Mara s/o Mafuge & 7 Others vs Republic (Criminal Appeal No. 29 of 2015) [2018] TZCA 637 (31 August 2018)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MUSSA, J.A.. LILA. J.A.. AND MWAMBEGELE. J.A.l CRIMINAL APPEAL NO. 29 OF 2015 1. MARA S/O MAFUGE ^ 2. MAIGE S/O MATEMBA 3. KIJA S/O CHIMIJA 4. MASUNGA S/O LUCHEMBA V ........................................ APPELLANTS 5. MASELE S/O MABULA 6. NJILE S/O KASANDA 7. SOLI S/O ZANZIBAR ^ VERSUS THE REPUBLIC..................... .................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Mgonya, J,) Dated the 7th day of December, 2015 in Criminal Sessions Case No. 64 of 2013 JUDGMENT OF THE COURT 21st & 31s t August, 2018 MWAMBEGELE, 3.A.: The seven appellants together with eleven others were arraigned before the High court of Tanzania at Tabora for the offence of murder contrary to section 196 of the Penal Code, Cap. 16 of the Revised Edition, 2002. It was alleged that on 27.03.2012, at about 11:30 hours at Mayai area in Iramba Ndogo Village within the Meatu District of Shinyanga Region, they jointly and together murdered one Daudi Kiberenge Bugakwe. They pleaded not guilty to the information after which a full trial ensued. After the full trial, the appellants were found guilty as charged, convicted and each awarded the mandatory death sentences. The convictions and sentences, naturally, did not amuse the appellants. Thus through a law firm going by the name of Mwangazambili Advocate, they lodged a joint three-ground Memorandum of Appeal which is reproduced hereunder: "1. That the Hon. trial Judge grossly erred in law and in fact for failure at all to evaluate and consider the evidence o f appellants; 2. That the Hon. trial Judge was wrong for failure to address assessors on the issue o f alibi raised by the appellants; and 2. That upon the evidence on record the Hon. trial Judge erred in law and in fact in believing the evidence o f respondent's witnesses with serious discrepancies." 2 The appeal was argued before us on 21.08.2018 during which the appellants, like in the High Court, had the services of Mr. Yussuf Mwangazambili, learned advocate, and the respondent appeared through Mr. Deusdedit Rwegira, learned State Attorney. Except for the first; Mara s/o Mafuge, all the appellants were also present. The Court was informed that the first appellant; Mara s/o Mafuge, was no more and the record of appeal had a death certificate which had been forwarded to the Court by Uyui Central Prison vide a letter of 13.07.2018 bearing Ref. No. 209/TB/I/X91 whose details were to the effect that the first appellant Mara s/o Mafuge passed away on 11.03.2018 at Kitete Hospital. Given the circumstances, his appeal abated under the provisions of rule 78 (1) of the Court of Appeal Rules, 2009 and the Court, accordingly, marked Mara s/o Mafuge's appeal as abated. The Court thus proceeded to hear the appeal in respect of the remaining appellants. Before we go into the details of the appeal, we find it apt to narrate, albeit briefly, the material facts of the case leading to the appeal. The appellants and the other accused persons at the trial who were acquitted, were residents of Iramba Ndogo village in Meatu District in Shinyanga Region which borders Mayoyi Reserved Forest. The deceased Daudi Bugakwe @ Kiberenge was a Game Reserve Officer. It happened that there was a tripartite arrangement by the village, district and game authorities to guard the Reserved Forest from trespassers. On the material day, the deceased, together with PW1 Genda James, PW2 Samweli Shani, PW3 Joseph Jilulu and PW5 Embassy Magembe (and others who did not testify), were on patrol in the forest. The deceased was armed with a Rifle and the rest were armed with sticks. While on the said patrol, they came across a person grazing about thirty head of cattle in the Reserved Forest. They went thither with a view to interrogating the person taking care of the head of cattle but, alas! the herdsman raised an alarm and a group of about fifty villagers appeared armed with traditional weapons like swords and bows and arrows some of which were poisoned. PW1 who was their village chairman tried to calm them down to no avail. The deceased fired in the air to scare them but they still advanced. In the process the deceased was shot on the leg with a poisoned arrow. The deceased was fatally injured by the poisoned arrow shot. Lying down helplessly, the deceased handed the gun to a certain Joash and told him there was only one round of ammunition remaining. Joash fired the last round in the air but the group still advanced. Seeing the imminent danger, the men on patrol took to their heels in escape leaving the deceased behind. The deceased remained there helplessly raising his hands in the air to signify surrender. However, the group was up to no mercy. On arrival, they descended on him with hacks and blows. They hacked him on the ribs and thigh. As if that was not enough, they chopped-off his private parts, peeled the skin of his testicles, chopped off his tongue and thereafter left with those body parts. The deceased died there. While