Mwalupise Mfikwa and Another vs Republic (Criminal Appeal No. 14 of 2022) [2024] TZCA 1209 (6 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA f CORAM: MKUYE, J.A., MGEYEKWA. J.A. And NGWEMBE. J.A.^ CRIMINAL APPEAL NO. 14 OF 2022 MWALUPISE MFIKWA . ....... . ...... . ...... . ................... ...1s tAPPELLANT MANASE MHADA . ......... . ........... . ............. . ....... . ...... 2 nd APPELLANT VERSUS THE REPUBLIC . ..... . ............, ......... . ......... . ..... . ...... . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Matoqolo, J.) dated the 26th day of November, 2021 in Criminal Sessions No. 02 of 2018 JUDGMENT OF THE COURT 2n a & . 6th December, 2024 MKUYE. J.A.: The appellants, Mwalupise Mfikwa and Manase Mhada were charged with and convicted of the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2002 (now R.E. 2022) in the High Court of Tanzania in Criminal Sessions Case No. 02 of 2018. The High Court Judge, who had the conduct of the case sentenced them to suffer death by hanging. It was alleged in the particulars of the offence that on 8/5/2015, at Ihanga village within

the District and Region of Njombe, the appellants murdered one, Eva d/o Merikion Mgaya. The facts culminating to this appeal are that: The deceased, Eva Merikion Mgaya and her husband Winfred Vitus Ngolo (PW7) lived in Ihaga village. On 8/5/2015, they went to their norma! errands and came back at night. As they just arrived home from their hotel business and as PW7 was closing the main gate to their house, the thugs stormed in and placed him under restraint. They led him to his house while demanding from him money which he replied to have none. Meanwhile, the deceased was in the kitchen and on hearing the commotion, she surfaced into the bedroom. On her arrival, one of thugs who was later identified to be the 1s t appellant shot her with a gun on her chest area. The deceased fell to the ground and succumbed to death. The thugs on realising what had just happened, took to their heels. According to PW7, he managed to identify the 1s t appellant with the help of a solar powered light source. The information was relayed to the local leadership and the police where a manhunt of the thugs was mounted.

PW6, Pascal Esmund Mwakiliche, who was a chairman of village security committee, having received the information, began to inquire from motorcycle riders (bodaboda) in the area. He caused all the motorcycle riders in the area to be under restraint, Then, revelation came that the 2n d appellant had commuted the 1s t appellant to a place called Kifanya. He was restrained. Then the search party accompanied by the police heeded to Kifanya village where it was believed that the 1s t appellant resided with his paternal uncle and fortunately, their efforts bore fruits. At around 4:45 a.m. the 1st appellant was spotted whilst hiding in a nearby thicket/shrub. PW6 took courage and pounced on him and restrained him. According to PW6 upon search, the 1s t appellant was found in possession of a locally made fire arm and two rounds of ammunition in his person. Both appellants were then taken to the police station where they recorded their cautioned statements narrating their participation in the alleged offence. The trial court, in convicting the appellants relied on their cautioned statements, the doctrine of recent possession and common intention. Also, the trial court was convinced that the 1s t appellant was positively identified at the scene of crime.

Being aggrieved, the appellants have appealed to this Court whereupon they have lodged both a substantive and a supplementary memorandum of appeal consisting a total of sixteen (16) grounds of appeal, which for a reason to be apparent shortly, we will not reproduce them. Instead, we wish to reproduce one ground of appeal brought by a 2n d supplementary memorandum of appeal lodged on 28/11/2024 which we consider to be sufficient to dispose of the entire appeal. The said ground is to effect that: "The trial High CourtJudge neither summed up to the gentlemen assessors properly on some vital points of law nor explained the role o f the gentlemen assessors before convicting the appellants." At the hearing of the appeal Messers. Jally Willy Mongo and Jassey Samuel Mwamgiga, [earned advocates appeared representing the 1s t and 2n d appellants respectively whereas Mr. Tito Ambangile Mwakalinga, learned Senior State Attorney represented the respondent Republic. It was Mr. Mwamgiga who argued this ground of appeal. His argument was pegged on two limbs. One, that the trial Judge did not address the assessors their roles. He elaborated that, at the commencement of the trial on 15/11/2021, three assessors were

selected. However, there is nowhere in the record of appeal the trial Judge explained to them their roles. He said, this can be translated that the trial was conducted without the aid of the assessors as was by then required under section 265 of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA). While referring to the case of Batram Nkwera v. Republic, Criminal Appeal No. 567 of 2019 [2022] TZCA 139 (24 March 2022), he argued that, failure to explain to the assessors their roles was a serious irregularity which impaired their participation. Two, that the trial judge failed to address the assessors, in the summing up, on vital points of law on visual identification, doctrine of recent possession and common intention which he discussed in the judgment as shown at pages 214, 215 and 217 respectively. He elaborated that, the trial judge did not explain to the assessors on the reliability of the visual identification evidence and the circumstances under which it can be relied upon. He added that, although the learned trial Judge touched the doctrine of recent possession in relation to the 1s t appellant who was found in possession of two mobile phones allegedly belonging to the victim of invasion PW7; and a gun and two rounds of ammunition, he did not explain to the assessors its applicability. Three, much as he

