Godfrey Mfuse vs Republic (Criminal Appeal 174 of 2020) [2022] TZCA 665 (3 November 2022)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA CORAM: WAMBALI. J.A.. LEVIRA. 3.A. And MAIGE. 3.A.) CRIMINAL APPEAL NO. 174 OF 2020 GODFREY MFUSE............................................................................APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania Iringa District Registry at Njombe (Kente. 3.) dated the 12th day of March, 2020 in Criminal Sessions Case No. 93 of 2016 JUDGMENT OF THE COURT 31st October & 3rd November, 2022 MAIGE, 3.A. On 12th day of March, 2020, the appellant was convicted by the High Court of Tanzania Iringa District Registry at Njombe ("the trial court"), of the murder of Ahmed s/o Mdemu ("the deceased"), contrary to section 196 of the Penal Code [Cap. 16. R.E., 2019 now R.E 2022] and sentenced to death by hanging. In accordance with the Information, the offence was committed on 22n d day of November, 2015 (the material day), at the Air Port area within the District and Region of Njombe.

The material facts on the basis of which the appellant was convicted can be summarized as follows. On the material day, the deceased and Calistus Sanga (PW5) rushed, by a motorcycle, their fellow housemate Hubert Mwanyika who was involved in a motorcycle accident to hospital for treatment. The deceased was the one who was riding the motorcycle. As they were coming back to their residence at Kambarage Street within the town of Njombe, they were stopped, at the Airport area, by two men who introduced themselves as " walinzi shirikishf , literally, ("informal security guards"). Soon enough, the two persons started beating the deceased and PW5 by an iron bar. As a result, the deceased fell down and lost consciousness. Nevertheless, PW5 managed to run away. The two bandits took the motorcycle away. PW5 reported the matter to the street chairperson, Brayson Mugaya (PW1) who in turn reported it to the police. ASP John Mapunga (PW4) in a company of other police officers visited the scene of crime and found the body of the deceased lying down on the ground. The dead body of the deceased was taken to hospital and on examination by Dr. Allen Kitalu (PW7), it was established as per postmortem examination report (exhibit P5) that, the cause of death was shock due to severe bleeding from head injury. The appellant was arrested

on 14th December, 2015 and, on being interrogated by PW4 on;the next day, confessed commission of the offence as reflected in the cautioned statement (exhibit PI). In his defence, the appellant denied to have committed the crime. He further denied to have voluntarily made the confession in exhibit PI. He claimed to have been induced by torture to make such a statement. After closure of both the prosecution and defence cases, the trial Judge summed up the case to the gentle assessors with the aid of whom he conducted the trial. Unanimously, the said assessors were of the

• opinions that, the appellant was culpable of the offence. In his judgment, the trial Judge concurred with them. He thus convicted the appellant with the offence and as we said above, sentenced the appellant to suffer death by hanging. The appellant is aggrieved by both the conviction and sentence and thus the present appeal. In the memorandum of appeal, the appellant has, through assigned counsel, raised three grounds which can be reduced into two major complaints namely; the trial court's summing-up to assessors was not in accordance with the law and, in the alternative, the case against the appellant was not proved beyond reasonable doubt.

At the hearing, Mr. Jally Willy Mongo, learned advocate, appeared for the appellant whereas Mr. Yahaya Misango, learned State Attorney, appeared for the Respondent Republic. In address of the first complaint, Mr. Mongo, making reference to the summing-up notes appearing at pages 115-156 of the record of appeal, contended, with all forces, that the mandatory requirements imposed by the provisions of section 298 (1) of the Criminal Procedure Act [Cap. 20 R.E. 2022], (the CPA), were not complied with in the said summing up. The trial Judge, he submitted, omitted, in his summing up notes, to direct the assessors on the substance of evidence of both parties as much as he omitted to explain to them some vital points on the basis of which he applied the evidence to sustain the appellant's conviction. He pinpointed the omitted vital points as to include the evidential value of retracted confessional statement and the defence of alibi. These, he added, were the types of evidence which featured out prominently in the judgment. He, therefore, making reference to the authority in Kinyota Kabwe v. R, Criminal Appeal No. 198 of 2017 (unreported), urged us to nullify both the judgment and proceedings of the trial court, quash the conviction and set aside the sentence imposed on the appellant.

On the second complaint, it was Mr. Mongo's submission that, since the trial Judge convicted the appellant based solely on retracted confessional statement without warning himself of the danger so to do, this Court should exclude the said exhibit from the evidence and set the appellant free instead of ordering for a retrial. Reference was made to the case of Hamis Chuma @ Hando Mhoja v. R, Criminal Appeal No. 36 of 2018 (unreported). In rebuttal, Mr. Misango while admitting of there being inadequacies in the summing-up by the trial Judge, he was of the contention that, the same cannot affect the substantial validity of the proceedings in as long as the assessors, in their opinions, considered all the essential elements of the evidence adduced and the vital points involved. He substantiated his contention with our following observation in the case of Jackrine Exsavery v. R, Criminal Appeal No. 485 of 2019 (unreported). "We agree with Mr. Kahigi; there is no reason to doubt the record o f the trial proceedings where the trial judge indicated that he informed the appellant o f her rights under section 293(b) (a) o f the CPA. We must trust our trial judges, who still write in longhand o f voluminous court proceedings. We should not ask too much from the trial judges who

write down all what transpires in court without any assistance o f appropriate functioning technology o f verbatim electronic court records." Basing on the above observation, the learned State Attorney urged us to hold, perhaps analogously, that; the hints of the trial Judge in what transpired in the summing-up as reflected at pages 115 to 124 of the record of appeal, amount to substantial compliance of the requirement of section 298 (1) of the CPA. Remarking on the second complaint, the learned State Attorney • submitted that, for the reason of being admitted without being objected, the confessional statement was the best evidence such that it could be relied upon without necessarily calling for corroborative evidence. On this, he relied on the case of Frank Kinambo v. R, Criminal Appeal No. 47 of 2019 (unreported) which is in support of that view. Regarding the appellant's claim in his defence evidence that he made the statement because of being tortured, the learned State Attorney further submitted, was irrelevant and an afterthought in as much as it was not initially raised when the prosecution prayed to tender the document. He authenticated his argument with the case of Malula Chemu @ Malula 6

and Two Others v. R, Criminal Appeal No. 188 of 2019 (unreported) where it was observed: " We think, with respect, that, if an accused person intends to object to the admissibility o f a statement, he must do so before it is admitted in evidence and not during cross examination or during defence as doing so afterwards is an afterthought". On the way forward, Mr. Misango advised us that; rather than nullifying the entire proceedings of the trial court and ordering for trial denovo, the Court should only nullify the judgment and proceedings from the date of summing up. It should further order that, the case file be placed before a different Judge sitting with the same set of assessors with absolute discretion to either proceed with making fresh summing-up and then compose a judgement or take fresh evidence before composing the judgment in terms of section 299(1) of the CPA. In his rejoinder submissions, Mr. Mongo while reiterated what he submitted in chief, differed with the learned State Attorney on the way forward, should we remit the file to the trial court. To him, retrial is the appropriate way forward. 7

With the above elucidation of the arguments for and against the appeal, it is desirable to consider the merit or otherwise of the same. As the counsel did, we shall begin with the first complaint as to the propriety of the trial Judge's summing-up to the assessors. It is common ground that; under section 298(1) of the CPA, where the case is tried with the assistance of assessors, the trial Judge or magistrate with extended jurisdiction, as the case may be, is obliged, before causing the assessors to opine on the guilty or otherwise of the accused, to make a sum up to them on the substances of the evidence of both sides and any vital points of law involved therein. See for instance, Omari Khalfan v. R, Criminal Appeal No. 107 of 2015 and Batram Nkwera @ Mhesa v. DPP, Criminal Appeal No. 567 of 2019 (both unreported). Since it is a matter of logic that assessors cannot give meaningful opinions in the absence of proper summing-up, we have held from time to time that, failure to comply with this requirement is not a matter technicalities. It is a fatal irregularity which renders the trial deemed conducted without the aid of assessors and henceforth null and void. Thus, in Said Idd Mshangama @ Senga v. R, Criminal Appeal No. 8 of 2014 (unreported), we said; 8

"As provided under the law, a trial o f murder before the High Court must be with the aid o f assessors. One o f the basic procedure is that the trial judge must adequately sum up to the said assessors before recording their opinions. Where there is inadequate summing up, non-direction or misdirection on such vital points o f law to assessors, it is deemed to be a trial without the aid o f assessors and renders the trial a nullity, (see Rashid Ally v. Republic, Criminal Appeal No. 279 o f 2010 (unreported)." In here, the trial Judge's summing-up, parties are not in dispute, does not comprise of any explanation of the substance of the evidence of both parties. Neither does it contain any explanation of the relevancy and reliability of the evidence in a cautioned statement which was the main basis for the appellant conviction. On top of that, the appellant defence of alibi which has been discussed in details in the judgment is not explained at all in the summing-up notes. The learned State Attorney has urged us to apply analogously in this case, the observation in Jackrine Exsavery case. We have read the authority and we fully associate ourselves with the observation therein. However, with deepest respect to the learned State Attorney, the principle 9

cannot apply in the facts of this case for three main reasons. First, the duty of the trial judge to inform the accused of his right to defend and the options available under section 293(2) (a) and (b) of the CPA which was the theme in the said case, is not analogous with the duty of the trial Judge to sum-up to the assessors under section 298(1) of the Act. Two, it is not the principle under the said case that a trial judge should not write down what transpired in the proceedings but that; he should not write each and every thing. That does not, in our view, relieve the trial Judge from noting down what is material in his duty. Three and more importantly, at page 14 of the same judgment, the Court just as is in this case, emphasized the necessity of the summing-up notes to contain the substance of evidence and vital points when it said: 'We have looked at the summing up notes appearing from pages 44 to 51 o f the record, which the learned trial judge prepared and which he presented before the assessors. These summing up notes indicated that the trial judge summed up the evidence, and also expounded the ingredients o f the offence o f murder in relation to the evidence. Our conclusion is, in his summing up, the trial judge covered the vital legal points o f law and facts 10

relevant for the offence o f murder which the appellant faced". Having said that, it is our considered opinion that; the trial court's proceedings and the judgment arising therefrom are null and void for want of a proper and correct summing up to assessors as required by law. We have been called upon by the counsel for the appellant to, in consideration of the second complaint of the appeal, instead of ordering retrial, set the appellant free. For the respondent, we have been advised to only nullify the summing up notes and the proceedings subsequent thereto and remit the file to the trial court with the direction that, the successor judge has absolute discretion to either make a fresh summing up and compose a judgment basing on the evidence or take fresh evidence before composing the judgment. On our part, having considered the counsel's contending views in line with the principle in Fatehali Manji v. R [1966] E.A. 343, we are of the opinion that the justice of the case requires that a trial denovo of the appellant be ordered. As the first ground of appeal disposes of the appeal, we do not see any need to determine the second ground. In the final result and for the foregoing reasons, we nullify the proceedings of the trial court, quash the conviction and set aside the

sentence meted out against the appellant. We order for an expediated retrial of the appellant before another Judge in compliance of the requirement under the current provisions of section 265 (1) of the CPA in respect of involvement of assessors. In the meantime, the appellant should remain in custody pending his retrial. DATED at IRINGA this 2n d day of November, 2022. F. L. K. WAMBALI JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Judgment delivered this 3rd day of November, 2022 in the presence of Mr. Jally Mongo, learned counsel for the appellant and Mr. Alex Mwita, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.