Maswi Nchama vs Republic (Criminal Appeal No. 466 of 2021) [2024] TZCA 1159 (29 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU, J.A., MWAMPASHI, J.A. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 466 OF 2021 MASWI NCHAMA............................................................................. APPELLANT VERSUS THE REPUBLIC ............................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Rumanvika. J.) dated the 25th day of March, 2021 in Criminal Sessions Case No. 63 of 2016 JUDGMENT OF THE COURT 2&h & 29h November, 2024 KEREFU, J.A.: The appellant herein, was arraigned before the High Court of Tanzania at Mwanza sitting at Geita for the offence of murder contrary to section 196 of the Penal Code, Cap. 16 of the Revised Laws, in Criminal Sessions Case No. 63 of 2016. The information laid by the prosecution alleged that, on 29th January, 2014 at night hours, at Nyantimba Village within Chato District in Geita Region, the appellant murdered one Mashinga Munubwa (the deceased). The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to suffer death by hanging.

Before embarking on the merits and or demerits of the appeal, we find it apposite, albeit briefly, to give sequence of events leading to the arraignment and conviction of the appellant, as obtained from the record of appeal. They go thus: on 30th January 2014, Mashaka Kwileka (PW5), a petty businessman, sold his motorcycle with Registration No. T. 820 CHQ Make SUNLG, red in colour to the deceased at the purchase price of TZS 1,400,000.00. However, the deceased paid only an advance money at the tune of TZS 1,000,000.00. It was the testimony of PW5 that, a moment later, around 09:00 hours, he learnt that the said motorcycle went missing and it was later found in the possession of the appellant. The evidence of PW5 was supported by Matalisi Kalugila (PW1) who testified that, on 29th January 2014, it transpired that the appellant, while holding a panga, was seen in a company of the deceased. PW1 stated further that, in the next day, i.e 30th January, 2014, he saw the appellant riding a motorcycle and unfortunately, he fell down and the motorcycle overturned. While in the process of rescuing him, PW1 suspected the genuineness of the motorcycle's switching system and the fuel tank, as they seemed to have been tempered with. According to PW1, the appellant told him that the motorcycle belonged to one Yemuga who, by that particular time, his whereabout was unknown. PW1 stated further that the appellant asked for assistance as he was

worried to be killed by miners and he offered TZS 500,000.00 to PW1 while assured him that there was no way the said Yemuga could be traced. PW1 went on to state that, based on the said suspicions, he could not heed to the appellant's prayer and, instead, he took him together with the said motorcycle to Runazi Police Post. The narration by PW1 was supported by Isa Tosha (PW2) who added that, later, on the same day, it was reported that the body of the deceased was found abandoned in a pit with a big cut wound in the neck. In his testimony, D. 7494 SSGT Sylivanus (PW6), testified that, on 10th March, 2014, he received a motorcycle at the police station from one E. 980 CPL Abdu of the RCO's office and he registered it in the Exhibit Register. The said Register was admitted in evidence as exhibit P3 and the motorcycle as exhibit P4. No. E. 7986 D/CPL Ilinga (PW3), testified that he was involved in the investigation of the incident. That, on 30th January, 2014, he visited the scene of crime where they found the body of the deceased abandoned inside the pit with a fresh cut wound in the neck. PW3 prepared a sketch map of the scene of crime which was admitted in evidence as exhibit PI.

An autopsy on the deceased's body was conducted by Dr. Eustadius Kweyamba (PW4), who concluded that the cause of death was severe bleeding due to huge cut wound on the left side of the neck. A postmortem report to that effect was admitted in evidence as exhibit P2. No. F. 1251 D/SGT Majani (PW7), testified that, he was among the police officers who went to the scene of the crime and recorded the statement of CPL Jackson of Runazi Police Post. The said statement was tendered under section 34B of the Evidence Act, Cap. 6 (the Evidence Act) as CPL Jackson was reported to be unable to talk due to stroke attack and it was admitted in evidence as exhibit P5. In his defence, the appellant admitted that he knew the deceased as a bodaboda rider and that, on 29th January, 2014 he met him at the bar where they stayed from 10:00 hours to 03:00 hours, only sadly later, he learnt about his death. The appellant also admitted to have been arrested by PW1 with a motorcycle when he got accident at Isambala, but he contended that, the said motorcycle was not the one belonged to the deceased. He thus, completely dissociated himself from the accusations levelled against him and it was his further defence that the deceased died in the mines. At the end of the trial, the learned trial Judge was convinced that the case against the appellant was proved to the required standard. In

his decision, the learned trial Judge relied on the appellant's confession and the principle of the last person to be seen with the deceased. Thus, the appellant was found guilty, convicted and sentenced as indicated above. Aggrieved, the appellant is now before us challenging the High Court's decision. It is noteworthy that on 7th September, 2021, the appellant lodged a memorandum of appeal comprising seven 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 appeal comprising the following grounds: (1) That, the trial court erred in law to hold that the appellant made repudiated statement; (2) That, the trial court erred in law to admit the evidence o f PW6, PW7 and exhibits P3 and P5 relying on the notice dated 8th March ; 2021 which was not in compliance with section 289 (2) and (3) o f the Criminal Procedure Act, Cap. 20 (the CPA) and section 34B (1), (2) (a), (b), (c), (d) and (e) o f the Evidence Act, Cap. 6 (the Evidence Act); (3) That, the trial court erred in law by applying the principle o f the last person to be seen with the deceased without other cogent corroborating evidence; and (4) That, the whole decision was against the law and evidence on record.

When the appeal was placed before us for hearing, Mr. John prayed to abandon the original memorandum of appeal and intimated that he would argue the grounds of appeal indicated in the supplementary memorandum of appeal, starting with the grounds of appeal which touches on procedural irregularities followed by the remaining grounds related with the evidence. On the adversary side, the respondent Republic entered appearance through Ms. Verediana Peter Mlenza, learned Senior State Attorney who 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 and Demeritus John @ Kajuli & 3 Others v. Republic, Criminal Appeal No. 155 of 2013 (unreported).

Starting with the second ground, Mr. John faulted the learned trial Judge to rely on the notice issued by the prosecution on 8th March, 2021 and the evidence of PW6 and PW7 while the said notice was issued contrary to the mandatory requirement of sections 289 (1), (2) and (3) of the CPA and section 34B (1), (2), (a), (b), (c), (d) and (e) of the Evidence Act. To clarify his argument, he referred us to page 20 of the record of appeal and argued that, PW6 was not among the witnesses listed by the prosecution, during committal proceedings, that would be called to testify in this case and therefore, the substance of his statement was not read out. 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. The section also provides what should be contained in such a notice to enable the trial court to exercise its discretion. In addition, the learned counsel referred us to page 21 of the same record and argued that, the statement of CPL Jackson which was admitted in evidence as exhibit P5, was not listed, during the committal proceedings, as an exhibit to be relied upon during the trial. It was his argument that, for such a statement to be admitted in evidence, in lieu

of oral direct evidence, the conditions stipulated under section 34B (1), (2), (a), (b), (c), (d) and (e) of the Evidence Act, must cumulatively be complied with to enable the accused to exercise the right to oppose the said statement or otherwise. As such, the learned counsel challenged the notice issued by the prosecution on three grounds; one, that, it was improper for the prosecution to issue one notice on the two different provisions which prescribe different conditionalities; two, the said notice was not served to the appellant and or his advocate as required by the law; and three, that the notice was issued on 8th March, 2021, only one day before the commencement of the trial contrary to the mandatory requirements of the law. To support his proposition, Mr. John cited the case of Magige Marwa Mwita & 2 Others v. Republic, Criminal Appeal No. 621 of 2021 [2024] TZCA 994: [28 October 2024: TanzLII]. He then insisted that, since the said notice was issued contrary to the requirements of the law, it was improper for the learned trial Judge to act on the same in receiving the evidence of PW6 and PW7 and finally relying on such evidence to convict the appellant. As such, the learned counsel urged us to expunge from the record, not only the respective evidence of PW6 and PW7, but also exhibits P3, P4 and P5 which were tendered by the said witnesses. He argued that the said omission had weakened the

prosecution's case as the remaining evidence on record is insufficient to sustain the appellant's conviction. In response to that ground, Ms. Mlenza readily conceded that the evidence of PW7 was improperly admitted in evidence contrary to the mandatory requirements of section 34B of the Evidence Act. She therefore, also urged us to expunge it together with exhibit P5 from the record. As for the evidence of PW6, although, Ms. Mlenza also readily conceded that the notice issued by the prosecution did not comply with the mandatory provisions of section 289 (1) of the CPA, as the same was not served to the appellant and or his advocate, she argued that, since the said notice was not objected to by the appellant during the trial, the learned trial Judge was justified to exercise his discretion to receive it and this Court is precluded from interfering with such discretion. She thus challenged the argument by her learned friend by arguing that the said notice being commutative and issued under two different provisions was not fatal, as the conditions for each provision could have been considered separately by the trial court. She thus emphasized that, since the notice was not objected to and the trial court was satisfied that it was properly issued, the evidence of PW6 together with exhibits P3 and

P4 were correctly admitted in evidence. Besides, to her, the remaining evidence is cogent enough to sustain the appellant's conviction. Having perused the record of appeal, we agree with both learned counsel for the parties that the evidence of PW7 in relation to the statement of one CPL Jackson (exhibit P5) was un-procedurally admitted in evidence as, indeed, the record of appeal bears it out at page 21 that the same was not listed during the committal proceedings and the notice which introduced it, was issued contrary to the mandatory requirements of section 34B of the Evidence Act. We thus, outrightly, discount the evidence of PW7 together with exhibit P5 from the record. As for the evidence of PW6, we are mindful of the fact that, although, Ms. Mlenza conceded that the notice to that effect was issued contrary to the mandatory requirements of section 289 (1) of the CPA, she urged us to find that the same was properly received by the trial court because it was not objected to by the appellant during the trial. The learned Senior State Attorney also argued that, as the learned High Court Judge was exercising his discretion, this Court is precluded from interfering with such a decision. With due respect, we find the arguments by Ms. Mlenza to be misconceived. We are alive to the settled position that, this Court cannot interfere with the High Court's exercise of its discretion unless it is satisfied that 10

the decision concerned was made on a wrong principle of law or that certain factors were not taken into account. That, the said discretion must be exercised judiciously to advance the cause of justice. On this point, we wish to refer to Mbogo & Another v. Shah [1968] 1 EA 93, a decision of the erstwhile Court of Appeal for East Africa, which has been cited and applied in numerous decisions of this Court. The relevant passage is as per Sir Clement de Lestang VP at page 94 thus: "I think it is weii settled that this Court w ill not interfere with the exercise o f its discretion by an inferior court unless it is satisfied that the decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion". We are therefore guided by the above authority, which we think is equally applicable to the instant appeal questioning a learned High Court Judge's exercise of his discretion in a criminal matter. We wish therefore to emphasize that, the question of compliance with a certain provision of the law is basic and cannot be compromised by the wishes of the parties. The noble duty of the court to ensure ii

compliance with the law, cannot be precluded only because, parties to the case have not raised an objection. Therefore, at any rate, the omission to comply with the mandatory statutory requirement cannot be remedied by the failure of the appellant to object to the same, as suggested by Ms. Mlenza. It was therefore incumbent for the learned trial Judge to ensure that the law is complied with to the latter before acting on that notice. We find solace, on this stance, in our previous decision in Magige Marwa Mwita & 2 Others (supra), cited to us by Mr. John, where, upon being confronted with an akin situation, we emphasized that '...parties to a case may not conspire against the law.' Now, in the instant appeal, since we are satisfied that, the notice was issued contrary to the mandatory requirement of section 289 (1) of the CPA, we agree with the submission by Mr. John that the said notice was un-procedurally acted upon by the learned trial Judge, as, in terms of section 289 (1) of the CPA, it was neither served to the appellant nor to his advocate. The spirit behind such statutory requirement is to guarantee an accused person facing a criminal case a fair trial by affording him the opportunity to know and understand in advance the case for the prosecution for him to mount a meaningful defence. In the premises, we equally discount the evidence of PW6 together with 12

exhibits P3 and P4 from the record. We thus find the second ground of appeal to have merit. In arguing the first and fourth grounds of appeal, Mr. John referred us, yet to another procedural irregularity that, in his decision found at pages 78 to 80 of the record of appeal, the learned trial Judge based his finding on the appellant's repudiated cautioned statement, while in this appeal, there was no any appellant's confessional statement admitted during the trial. He thus faulted the learned trial Judge for having introduced extraneous matters in his decision which were not part of the evidence adduced before him. He contended that, it was improper for the learned trial Judge to import such an extraneous matter which was not born out of the record of the case and rely upon the same to convict the appellant. In her response, Ms. Mlenza readily conceded with the submissions advanced by his learned friend with no more. On our perusal of the impugned decision at pages 78 to 80 of the record of appeal, we agree with the concurring arguments by the learned counsel for the parties, as indeed, the learned trial Judge added an extraneous matter, in his decision which does not originate from the evidence adduced by witnesses. As such, we also find merit in the first and fourth grounds of appeal. 13

Arguing in support of the third ground on the applicability of the principle of the appellant being the last person to be seen with the deceased, Mr. John argued briefly that, the said principle could not be invoked to mount the appellant's conviction as, apart from PW1 and PW2 testifying that there was suspicious that the appellant was seen with the deceased, there is no any other prosecution witness who testified on that aspect to corroborate the said fact. He also added that, having expunged the evidence of PW6 and exhibits P3 and P4, there is no sufficient evidence on record to link the appellant with the death of the deceased. To bolster his argument, he relied on our previous decision in the case of Peter Mabara v. Republic, Criminal Appeal No. 242 of 2016 [2017] TZCA 327: [14 December 2017: TanzLII]. Finally, and based on his submission, Mr. John urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellant and release him from prison. In response, Ms. Mlenza argued that the principle of the appellant being the last person to be seen with the deceased was properly invoked by the learned trial Judge, because in his defence, the appellant admitted that, on 29th January, 2014 he was with the deceased from 10:00 hours to 03:00 hours. She added that, since the appellant was found by PW1 and PW2 in possession of the stolen motorcycle (exhibit 14

P4), which belonged to the deceased, the doctrine of recent possession was also properly invoked by the learned trial Judge. To support her argument, she cited the case of Hashimu Komba v. Republic, Criminal Appeal No. 452 of 2022 [2023] TZCA 17916: [29 November 2017: TanzLII]. She thus urged us to find that the third ground is devoid of merit. She finally insisted that the prosecution case against the appellant was proved beyond reasonable doubt and urged us to dismiss the appeal in its entirety. In a brief rejoinder, Mr. John reiterated his earlier submission and insisted for the appellant's appeal to be allowed. Having carefully considered the submissions made by the learned counsel for parties, and revisited the remaining evidence on the record, we agree with the argument of Mr. John that there is no sufficient evidence to link the appellant with the death of the deceased. It is on record that, in their testimonies, PW1 and PW2 testified that the appellant was linked to the death of the deceased after being found with the motorcycle (exhibit P4) suspected to belong to the deceased. Therefore, after expunging the said exhibit, there is nothing to link him with the death of the deceased. In addition, we equally agree with Mr. John that even 'the last seen doctrine' was improperly invoked in the circumstances of this 15

appeal, as there is no evidence to corroborate the evidence of PW1 and PW2 on that aspect. It is on record that, in their evidence, PW1 and PW2, apart from testifying that, on 29th January, 2014, it transpired that the appellant was seen with the deceased, on a motorcycle, while the appellant was holding a panga, there is no any other prosecution witnesses who testified on that fact. In his defence, although, the appellant admitted having met with the deceased at the bar, on that date, he stated that, he parted company with him at 03:00 hours, and each one left with different motorcycles. Then, later, in the next day, i.e 30th January, 2014, he learnt about his death. In the circumstances, it is our considered view that, the said fact, that the appellant was the last person to be seen with the deceased, in itself, is not conclusive evidence to establish that it was the appellant who killed him, other cogent corroboration evidence was necessary to be adduced, as suspicion alone, however strong, cannot be a ground for conviction. In any case, even if it was assumed, for the sake of argument that the appellant was, indeed, the last person to be seen with the deceased alive, as they were together in the previous day in that bar, we do not think that the facts of the case, in this appeal, sufficiently triggered the invocation of the said doctrine. This Court, in several occasions, has 16

pronounced itself on the applicability of the said doctrine. See for instance, the cases of Juma Zuberi v. Republic [1984] T.L.R. 51, Twaha Elias Mwanandugu v. Republic [2000] T.L.R 277 and Richard Matengule v. Republic, Criminal Appeal No. 73 of 1991 (unreported). In the latter case, we emphasized that: "... The fact that the appellants were the last known persons to have been with the deceased casts very grave suspicions on them but it is in itself not conclusive proof that they killed the deceased..." Again, in Lucas Njowoka @ Rajabu v. Republic, Criminal Appeal No. 220 of 2008 (unreported), having referred to the above finding of the Court, we added that, "...Other cogent corroboration evidence is necessary, for a suspicion however ingenious can never be a substitute for proof beyond reasonable doubt". It is on the record that, in his decision, the learned trial Judge invoked the said doctrine by relying on the case of Mathayo Mwalimu & Another v. Republic, Criminal Appeal No. 147 of 2008. With profound respect, we find the facts of the said case distinguishable and not applicable in the circumstances of this appeal. In that case, the appellants, were not only presumed to be the killers of the deceased with whom they were last seen after failing to give any plausible explanation, but they also confessed, in their respective cautioned and 17

extra-judicial statements that they have killed the deceased, which is not the case herein. In the event, we find it instructive to also quote, with approval, from a decision of the Supreme Court of India in Ramreddy Rajeshkhanna Reddy &. Anr. v. State of Andhra Pradesh, IT 2006 (4) SC 16, where it was emphasized that: "...even in the cases where time gap between the point o f time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility o f any person other than the accused being the author o f the crime becomes impossible, the courts should look for some corroboration [Emphasis added]. Therefore, since in the instant appeal, we have already intimated that there is no evidence on record to corroborate the evidence of PW1 and PW2 on the aspect that the appellant was responsible for the death of the deceased, we equally find merit in the third ground of appeal. The totality of the foregoing leads us to the conclusion that the prosecution case was tainted with doubts which in our criminal jurisprudence requires us to resolve in favour of the appellant.

In the circumstances, we are satisfied that there is no evidence on record which could have been safely relied upon by the learned trial Judge to convict the appellant. It is our further view that, had the learned trial Judge considered the issues discussed above, he would have come to the inevitable finding that it was not safe to sustain the appellant's conviction. In the event, we hereby allow the appeal, quash conviction and set aside the sentence that was imposed on the appellant. Consequently, we order for immediate release of the appellant from prison unless he is being held for some other lawful cause. DATED at MWANZA this 29th day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 29th day of November, 2024 in the presence of the appellant in person who also represented by Mr. Masoud Mwanaupanga holding brief for Mr. Emmanuel John, learned counsels for the appellant and Mr. Sileo Mazullah and Mr. Ibrahim Salim, both learned State Attorneys for the Re 1 ' ......... > certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL