Theobard Nzogera vs Republic (Criminal Appeal No 244 of 2016) [2017] TZCA 301 (14 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUSSA. J.A.. MUGASHA, J.A. And LILA,) CRIMINAL APPEAL NO. 244 OF 2016 THEOBARD NZOGERA....................................................................APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Matoqolo, J.) dated the 13th day of May, 2016 in Criminal Appeal Session No. 37 of 2013 JUDGMENT OF THE COURT 8th & 14th December, 2017 LILA, J.A,: The above named appellant was aggrieved by the decision of the High Court, Bukoba Registry (Matogolo, J.) in which he was convicted of the offence of Murder and sentenced to suffer death. It was alleged that the appellant murdered one Augenia w/o Patrick at Nyarubango village within Biharamulo District in Kagera Region on 15/5/2011. 1

Facts leading to the appellant's conviction as narrated by the prosecution witnesses at the trial were these. One Valentina Nzogera, the appellant's sister died on the fateful date and wind had it that she was bewitched by the deceased, Eugenia Patrick. It is alleged that, in revenge, the appellant went to the deceased house at 12:00 noon and cut her twice with a machete on the head. The incident was witnessed by Eliana Dionize (PW1) who had hidden herself in the banana plants near the deceased house. PW1 screamed for help and went to one Mzee Benedicto whom she reported the matter. The appellant left from the area. PW1 returned to the deceased's house with Mzee Benedicto only to find the deceased dying. The appellant was heard by Julitha Alfred (PW2) saying "nendeni mkamwone bibi mmoja Augenia ameshaaga dunia nendeni mkaone" at the mourning of the appellant's sister. The deceased was the mother in-law of PW2 whereas PW1 was the daughter of PW2's brother in-law. After the incident PW1 left to Geita and her statement was recorded after a year. The deceased body was medically examined by Dr. Kihicha and the Postmortem report (exhibit P2) was tendered by Doctor Buhire Leonard (PW5), a Medical Officer and the cause of death was found to be cut 2

wound in the head causing severe external haemorrhage leading to acute haemorrhagic shock then cardiac arrest. In his defence, the appellant, stated that her sister one Valentine Nzogera died on 15/5/2011 at about 02:00 hours at Biharamulo Designated District Hospital and he left his home right from 05.00 am to the hospital to prepare the deceased's body and was arrested at about 02.00 pm at the roundabout at Ng'ambo village when coming back home. He denied being at the village at the time the incident occurred and he heard of the deceased's death who was his step mother at the time he was coming back from Biharamulo hospital. The appellant's defence notwithstanding, he was convicted and sentenced as above. He now seeks to impugn the decision of the High Court. He earlier on filed a five point memorandum of appeal on 6/1/2017. Later, on 28/11/2017 the appellant's advocate filed another memorandum of appeal comprising of only three grounds of appeal. At the hearing of the appeal, the appellant appeared in person and was represented by two learned counsel, namely Ally Chamani and 3

Brighton Mugisha. The respondent Republic had the services of Ms. Chema Maswi, learned State Attorney. Mr. Chamani at the outset preferred to argue the appeal basing on the memorandum of appeal filed on 28/11/2017. He also informed the Court that they had filed written submissions in respect of grounds (i) and (iii) which submissions she urged the Court to adopt as arguments in support of the two grounds of appeal and that Mr. Mugisha would argue in respect of ground (ii) of appeal. Those grounds of appeal are: It is noteworthy that central to grounds (i) and (iii) of appeal is the appellant's variant complaints in respect of the defence of alibi. In the course of arguing on ground (ii) which arguments we see no reason to belabor to reproduce here, we wished to know from Mr. Mugisha and Ms. Maswi whether, after all, the import of the defence of alibi was properly addressed to the gentle assessors before they gave their opinion. Counsel for both sides were quick to accede that the assessors were not properly directed and the consequences are that the trial cannot be said to have been with the aid of assessors hence the proceedings are a nullity and an order of retrial should be made.

We, indeed for reasons we shall soon demonstrate, see no reason why we should not go along with the views of both learned counsel. As the record of appeal would vividly show, right from the time PW1 gave her testimony at page 13, the learned advocate for the appellant (Ms. Aneth Lwiza, learned advocate, cross-examined PW1 who is recorded to have stated; "... I did not meet Theobard at the mourning. He was at home. I don't deny if Theobard was at the hospital doing arrangement for the funeral o f his sister. Again, in his defence at page 39 the appellant is recorded to have told the trial Court this: "...Augenia is now deceased. I heard about her death the time I was coming from hospital of Biharamulo. On 15/05/2011 , I was arrested at Biharamulo round about and told that I killed her. On 15/05/2011 from 05:00 am I left at mine going to Biharamulo Designated District Hospital for purpose o f preparing the deceased body of Valentina for burial and preservation o f the deceased body while waiting for our relatives. .....

Thereafter I left to town at the carpenters.... I did get the Carpenter one Joseph Paul, I met him at 02:00 p.m. We agree the price o f Tshs 70,000/= then I started a journey back home, from Majengo where the carpenter lives. I went on foot On the way at the keep lefty round about at Ng'ambo village some people attached me they apprehended me and tied me with ropes..." In actual fact the appellant had, by such narration, raised a defence of alibi. Having realized this, the trial judge, at page 64, addressed the assessors during summing up thus: " Gentle assessors you also heard the defence o f the accused that at the time the alleged offence was committed he was not at Nyarubungo Village, as he left early in the morning at 05:00 pm and wet to Biharamulo Designated Hospital for purpose of making arrange for preservation of the deceased body of his sister who died the same day..." The trial judge went on to state, at page 65, that; " Gentle assessors there are possible defence in murder cases these include alibi but the condition to 6

this defence is that the accused must furnish prior notice or give the particulars o f alibi before the prosecution has dosed its case." This was all said about the defence of alibi. The trial judge did not elaborate on how it applies, conditions attached to its applicability and legal consequences of failure to observe them. The resultant effect of such inadequate summing up is that the assessors' opinions were not consistent to it. Opining in respect of the defence of alibi, the 1s t Assessors Aporinary Barthazar said the accused might have gone to town just to hide himself, 2n d Assessor- Advera Ponsian said nothing while 3r d Assessors- Amour Abdallah discounted the appellants defence on account of African's ansfoms especially people of Biharamulo that he ought to have had informed his neighbours who are clan members about the death of his sister (page 68). The appellant's defence of alibi was completely not considered by the trial Court. Instead, PW1 who testified to have seen the appellant cutting the deceased with a machete and PW2 who responded to the call for assistance by PW1 and found the deceased at her lost minutes to be

credible witnesses on the basis of their testimony, the appellant was convicted of the offence. The above aside, in his judgment in respect of the PWl's credibility, the trial judge stated at page 85. 1 1 But also PW1 cannot be said fabricated evidence against the accused, she mentioned the accused immediately after the incident and from her report the accused was traced and arrested. The act o f PW1 naming the accused at the earliest opportunity is important assurance o f her reliability see case of Marwa Wangiti Mwita & Another V . R, Criminal No. 6 o f1995CAT." Lastly at page 86 the trial judge, after considering the testimonies of PW1 and PW2 in relation with evidence of other witnesses, concluded thus: " I have no reason to doubt the evidence o f PW1 and that o f PW2 as every witness is entitled credence and his evidence believed unless there is

good reason for not doing so, see Goodluck Jonathan V . R (2000) TLR 300. I have no reason for not believing the two witnesses as their testimonies are also corroborated by the other independent evidence from people/witness who saw the deceased dead with cut wounds. These include PW3 PW4, PW5 and PW6." It is evident that the appellant's conviction was primarily based on the evidence by PW1 and PW2 who were taken to be credible witnesses. As opposed to the above, during summing up, this is all that was said by trial judge at page 64: " Gentle assessors, you heard are prosecution witnesses what they stated in Court and you also get opportunity to ask questions so that they could clarify for certain facts. I believe you still remember what each witness stated you also saw the witnesses the way they were giving evidence and while replying to the questions put to them during cross-examination." He went on to state, at page 65, that: 9

"...But you can weigh other issues such as demeanour did credibility o f the witnesses, identification o f the accused. On the demeanour and credibility o f the prosecution witnesses, you saw them while testifying, you heard them what they told the Court, you are therefore in a better position to assess their demeanour as well as their credibility." In their opinion, the 1s t Assessors; Aporinary Barthazar, said "... The accused is the brother in-law o f PW2 and the two have no grudges. There was no reason for her to lie against him" He entered a verdict of guilty. The 2n d Assessor; Advera Ponsian had it that: "...PW1 statement was taken after a long time, 19 months after the incident. I believe the evidence she gave she was couched...." She entered a verdict of not guilty. The 3r d Assessors; Amour Abdallah stated that: "...PW1 to PW4 all these witnesses are dose neighbours. They know the accused properly.

Three o f them are dan members blood related. What they told the Court is the truth..." He entered a verdict of guilty. Comprehensively considered, it is apparent that the criteria for determining the credibility of witnesses the assessors had in mind which mostly based on blood relationship, neighborhood and time taken before PWl's statement was recorded are not in tandem with the criteria applied by the trial judge who based on their demeanour, consistence and uncontradictory nature of their testimonies. This is a clear indication that the assessors were not availed with elaborate information on which to base in determining credibility of witnesses. The sum up was inadequately done to assessors. It is trite Law the trial judge is obliged to adequately address assessors on vital points of law. In case of any infraction is that it vitiates the effect trial. In the case of Said Mshangama Vs. R, Criminal Appeal No. 8 of 2014 (unreported) the Court stated: "...As provided under the law, a trial o f murder before the High Court must be with the aid of assessors. One o f the basis procedures is that the 11

trial judge must adequately sum up to the said assessors before recording their opinions. Where there is inadequate summing up, non-direction or misdirection on such a vital point o f law to assessors, it is deemed to be a trial without the aid o f assessors and renders the trial a nullity." Linked to the above is the import of evidence by relatives and need for corroboration. The trial judge, apart from stating to the assessors that PW1, PW2, PW3 and PW4 were blood related to the accused, he did not tell them the legal implications in terms of the value of their testimonies. He reserved it and considered it in his judgment where he stated that all are competent witnesses and there is no law prohibiting them not to testify and went as far as citing the case of Hassan Bakari @ Mama John V.R; Criminal Appeal No. 103 of 2012 and Bashiri Salum V. R, Criminal Appeal No. 118 of 2012 (both unreported). To this end we are constrained to hold that the assessors were not adequately addressed on the two points of law. In the result, the trial is 12

deemed to have been not with the aid of assessors. Those infractions vitiated the trial. In the circumstances, we invoke our powers of revision in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 and quash the proceedings and judgment of the High Court and set aside the sentence handed down to the appellant. Given the fact that the appellant has served less than two years jail term and considering the serious nature of the offence he was charged with, the interest of justice demands that we order a retrial. We accordingly order the record be remitted to the High Court for it to be heard de novo by another judge and a new set of assessors. DATED at BUKOBA this 13th day of December, 2017. K.M. MUSSA JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original. P. A SENIOR DEPUTY REGISTRAR COURT OF APPEAL 13