Dastan Makwaya & Another vs Republic (Criminal Appeal 290 of 2019) [2021] TZCA 392 (19 August 2021)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MWAMBEGELE. J.A.. KEREFU. J.A.. And KENTE. J.A/1 CRIMINAL APPEAL NO. 290 OF 2019

1. DASTAN MAKWAYA 1
2. JOVITH @ MTAGAYWA JOVIN | ......................................... APPELLANTS VERSUS THE REPUBLIC ...................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Bukoba sitting at Karagwe) (Mkasimonawa, J.) Dated the 7th day of June, 2019 in Criminal Sessions Case No. 12 of 2015 JUDGMENT OF THE COURT 13th & 19th August, 2021 KENTE, J.A.: The appellants namely Dastan Makwaya and Jovith @ Mtagaywa Jovin were arraigned in the High Court of Tanzania (Bukoba District Registry) sitting at Karagwe, for the offence of murder contrary to section 196 of the Penal Code, Chapter 16 Revised Edition 2002. It was alleged that on 17th June, 2013 at Kagenyi Village, within Kyerwa District in Kagera Region the

appellants murdered one Oscar Martine. They pleaded not guilty to the charge. However, upon a full trial, the trial High Court found them guilty as charged. Consequently it convicted and sentenced them to the mandatory death sentence. From that decision the appellants were aggrieved, hence this appeal. During the trial, the prosecution called three witnesses to prove its case. The said witnesses were Mkapa Laurent Rwehumbiza (PW1), Celina Celestine (PW2) and No. E. 7850 D/C Soter (PW3). The prosecution case as presented before the trial court was briefly to the following effect. On the fateful day, the appellants and the deceased were on a drinking spree at the home of PW2 who was a dealer in local brew. They were accompanied by PW1 who is said to have been hired by the first appellant on that day to collect his (first appellant's) bananas from the home of one Gration, another dealer in local brew. According to PW1, the first appellant along with one Ruge and two guests from Bukoba had started drinking local brew at the home of the said Gration. At about 8.00 pm they moved to the home of PW2. PW1 told the trial court that, although he was not drinking, he had to accompany them as he was yet to be paid his wage by the first appellant who had engaged him to carry his bananas from the

home of Gration. At the home of PW2, the appellants, two guests from Bukoba and PW1 met the second appellant, and four other persons who PW1 named as Mdashuro, Deogras, Mwombeki and PW2. It was the evidence of PW1 that while they were at the home of PW2, he heard the second appellant saying that when they get out he would kill Mwombeki while the first appellant had a row with his aunt one Crescencia. Because of the said altercation, according to PW1, PW2 ordered them to go away and compliantly, they obeyed PW2's order and left. Those who left in compliance with PW2's order were the first appellant, the second appellant, one Ruge and PW1. From there, they went to the first appellant's home. When they were at the first appellant's home, PW1 told the trial court that he urged him to retire to bed but the first appellant allegedly refused saying that he could not sleep until he saw his aunt. Accordingly, all of them returned to the home of PW2 who however, once again, ordered them to go away or stay outside. PW1 told the trial court that, obediently they got out. Having moved for about 15 to 20 paces from PW2's home, they allegedly met the deceased who was drinking local brew while seated. PW1 told the trial court that the deceased had no sooner stood up and welcomed them than the second appellant got hold of him and the first appellant stabbed him on the

chest with a bush knife. From there PW1 said that, he ran away to the home of his aunt one Fatuma whom he allegedly told that the appellants had killed the deceased. PW1 went on telling the trial court that he had to run away from the scene of the crime as the second appellant was allegedly chasing him ostensibly with the aim of harming him as well. According to PW1, in stabbing the deceased to death, the first appellant had used a bush-knife which he picked from his home where they had gone after PW2 had chased them away for the first time. After sometime, PW2 asked the customers namely one Jobless, Mwombeki and others who were still at her home to leave as it was already odd hours and PW2 wanted to sleep. When her customers got out, she then heard one of them saying "mtu yupo hapo amelala amekuwaje sijui amekufa." Upon hearing those remarks, PW2 got out only to find the deceased lying down. He was bleeding profusely. PW2 raised an alarm whereupon many people gathered including the Village Chairman. However, it is alleged that the appellants, PW1, one Ruge and the two guests from Bukoba were not among the persons who responded to the said alarm. It was the evidence of PW2 that the Village Chairman started looking for the appellants and others who were suspected to have killed the deceased but

were conspicuously absent. Whereas the first appellant is said to have been arrested sometimes later, the second appellant was allegedly arrested by the Chairman of the hamlet on 18th March, 2014 at Murongo village where he is said to have fled after the deceased's murder. It is on the basis of the above paraphrased evidence led by the prosecution side that the appellants were found guilty, convicted and sentenced by the trial court as stated above. Before the trial court, the appellants denied in the strongest possible terms to have stabbed the deceased to death. Even though, the first appellant admitted to have hired PW1 on that day to ferry his bananas from the home of Gration. He also admitted to have gone to the home of PW2 where he said he met many people who were consuming local brew. Moreover he said that, he owed PW1 Tshs.5,200/= and that sometime before the occurrence of the murder incident, he was at the home of PW2. He went on admitting the fact that there was a commotion at the home of PW2 but he sought to distance himself from the deceased's murder by telling the trial court that he left for his home at about 6.00 pm. The second appellant was relatively brief in his defence version. He denied the allegations levelled against him and raised the defence of alibi 5

to the effect that on the material day, he was at Kagashe village the place where he had settled with his family members in 2013 after moving from his home village of Kasharu in Bukoba Rural District. He also denied to know the first appellant, PW1 and PW2. He said that whereas he came to know the first appellant when they were already in remand prison following these charges in 2014, he saw PW1 and PW2 for the first time during the trial when they purported to identify him. The trial High Court Judge together with the three assessors who sat with him were convinced that the charge against the appellants had been proven beyond reasonable doubt. They rejected their defence versions and the trial Judge proceeded to convict them as charged. Dissatisfied with the conviction and sentence, they have now appealed to this Court. When this appeal was called on for hearing, the Court was informed by Mr. Shomari Haruna, learned State Attorney who appeared along with Mr. Amani Kilua, also learned State Attorney, on behalf of the respondent Republic that the first appellant had passed away on 5/12/2020. Mr. Haruna tendered a burial permit to support his information to the Court that indeed the first appellant is deceased. Accordingly, in terms of Rule 78 (1) of the Tanzania Court of Appeal Rules, 2019, we marked the appeal by the first

appellant to have abated. Therefore, this judgment is about the surviving appellant namely Jovith @ Mtagaywa Jovin henceforth, referred to as the appellant. Before us the appellant appeared in person and was represented by Mr. Zedy Ally, learned advocate. The appellant had initially lodged a memorandum of appeal which contained eight grounds of complaint. However, at the commencement of hearing, Mr. Ally informed the Court that, on being instructed, he had lodged a supplementary memorandum of appeal listing five grievances and that, upon consultation with his client, he had abandoned the first memorandum of appeal filed by the appellant. He said that in lieu thereof, he would rely on the supplementary memorandum of appeal which was filed by himself. Briefly stated, the five grounds of complaint which were listed by Mr. Ally are thus:

1. That, the learned Judge erred in law and fact in convicting the appellants on the offence o f murder while the prosecution failed to prove the case beyond reasonable doubt as required by law .

2. That, the learned Judge erred in law in relying on the evidence o f visual identification o f the appellants which was weak.

3. That, the learned Judge erred in law for failure to address and summing up properly to the assessors.

4. That the trial Judge erred in law for allowing the interpreter one Martina James to give interpretation without being sworn.

5. Thatm r the learned Judge erred in law for failure to consider the defence o f the first appellant. However, for the reasons that we shall make apparent at the later stage of this judgment, we will briefly consider the third ground of complaint which concerns the summing up to assessors by the learned trial Judge. Thereafter, we will deal with the crucial question as to whether the case against the appellant was proved beyond reasonable doubt as to warrant his conviction and sentence. Submitting in support of the appeal, Mr. Ally contended generally that in his summing up notes, the learned trial Judge had failed to address the assessors who sat with him on some material points which were crucial in the determination of the appellant's guilt or innocence. In elaboration, the 8

learned advocate contended that the learned trial Judge did not guide the assessors on the legal requirement that for the circumstancial evidence to ground a conviction it must, among other things, point irresistibly to the accused's guilty (See Simon Musoke v. R [1958] E.A. 715. Going forward, Mr. Ally complained that the assessors were not directed on the meaning and implication of corroboration evidence and the implication of section 200 of the Penal Code (Cap 16 R.E. 2019) which deals with the meaning of malice aforethought. Upon his attention being drawn to page 21 of the record of appeal, Mr. Ally discovered and submitted in consequence that, the assessors were selected without the appellant's consent as the record shows that it was their defence advocate one Mr. Angelo who informed the court that he himself had no objection to any of the three assessors who were proposed and consequently selected to participate in the appellant's trial. Mr. Ally submitted further that he would have prayed for the nullification of the entire proceedings and an order for retrial to be made but for the first ground of appeal in which it is complained that the case against the appellant was not proved beyond reasonable doubt as to warrant his conviction and sentence. In the circumstances, the learned 9

counsel was of the view that an order for retrial would not be in the interest of justice. For his part, Mr. Haruna learned State Attorney who did not contest the appeal, was relatively brief but much more elaborate and focused in his submissions. He was in agreement with Mr. Ally that indeed the assessors were not properly guided by the trial Judge on the important legal issues obtaining in this case and that for that reason, their opinions were not directed to the vital points of law arising in the case but rather on quite different matters which were not pertinent to the dispute before them. Citing the case of Omari Khalfan v. Republic, Criminal Appeal No. 107 of 2015 (unreported) the learned State Attorney submitted that, given the above stated procedural irregularities, it cannot be said that the trial was conducted with the aid of the assessors as envisaged under section 265 of the CPA. Likewise, Mr. Haruna concluded his submissions on that aspect by saying, that if it was not for some other shortcomings in the prosecution case, he would have prayed for an order for a retrial to be made effective from the stage of the summing up. He therefore submitted that the prayer for retrial would be in the alternative if, at the end, we will find that there was sufficient evidence to ground the appellant's conviction. 10

For our part, having closely examined the record of the proceedings before the trial court (starting from page 45 to 61), we entirely agree with both Mr. Ally and Mr. Haruna. It is apparent that in his summing up notes to the assessors which extend from page 45 to 56 of the record of appeal, the learned trial Judge did not canvass the vital points of law arising from the trial of the appellant which called for the court's determination. For instance having addressed the assessors on the ingredients of the offence of murder, and having read over to them the provisions of section 200 of the Penal Code, the learned trial Judge of the High Court did not go further to guide the assessors on how and if they could infer malice aforethought on the side of the appellant based on the evidence adduced by the prosecution side. Other vital points of law which were not considered by the learned Judge of the High Court in his summing up notes are the question of common intention between the appellant and the then co-accused in perpetrating the charged offence and the need for corroboration of the evidence of PW1 who was the only eye witness in this case. Finally, is the glaring omission by the learned Judge of the High Court to put to the assessors the appellant's defence evidence of alibi and to ask them to consider it as against the ii

prosecution case. In other words the defence case was not touched on at all by the trial Judge in summing up to the assessors. Given the above omissions and non-direction on the part of the trial Judge, we would repeat to say what we said in Saidi Mshangama @ Senga v. Republic, Criminal Appeal No. 8 of 2014 (unreported), which we cited with approval in Omari Khalfan (supra) that: . . 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 procedures 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 a vital point o f law to assessors it is deemed to be a retrial without the aid o f assessors and renders the trial a nullity" Because of the above procedural irregularities in the appellant's trial which we think we have sufficiently elucidated, we could have exercised our revisional jurisdiction provided under section 4 (2) of the Appellate Jurisdiction Act (Cap 141 R.E. 2019), to quash and set aside the proceedings and judgment of the High Court and ordered for retrial except for another short-coming in the prosecution case as we shall herein-after demonstrate. 12

As it will be noted at once, the conviction of the appellant was mainly if not solely based on the un-corroborated evidence of visual identification by PW1. This is the witness who told the trial court that he was together with the appellant when they met the deceased outside the home of PW2 and the appellant allegedly tied back the deceased's hands thereby enabling the late Dastan Makwaya to stab him on the chest. Submitting on the evidence of visual identification by PW1 both Mr. Ally and Mr. Haruna were agreed that it was wanting on some material points. The learned advocate and State Attorney were at par that not only that the said evidence was obtained under unfavourable conditions but also PW1 was not a credible witness as he was initially suspected to have been involved in the deceased's murder but later on released and turned into a prosecution witness. With regard to PWl's evidence who said that he saw and identified the appellant as one of the deceased's assailant and that he immediately mentioned him to his aunt one Mwajuma informing her that the appellant and his companion the late Dastan Makwaya had killed the deceased, Mr. Haruna submitted that the said Mwajuma who was the first person to be informed of the deceased's murder should have been called as a witness to give credence to PWl's testimony. As Mwajuma was not called 13

by the prosecution side to testify in support of their case, the learned State Attorney urged us to draw an adverse inference against the prosecution case and in particular to discredit the evidence of PW1. The learned State Attorney cited the case of Aziz Abdallah v. Republic [1991] TLR 71 in support of his position. All in all, both Mr. Ally and Mr. Haruna were of the synonymous view that once the evidence of PW1 is discredited as it should, there remains nothing to support the conviction of the appellant. They finally implored us to allow the appeal, quash the appellant's conviction and set aside the death sentence meted out on him. Going by the evidence led by the prosecution side during the trial, our main concern in this appeal is on the credibility and reliability of the evidence of PW1. We think, with due respect, his evidence was not sufficient by itself to ground a conviction and in our respectful view, PW1 did not deserve the credibility which was accorded to him by the trial Judge. Purposely leaving out here the fact that the conditions obtaining at the scene of the crime were not ideal as to support a correct identification of the appellant, we have found PW1 to be not a reliable witness. We are saying purposely because, PW1 claimed to have been with the appellant together with the late Dastan and one Ruge at all time until the killing of the deceased and therefore one 14

can reasonably conclude that he could not have mistaken the appellant with any other person as he knew him well and they were all the time together prior to the killing incident. According to PW1, after the deceased was stabbed and after he fell down, the appellant pursued him and he had to escape to the home of his aunt Mwajuma. He then told her that the appellant and his fellow had killed the deceased. However, it seems to us rather inconceivable and abnormal that PW1 would leave the crime-scene in silence without raising an alarm to alert PW2 that the deceased had been murdered by the appellant and his fellow just outside her (PW2's) home. Another factor having a direct negative effect on the credibility of PW1 is his unexplained decision to remain silent ostensibly in hiding until the following day when he was arrested by the villagers and handed over to the police as a suspect. Having objectively appreciated the entire evidence on the record, it is our respectful finding that, by any standards, PW1 was not a reliable witness in this case and on that account, he could not deserve the credibility accorded to him by the learned High Court Judge. It is after considering all these shortcomings in the testimony of PW1 who was the key witness in the

prosecution case that Mr. Haruna supported this appeal. Understandably, he had no other option in the circumstances. For the above reasons, we find the appellant's conviction and sentence to have been unjustified. We allow this appeal in its entirety. The appellant's conviction for murder and the death sentence meted out on him are hereby respectively quashed and set aside. We order for his immediate release from jail unless he is otherwise held for some other lawful cause. It is so ordered. DATED at BUKOBA this 19th day of August, 2021. The Judgment delivered this 19thday of August, 2021 in the presence of the Appellant in person represented by Mr. Zedy Ally, counsel for the Appellant and Mr. Amani Kilua, learned State Attorney for the Respondent/Republic is J. C. M. MWAMBEGELE JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL fffie&Tas a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL F. A>VlTARANIA