discussed the doctrine of common intention by joint offenders, he did not explain it clearly to the assessors. He argued that, since these vital points of law were not explained to the assessors before they gave their opinion, it can be translated that they gave their opinion without knowing what it entailed to such kind of evidence. M r.. Mwamgiga concluded that, failure by the trial Judge to do so rendered the summing up and the resultant Judgment a nullity with the effect of being nullified. In response, Mr. Mwakalinga readily conceded to the ground of appeal as submitted by Mr. Mwamgiga. He agreed that indeed, the trial Judge neither explained to the assessors their roles nor the vital elements of law during the summing up. He contended that, after their selection, the assessors were not told what they were required to do from the commencement of trial. Also, during the summing up, they were not addressed on vital points of law relating to the visual identification, doctrine of recent possession and common intention. He added that, the omission can be reflected on their opinion as they do not show any linkage with the available evidence. In this regard, the learned Senior State Attorney was at one with Mr. Mwamgiga on the effect of such anomaly. However, he

urged the Court to take into account that the trial Judge, Hon. Matogoio, J. (as he then was) has retired. Regarding the first limb of complaint that the trial court did not explain to the assessors their roles, before the amendment of the law relating to assessors, it was mandatory provided under section 265 of the CPA for the trials before the High Court to be held with the aid of assessors. The assessors were to be selected by the court in terms of section 285 (1) of the CPA. The requirement of selection of assessors was propounded in the case of Hilda Innocent v. Republic, Criminal Appeal No. 181 of 2017 [2018] TZCA 185 (6 September 2023), where the Court stated that: "It is instructive to note that involvement of the assessors as per section 285 (1) o f the CPA begins with their selection. The trial 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 of a trial This must usually be followed by the usual practice that the trial Judge must inform and explain to the assessors the role and responsibility during the

trial up to the end where they are required to give their opinions after summing up o f the trial Judge." See also: Philemon Zacharia @ Laizer v. Republic, Criminal Appeal No. 133 of 2019 [2021] TZCA 387 (5 August 2021). Otherwise, failure to explain the roles of the assessors in the trial, would vitiate their participation in the trial and ultimately, their participation would be rendered meaningless as was observed in the case of Hilda Innocent (supra). We are aware that previously, it was the position of this jurisdiction that if the roles of assessors were not explained to them by the trial Judge, such omission rendered the trial to have been conducted without the aid of the assessors and the effect was nullification of proceedings with an order of a retrial. However, the position has now changed. In such a situation the court has been looking as to whether there has been prejudice occasioned to the accused or there has been a miscarriage of justice See: Michael Luhiye v. Republic, [1994] T.L.R. 181 and Safari Anthony Mtelemko and Another v. Republic, Criminal Appeal No. 404 of 2021 [2023] TZCA 17768 (23 October 2023).

But gain, recently, when this Court was faced with akin situation in the case of Chabi Kasuga v. Republic, Criminal Appeal No. 455 of 2021 [2024] TZCA 1182 (3 December 2024), the Court having regard to the case of Michael Luhiye (supra) and Safari Anthony Mtelemko and Another (supra) held that since the assessors were availed an opportunity by the trial Judge to ask questions for clarification to the witnesses from both the prosecution and defence and they used that opportunity, then failure to tell them their roles before the commencement of the trial was not prejudicial to the appellant. We subscribe to that decision. In this case, we agree with both counsel that, indeed, it is clear from the record that at the commencement of the trial on 15/11/2021, three assessors who are Jenifa Mwanzaialila, Frida Ngwale and Rose Kitomo were selected. After their selection the appellants were asked if they had any objection to their participation and they did not object. However, there is nowhere in the record of appeal the trial Judge explained to them their roles before the trial commenced. Nevertheless, despite the fact that the assessors were not addressed their roles, they utilized the opportunity availed to them by asking questions for clarification as shown at pages 82

(PW1), 87 (PW2) 92 (PW3), 110 (PW5) 115 - 116 (PW.6) 120 (PW7) and 130 (PW1). This is an indication that they were well versed with their role during trial. Hence, we are of the considered view that, failure to explain their roles/ in the circumstances of this case did not prejudice the appellant. With regard to the second limb relating to the summing up to the assessors, as hinted earlier on, before the amendment of the law through the Written Laws (Miscellaneous Amendments) Act, 2022 (Act No. 1 of 2022), it was a mandatory requirement for all trials before the High Court, to be held with the aid of assessors as per section 265 of the GPA. Besides that, section 298 (1) of the same Act required the trial Judge to sum up the case to the assessors before they give their opinion. It states as follows: "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 of the assessors to state his opinion oraiiy as to the case generally and as to specific question of fact addressed to him by the Judge, and record the opinion." Much as the above cited provision may seem to have not been couched mandatorily, it has been a well-established principle

that the same is interpreted imperatively that the trial Judge has to comply with it. This stance was taken in many decisions including Bakari Selemani @ Binyo v. Republic, Criminal Appeal No. 12 of 2019 [2021] TZCA 100 (9 April 2021). What is gathered from section 289 of the CPA cited above is that, the trial Judge is supposed to summarize the evidence from both sides, to explain any specific questions of fact before the assessors are called upon to give their opinion. Apart from that, the trial Judge is also expected to explain the points of law involved in the evidence from both prosecution and defence sides. Fortunately, the steps to be complied with in trials conducted with the aid of assessors were stated by the Court in the case of Fadhili Yusufu Hamad v, The Director of Public Prosecutions, Criminal Appeal No. 129 of 2016 [2016] TZCA 2033 (6 December 2016) as follows: "The Court has to sum up to the assessors at the end o f submission o f both sides. The summing up to contain a summary o f 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

assessors any possible defences and explain to them the law regarding those defences." We have examined the record of appeal in view of the concurrent submissions from both learned counsel and we agree with them that the trial Judge did not comply with the steps outlined in the above cited authority. As was rightly submitted by both Mr. Mwamgiga and Mr. Mwakalinga, although the trial Judge discussed at length the issue of visual identification evidence, doctrine of recent possession and common intention in reaching to the conclusion of convicting the appellants, nothing was said in their relation in the summing up to the assessors. In other words the trial Judge did not explain to the assessors such vital points of law regarding the reliability or unreliability of such kind of evidence. What it entails the evidence of visual identifications in terms of its conditions for mounting a conviction such as light and its intensity, the time spent in observing the attackers, distance between the witness and the assailant, familiarity and many others were not stated. The conditions to be met in the doctrine of recent possession such as identification of the property found with the suspect and whether it was stolen recently and that if proved can implicate the suspect even on the offence of murder,

were not explained. Also, the ingredients of the doctrine of common intention such as the accused sharing with another person a common intention and pursue an unlawful purpose, were not explained to the assessors. Thus, it can be said that the summing up to assessors was not adequate to enable the assessors give an informed opinion. The East Africa Court Appeal grappled with a similar situation in the case of Washington Ocflndo v. Republic [1954] 21 EACA 392 and stated as follows: "The opinion o f assessors can be of great value and assistance to the trial Judge but only if they fully understand the facts o f the case 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 the assessors opinion is correspondingly reduced." See also: Frednand Kamande and 5 Others v. Director of Public Prosecutions, Criminal Appeal No. 390 of 2017 [2020] TZCA 161 (31 March 2020). Even in the case at hand, since the trial Judge failed to explain the vital points of law to the assessors, it means that, it denied them to give an informed opinion on those aspects. This 13

had the effect of vitiating the proceedings - See: Batram Nkwera (supra) and Benito Makombe v. Republic, Criminal Appeal No. 440 of 2019 [2021] TZCA 512 (23 September 2021). The effect of such infraction is to render the proceedings and resultant judgment a nullity and liable to be nullified. See: Hamis Basil v. Republic, Criminal Appeal No. 165 of 2017 [2018] TZCA 62 (20 July 2018). However, since this issue was raised in the ground of appeal, we find the ground of appeal to be merited and allow it. As to the way forward, Mr. Mwamgiga beseeched the Court to nullify the proceedings and resultant judgment and order for a fresh summing up. This proposition was conceded by Mr. Mwakalinga though he brought to the attention of the Court that the trial Judge who heard and determined this case is now a retired Judge. We have considered the proposition made by Mr. Mwamgiga and supported by Mr. Mwakalinga and we accede to their proposition. Consequently, we nullify the proceedings from the stage of summing up and the resultant judgment, quash the conviction and set aside the sentence. Further to that, in circumstances of this case, we think, the interest of justice 14

demands that we remit the case file to the trial court for a proper summing up by a predecessor Judge. For a voidance of doubt, we order that such summing up should be done expeditiously to at least two assessors who had the conduct of this matter. In the meantime, the appellants are to remain in custody awaiting for a fresh summing up. DATED at IRINGA this 5th day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 6th day of December, 2024 in the presence of the 1s t and 2n d Appellants in person and Mr. Sauli Makori, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 1 DEPUTY REGISTRAR i X^OURT OF APPEAL ■w