Msigwa Matonya & Others vs Republic (Criminal Appeal 492 of 2020) [2022] TZCA 490 (22 July 2022)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWAMBEGELE, J.A.. FIKIRINI. J.A.. And MAKUNGU. 3.A.) CRIMINAL APPEAL NO. 492 OF 2020

1. MSIGWA MATONYA
2. MIAN DA SALUWA MLEWA @ WHITE
3. PAULO JAILOS @ MDONONDO
4. LONGISHIU SEMALIKI LOSINGO
5. JOHN IKONDYA MAYUNGA @ NGOSHA APPELLANTS VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam) (Kulita, J.^ dated the 17thday of September, 2020 in Criminal Sessions Case No. 54 of 2020 JUDGMENT OF THE COURT 8th & 22n d July, 2022 MWAMBEGELE. J.A.: The five appellants and another person who was acquitted at the trial and therefore not a party to this appeal, were arraigned in the High Court of Tanzania, Dar es Salaam Registry, for the murder of Edmund Sengondo Adrian Mvungi (the deceased). After a full trial, the five appellants were convicted and awarded the mandatory death sentence by hanging. They i

have come to this Court on first appeal complaining that the High Court ought not to have convicted them for the murder. They filed a joint memorandum of appeal which comprises eleven grounds of appeal but, generally, they boil down to the following complaints seeking to fault the decision of the trial court, namely: one, on assessors; that a summary of the case was not given to them, that at the beginning of the trial, they were not told of their role in assisting the trial judge and that they were not summed up on vital points of law which the trial court used to convict the appellants; two, the pistol (Exh. P5) was not clearly identified by PW1, its chain of custody broken and that it was not established that it was the one found in possession of the deceased; three, that the trial court erred in convicting the appellants on the strength of retracted or repudiated confessional statements; four, the trial court applied double standard in convicting the appellants and acquitting the fifth accused person and; five, the prosecution evidence was weak, incredible, unreliable, contradictory and did not prove the case against the appellants beyond reasonable doubt. At the trial, the prosecution brought the following story which led to the appellants' arraignment: on 03.11.2013 at night, the house of the deceased was broken into by unknown bandits who attacked him and made

away with an assortment of items including a pistol make Revolver, a laptop, cell phones and cash. Also in the house, were the deceased's wife, Anna Sengodo Mvungi, who testified as PW1 and their children. The bandits were armed with pangas which they used to hack the deceased and inflicted fatal wounds on his head and other parts of his body making him unconscious. He was rushed to Hospitals in the country and later South Africa but as bad luck would have it, he never gained consciousness and took his last breath there in South Africa on 12.11.2013. After the invasion of the deceased's house, the police formed a task force to undertake investigation to unveil the assailants. The task force was led by Abdallah Koba Kimanga (PW5); a police officer who had already retired from the Force at the time he testified. They mounted a search after which six alleged assailants, including the appellants, were arrested and brought to book. After a full trial which comprised sixteen witnesses for the prosecution and six for the defence, the High Court was satisfied that the prosecution had proved the case against the appellants to the hilt, convicted and sentenced them accordingly as alluded above. 3

The appeal before us was argued on 08.07.2022. All the parties to the appeal had legal representation. Each appellant had an advantage of a separate legal representation to avoid conflict of interest amongst them. The first, second, third, fourth and fifth appellants were, respectively, represented by Mr. Musa Mhagama, Mr. Faraji Mangula, Mr. Nehemia Nkoko, Ms. Modesta Medard and Ms. Abbriaty Kivea, learned advocates. The respondent had the services of Ms. Gloria Mwenda, learned Senior State Attorney assisted by Mr. Yusuph Aboud and Ms. Mossie Kaima, learned State Attorneys. The appellants had filed from prison a joint submission through a document titled "Appellants' Arguments in Support of the Appeal" which each advocate sought leave of the Court to adopt as part of their respective oral arguments. In the written submissions referred to in the foregoing paragraph, as already stated above and find it necessary to repeat here, the appellants' complaint on the first ground is threefold; one, that the brief summary of evidence was not given by the trial judge when summing up to them, two, that the role of the assessors was not explained by the trial judge at the

beginning of the trial and, three, that the summing up to assessors was deficient of vital points of law on which the appellants were convicted. In their brief written submissions, the appellants were insistent that the failure by the trial judge to adhere to the letter of section 265 and 289 (1) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2019 (the CPA) prejudiced them and were fatal to the proceedings of the case. The appellants referred us to the decision of the erstwhile Court of Appeal for East Africa in Washington s/o Odindo v. Republic (1954) 21 EACA 392 in which it was underscored that after the close of the case for both the prosecution and defence, the trial court must sufficiently sum up to the assessors, explain the vital points of law in the case and draw their attention to salient facts in relation to the law before requiring them to give their opinion. Particularly, the appellants drew our attention to the following oft- cited excerpt: "The opinion o f assessors can be o f great value and assistance to a tria l judge but only if they fu lly understand the facts o f the case before them in relation to the relevant law. I f the law is not explained and attention not drawn to the salient facts o f the case, the value o f assessors' opinion is correspondingly reduced."

The appellants went on to submit that, in the case at hand, the trial court did not only fail to explain to the assessors their role in assisting the judge and give a summary of evidence to them, but also did not explain to them the law relating to the doctrine of recent possession, circumstantial evidence, repudiated or retracted cautioned statements and malice aforethought. These are vital points of law on the strength of which the trial court convicted them. Therefore, the court was under legal obligation to sum up to them on these vital points of law, they argued. The appellants implored us to nullify the proceedings of the trial court as we did in Omary Khalfani v. Republic, Criminal Appeal No. 107 of 2015 (unreported) and set them free. The prayer to set them free was made because they argued that the prosecution evidence against them fell short of proving the case beyond reasonable doubt to order a retrial. The learned counsel for the appellants, at the hearing, clarified the first ground of appeal but their clarifications was in line with what the appellants submitted in their written submissions summarised above. Mr. Mangula for the second appellant added a fourth limb to the complaint that even the age of the assessors was not indicated in the proceedings which ailment, he 6

argued, was also fatal. The learned counsel, however, did not cite to us any authority to buttress his point. Ms. Mwenda, expressed her stance at the very outset that she did not support the appeal. As regards the first ground of appeal, the learned Senior State Attorney conceded that, indeed, the age of the assessors was not indicated and that the assessors were not told of their role in the trial. She also conceded that vital points of law on which the trial court convicted the appellants were not explained to the assessors before they gave their opinions. She conceded that the summing up to assessors was inadequate as it lacked explanations on the doctrine of recent possession, circumstantial evidence and cautioned statements. With regard to the ingredients of the offence of murder, she submitted that the same was explained by the trial judge as appearing at pp. 380 and 381 of the record of appeal. The appellants' complaint on this limb was therefore unjustified. Despite the concession on the failure by the trial court on areas shown above, the learned Senior State Attorney was quick to contend that the infractions were not fatal in that the appellants were not at all prejudiced by them. She reinforced her proposition by referring us to our decision in Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 (unreported),

particularly at p. 12 thereof. In the premises, the learned Senior State Attorney submitted that the shortcomings were not fatal and therefore invited us to ignore it. However, if the Court would find them as fatal, she submitted, it should order a retrial of the appellants in that there was ample evidence in the record of appeal which proved the case against them beyond reasonable doubt. In rejoinder, all advocates were of the firm stance that the appellants were prejudiced and insisted on their setting them free rather than ordering their retrial as that course of action would afford an opportunity for the prosecution to fill in the gaps unveiled in other grounds of appeal. Having heard the submissions for either side, we should now be in a position to confront the issues of contention in this appeal. Given the verdict we are going to give (infra); we have felt it appropriate to consider the first ground of appeal only, for we think it disposes of this appeal. We start with the limb of the first ground of appeal complaining that the age of the assessors was not indicated. It is clear from the record of appeal as appearing at pp. 19 and 20 that the assessors were selected and the appellants were asked if they had any objection to any of 8

them and all of them had none. The trial court then proceeded to hear the case by allowing the prosecution to field its first witness. The age of the assessors was not indicated after the selection. We pause here to ask ourselves, by this failure, were the appellants prejudiced in any way? All counsel for appellants were of the contention that this infraction was fatal and prejudiced the appellants. However, none of them demonstrated how. With profound respect to the learned advocates for the appellants, we are not able to go along with their contention. We say so because, having combed the proceedings at the trial, we find nowhere to suggest if the assessors were not able to perform their role of assisting the trial judge in the trial as a result of their age not being indicated. If anything, their participation was superb and we find nowhere to peg an idea that failure by the trial judge to indicate their age had any negative impact on them in assisting the trial judge during the trial. We thus are of the view that the appellants were not prejudiced by the fact that the age of the assessors was not indicated at the beginning of the trial. The ailment is thus curable under rule 388 of the CPA. In Mathias Tangawizi @ Lushinge v. Republic, Criminal Appeal No. 220 of 2016 (unreported) the Court discussed in sufficient details how assessors are selected under section 69 of the 9

