Magina Luhanga vs Republic (Criminal Appeal No. 467 of 2021) [2024] TZCA 1189 (4 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU, J.A., MWAMPASHI. J.A.. And FELESHI. J J U CRIMINAL APPEAL NO. 467 OF 2021 MAGINA LUHANGA .......................................................................... APPELLANT VERSUS THE REPUBLIC............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Maevekwa. J.) dated the 28th day of April, 2021 in Criminal Sessions Case No. 71 of 2016 JUDGMENT OF THE COURT 29h November & 4h December, 2024 KEREFU. J.A.: This appeal stems from the decision of the High Court of Tanzania at Mwanza sitting at Geita in Criminal Sessions Case No. 71 of 2016, where Magina Luhanga, the appellant herein together with two others, who are not parties to this appeal, were jointly charged with the offence of murder contrary to section 196 of the Penal Code, Cap. 16 of the Revised Laws. It was alleged that, on 3r d November, 2014 around 23:00 hours at Kenegere Village within Mbogwe District in Geita Region, the appellant murdered one Hollo Budeba (the deceased). The appellant i

pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to suffer death by hanging. In essence, the substance of the prosecution case as obtained from the record of appeal indicated that, the appellant and Tatu Juma (PW1) were husband and wife who celebrated their marriage in 2010. It was the testimony of PW1 that, during the subsistence of their marriage, they were blessed with two issues of marriage. PW1 stated further that, misunderstandings in their marriage life started in 2015, when the appellant started to accuse her for infidelity and claimed that the second child was not his. That, due to the said misunderstandings, in May, 2015, they separated and she went to live with her mother at Kanegela Village. PW1 went on to state that, on 3r d November, 2014, at 23:00 hours while asleep with her two children, she noted that the door at the main entrance was pushed. She woke up and sat on the bed. Suddenly, she saw the appellant, who was wearing a black coat, entering inside the room. She asked him what was the matter and why he came at that late hour. PW1 said, the appellant placed a bush knife on her neck and told her that he had no problem with her but had problems with her mother. It was the further testimony of PW1 that, she managed to identify the 2

appellant with the aid of a bright solar lights which was illuminating inside the room. PW1 stated further that, while still there with the appellant, two culprits, entered into her mother's room and she heard her mother asking them why was she being killed. Thus, the appellant went out and followed his friends. PW1 went to her mother's room and found her lying down while her neck was cut by a bush knife and one breast together with her private parts were amputated. She raised an alarm and neighbours together with other villagers came to the scene of crime. PW1 narrated the incident to them and she named the appellant as a suspect. Thereafter, the said villagers reported the matter to police. PW1 testified further that, she went to live with her uncle. While there, the appellant called her and demanded for his children and threatened to kill her. PW1 reported the matter at Masumbwe Police Station. On 14th November, 2015, PW1 communicated with the appellant through a mobile phone, then she notified the Police Officer and they headed to Kakola where they managed to arrest the appellant. Clement Shija (PW3), a neighbour and a Ward Chairperson of Kanegele Village, was among the people who responded to the alarm. He testified that, on 3rd November, 2014 night hours, while asleep at his house, he heard an alarm coming from the deceased's house. He went 3

to the scene of crime where he saw the deceased's body assaulted as one breast and her private parts were amputated. PW1 narrated the incident to him that, while asleep, abruptly, three people entered into her room and told her to remain silent as they had a problem with the deceased. PW3 stated further that, PW1 told him that she managed to identify the culprits with the aid of bright solar light and one of them was her husband. In his evidence, No. F.3827 D/SGT Justin (PW2), testified that, on 6th May, 2015 at 08:00 hours, while at his office, he was instructed to go to Kakola to meet PW1. PW2 called PW1 and they agreed to meet at Bugolama. Upon arriving at that place, PW2 saw PW1 with her two children accompanied by Police Officers from Mbugwe Police Station. PW1 told him that her mother was murdered by the appellant and they managed to arrest him. PW2 stated that, upon interrogation, the appellant admitted to have murdered the deceased with his two colleagues by using a bush knife and took some parts of her body to the traditional healer. Assistant Inspector, Samson Mswada Kalilo (PW5), the investigation officer testified that, he was involved in the investigation of the incident and visited the scene of crime on 4th November, 2014, in a company of other police officers, where they found villagers gathered

and the deceased's body was lying on the bed with several cut wounds. PW5 stated further that, he prepared a sketch map of the scene of crime and they started to search for the murderer. On 4th May, 2015, they communicated with PW1 and she told them that her life was in danger as her husband demanded for his children and threatened to kill her. PW5 advised PW1 to accept to meet with the appellant at Kakola. It was the testimony of PW5 that, on 6th May, 2014, they went to Kakola and arrested the appellant. PW5 interrogated the appellant and recorded his cautioned statement. The sketch map and the appellant's cautioned statement were admitted in evidence as exhibits P2 and P3 respectively. An autopsy on the deceased's body was conducted by Dr. Emmanuel Isaya (PW4), who concluded that the cause of death was severe bleeding due to huge cut wound on the neck. A postmortem report to that effect was admitted in evidence as exhibit PI. In his defence, the appellant admitted that PW1 was his wife and the deceased was his mother-in-law. That, they married in 2010 but later, they separated, as PW1 left him and went to live with one James. That, he begged her to come back, but PW1 refused. He contended that, on the fateful date he was at his home village taking care of his sick mother. However, later, he was arrested by the village leadership on the alleged murder incident, but he was, thereafter, set free, because he 5

was innocent. Subsequently, he received a phone call from his wife asking him to pick her at the bus stand. Upon reaching there, he was suddenly, arrested and brought to Bugalama Police Station. He thus, completely dissociated himself from the accusations levelled against him. He also repudiated exhibit P3 alleging that he was tortured and forced to sign it. At the end of the trial, the learned trial Judge summed up the case to the assessors who sat with her at the trial. In response, the assessors unanimously returned a verdict of guilty against the appellant. Having concurred with them, the learned trial Judge found that the case against the appellant was proved to the required standard. Specifically, the learned trial Judge places much reliance on the visual identification of the appellant at the scene of crime by PW1. She also found that the appellant was familiar with PW1 who also identified him by voice. Thus, the appellant was convicted and sentenced as indicated above. Aggrieved by both, the conviction and sentence, the appellant has come to this Court challenging the decision of the High Court. It is noteworthy that on 7th September, 2021, the appellant lodged a memorandum of appeal comprising six grounds of appeal. However, on 20th November, 2024, Mr. Emmanuel M. John, learned counsel who was assigned to represent him, lodged a supplementary memorandum of 6

appeal with the following grounds of complaint; one, that, the prosecution witnesses were incredible and unreliable as their evidence was tainted with contradictions; two, the visual identification of the appellant by PW1 at the scene of crime was not watertight to eliminate all possibilities of mistaken identity; three, the appellant's cautioned statement (exhibit P3) was improperly admitted in evidence; four, failure by the prosecution to conduct forensic analysis of the alleged mobile phone communication between PW1 and the appellant; five, the learned trial Judge improperly applied the principle of voice identification; and, finally, the whole trial court decision is against the law and the evidence on the record. At the hearing of the appeal, Mr. John prayed to abandon the original memorandum of appeal and intimated that he would argue grounds of appeal indicated in the supplementary memorandum of appeal starting with the grounds of appeal which touches on procedural irregularities. On the adversary side, the respondent Republic was represented by Ms. Verediana Peter Mlenza, learned Senior State Attorney who, at the outset, declared the stance of the respondent of opposing the appeal. She also intimated that she would respond to the grounds of appeal as proposed by her learned friend.

We shall therefore determine the grounds of appeal, in the same manner proposed by the learned counsel for the parties and related grounds will be determined conjointly. However, before doing so, it is crucial to state that, this being the first appeal, it is in the form of a re hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at its own conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336. Starting with the third ground of appeal on procedural irregularities, Mr. John faulted the procedure adopted by the learned trial Judge in admitting the appellant's cautioned statement (exhibit P3). To clarify on his point, he referred us to pages 43 to 46 of the record of appeal and argued that, when the said statement was tendered by PW5, the learned counsel for the appellant objected to its admissibility on two grounds (i) that it was recorded contrary to section 58 (2) (a) and (b) of the Criminal Procedure Act, Cap. 20 (the CPA) and (ii) that, it was involuntarily recorded. That, the learned trial Judge after resolving the first point, she admitted the said statement as exhibit P3 without resolving the issue of voluntariness. He contended that, the said procedure was improper, because the learned trial Judge was required to conduct a trial within trial to determine the issue of voluntariness 8

