Juma Lubinza @ Buguhe vs Republic (Criminal Appeal No. 114 of 2020) [2023] TZCA 17636 (22 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: NDIKA. J.A.. KIHWELO. 3.A.. And MWAMPASHI. J.A/t CRIMINAL APPEAL NO. 114 OF 2020 JUMA LUBINZA @ BU G U H E..................................................... . ............. APPELLANT VERSUS THE REPUBLIC...............................................................................RESPONDENT (Appeal from the judgment of the Resident Magistrate's Court of Mwanza at Geita) (Ndvekobora. RM. Ext. Juris) dated the 13th day of December, 2019 in Criminal Sessions Case No. 60 of 2016 JUDGMENT OF THE COURT Iffh & 22n dSeptember, 2023 NDIKA. J.A.: On 22n d January, 2015 at night, Magdalena Milimo ("the deceased") was hacked to death by certain machete-wielding assassins who stormed her home at Nhomolwa village, Mbogwe District in Geita Region. The postmortem examination report tendered at the trial attributed the death to massive blood loss after the deceased had suffered a multiple cut injury on her head. Indeed, the trial before the Resident Magistrate's Court of 1

Mwanza at Geita (Ndyekobora, RM - Ext. Juris) principally turned on whether the appellant, Juma Lubinza alias Buguhe, was one of the two murderers of the deceased spotted at the scene of the crime. The trial court answered the question in the affirmative. Accordingly, it convicted him as charged and sentenced him to death. Believing that the said decision robbed him of justice, he now appeals against the conviction. The case for the prosecution was primarily based on the eyewitness accounts of the deceased's two daughters, PW3 Justina Kahema and PW4 Masikitiko Kahema. In essence, the two sisters adduced that around noon on 22n d January, 2015, their brother, Charles Kahema, came back home along with the appellant and a certain Meneja Kazinza who he introduced as his friends domiciled at the nearby Nyanhwiga village. After eating lunch around 14:00 hours, the appellant and Kazinza left. Later in the night around 20:00 hours, the two sisters heard a knock on the door by two men clad in black coats and trousers. There were differing accounts as to which points exactly PW3 and PW4 were at the time, but it is undisputed that the deceased was outside the home sitting by a flaming hearth locally known as kikome. Initially, the two men got into 2

the home and asked for Charles, but they later drew out their machetes, got out and accosted the deceased. With the aid of light emitted from the burning hearth and moonlight, PW3 and PW4 allegedly saw and recognized that the assailants were the appellant and Kazinza who, as hinted earlier, had visited the home earlier in the afternoon. They saw Kazinza hacking the deceased with his machete and a few moments later the appellant chased them away to quell their frantic distress calls. About an hour later, PW3 and PW4 trod back home and found their mother's lifeless body lying on the ground near the hearth. Their alarm drew the attention of Mayunga Kanyondwa, a neighbour, who rushed to the scene. At that time the murderers had taken flight. The matter was reported to Felician Mabingija, the Village Executive Officer ("VEO"), who turned up at the scene on the following morning. Assistant Inspector Kalilo Samson (PW2) was part of a contingent of five police officers that attended the scene of the crime on 23rd January, 2015. According to him, they found the deceased's body lying on the ground by the hearth and that it had visible cut wounds on the head. He tendered a sketch plan of the scene, which was admitted as Exhibit PI. Moreover, Dr. Joel Chunga (PW5), an Assistant Medical Officer at the

Masumbwe Health Centre who also arrived at the scene around the same time, examined the body and posted his findings in the postmortem examination report (Exhibit P2). As indicated earlier, he certified the cause of death as being massive blood loss due to a multiple cut injury the deceased sustained on her head. Police Officer No. C.2599 Detective Constable Phinias (PW1) testified on various aspects of the investigations he conducted into the incident. Most importantly, he averred that he learnt from PW3 during interrogation on 24th January, 2015 that the appellant and Kazinza were the culprits. With that lead, the police launched a manhunt culminating in the arrest of the twosome on 30th January, 2015. He also told the trial court that the said Kazinza died in prison before the trial commenced. Apart from flatly denying under oath to have killed the deceased, the appellant interposed an alibi. He claimed that at the material time he was at his home where he spent the night with his wife, Eliza Cheja. He also denied having visited the scene of the crime earlier in the day and insisted that he did not know any of the two identifying witnesses.

