Charles Expedicto Luhunga @Ubaya and 2 Others vs Republic (Criminal Appeal No. 453 of 2022) [2024] TZCA 872 (5 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO (CORAM: MKUYE. J.A. KAIRO. J.A. And MLACHA, J.A.^ CRIMINAL APPEAL NO. 453 OF 2022 CHARLES EXPEDICTO LUHUNGA @ UBAYA ......................... 1 st APPELLANT HASSAN OTHMAN @ MAMBA ..................... . ........................ 2 nd APPELLANT ALFRED TELESPHORI DOTTO @ KADOGO............................3 rd APPELLANT VERSUS THE REPUBLIC . ........................................... . ............. . .......... RESPONDENT Appeal from the Resident Magistrate Court of Morogoro with Extended Jurisdiction) fKainda. PRM-Ext. 3.) dated the 20th day of September, 2022 in Criminal Session No. 06 of 2020 JUDGMENT OF THE COURT 11th June & 5th September, 2024 MKUYE. J.A.: Before the Resident Magistrates' Court of Morogoro with Extended Jurisdiction, the appellants Charles Expedito Luhanga @ Ubaya, Hassan Othman @ Mamba and Alfred Telesphory Dotto @ Kadogo together with six other accomplices who are not parties to this appeal, were charged with the offence of murder contrary to sections 196 and 197 of the Penal Code (Cap 16 R.E. 2002 now, R.E. 2019). Upon the conclusion of the trial, the appellants herein were convicted and sentenced to the i

mandatory sentence of death by hanging. The other six accused persons were acquitted. Aggrieved with that outcome, they have now appealed to this Court. The brief background of the matter goes thus: On 27/5/2019, Joyce Samson Thomas (PW6) reported at Morogoro Central Police station that on 25/5/2019 her husband, one Leornard Enyimba Yanakwi, did not return home as he usually did. On 30/5/2019 a decomposing body of a male person was discovered lying naked in a sisal plantation which was within the outskirts of Morogoro Municipality. The incident was reported to the police who then arrived at the scene of crime. On their arrival at the scene, they found a dead body lying on the ground and beside that body they saw a wallet. They inspected and found an identity card which revealed that the deceased was an army personal of Tanzania Peoples Defence Forces marching the name in the missing report made at the police earlier on. Besides that, nearby, a woman's handbag was also found and upon inspecting it, two subscriber identification module (sim) cards were recovered. The body of the deceased was taken to the mortuary where it was identified by PW6 to be that of her husband. The Police investigation led 2

to the arrest of PW1 who unveiled the circumstances leading to the killing of the deceased. PW1 had narrated on how she together with deceased had gone to that place for sexual encounter and while there, they were invaded by a group of thugs. PW1 testified further that those people demanded that the deceased should leave and let her behind with them but he refused. According to PW1, that is when the culprits began attacking him with crude weapons until he became motionless. The appellants then raped her in turns and upon accomplishing their lust left with the deceased's motorcycle. Further to that, the police investigations revealed that the deceased's mobile phone stolen at the scene of crime was being used by one, Daudi Chiloga (then 9th accused). Upon being arrested, DW9 revealed that he bought it from Rehema Kibwana (then 8th accused). After the arrest of the 8th accused, she disclosed that she purchased it from the 2n d appellant. It was from the information gathered that led to the naming and arrest of other suspects, the appellants inclusive. Upon the arrest of the appellants, they were subjected to identification parade in which PW1 is alleged to have identified them as having been actively involved in killing the deceased. 3

On top of that, after the arrest, the 1s t appellant led the police to one Mbaya Edward (6th accused) and deceased's motorcycle was recovered. The trial court convicted the appellants basing on the doctrine of recent possession. In this Court, the appellants have fronted twelve grounds of appeal which for a reason to be apparent shortly, we shall not reproduce them. At the hearing of the appeal, the appellants were represented by M r. Ignas Seti Punge whereas the respondents Republic had the services of Ms. Upendo Shemkole, learned Senior State Attorney assisted by Mses. Rosemary Mgenyi and Veronica Chacha, both learned State Attorneys. At the outset, the Court wished to satisfy itself as to the propriety of the appeal the focus being whether the PRM (Ext. Jur.) delivered the Rulings which were promised to be issued by the trial court following the objections which were raised by the defence as shown at pages 116, 131 and 132 of the record of appeal. Mr. Punge, contended that there were no Rulings delivered as shown at the respective pages. He elaborated that according to the proceedings as shown at page 113, the defence side objected to allow

Clement Michael Lubea (PW9) to testify in Court alleging that he was incompetent since he was not listed by the prosecution to be among the witnesses in accordance of section 246 (2) of the Criminal Procedure Act, [Cap 20 R.E. 2002; now R.E. 2019] (the CPA). Then the trial court as shown at page 116 of the record, overruled the point of objection while promising to give reasons thereafter. M r. Punge went on submitting that even at page 131 of the record of appeal, the tendering of the Identification Parade Register PF 186 was objected for failure to comply with PGO No. 232 but the same was overruled and admitted in evidence without a ruling thereof showing the reasons for its admission (Exh. P7) being issued as was ordered at page 131 of the record of appeal. In this regard, it was Mr. Punge's submission that, by failing to issue the rulings which could have given reasons for admitting the witness to testify or admission of the exhibit, it was a fatal irregularity which prejudiced the appellant. For that reason, he beseeched the Court to allow the appeal and set the appellants free. In reply, Ms. Shemkole readily conceded to what was submitted by Mr. Punge in that Exh. P7 was irregularly admitted as the same was

admitted without a ruling to the objection that was raised being given by the trial court as was ordered. She equally conceded that PW9 was allowed to testify despite the fact that the ruling was not issued in respect of the objection that was raised objecting him to testify in court because he was not listed by the committal court and there was no application or notice issued to bring him as an additional witness under section 289 (2) of the CPA. Like Mr. Punge, she contended that the omission prejudiced the appellants as they were not availed with reasons for overruling their objections. She was of the view that, this omission vitiated the proceedings and the resultant judgment rendering them a nullity. As to the way forward, the learned Senior State Attorney implored the Court to invoke its revisional jurisdiction bestowed on it under section 4 (2) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2002; now R.E. 2022] (the ADA) and nullify the proceedings from when PW9 testified and its judgment, quash the conviction, set aside the sentence and thereby order for retrial from PW9's evidence to the composition of the judgment in accordance with the law. Having heard the arguments from both sides which are basically not contentious, we think, the issue we need to address is whether it

was proper to allow PW9 who was objected to testify and use the objected document without giving a ruling. If the answer is in the negative, the follow up question would be what is the way forward. According to the record of appeal, as shown at page 113 of the record of appeal on 8/6/2022 the prosecution marshalled one Clement Michael Lubea 50 years, Medical Doctor, Christian, so as to testify as PW9. But before the intended witness could be sworn, M r. Kitale, learned advocate for the 8th accused raised an objection for the witness to testify in court because he had no status or audience to testify as he had not been listed as among the intended witnesses as per section 246 (2) of the CPA which prohibits a person whose statement is not read out during committal proceedings, to testify in court. The learned Senior State Attorney (Ms. Evelyne) who had the conduct of the case contested to the defence objection. Then at page 114 of the record of appeal, the trial court made an order that the ruling on the point of objection would be on 9/6/2022, meaning the following day. According to the record of appeal, on the said date (9/6/2022), the trial court is on record stating that:

"The counsel for defence objected for one Clement Michael Lukas to testify on the ground that there is no compliance to section 246 (2) o f the CPA. The Republic replied that the objection had no merit and prayed for the matter to proceed. The matter is before me for ruling. For reasons to be stated iater during the hearing o f the prosecution's case, I dismiss the point o f objection. The intended witness is dedared fit to testify. It so ordered.” [Emphasis added]. After the trial court's order, the said witness proceeded to testify in court as PW9. Our perusal of the record of appeal has revealed, as correctly argued by both parties that the said ruling was never delivered. We also made effort to peruse the original case file but we were unable to locate the said ruling in respect of the preliminary objection that was raised against PW9 to testify in court. It is a rule of practice that whenever there is a preliminary objection, the trial court has to stop and entertain the said preliminary objection first. Dealing with such preliminary objection is expected to be done to its conclusiveness. This means that a decision thereof would be made. The reason for such practice, in our view, is not farfetched. One, to enable the court to determine it first because such determination may 8

lead to the conclusion of the matter without dealing with the substantive part of the matter. Two, to enable the parties understand the reasons for sustaining or dismissing such objection which may prompt the party in dissatisfaction to pursue his/her right. And, therefore, it is our view that giving a reasoned ruling on the objection raised was of utmost importance. The other point of objection was based on the admissibility of the Identification Parade Register that was admitted as Exh. P2. The record is quite clear on this. On page 130 of the record of appeal, Twalib Jumanne Muhogoti. (PW11) while in the course of his testimony, prayed for the said document in relation to the 1s t appellant to be admitted in evidence. Upon the objection from the defence counsel on ground of failure to comply with PGO 232, the learned trial PRM Ext. Jur. issued an order. At page 131 as well as page 136 of the record of appeal, the trial PRM Ext. Jur. reserved his ruling as follow: "For reasons which will be stated later during the hearing o f prosecution case , the document is admitted in evidence/' We gather from the record of appeal that on 10/6/2022, Twalib Jumanne Muhogoti, a police officer of the rank Assistant Superintendent

of Police (ASP) testified as PW11. His testimony was to the effect that he conducted an identification parade in respect of the 1s t appellant in which PW1 identified him. When he prayed to tender the Identification Parade Register to be admitted in evidence, M r. Aziz, learned advocate for the 1s t appellant, objected for reason that it contravened the provisions of PGO 232. The objection was supported by Mr. Bwanga for 3r d appellant as well as Mr. Kitale who represented the 8th accused by then. After a reply by Ms. Tullie, learned State Attorney, on the point of law (see page 131 of the record of appeal), the trial court made the following order: - "For reasons which will be stated later during the hearing o f the prosecutions case, the document is admitted." It would appear from the record that, Mr. Aziz insisted that PGO 232 was not complied with which point was supported by advocate Kitale and the trial court again at page 132 reinforced its earlier order that: "For reasons to which will be stated later during prosecution case, I dismiss the points o f objection. The document shall be admitted in evidence." 10

Then the trial court admitted the Identification Parade Register as (Exh. P7). As it is, it is crystal clear that, in both scenarios, the trial court committed itself to give reasons, in the course of hearing of prosecution case, for admitting PW9 to testify in court as well as admitting the Identification Parade Register. Prudently, we think the trial PRM Ext. Jur. had in mind the rule of practice which demands that whenever there is a preliminary objection raised, the Court has to entertain it first and make a determination before proceeding with the matter on merit. This is important as we have alluded to earlier on that it would enable the parties to understand on how the objection was sustained or rejected which eventually will ensure a fair hearing. In this case, as was rightly contended by both parties, the trial court did not give reasons for allowing PW9 to testify in court or admitting the identification parade register as Exh. P7. The omission, obviously, left the parties in uncertainty as they could not understand why the objection was overruled. We grappled with a similar situation in the case of Mayamba Mjarifu and 3 Others v. Republic, Criminal Appeal No. 596 of 2017 [2021] TZCA 743 (1 December 2021) TANZLII. In that case, the trial l i

Judge upon conducting a trial within trial emanating from an objection of the voluntariness of a cautioned statement, overruled the objection but deferred the reasons to a later date. However, no reasons were ever rendered. We observed that the appellants were prejudiced because by mounting their defence before knowing the reasons for the decision in the trial within trial, they were denied the relevant information to properly challenge the prosecution case. See also: Sanda Koshosha @ Karuto and 3 Others v. Republic, Criminal Appeal No. 459 of 2021 [2023] TZCA 17581 (30 August 2023) TANZLII. Applying the above authority even in this case, since there were no reasons given by the trial court it amounted to a fatal irregularity which prejudiced the appellants as was rightly argued by both parties. It means that, whatever proceeded from when PW9 testified in court including the resultant judgment was a nullity. Henceforth, in terms section 4 (2) of the AJA, we nullify the proceedings from when PW9 testified in court and the judgment thereof. We quash the conviction and set aside the sentences meted out against the appellants. We further order for a retrial before another Resident Magistrate with Extended Jurisdiction from the stage when Clement 12

Michael Lubea (PW 9) was objected to testify, for composing the required ruling up to the judgment. It is so ordered. DATED at DAR ES SALAAM this 3rd day of September, 2024. The Judgment delivered this 5th day of September, 2024 in the presence of Mr. Ignas Seti Punge, learned counsel for the appellants and Ms. Daria Sanga, learned State Attorney for the Respondent/Republic vide video link from High Court at Morogoro is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL 13