Magistrates Courts Act, Cap. 11 of the laws of Tanzania and how they are assigned to trials that need to be tried with their aid. We held that there is no legal duty imposed on a trial court to indicate the age of assessors in the proceedings. We are guided by the position we took in that case. We therefore find and hold that the complaint on failure by the trial court to indicate the age of assessors in the first ground of appeal has no merit and dismiss it. The second limb of complaint in the first ground of complaint is that the trial court erred in not explaining the assessors' role at the beginning of the trial. As shown above, it is not disputed that the trial court told the prosecution to field its first witness before telling the assessors what role they would play in the trial. This complaint has been a subject of discussion in good number of our previous decisions - see: Hilda Innocent v. Republic, Criminal Appeal No. 181 of 2017, Fadhil Yussuf Hamid v. Director of Public Prosecutions, Criminal Appeal No. 129 of 2016 and Abdallah Juma @ Bupale v. Republic, Criminal Appeal No. 537 of 2017 (all unreported), to mention but a few. In those decisions, we held that failure by a trial court to explain the role of assessors at the beginning of the trial was a fatal irregularity. In Fadhil Yussuf Hamid v. Director of 10

Public Prosecutions (supra), for instance, we reproduced the steps that must be complied with in a trial with aid of assessors as laid down in our previous unreported decision of Laurent Salu and five others v. Republic, Criminal Appeal No. 176 of 1993. These are:

1. The trial court must select assessors and give an accused person an opportunity to object to any of them;

2. The Court has to number the assessors, that is, to indicate who is number one, number two and number three, as the case may be;

3. The Court must carefully explain to the assessors the role they have to play in the trial and what the judge expects from them at the conclusion of the evidence;

4. The Court to avail the assessors with adequate opportunity to put questions to the witnesses and to record clearly the answers given to each one. If an assessor does not question any witness, that too, has to be clearly indicated as: "Assessor 2: Nil or no question;

5. The court has to sum up to the assessors at the end of submission by both sides. The summing up to contain a summary of facts, the evidence adduced, and also the explanation of the relevant law, for instance, what is malice aforethought. The court has to point out to the assessors any possible defences and explain to them the law regarding those defences; and i i

6. The court to require the individual opinion of each assessor and to record the same. Flowing from the above, we are of the settled view that failure by the trial court to explain to the assessors their role at the beginning of the trial was fatal to the proceedings. The second limb of the first ground of appeal is meritorious. Next for consideration is the third limb of the first ground of appeal which seeks to fault the trial court for not directing the assessors on vital points of law in the case. The learned counsel for the appellants contend, and the learned Senior State Attorney concedes, that the assessors were not summed up on vital points of law in the case. The trained minds only part ways on whether the infraction is fatal. While the counsel for the appellants, on the one hand, argue that the irregularity is fatal, the learned Senior State Attorney, on the other, retorts that it is not in that it did not prejudice the appellants and therefore curable under section 388 of the CPA. We have gone through the summing up notes to assessors as appearing at pp. 374-381 of the record of appeal. It is no gainsaying that in the seven-page summing up notes to assessors, the trial court did not appraise the assessors on the doctrine of recent possession, circumstantial 12

evidence and the law relating to retracted or repudiated cautioned statements. These are vital points of law which featured at the trial. Again, it is no gainsaying that the trial court used these vital points of law to convict the appellants. What we glean from the summing up notes to assessors is that, having summarized the evidence of the prosecution, the trial judge used the remaining two pages discussing the evidence of the appellants who disputed to have voluntarily given the cautioned statements. He did not discuss, for instance, the effect of the trial within a trial and the dangers of convicting on the retracted or repudiated confessions. Neither did he discuss the effect of a confessional statement by an accomplice. The learned trial judge also discussed the ingredients of the offence of murder under sections 196 and 197 of the Penal Code. He, however, did not discuss what constitutes malice aforethought under our law. He also briefly discussed on common intention and thereafter asked the assessors to give their respective opinions. The summing up to assessors was surely deficient of the important points of law shown above. No discussion features in the summing up notes on the vital points of law which he used to convict the appellants. 13

Having made the above finding, the question which comes to the fore at this juncture is: was the ailment fatal? We have stated above when discussing what we stated in Laurent Salu and five others v. Republic that it is a mandatory step to be complied with. And to clinch it all, we have more than adequate case law on the point that hold that the infraction is fatal - see: Washington s/o Odindo v. Republic (supra), Tulubuzya Bituro v. Republic [1982] T.L.R. 264, Suguta Chacha &Two Others v. Republic, Criminal Appeal No. 101 of 2011 (unreported), Charles Kidaha &Two Others v. Republic, Criminal Appeal No. 395 of 2018 (unreported), Richard Mateo Siame v. D.P.P, Criminal Appeal No. 173 of 2017 (unreported) and Mashaka Athumani @ Makamba v. Republic, Criminal Appeal No. 107 of 2020 (unreported), to mention but a few. In all these decisions of the Court, we pronounced ourselves in no uncertain terms that failure by a trial court to direct assessors on vital points of law is a fatal irregularity and cannot be saved by the provisions of section 388 of the CPA. Following this settled law, we hold the same in the present appeal. We find and hold that the High Court Judge erred in not summing up to assessors on vital points of law which he used to convict the appellants. That ailment is 14

fatal and cannot be rescued by section 388 of the CPA. We thus find merit in the third limb of the first ground of appeal. The next question which we ask ourselves having found and held as above is on the way forward. In most of the authorities including those cited above, the practice has been to follow the decision of the defunct Court of Appeal for East Africa in Fatehali Manji v Republic [1966] 1 E.A. 343 on when to order a retrial. In that case it was stated as follows: "In general a re trial w ill be ordered only when the original tria l was ille g a l or defective. It w ill not be ordered where the conviction is set aside because o f insufficiency o f evidence or fo r the purpose o f enabling the prosecution to fill up gaps in its evidence a t the first trial. Even where a conviction is vitiated by a m istake o f the tria l court fo r which the prosecution is not to blame; it does not necessarily follow that a re trial sh all be ordered; each case m ust depend on its own facts and circum stances and an order o f re trial should only be made where the interests o f ju stice require." The learned counsel for the appellants were of the view that a retrial was not appropriate in the circumstances of the case where, they argued, 15

the prosecution did not prove the case beyond reasonable doubt given the gaps in the prosecution case. Ms. Mwenda had a different stance. On our part, we have considered the rival positions of the appellants' counsel and the learned Senior State Attorney. For reasons we shall not disclose for fear of preempting the decision after the order we are going to make, we think the interests of justice demand that the matter be remitted to the trial court for a fresh trial. We are alive to the complaint by the appellants to the effect that a retrial will avail an opportunity to the prosecution to fill in the gaps in their case. We, with profound respect, see no serious gap in the matter to be filled in by the prosecution to warrant setting free the appellants as prayed by them and their advocates. On the contrary, guided by the principle in Fatehali Manji v Republic which principle had been religiously followed by the Court, we think the justice of the case require that a trial de novo of the. appellants should be ordered. The above stated, we quash the proceedings of the trial court. We also quash the flanking judgment and set aside the sentence of death by hanging meted out to the appellants. We order that the appellants be tried de novo before another judge and a new set of assessors if their assistance will still be required. For the avoidance of doubt, in view of the amendments 16

effected to the CPA vide the Written Laws (Miscellaneous Amendments) Act, 2022 - Act No. 1 of 2022, it is no longer mandatory for trials before the High Court to be conducted with the aid of assessors. This appeal is allowed to the extent stated. In the meantime, the appellants shall remain in prison custody to await their retrial. DATED at DAR ES SALAAM this 21st day of July, 2022. J. C. M. MWAMBEGELE JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 22n d day of July, 2022 in the presence of Ms. Abbriaty Kivea, learned advocate holding brief of Mr. Musa Muhagama, learned counsel for the 1st Appellant, Ms. Modesta Medard holding brief of Mr. Faraji Mangula, learned counsel for the 2n d Appellant, Ms. Jackline Jonathan holding brief of Mr. Nehemia Nkoko, learned counsel for the 3rd Appellant, Ms. Modesta Medard, learned counsel for the 4th Appellant, Ms.

Abbriaty Kivea, learned counsel for the 5th Appellant Mr. Yusuph Aboud, learned State Attorney for the Respondent/Republic and all Appellants through Video Conference at Ukonga Prison, is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 18