Erick Jonas Nangomo vs DPP (Criminal Appeal No. 475 of 2017) [2018] TZCA 330 (14 December 2018)

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (CORAM: MBAROUK, l.A., MKUYE, l.A. And WAMBALI, l.A.) CRIMINAL APPEAL NO. 475 OF 2017 ERICK JONAS NANGOMO •••.•••.••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE DPP II II. II ••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Zanzibar at Chake-Chake Pemba) (Mwampashi, J.) dated the 22 nd day of February, 2017 in Criminal Case No. 01 of 2006 JUDGMENT OF THE COURT 26th November & 14th December, 2018 WAMBALI, l.A.: The appellant, Erick Jonas Nangomo was charged and prosecuted before the High Court of Zanzibar held at Chake- Chake Pemba for two counts of murder contrary to sections 180 and 181 of the Penal Decree, Cap 13 of the Laws of Zanzibar. 1

At the end of the trial, the High Court of Zanzibar (Mwampishi, J) was duly satisfied that the prosecution had proved the charges against the appellant and convicted him accordingly. He subsequently thereafter sentenced the appellant to suffer death by hanging in terms of section 181 of Cap. 13 of the Laws of Zanzibar. As the appellant was not satisfied with both conviction and sentence, he has appealed to this Court. It is noted that earlier on the advocate for the appellant had lodged a memorandum of appeal comprising two grounds which were abandoned with the leave of the Court before hearing. The hearing of the appeal therefore proceeded on the bases of the supplementary memorandum of appeal lodged on 22 nd October, 2018 by the learned advocate for the appellant which comprises the following grounds: "1. That the Honourable trial judges (sic) erred in law by conducting trial under inapplicable lew, hence the entire trial a nullity. 2

2. That the Honourable trial judge erred in law in failing to properly sum up the case to assessors, hence the trial was conducted without the aid of assessors.

3. That the Honourable trial judge did error in law in failing to fully involve assessors hence making the entire trial a nUllity.

4. That the Honourable trial judge erred in law in failing to properly deal with the appellant in parity with the relevant provisions governing the procedures of ascertaining mental status of the appellant.

5. That, both preliminary inquiry and trial were conducted illegally. AL TERNATIVEL Y

6. That the Honourable trial judge erred in law and in fact in convicting the appellant based on weak evidence adduced before the court. 3

7. That the Honourable trial judge erred in law and in fact in holding that the charge of murder has been proved beyond reasonable doubt against the eppeltent." We need however, to point out that at the hearing of the appeal, Mr. Rajab Abdalla Rajab, learned advocate assisted by Mr. Demetrius Masala, learned advocate who appeared for the appellant argued ground 1 and grounds 2 and 3 together. They also abandoned grounds 5, 6 and 7. However, at the end of their submissionstheir arguments were premised on grounds 1, 2 and 3 together with the effect that the other grounds, except for grounds 5, 6 and ground 7 which were formally abandoned, were taken by the learned advocates to have been combined in their respective arguments with regard to grounds 1, 2 and 3. We also have to mention, albeit in passing, that earlier on the respondent Director of Public Prosecutions had lodged a notice of preliminary objection on the competence of the notice of appeal. However, the same was withdrawn by Mr. RamadhanAli Nasib, learned Principal State Attorney who represented the 4

respondent Director of Public Prosecutions. He was also assisted by Mr. Soud Said Ahmed and Ms. Ilham Malick Sultan both learned State Attorneys. Submitting on ground 1, Mr. Rajab, learned advocate stated that the trial of the appellant was conducted under the procedure provided under the provisions of the Criminal Procedure Act, No. 7 of 2004 (the Act) instead of the provisions of the Criminal Procedure Decree, Cap. 14 of the Laws of Zanzibar. He stated further that although section 401 of the Act, repealed Cap. 14, but, according to the provisions of section 402 (1) of the Act, any matter which was pending before any court before the commencement of the Act, must be dealt with and disposed of under the repealed Decree as if no repeal has been effected. The learned advocate for the appellant emphasized that the provisions of section 402(1) of the Act is mandatory to be complied with by the relevant authorities in the criminal justice system. Mr. Rajab went further and pointed out several instances including selection of assessors in which the trial judge applied the provisions of the Act in conducting the trial. He was however, 5

of the view that the learned trial judge could have applied the provisions of the Act, if he could have obtained the permission of the Chief Justice under Section 402(2) to conduct the trial under that Act. However, this was not done in the present case as there is no evidence to that effect, he em phasized. Mr. Rajab therefore urged the Court to find that as the trial was conducted against the mandatory provisions of section 402 (1) of the Act, the proceedings, conviction and sentence are a nullity, He therefore urged the Court to allow the appeal on this ground and quash the proceedings and conviction and set aside the sentence that was imposed on the appellant and order a retrial before another judge and another set of assessors. With respect to grounds 2 and 3, Mr. Rajab learned advocate stated that the learned trial judge did not sum up properly the evidence of all witnesses to the assessors to enable them to have a well informed opinion on the case. He specifically mentioned the failure of the trial judge to explain and sum up properly the evidence of Mr. Ame Msaraka Pinja (PW8), the District Magistrate who recorded the extra judicial statement of 6

the appellant. He was of the firm view that despite the reasons given by the trial judge for not explaining that piece of evidence, the same did not exonerate him from complying with the requirement of the law by analysing the evidence of PW8 and leave the assessors to assess it and give their respective fair opinion. In support of his submission, Mr. Rajab, learned advocate referred us to the decision of this Court in luma Nepo Majaliwa v. Director of Public Prosecutions, Criminal Appeal No. 416 of 2015 (unreported). The learned advocate for the appellant explained further that throughout the record of appeal, there is evidence that the trial judge did not involve assessorsproperly in the trial including not indicating whether assessors participated properly by asking questions to witnesses. He supported his submission in this respect, by referring us to the decision of this Court in Chrisantus Msingi v. The Republic, Criminal Appeal No. 97 of 2012 (unreported). On the basis of what he submitted before us as stated above, Mr. Rajab urged us to find that failure of the trial judge to 7

involve assessors properly in the trial including improper summing up, rendered the trial a nullity. He similarly, on the basis of the grounds of appeal urged us to allow the appeal and quash the proceedings and conviction and set aside the sentence with the effect that the case be retried afresh before another judge with another set of assessors. In reply to the submission of the learned advocate for the appellant, Mr. Nassib, learned Principal State Attorney for the respondent Director of Public Prosecutions, argued that although the trial of the appellant proceeded under the provisions of the Act, there is no any prejudice which was caused to the appellant and that the defect can be served under section 394 (1) (a) of the Act. Mr. Nassib, firmly submitted that although the provisions of section 402(1) of the Act, relied upon by the learned counsel for the appellant with regard to conducting the trial under the repealed law is couched in mandatory terms, that alone cannot render the trial proceedings and conviction a nullity and liable to be quashed with the effect of setting aside the sentence of death. 8

He was of the view that going through the whole record of appeal there is no indication that the application of the Act instead of Cap. 14 prejudiced the appellant and the respondent Director of Public Prosecutions as what was applied was the procedural law and not substantive law. Mr. Nassib, learned Principal State Attorney, therefore urged us to find the submission on behalf of the appellant on this aspect to be of no legal effect and dismiss this ground in its entirety. On the other hand, the learned Principal State Attorney submitted with regard to grounds 2 and 3 of appeal by stating that there is no evidence in the record to show that the trial judge did not properly involve the assessors in the trial as required by the law as argued for the appellant. He argued further that the trial judge involved assessors and summed up the case to them on the substance of the evidence of both sides and the law. He firmly defended the stance taken by the trial judge and the reasons thereof for not explaining to the assessors the evidence of PW8. 9

Mr. Nassib, learned Principal State Attorney concluded that as the trial was properly conducted with the aid of assessors the decisions of this Court referred by the advocate for the appellant cannot apply. He thus urged us not to find that the trial was a nullity to the effect of ordering a retrial. He similarly urged us to disregard the submissions of Mr. Rajab learned advocate in support of this appeal and dismiss all the grounds for lacking merits. Having heard the arguments of the counsel for the parties, we think, it is important for the purpose of determining ground one, to explain briefly on the law in which the trial of the appellant proceeded. There is no doubt that before the appellant was tried at the High Court, there was preliminary inquiry that was conducted by the Regional Court at Chake-Chake Pemba which led to his committal for trial. According to the record of appeal, the appellant was committed for trial on 6 th December, 2005 under the provisions of section 178 of the Cap. 14 as amended by section 28 of the 10

Written Laws (Miscellaneous Amendments) Act, 1996. The appellant was committed to be tried for murder contrary to sections 180 and 181 of Cap 13. Nobody doubts the fact that at the time the appellant was committed for trial before the High Court, both the Criminal Procedure Act, No. 7 of 2004 and the Penal Act, No. 6 of 2004 had been in operation since pt September 2004 and 16 th August, 2004 respectively. In this regard, since the appellant was committed under the provisions of the repealed Criminal Procedure Decree, and charged under the repealed Penal Decree, the High Court was legally bound to adhere to the provisions of section 402 (1) of the Act in conducting the trial of the appellant to the conclusion. In order to appreciate the need for compliance with the provisions of section 402 (1) of the Act, we deem it appropriate to reproduce it hereunder: "402 (1) NotWithstanding the repeal of the Decree, any matter pending in any Court before the commencement of this Act the disposal of which is affected by the amendments made to 11

the Decree, shall be dealt with and disposal (sic) under the Decree as If no amendment is made to the decree. (2) Notwithstanding the provisions of subsection (1) where the Chief Justice is of the opinion that no miscarriage of justice shall be occasioned, he may order such pending matter be dealt with and disposed under the provisions of this Act. H We wish to state that a thorough reading of the above quoted provision leaves no one in doubt that it is mandatory that any trial of the accused that proceeds before a court of law in which the offence was alleged to have been committed before the coming into operation of the Act, shall be in accordance with the provisions of section 402(1) of the Act. The only exception for non-compliance with that provision is to obtain the order of the Chief Justice to proceed under the Act if he forms the opinion that "no miscarriage of justice shall be occasioned ... " In the present matter, we need not cite any authority to the effect that the trial court did not comply fully with the 12

requirement of section 402(1) of the Act. Unfortunately, too, no order of the Chief Justice was obtained by the trial High Court to proceed with the hearing of the case under the provisions of section 402 (2) of the Act. On our part, having studied carefully the record of appeal on how the trial proceeded before the High Court under the provision of the Act, we think, the appellant was prejudiced by the application of the Act. We are not therefore prepared, with due respect, to accept the arguments of Mr. Nassib, learned Principal State Attorney for the respondent Director of Public Prosecutions that failure by the trial High Court to conduct the trial under the provisions of the repealed Cap. 14, did not prejudice the parties and therefore the same is curable under section 394(1) (a) of the Act. We do not also, with respect, accept his submission that many sections of the Act applied at the trial are in pari materia with the provisions of the repealed Cap. 14. We say so because as stated by the learned advocate for the appellant, for example, the procedure prescribed by the provision of section 273 of the Act, "on close of the case for the prosecution" that was applied by 13

the trial judge during the trial is different from the procedure prescribed under the provisions of section 251(1) of Cap. 14 though on the same matter. While section 273 of the Act have two subsections and two paragraphs (a) and (b), section 251(1) of Cap. 14 has five subsections. We deem it appropriate, for the purpose of clarity and emphasis to quote the relevant provisions in fully hereunder. Section 251 of the Criminal Procedure Decree, Cap. 14 of the Laws of Zanzibar provides: "251 (1) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence on oath (if any) of the accused person before the committing court has been given in evidence, the court shall inform the accused person of his right to address to Court, either personally or by his advocate (if any), to give evidence on his own behalf or to make verbal statement or to put in a Written Statement and to call 14

witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself. Upon being informed thereof the judge shall record the same. (2) Unless the Written Statement is read to the Court by the accused in person it shall be read, and if necessary translated, to him and shall not be admitted unless he consents thereto. (3) if the accused person informs the Court that he does not wish to exercise any of the rights mentioned in subsection (1) the advocate for the prosecution may sum up the case against the accusedperson; and if the Court considers that there is no evidence that the accused person committed the offence, it may then record a finding of not guilty. 15

(4) if the accused person, or anyone of several accused persons, says that he means to give or adduce evidence, and the Court considers that there is no evidence that the accused committed the offence, the Court may then record a finding of not guilty. (5) if the accused person, or anyone of several accused persons, says that he means to give or adduce evidence, and the Court considers that there is evidence that he committed the offence, the Court shall calIon the accused person to enter on his defence. " On the other hand, Section 273 of the Criminal Procedure Act, No. 7 of 2004 provides as follows: ''273(1) When evidence of the witnesses for the prosecution has been concluded, and the statement or evidence, if any, of the accused person before the committing court has been given in evidence, the court If it considers, after 16

hearing the advocates for the prosecution and the defence, that there is no evidence that the accused or anyone of anyone of several accused committed the offence, shall record a finding of not guilty. (2) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence if any, of the accused person before the committing court has been given in evidence, the court if it considers that there is evidence that the accused person or anyone or more of several accused persons committed the offence, shall inform each accusedperson of his right - (a). To give evidence on his own behalf, or to make an unsworn statement; and (b). to call witnesses in his defence; and shall then ask the accused person, or his advocate, if it is intended to exercise any of the above rights and shall record the 17

answer. The Court shall calion the accused person to enter on his defence save where the accused person does not wish to exercise either of the above rights. " In the circumstances, we are of the settled view that the failure of the trial judge to adhere to the mandatory provisions of section 402(1) of the Act rendered the trial a nullltv, We therefore allow this ground of appeal. It follows that having reached that position which concerns the whole trial, we are of the view that we need not consider the other arguments concerning grounds 2 and 3 of the appeal, as the first ground is sufficient to dispose of the appeal as it goes to the root of the case. Indeed, all the provisions which were applied in respect of the participation of assessorsare that of the Act. In the event, having allowed the appeal on the first ground, and taking into consideration the nature of the offence which faced the appellant, we invoke the provision of section 4 (2) of the Appellate Jurisdiction Act, (the AJA) Cap. 141 R.E. 2002 and 18

revise the trial High Court proceedings and quash the same together with conviction and set aside the sentence of death imposed on the appellant. In the event, we order that a retrial be conducted before another judge and another set of assessors. Furthermore, as the case against the appellant has been in courts since the year 2003, we order that a retrial should be expediated. It is so ordered. DATED at ZANZIBAR this 13 th day of December, 2018. M.S.MBAROUK JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL F. L. K WAMBALI JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ B. A. MPEPO DEPUTY REGISTRAR COURT OF APPEAL 19