Akizimana Buchengeza & Another vs Republic (Criminal Appeal No. 43 & 46 of 2022) [2024] TZCA 804 (22 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA fCO RAM: LILA. J.A., FIKIRINL 3.A., And KENTE. 3.A/ 1 CRIMINAL APPEAL NO. 43, 46 OF 2022 AKIZIMANA BUCHENGEZA . ............ . .......................... . .......... . 1 st APPELLANT PERAJIA MAWENAYO.. . ................................... . ................. . 2N DAPPELLANT VERSUS THE REPUBLIC . .................... . ................. . .......... . RESPONDENT (Appeal from the Judgment of the High Court of Tanzania atTabora) (Bahati, 3.) dated the 17th day of December, 2021 in Criminal Session No. 97 of 2019 JUDGMENT OF THE COURT 6th & 22n d August 2024 LILA, I.A.i This is a murder case. It involves not only the killing of a person, but also cutting and doing away with his male organ. The appellants turned to be suspects. They are before the Court to challenge their convictions and death sentences meted against them by the High Court of Tanzania, Tabora Registry, of the offence of murder. They were charged under section 196 of the Penal Code on an allegation that they unlawfully and intentionally caused the death of one Augustino s/o Ndisabila (the deceased) on 25th June, 2017,

at around 1:00 a.m. at Ulyankulu Village, within Urambo District in Tabora Region. Out of eleven prosecution witnesses, Onesmo Daniel Kindi (PW1), a Village Chairman, Nduimana Erasto (PW2), a Hamlet Chairman, Kulwa Philipo (PW3), Celius John (PW4), Mikas Kabula (PW5), Turukindo Salvatory (PW6) and Agness Mbonea (PW7) are residents of the area the killing of the deceased occurred. They responded to the crime scene either after being informed or hearing the 2n d appellant crying for help. The substance of their evidence is that; upon arrival at the crime scene, they found the 2n dappellant seated outside the house who, on being inquired, she told them that they were invaded by unknown persons who assaulted to death the deceased. They witnessed the deceased body lying on the pool of blood in the room with cut wounds on the hand, neck and chest and the male organ was cut and taken away. Neither of them was forthcoming to have witnessed the killing or who were the potential suspects of the killing. It was PW4 and PW5 who claimed to know that the 2n d appellant and the deceased, who were a married couple, had a prolonged shaky relationship. While PW4 said the quarrel was about the deceased wanting to separate with the 2n d appellant, PW5 said it was due to the deceased taking food to another house. It is

worth noting here that the deceased had two wives. PW4 and PW6 also said the appellants were former wife and husband and they separated. PW1 and PW2 reported the incident to the police who rushed to the scene. H 209 DC Ally (PW8) drew the sketch map of the crime scene (exhibit PI), William Benedict Kaijage (PW9), a doctor at Ulyankulu Health Centre and who accompanied the police in visiting the crime scene, examined the deceased body which had injuries on the head, neck, chest and on the back and concluded that death was due to blood loss caused by cut wounds. In view of the nature of the cut wounds, he opined that a sharp object was used. He posted his findings in the Post-mortem Report (exhibit P2). Another evidence was from Chilemba Hassan Chikawe (PWIO), a magistrate working at Ulyankulu Primary Court who recorded extra-judicial statements of the appellants who were taken to him by police, namely Mkama and WP 8033 Judith. Admissibility of the statements met a hitch as the defence counsel successfully objected them for failure to indicate the date and time of the appellants' arrest and none-compliance with the Chief justice's Guidelines. Then came the 10/12/2021, when Jaines Kihwelo, learned State Attorney, sought leave of the court, under section 34B of the Evidence Act

(the EA) and was granted, to be allowed to introduce in the witness box one Inspector Jackob Masalu Bulugu (PW ll) who recorded the 1s t appellant's cautioned statement, in place of the one who recorded the 2n d appellant's cautioned statement because the later was at Chuo Cha Police (CCP) who they failed to trace. Unfortunately, P W ll's attempt to tender the cautioned statements of both appellants was objected to but, after a trial within trial, they were admitted as exhibits P3 and P4. A while later, we shall disclose why we have not endeavoured to explain the contents of exhibits P3 and P4. Both appellants distanced themselves from the accusation. The 1s t appellant claimed that he was arrested at his house at night because he was a Police "J.amii" (a society guard) and denied knowing the 2n d appellant, receiving any money and making the cautioned statement voluntarily because he was assaulted so as to confess. On her part, the 2n d appellant admitted staying with the deceased under one roof with whom they had been married for five years and they had disputes because the deceased used to assault her using hands for a reason of not finding her at home on his coming back but, said the dispute did not make her kill her husband. She said they were together when they were invaded by two people who removed the lock, entered and attacked

them with a "panga" (a machete). She denied knowing the 1st appellant or planning with him to cause the deceased's death. As for recording a cautioned statement, she disowned it saying she was tortured by being hanged to the extent of fainting so as to confess. The 1st appellant summoned his wife one Trifaina Haborimana (DW3) who told the trial court that the 2n d appellant was arrested by police at night on 25/6/2017. Despite taking note that the appellants were not identified at page 155 of the record of appeal, the learned trial judge relied on other sources, particularly the appellants' cautioned statements and found the prosecution evidence solid in establishing the appellants' guilt. She was satisfied that the deceased died an unnatural death as established by exhibit P2. Regarding who were responsible, relying on PW lTs evidence, she held that the two appellants confessed in their cautioned statements (exhibits P3 and P4) that the 2n d appellant planned the murder with the 1s t appellant and they looked for killers who were paid by the 2n dappellant. As a result, she convicted them and ordered them to suffer death by hanging which is a statutory prescribed sentence. 5

Convinced that they are innocent, the appellants exercised their right of appeal and lodged separate memoranda of appeal to the Court, the 1s t appellant advancing three (3) grievances and the 2n d appellant fronting five (5) grounds of appeal aiming at challenging the High Court's findings. Nr. Saikon Justin Nokoren who represented both appellants before us found some of the complaints unnecessary and came up with a supplementary memorandum of appeal comprising four (4) grounds which he said he had agreed with the appellants to be argued in this appeal. He accordingly abandoned the appellants" former memoranda of appeal. We think, however, that the first two grounds of appeal, in our review of the evidence on record of appeal, will suffice in disposing this appeal. They are couched thus: - "1. That, the learned trialjudge erred in law and in fact by convicting and sentencing the appellants based on exhibits P3 and P4 whose substances were neither listed nor read out at the committal proceedings o f the case. 2. That, the learned trialjudge erred in law and in fact by convicting and sentencing the appellants based on exhibit P4 which was wrongly admitted into evidence and as a result, the appellants were not afforded a fair hearing." 6

On the whole, we understand Mr. Nokoren to have directed his arsenals on the trial court's reliance on the appellants' cautioned statements (exhibits P3 and P4) to convict the appellants. We shall therefore determine them conjointly although he argued them separately. To recapitulate, Mr. Nokoren appeared before the Court to prosecute the appeal representing both appellants. On the other hand, the learned Senior State Attorney Ms. Upendo Malulu, appeared. She was not opposed to the appeal. It was common ground to both learned counsel for the parties that there was no direct oral account from the prosecution witnesses implicating the appellants with the commission of the charged offence and that the appellants'conviction was solely founded on their own cautioned statements, exhibits P3 and P4. In the light of the above, it is no wonder that Mr, Nokoren missiles are aimed at dismantling the trial court's reliance on exhibits P3 and P4 as being not proper in two different angles as reflected in the two grounds of appeal. In urging the Court to agree with him that the two exhibits were improperly tendered and admitted into evidence and later wrongly relied on by the learned trial judge, he at first, argued that the two exhibits were not

listed as among the potential exhibits (documents) to be relied on by the prosecution during trial consistent with the imperative requirements of section 246(2)(3) of the CPA. Consequently, he stressed, they could not be used during trial being barred by the provisions of section 289(1) of the CPA. To fortify his argument, he referred us to the Court's decision in the case of Batuiimi Manundu vs Republic, (Criminal Appeal No. 47G of 2020) [2024] TZCA 624 TanzLII (19th July 2024) at page 12. He urged exhibits P3 and P4 be expunged from the record of appeal. In the second angle, and in respect of exhibit P4 alone, it was his submission that the provisions of section 34B(2) of the EA, were not complied with to the letter before PW11 was permitted to testify in court and, worse still, instead of tendering the statement of the witness who was said to be at CCP, it was the 2n d appellant's cautioned statement which was tendered and admitted into evidence as exhibit P4. Elaborating, he argued that, for section 34B(2) of the EA to be invoked, conditions (a) to (e) must cumulatively be complied with citing some the conditions as being that it should be established that the intended witness could not be procured and the appellants being given a copy of the statements ten days before the hearing date so as to allow them object if they so wish, but the prosecution

did not. On account of these procedural anomalies, he beseeched the Court to expunge exhibit P4 from the record of appeal cementing his assertion with the case of Joseph Shabani Mohamed Bay and Others vs Republic (Criminal Appeal No. 399 of 2015) [2017] TZCA 178 TanzLII (3r d March 2017) from page 32 to 35. He was emphatic that, in the event exhibits P3 and P4, being the sole prosecution evidence relied on, are expunged from the record of appeal, the prosecution remains with no other evidence linking the appellants with the murder of Agustino Ndisabila. Mr. Nokoren urged the appeal be allowed and it be ordered that the appellants be released from prison. Responding to the Court's concern on the evidence on record alleging that the 2n d appellant's conduct after the incident of sitting outside and not looking remorseful and that the deceased's death might have been caused by the dispute that obtained between her and the deceased, Mr. Nokoren viewed her unquestionable because people respond and react differently in various situations and that there was no cogent evidence establishing her responsibility as she was adamant, in her evidence, that they were invaded by unknown persons who butchered the deceased.

M's. Malulu readily conceded to the shortcomings set forth by Mr. Nokoren and added that, looking at page 154 of the record of appeal, it is true that the learned trial judge relied on exhibits P3 and P4. to convict the appellants. But, she further submitted, the cautioned statements were not listed and the substance thereof read out to the appellants during committal proceedings as required under section 246(1) of the CPA, hence disqualifying them from being tendered and acted on under section 289(1) of the CPA. Arguing further, she said PW11 narration was based on exhibits P3 and P4, for which their expungement from the record, renders his narration and the prosecution case to crumble. In respect of the second limb, Ms. Malulu's view in respect of exhibit P4 alone is that, it was improperly admitted into evidence as argued by Mr. Nokoren for none-compliance with conditions stipulated under section 34B(2) of the EA. In all she conceded that in the absence of exhibits P3 and P4, the prosecution remains empty handed causing the remaining evidence shallow to warrant a valid conviction. First of all, the procedure in trials before the High Court is that, all evidence, including documents or statements of the prospective witnesses to be relied on must be exposed to the accused person during committal 10

proceedings by being listed and their substance (contents) being read out during committal proceedings conducted by an inquiry court upon receipt of the information and the statements of the intended prosecution witnesses and a list of exhibits, be they physical or documentary. That is clearly provided under section 246(2) of the CPA. That section provides: - "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." The spirit imbedded in this provision is to let the appellant be aware of the case he is to face during trial and therefore give him opportunity to align his defence accordingly. It abides to the rule against surprise which is a key element in fair trials particularly in capital offences which carry capital sentences like the instant one. So as to ensure compliance, the provisions of section 289(1) and (2) of the CPA prohibits evidence not listed and the substance thereof not read to the accused during committai from being admitted into evidence. In unambiguous terms, those provisions provide: - ii

"289.-(1) No witness whose statement or substance o f evidence was not read at committal proceedings shad 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 witness (2) The notice shall state the name and address o f the witness and the substance of the evidence which he intends to give/' There is no doubt here, and the prosecution through Ms. Maluiu has conceded, that exhibits P3 and P4 did not feature, listed and the contents thereof read out to the accused during committal proceedings. That was a clear contravention of section 246(2) of the CPA and the prosecution were thereby prevented to bring forth such evidence at the trial and for the trial court to admit and consider them. Their production in court during trial through PW11 required a reasonable written notice being issued to the accused prior to the date of hearing, otherwise they could not find place in the record of evidence. In the instant case that was not done. Mr. Nokoren reinforced his contention by referring us to the case of Batulimi Manundu vs Republic (supra). We have read it and we agree with him that it was improper for the prosecution 12

to tender such evidence (exhibits P3 and P4) in court during trial. Such is the stance the Court took in the case of Remina OmaryAbdul vs Republic, Criminal Appeal No. 189 of 2020 (unreported) and in DPP Vs Sharlfu and Six Others, Criminal Appeal No. 74 of 2016 (unreported). In the latter case, the Court explicitly held that: - "Our understanding o f this provision is that it is not enough fora witness to merely allude to a document in his witness statement, butthat the contents o f that document must also be made known to the accused person(s). I f this is not complied with, the witness cannot later produce that document as an exhibit in court. The issue is not the authenticity o f the document but on noncompliance with the law. We, therefore, agree that unless it is tendered as additional evidence in terms o fsection 289 (1) o f the CPA, it was not receivable at that Stage." (See; also, Francis Siza Rwambo vs Republic, Criminal Appeal no. 17 of 2019 and Mashaka Juma @ Ntatula vs Republic, Criminal Appeal No. 140 of 2022 (both unreported)). Ordinarily, the above finding would have sufficed to determine the appeal, but prudence demands that we consider ground two, which raises another reason which would have, again, rendered exhibit P4 inadmissible

during trial. It is about the prosecution's failure to strictly comply with the provisions of section 34B(2) of the EA before PW11 was produced to testify and tender exhibit P3 and P4. The attack by Mr. Nokoren mostly concerned PW11 tendering exhibit P4 which related to the 2n d appellant instead that of the witness who could not be procured allegedly being at CGP undergoing training. To appreciate what transpired before PW11 testified in court, the record of appeal tells this at page 76 and 77: - "State Attorney: Before we proceed, I pray through 5.34B o f Evidence (sic) the one who recorded the DW2 Is at CCP, We have tried to serve him but he has never been traced. 1 pray the one who took the caution statement o f the 1* DW to tender on his behalf Defence Counsel; We have no objection Court: Hearing to proceed. Prayergranted. " PW.11 there and then took the floor, testified and tendered not only exhibit P4 but also P3. Much as we acknowledge that under section 34B(1) of the EA, a witness statement may be produced in evidence in lieu of a direct oral evidence, yet, such production is upon full compliance with all the conditions stipulated under section 34B(2)(a) to (e) of the EA. Such factors need be cumulatively abided to [see Mhina Hamisi vs Republic, Criminal 14

Appeal No. 83 of 2005 citing the case of Goodluck Maganga vs Republic, Criminal Appeal No. 50 of 1999 which also cited the earlier cases of Swalehe Kalonga @ Swale and Makoye Zongolo vs Republic, Criminal Appeal No. 46 of 2001 (all unreported)]. Section 34B(1) of EA is limited in its scope to a statement of witnesses not of an accused person's statement such as cautioned statements [see Mhina Hamisi vs Republic (supra)]. It categorically provides: - "34B. - In any criminal proceedings where direct ora / evidence of a relevant fact would be admissible, a written or electronic statement by a person who is, or may be, a witness shall subject to the following provisions of this section, be admissible in evidence as proof of oral evidence." With this provision, it is plain truth that the prosecution was wrong to invoke the provisions of section 34B of the EA to produce the cautioned statement of the 2n d appellant who was, then, not a witness but an accused person. We would add, at least, four more points here adding to impropriety of admission of exhibit P4. One, PW11 was not listed as among the prospective witnesses to be called by the 15

prosecution hence the prosecution was disentitled to produce him as a witness in court. Two; even if the statement tendered would have been of the one who was at CCP, that would be improper as his whereabouts was known and could be procured (see section 34B(2)(a) of the EA). Three, neither of the requirements of section 34B(2) of the EA was complied with, among them being to avail the appellants with copies of the intended witness statement at least ten days before the hearing date for them to lodge an objection, if any, in terms of section 34(2)(d) and (e) of the EA. And, four, that, the 2n d accused's statement was also not listed and the substance of it read out during committal proceedings as discussed and resolved above. Unless section 289(1) was complied with to the letter, both PW11 and exhibit P4, were disqualified from featuring in the record of appeal and the evidence relied on in grounding the appellants' convictions. The Court took such stance when it encountered an akin scenario in Jumanne Mohanied and 3 Others v. The Republic, Criminal Appeal No. 534 of 2015 (unreported) cited in Francis Siza Rwambo vs Republic (supra), stating that: - "we are satisfied that PW9 was not among the prosecution witnesses whose statements were read 16

to the appellants during the committal proceedings. Neither couid we find a notice in writing by the prosecution to have him called as an additional witness. His evidence was thus taken in contravention o f section 289 (1) (2) and (3) o f the Act.., In case where evidence o fsuch person is taken as is the case herein, such evidence is liable to be expunged.... We accordingly expunge the evidence ofPWP including exhibits P6 and P7 from the record." To resume to the matter under our consideration, bearing in mind the above exposition of law, we are left with no other viable option but to agree with both learned counsel that the evidence by PI 1 and exhibits P3 and P4 erroneously found their way (snicked) into the record of appeal and wrongly relied on by the trial judge. This disquieting infraction was, indeed, occasioned by laxity of the trial court not to ensure strict compliance with the law. As agreed by both learned counsel, we expunge exhibits P3 and P4 as well as P W ll's evidence from the record of appeal. We are left with only one issue begging for an answer and it is, what is a fitting order to make. Lucky enough, both learned counsel were of a concurrent view that upon expungement of exhibits P3 and P4 what remains is a mere skeleton of the prosecution case arguing that there was no eye 17

witness to the event and the trial court heavily relied on the two expunged exhibits. We share a common view with them that, in the absence of the two exhibits and evidence by PW11, the appellants' convictions are unsustainable. Before we conclude, let us address, albeit briefly, three aspects which emerged in the prosecution evidence. The first is deduced from the testimonies of PW4, PW5, PW6 and PW7 that the deceased and the 2n d appellant who were spouses, had bitter marriage life; the second came from PW1 to PW7 that, after the fateful event they found the 2n d appellant sitting outside the house; the third came from PW2 and PW6 that, the appellants were former spouses who separated before the 2 0 0 appellant was married to the deceased and lastly; that the door was not broken which came from PW2, PW4, PW5, PW7. These pieces of evidence, casually considered, appear to have been conceived that they linked the appellants with the death of the deceased. But, they were not pursued further to establish, at the required standard of proof beyond reasonable doubt, that they contributed towards the death of the deceased and the appellants' involvement. Casual as they are, they remain to be mere suspicions which, in law, however strong they may be, cannot be the basis of a conviction (see MT. 60330 PTE

Nassoro Mohamed Ally vs Republic, Criminal Appeal No. 73 of 2002 and Juma Malaya and Two Others vs Republic, Criminal Appeal No 159 of 2008, (both unreported). In the result, we allow the appeal, quash the appellants' convictions and set aside the sentences. We hereby order that they should be released from prison forthwith if not held for another lawful cause. DATED at TABORA this 21s t day of August, 2024 The Judgment delivered this 22n d day of August, 2024 in presence of Mr. Saikon Justin Nokoren, learned counsel for the appellants and Mr. Steven Mnzava, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL