW4, at page 53 of the record of appeal, testified that, it was on 27^ July, 2016. According to him, the said contradiction was fatal as the charge was not amended to that effect. Second, that, in convicting the appellant, the trial court relied on the ^Mgolold which was not tendered and admitted in evidence as an exhibit. To clarify on this point, he referred us to pages 140 and 141 of the record of appeal. Third, the failure by the prosecution to summon material witnesses. That, although in their evidence, PWl, PW2 together with the appellant stated that the wife of one Gwaruda was at the scene of crime and she was related to the person who was suspected to have stolen the mobile phone, the said woman was not called to testify before the trial court. He contended further that, even the person, by the name of Joackim Qwarsan Gwaruda, who was said to have identified the deceased body at the mortuary, was also not summoned before the trial

court to shed light on that aspect. To amplify further on this point, he referred us to pages 92 to 94 of the record of appeal, where on 9^ October, 2020, the prosecution indicated their intention of summoning the said Joackim Qwarsan Gwaruda as an additional witness, but failed to do so. He argued further that, the Doctor who attended the deceased prior to his death was also not summoned and even the PF3 to that effect, was not tendered as an exhibit. The learned counsel wondered as to why the learned trial Judge did not draw adverse inference on the prosecution for such failure. To bolster his point, he cited the case of Gabriel Simon Mnyele v. Republic, Criminal Appeal No. 437 of 2007 [2010] TZCA 97: [22 December 2010: TANZLII]. He then argued that, the pointed-out irregularities are critical and had weakened the prosecution case as readily conceded by Ms. Kassala. As such, he refrained from pressing for an order of retrial, and instead, prayed for the appeal to be allowed and the appellant be set free. On our part, having considered the submissions made by the learned counsel for the parties in the light of the record of appeal before us, we wish to start with the second ground of appeal in the supplementary memorandum of appeal on the failure by the learned trial Judge to sign the proceedings after recording the evidence of the 10

parties' witnesses. It is clear to us that both learned counsel for the parties are at one on the said omission but, took different approach on Its consequences. While Ms. Kassala submitted that the said omission is curable under section 388 of the CPA, Mr. Ngemela argued that the same Is fatal and an Incurable Irregularity which had rendered the entire trial court's proceedings a nullity. We are, with respect, unable to agree with the submission of Ms. Kassala on this aspect. We shall demonstrate. The procedure of recording witnesses' evidence In criminal trials before the High Court Is regulated by section 215 of the CPA read together with the Criminal Procedure (Record of Evidence)(High Court) Rules, GN. Nos. 28 of 1953 and 286 of 1956. For the sake of clarity, section 215 of the CPA provides that: ''The High Court may, from time to time, by rules prescribe the manner in which evidence shall be recorded in cases coming before the court and the evidence or the substance thereof shall be taken down in accordance with those ruies." In addition. Rule 3 of GN. Nos. 28 of 1953 and 286 of 1956 provides that: 11

"In all trials of criminal cases before the High Court the record of the evidence ofeach witness shall consist of- (a) a record or memorandum of the substance of the evidence taken down in writing by the Judge, which shaii not ordinariiy be in the form of question and answer but in the form ofnarrative: (b) a type written transcript of shorthand record of the evidence, made in accordance with the provisions ofrules^ and5 ofthese Rules; or (c)partly a record or memorandum made in accordance with paragraph (a) of this ruie and partly a type written transcript made in accordance with paragraph(b)ofthis rule. In relation to the subordinate courts, the manner of recording the witnesses' evidence is provided under section 210(1) (a) of the CPA which provides that: "(1) In trials, other than trials under section 213, by or before a magistrate, the evidence of the witnesses shaii be recorded in the foHowing manner- fa) the evidence of each witness shaii be taken down in writing in the language of the court by the magistrate or in his presence and hearing and under his 12

persona! direction and superintendence and shall be signed by him and shaii form part of the record;" [Emphasis added]. From the above provisions, it is clear to us that, unlike the trial Magistrate, the trial Judge is not mandatorily required to append his/her signature after the end of each witness' testimony. The issue of disparity of the above provisions was considered by the Court in the case of Yohana Mussa Makubi & Another v. Republic, Criminal Appeal No. 556 of 2015 [2018] TZCA 80: [10 July 2018: TANZUI]. In that case, having been faced with an akin situation, the Court, after revisiting the provisions of section 356 of the Indian Criminal Procedure Code which is in pan materia W\h section 210 (1)(a) of the CPA, observed that, what obtains in India as a rule of law is in our jurisdiction a long-established rule of practice as part of the procedure in the proper administration of criminal justice before the High Court. Specifically, the Court observed that: "7/7 iight of what the Court said in WALII ABDALLA KIBWITA's and the meaning of what is authentic, can it be safeiy vouched that the evidence recorded by the triai Judge without appending her signature made the proceedings 13

