Abdallah Juma @ Bupale vs Republic (Criminal Appeal 537 of 2017) [2021] TZCA 390 (20 August 2021)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAM BALI. J.A.. LEVIRA. 3.A. And KAIRO. J.A.^l CRIMINAL APPEAL NO. 537 OF 2017 ABDALLAH JUMA @ BUPALE ..... ............ APPELLANT VERSUS THE REPUBLIC .................... ....... ....... ...... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) fMakani, 3.1 ) Dated the 17thday of November, 2017 in Criminal Session No. 14 of 2015 JUDGMENT OF THE COURT 10th & 20th August, 2021 KAIRO, J.A.: In the High Court of Tanzania at Shinyanga, the appellant, Abdallah Juma @ Bupale was charged, tried and convicted of the offence of murder contrary to section 196 of the Penal Code, Cap 16 RE 2002 (now R.E 2019). He was sentenced to suffer death by hanging. According to the information filed against him, the appellant on 18th December, 2007 at Wendele village within Kahama District in Shinyanga Region did murder one Steven s/o Balozi. The appellant denied the charges leveled against him, hence a full trial after which he was convicted and sentenced to suffer

the mandatory death sentence as alluded to above. Following the conviction and sentence, the appellant decided to lodge this appeal to protest his innocence armed with a memorandum of appeal containing two grounds of appeal. However, for the reason to be unfolded, we shall not discuss them in this appeal. When the appeal was called on for hearing, Mr. Audax Constantine, learned advocate appeared representing the appellant, while Mr. Jukael Reuben Jairo assisted by Ms. Caroline Mushi, both learned State Attorneys appeared for the respondent, Republic. Before inviting the counsel for the parties to submit for and against the grounds of appeal, we prompted them to address us on whether the trial court selected the assessors and informed them about their roles before the commencement of the trial. We also requested the counsel to submit on whether the appellant was asked as to whether he had objection to the selected assessors. We understand that the issue was not part of the appellant's complaints in this appeal, but we are of the view that it is necessary for us to raise it suo motu, being an important matter to be addressed first before embarking on considering and determining the grounds of appeal.

Mr Jairo was the first to react and submitted that the trial court did not discharge its obligation properly. He contended that, the trial court record is silent on the appointment of the assessors and referred us to page 11 of the record of appeal whereby only their names were listed. He further contended that the appellant was neither accorded with the opportunity to comment on whether he objected or otherwise to the appointment of the assessors who sat to assist the trial court in the determination of his case nor were the roles of assessors explained to them before the commencement of the trial. He argued that the omission was contrary to the provisions of section 285(1) of the Criminal Procedure Act, Cap 20 R.E. 2019 (the CPA). When further asked on the repercussion of the pointed-out shortcomings, Mr. Jairo submitted that the impact is twofold; one; that the omission caused injustice to the appellant, and two; that the assessors were unable to ask questions for clarification as they did not understand their roles and what is expected of them. Mr. Jairo amplified that throughout the record, no assessor asked any question for clarification after all the prosecution witnesses testified. He referred us to pages 19, 20, 24, 26 and 28 of the record of appeal to substantiate his contention. Mr Jairo was firm that, in the circumstances of the conduct of

the case at hand, there was no fair trial on the part of the appellant as he was denied a chance to comment if he had objection to any of the assessors before his trial, nor could it be said that the trial was conducted with the aid of the assessors as per the dictate of the law under section 265 of the CPA. He thus, urged us to invoke the powers of revision bestowed upon us by section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 (the AJA) to nullify the trial court proceedings, quash the conviction and set aside the sentence imposed on the appellant. For the interest of justice, Mr Jairo also prayed for the order of retrial of the case citing the case of Elly Milinga v. Republic, Criminal Appeal No. 362 of 2018 to back up his submission. When invited to comment on the issue raised by the Court, Mr. Constantine readily conceded to the submission of Mr. Jairo. He was firm that failure to inform the assessors on their roles impaired their effective participation during trial and that is why they did not ask questions for clarification as they were not aware of their roles. He amplified that since the High Court hears and determines murder cases with the aid of assessors, the omission is tantamount to trial being conducted without the aid of assessors which renders it a nullity. He urged us to nullify the entire

proceedings, quash the conviction and set aside the sentence. As a way forward, Mr. Constantine joined hands with Mr. Jairo that in view of the factual setting of the case in the record of appeal, we should exercise our revisional power under section 4 (2) of the A3A and order a retrial of the case before another judge and a new set of assessors. Having heard the submissions of the counsel for both sides, we think it is imperative to commence our determination with the legal position on the flaws pointed out by the learned counsel which touch three aspects: One; selection of assessors, two; omission to give a chance to the appellant to express whether he had objection to the involvement of any of the selected assessors and three; explanation on their roles and responsibilities. It is a legal requirement that all criminal trials before the High Court must be conducted with the aid of assessors. The key procedural legislation that guides the conduct of criminal trials in Tanzania Mainland is the CPA whereby Part III provides for the procedure in trials before the High Court and specifically section 265 of the CPA provides for the modality to conduct such trials. For ease of reference, the section provides: -

"A ll trials before the High Court shall be with the aid o f assessors the number o f whom shall be two or more as the Court thinks fit." Furthermore, section 283 of the CPA provides for the procedure of choosing the assessors as follows: - ”where the accused person plead "not guilty" or if the plea o f "not guilty" is entered in accordance with the provision o f section 281, the court shall proceed to choose assessors/ as provided in section 285 and try the case." In addition, section 285 of the CPA provides: - "(1) where the trial is to be conducted with the aid o f assessors, the assessors shall be selected by the Court. (2) N/A" From the above quoted provisions, the duty of selecting assessors is upon the trial court before the commencement of the trial. In the case at hand, the record of appeal at page 11 shows that, on 18th day of October, 2017, the trial court noted the presence of witnesses and assessors. It went on to list the names of the assessors, presumably, the ones selected by the trial court to sit with in determining the matter at hand and then

adjourned the hearing to 2n d of November, 2017. As to whether the noting and listing of the names alone is sufficient or not, shall be discussed shortly. Moreover, in accomplishing the court's obligation provided in the above cited provisions, it is settled law that the trial court is obliged to explain to the selected assessors, their roles in the conduct of the trial and accord an opportunity to an accused person to comment whether or not he has objection to any of the assessors. There is a plethora of decisions of the Court stating this position, among them is Tongeni Naata v. Republic [1991] T.L.R. 54 wherein the Court observed as follows: - "/Is for the last ground o f appeal it was held in N diragu N yagu v. R [1959] E.A.75 that it is a sound practice which has been followed and should be followed to give an opportunity to an accused to object to any assessors... " The stance was later restated in our various decisions such as Hilda Innocent v. Republic, Criminal Appeal No.181 of 2017, Fadhil Yussuf Hamid v. Director of Public Prosecutions, Criminal Appeal No. 129 of 2016 (both unreported) to mention but a few. In Hilda Innocent (supra), the following extract was quoted from the case of Laurent Salu and 5

others v. Republic, Criminal Appeal No. 1 .7 6 of 1993 ( unreported) which in bur opinion is worth reciting in this appeal: - "Admittedly the requirement to give the accused the opportunity to say whether or not he objects to any o f the assessors is not a rule o f law. It is a rule o f practice which however, is now w ell established and accepted as part o f the procedure in the proper adm inistration o f crim inaljustice in this country. The rationale for the rule is fairly apparent The rule is designed to ensure that the accused person has a fair hearing. For instance, the accused person in a given case may have a good reason for thinking that a certain assessor may not deal with his case fairly and ju stly because of, say, a grudge/ misunderstanding/ dispute or other personal differences that exist between him and the assessor. In such circumstances in order to ensure im partiality and fa ir play, it is imperative that the particular assessor does not proceed to hear the case/ if he does then in the eyes o fthe accused person at least justice w ill be seen to be done. But the accused person, being a layman in the m ajority o f cases, may not know o f his right to object to an assessor. Thus, in order to ensure a fair trial and to make the 8

