Salum Njwete @ Salum @ Scorpion vs Republic (Criminal Appeal 182 of 2019) [2022] TZCA 650 (24 October 2022)

IN T^E COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KWARIKO. 3.A.. KEREFU. J.A. And MAIGE. J.A.'i CRIMINAL APPEAL NO. 182 OF 2019 SALUM NJWETE @ SALUM @ SCORPION................... . ............ APPELLANT VERSUS THE REPUBLIC .RESPONDENT (Appeal from the decision of the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam) fMlvambina, J.1 (dated the 9thday of May, 2019 in (DC) Criminal Appeal No. 253 of 2018 JUDGMENT OF THE COURT 21st September & 24th October!, 2022 MAIGE, J.A.: At the District Cdurt of Ilala at Samora (the trial court), the appellant was charged with twd counts namely; armed robbery contrary to section 278 A and grievous h^rm contrary to section 225 both of the Penal Code, [Cap. 16 R.E. 2019, nf}w R.E. 2022]. While he was acquitted of the first count, the appellant was convicted of the second count. He was thus sentenced to seven jears imprisonment and ordered to pay Tanzania Shillings Thirty Millioh (TZS 30,000,000.00) as compensation to the victim. l

The brief facts characterizing the background of this appeal can be narrated as follows. On 6th September, 2016, Said Ally Mrisho (PW1), the victim, having sp^nt almost the whole day at his hair cutting salon at Tabata Segerea in dar es Salaam, hired a motorcycle (bodaboda) in understanding that h^ would be dropped at Tabata Relini area wherefrom he would take a bus to his residence at Makaburi area within Dar es Salaam. Unexpectedly, the bodaboda raider took a different route and as a result, PW1 was dropped at Buguruni Shell at around 22:40 hours where he found some petty traders selling chickens. PW1 testified th a problem can you p\ at, as he was bargaining for price with one of the petty traders, the appellant appeared and told him, " brother nina shida naomba unisaidie" moaning in unofficial translation that," brother I have tease assist m e " , When PW1 asked the appellant what kind of assistance did he desire from him and before PW1 had collected the chicken he had just bought, the appellant assaulted him on his shoulder and at the back. As that was not enough, the appellant stabbed him with a knife on the abdomen four times causing him to fall down. At that juncture, PW1 heard the chicken vendor saying;" Scorpion ushauwa huyo"n\ean\nq in unofficial translation that" Scorpion you have already killed h in i' . Thereafter, the appellant searched PW1 and tookTZS

300,000.00 from his Furthermore, the appellant took a silver made bracelet from his hand and a neckless from his neck PW1 testified fi two mobile phones, wallet and TZS 21,000.00 from his left side. rther that, as the appellant was about to take his one of the petty traders told him; " Salum u usichukuwe sim u yake huyo keshakufa ndugu zake w atajuaje" literally translated means, "Salumu do not take his m obile phone otherwise his relatives w ill not know what has happened to him ” The appellant then disrobed PW l's T. Shirt and drugged him into the middle of the road and asked one of the drivers to knock PW1 but the latter refused. Afterwards, the appellant took PW1 besides the road and chopped off his eyes and as a result, 3 W1 lost his sight and became unconscious. With the help of PW1 was taken to through a mobile phc ne of one of the good Samaritans, informed his wife of the incident. and taken to Amana Muhimbili National H P2 reveal inter alia th he cannot see anymo good Samaritans and upon gaining consciousness, Buguruni Police Station. At that time, PW1 had, At the Police Station, PW1 was issued with a PF3 Hospital. He was subsequently transferred to bspital. The medical reports as per exhibits PI and at, PW1 has completely lost his two eyes such that

Stara Sudi (PW2), the wife of PW1 testified that, on the material date at around 22:00 lours while asleep, she was informed of the incident by PW1 through a mobile phone whose number was new to her. On receiving the informa found her husband in condition, was able to to be the person who tion and having conveyed the same to her brother in law Yahaya Kisukari (PW3), PW2 went to Amana Hospital where she a bad condition. PW1, she testified, though in a bad narrate to her what happened and named Scorpion assaulted him. On the next day when she went at Buguruni Police Station, she revealed to the Police what her husband told her. PW3 made more or less a similar story. Salum Masudi Jerry (PW10) whose testimony was he was present at the discarded by the trial court told the trial court that, scene of the crime as one of the petty traders and he witnessed the appellant, a person well known to him, assaulting PW1. Hussein Rashid submitted himself at i (PW7) and Deus Joachim (PW8), both petty businessmen at Buguruni area who were declared hostile witnesses, testified that after being informed by police that the appellant was wanted in connection with the incident in question, they notified the appellant and subsequently went with him at Buguruni Police Station and reported to No. F. 1092 D/CPI. Bryson (PW9). PW9 testified that, the appellant Buguruni Police Station on 12th September, 2016 4

and that; on interrogation, he confessed as per exhibit P3 to have committed the offence. In his defence however, the appellant totally denied any involvement in the commission of the offence maintaining that he was forced to sign into exhibit P3 without knowing the contents thereof. He further claimed that, :he victim was beaten by angry mob in connection with an allegation of theft in that area. As we said above, the trial court convicted the appellant based mainly on the evidence of PW1 as a sole eye witness and his confessional statement in exhibit R3. It also took into account part of the evidence of the two hostile witntisses (PW7 and PW8). It however discarded the evidence of PW10 for being materially contradictory to that of PW1. Being aggrieved by both the conviction and sentence, the appellant appealed to the High Court on thirteen grounds. The grounds, in our reading, raised the following complaints:

1. The tria l court was wrong in relying on visual identification evidence o fP W l which did not have sufficient description o f the intensity o f lig h t on the aid o f which the appellant was identified.
2. The tria l coutt was wrong in relying on the visual identification evidence o f PW1 without due regard to the fact that the appellant wap a stranger to him.

absence o f despite his 3. The tria i court did not consider in its judgm ent the evidence o f PW1 that the incident lasted fo r ju st 4 to 5 minutes. 4. The tria l court relied on the evidence o f relatives in the absence o f independent evidence. 5. The tria l court relied on the retracted confessional statem ent in exhibit P3 which was procured without follow ing the procedure and out o f time. 6. The cautioned statem ent was received in evidence and reiied upon without its contents being read out 7. The tria l court wrongly reiied on the evidence in PF3 in exhibits P I and P2 \while in accordance with the evidence ofPW 6 there was only one PF3. 8. The tria l court wrongly reiied on the evidence o f PW9 in the explanation o f the delay to arrest the appellant name being disclosed by PW1 a t the earliest opportunity. 9. The tria l coukt wrongly believed the evidence o f PW1 that he was assaulted by the appellant despite being contradictory to his previous statem ent before PW9 that he was beaten by the mob. 10. That the tria l court did not take into account the failure o f the prosecution to ca ll the two crucial witnesses from whom PW1 established the name o f the appellant. 11. The tria l court was wrong in reiying on the incredible evidence o f PW 10 and disbelieving the evidence o f PW 7 and PW8. 12. That the tria l court did not assess and evaluate the evidence correctly. 6

13. That the defence evidence was not sufficiently considered. In its judgment, the first appellate court reduced the 13 grounds of appeal into three issues namely; first, whether the appellant was properly identified; second, whether the cautioned statement of the appellant was recorded in accordance with the law; third, whether there were contradictions in appeal accordingly, particular, observed a the prosecution evidence. The first appellate court answered all the three issues against the appellant and dismissed the On the second issue, the first appellate court in t page 255 of the record of appeal as follows: "Page 76 o f the typed proceedings indicates that there was inquiry conducted by the tria l court to ascertain validity o f the cautioned statem ent. I have gone through the entire proceedings and I am satisfied that the findings o f the tria l court that the appellant's statem ent was voluntarily given is proper. I therefore fin d no good reason to dw ell much on this ground” The appellant is still displeased with the conviction and sentence and thus the instant appeal. In the memorandum of appeal, he has raised the following four grounds of appeal:

14. The learned first appellate Judge erred in law and fact by sustaining the appellant's conviction relying on P W l's im proper visual identification yet the prosecution adduced evidence failed com pletely to lin k the appellant with the said Scorpion alleged to com m it the offence.

15. The learned first appellate Judge erred in law and fact by sustaining the appellant's conviction relying on repudiated and retracted cautioned statem ent (exhibit P3) un-procedurally recorded by PW9 who is also alleged to have recorded the statem ents o f a ll prosecution witnesses.

16. The learned first appellate Judge erred in law and fact in not Unking his judgm ent with the evidence and the grounds o f com plaint raised in the first appeal.

17. The learned first appellate Judge erred in law and fact by sustaining the appellant's conviction as a result o f failure to consider and analyze properly the evidence adduced by the defence which succinctly raised sufficient reasonable hypothesis irresistibly casting doubt about the gu ilty o f the appellant since the prosecutbn case was not proved beyond reasonable doubt At the hearing (bf the appeal, the appellant appeared in person and unrepresented whereijs the respondent Republic had the service of Mr. Adolf Kisima and Mr. the appellant and Mr. for and against the appeal. aribu Bahati, both learned Stated Attorneys. Both Kisima for the respondent made oral submissions 8

We propose to appeal which questions the legality of the judgment of the first appellate court in not determini appeal before it. In ng some of the complaints raised in the grounds of his submissions, the appellant blamed the first appellate court in ignoring some of his grounds of appeal. He pinpointed some of the uncons evidence of relatives start our deliberations with the third ground of dered complaints to include omission by the trial court to consider his defence; use of the incredible evidence of PW10 in disregard of the evidence of PW7 and PW8; placing reliance on the without there being independent corroborating evidence. In response, Mr. Kissima conceded that indeed some of the j grounds of appeal weire not considered by the first appellate court. He however invited the Court to step into the shoes of the first appellate court and consider those grounds of appeal and come to its conclusion as to whether the conviction and sentence was proper or otherwise. We have appro consider all the comp la t e ly considered the concurrent submissions of the parties on the third ground of appeal and we entirely agree with them that, the first appellate court did not, in its three summarised issues, aints raised before it in all the thirteen grounds of appeal. The first issue as to the correctness of visual identification evidence in our reading, captured only the first, second and third grounds 9

of appeal. The second appeal namely; wh issue as to the validity of the cautioned statement covered only one of the issues raised in the fifth and sixth grounds of sther the cautioned statement was procured voluntarily. It did no^ address the two remaining legal issues therein raised as to whether or not the confessional statement was procured out of time and whether the same was after being exhibited, read out and explained to the appellant as the law requires. The last issue as to contradictions covered only part of the seventh ground. Consequently, t ie complaints raised in the fourth, eighth, nineth, eleventh, twelfth and all and the fifth, sixth, thirteen grounds of appeal were not considered at seventh and tenth grounds were partly considered. The position of the law on failure to consider the grounds of appeal is settled. It renders the relevant appellate judgment null and void. There are many pronouncements in support of this proposition. For instance, in Nyakwama s/o Ondare @ Okware v. the Republic, Criminal Appeal No. 507 of 2019 (unre;ported), it was observed: " We therefore, agree with Mr. Byamungu that failure to consider appellant's grounds o f appeal was a fatal irregularity rendering the first appeal court's judgm ent a nullity. In thik reqard, we wish to emphasize that though 10

it is not the duty o f the first appellate court to resolve the issues as fram ed by the tria l court, yet it is expected and bound to address and resolve the com plaints o f the appellant in the grounds o f appeal either separately or jo in tly depending on the circum stances o f each appeal. We made a sim of the Estate of the Another, Civil Appea "...theappellm appeal preset discuss a ll o f dispose o f resolve the a tlh Being guided by first appellate court considering, in its judc Mr. Kisima has urged far position in Mwajuma Bakari (Administratix Late Bakari Mohamed) v. Julita Semgeni and No. 71 of 2022 (unreported), where we observed: e court is bound to consider the grounds o f ite d before it and in so doing, need not to them where only a few w ill be sufficient to 'e appeal but it is bound to address and 'bm piaints o f the appellant either separately o rjo in tly depending on the circum stance o f each case." the above authorities, therefore, we find that, the denied the appellant a right to be heard in not ment, some of the complaints raised in the grounds of appeal. On that account, we find that the judgment of the High Court was a nullity. The question that follows is what is the appropriate way forward. us to step into the shoes of the first appellate court 11

and determine the omitted grounds of appeal. We understand it to be a settled general rule of law that; a matter not decided upon by the High Court or subordinate court exercising extended jurisdiction, cannot be decided by this Court. This is indeed the effect of the provision of section 4(1) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019]. The rationale behind is ea:;y to explain. Appeal is a right and process as well. A party losing in the appeal if the statute z Court. It is perhaps b occasions, refused to address the grounds first appeal, has a right to appeal in the second Hows. Therefore, if the second appellate court determines a ground of complaint which was tiefore and should have been determined by the first appellate court, parties will be denied a right of a further appeal to the ecause of that reason that, the Court has in many step into the shoes of the first appellate court to which should have been determined by the first appellate court insisting that, that is within the domain of the first appellate court. See tor instance, Mwajuma Bakari case (supra) and Revocatus Mugishci v. Republic, Criminal Appeal No. 200 of 2020 (unreported). 12

However, in exceptional circumstances especially where the omitted grounds relate; to failure of the first appellate court to re-appraise the evidence, a secc injustice is occasioned nd appellate court would, in fit cases and if no , step into the shoes of the first appellate court and evaluate the evidence. See for instance, Nyakwama case (supra) and Hassan Mzee Mfaume v. decision, the Court observed Republic [1981] T.L.R. 167. In the latter "(Hi) Where the evidence subsequent evidence in o, back to the th i e first appellate court fa ils to re-evaluate and consider m aterial issues involved on a t3ppeal the Court m ay re-evaluate the rder to avoid delays or m ay rem it the case first appellate court." We have carefully considered the invitation by the learned State Attorney in line with the above authorities and we are of the view that, the circumstance and record to the first appellate court so that the appeal can be re-heard. We thus allow the appeal nullify the judgment o justice of this case dictates for remittance of the to the extent of the third ground of appeal. We :the High Court and quash the proceedings thereof as from 28th March, 2pl9 to the date of judgment. We remit the case file 13

to the High Court before a different Judge to rehear the appeal basing on the grounds of appeal and decide the same as a whole. DATED at DARj ES SALAAM this 20th day of October, 2022. M. A. KWARIKO JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL The Judgment delivered this 24th day of October, 2022 in the presence of the in the presence of appellant appeared in person - unrepresented whereby the Respondent represented Ms. Tuli Heiela learned State Attorneys for the Respondent/Republic, is hereby certified as a true copy of the original.

UTY REGISTRAR COURT OF APPEAL 14