legally valid? The answer Is In the negative. We are fortified In that account because, In the absence ofsignature of trial Judge at the end of testimony of every witness: firstly, it is Impossible to authenticate who took down such evidence. Secondly, if the maker is unknown then, the authenticity of such evidence is put to question as raised by the appeliants' counsel. Thirdly, if the authenticity is questionable, the genuineness of such proceedings is not established and thus; fourthly, such evidence does not constitute part of the record of trial and the record before us." Then, the Court went on to state that: "We are thus, satisfied that, failure by the judge to append his/her signature after taking down the evidence of every witness is an incurable irregularity in the proper administration of criminal justice in this country. The rationale for the rule is fairiy apparent as it is geared to ensure that the trial proceedings are authentic and not tainted. Besides, this emulates the spirit contained in section 210(1) (a) of the CPA and we find no doubt in taking inspiration there from. In view ofthe stated omission the trial proceedings 14

of the High Court were indeed vitiated and are a nuiiity...'^[Emphasis added]. See also the cases of Sabasaba Enos @ Joseph v. Republic, Criminal Appeal No. 411 of 2017 [2021] TZCA 142: [29 April 2021: TANZLII] and Mhajiri Uladi & Another v. Republic, Criminal Appeal No. 234 of 2020 [2021] TZCA 313:[16 July 2021: TANZLII]. Being guided by the above authorities, we find no difficulty to agree with the submissions advanced by Mr. Ngemela that, since in the instant appeal, from pages 42 to 71 of the record of appeal, the learned trial Judge did not append his signature after recording evidence of the parties' witnesses, i.e PWl, PW2, PW3, PW4, PW5, PW6 and DWl, the authenticity of the testimonies of the said witnesses together with the veracity of the trial court's proceedings is questionable. It is therefore obvious that, the said omission amounted to an incurable irregularity which cannot be cured by section 388 of the CPA as suggested by the learned Principal State Attorney. In the result, we find that the said omission had vitiated the entire trial court's proceedings and thus, they are a nullity. Consequently, we nullify the trial court's proceedings, quash the judgment and conviction and set aside the sentence meted out against the appellant. 15

That said and done, the remaining issue is on the way forward. The guiding principle In answering that issue is stated In the case of Fatehali Manji v. Republic [1966] EA 343 in which the erstwhile East African Court of Appeal observed at page 344, that: "...In genera!a retrial will be ordered only when the original trial was Illegal or defective; it will not be ordered where the conviction Is set aside because of Insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame. It does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrialshould only be made where the interests of justice require it and should not be ordered where it is iikeiy to cause an injustice to the accused person." [Emphasis added]. Being guided by the above authority, we hasten to entirely and respectfully agree with the submission advanced by Mr. Ngemela that this is not a fit case for us to make an order for a retrial. The articulated irregularities and unfolded deficiencies In the prosecution case shade 16

doubts that, if the prosecution is given that opportunity, there is a likelihood of filling in gaps. Certainly, PWl and PW2 the only prosecution's eye witnesses at the scene of crime, did not properly identify the person who was suspected to have stolen the mobile phone and allegedly being beaten by the appellant, for it to be certain that, it was the same person who was later found unconscious by PW3 and later died on 27^^ July, 2016. Worse enough, there were no plausible reasons offered by the prosecution as to why other material witnesses such as, the wife of Gwaruda, who allegedly participated and witnessed the incident was not summoned to testify before the trial court. Furthermore, one Joackim Qwarsan Gwaruda and other people who allegedly went to the mortuary to identify the deceased's body, were also not summoned to testify before the trial court. It is also evident at pages 140 to 141 of the record of appeal that, the learned trial Judge, relied heavily on the "Mgolold and acted upon it to convict the appellant while the same was not tendered at the trial and admitted in evidence as an exhibit. In our considered view, all these omissions and irregularities, as correctly argued by Mr. Ngemela, if an order for retrial is given, will avail an opportunity to the prosecution to fill in gaps. In the circumstances, we 17

are of the settled view that, a retrial order is likely to prejudice the appellant. In the event, and for the foregoing reasons, we allow the appeal and order for the immediate release of the appellant from prison unless he Is held for some other lawful cause. DATED at ARUSHA this 2"^ day of October, 2023. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 3^^ day of October, 2023 in the presence of Mr. Edmund Ngemela, learned counsel, the appellant in person and Ms. Upendo Shemkole, learned Senior State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. kPPM o o -A Aw z o o 5^ 3 H J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 18