Magige Marwa Mwita and 2 Others vs Republic (Criminal Appeal No. 621 of 2021) [2024] TZCA 994 (28 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: MUGASHA, J.A.. KITUSI. 3.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 621 OF 2021 JOHAN ES MARWA ISINTA SAMWEL JOSEPH MAGIGE MAGIGE MARWA MWITA, 1CT APPELLANT 2 nd APPELLANT 3 rd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Musoma JUDGMENT OF THE COURT 22n d & 28th October, 2024 KITUSI. J.A.: This is a murder case. The deceased was suspected of having stolen a chicken from a woman within Nyabisanga Village in Tarime District and the price he paid for it was very dear. Some members of the village apprehended him and were seen leading him to the office of the village Chairman. It was alleged that instead of taking the suspect to the village Chairman's office, they beat him to death. (extended Jurisdiction) at Musoma) (Naaile. SRM } dated the 23rd day of October, 2020 in Extended Jurisdiction Criminal Session No. 8 of 2020

Four people were identified as perpetrators of the fatal beating, but only three of them, the appellants, were charged with murder contrary to section 196 and 197 of the Penal Code. Five witnesses testified in support of the charge including PW1, the doctor who certified the death as resulting from an unnatural cause, PW2 the deceased's mother, who identified the body and PW3 the village Chairman, However, none of them was an eye witness to the incident as to identify the perpetrators. It is the evidence of the deceased's two brothers which sought to connect the appellants with the murder, one of them being PW4. This witness was clear that he did not witness the actual beating, but as he was moving towards the village Chairman's office where he had been told his brother's captors had taken him, he saw four people armed with machetes and sticks bragging loudly that they had put an end to the deceased's habit of stealing. In order not to be seen by these people who appeared to be likely to harm him, PW4 ducked by the way side but maintained a good view of them. Three of the people he allegedly saw were the appellants. The other piece of evidence was that of Moronya Ghati Chongore, also a brother to the deceased. PW2 and PW3 who had earlier deposed that they did not see the culprits, stated that it was Moronya Ghati Chongore who actually saw the appellants as being among the four who

administered the fatal beating, and told them so. At the time of the trial, Moronya Ghati Chongore could not be traced, leaving the prosecution with only one option, to tender his statement earlier recorded by a police officer, PW5. Moronya Ghati Chongore's statement was tendered by PW5 under section 34B (2) of the Evidence Act and admitted as Exhibit PE -2. In defence, the appellants maintained their denial, all of them raising the fact that they were not within Nyabisanga village at the time of the alleged beating and killing of the deceased. The first appellant, a bartender stated that he had gone to Sirari centre to buy drinks for his bar. When he returned at around 9.30 a.m he never left the bar until 19.30 hours. The second appellant, a motorcyclist testified that he was at Sirari Sokoni from morning up to 20.00hours. The third appellant stated that he was at Tariburire Village within Kenya to put fertilizer in his shamba. The assessors were unanimous that the prosecution had failed to prove its case beyond reasonable doubt. However, Mr. Ngaile, the learned Senior Resident Magistrate (SRM) with Extended Jurisdiction (EJ) to whom the case had been transferred, accepted the evidence of P4 and that of Moronya Ghati Chongore contained in exhibit P.E. 2 and got satisfied that those pieces of evidence proved the appellants7guilt. He held that: "... the accused persons were property identified by the eye witnesses as per

exhibit P.E. 2 and PW4 who saw the accused persons coming back from the scene shortly after they had murdered the deceased as the conditions for identification were favourable." He convicted the appellants and sentenced each to the mandatory death penalty. The appellants were aggrieved and preferred this appeal. They enjoyed service of Mr. Juma David Mwita, Mr. Edison Philipo and Mr. Paul Binton Obwana all learned advocates for the first, second and third appellants respectively. The respondent Republic appeared through Mr. Isihaka Ibrahim, Ms. Agma Haule and Ms. Beatrice Mgumba, all learned State Attorneys. Initially there were the original memoranda of appeal, one jointly lodged by the first and second appellant and another by the third appellant. These were subsequently followed by supplementary memoranda. The last was the one filed on 11/10/2024 by Mr. Obwana but which was adopted by Mr. Mwita and Mr. Philipo, counsel for the first and second appellants respectively. Counsel addressed us by picking some issues from some of the memoranda, the complaints being based on procedural irregularities and insufficiency of evidence. It was Mr. Obwana who addressed us on behalf of the other counsel for the appellants. Mr. Obwana, addressed the issue of the learned trial SRM with □ differing with the opinions of the assessors without assigning reasons,

which was ground 4 in the memorandum of appeal dated 20/4/2021. In our view the learned advocate was half hearted about this pursuit so that when Mr. Ibrahim, learned State Attorney submitted in response, citing section 298 (2) of the Criminal Procedure Act (CPA) that the judge is not bound by their opinions, he did not rejoin. In our view, although the trial court did not specifically address the opinions, it took them into account in deliberating on the evidence and arguments. This ground is dismissed. However, the issue that was seriously argued was the admissibility of exhibit PE-2, the statement of Moronya Ghati Chongero. It was challenged on two grounds; first for being produced without there being notice of ten days as per section 34B (2) (e) of the Evidence Act and; secondly that it was tendered by PW5 who was not initially listed as a witness during committal proceedings in violation of section 289 (1) of the CPA. Mr. Ibrahim's response was that section 34B (2) (e) of the Evidence Act was complied with because, according to him, the letter of the law sets the time for raising any objection to be within 10 days. He argued therefore that the statement was admitted because there was no objection within those ten days. As for the competence of PW5 he submitted that even if he was not listed, that witness did no more than

tender exhibit PE - 2, therefore the fact that he was not listed during the committal proceedings is inconsequential. Our view of the issue of non-compliance with the dictates of section 34B (2) (e) - (f) of the Evidence Act is that Mr. Ibrahim's interpretation of sub section (2) (e) of that provision is, with respect, utterly mistaken. Without reproducing the whole provision, the relevant part for the purpose of resolving this issue provides; "(2) a written or electronic statem ent may only be adm issible under this section: (e) if none o f the parties, within ten days from the service o f the copy o f the statem ent serves a notice on the party proposing or objecting to the statem ent being so tendered in evidence" Leave alone the fact that it is settled law that the conditions under section 34 (2) (a) - (f) must be complied with cumulatively, the suggestion that a party could be said to have raised no objection within just hours would lead to absurdity. Ten days are counted from the day of service of the notice which was not established in this case, and prudence requires that proceedings should have been adjourned or stayed to enablethe party served with the statement to read and appreciate its contents. A party should not be required to raise an objection under gun point, so to

say, provided that he raises the objection, if any, not later than ten days from the date of service of the notice. We note that the advocates for the appellants were recorded to have said they were not raising any objection because to them, timely disposal of the case was of the essence. To this we simply wish to reiterate that; speed is good butjustice is better. See the case of Thomas Peter @Chacha Marwa (Criminal Appeal No. 322 of 2013) [2015] TZCA 186 (28 May 2015) TANZLII. And further that parties to a case may not conspire against the law. We have to consider the above issue along with the competence of PW5 who tendered it. This is the second limb to the challenge against the admissibility of exhibit PE-2 and the appellants' point for our consideration is simple, that the name of No. D 9298 DC John who testified as PW5 was not listed in the committal proceedings. This is confirmed by the record of appeal at page 149 where six witnesses were listed but the name of PW5 is not there. It was also argued that the prosecution could have invoked the provisions of section 289 (1) of the CPA to call for additional witnesses. This, we know, was not done but Mr Ibrahim suggested that it was not fatal because PW5 just tendered exhibit PE - 2.

The two issues above were raised in the last supplementary memorandum of appeal dated 11/10/2024 as grounds No 1 and 3. Upon considering the arguments from both sides as well as the record, it is our considered finding that exhibit PE - 2 was tendered in violation of section 34B (2) (e) of the Evidence Act by an incompetent witness in terms of section 246 and 289 (1) of the CPA. We think sections 246 and 289 (1) of the CPA aim at achieving fair trial by avoiding taking an accused by surprise and this applies even when a witness merely tenders a document. Our conclusion on grounds 1 and 3 disposes of ground 2 as well, under which the complaint was that exhibit PE -2 was not listed during committal proceedings. We have resolved to disregard the evidence of PW5 as well as exhibit PE -2 which he tendered. We therefore allow grounds 1, 2 and 3 of the supplementary memorandum of appeal dated 11/10/2024. Next, we now consider arguments touching on the evidence, raising two issues that is, the trial court wrongly relied on the evidence of PW4 falling under'the supplementary memorandum dated 11/10/2024 and secondly that the defence case was not considered, which is ground 6 in the memorandum of appeal dated 20/4/2021. To begin with the first part, Mr. Obwana submitted that PW4 adduced hearsay evidence in that he did not see the actual lynching. Mr. Ibrahim submitted that the offence was proved beyond reasonable doubt

through the evidence contained in exhibit PE - 2. Let us take a look at the role of PW4. Assuming that it is true he saw and identified the appellants walking past his hiding place, would that justify a conclusion that they are the ones who had administered the fatal beating? We are afraid it does not. Exhibit PE -2 which would have given credence to PW4's testimony, has already been discounted, leading to the collapse of the prosecution case. We are therefore settled that the prosecution did not marshal sufficient evidence to prove the case beyond reasonable doubt. Lastly, though it is now merely for academic purpose, is the complaint that the defence was not considered. Mr. Obwana submitted that the appellants raised the defence of alibi, each but the trial Court shifted the burden of proof onto their shoulders. Mr. Ibrahim submitted in reply that although an accused has no duty to prove an alibi, he is expected to substantiate it by evidence. The learned State Attorney cited the case of Shaban Haruna @ Dr. Mwagilo v. Republic (Criminal Appeal No. 396 of 2017) [2021] TZCA 708 (1 December, 2021), to support that view. It is important in our view to distinguish between an alibi that is not preceded by a notice under section 194 of CPA, and that which is preceded by a notice as in the instant case. In our view, where notice is given, the court should not be all too eager to dismiss the alibi for want of proof, but

should evaluate it in line with the evidence for the prosecution before coming to conclusion. However, as we said earlier our conclusion on this ground does not change the outcome. This appeal is allowed. The convictions are quashed and sentences set aside. The appellants should be set at liberty forthwith, unless held for some other lawful cause. DATED at MUSOMA this 25th day of October, 2024. presence of the Appellants in person and represented by Mr. Daud John Mahemba, learned advocate who holding briefs for Mr. Juma David Mwita, Mr. Edison Philipo, Mr. Paul Binton Obwawana, all learned advocates for the 1st, 2n d and 3rd Appellants respectively and Mr. Zarubabel Ngowi, learned State Attorney for the Respondent/Republic is hereby certified as S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL udgment delivered this 28th day of October, 2024 in the a true copy of the origin J. E.TO VO DEPUTY REGISTRAR COURT OF APPEAL