the eye witnesses claim to have recognized the appellants and their roles of participation in the killing, all the appellants brought to the fore the defences of alibi. They were prosecuted and convicted as already alluded to above. So much for the background material facts. Mr. Mwangazambili for the appellants started to argue the third ground to the effect that the appellants ought to have been acquitted given the discrepancies in the evidence of the witnesses for the prosecution. Elaborating, he stated that the record of appeal at page 64, bears out that PW2 Samweli Shani, when cross-examined, testified that the first accused wore a jacket and a T-shirt inside whereas at page 57, PW1 Genda James testified that the first accused wore a black pair of short trousers and had no shirt on. Mr. Mwangazambili added that at page 58, PW1 testified that the assailants left behind three arrows which were later taken by the Police, whereas PW4 at page 76 stated that they did not see anything at the scene of crime. Mr. Mwangazambili was not done yet. He referred us to yet another discrepancy appearing at page 86 contained in the testimony of PW5 Embassy Magembe who testified that when they reached the Camp, their Chairman called the Police. However, Mr. Mwangazambili went on, there is no such testimony by neither chairman under reference; neither the Hamlet Chairman nor the Village Chairman; that is, PW2 and PW1, respectively. The learned counsel submitted that the foregoing are discrepancies in evidence which should be resolved in favour of the appellants by discounting the testimonies of the witnesses under discussion. To bolster this proposition, he cited Moshi Hamisi Kapwacha v. Republic, Criminal Appeal No. 143 of 2015 (unreported) wherein it was held that the inconsistencies and discrepancies were not minor as they went to the root of the matter and the testimonies were discounted. On the first ground of complaint, Mr. Mwangazambili submitted that the learned trial judge did not consider the defence of the accused persons; the appellants herein, who pleaded alibi. The defence was not considered at all, he argued. Prompted, however, the learned counsel changed the goal posts and conceded that the a//#/was considered but he was quick to state that the learned trial judge ought not to have rejected it wholesale just because no notice was issued under section 194 of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 (hereinafter referred to as the CPA) as was stated in Venance Nuba and Another v. Republic, Criminal Appeal No. 425 of 2013 (unreported). On the second ground of grievance, Mr. Mwangazambili submitted that the learned trial judge erred in not addressing the assessors on the defence of alibi raised by the appellants. Expounding, the learned counsel stated that the non-direction offended against section 265 of the CPA. At our prompting, the learned counsel added that malice aforethought was stated in the summing up to assessors but that the learned trial judge did not go further to state what it entails. The same was the weakness in respect of evidence of visual identification or recognition as well as the evidence relating to common intention. He relied on Kulwa Misangu v. Republic, Criminal Appeal No. 171 of 2015 (unreported) to submit that this was a fatal ailment which vitiated the whole proceedings and ought to be rectified by nullifying them. As to the way forward after nullification, Mr. Mwangazambili argued that as the evidence was weak to mount a conviction, an order for a retrial will not be appropriate. He thus beckoned upon us to order that the appellants be released from custody. For his part, Mr. Rwegira for the respondent Republic supported the appeal. His support was anchored on the fact that the summing up to assessors fell short of relevant matters in the case which were the basis of the conviction of the appellants but were not summed up to assessors. The learned State Attorney refered us to pages 163 - 164 where the learned trial judge stated in the summing up to assessors that the main issue in the case was whether the appellants had intention to kill instead of whether the appellants were properly identified at the scene of crime. On the authority of Kashinje Julius v. Republic, Criminal Appeal No. 305 of 2015 (unreported), he went on, the trial was not conducted with the aid of assessors and therefore a nullity. 8 As to the way forward, Mr. Rwegira was, initially, minded to pray for a retrial of the appellants arguing that they were adequately recognized at the scene of crime despite the fact that the situation was horrifying because the incident took place in broad daylight. But later, on a second thought, having been prompted on the possibilities of mistaken identity or recognition, he was of the view that a retrial would be, in the circumstances, inadvisable. Mr. Mwangazambili had nothing to say in rejoinder, the learned State Attorney having supported the appeal and having refrained from pressing for a retrial. Having stated the above, we should now be in position to confront the grounds of appeal as presented and as argued by the trained minds for both parties. As seen above, the two trained minds are at one that the proceedings and the consequent judgment of the High Court and the sentences meted out to the appellant are but a nullity and that they should be nullified and, consequently, the appellants should be set at liberty. We propose to start our determination with the second ground of appeal through which the appellants, through Mr. Mwangazambili, argue that the trial judge did not sum up to assessors on the law relating to alibi, identification or recognition, common intention and malice aforethought. It is no gainsaying that it is on the strength of these principles the appellants were convicted. It should be elementary law that all criminal trials before the High Court are conducted with the aid of assessors the number of whom shall be two or more as the court may find appropriate. This is the tenor and import of the provisions of section 265 of the CPA. Likewise, the CPA under section 298 (1) requires trial Judges sitting with assessors to sum up to them before inviting them to give their opinions. The subsection provides: " When the case on both sides is dosed, the judge may sum up the evidence for the prosecution and the defence and shall then require each o f the assessors to state his opinion orally as to the case generally and as to any specific question o f fact addressed to him by the judge, and record the opinion." Case law has defined the phrase "the judge may sum up" appearing in subsection (1) of section 298 of the CPA that despite using 10 the term "may" it does not mean that the trial Judge can forbear with the summing up to assessors - see: Mulokozi Anatory v. Republic, Criminal Appeal No. 124 of 2014 (unreported). In Augustino Lodaru v. Republic, Criminal Appeal No. 70 of 2010 and Omari Khalfan v. Republic, Criminal Appeal No. 107 of 2015 (both unreported), in the quest to underline the overarching need for the assessors to fully understand the facts of the case before them in relation to the relevant law before inviting them to give their opinion, we quoted the following excerpt from the decision of the erstwhile Court of Appeal for East Africa in the case of Washington s/o Odindo v. Republic (1954) 21 EACA 392 which excerpt, we think, merits recitation here: "The opinion o f assessors can be o f great value and assistance to a trial judge but only if they fully 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 sufficient facts o f the case the value o f the assessors' opinion is correspondingly reduced..." [Emphasis supplied]. i i There is a long and unbroken chain of decisions of the Court which underscore the duty imposed on trial High Court judges who sit with the aid of assessors to sum up adequately to those assessors on all vital points of law - see: Omari Khalfan v. Republic (supra). As we observed in Said Mshangama @ Senga v. Republic, Criminal Appeal No. 8 of 2014 (unreported) and Omari Khalfan (supra), what are the vital points of law which the trial High Court should imperatively address to the assessors and take into account when considering their respective judgments will depend on important points of law disclosed in each particular case. Adverting to the present case it is no gainsaying that the learned trial court convicted the appellants basing on the evidence relating to identification or recognition, common intention and malice aforethought as well as discounting the alibis. Having dispassionately appreciated the evidence and the law and having read the judgment of the trial court between the lines, we are certain that the learned trial judge properly appreciated the law and evidence on the subjects. However, the pertinent question under discussion here is whether or not the points of law on which the appellants were convicted were adequately summed up to the 12 assessors before asking them to give their opinion. This is the issue to which we now turn. As per the record of appeal, the summing up notes to assessors run from page 141 through to page 164. As it is, from page 141 to 162 the summing up notes comprise introductory remarks and a summary of evidence of witnesses including the appellants'. Thereafter, the trial court stated: "Honourable Assessors, as I have given you the facts and evidence from both Prosecution and Defence, it is a fact that the main issue that has to be determined, as it has always been the case in Murder case like this one and in particular to the case before us is whether the accused persons had intension to kiii. It should be born (sic) in mind that the court will convict only the guilty as per evidence. At criminal law, as already showed above, it is not that the accused person who is acquitted did not commit the offence. It is that the evidence adduced against him was not enough to prove his guilt to the required standard, beyond reasonable doubt. In case there is any doubt that should be resolved 13 in favour o f the accused person. At taw it is better to leave scot free ten guiity accused persons than convict one innocent person. A t law, accused person is not convicted because o f his lies. With or without lies o f the accused person, the Prosecution is still under the legal duty to prove a case against an accused person beyond reasonable doubt." Having so stated, the trial court, on the last para, the assessors were called upon to give their opinions. It is no gainsaying that a big chunk of the summing up notes comprised introductory remarks and summary of testimonies of the witnesses and the accused persons'. Points of law were summed in hardly two paras and vital points of law in the case - alibi, identification or recognition, common intention and malice aforethought - escaped the attention of the trial court. With unfeigned respect, we are of the well-considered view that the summing up to assessors in the present case fell short of the minimum threshold required under the law. With equal unfeigned respect, we agree with Mr. Mwangazambili and Mr. Rwegira that the proceedings are as good as if the trial was without the aid of assessors. As we observed in Kashinje Julius (supra), the case cited and supplied by Mr. Rwegira, a trial with such shortcomings cannot be construed to be one with the aid of 14 assessors. In Tulubuzya Bituro v. Republic [1982] TLR 264, the Court was confronted with an akin situation in which the assessors were not directed on the law relating to provocation. Following an English case of Bharat v. The Queen [1959] AC 533 which was relied upon by the Court in its earlier unreported case of Alphonce Philbert v. Republic, in Criminal Appeal No. 27 of 1979, the Court held (I quote from the first headnote): "Failure by a judge to direct assessors on the issue o f provocation, where evidence shows so, vitiates the entire proceedings". By the same token, we cannot resist the urge to recite the following excerpt from Tulubuzya Bituro (supra) as reproduced in Kashinje Julius (supra) on the consequences of mis-directions and non-directions of assessors on a vital point of law: "Since we accept the principle in Bharat's case as being sensible and correct it must follow that in a criminal trial in the High Court where assessors are misdirected on a vital point, such trial cannot be construed to be a trial with the aid o f assessors. The position would be the same 15 where there is nondirection to the assessors on a vital point." In the case at hand, the mis-directions and non-directions of the assessors are apparent. It was a mis-direction on the part of the trial court to tell the assessors that the main issue that was to be determined in this case was "whether the accused persons had intention to kill". We respectfully think it was incumbent upon the trial court to first establish their being identified or recognized at the scene of crime before going to the issue above which it thought was pertinent. Likewise, while we think it was apposite for the trial court to tell the assessors that in a murder charge, it was also important to prove malice aforethought but, we respectfully think, it was a non-direction not to go further to sum up to them what malice aforethought entails. And as if to clinch the matter, it was a non-direction not to sum up to the assessors on the law relating to alibi, identification or recognition and common intention; the principles which were articulated in the judgment with great tenacity and on which the appellants were convicted. These mis-directions and non-directions vitiated the proceedings and the flanking judgment in the present matter. The second ground of appeal 16 is therefore meritorious. Having found the second ground of appeal as meritorious, we think the appeal can be sufficiently disposed of on this ground only. As such, we will not venture into the determination of the rest of the grounds; that is, the first and third grounds. That endeavour can be embarked upon at another opportune moment. We have asked ourselves whether it is proper to order a retrial of the appellants. Having dispassionately pondered over the matter, we are inclined to agree with Mr. Mwangazambili for the appellants and Mr. Rwegira for the respondent Republic, that given the circumstances obtaining at the scene of crime, it could not be possible to identify or recognize the assailants and, more particularly, to tell with certainty who did what. We are certain that given the circumstances, mistaken identity or recognition could not be ruled out. Taking into account all these factors, we are of the considered view that, it will not be in the interest of justice to order a new trial of the appellants. In the upshot, we find merit in the appeal and quash the convictions of the appellants and set aside the sentences of death meted out to them. We, consequently, order the immediate release from custody of the appellants - Maige s/o Matemba, Kija s/o Chimija, Masunga s/o Luchemba, 17 Masele s/o Mabula, Njile s/o Kasanda and Soli s/o Zanzibar - unless otherwise held there for some other lawful cause. Order accordingly. DATED at TABORA this 29th day of August, 2018. K. M. MUSSA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. 18