raised by the appellant before admitting the said statement into evidence. As such, Mr. John also urged us to expunge exhibit P3 from the record. Still on the procedural irregularities and upon being probed as to whether the evidence of PW2 and PW4 were properly received in evidence, Mr. John, referred us to pages 12 and 13 of the record of appeal and argued that the evidence of the said witnesses was improperly received in evidence as they were not among the witnesses listed by the prosecution during committal proceedings, that would be called to testify at the trial and therefore, the substance of their statements were not read over to the appellant. As such, the prosecution was required to comply with the mandatory requirement of section 289 (1), (2) and (3) of the CPA which empowers the trial court to receive additional witnesses and evidence which was not listed and read out during committal, if a reasonable notice, in writing, is given to the accused or his advocate. He added that, although in this case two notices to call additional witnesses were issued on 19th and 22n d April, 2021 respectively, the said notices were not in respect of PW2 and PW4. As such, Mr. John urged us to expunge the evidence of PW2 and PW4 from the record. 9

Again, having been probed on the procedure adopted by the learned trial Judge to admit exhibits PI and P2, Mr. John referred us to page 19 of the record of appeal and argued that the said exhibits were improperly admitted in evidence as the appellant and his advocate were not addressed on the same. He therefore, also urged us to expunge the said exhibits from the record. In her response, Ms. Mlenza, readily conceded that the evidence of PW2 and PW4 were improperly admitted in evidence contrary to the mandatory requirements of section 289 (1) of the CPA. She thus, also urged us to expunge the said evidence from the record. As for exhibits PI and P2, although, she also readily conceded that the procedure was not followed and that the appellant and his advocate were not addressed on the same, she decided to leave the matter to the Court. On the exhibit P3, Ms. Mlenza challenged the submission made by Mr. John by referring us to page 45 of the record of appeal and argued that, the appellant's counsel having withdrawn the point of objection relating to the appellant's voluntariness to record the said statement, it was not necessary for the learned trial Judge to conduct a trial within trial. As such, she urged us to find that exhibit P3 was properly admitted in evidence. 10

Having perused the record of appeal, we agree with both learned counsel for the parties that the evidence of PW2 and PW4 were improperly admitted in evidence contrary to the mandatory requirements of section 289 (1) of the CPA as, indeed, the record of appeal bears it out at page 12 to 13 that the said witnesses were not among the witnesses listed by the prosecution during committal proceedings, that would be called to testify at the trial and therefore, the substance of their statements were not read over to the appellant. We thus, outrightly, expunge their evidence from the record. As for exhibits PI and P2, having perused the record of appeal together with the original record, we agree with Mr. John that the said exhibits were as well improperly admitted in evidence as the appellant and his counsel were not addressed on the same. As such, the said exhibits are liable to be expunged as we hereby do. Regarding exhibit P3, it is on record, and as correctly argued by Ms. Mlenza that, after the learned counsel prayed to withdraw the objection related to the appellant's voluntariness to record that statement, it was not necessary for the learned trial Judge to conduct a trial within trial. However, it is also on record, that, in her ruling, although, the learned trial Judge sustained the first objection raised by the appellant to the effect that the said statement was recorded contrary l i

to the mandatory requirements of section 58 (2) and (3) of the CPA, she went ahead and admitted the said statement under section 169 of the CPA on grounds of public interest and seriousness of the offence without examining on how the appellant will be prejudiced and or balancing the interest of the appellant. The law is well settled on admissibility of a confessional statement of an accused person that it must comply with the mandatory requirement of the law. See for instance the cases of Emanuel Malabya v. Republic, Criminal Appeal No. 212 of 2004 (unreported) and Mbuzi Lushona @ Mwangaiki & 2 Others v. Republic, Criminal Appeal No. 159 of 2022 [2024] TZCA 964: [4 October 2024: TanzLII]. Specifically, in the former case, when faced with an akin situation, the Court reiterated the requirement to observe the law while recording statements of suspects thus: "The violation o f section 50 is fatal, and we are o f the opinion that section 53 and 58 are on the same plane. These provisions safeguard the human rights o f suspects, and they should therefore not be taken lightly or as mere technicalities. We therefore expunge exhibit PI". Similarly in this appeal, since the finding of the learned trial Judge was to the effect that exhibit P3 was recorded contrary to the mandatory requirement of section 58 (2) and (3) of the CPA, she was required to 12

decide in favour of the appellant. We are mindful of the fact that, in invoking the provisions of section 169 of the CPA, the court, among other things, take into account the circumstances of the case, high public interest, seriousness of the offence and complication in the investigation of the matter. Therefore, and taking into account that, in the instant appeal, there is nothing exhibited to indicate that the investigation was complicated, we are satisfied that the application of section 196 of the CPA, in the circumstances, was unnecessary and not justified. That said, we also expunge exhibit P3 from the record. Now, the next question is whether after expunging the evidence of PW2 and PW4 together with exhibits PI, P2 and P3 there is sufficient evidence on record to ground conviction of the appellant. Determination of this issue, brings us to the second and fifth grounds on the visual and voice identification of the appellant at the scene of the crime. On these grounds, Mr. John argued that the visual identification of the appellant at the scene, which was relied upon by the trial court to convict him was not watertight to avoid any mistaken identity. He argued that PW1, the only prosecution's eye witness at the scene of crime, though she testified that she managed to recognize the appellant with the aid of solar light, she did not explain its intensity, the size of the room illuminated by the said light and the duration of the incident. He 13

added that, PW1 did not give proper descriptions of the appellant, such as his physique and any special marks or symbols which enabled her to identify him. He contended that, since the incident happened at night under unfavorable conditions, including the terrifying situation obtained at the scene, all conditions of visual identification stated in the case of Waziri Amani v. Republic, [1980] TLR 250 ought to have been met. Referring to the case of Mkwavi Njeti v. Republic, Criminal Appeal No. 301 of 2015 [2016] TZCA 693: [25 July 2016: TanzLII], Mr. John also faulted the learned trial Judge for having relied on voice identification evidence of PW1 without cautioning herself on the possibility for another person to have imitated the appellant's voice. To support his proposition, he also cited the cases of Kurubone Bagirigwa & 3 Others v. Republic, Criminal Appeal No. 132 of 2015 [2016] TZCA 272: [28 October 2016: TanzLII] and Banzi John v. Republic, Criminal Appeal No. 644 of 2021 [2023] TZCA 207: [27 April 2023: TanzLII]. The learned counsel casted further doubt on the credibility of PW1 on how the appellant entered at the scene of crime. He refereed us to page 28 of the record of appeal and argued that, during examination in chief, PW1 testified that, on the fateful date, she saw the appellant, who was wearing a black coat, entering inside her room. While there, the two 14

culprits entered her mother's room and she heard her mother asking them why are they killing her, then the appellant went out and followed his friends. However, during cross examination, at page 30 of the same record, she stated that three people entered into the house and two, entered her bedroom. Again, PW3 at page 36 of the same record, testified that, PW1 told him that, on that fateful night, three people entered her room. It was the argument of Mr. John that, since PW1 gave different versions of her testimonies, the learned trial Judge should have addressed these issues before relying on her evidence, as it is even not clear as who exactly invaded the deceased's house and or entered into PWl's room. He then contended that, since the testimony of PW1, the only prosecution eye witness, was weak on the visual identification of the appellant at the scene of crime, the remaining evidence could not have any weight to corroborate it. In conclusion, and on the basis of the pointed shortcomings in receiving the evidence of PW2 and PW4 and admitting exhibits PI, P2, P3 together with the unreliable visual and voice identification evidence by PW1, Mr. John urged us to allow the appeal, quash the conviction and set aside the sentence imposed against the appellant and release him from the prison. In her response, Ms. Mlenza argued that the visual identification of the appellant at the scene of crime was watertight. She argued that in 15

her evidence, PW1 testified that she recognized the appellant as her husband whom they lived together for four years. That, the said fact was admitted by the appellant during his defence evidence. As for the intensity of the solar light which assisted PW1 to identify the appellant, she referred us to page 28 of the record of appeal and argued that, PW1 clearly stated that there was bright solar light. She however, insisted that, since PW1 and the appellant were familiar to each other prior to the incident, there was no need to comply with all the conditions for visual identification. According to her, the said conditions are only strictly applicable in cases where the person who is being identified is a stranger to the respective witness. To support her argument, she cited the case of Mohamed Jumanne v. Republic, Criminal Appeal No. 569 of 2021 [2024] TZCA 526: [8 July 2024: TanzLII]. On that basis, the learned Senior State Attorney urged us to dismiss the appeal for lack of merit. In a brief rejoinder, Mr. John insisted that even in identification by recognition, all conditions of visual identification must be complied with to eliminate any mistaken identity. He then, reiterated his earlier submission and once, again, prayed for the appellant's appeal to be allowed. Having considered the submissions made by the learned counsel for the parties on the second and fifth grounds, the main issue for our 16

determination is the sufficiency or otherwise of the evidence of visual and voice identification by PW1 acted upon by the learned trial Judge to convict the appellant. We wish to point out at the outset that, it is trite law that for evidence of visual identification to be acted upon by the court to ground a conviction, the same must be watertight to eliminate all possibilities of mistaken identity. In the case of Waziri Amani (supra), the Court gave the word of caution at pages 251 - 252, that: "...evidence o f visual identification, as Courts in East Africa and England have warned in a number o f cases, is o f the weakest kind and most unreliable. It follows therefore, that no court should act on evidence o f visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight". [Emphasis added]. In addition, in the case of Taiko Lengei v Republic, Criminal Appeal No. 131 of 2014 (unreported) the Court, while citing the erstwhile East African Court of Appeal in Mohamed Alhui v. Rex (1942) 9 E.A.C.A 72, emphasized that: 17

"In every case in which there is a question as to the identity o f the accused, the fact o f there having been a description given and the terms o f that description given are matters o f the highest importance o f which evidence ought always to be given: first o f aii, o f course, by the persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given". Now, in the case at hand, it is on record, and as correctly argued by both learned counsel for the parties that, in convicting the appellant, the learned trial Judge relied mostly on the visual and voice identification evidence by PW1, the only prosecution eye witnesses at the scene of crime. This can be evidenced at page 153 of the record of appeal, where the learned trial Judge stated that: "...In the instant case, since the conditions o f identification was favourable and PW1 recognized her husband, she saw him but also, she identified him by voice. Therefore, the question o f corroboration does not arise. I am satisfied that PW1 was a truthful witness." In his submission, Mr. John faulted the above finding by arguing that the visual identification of the appellant by PW1 at the scene of crime was not watertight on account of failure by PW1 to meet the 18

conditions of visual identification stipulated in the above cases. He also added that PW1 was incredible and unreliable witness. On her part, Ms. Mlenza argued that PW1 was credible witness and the visual identification of the appellant at the scene of crime was watertight. There is no doubt that the assessment of credibility of witnesses in so far as demeanour is concerned is the monopoly of the trial court. However, as the first appellate court we can as well look into the consistency of witnesses in their testimonies and make our own findings. In Shabani Daud v. Republic, Criminal Appeal No. 28 of 2001 (unreported) the Court stated that: "The credibility o f a witness can also be determined in other two ways that is, one, by assessing the coherence o f the testimony o f the witness, and two, when the testimony o f the witness is considered in relation to the evidence o f other witnesses..." . Therefore, to ascertain the above appellant's complaint on the PWl's credibility, we have revisited her evidence found at page 28 of the record of appeal where she testified that: "On 03/11/2014 at 23:00 hours, I was asleep inside with my children...There was a solar light...then the main door was pushed. I sat on my bed. Then, Magina came inside my room. I 19

asked him why he came during late hour; he placed a bush knife on my neck. Thelight was bright, wearing a black coat, he was my husband. He told me that he has no any problem with me but had a problem with my mother. The two culprits entered into my mother's room and I heard an alarm my mother said 'why are you killing me'? Then , he went out and followed his friend". Then, at page 30, upon being cross examined, PW1 testified that, "7 said that, 3 people entered into the house. Magina was standing at my bedroom door and his fellows were behind him. In my statement, I said two people entered into my bedroom...I did not say that he was wearing black coat". Again, PW3, at page 36 of the same record testified that: "...Then, I stated to interview Tatu Juma, the deceased daughter. I asked her how the incident occurred. She told me that they were asleep and 3 people entered into her room and told her to remain silent". From the above excerpts, it is clear to us that, PW1 was incredible and unreliable witness as she gave different versions of her story which are irreconcilable, thus raising a reasonable doubt. That, initially, she 20

said it was only the appellant who entered her room, then during cross examination she stated that, three people entered inside her room, while PW3 stated that, PW1 told him that three people entered her room. It is also clear that, PW1 did not witness the act of the appellant attacking and or killing the deceased. As correctly argued by Mr. John, from the evidence of PW1, it is even not clear as who exactly invaded the deceased's house and or entered into the PWl's room. It is also not in dispute that the incident occurred at night under un-favourable condition and PW1, the only prosecution eye witness at the scene of crime, apart from testifying that she recognized the appellant through a bright solar light, she did not state the size of the room illuminated by the said light, where the said solar light was placed and the time spent for that incident. Worse still, apart from stating that the appellant was wearing a black coat, which she later, during cross examination denied, PW1 did not describe the physique of appellant and any special marks or symbols which enabled her to identify him. In our considered view, all these were important aspects to be explained by PW1 to ensure that there was a favorable condition which enabled her to properly identify the appellant. We are mindful that, in her submission Ms. Mlenza argued that, since the appellant and PW1 were familiar to each other prior to the 21

incident, there was no need to comply with all the conditions for visual identification. We agree with her on that principle that recognition is more reliable than identification of a stranger, however, the same does not eliminate the possibility of a mistaken identity. In the case of Shamir John v. Republic, Criminal Appeal No. 166 of 2004 (unreported), we emphasized that: - "...recognition may be more reliable than identification o f a stranger, but even when the witness is purporting to recognize someone whom he knows, the Court should always be aware that mistakes in recognition o f those relative and friends are sometimes made". We are further fortified with our decision in Mabula Makoye & Another v. Republic, Criminal Appeal No. 227 of 2017 [2020] TZCA 1762: [28 August 2020: TanzLII] in which we quoted the case of Boniface Siwingwa v. Republic, Criminal Appeal No. 421 of 2007 [2010] TZCA 108: [21 July 2010: TanzLII] where being faced with an akin situation, we stated that - "Though familiarity is one o f the factors to be taken into consideration in deciding whether or not a witness identified the assailant, we are o f the considered opinion that where it is shown, as in this case that conditions for 22

identification are not conducive, then, familiarity aione is not enough to rely to ground a conviction. The witness must give details as to how he identified the assailant at the scene o f crime as the witness might be honest but mistaken [Emphasis added]. We are also aware that, in her decision, the learned trial Judge also relied on the voice identification by PW1. We haste the remark that, the law is settled that identification by voice is equally evidence of the weakest kind - see Nuhu Selemani v. Republic [1984] T.L.R 93 and Mkwavi Njeti (supra). In the circumstances, and considering the credibility of PW1, we do not find it safe to hold that the identification of the appellant at the scene of crime was watertight. On the basis of the reasons stated above, we are of the settled view that, had the learned trial Judge properly scrutinized the evidence of PW1 which was the only evidence of identification of the appellant, would have found that such evidence was not watertight. In the circumstances, we agree with Mr. John that the appellants' conviction was based on insufficient evidence of visual and voice identification. As such, we find merit in the second and fifth grounds of appeal.

Since the findings on the above grounds suffice to dispose of the appeal, the need for considering the other remaining grounds of appeal does not arise. In the event, we allow the appeal. The conviction of the appellant is hereby quashed and the sentence imposed on him is hereby set aside. Consequently, we order for immediate release of the appellant from prison unless he is being held for some other lawful causes. DATED at MWANZA this 3rd day of December, 2024. R. J. KEREFU The Judgment delivered this 4th day of December, 2024 in the presence of Mr. Sileo Mazula, learned State Attorney for the Respondent/Republic, also holding brief for Mr. Emmanuel John, learned co . ....................................... " " ' 1 opy of the original. JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL 24