The three assessors who sat with the learned trial magistrate returned a unanimous verdict of guilty. In convicting the appellant, the learned magistrate placed much reliance on the evidence of the identifying witnesses Citing our decisions in Waziri Amani v. Republic [1980] T.L.R. 250 and Luziro s/o Sichome & Another v. Republic, Criminal Appeal No. 131 of 2010 [2011] TZCA 80 [5 July 2011; TanzLII] on the cogency and reliability of visual identification evidence, the learned magistrate accepted PW3 and PW4's testimonies as credible and reliable. Accordingly, acting on that evidence she took the view that the appellant was unmistakably recognized at the scene. Ultimately, she convicted him of murder and sentenced him to death, as stated earlier. At the hearing before us, Mr. Emmanuel M. John, learned counsel, appeared for the appellant, who was also in attendance. Learned Senior State Attorney Castuce Ndamugoba stood for the respondent. In essence, Mr. John predicated the appeal on two grounds: one, that the appellant's trial was a nullity due to an egregious violation of section 246 (2) of the Criminal Procedure Act, Cap. 20 ("the CPA"); and two, that the case for the prosecution was not proved beyond reasonable doubt. 5

On the first complaint above, Mr. John submitted that the District Court of Bukombe at Bukombe, in its capacity as the committing court, did not read out and explain to the appellant the statements and documents containing the substance of the evidence of the persons intended to be produced at the trial as prosecution witnesses. Citing our recent decision in Alfan Apolinary @ Kyalubota & 3 Others v. Republic, Criminal Appeal No. 164 of 2021 [2023] TZCA 17579 [31 August 2023; TanzLII], he contended that the lapse was an incurable non-compliance with section 246 (2) of the CPA and that it vitiated the appellant's trial. Mr. Ndamugoba conceded the point and referred us to another recent decision of the Court in Ndaisenga s/o Vicent v. Republic, Criminal Appeal No. 523 of 2021 [2023] TZCA 17299 [2 June 2023; TanzLII] illustrating the severity of the procedural infraction at hand. He added that the omission in issue was prejudicial not just to the appellant but also to the prosecution. Our jurisprudence on the issue at hand is settled. As rightly submitted by both counsel, section 246 (2) of the CPA requires a committing court to read out and explain to the accused person the information as well as the statements and documents containing the 6

substance of the evidence of witnesses the prosecution intends to call at the trial. If, for whatever reason, the substance of certain statement or document is not read out and explained at the committal stage, the prosecution is precluded from calling such witness unless, pursuant to section 289 (1) of the CPA, a reasonable notice is furnished in writing to the accused person or his advocate of the intention to call such witness. Thus, non-compliance with sections 246 (2) and 289 (1) of the CPA renders the prosecution witnesses concerned incompetent to testify at the trial. That much was stated by the Court in Alfan Apolinary {supra), and Ndaisenga s/o Vicent {supra) cited by the learned counsel. See also Hamisi Meure v. Republic [1993] T.L.R. 213; Jumanne Mohamed & 2 Others v. Republic, Criminal Appeal No. 534 of 2015 (unreported); Samwel Henry Juma v. Republic, Criminal Appeal No. 211 of 2011 [2016] TZCA 813 (5 May 2016; TanzLII); and Mawazo Mohamed Nyoni @ Pengo & 2 Others v. Republic, Criminal Appeal No. 184 of 2018 [2021] TZCA 483 (16 September 2021; TanzLII). In the instant appeal, we agree with the learned counsel that the committal proceedings dated 23rd May, 2015, as captured by the record of appeal at page 15, do not indicate that the committing court read out and 7

