Itozya Amos @ John Teru vs Republic (Criminal Appeal No. 162 of 2021) [2024] TZCA 1181 (3 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CRIMINAL APPEAL N0.162 OF 2021 (-CQRAM: KEREFU, J.A., MWAMPASHI, J. A. And FELESHI. J.A .^ 1 ITOZYA AMOS @ JOHN TERU. ..........................................APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Tiqanqa, J.^ dated the 23r d day of November, 2020 in Criminal Sessions Case No. 36 of 2017 JUDGMENT OF THE COURT 23h November & J d December, 2024 MWAMPASHI. J.A.: In Criminal Sessions Case No. 36 of 2017, before the High Court of Tanzania, Mwanza District Registry, sitting at Musoma (the trial court), Itozya Amos @John Teru, the appellant herein, was charged and convicted of murder contrary to section 196 of the Penal Code [Cap. 16 R.E. 2002; now R.E. 2022] (the Penal Code). Initially, the appellant was jointly charged with two others who, before the trial court, appeared as 2n d and 3r d accused persons, and who were, however, acquitted.

It was alleged by the prosecution that, on 15.07.2013 at Rwanga Village within the District of Butiama in Mara Region, the appellant, jointly and together with the other two accused persons, murdered one Magina s/o Simon (the deceased). The appellant and his colleagues pleaded not guilty to the charge. However, after a full trial, it was only the appellant who was found guilty, convicted and condemned to suffer the mandatory death sentence, hence the instant appeal. In order to appreciate the facts giving rise to the charge before the trial court and subsequently, to the instant appeal, we find it apt to give a brief background of the case as follows: The deceased was a driver dealing in motorcycle ( bodaboda ) hire business. At the material time and for purposes of the said business, the deceased had been entrusted a motorcycle with Reg. No. T 278 BUY, belonging to one Bwire Manyama Magoti (PW7). According to Simon Mgonya (PW5), the deceased was his son. He had his own house close to PW5's house. On 15.07.2013 at about 01:00 hours, the door to the deceased's house was broken by robbers. Upon getting out of his house he saw three persons he could not identify. He attempted to confront them but he was chased away. After a short while, he came back to the scene with his younger son one Stanslaus Simon, only to see the three robbers getting away with a motorcycle. When he entered in the deceased's house he found the deceased on the 2

ground bleeding profusely from the cut wounds inflicted on his head. Efforts to rush him to the hospital proved futile. He succumbed to his horrible death. On 17.10.2013, the 2n d and 3r d accused persons were arrested by villagers for stealing millet and were handed over to the Nyabilongo Village Executive Officer (PW1) who kept them under restraint till on the next day when he handed them to the Assistant OC-CID of Tarime, one Twaha Zuberi (PW6). In the course of collecting the 2n d and 3r d accused persons from PW1, someone tipped off PW6 that the 3r d accused person had, in his house, a motorcycle suspected to had been stollen. The 3r d accused person's house was, thus, searched in the presence of PW1 and the motorcycle with Registration No. T 278 BUY, was found. The motorcycle was properly identified by PW7 as the same motorcycle which was stollen from the deceased on the fateful night. The 3rdaccused person claimed to had bought it from the 2n d accused person. On his part, the 2n d accused person said he had bought it for the 3r d accused person from the appellant and one Kake Marwa Sereli. There was also the cautioned statement (Exhibit P2) which was recorded by D/Sgt Harison Sambo (PW3) of Tarime Police Station on 21.09.2013, by which the appellant allegedly admitted to have participated in the robbery that culminated in the death of the deceased. 3

In his defence, the appellant reiterated his denial to have committed the murder of the deceased. He even denied to have known the 2n d and 3rd accused persons let alone to have sold the motorcycle to them. He claimed that he was arrested for fighting with a certain police officer and also that he was tortured and forced to sign the cautioned statement. Basing on the appellant's cautioned statement (Exhibit P2), and having satisfied itself that the 2n d accused bought the motorcycle (Exhibit P8) from the appellant, the trial court found the appellant guilty as charged, convicted and sentenced him to suffer death by hanging. Aggrieved, the appellant has preferred the instant appeal. In support of the appeal, the appellant filed two memoranda of appeal. The substantive memorandum of appeal comprising 8 grounds of appeal was filed on 30.04.2021 while the supplementary memorandum of appeal filed on 18.11.2024 was comprised of the following 4 grounds of appeal:

1. That, the honourable trial Judge erred in law in convicting and sentencing the appellant relying on the appellant's cautioned statement (Exh.P2) which was irregularly and/or illegally recorded and wrongly admitted in evidence.
2. That, the honourable trial Judge erred in law in convicting and sentencing the appellant relying on the appellant's

uncorroborated confessional statement (Exh.P3) which was repudiated by the appellant at the trial. 3. That, the honourable trial Judge erred in law for failure to properly evaluate and analyse the facts o f the case and the evidence adduced at the trial with the resultant o f unjust conviction and sentence o f the appellant. 4. That, the honourable trial Judge erred in law for failure to hold that the prosecution failed to adduce cogent and watertight evidence to prove the case against the appellant beyond reasonable doubt as imperatively required by the law. When the appeal was called on for hearing before us, the appellant had the services of Mr. Mashaka Fadhili Tuguta, learned advocate whereas the respondent Republic, was represented by Mr. Joseph Mauggo, learned Principal State Attorney. Upon taking the floor, Mr. Tuguta abandoned the grounds of appeal raised in the substantive memorandum of appeal except the fifth ground which is to the effect that, the memorandum o f undisputed facts in the preliminary hearing was not read over to the appellant. He then combined grounds 2, 3 and 4 from the supplementary memorandum of appeal and argued them conjointly capitalising on the complaint that the case against the appellant was not proved beyond reasonable doubt. He submitted that the evidence from the 8 prosecution witnesses did not prove the case against the appellant to the hilt as required by the law. At this point, we 5

drew the attention of Mr. Tuguta to the fact that, according to the record of appeal, out of 8 prosecution witnesses who testified before the trial court, it was only 3 of them whose names were listed in terms of section 247 of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the CPA) at the committal proceedings. We thus, earnestly directed him that in reviewing the evidence from the 8 prosecution witnesses to substantiate his stance that the case against the appellant was not proved to the hilt, he should also consider the raised issue regarding the evidence of the witnesses who were not included in the list of the Director of Public Prosecutions (the DPP) as prospective witnesses. Further, to be considered, was the fact that out of 8 prosecution witnesses at the trial, it was only 3 witnesses whose statements and the substance of their evidence was read out and explained to the appellant in compliance with section 246 (2) of the CPA. Having been so prompted, Mr. Tuguta submitted that according to the committal proceedings, as evidenced at page 34 of the record of appeal, the DPP gave only 4 names of the witnesses he intended to call at the trial and whose statements and substance of their respective evidence was read out and explained to the appellant. However, at the trial, the prosecution paraded PW2, PW3, PW4, PW6 and PW8 who were not listed as the DPP's intended witnesses and whose statements and substance of their evidence was not read out and explained to the 6

appellant at the committal proceedings, it was argued by Mr. Tuguta. He further submitted that, the said 5 witnesses were called to testify for the prosecution without the DPP having first issued and served the requisite notice as required by section 289 (1) and (2) of the CPA. It was thus, contended by Mr. Tuguta that, since the evidence of PW2, PW3, PW4, PW6 and PW8 was irregularly received, then the same should be expunged from the record. He also argued that as the conviction by the trial court was based on the evidence given by the said 5 witnesses and on the appellant's cautioned statement (Exhibit P2) which was recorded and tendered in evidence by PW3 which, under the circumstances, cannot be saved, the remaining evidence by PW1, PW5 and PW7 is insufficient and cannot support the conviction. Mr. Tuguta, thus, without venturing into other grounds of appeal, prayed for the appeal to be allowed solely on the ground that the case against the appellant was not proved beyond reasonable doubt as required by the law. Without beating around the bush, Mr. Mauggo associated himself with the submissions made by Mr. Tuguta. He conceded that the evidence of the 5 prosecution witnesses was received in contravention of the law thus, liable to be expunged from the record. That being the case, Mr. 7

Muggo agreed with Mr. Tuguta that the case against the appellant was not proved to the hilt and he thus, urged us to allow the appeal. In our consideration of the above raised issue, we propose to first reproduce sections 246 (2), 247 and 289 (1) all of the CPA, which are the relevant provisions of the law in as far as the issue of the propriety and admissibility of the evidence given by PW2, PW3, PW4, PW6 and PW8 is concerned. It is provided under section 246 (2) of the CPA that: "Upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accused person the information brought against him as well as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to call at the trial" [Emphasis added) Then section 247 of the CPA provides that: "Immediately after complying with the provisions o f sections 245 and 246, the court shall make a list o f all witnesses whom the Director o f Public Prosecutions intends to call and shall ask the accused person whether he intends to call witnesses at the trial and, if so, whether he desires to give their names and addresses so that they may be summoned and if 8

he does the court shall record the names and addresses o f the witnesses whom the accused person mentions [Emphasis added] Further, it is provided under section 289 (1) of the CPA that: "No witness whose statement or substance o f his evidence was not read at the committal proceedings, shall be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate o f the intention to call such a witness". The above reproduced provisions of the law are clear. It is the duty of the committing court to read out and explain to the accused person the statements or substance of the evidence of witnesses whom the prosecution intends to call at the trial. Further, a list of all witnesses whom the prosecution intends to call at the trial should be made by the committing court. Where there is a witness to be called by the prosecution whose statement and the substance of the evidence was not read out and explained to the accused person at the committal proceedings as required by section 246 (2) of the CPA or where his name was not listed in terms of section 247 of the CPA, such a witness cannot be called upon by the prosecution to testify at the trial unless a reasonable notice to call him as 9

such has been given to the accused person or his davocate in terms of section 289 (1) of the CPA. In the instant case and as rightly submitted by the counsel for the parties, it is crystal clear from the record of appeal at pages 33 to 38 covering the committal proceedings, that the only 4 names of the intended prosecution witnesses which were listed are of Bwire Manyama (PW7), Simon Mgonya (PW5), Paulo Mnyasa (who did not testify) and Alex Mniko (PW1). These 4 persons are whose statements and substance of their respective evidence was read out and explained to the appellant in terms of section 246 (2) of the CPA. Neither did the DPP include in the list of the intended witnesses the names of ACP Hassan Maya Omari (PW2), Harrison Sambo (PW3), D/Stg. Rabiel (PW4), Twaha Zuberi (PW6) and WP. 3639 CpI. Flora (PW8) as required by section 247 of the CPA, nor were their statements and the substance of their respective evidence read out and explained to the appellant in terms of section 246 (2) of the CPA. There is also no denying that the prosecution did not give notice to the appellant or his advocate in writing to have the above 5 witnesses called as additional witnesses in terms of section 289 (1) of the CPA. That being the case, in the absence of the required notice to the appellant or his advocate, it was wrong for the trial court to allow the 5 witnesses to testify at the trial while their respective statements and the substance of 10

their evidence were not read out and explained to the appellant at the committal proceedings. The reception of the evidence of the said 5 prosecution witnesses was received contrary to section 289 of the CPA. In the case of Hamisi Maure v. R [1993] T.L.R. 213 where the Court was confronted by an akin scenario, it was observed that: "It having been accepted by the prosecution and the Judge himself that PW2 did not feature in the record o f committal proceedings, he should have not been allowed to give evidence in contravention o f the provisions o f section 289 which are mandatory". As to what is the consequence of the evidence given in violation of sections 246 (2) and 289 (1) of the CPA, the law is settled. The evidence taken in contravention of the said provisions of the law is liable to be expunged from the record. See- Samwel Henry Juma v. Republic (Criminal Appeal No. 211 of 2011) [2016] TZCA 813 (9 May 2016;TanzLII), Alfan Apolinary @ Kyalubota & Others v. Republic (Criminal Appeal No. 164 of 2021) [2023] TZCA 17579 (31 August 2023; TanzLII) and Elias Mtali @Ibichi v. Republic (Criminal Appeal No. 65 of 2014) [2014] TZCA 2152 (14 August 2014;TanzLII). Based on the foregoing settled position of the law, the evidence given by PW2, PW3, PW4, PW6 and PW8 which, as we have amply

demonstrated above, was received in contravention of the law, is accordingly expunged from the record. The evidence of PW2, PW3, PW4, PW6 and PW8 having been expunged from the record, the imminent question becomes whether the remaining prosecution evidence, that is, of PW1, PW5 and PW7 is sufficient to support the charge of murder against the appellant. Both learned counsel for the parties were at one that the remaining evidence is insufficient and cannot support the conviction. We entirely agree with them. The evidence given by PW1 does not link the appellant to the murder in question, in any way. His evidence was just to the effect that he kept the 2n d and 3r d accused persons under restraint till on the next day when they were collected by PW2 who searched the 3rd accused person's house wherein the motorcycle was found. PW5's evidence was merely that, in the fateful night when his son (the deceased) was murdered, he saw three persons he could not identify getting away from the deceased's house with the motorcycle. Lastly, it is the evidence from the owner of the motorcycle (Exhibit P8) PW7, whose evidence was to the effect that the motorcycle belonged to him. As we have alluded to above, in totality, the evidence of the remaining three prosecution witnesses is insufficient to warrant the conviction of the appellant of the offence of murder. 12

In fine and for the above given reasons, we find the appeal meritorious. The case against the appellant was not proved beyond reasonable doubt. The appeal is thus, allowed, the appellant's conviction quashed and the sentence imposed on him set aside. It is ordered that the appellant be set free forthwith unless he is otherwise lawfully held. DATED at MWANZA this 2n d day of December, 2024. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 3rd day of December, 2024 in the presence of Mr. Mashaka Fadhili Tuguta, learned counsel for the Appellant and Mr. Mahembega Mtiro, learned State Attorneys for the Respondent, is hereby certified as a true copy of the original.