Theobard Nzogera vs Republic (Criminal Appeal No. 244 of 2016) [2017] TZCA 1072 (13 December 2017)

IN THE COURT O,F ·APPEAL 0,f TANZANIA AT BUKOBA ft.ORAM: MUSSA, J.A., MUGASHA. J.A. And LILAJ CRIMINAL APPEAL NO. 244 OF 2016 THEO BARD Nzo-GERA1111 ■ ··••111 ■ 111 ■■ ■ 11 ■ 11. ■ 110••··••:1 ■ •• l' ■ ll ■■ naa II ■■■■■■■ •••• It ••••• I: ■■ a ■■■ .... • APPELLANT, VERSUS T·HE REPU.BLIC111 ■■ 11 ■■ 110 ■ ■■■ ••• -~~ ~ ■■ ~ ■ ■ 11 ■■•• ■ ■ ■- ■■■- ■■ ■■■- ■ a ■■■■■■■■ 11 ■■ 1111 ~ ■ ■ 11 ■■ ■ ■■■ ~ ■■■■ - ■ RESPONDENT: (Appeal from the decision of the High Court 9f Tanzania ' · at Bukoba) · (Matogolo, J.) dated the 13 th day of May, 2016 ,. . . '-. ,, . . in riminal Appeal Session No. 37. of 201 · : JUDGMENT OF THE COURT --,_ s th & 14 th 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

II ' · Facts leading· .. o. 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 De was· . ~ . ' bewitched by the deceased, Eugenia Patrick. It is alleged tha, in rvenge, · · . . . . . . . ~ .. ' . ). . . . . . 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 · . . . . . (PW-1) .who h 9 d hidden_ herself in the banana plants near the deceased· house. PV/1 screamed for help and wet to one Mzee Benedicto whom she · . reported the matter. . The appellant left from the area. rw1 returned t9 · . . . . ·. . . . .. ·, '. " ,· th·e deceased's house with Mzee Benedicto only to find the deceased ·dying· The · appellant was heard by Julitha Alfred (PW2) saying "nendenf mkamwone bibi mmoja Augenia ameshaaga dynia 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 PWl 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 (PWS), a Medical Officer and the ·cause of death was found to be cut · 2

. wound in. the .head. ca .. using. severe external haemorrhage .. leading to acute . . haemorrhagic shock then cardiac arrest. ' · . . '.·1 .. •.. . ' ·' ·1 . In his defence, the appel'lant, . stated.· that her sister one Valentine · Nzogera died on 15/5/2011 at about 02:bO hours at Bihararnulo Designated.-· District Hospital and he left his home right from 05.00 am to the hospital tn ·'. .: · 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 moth~r at the time he was coming back ··•. ··, ... · 1 . . . . . . ' . 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 o·nly 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

I . .· -Brighton ,Mugisha. The re·spondnt Republic had the services of Ms·.·•···· ' Chema Maswi, iearned State Attorney. Mr. Chamani at the outset preferred to argue the· appeal basing on . ~ ' "· ·.· the rnemorqndum of appeal filed on 28/11/2017. He also· informed the ., " . Court that they had filed written submissions in respect of grounds (i) arid · - : · ·• · · ·. (iii). which ubmissiohs_ sh·e urged the Court to adopt as arguments:· ih · support of the two grond~ of ap.peal and that Mr. Mug·isha would argue ·in· respect of ground (ii.) of appeal. Those grounds of appeal are: It is noteworthy that centrai ·to grounds (i) and (iii) of appeal is. the . . . . . . appellant's variar,t complai_nts _ir:,-respect ofthe defence of alibi. . . . . . •, In the course of .arguing on ground (ii} which arguments we see no reason to elabor to rproguce hre,. we wished to know from Mr. M ugisha · and Ms. Maswi whether, .afte all, the import of the defence of alibi was ' ~. . . properly addressed to he gentle assessors before they gave their opinion. Counsel for both s_i.ds were quick to accede that the asses_sors 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. · ·4

\ We,. indeed for reasons we shall. soon demonstfate, see no re_ason why we should not go along with the views of both learned counsel. · • ,:._ As the record ·of appeal would vividly show, rightlrom 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; 1 ~ ••. I dli:J not meet· fhedbard at the moujning. · He was at home. I don't deny if Theobard was at the hospital doing_ arran9'.ement for. the funeral Qf 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 a,rested 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 f_or purpose of preparing the deceased body · of Valentina for burial and preservation of the deceased body whi(e waiting for our relatives ... ~·····

n1ereafter I left;to ·tov1n ·at.'the·c;arpenters.~ .. I did get the (.arpenteton- Joseph Paul, I tnet him· iJt . . . . ., . . ~ . : . : 02:00 p,m. We agree the price of Tshs 70,000/ the,1·1-started a jol.irney-back-hoine,. from Majengo · . when~ t'7e carpenter lives. I went O(J foot. On the .· ' . '·: · ... ·.. ·,.. .·· .. · .... '· ·. way at - the keep lefty round about at Ng'ambo - village !,YJmcl peopie ttached rne they apprehended me and tied me with ropes ... " . l ' • ·, • :. I, ~ : 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_ urnm1ng Up .thus-: . . 11 Genlie assessors· you also. heard the defence of ·_ · the· accused. that:· at th. time , the · .. allegec/ offe(Jce . was committed he was not·at Nyarubungo Village, . • • • ,· · • • • •• '. • • • • 4 as t,e 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 fs that the accused" must furnish prior notice or • give the- particulars .of alibi before the . - prosecution has closedits 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 thern. 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 i st Assessors Aporinary Barthazar said the accused might have gone to town just to hide himself, . . 2 nd Assessor- Advera Pon·sian ·said nothing while 3 rd Assessors- Amour Abdallah discounted the appellants defence on account of African's· ansfoms especially people of Biharamulo ~hat he ought to have had I informed his neighbours who -· are clan ·members about the death of his · ,r ~;. sister (page 68). The appella_nt's defence of alibi was completely not considered - by the trial Court. Instead, PWl who testified· to have seen the appellant cutting the deceased with a machete and PW2 who responded to the call for assistance by PWl and found the oeceased at her lost minutes to be 7

. '. credible witnesses ,on the basis ·of· their testimony,· ··tfte'·:appellarit ·was· convicted of the offence.·· · · , .. . " .. ·... ' The above aside, in his jdgment- in respect .ot'the PWl's-credibility,' the trial judge stated .at .page. 85 .. · •. ·_ " But also PWl cannot be said fabdcated evidence . against the ·accused,.· she··mentioned the accqed iminediately ;after the incident and from ·her report the· accused was traced and arrested . The act of PWJ naming the accused at:the. earliest opportunity . ·. is important-assurance of herreliability·see case· of~ Marwa_ Waqgiti Mwita .& Another, V. R/ Criminal No. 6 of 1995 CAT.// · .· · · Lastly at page 86 the trial judge, after considering. the testimonies of PWl and PW2 in relation with evidence of other witnesses, concluded-thus: · " I have no reason to doubt the evidence of PWJ · and that of PW2 as every witness is entitled credence and his evidence believed unless there is 8

. :·. ,good reason for not. doing $0, see Goodluck • • ,f -~ ·_,__.., .• _. ; • Jonathan. V. R (2000) TLR 300. [ have no reason for not believing the two witnesses as their . . . _ testin1onies are also corroborated by the other independent' evidence from people/witness· who saw the dece.ased dead with cut wounds; · These include · PW3 PW4, PW5and PW6. ,, It is evident that the appellant's conviction was primarily based on ' . ~ , ' the. evidence by PVVf and PW2 who were taken to be credible witnesse_s. · .. 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 forcertain 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 \

ii •• ,But ·you·. can • ·weigh "other issues such as _ demeanour - - did . · credibility of · the witnesses, identification of the accused On the demeanour and credibility of 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 de1J1eanour as well as their credibility.", In their opinion, the 1 st Assessors; Aporinary Barthazar, said: '~~- The accused is-the brother in-law of PW2 and the ltAJO have no grudges. · There ·was· no reason for her to lie. against him" · - - . He entered a verdict of guilty. The 2 nd Assessor; Advera. Ponsian had it that: 11 •• :PWl statement was.taken_ after a long time, 19 months after the incident I believe the evidence she gave she was couchd. . .. " She entered a verdict of not guilty. ·, The 3 rd Assessors; Amour Abdallah stated that: ' .. PW1 · to PW4 all these witnesses are close neighbours. They know the accused· properly. 10

f' Three .of. them. are. clan men1bers -blood related. . What they told ti]?, Cpu~ is. tf!e, truth., .. ~ ._, ,· .•' ' . . . . . . . ·• ... -· · .. · He entered a'verdict of guil_ty~ . ;. -· . . . . . Comprehensively considered, it is apparent that the criteria for .•. • determining the credibility of· witnesses the assessors had in mind. whkh ·. · mostly based on blood relationshrp, ·neighborhood and time taken before~ P/111 's statement was recorded are not i~ 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· · · · •• • l • • f' 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 ob1iged 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, ~riminal Appeal No. 8 of 2014 (unreported) the Court stated: . . . . ' . . " .. .As provided under the law, a trial of murder before the High Court must be with· the aid of assessors. One of the basis procedures is that the 11

• t:-·-- ... --6 1i:; __ tr/a/judge - 1nusi adequately sum up to "the said asses"Sd(s. :before·record/ng their_ opinions; · -Where there is inadequate summing up, non-direction or

• misdirection on : such - a vital - point of law to assessors/1t'is deemed tci' be a trial without the aid of assess(Jrs and renders the trial a nullity. " . . . . . . . Linked_ to the ·above- is the import of.evidence by relatives and need for corroborati.on. ..- ' : The trial judge, apart from .stating to the_ assessors· th~t PWf, PW2, PVV3·and·PW4 were:b_lood·related to the·-accused,· he did not tell them;the· - . . lega_l--ilT!Plic_atio~~,frrterrns. of the.alue·oftheir testimonies\· He reserved .. fr·:: and considered it in h·is· jdgme~t where -he ·stated .that all are competent witnesses and there is ~o law-1)rohibiting them not to testify arid went ·as - . far as citing the case of _liassan l3akari @ Mama John V.R; Criminal . '' Appeal No. 103 of 2012 and Bashiri Salum v. R, Criminal Appeal No. 1is· 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

, ,,, . v · · deemed to have been not· with the· aid of assessors~·., Thdse ·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 q'uash 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· Cowt for it to. be heard de nova by another judge and a new set of assessors. DATED at BUKOBA this 13 th 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.~IKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 13