explained to the appellant the contents of the witness statements and documentary exhibits. This was a non-compliance with the imperious requirement under section 246 (2) of the CPA. Furthermore, the entire record does not suggest that requisite notice was issued under section 289 (1) of the CPA for the five prosecution witnesses to take the stand at the trial. It is, therefore, an inescapable conclusion that the testimonies of the prosecution witnesses were received contrary to the law. As we did, for instance, in Alfan Apolinary {supra), we nullify the proceedings of the committing court dated 23rd May, 2015 as well as those of the trial court. Consequently, we quash the impugned conviction and set aside the sentence. Ordinarily, the foregoing outcome would have been sufficient to dispose of this matter and that we would have been enjoined to remand the case to the committing court for conducting committal proceedings afresh. However, before determining the fate of this appeal, we think that it is necessary to consider the complaint in the second ground that the case for the prosecution was not proved beyond reasonable doubt. On that basis, we should be able to find out whether the appellant's re-committal and subsequent retrial will be feasible. 8

We hinted earlier that the prosecution case rested entirely on visual identification evidence adduced by PW3 and PW4. Submitting on this evidence, Mr. John was emphatic that it was not watertight. Elaborating, he argued that it was contradictory and unreliable; that the identifying witnesses failed to name any suspects at the earliest opportunity; and, that they did not disclose to the village functionaries (notably VEO Felician Mabingija) that their brother had brought the two suspects to their home the previous day, implying that by hiding such vital information they must have had an interest to serve. He contended further that, the prosecution's failure to call two material witnesses - Mayunga Kanyondwa and VEO Felician Mabingija - dented their case. Taking his turn, Mr. Ndamugoba agreed with learned friend that the evidence on record does not show that the identifying witnesses named the appellant and Kazinza as suspects at the earliest opportunity. He referred us to page 25 of the record where PW1, the case investigator, adduced that at the initial stage of the investigations into the crime he received leads from a secret informer, implying that the suspects were most probably named by that informer, not the two sisters. The learned State Counsel also submitted that the non-disclosure by the two witnesses that 9

the appellant and Kazinza had been brought to their home earlier in the afternoon on the fateful day spoiled their credibility. He also wondered why the appellant and his supposed confederate were arrested eight days after the crime was committed if they were identified at the scene and that they lived in a nearby village. It is certain that the incident in the instant case occurred at night around 20:00 hours. Thus, the evidence on how the raiders were seen and recognized is so crucial. In this regard, it is essential to revisit the guidelines on visual identification evidence as stated by the Court in its seminal decision in W aziri Amani {supra). Pertinently, the Court cautioned, at pages 251 to 252, that: "... evidence o f visual identification, as Courts in East Africa and England have warned in a number o f cases, is o f the weakest kind and most unreliable. It follows therefore, that no court should act on evidence o f visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight". [Emphasis added] 10

Then, the Court stated, at p. 252, that: "Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions o f disputed identity, it seems dear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis o f all the surrounding circumstances o f the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not These matters are but a few o f the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue o f identity". [Emphasis added] 11

The above instructions have been restated in numerous cases. For example, in Said Chaly Scania v. Republic, Criminal Appeal No. 69 of 2005 [2007] TZCA 180 [16 March 2007; TanzLII], it was emphasized that: "We think that where a witness is testifying about identifying another person in unfavourable circumstances, like during the night, he must give dear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention all the aids to unmistaken identification like proximity to the person being identified, the source o f light and its intensity, the length o f time the person being identified was within view and also whether the person is familiar or a stranger". The Court also underscored in Jaribu Abdallah v. Republic [2003] T.L.R. 271 at 272 that: "In matters o f identification, it is not enough merely to look at facts favouring accurate identification, equally important is the credibility o f the witness. The ability o f the witness to name the offender at the earliest possible moment is a reassuring, though not a decisive factor". 12

See also Raymond Francis v. Republic [1994] T.L.R. 100; Jumapili Msyete v. Republic, Criminal Appeal No. 110 of 2014 [2015] TZCA 234 [12 August 2015; TanzLII]; Felician Joseph v. Republic, Criminal Appeal No. 152 of 2011 [2012] TZCA 177 [28 May 2012; TanzLII]; and Frank Maganga v. Republic, Criminal Appeal No. 93 of 2018 [2021] TZCA 105 [13 April 2021; TanzLII]. With the above guidelines in mind, we scanned the learned trial magistrate's evaluation of the eyewitness visual identification. As shown at pages 86 and 87 of the record of appeal, the learned trial magistrate, having summarized the evidence on record, found in her judgment that: "PW3 and PW4 managed to identify the accused by the help o f firework (sic) commonly known as kikome ... and moonlight which was high ... [at] the material time. [They] managed to identify the accused person because they saw him earlier and when he arrived to implement (sic) the killing in the evening they were dose to them (sic)...." She then concluded that: 7 found the identification free from all [possibilities o f mistaken identity] because the accused person 13

was known to the witnesses (PW3 and PW4), the source o f light which was used to identify him was stated, the distance at which the accused was observed was also described, the condition in which such observation occurred was also described, that the accused first came in the afternoon then returned at 8:00 p.m. at night to implement (sic) the killing. I had an opportunity o f observing and assessing the demeanour o f the [witnesses] ... especially PW3 and the PW4 and found that the evidence produced by them [ was] credible". As we shall demonstrate shortly, it is our respectful view that the above findings were not based on soundly evaluated evidence. The learned trial magistrate, we think, rushed to make the findings without subjecting the evidence to any thorough and exhaustive scrutiny. To begin with, we find justification in Mr. John's contention that PW3 and PW4's evidence was materially contradictory and unreliable. While PW3 initially stated in her evidence in chief that at the time of the raid she and PW4 were outside cooking, she changed tack in cross-examination, stating that her sister (PW4) was cooking inside the house whereas she and the 14

deceased were outside by the hearth. PW4 was emphatic that she was in the kitchen cooking at the time. Furthermore, whereas PW3 adduced that the attackers knocked on the door to the home and subsequently gained ingress, her sister stated that the attackers remained outside with the deceased. On this evidence, it cannot be determined with certitude from what vantage positions at the scene they observed the assassins. If we accept the evidence that PW4 was inside the house cooking and that the deceased was, at the time, sitting by the hearth, which, according to the sketch plan (Exhibit PI), was six metres away from the house, we cannot help but wonder how she (PW4) could observe from the kitchen what was unfolding outside more than ten to fifteen metres away. It is unclear how the burning hearth and moonlight supposedly illuminating the outside aided her observation of the incident. Furthermore, we see merit in the learned counsel's common submission questioning the credibility of the identifying witnesses. To recapitulate, they both contended, first, that the witnesses failed to name the appellant as a suspect at the earliest opportunity. And secondly, Mr. John posited that the witnesses had an interest to serve since they failed to disclose to the village functionaries the suspects' visit at the scene in the 15

afternoon at the invitation of their brother. Had they named the appellant as one of the suspects at the earliest opportunity it would have been a reassuring factor on their credibility, but their failure to do so should have compelled any prudent court to inquire into that aspect - see Jaribu Abdallah ( supra ); Marwa W angiti Mwita & Another v. Republic [2002] T.L.R. 39; and Swalehe Kalonga & Another v. Republic [2003] T.L.R. 271. Certainly, Mr. Ndamugoba's suggestion that, PW1 (the investigator) originally learnt of the possible suspects from the secret informer whose identity he did not disclose, cannot be ruled out. At any rate, it beats logic that the appellant and Kazinza, who domiciled in a nearby village, were not arrested without delay if they were recognized at the scene and promptly reported to the police by the identifying witnesses. Crucially, there is no evidence on record suggesting that the appellant and his supposed friend had fled their respective residence in Nyanhwiga village or that they had all along been hiding to evade arrest. Neither PW1 nor PW2 specifically testified on this aspect of the case. Equally inexplicable is the witnesses' attempt to hide the facts on the alleged afternoon visit by the appellant and Kazinza. Why did they seek to

