Masanja s/o Magishi and 3 Others vs Republic (Criminal Appeal No. 286 of 2021) [2024] TZCA 1112 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: SEHEL. J.A., KIHWELO, 3.A. And MDEMU, J.A.^ CRIMINAL APPEAL NO. 286 of 2021 .APPELLANTS

1. MASANJA s/o MAGISHI
2. KAMUGA s/o NTEMI @ KUMUSU
3. LULENGANXJA s/o LWINZA @ JILALA
4. SENI s/o NHUGIJO VERSUS THE REPUBLIC ....................... . ............. . ............................. - RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) (Ndunauru, 3.1 dated the 28th day of May, 2021 in Criminal Sessions Case No. 36 of 2020 JUDGMENT OF THE COURT 23rd Oct., & 15th Nov., 2024 SEHEL. J.A.: This appeal is against the decision of the High Court of Tanzania sitting at Sumbawanga (the trial court) that tried and convicted Masanja s/o Magishi, Kamuga s/o Ntemi @ Kumusu, Lulenganija s/o Lwinza @ Jilala and Seni s/o Nhugijo (the 1st, 2n d , 3r d and 4th appellants respectively or "the appellants") of an offence of murder contrary to sections 196 and 197 of the Penal Code. It was alleged by the prosecution that, on 13th October, 2018 at Kianda Igonda Village within Sumbawanga District in Rukwa Region, the appellants murdered, one

Shinje s/o Gadi (the deceased). Upon a full trial, they were convicted as charged and sentenced to suffer death by hanging. For a reason which will shortly become apparent, we shall not present the background facts of the case giving rise to the present appeal. It suffices to state here that, the appellants having been aggrieved with the decision of the trial court, each lodged a notice of appeal followed by filing separate memorandum of appeal. Further, on 12th May, 2022, they jointly filed an amended memorandum of appeal. Again, on 27th February, 2023, they jointly filed a supplementary memorandum of appeal. Later on, in terms of Rule 73 (2) of the Court of Appeal Rules, Ms. Tunu Ferdinand Mahundi and Mr. Deogratius Phailod Sanga, learned counsel for the appellants, filed a supplementary memorandum of appeal raising the following grounds of appeal:

1. That, the prosecution case was not proved beyond reasonable doubt as required by law.
2. That, the trial Judge wrongly convicted the appellants basing on the evidence which is at variance with the charge sheet
3. That, the trial Judge erroneously misused the principle of circumstantial evidence in convicting the appellants. At the hearing of the appeal, Mr. Deogratius Phailod Sanga, Ms. Tunu Mahundi, Mr. Charles Kasuku and Mr. Baltazar Sichilima Chambi,

learned advocates, appeared for the 1s t, 2n d , 3r d and 4th appellants respectively. On the adversary side, Ms. Safi Kashindi Amani and Ms. Irene Godwin Mwabeza, learned Senior State Attorneys, appeared for the respondent/ Republic. From the outset, before starting to argue the appeal, Mr, Sanga sought leave, under rule 81 (1) of the Rules, which was not objected to by Ms. Mwabeza, and granted to argue an additional ground of appeal that: "The appellants were denied a fair and proper hearing o f their trial ." Due to the pertinent issues raised in the additional ground of appeal, and that, the remaining grounds were argued in the alternative, we wish to start with the additional ground of appeal. It was Mr. Sanga, the learned counsel for the 1s t appellant, who first took the floor and submitted on the additional ground of appeal. He argued that, Article 13 (6) (a) and (b) of the Constitution of the United Republic of Tanzania guarantees each person with a basic right, a right to be heard before any adverse decision is taken. He contended that, in the present appeal, the appellants were denied such right. Elaborating, he argued that, in the trial before the High Court, all four appellants were represented by one counsel, namely, Mr. Mathias Budodi, while

they had a conflict of interest. It was his submission that, since they had such conflict, it was prudent for each of the appellants to have a separate counsel in the trial. For instance, he pointed out that the appellants were not given a chance to cross-examine the evidence of their co-accused. He submitted that, in the light of the decision of this Court in the case of Elias Mwaitambila & 3 Others v. The Republic, (Criminal Appeal No. 414 of 2013) [2015] TZCA 508 (18 August 2015; TANZLII), the irregularity rendered the proceedings a nullity because the appellants were denied their basic fundamental right to be heard. He beseeched us to quash the proceedings of the trial court, set aside the conviction and sentence and make an order that the appellants be retried. Ms. Mahundi, the learned counsel for the 2n d appellant added that the conflict of interest arise from the cautioned statement of the 1s t appellant who mentioned the 2n d , 3r d and 4th appellants and in the extra judicial statements of the 1s t, 2n d and 3r d appellants, exhibits P5, P6 and P7 whereby the appellants named each other. For that reason, Ms. Mahundi concurred with the submission of her learned friend. The counsel for the 3r d and 4th appellants had nothing to add apart from joining hands with the submission of their learned friends, Mr. Sanga and Ms. Mahundi.

Ms. Amani readily conceded to that apparent anomaly. She agreed that the basic right of the appellants was infringed by the trial judge when he denied them a right to cross-examine the witnesses of each other. She pointed out that the prosecution case based on the confessional statements of the appellants made before the police and the Justice of Peace, and that, in those statements they each mentioned each other but during the hearing, especially in the trial within trial, the appellants were not given a chance to put questions to their co-accused who gave evidence against each other. She also agreed that the violation leads to a nullification of the proceedings and to a retrial. Therefore, she also urged us to order a retrial. On our part, having heard the concurrent submissions from the counsel for the parties and after we have gone through the record of appeal, we entirely agree that the appellants did not have a fair trial because they were not given a chance to fully participate in their trial. For instance, when PW3 was about to tender cautioned statement of the 1s t appellant, Mr. Mathias Budodi, learned counsel who was representing all the four appellants in the trial court, objected to it. The trial court rightly stopped the main trial and constituted a mini trial, that is, a trial within a trial, to ascertain the validity and voluntariness of the cautioned statement. However, in that mini trial, the 2n d , 3rd and 4th appellants

were not given a chance to put any question to the witnesses, both prosecution and defence witnesses, although the document that was about to be admitted was injurious to their interest. It happened so because they were all represented by the same counsel, Mr. Budodi. He was representing the 1s t appellant whose cautioned statement was about to be tendered, and, at the same time, he was representing the 2n d , 3rd and 4th appellants who were implicated in the cautioned statement of the 1s t appellant. In that regard, it was presumed that Mr. Budodi had taken care of the interests of the 2n d , 3rd , and 4th appellants while it was not the case. This is clearly gathered from the fact that when the 1s t appellant was giving his evidence in the trial within trial, he was led by Mr. Budodi but the 2n d , 3r d and 4th appellants were not given a chance to cross-examine the 1s t appellant. This Court faced a similar scenario in the case of Elias Mwaitambila & 3 Others v. The Republic (supra) cited to us by Mr. Sanga. In that case, the 1s t and 3r d appellants raised an objection to the admission of their cautioned statements that implicated the 2n d and 4th appellants, exhibits P4 and P ll. Hence, the trial court conducted a trial within a trial to determine the voluntariness of the statements. Since the appellants were all represented by the same counsel, Mr, Lwambano, the 2n d and 4th accused persons could not put any questions to both the

prosecution and defence witnesses, although the statements that were about to be admitted were injurious to their interests. The Court observed that: "...as a rule o f natural justice , they [the 2n d and 4h appellants] should also have been given opportunity to cross-examine ." Due to that omission of failure to afford the 2n d and 4th appellants a right to cross-examine the witnesses for both sides coupled with other irregularities, the Court held that the trial of the appellants was unfair thus it nullified the entire trial court proceedings and ordered for a retrial of the case. A right to be heard is not only a cardinal principle of natural justice but also a fundamental right constitutionally guaranteed such that no decision should be left to stand in contravention of it, even if the same decision would be reached had the party been heard- see: The Director of Public Prosecutions v. Sabinis Inyasi Tesha & Another [1993] T.L.R. 237, Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, (Civil Application No. 133 of 2002) [2005] TZCA 105 (17 November 2005; TANZLII) and Ex-D.8656 CpI Senga s/o Idd Nyembo & Others v. The Republic [2020] 2 T.L.R. 260.

In Abbas Sherally and Another v. Abdul Sultan Haji Mohamed Fazalboy (supra) the Court said: "The right o f a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it wifi be nullified, even if the same decision would have been reached had the party been heard\ because the violation is considered to be a breach o f naturaljustice." Thus, in this appeal, the learned trial Judge breached the basic rights of the appellants when he proceeded to hear and determine on the admissibility of exhibits P4, P5, P6 and P7 without giving an opportunity to other appellants to cross-examine the witnesses for both the prosecution and the defence. Consequently, consistent with settled law, we are of the firm view that the decision of the trial court was reached in violation of the appellant's constitutional right to be heard and it cannot be allowed to stand. At the end, we allow the appeal to the extent we have explained herein. Accordingly, we nullify the proceedings and judgment, quash the conviction and set aside the sentence. For interest of justice, we order that the appellants be immediately retried before another judge. We 8

further order that each of the appellants to be assigned a separate counsel in order for them to have effective legal representation. In the meantime, the appellants are to remain in remand custody waiting for a retrial of their case. DATED at DAR ES SALAAM this 14th day of November, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 15th day of November, 2024 in the presence of the appellant in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the respondent/Republic via video link at High Court Sumbawanga; is hereby certified as a true copy of the original.