accused person have confidence that he is having a fair trial, it is o f vital importance that he is informed o f the existence o f this right The d u ty to so in fo rm him is on the tria l ju d g e, but if the judge overlooks this, counsel who are the officers o f the court have equally a duty to remind him o f it" (emphasis added) On the other hand, the trial court is also required to explain to the selected assessors their roles and responsibilities in the trial and what the court expect of them in the conduct of the hearing, and at the conclusion of the evidence. We are aware that informing assessors on their roles is a rule of practice as well and not of law, but it is a long established and accepted practice geared to ensure effective and meaningful participation of the assessors. The practice requires the trial judge to discharge this duty before the commencement of the trial after establishing that the accused person has no objection against any assessor. We hasten to add that, the trial judge has to record this process to authenticate that it was done and properly so. An omission to inform them on their roles has an adverse effect as they may not know what is expected of them, as a result they may not participate effectively so as to assist the trial court to reach a just decision as expected.

We restated the mandatory requirement for the trial court to discharge the above stated obligations in Hilda Innocent (supra) wherein we observed: - "It is instructive to note that involvem ent o f assessors as per section 285 (1) o f the CPA begins with their selection. The tria l judge therefore must indicate in the record that the assessors were selected, followed by asking the accused person if he objects to the participation o f any o f the assessors before the commencement o f a tria l This must usually be followed by the usual practice that the trial judge must inform and explain to the assessors their role and responsibility during the triai up to the end where they are required to give their opinions after summing up o f the triaijudge," The Court stressed further: - "...it is equally im portant although inform ing the assessors on their role and responsibility is a rule o f practice and not a rule o f lawr as it is for a long time an established and accepted practice, in order to ensure their meaningful participation, a trial judge must perform this task immediately after ascertaining that there is no any objection against any o f the assessors by the accused before

commencing the trial. It is also a sound practice that a trial judge has to show in the record that this task has been fu lly performed. For even logic dictates that whenever a person is called upon to assist in perform ing any task or to offer any service, he must be fully informed o f what is expected o f him in performing that task. Thus, failure to inform assessors on their role and responsibility in the tria l diminishes their level o f participation and renders their participation which is a requirement o f the law meaningless." Having stated the legal position, we agree with the learned counsel for the parties that the learned trial judge did not discharge the duty as required by law to which we shall demonstrate. According to records of appeal, the trial of the case at hand commenced on 18tn October, 2017. We wish to reproduce the extract of the proceedings on the said date to when the trial begun so as to appreciate what transpired at the trial court. The extract will further assist us to answer the issue we raised; "H igh C ourt S essio n a t Kaham a Date: 1 8 /1 0 /2 0 1 7 Coram: Hon. V. L. M akani, Judge M s. M agreth N daw eka, S e n io r S ta te A tto rn ey, S tate A tto rn e y fo r the R ep u b lic

Accused names: ABD ALLAH JUM A @ BU PALE Is present under custody and represented by Mr. FESTO LEN A f Advocate Bench Clerk M W AN A ID A. SELEM AN, notice o f tria l on information for M u rd er Contrary to Section 196 o f the Penal Code was duly served on the accused, before the Court on 1 8 /1 0/20 1 7 . Information is read over and explained to the accused person, in his o wn language and he is required to plead thereto. Plea: "S i k w e ii" Entered as a plea o f " N o t G u ilty " to the charge. V. L. M AKAN I JU D G E 1 8 /1 0 /2 0 1 7 M r. Lem a: We have no objection to the prayer, M s, N daw eka:: The m atter was for hearing today and we have 8 witnesses who are present in court. We expect to bring an exhibit which is a car with registration No.440 AEK Toyota mark II, but the said car is in Shinyanga. We are therefore praying that the m atter be adjourned so that we make a follow up o f the said exhibit in order that it is brought to court. We prays that the matter comes for hearing on 2 /1 1 /2 0 1 7 12

V. L. M AKAN I JU D G E 1 8 /1 0 /2 0 1 7 M s. N daw eka: The witnesses who are here today are

1. E. 9246 D/C Dickson
2. Paschal Washa
3. Makeiemo Lushinde
4. M safiri Nkwabi
5. Lugumba Kashinje
6. Bundaia Charles
7. SSP. Lutufyo
8. C. 98905 D/CPL Laurent V. L M AKAN I JU D G E 1 8 /1 0 /2 0 1 7 C o u rt ; Noted that a ll the witnesses mentioned are present and also the Assessors namely;
9. Tatu Shabani
10. Imelda Timoth
11. Godfrey Ndimiia V. L M A KA N I JU D G E 1 8 /1 0 /2 0 1 7

Order:

1. In view o f the prayer by the prosecution, which was not objected to by the Defence Counsel, hearing o f the matter is adjourned to 2/11/2017
2. The witnesses are warned to appear
3. The accused to further remain in custody. V. L M AKAN I JU D G E 1 8 /1 0 /2 0 1 7 " " H igh C o u rt se ssio n a t Kaham a Da te: 2 /1 1 /2 0 1 7 Coram : Hon V. L M akani, Judge F o r R epublic: M s M agreth Ndaw eka, SSA Accused: P re se n t R epresented by: Mr. Festo lem a, Advocate B /C : Mwanaidf RMA ASSESSORS:
4. Tatu Shabanif 47 years Kahama 0742 823041
5. Imeida Timoth, 34 years ■ Kahama 0755 344996
6. Godfrey Ndimila, 37 years, Kahama 0764 800080

Court: The accused is reminded o f his charge and he pleads: - Accused: "Si kw efi" A plea o f "NOT G U ILTY" is entered as against the charge. V. L M AKAN I JU D G E 2 /1 1 /2 0 1 7 M s. N daw eka: The matter is for hearing today. But I wish to make some corrections on the charge sheet that the date should read as 18/12/2007 instead o f 19/12/2015 M r. Lem a: I have no objection as the fact corresponds to the prayer. Court: The error in the charge sheet is manually corrected and should no w read 18/12/2007. V. L. M AKAN I JU D G E 2 /1 1 /2 0 1 7 M s. Nda w eka: In the charge sheet I signed on behalf o f the State Attorney I pray to file an amendment to the Information showing that the drawer is the one who signed. M r. Lem a: I have no objection to that

C ourt: The prayer is granted amended information is aiiowed as amended. V. L M AKAN I JU D G E 2 /1 1 /2 0 1 7 C ourt: The information as amended is read over to the accused person and he pleads as foliows:- A ccused: It is not true." V. L. M A KA N I JU D G E 2 /1 1 /2 0 1 7 Court: The plea of "Not Guilty" is entered. V. L. M AKAN I JU D G E 2 /1 1 /2 0 1 7 M s. N daw eka, S e n io r S tate A ttorn ey: We pray to proceed and I have nine witnesses and I w ill start with Makelemo Lushinge who cannot communicate in Kiswahiii. PRO SECUTION CASE COMMENCES ..." When the above extract is tested with the legal position, it is apparent that the trial of the appellant by the High Court commenced without adhering to the dictates of the law requiring the trial court to discharge the pointed-out obligations. Throughout the record of appeal 16

when the prosecution witnesses were testifying (PW1-PW9), the assessors did not ask any clarification question. The trial court recorded "NILL" when it was the assessors turn to ask questions for clarification. Only two out of the three assessors sought for clarification after the appellant finished his testimony. It is our settled opinion that, the assessors were unable to ask questions for clarification because they were unaware of their roles. We do not want to believe that they had nothing to ask throughout the testimonies of nine prosecution witnesses. In the circumstances, the trial court recorded the evidence o f . PW1 - PW9 without the involvement of the assessors whose participation in this aspect is through asking questions as stipulated under section 177 of the Tanzania Evidence Act Cap.6 R.E. 2019. We are aware that two of the assessors asked the questions after the completion of the testimony by the appellant (accused therein), but with regard to the prosecution witnesses, they acted like mere observers. Basically, the asking of questions by the two assessors cannot be concluded that their participation was optimal compared to nil questions to nine prosecution witnesses. It is our firm conviction that they so acted since they were not informed of what was expected of them. We are further aware that it is not compulsory for the assessors to ask questions

to any testifying witness, but we so state basing on the fact that the record is silent as above indicated and the minimal participation resulted. We need not insist that active participation is envisaged when the assessors sit in the trial. Though the listing of assessors' names might appear sufficient as far as their selection is concerned, but the record vividly depict that the assessors were not informed of their roles at the trial and thus the trial cannot be said to have been conducted with the aid of assessors. Besides, the omission to give the appellant a chance to state whether he objected or not to the assessors selected, denied the appellant a fair hearing as demonstrated above. Legally, both are incurable irregularities which render the trial a nullity as rightly submitted by counsel for the parties. On our part, we entirely agree with the submitted consequence considering that assessors are an integral part of the trial conducted before the High Court. As such, the trial court was required to involve them from the very beginning of the trial to enable their active participation, and further give assurance to the appellant that his case would be tried fairly and justly by informing him his right to object or otherwise on any of the assessors selected, if he so wished. This is rooted in the principle that justice should not only be done but must as well seen to have been done. 18

At this juncture, we wish to instructively reiterate compliance by the trial courts of discharging this compulsory obligation before commencing a trial in which assessors are legally required to sit to aid the court. The message as to what is supposed to be done by the trial court when required to sit with the assessors is well articulated in the observation of the Court in Godfrey s/o William @Matiko and Another v. Thomas s/o Mwita @ Nyagancha V Republic, Criminal Appeal No. 409 of 2017 (unreported) quoting Fadhil Yussuf Hamid (Supra) which we herein reproduce as an instructive reminder that: - "The case o f Laurent Safu and five others v. R, Crim inal Appeal No. 176 o f 1993 (unreported) is eiaborative on a il the steps which must be complied with in a trial with aid o f assessors,

1. The Court m ust select assessors and give an accused person an opportunity to object to any o f 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 19

judge expects from them at the conclusion o f the evidence. 4) The Court to avail the assessors with adequate opportunity to p u t questions to the witnesses and to record clearly the answers given to each one . I f an assessor does not question any witness, that too, has to be clearly indicated as: ’ Assessor 2: N il or no question. 5) The court has to sum up to the assessors at the end o f submission by both sides. The summing up to contain a summary o f facts/ the evidence adduced and also the explanation o f 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 defenses. 6) The court to require the individual opinion o f each assessor and to record the same". From the foregoing, we are settled in our mind that there were lapses in the conduct of the trial, which vitiated the entire proceedings of the trial court. Consequently, we find no need to venture on the grounds of appeal raised by the appellant herein as conceded by the counsel of the parties. In the end, in terms of section 4(2) of the AJA, we invoke the 20

powers of revision to nullify the proceedings of the trial court, quash the conviction and set aside the sentence imposed on the appellant. However, for the interest of justice and considering the factual setting of the case in the record of appeal, we order a retrial of the appellant to be conducted expeditiously before another judge with a new set of assessors. We also order that the appellant shall remain in custody to wait a retrial. DATED at SHINYANGA this 19th day of August, 2021. F. L. K. WAMBALI JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL The judgment delivered this 20th day of August 2021 in the presence of Mr. Audax Constantine, learned counsel for the appellant and Mr. Jukael Reuben Jairo assisted by Ms. Caroline Mushi both learned State Attorneys for the Respondent/Republic, is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 21