hide the truth on the event preceding the killing of their dear mother? Did they do it to save their brother from the wheels of justice as he would surely have been one of the suspects? As correctly submitted by Mr. John, on the authority of the decision of the High Court in Abraham Saiguran v. Republic [1981] T.L.R. 265, evidence given by a witness with an apparent interest to serve should be approached cautiously and that it must be corroborated by independent evidence. Turning to the grievance that the prosecution failed to call Mayunga Kanyondwa and VEO Felician Mabingija to testify at the trial, we agree that in the circumstances of this case these witnesses would have shed light on what they found at the scene after the raid and whether the identifying witnesses mentioned any suspects at the earliest opportunity. Related to this, we wonder if the witnesses' brother, Charles, was never pursued, arrested, and joined as an accused, why was he not called as a prosecution witness at the trial given that it was supposedly at his invitation that the appellant and Kazinza visited the deceased's home in the afternoon, perhaps, in preparation for the raid? In our view, this failure reasonably leads to one irresistible inference; that had Charles been called as a 17

prosecution witness and testified at the trial he would have belied PW3 and PW4. In view of the foregoing analysis, we are of the settled mind that the visual identification evidence on record was not watertight. In the premises, we share the learned counsel's view that remitting the case for re-committal and retrial would not be feasible. Most probably, it will be a platform for the prosecution to fill the gaps to embellish its case. That will amount to persecuting the appellant, a course that we are not prepared to countenance. By way of a postscript, we wish to make a brief but vital remark. We are cognizant that the learned trial magistrate tried the case sitting as "the Resident Magistrate's Court o f Mwanza at Geita." The matter was duly transferred to the learned trial magistrate vide the order of the Hon. Judge in Charge, Mwanza High Court Registry dated 12th November, 2019 pursuant to section 256A (1) of the CPA. When the trial was conducted between 29th November, 2019 and 12th December, 2019, the territorial area of Geita region, covering five districts including Bukombe District within which the alleged crime was committed, fell, and still falls, within the precincts of the Resident Magistrate's Court of Geita in terms of the 18

Magistrates' Courts (Courts of Resident Magistrate) (Re-Designation) (Amendment) Order, 2012, Government Notice No. 245 of 2012 read together with the Magistrates' Courts (Courts of Resident Magistrate) (Re- Designation) (Amendment) Order, 2012, Government Notice No. 246 of 2012. It cannot, therefore, be seriously doubted that the learned trial magistrate, whose station was the Resident Magistrate's Court of Mwanza, sat in her court outside its territorial jurisdiction. In Samson s/o Buruna @ Sibore s/o Buruna v. Republic, Criminal Appeal No. 138 of 2002 (unreported), the Court dealt with a similar scenario: a Principal Resident Magistrate with extended jurisdiction presided over a murder trial sitting as "the Resident Magistrate's Court o f Mwanza at Tarime."Jo be sure, Tarime is an area within the precincts of the Resident Magistrate's Court of Musoma. Having considered the legal effect on the case flowing from the act of the learned Principal Resident Magistrate sitting in a court where he had no territorial jurisdiction, the Court took the view that the proceedings at Tarime were not a nullity because the lack of territorial jurisdiction was curable. The Court reasoned thus: 19

"We think that it cannot be disputed that had Mr. Mtoteia, Principal Resident Magistrate, sat anywhere in Mwanza Region, he had jurisdiction to try the case because he had extended jurisdiction and the case had been duly transferred to him to try. When he sat at Tarime he was trying the same case which had been transferred to him, albeit in the wrong place. We think that this is a situation which is curable under section 387 o f the Criminal Procedure Act, 1985. It would have been a different matter if he had purported to sit in the High Court where only judges duly appointed sit". Section 387 of the CPA referred to in the above excerpt seeks to save proceedings conducted in a wrong place thus: "No finding, sentence or order o f any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course o f which it was arrived at or passed, took place in a wrong region, district or other local area, unless it appears that such error has in fact occasioned a failure of justice". [Emphasis added] 20

Barring the egregious non-compliance with sections 246 (2) and 289 (1) of the CPA in the instant matter, we would have ignored the irregularity arising from the conduct of the trial proceedings outside the court's territorial confines on the authority of Samson s/o Buruna {supra). In sum, we allow the appeal and order that the appellant, Juma Lubinza alias Buguhe, be released from prison unless he is otherwise lawfully held. DATED at MWANZA this 21s t day of September, 2023. presence of the appellant in person, and Mr. John Simon Joss learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL nt delivered this 22n d day of September, 2023 in the P. F. KIHWELO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL A -* 4 R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 21