Juma Gulaka & Others vs Republic (Criminal Appeal No.279 of 2022) [2023] TZCA 17580 (31 August 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: WAMBALI. J. A.. MWANDAMBO. J.A. And MGONYA. J.A.'l CRIMINAL APPEAL NO. 279 OF 2022 JUMA G U LA K A ........................................................................... 1 st APPELLANT JUMA KASANANA...................................................................... 2 nd APPELLANT BAHATI JOHN @ LUTATINA......................................................3 rd APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza (Itemba, J.) Dated the 15th day of June, 2022 in Criminal Sessions Case No. 136 of 2015 JUDGMENT OF THE COURT 28th & 31st August, 2023 WAMBALI. J.A.: The appellants, Juma Gulaka, Juma Kasanana and Bahati John @ Lutatina together with Julius Kataha and Mbaraka Said @ Kasusura, not parties to this appeal, were initially jointly and together charged with the offence of murder contrary to sections 196 and 197 of the Penal Code Cap. 16 (the Penal Code) before the High Court of Tanzania at Mwanza (the trial court) in Criminal Sessions Case No. 136 of 2015. It was alleged in the particulars of the information that on 3rd February, 2010 at Samina Forest in Geita Region they jointly and together i

murdered January Kasuhuke. They denied the allegation hence, a full trial commenced on 1st July, 2015. At the climax of the trial, the trial court evaluated the evidence for both sides and ultimately, it found the appellants guilty, convicted and sentenced them to suffer death by hanging. On the other hand, it acquitted Julius Kataha and Mbaraka Said @ Kasusura. Dissatisfied, the appellants appealed to the Court in Criminal Appeal No. 585 of 2017. At the hearing of the said appeal, it transpired that before the trial commenced at the trial court, the appellants were not called upon to take pleas to the information as required by law. The Court heard the contending submissions of the counsel for the parties on the omission and in the end, it was satisfied that the trial court contravened the law as the appellants were not caused to plea before the commencement of the trial held with the aid of assessors. The Court held that the omission occasioned miscarriage of justice to the parties rendering the trial a nullity. It thus declared the proceedings of the trial court a nullity, quashed convictions and set aside the sentences and ordered an expeditious retrial before another judge. As it were, Criminal Sessions Case No. 136 of 2015 was placed before the High Court (Itemba, J.) for retrial which commenced on 16th May, 2022. On that day, an information involving five accused persons was read over as 2

required by law and the appellants pleaded not guilty in the absence of the other two accused persons. Considering the amendment to section 265 introduced vide the Written Laws (Miscellaneous Amendments) Act, No. 1 of 2022 on the involvement of assessors, the trial was conducted without the aid of assessors. The prosecution paraded nine witnesses and tendered five exhibits. The appellants defended themselves as they had no witnesses to support their respective defences. At the height of the trial, the trial judge evaluated the evidence of both sides and ultimately, she formed a firm opinion that the appellants were guilty of the offence of murder as the prosecution proved the case to the hilt. She thus convicted and sentenced them to suffer death by hanging. The appellants' dissatisfaction with the findings, convictions and sentences by the High Court prompted them to lodge the instant appeal. Initially, they jointly lodged two memoranda of appeal comprising a total of twenty grounds of appeal. Nevertheless, before the appeal was called on for hearing, counsel assigned to represent the first and second appellants lodged two supplementary memoranda of appeal consisting of a total of eight grounds of appeal. However, the determination of this appeal, does not depend on those grounds. Hence, we do not intend to reproduce them herein. 3

At the hearing of the appeal, Mr. Cosmas Tuthuru, Mr. Constantine Mutalemwa and Mr. Steven Kitale, all learned advocates, appeared for the first, second and third appellants, respectively. On the adversary side, the respondent Republic had the services of Mr. Castus Ndamugoba, learned Senior State Attorney. Before we considered the grounds of appeal, we noted that according to the record of appeal, the information which was placed before the trial court in which the appellants were called upon to plea contained five persons who were jointly and together accused of committing murder on 3rd February, 2010. In this regard, apart from the appellants, the information included Julius Katana and Mbaraka Said @ Kasusura who were initially acquitted in the first trial and indeed were not before the trial court. The record of appeal reveals further that there was no amendment to the information which was lodged initially on 30th June, 2015 before the first trial commenced. We therefore required counsel for the parties to address the Court on the propriety of the trial court's proceedings amid the information involving a trial of the appellants excluding two of the accused persons mentioned in the information at the commencement of re trial. In response, Mr. Tuthuru argued that the information which was placed upon the appellants to plea prejudiced them because they were made to understand that they were still being charged with two other 4

persons who were not before the trial court. He contended that the information was defective and not curable. He thus urged the Court to nullify he proceedings and discharge the appellants as a retrial will not be in the interest of justice. Mr. Mutalemwa concurred with the submission by Mr. Tuthuru and added that considering the defects in the information, both the trial court and the prosecution had the duty to cause amendment to it in terms of section 276 (2) of the Criminal Procedure Act, Cap. 20 (the CPA). In his view, since the information was not amended, the appellants were unfairly tried hence, they should be discharged instead of being tried again on the same charge. He added that it would be unfair for the appellants to undergo a third trial while the trial court and the prosecution did not discharge their respective duties. Similarly, Mr. Kitale concurred with the submissions by his learned colleagues. He submitted that the information is a foundation of any criminal trial and thus, such a defective information could not commence a fair trial. He emphasized that the appellants were entitled to know the nature of the charge they faced and with whom they stood jointly and together charged. He submitted further that if the prosecution had intended to charge the appellants only, the information ought to have been amended to remove the 5

names of the two persons who had been acquitted during the first trial and basically were not before the trial court. Having heard the submissions of the counsel for the appellants and considering the defects in the information, Mr. Ndamugoba concurred and argued that the appellants did not get a fair trial, more so because the information was not amended to remove the two persons who were initially charged with them. He therefore agreed that the way forward is to nullify the trial court's proceedings and discharge the appellants as a retrial will not be in the interest of justice. To appreciate the substance of the information which was placed before the trial court by the prosecution against the appellants, it is necessary to reproduce the relevant part thus: "C R IM IN A L SES SIO N S C A SE NO. 1 3 6 O F 2 0 1 5 REPUBLIC .................................... PROSECUTOR VERSUS JULIUS KATAHA & 4 OTHERS ........... ACCUSED A t the sessions to be held a t ....... o n ...... day o f ..... 20.... the court is inform ed by the D irector o f Public Prosecutions on behalf o f the Republic that JU LIU Ss/o KATAHA ,, JUMA s/o GULAKA, MBARAKA s/o SAID, JUMA s/o KASANANA AND BAH ATIs/o JOHN @ LUTATINA are charged with the follow ing offence, that is to say: 6

STA TEM ENT O F O FFEN CE MURDER, contrary to sections 196 and 197 o f the Penal Code Cap. 16 V o l.l o f the Laws [R.E. 2002] PA R T IC U LA R S O F THE O FFEN CE JULIUS s /0 KATAHA, JUMA s/o GULAKA, MBARAKA s/o SAID @ KASUSURA, JUMA s/o KASANANA, BAHATI s/o JOHN @ LUTATINA on J d day o f February, 2010 a t about a t SAMIN A w ithin SAMINA Forest in Geita Region, jo in tly and together did m urder one JANUARY s/o KASUHUKE. SIG N ED a t GEITA this 30th day o f June, 2015" Admittedly, as conceded by Mr. Ndamugoba, the information in which the appellants were called upon to plead before the trial commenced on 16th May, 2022 was not amended to remove the two persons who were not at the trial court. It therefore remained as it was before the first trial on 30th June, 2015. In this regard, the information left no doubt that throughout the trial, the appellants were made to understand that they were being jointly and together charged with two others though they did not participate in the trial. It is unfortunate that at the beginning of the judgment, the trial judge alluded to the fact that the particulars in the information alleged that the appellants jointly and together committed the offence of murder. That was contrary to the particulars reproduced above which indicated that they were jointly and together charged with two others. Besides, the trial judge had 7

earlier on acknowledged that the two persons were acquitted in the previous trial. Moreover, it was submitted by the appellants' counsel and conceded by Mr. Ndamugoba that despite the defects in the information, no amendment was made at the initiative of the trial court or the prosecution before the trial commenced or at any stage of the trial as required by section 276 (2) of the CPA. For clarity, the respective section provides as follows: "Where before tria l upon inform ation or a t any stage o f the tria l it appears to the court that the inform ation is defective, the court sh all make an order fo r the amendment o f the inform ation as it thinks necessary to m eet the circum stances o f the case unless, having regard to the m erits o f the case, the required amendment cannot be made w ithout injustice; and a ll such amendments sh all be made upon such term s as to the court sh all seem ju s t." With respect, the trial court abdicated its statutory duty under section 276 (2) of the CPA to cause amendment of the information considering the fact that two of the accused persons were not called upon to plead to the information. Apparently, Mr. Ndamugoba also agreed that since the prosecution did not initiate the amendment to the defective information, the particulars

must have confused, embarrassed and prejudiced the appellants in respect of the nature of the offence and with whom they stood jointly and together charged though the two persons were not before the trial court. In this regard, he submitted that the appellants' trial was not fair. As stated by the Court in Mnazi Philemon v. The Republic, Criminal Appeal No. 401 of 2015 (unreported), one of the principles of fair trial in the criminal justice is that an accused must know the nature of the case facing him to enable him to present his own case during the trial. Therefore, because the appellants were tried, found guilty and convicted on a defective charge, it cannot be said that they were fairly tried because one of the initial requirements of a fair trial in criminal cases is a precise statement of the accusation. In the case at hand, we are settled that the information placed before the appellants at the trial court was not only confusing and embarrassing but also it prejudiced them to the extent that it occasioned miscarriage of justice. In the circumstances of the case that faced the appellants, the defects in the information rendered it incurably defective. We must emphasize that in a criminal trial, a charge or information is the foundation of the accusation. Thus, every care must be taken to see to it that it is not only properly framed but also the evidence is only tendered concerning the matters put in a charge or information and no other matters. 9

To this end, a trial court should always ensure that before commencing trial, the charge or information placed before it is properly framed and where there is any omission or irregularity which can be remedied by an amendment, cause the same to be made accordingly in order toensure a fair trial. The accused has a right to know what the prosecution hasagainst him. In Omary Abdallah @ Mbwangwa v. The Republic, (Criminal Appeal No. 127 of 2017) [2019] TZCA 529 (5 March 2019, TANZLII), we stated that: "... a charge sheet or inform ation is an im portant docum ent which puts in m otion a crim inal tria l before a tria l court. The charge or an inform ation therefore as a prim ary accusatory instrum ent m ust plead the prosecution case with sufficient detail and cla rity." The charge or information must give clear and unambiguous or precise notice of the nature of the offence or accusation which the accused is called upon to meet in the course of trial. In this regard, an unambiguous and clear charge or information removes the prejudice which may be caused to the accused. Besides, clarity in the charge or information forms the basis of enabling the accused to know about the particulars of the offence he stands charged. 10

A defect or illegality in the charge or information can only be cured if the accused is not prejudiced in his defence. In R v. Ngidipe Bin Kapirama and Others, (1939) 6 E.A.C.A. 118, a decision of the defunct East African Court of Appeal, which was referred by the Court in Burton Mwapabilege v. The Republic, Criminal Appeal No. 200 of 2009 (unreported), it was stated that: "An ille g a lity in the form o f a charge or inform ation m ay be cured as long as the accused persons are not em barrassed in their defence or there has otherw ise been a failure o fju stice ." In the present case, we are satisfied that the glaring defects in the information placed before the trial court had the effect of confusing, prejudicing and embarrassing the appellants and occasioning failure of justice. In the circumstances, the proceedings of the High Court in Criminal Sessions Case No. 136 of 2015 were a nullity as the appellants were called upon to plead to a defective information. In our view, in the circumstances of the case, the defects in the information constituted a fundamental procedural irregularity going to the root of the case and thus, it cannot be salvaged by the provisions of section 388 of the CPA. It is noteworthy that an incurably defective charge or information cannot commence a lawful trial. For this stance, see for instance, the case of Hassan Jumanne @ Msigwa v. The Republic, Criminal Appeal No. 290 of 2014 (unreported). 11

With regard to the way forward, we are of the view that this is not a fit case in which we should order a retrial. It is beyond controversy that so far, the appellants have undergone two trials since they were arraigned at the Inquiry court in 2010. The first trial ended up being nullified by the Court because of illegalities associated with the failure of the trial court to cause the appellants to plea. The second trial which is the subject of the current appeal will also suffer nullification because of the illegalities in the information. In the circumstances, we are of the firm view that the interest of justice will not be saved if we order a third trial for the appellants. In Muirari v. Republic (2003) KLR 552, the Court of Appeal of Kenya held inter alia\ "1. Generally, whether a re trial should be ordered or not m ust depend on the circum stances o f the case. 2. It w ill only be made where the interest o f ju stice requires it and if it is unlikely to cause injustice to the appellant. Some factors to consider would include, but not lim ited to, illeg alities or defects in the original trial, length o f tim e having elapsed since the arrest and arraignm ent o f the appellant; W hether the m istakes leading to the quashing o f the conviction were entirely the prosecution or n o t." We entirely subscribe to the persuasive observation of the Court of Appeal of Kenya. In the final analysis, having regard to the circumstances of 12

the case, we are settled that the just and equitable order is not to order a retrial. It is beyond controversy that a third trial will ultimately result in miscarriage of justice on the appellants and an abuse of court process. In the light of the foregoing, in exercise of the powers of revision provided under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019, we nullify the proceedings of the trial court in Criminal Sessions Case No. 136 of 2015, quash convictions and set aside the sentences of death by hanging against the appellants. Consequently, we order that the appellants be released from custody forthwith unless held otherwise lawfully for other causes. DATED at MWANZA this 30th day of August, 2023. F. L. K. WAMBALI JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 31st day of August, 2023 in the presence of Mr. Cosmas Tuthuru, Mr. Constantine Mutalemwa, who took brief of Mr. Steven Kitale, all learned advocates represented the 1st, 2n d and 3rd Appellants respectively and Ms. Martha Mwadenya, learned Senior State Attorney for the respondent, is hereby certified as a true copy of the A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 13